JAYANT B PATEL, MUMBAI V. ACIT CC13, MUMBAI

ITA 5550/MUM/2012

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6078 (ITAT-MUMBAI)
• Duration Of Justice: 7 year(s) 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2003-2004
• Appeal Filed On: 03-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V CHANDRASEKHAR
• Keywords: Gift; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES F , MUMBAI BEFORE S HRI RAJESH KUMAR (AM ) AND SHRI RAM LAL NEGI (JM) ITA NO. 5550 /MUM/20 1 2 ASSESSMENT YEAR: 2003 - 04 JAYANT B PATEL, B/27, CLIFTON SOCIETY, NEAR CENTUAR HOTEL, JUHU VILE PARLE (W), MUMBA I - 49 PAN: AACPP6414H VS. THE ACIT - CC - 13, 10 TH FLR, CGO, CHURCHGATE, MUMBAI - 20 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI V. CHANDRA SEKHAR (AR) REVENUE BY : SHRI RAHUL RAMAN ( CIT D R) DATE OF HEARING: 25 /06 /2020 DATE OF PRONOUNCEMENT: 31 / 07 /2020 O R D E R PER RAM LAL NEGI, JM T HE J BENCH OF THE TRIBUNAL PASSED THE COMMON ORDER DATED 10.08.2016 IN THE CAPTIONED APPEAL OTHER APPEALS OF THE ASSESSEE PERTAINING TO THE EARL IER AND SUBSEQUENT ASSESSMENT YEARS . HOWEVER, THE TRIBUNAL VIDE ORDER DATED 03.05.2017, PASSED IN MA 117 - 23/MUM/2017 RECALLED ORDER DATED 10.08.2016 FOR LIMITED PURPOSE OF ADJUDICATING GROUND NO. 5 OF THE APPEAL PERTAINING TO THE ASSESSMENT YEAR 2003 - 04 FO R THE REASON THAT THE TRIBUNAL HAS NOT ADJUDICATED GROUND NO. 5 OF THE APPEAL WITH REGARD TO ADDITION OF RS. 5,68,942/ - ON ACCOUNT OF SALE OF GOLD JEWELLERY. THE G ROUND NO. 5 OF THE APPEAL READ S AS UNDER: - 5.1 THE LD. CIT (A) ERRED IN CONFIRMING THE AC TION OF THE A.O. IN MAKING THE ADDITION OF RS. 5,68,942/ - TO THE INCOME OF THE APPELLANT ON ACCOUNT OF ALLEGED UNEXPLAINED/UNACCOUNTED JEWELLERY. 2 ITA NO. 5550 / MUM/2012 ASSESSMENT YEAR: 2003 - 04 5.2 IT IS SUBMITTED THAT IN THE FACTS AND THE CIRCUMSTANCES OF THE CASE, AND IN LAW, NO SUCH ADDITION WAS CA LLED FOR. 2. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE LD. CIT(A) HAS WRONGLY SUSTAINED THE ADDITION OF RS. 5,68,942/ - ON ACCOUNT OF ALLEGED UNEXPLAINED/UNACCOUNTED JEWELLERY. THE LD. COUNSEL POINTED OUT THAT THE TRIBUNAL HAS DELETED THE ADDITION MADE IN RESPECT OF GIFT S RECEIVED BY THE ASSESSEE IN 2003 - 04 AND 2004 - 05 BASICALLY ON THE GROUND THAT NO INCRIMINATING MATERIAL WAS FOUND DURING SEARCH. THE TRIBUNAL HAS DECIDED SAID ISSUE BY FOLLOWING THE RATIO LAID DOWN BY THE HONBLE MUMBA I HIGH COURT IN THE CASE OF CONTINENTAL WAREHOUSING CORPORATION (NHAVA SHEVA) 374 ITR 645 , DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF JAKSON ENTERPRISES, ITA NO. 383/DEL/2013 , DECISION OF JODHPUR BENCH OF THE ITAT IN THE CASE OF VISHAL DEMB LA 40 TAXMANN.COM 134 , DECISION OF THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF JAYENDRA P JHAVERI 46 TAXMANN.COM 457 AND THE DECISIONS OF THE OTHER BENCHES OF THE TRIBUNAL. THE LD. COUNSEL FURTHER POINTED OUT THAT SINCE NO INCRIMINATING DOCUMENTS WERE RECOVERED DURING THE COURSE OF SEARCH IN RESPECT OF THE ALLEGED UNEXPLAINED/ UNACCOUNTED JEWELLERY , THE FINDINGS OF THE LD. CIT(A) IS BAD IN LAW , THEREFORE LIABLE TO BE SET ASIDE . 3. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FAI RLY ADMITTED THAT THE TRIBUNAL HAS DELETED THE ADDITION CONFIRMED BY THE LD. CIT (A) ON ACCOUNT OF BOGUS GIFTS PERTAINING TO THE ASSESSMENT YEAR 2003 - 04 AND 2004 - 05 ON THE GROUND THAT NO INCRIMINATING MATERIAL WAS RECOVERED DURING THE COURSE OF SEARCH. T HE LD. DR, HOWEVER, SUPPORTED THE ORDER PASSED BY THE LD.CIT (A). 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE MATERIAL ON RECORD INCLUDING THE ORDER OF THE TRIBUNAL PASSED IN ASSESSEES APPEALS REFERRED ABOVE . THE AO MADE ADDITIO N OF RS. 10,30,933/ - ON ACCOUNT OF UNACCOUNTED SALE OF GOLD JEWELLERY HOLDING THAT THE ASSESSEE HAS BEEN ABLE TO PROVIDE THE SOURCE OF GOLD TO THE EXTENT OF 3984.7 GRAMS BY WAY OF VDIS DOCUMENTS AND BILL S . HOWEVER, THE ASSESSEE HAS FAILED TO EXPLAIN THE SO URCE OF BALANCE JEWELLERY WEIGHING 2297.6 GRAMS . IN THE FIRST APPEAL, THE LD. CIT (A) 3 ITA NO. 5550 / MUM/2012 ASSESSMENT YEAR: 2003 - 04 RESTRICTED THE ADDITION TO RS. 5,68,942/ - HOLDING THAT THERE IS MERIT IN THE CLAIM MADE BY THE APPELLANT THAT OVERALL GOLD JEWELLERY FOUND DURING THE COURSE OF SEARCH SHO ULD BE COMPARED WITH JEWELLERY CLAIMED TO BE KEPT WITH THE APPELLANT AFTER THE SALE MADE IN THE YEAR 2003 - 04 . WE FURTHER NOTICE THAT THE AUTHORITIES BELOW HAVE NOT MENTIONED IN THEIR ORDERS THAT ANY INCRIMINATING MATERIAL WAS RECOVERED FROM THE ASSESSEE DU RING THE COURSE OF SEARCH . SINCE, THE TRIBUNAL HAS DELETED THE ADDITION MADE ON ACCOUNT OF THE ALLEGED BOGUS GIFTS ON THE GROUND THAT NO INCRIMINATING MATERIAL WAS RECOVERED DURING THE SEARCH , CONSISTENT WITH OUR FINDINGS, WE DELETE THE ADDITION OF RS. 5,6 8,942/ - MADE ON ACCOUNT OF UNEXPLAINED JEWELLERY SUSTAINED BY THE LD. CIT (A) FOR THE SAME REASON THAT NO INCRIMINATING MATERIAL WAS RECOVERED DURING THE COURSE OF SEARCH . HENCE , WE SET ASIDE THE FINDINGS OF THE LD. CIT (A) AND DECIDE THE SOLE GROUND OF AP PEAL IN FAVOUR OF THE ASSESSEE. ACCORDINGLY, WE DIRECT THE AO TO DELETE THE ADDITION OF RS. 5,68,942/ - SUSTAINED BY THE LD. CIT (A). IN THE RESULT, APPEAL FILED BY THE A SSESSEE FOR ASSESSMENT Y EAR 2003 - 2004 IS ALLOWED. ORDER PRONOUNCED ON 31 ST . JULY , 2020 UNDER RULE 34 (4) OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963. SD/ - SD/ - ( RAJES H KUMAR ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 31 / 0 7 / 2020 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . 4 ITA NO. 5550 / MUM/2012 ASSESSMENT YEAR: 2003 - 04 / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI