Shrimati Uma Gupta, Bhopal V. Dypti Commissioner Of Income Tax, (Central)-II, Bhopal

ITA 506/Ind/2017

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 4238 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 12-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K MITRA
• Assessee Lawyers: ASHISHGOYAL N D PATVA ARS
• Keywords: Unexplained investment; Gift; Opportunity of being heard
• Section: 143(3); 153A; 132; 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCHE, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.506/IND/2017 ASSESSMENT YEAR: 2013-14 SMT. UMA GUPTA 31, A-SECTOR, BDA COLONY, KOHEFIZA, BHOPAL / VS. DCIT CENTRAL II, BHOPAL (APPELLANT) (REVENUE ) P.A. NO. AJEPG6559M APPELLANT BY SHRI ASHISHGOYAL& N. D. PATVA, (ARS) REVENUE BY SHRI P.K. MITRA SR. DR DATE OF HEARING: 04.10.2018 DATE OF PRONOUNCEMENT: .10.2018 / O R D E R PER MANISH BORAD, A.M: THIS APPEAL OF THE ASSESSEE RELATING TO ASSESSMENT YEAR 2013- 14 IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONE R OF INCOME TAX (APPEALS)-3, BHOPAL, DATED 09.06.2017 ARISING OUT O F THE ORDER U/S UMA GUPTA 2 143(3) OF THE ACT R.W.S 153A FRAMED ON 28.01.2015 BY THE DCIT, CENTRAL-II, BHOPAL. 2. BRIEFLY STATED THE FACTS, AS RELEVANT TO THE INS TANT APPEAL AND THE GROUND RAISED THEREIN ARE THAT ASSESEE IS AN I NDIVIDUAL. SEARCH U/S 132 OF THE ACT WAS CONDUCTED ON 31.11.2012 ON T HE BUSINESS PREMISES OF FORTUNE GROUP AND THE ASSOCIATED INDI VIDUALS WHICH ALSO INCLUDED THE ASSESSEE. DURING THE COURSE OF SE ARCH AND SEIZURE ACTION ON 10.12.2012 JEWELLERY WAS FOUND IN THE LOC KER NO. 72, DENA BANK, BDA COLONY, BHOPAL WHICH WAS VALUED AT RS.66,96,563/-. IT WAS TREATED AS UNEXPLAINED AND T HEREFORE WAS ADDED TO THE INCOME OF RS.373980/- SHOWN BY THE ASS ESSEE. INCOME ASSESSED AT RS.70,70,543/-. 3. AGGRIEVED THE ASSESSEE PREFERRED AN APPEAL BEFOR E THE LD. CIT(A) WHO AFTER THOROUGH EXAMINATION OF THE ISSUE GAVE PA RT RELIEF TO THE ASSESSEE BY FOLLOWING THE CENTRAL BOARD OF DIRECT T AXES INSTRUCTION NO. 1916 DATED 11.05.1994 AND ACCEPTED THE GOLD JEW ELLERY OF 700 GRAMS OUT OF THE TOTAL GOLD JEWELLERY OF 2090.26 GR AMS. 4. NOW ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AG AINST THE IMPUGNED ADDITION FOR UNACCOUNTED INVESTMENT IN GOL D JEWELLERY OF UMA GUPTA 3 1390.267 GRAMS. LD. COUNSEL FOR THE ASSESSEE REFERR ING TO THE SYNOPSIS SUBMITTED THAT ASSESSEE HAS RECEIVED GOLD JEWELLERY WEIGHING 1520 GRAMS FROM HER MOTHER AND IN SUPPORT THERETO REFERRED TO THE COPIES OF WILL MADE BY THE ASSESS EES MOTHER SMT. PREMWATI GOYAL ON 16.02.1973 AS WELL AS 19.09.2002. LD. COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT THE WILL OF SMT. PREMWATI GOYAL DATED 16.02.1973 WAS FOUND DURING THE COURSE OF SEARCH AND THEREFORE, COGNIZANCE SHOULD BE GIVEN TO THE SAME. HE ALSO ADDED THAT THE ASSESSEE BELONGS TO A VERY REPUTED FAMILY AND HER MOTHER ALSO BELONG FROM VERY RICH GOYAL FAMILY OF AGRA AND THEREFORE, THE 1520 GRAM GOLD JEWELLERY RECEIVED FROM MOTHER SHOU LD HAVE BEEN ACCEPTED BY BOTH THE LOWER AUTHORITIES. 5. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE (DR) VEHEMENTLY ARGUED SUPPORTING THE ORDERS OF THE LOWER AUTHORITI ES. 6. WE HAVE HEARD RIVAL CONTENTION AND PERUSED MATER IAL AVAILABLE ON RECORD BEFORE US. THE ASSESSEE HAS CHALLENGED THE A DDITION FOR UNACCOUNTED INVESTMENT IN GOLD JEWELLERY WEIGHING 1 390.267 CONFIRMED BY THE LD. CIT(A). WE OBSERVE THAT DURING THE COURSE OF SEARCH GOLD JEWELLERY WEIGHING 2090.267 GRAM WAS FO UND. ADDITION UMA GUPTA 4 OF RS.66,96,563/- WAS MADE FOR THE ALLEGED GOLD JEW ELLERY. HOWEVER, THE LD. CIT(A) PARTLY ALLOWED THE ASSESSEES PLEA B Y ACCEPTING 700 GRAM GOLD JEWELLERY IN VIEW OF INSTRUCTION NO. 1916 ISSUED BY THE CBDT. THE ASSESSEE IS NOW CHALLENGING THE REMAININ G ADDITION FOR 1390.267 GRAM. IN THE SYNOPSIS, THE SOURCE OF JEWELLERY WAS EXPLAI NED IN THE FORM OF TABLE MENTIONED BELOW: SR. NO. PARTICULARS DATE OF PURCHASE WEIGHT( GRAMS) AMOUNT PAPER BOOK 1 PAREKH JAGGANATH NATHALA JEWELLERS 24.01.85 77.80 PAYMENT BY CHQUE. MENTIONED ON FACE OF BILL 32 2 PAREKH JAGGANATH NATHALA JEWELLERS 25.01.85 85.50 33 3 PAREKH JAGGANATH NATHALA JEWELLERS 25.01.85 97.60 34 4 ICICI BANK 02.11.10 100.00 LEDGER.PB 37 PAID BY CHEQUE 36 - 37 5 ALANKAR JEWELLERS 06.04.05 23.66 RS.15,350 356 6 RIDDHI SIDDHI JEWELLERS 12.05.12 11.40 RS. 43,770 38 - 39 7 RECEIVED THROUGH WILL FROM HER MOTHER 1520 25 - 26 8 RECEIVED GIFT AT TIME OF MARRIAGE IN 1956 175 27 2090.96 GRAMS UMA GUPTA 5 7. IN THE ABOVE TABLE LD. COUNSEL FOR THE ASSESSEE MAINLY FOCUSED FOR THE GOLD JEWELLERY WEIGHING 1520 GRAM RECEIVED BY ASSESSEE FROM HER MOTHER SMT. PREMWATI GOYAL THROUGH WILL DATED 16.02.1973 WHICH WAS FOUND DURING THE COURSE OF SEARCH AND COP Y PLACED AT PAGES 23 & 24 OF THE PAPER BOOK WHEREIN 1600 GRAM O F GOLD ORNAMENT ARE STATED TO BE GIVEN TO THE ASSESSEE HO WEVER THE ALLEGED WILL SEEMS TO HAVE MANY DEFECT BECAUSE NO WITNESS HAS SIGNED NOR IT IS REGISTERED. ANOTHER WILL DATED 10.12.20 12 IS ALSO PLACED ON RECORD AT PAGES 25 & 26 OF THE PAPER BOOK. IN TH IS WILL MADE BY PREMWATI GOYAL, THERE IS SPECIFIC MENTION ABOUT GOLD ORNAMENT OF 130 TOLLA (APPROXIMATE 1520 GRAM) WHICH STANDS G IVEN TO THE ASSESSEE AND THE SOURCE OF THE GOLD JEWELLERY IS ON THE OCCASION OF MARRIAGE OF PREMWATI GOYAL AND OTHER CEREMONIAL AND RELIGIOUS OCCASIONS. THIS WILL HAS BEEN EFFECTED IN PURSUAN CE OF TWO WITNESSES BUT IT IS DEVOID OF SUFFICIENT STRENGTH T O BE PROVED AS A GENUINE WILL BECAUSE THE ASSESSEE HAS NOT FILED A NY WEALTH TAX RETURN EVEN WHEN IT HAS BEEN REGULARLY FILING INCO ME TAX RETURNS. HOWEVER, LOOKING TO THE FACT THAT WILL DATED 16.0 2.1973 AS WELL AS WILL DATED 10.12.2012 WERE FOUND DURING THE CO URSE OF SEARCH, THEIR GENUINENESS CANNOT BE IGNORED OUT RIG HTLY. A QUESTION UMA GUPTA 6 WAS ASKED TO BOTH THE PARTIES DURING THE COURSE OF HEARING AS TO WHETHER THEY HAVE ANY OBJECTION IF THE ISSUE OF THE GENUINENESS OF THE WILL FOR THE ALLEGED GOLD ORNAMENT WEIGHING 152 0 GRAM RECEIVED BY THE ASSESSEE FROM HER MOTHER IS SENT FOR VERIFIC ATION TO THE LD. AO TO WHICH BOTH THE PARTIES AGREE. WE THEREFORE, I N THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE SET ASIDE THIS ISSUE TO THE FILE OF LD. AO WITH A DIRECTION THAT THE WITNESSES MENTIONED IN THE WILL DATED 10.12.2012 SHOULD BE CALLED FOR THEIR STATEMENT BEC AUSE SMT. PREMWATI GOYAL HAS EXPIRED AFTER EXECUTING THIS WI LL. IF BOTH THE WITNESSES APPEARS BEFORE THE ASSESSING AUTHORITY AN D CONFIRM THAT THE ALLEGED DOCUMENTS I.E. WILL DATED 10.12.2012 APPEARING AT PAGE 25 & 26 OF THE PAPER BOOK WAS SIGNED IN THEIR PRESENCE BY LATE PREMWATI GOYAL THAN THE CLAIM OF THE ASSESSEE OF H AVING RECEIVED 1520 GRAM OF GOLD JEWELLERY SHOULD BE ACCEPTED AND IN SUCH SITUATION NO ADDITION WOULD BE MAINTAINABLE. NEEDLE SS TO MENTION THAT PROPER OPPORTUNITY OF BEING HEARD TO BE PROVID ED TO THE ASSESSEE. UMA GUPTA 7 8. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 09 .10 .2018. S D / - (KUL BHARAT) S D / - (MANISH BORAD) / JUDICIALMEMBER / ACCOUNTANT MEMBER INDORE; DATED : 09/ 10/2018 COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUA RD FILE. BY ORDER PRIVATE SECRETARY/DDO, INDORE