Jagdish Paliwal, JAIPUR V. ACIT, UDAIPUR

ITA 529/JODH/2010

• Counselvise Citation: 52923314 RSA 2010
• Duration Of Justice: 1 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-12-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 15-11-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Corroborative evidences
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, JODHPUR BENCH: JODHPUR (BEFORE SHRI R.K.GUPTA AND SHRI N.L. KALRA) ITA NO.529/JODH/2010 ASSESSMENT YEAR : 2006-2007 SHRI JAGDISH PALIWAL VS. ASSTT. COMMISSIONER OF INCOME KELWA, RAJSAMAND TAX CENTRAL CIRCLE-1, UDAIPUR (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI GAUTAM MUTHA RESPONDENT: SHRI SUBHASH CHANDRA DATE OF HEARING: 16.12.2011 DATE OF PRONOUNCEMENT: 22.12.2011 ORDER PER SHRI N.L. KALRA, A.M. 1. THE ASSESSEE HAS FILED AN APPEAL AGAINST ORDER O F LD. CIT (A) CENTRAL JAIPUR DATED 20.10.2010. THE GROUND OF APPEAL IS AS UNDER: THE LD. COMMISSIONER OF INCOME TAX (APPEALS), CENTR AL, JAIPUR HAS ERRED IN FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.1,00,00 0/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMEN T IN SILVER FOUND DURING THE COURSE OF SEARCH. ASSESSEEE IS ENGAGED IN THE MANUFACTURING AND TRADI NG OF MARBLE TILES IN THE NAME AND STYLE OF M/S. SHIV ENTERPRISES, KELWA. IN SEARCH DATED 13.9.2005 1275.260 GRAMS OF GOLD ORNAMENTS AND 32 KG OF SILVE R JEWELLERY AND UTENSILS WERE FOUND. THE ASSESSEE IN REPLY TO QUESTION NO.9 OF HIS STATE MENT STATED THAT SILVER JEWELLERY BELONGS TO HIS MOTHER, HIS WIFE (TWO MARRIAGES) AND WIFE OF HIS BROTHER. HE FURTHER STATED THAT THE SILVER FOUND IS OLD ACQUISITION OF THE FAMILY BUT BECAUSE OF LACK OF EVIDENCE AND TO BUY PEACE OF MIND HE OFFERED RS.1,0 0,000/- STATED TO BE NEW SILVER AS HIS UNDISCLOSED INCOME. NO PART OF GOLD OR SILVE R ITEMS WERE SEIZED IN SEARCH. IN THE RETURN ASSESSEE DID NOT OFFER ANY GOLD/SILVE R ITEM AS UNEXPLAINED. IN ASSESSMENT PROCEEDINGS ASSESSEE FILED AFFIDAVIT OF VARIOUS FAMILY MEMBERS IN SUPPORT OF THE GOLD AND SILVER ORNAMENTS FOUND. AO ACCEPTED THE POSSESSION OF GOLD ORNAMENTS AS PER THESE AFFIDAVITS AS EXPLAINED . HOWEVER IN RESPECT OF SILVER ITEMS HE MADE ADDITION OF RS. 1,00,000/- FOR THE RE ASON THAT ASSESSEE HAS NOT FILED ANY SUPPORTING EVIDENCE WITH REGARD TO SUBSEQUENT R ETRACTION AND THE AFFIDAVITS OF VARIOUS FAMILY MEMBERS IS NOT SUPPORTED WITH ANY CO RROBORATIVE EVIDENCE. CIT(A) UPHELD THE ADDITION FOR THE REASON THAT ASSE SSEE HAS NOT MADE OUT ANY CASE THAT THE STATEMENT WAS MADE UNDER A MISTAKEN BELIEF OR FACT OF LAW AND THEREFORE STATEMENT MADE VOLUNTARILY COULD FORM THE BASIS OF ASSESSMENT. HE RELIED ON THE DECISIONS REPORTED IN 219 ITR 235 (KER) AND 248 ITR 782 (ALL.). 2. THE SUBMISSIONS OF THE LD. A/R ARE AS UNDER:- IT MAY BE NOTED THAT IN RESPECT OF THE SOURCE OF AC QUISITION OF GOLD AND SILVER ITEMS, ASSESSEE HAS FILED AFFIDAVITS OF VARIOUS FAM ILY MEMBERS. ON THE BASIS OF THESE AFFIDAVITS AO HAS ACCEPTED THE POSSESSION OF GOLD ORNAMENTS. HENCE ON THE BASIS OF THE SAME AFFIDAVITS THE POSSESSION OF SILV ER ORNAMENTS CANNOT BE DENIED, MORE PARTICULARLY WHEN IN STATEMENTS ITSELF HE HAS STATED THAT THESE ARE OLD AND THEIR FAMILY ASSET. THIS IS SUPPORTED BY THE AFFIDA VITS OF FAMILY MEMBERS AS UNDER: SMT. BASANTI BAI PALIWAL (MOTHER OF THE ASSESSEE) R ECEIVED 6500 GMS OF SILVER ORNAMENTS/ARTICLES FROM HER PARENTS AT THE T IME OF HER MARRIAGE PRIOR TO 50 YEARS. LATE SUSHILA PALIWAL FIRST WIFE OF THE ASSESSEE REC EIVED 7571 GMS OF SILVER ORNAMENTS/ARTICLES FROM HER PARENTS/RELATIVES AT TH E TIME OF HER MARRIAGE AND OTHER OCCASIONS DURING THE FINANCIAL YEAR 1986. THE SAME REMAINED WITH THE ASSESSEES SECOND WIFE SMT. MEENA PALIWAL AFTER THE EXPIRY OF HIS FIRST WIFE. SMT. MEENA PALIWAL HAS RECEIVED 5500 GMS OF SILVER ORNAMENTS FROM HER PARENTS AT THE TIME OF HER MARRIAGE AND OTHER OCCAS IONS IN THE YEAR 2000. SMT. KIRAN PALIWAL, (BROTHERS WIFE) RECEIVED 4000 GMS OF SILVER ORNAMENTS FROM HER PARENTS AT THE TIME OF MARRIAGE AND OTHER OCCASIONS DURING THE YEAR 1999. 9990 GMS OF SILVER ORNAMENTS ARE PAWNED ITEMS WHICH WERE ACQUIRED AND APPROPRIATED AGAINST THE PAWNED ADVANCES GIVEN MORE THAN SIX YEARS BACK DURING COURSE OF BUSINESS CARRIED ON BY HIM PRIOR T O THE ASSESSMENT YEARS FALL IN SEARCH PERIOD. THE LD. ASSESSING OFFICER HAS NOT POINTED OUT ANY D EFECTS IN THESE AFFIDAVITS AND THEREFORE SAME CANNOT BE REJECTED IN VIEW OF THE DE CISION OF HONBLE SUPREME COURT IN THE CASE OF MEHTA PARIKH & CO. VS. CIT 30 ITR 181. FURTHER WHEN IN THE STATEMENT ITSELF ASSESSEE HAS CLARIFIED THAT SILVER ITEMS ARE OLD AND THE FAMILY PROPERTY, STILL OFFERING RS.1,00,000/- AS UNEXPLAIN ED INVESTMENT IN SILVER ITEMS TO BUY PEACE OF MIND ITSELF INDICATE THAT SURRENDER WA S SOUGHT FROM THE ASSESSEE BY UNDUE INFLUENCE AND THEREFORE SUCH STATEMENT CANNOT SAID TO BE VOLUNTARY. THEREFORE THE DECISIONS RELIED BY CIT (A) ARE NOT A PPLICABLE. IT IS FURTHER SUBMITTED THAT SIMPLY ON THE BASIS OF STATEMENT IN ABSENCE OF ANY CORROBORATIVE EVIDENCES, ADDITION CANNOT BE MADE AS HELD IN THE FOLLOWING CASES: THE HONBLE SUPREME COURT IN THE CASE OF PULLANGONE RUBBER PRODUCE COMPANY LTD. V. STATE OF KERALA AND ANOTHER 91 ITR 18 HELD THAT ADMISSION IS AN EXTREMELY IMPORTANT PIECE OF EVIDENCE BUT IT CANT BE SAID TH AT IT IS CONCLUSIVE. IT IS OPEN TO THE ASSESSEE WHO MADE ADMISSION TO SHOW THAT IT IS INCORRECT AND THE ASSESSEE SHOULD BE GIVEN PROPER OPPORTUNITY TO SHOW THE CORR ECT STATE OF AFFAIRS. SURENDRA PAL VERMA VS. ACIT 89 ITD (CHD)(TM): CONFE SSIONAL STATEMENT MADE DURING SEARCH ARE OFTEN VENERABLE ON GROUND THAT PE RSON GIVING SUCH STATEMENT REMAIN UNDER A GREAT MENTAL STRESS AND STRAIN AND I N THE ABSENCE OF AVAILABILITY OF RELEVANT DETAILS, DOCUMENTS AND BOOKS AT THE TIME O F GIVING STATEMENT, PRECISE INFORMATION AS TO UTILIZATION OF SUCH INCOME AND YE AR OF INVESTMENT CANNOT BE CORRECTLY FURNISHED. JUGAL KISHORE GARG VS. DCIT 34 TAXWORLD 201 (JP): A DDITION TO TOTAL INCOME OF AN ASSESSEE CANNOT BE MADE SIMPLY ON THE BASIS OF S TATEMENT OF ASSESSEE WITHOUT COLLECTING AND BRINING ANY CORROBORATIVE EVIDENCE O N RECORD. 3. THE LD. D/R DREW OUR ATTENTION TO THE ORDER OF A .O. JWELLERY AND UTENSILS WEIGHING 32 KG WERE FOUND AND THE STATEMENT OF ASSESSEE WAS RECORD ED U/S 132 (4) OF THE I.T. ACT. IN THE STATEMENT THE ASSESSEE SURRENDERED RS.1,00,000/- IN RESPECT OF ITEMS SILVER WHICH COULD NOT BE STATED AS OLD. THE BALANCE WAS CLAIMED AS BELONGING TO HIS FAMILY MEMBERS. DUE TO SUCH ADMISSION THE LD. CIT (A) HAS CONFIRMED THE ADDITIO N AFTER REFERRING TO THE DECISION OF HONBLE KERALA HIGH COURT IN THE CASE OF V. KUNHAMBU & SONS V CIT 219 ITR 235. THE STATEMENT IS VOLUNTARY AND HENCE THE LOWER AUTHORITIES WERE STAT ED TO HAVE RIGHTLY CONFIRMED THE ADDITION. 4. WE HAVE HEARD BOTH THE PARTIES. THE ASSESSEE SUR RENDERED A SUM OF RS.1 LAKH AS THERE WAS SILVER ITEMS WHICH WERE NEW. THE A.O. HAS ACCEPTED THE BALANCE SILVER ITEM AS UNEXPLAINED THOUGH SILVER ITEMS FOUND WERE TO THE EXTENT OF RS. 2,30,880/-. THE GOLD ITEMS WEIGHING 1275.260 WERE TREATED AS EXPLAINED ON THE BASIS OF STATEMENT RECORDED. 5. THE STATEMENT RECORDED DURING THE COURSE OF SEAR CH IS A VALUABLE PIECE OF EVIDENCE. IT IS NOT THE CASE OF THE ASSESSEE THAT THERE WAS DURESS OR COERCION. STATEMENT IS RECORDED ON OATH. NO EVIDENCE HAS BEEN FILED BEFORE THE LOWER AUTHORITIE S EXCEPT THE AFFIDAVITS. THE LD. A.O. HAS MENTIONED THAT AFFIDAVITS OF VARIOUS FAMILY MEMBERS ARE NOT SUPPORTED BY CORROBORATIVE EVIDENCE. WE THEREFORE FEEL THAT LD. CIT (A) WAS JU STIFIED IN CONFIRMING THE ADDITION. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DISMIS SED. THE ORDER IS PRONOUNCED ON 22.12.2011 SD/- SD/- (R.K.GUPTA) (N.L.KALRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 22.12.2011 *S.KUMAR* COPY FORWARDED TO:- 1. SHRI JAGDISH PALIWAL, BHRAMPURI, KELWA, RAJSAMAN D. 2. THE ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE- 1, UDAIPUR. 3. THE CIT 4. THE CIT(A), 5. THE D/R, ITAT, JODHPUR 6. THE GUARD FILE IN ITA NO.529/JODH/2010 BY ORDER A.R., I.T.A.T., JODHPUR