KAMAL KISHORE MAHESHWARI, Jaipur V. ACIT, Jaipur

ITA 557/JPR/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5526 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 27-05-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S M MEENA
• Keywords: Unexplained expenditure; Gift; Search and seizure; Loose papers; Document seized; Opportunity of being heard; Source of fund; Documents seized
• Section: 69C; 143(3); 132

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA- @ ITA NO. 557/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 KAMAL KISHORE MAHESHWARI, INTERNATIONAL EMERALDS, 52, TRIBHUWAN HARI MARG, CIVIL LINES, JAIPUR. CUKE VS. A.C.I.T., CENTRAL CIRCLE-1, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: ACTPM 0199 F VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SRI P.C. PARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SRI S.M. MEENA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 09/11/2015 MN?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 22/01/2016 VKNS'K @ ORDER PER: T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 01/3/2013 PASSED BY THE LEARNED CIT(A) (CENTRAL), J AIPUR FOR A.Y. 2008- 09. THE EFFECTIVE GROUNDS OF APPEAL ARE REPRODUCED A S UNDER:- 1. THE LD CIT(A) HAS ERRED IN FACTS AND IN LAW IN CON FIRMING THE ADDITION OF RS. 15,28,384/- OUT OF THE ADDITIONS OF RS. ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 2 19,41,200/- MADE BY A.O. ON ACCOUNT OF ALLEGED UNEX PLAINED EXPENDITURE U/S 69C PM DAUGHTERS MARRIAGE. HE HAS FURTHER ERRED IN: (A) TAKING THE EXPENDITURE ON MARRIAGE OF DAUGHTER A T RS. 21.47 LACS AS AGAINST RS. 16.14 LACS INCURRED BY ASSESSEE INCLUDING THAT RELATING TO DAUGHTER OF SHR I ANAND PRAKASH. (B) NOT ALLOWING THE CREDIT OF CONTRIBUTION MADE BY FATHER IN LAW OF ASSESSEE RS. 1,63,600/-, AMOUNT GIVEN BY SHRI ANAND PRAKASH RS. 10,00,000/- CONTRIBUTION OF JEWELLERY BY MOTHER IN LAW OF ASSESSEE RS. 3,78,000/- AND AMOUNT AVAILABLE WITH ASSESSEE DAUGHTER AT RS. 1,00,000/-. 2. THE LD CIT(A) HAS ERRED IN FACTS AND IN LAW IN CONF IRMING THE DISALLOWANCE OF RS. 3,633/- OUT OF CAR INSURANCE, CO NVEYANCE AND TELEPHONE EXPENSES. 2. FIRST GROUND OF ASSESSEES APPEAL IS AGAINST CON FIRMING THE ADDITION OF RS. 15,28,384/- OUT OF ADDITION OF RS. 19,41,200 /- U/S 69C OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) ON ACCOUNT O F DAUGHTERS MARRIAGE. THE ASSESSEE HAS INCOME FROM OTHER SOURCES . HE FILED RETURN ON 18/12/2008 DECLARING TOTAL INCOME OF RS. 1,43,78 0/-. THE CASE WAS SCRUTINIZED U/S 143(3) OF THE. THE LD ASSESSING OFF ICER OBSERVED THAT A SEARCH AND SEIZURE OPERATION U/S 132 OF THE ACT WAS CARRIED OUT BY THE DEPARTMENT AT THE INSTANCE OF THE ASSESSEE ON 14/3/ 2008. DURING THE COURSE OF SEARCH PROCEEDINGS, BOOKS OF ACCOUNT AND LOOSE DOCUMENTS ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 3 WERE SEIZED AS PER ANNEXURE-A. PANCHNAMA WAS PREPARED ON THE DATE OF SEARCH AS PER EXHIBIT-A/1, LOOSE PAPERS 1 TO 71 WERE SEIZED. SEIZED PAPERS NO. 8 TO 13, 16 TO 27 AND 51 WERE CONTAINING VARIOUS DETAILS OF MARRIAGE EXPENSES OF THE RUBI, DAUGHTER OF THE ASS ESSEE, WHICH WAS SOLEMNIZED ON 06/7/2007. DURING THE COURSE OF SEARC H OPERATION PROCEEDING ON 14/3/2008, THE ASSESSEE HAD STATED RE GARDING EXPENDITURE OF MARRIAGE OF DAUGHTER INCURRED BY HIM AS UNDER:- IZ'U 1-D`I;K CRK;SA FD VKIUS IQ=H :CH DH 'KKNH 6@7 @2007 ESA FDRUK :I;K [KPZ FD;K VKSJ MLDK SOURCE D;K GSA\ MRRJ ESAUS VIUH IQ=H :CH DH 'KKNH ESA YXHKX 3&3 YK[K :IK;S [KPKZ FD;K GSA DQN ISLK IFJOKJ DS VU; LNL; TSLS FIRKTH] LLQJ TH VK FN US HKH YXK;KA EXACT AMOUNT EQ>S ;KN UGHAA IZ'U 23- ANNEXURE A EXHIBIT 1 DK IST 8]9] O 10 FN[KK, TK JGS GSA ;S D;K GSA D`I;K FOLRKJ LS CRK;SA\ MRRJ ;G IST LA[;K 8 O 9 ESJH IQ=H :CH DS FOOKG 6-7- 2007 ESA FD, X;S [KPSZ DH QSGFJ'R GSA MU DKXTKSA DS FGLKC LS DJHC 17]16]40 0@& :I;S ESJH IQ=H DH 'KKNH ESA [KPZ FD, FKS FTLDK ;KSX IST 8 IJ FD;K X;K GSA ;G FGLKC ESJH IFRU JHERH HKXORH }KJK FY[KK X;K GSA I`B LA[;K 10 IJ ES JH IQ=H DH LXKBZ 1-7- 2007 DS IJ GQ, [KPZ DH QSGFJ'R GSA ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 4 IZ'U24- D`I;K VKIUS FINYS IZ'U DS MRRJ ESA CRK;K FD MI;QZDR VKIUS VIUH IQ=H DH LXKBZ ESA [KPZ FD, FKS MDR [KPKSZA DK L=KSR D;K GS\ MRRJ ESAUS MI;QZDR [KPZ GEKJS BANK A/C ESA LS DQN ISLK FUDKY DJ FD;K RFKK CKDH DK FGLKC FDRKC GE CKN ESA CRK NSAXSA THE LD ASSESSING OFFICER HAD REPRODUCED THE CONTENTS OF THE SEIZED MATERIAL, WHICH IS RELATED TO THE SAGAI EXPENSES, GA NGUAR EXPENSES, MARRIAGE EXPENSES AND OTHER THINGS PURCHASE FOR BRO THER IN LAW AND SISTER IN LAW OF HIS DAUGHTER AND TOTAL DETAILS OF E XPENSES HAD BEEN SHOWN UNDER THESE HEADS AT RS. 17,16,400/-. THE LD AS SESSING OFFICER FURTHER REPRODUCED THE DETAILS OF SOURCE OF EXPENDI GURE INCURRED IN THE MARRIAGE EXPENSES IN THE NAME OF JAI SHREE GANESH W HEREIN TOTAL EXPENDITURE HAD BEEN SHOWN AT RS. 21,47,000/-. THE AS SESSING OFFICER GAVE REASONABLE OPPORTUNITY OF BEING HEARD ON THESE ENTRIES APPEARED IN THE SEIZED MATERIAL. THE ASSESSEE FILED VARIOUS REPL Y, WHICH HAS BEEN REPRODUCED BY THE ASSESSING OFFICER ON PAGE 6 OF TH E ASSESSMENT ORDER. THE LD ASSESSING OFFICER FINALLY OBSERVED AFTER CONS IDERING THE ASSESSEES REPLY AS UNDER:- (A) THE ASSESSEE IN HIS STATEMENT ON OATH ON THE DA TE OF SEARCH ASSESSEE HAS NOT POINTED OUT THAT RS. 10.00 LACS WAS GIVEN BY SHRI ANAND PRAKASH AGARWAL FOR MARRIAGE EXPENSES. THIS IS AN AFTERTHOUGHT AND DEVOID OF MERI TS. ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 5 (B) AS CASH EXTRACT SEIZED DURING THE COURSE OF SE ARCH ON 14.03.2008, CONTAIN DATE WISE SOURCES OF FUND AND DESCRIPTION OF VARIOUS EXPENSES INCURRED FOR DAUGHT ER RUBY'S MARRIAGE ON 06.07.2007 DOES NOT FIND RS. 10. 00 LACS RECEIPT FROM SHRI ANAND PRAKASH AGARWAL AS PER THE PAGE- 13 EXTRACT REPRODUCED EARLIER IN THIS ORDER, WHICH MENTIONS THE SOURCES OF FUNDS FOR EXPENDITURE IN THE MARRIAGE AS UNDER: FROM SH. KAMAL JI (ASSESSEE) RS. 5.00 LACS SH. SHANKAR LAI RS. 0.50 LACS ..DO.. RS. 0.50 LACS SH. SUNIL RS. 2.35 LACS ..DO.. RS. 1.00 LACS FROM INTEREST RS. 0.44 LACS LALIT DAGA RS. 0.90 LACS SH. SUNIL RS. 0.50 LACS CHEQUE . RS. 0.28 LACS CASH SH. SUNIL RS. 4.00 LACS SH. SUNIL RS. 5.00 LACS TOTAL RS.20.47 + 1 .00 (GIFT) = 21.47 LACS (C) FURTHER IT IS STATED THAT THERE WAS TWO MARRIAGES ONE OF ASSESSEE'S DAUGHTER AND ANOTHER MARRIAGE OF DAUGHTE R OF SH. ANAND PRAKASH AGARWAL BUT THE CASH EXTRACT SEIZED DOES NOT SHOW ANY COMMON EXPENSES INCURRED FOR TWO MARRIAGES BUT EXPENSES ONLY RELATES TO ASSESSEE'S D AUGHTER RUBY. (D) THE ASSESSEE HAS PRODUCED PERSONAL CASH ACCOUNT AND ALSO PROP, CONCERN M/S. INTERNATIONAL EMERALD PERUSAL PR ODUCED ARE NOT SUPPORTED BY VOUCHERS. SCRUTINY OF CASH ACC OUNT ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 6 REVEALED THAT ASSESSEE HAS MADE DRAWINGS ONLY RS. 15,000/- ON MARRIAGE EXPENSES AND THE REST EXPENSES FOR MARRIAGE HAS BEEN DONE THROUGH BORROWED FUNDS. THE ASSESSEE HAS GIVEN EVIDENCE OF ONLY RS. 1,90,800/- REGARDING EXPENSES INCURRED BY ASSESSEE'S BROTHER F OR 'ENGAGEMENT FUNCTION'. THE BALANCE AMOUNT OF RS. 21,47,000-(1,90,800+15,000) = RS. 19,41,200/- IS UNEXPLAINED. AS PER SEIZED PAGE-13 OF ANNEXURE-A AS SESSEE HAS RECEIVED AMOUNT OF RS. 12,85,000/- FROM SH. SUN IL GATTANI. THE ASSESSEE HAS FILED LETTER AND AFFIDAVIT STATING THAT SH. SUNIL GATTANI WAS GIVEN CLOSED ENVELOPE CON TAINING CASH RS. 7,85,000/- WITHOUT KNOWING WHAT WAS INSIDE TH E ENVELOPE. AS AND WHEN THE ASSESSEE WAS REQUIRING CASH THE ASSESSEE REQUESTED SH. SUNIL GATTANI TO GIVEN THE E NVELOPE BACK WHICH HE GAVE BACK. TAKING INTO FACT AND CIRCUMSTANCES IT IS UNBELIEVABLE THAT SUCH HUGE AMO UNT HAS BEEN TAKEN WITHOUT THE OTHER PARTY KNOWLEDGE. THE CONTENTION AND SUBMISSION HAS BEEN CAREFULLY CONSID ERED WHICH IS AN AFTERTHOUGHT AND CONCOCTED STORY THAT TH E ASSESSEE HAS RECEIVED AND AMOUNT OF RS. 12,85,000/- WITHOUT THE KNOWLEDGE OF SH. SUNIL GATTANI. THUS ASSES SEE HAS FAILED TO DISCHARGED THE ONUS REGARDING THE EXP LAINING THE SOURCES OF FUNDS FOR MARRIAGE OF HIS DAUGHTER. I AM NO LEFT WITH NO OTHER OPTION BUT TO ADD AN AMOUNT OF RS . 21,47,000-(1,90,800+15,000) = RS. 19,41,200/- IS ADDED AS UNEXPLAINED EXPENDITURE U/S 69C DEEMED TO INCOME FOR ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 7 THE FINANCIAL YEAR 2007-08 RELEVANT FOR THE A.Y. 20 08-09. 3. BEING AGGRIEVED BY THE ORDER OF THE LEARNED ASSE SSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LEARNED CIT( A), WHO HAD PARTLY ALLOWED THE APPEAL BY OBSERVING AS UNDER:- 5.4 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS O F THE APPELLANT AS ALSO THE FINDINGS OF THE AO. IT MAY BE NOTED THA T DURING THE COURSE OF SEARCH PROCEEDINGS, DOCUMENTS WERE FOU ND AND SEIZED INDICATING DETAILS OF VARIOUS EXPENSES I NCURRED ON THE MARRIAGE OF DAUGHTER OF ASSESSEE ORGANIZED ON 6.7.2007. DURING THE COURSE OF SEARCH, STATEMENT OF THE APPELLANT WAS RECORDED ON 14.3.2008 AND IN HIS STATE MENT WHEN HE WAS CONFRONTED REGARDING EXPENSES INCURRED ON THE MARRIAGE OF HIS DAUGHTER, THE APPELLANT STATED THAT IN THIS MARRIAGE EXPENDITURE OF RS. 3 -3.5 LACS APPROXIMATE LY INCURRED BY THE ASSESSEE EXCEPT CERTAIN EXPENSE INC URRED BY OTHER FAMILY MEMBERS I.E. GRANDFATHER, FATHER-IN-LA W ETC. THE ASSESSEE WAS CONFRONTED REGARDING SEIZED DOCUMENT S AS PER ANNEX. A EXHIBIT-1 PAGE 8, 9 & 10 AND IN QUE STION NO. 23 THE APPELLANT ADMITTED THAT THE PAGE 8 & 9 CONTA INED DETAIL OF EXPENSES INCURRED ON THE MARRIAGE OF HIS DAUGHTER NAMELY RUBY ON 6.7.2007 AND THAT AS PER THESE PAGES TOTAL EXPENDITURE OF RS. 1716400/- WAS INCURRED. THE APPELL ANT FURTHER ADMITTED THAT ON PAGE 10 THE DETAILS OF EXP ENSES INCURRED ON THE ENGAGEMENT CEREMONY OF HIS DAUGHTER ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 8 SOLEMNIZED ON 1.7.2007 ARE SEIZED. THE AO HAS REFERR ED TO SPECIFIC DETAIL ON EACH PAGE I.E. PAGE NO. 10, 9 & 8 AND THESE INDICATE THAT SUCH EXPENSES HAVE BEEN INCURRE D ON VARIOUS ITEMS LIKE CLOTHES, SWEETS, GOLD ORNAMENTS, UTENSILS AND DECORATION, RECEPTION OF 1500 MEMBERS, PHOTOGRA PHY AND VIDEOGRAPHY ETC. FURTHER ON PAGE NO. 13 FOUND A ND SEIZED DURING THE COURSE OF SEARCH THE DETAILS OF S OURCE OF EXPENDITURE AMOUNTING TO RS. 21.47 LACS HAS BEEN GI VEN. DURING THE ASSESSMENT PROCEEDINGS, WHEN THE AO CONFRONTED THE ASSESSEE REGARDING THE MARRIAGE EXPE NSES, THE APPELLANT CLAIMED THAT ON THE MARRIAGE OF HIS D AUGHTER EXPENDITURE OF RS. 882097/- WAS INCURRED WHICH IS REC ORDED IN CASH BOOK SEIZED AT THE TIME OF SEARCH. IT WAS FU RTHER CONTENDED THAT RS. 10 LACS WAS RECEIVED FROM SH. ANP ND PRAKASH AGARWAL WHOSE CONFIRMATION WAS ALSO FILED DURI NG THE ASSESSMENT PROCEEDINGS AND THAT THE DAUGHTER OF THE ASSESSEE HERSELF BEING FAMOUS ARTIST, PAINTER AND ADVERTISEMENT DESIGNER ALSO INCURRED CERTAIN EXPENS ES. IT WAS ALSO STATED THAT FATHER-IN-LAW OF THE ASSESSEE SH . MANIK CHAND GATTANI ALSO INCURRED RS. 163500/- WHICH WAS D RAWN FROM BANK ACCOUNT. HOWEVER THE AO WAS NOT CONVINCED WI TH THE EXPLANATION OF THE APPELLANT. THE AOS CASE IS T HAT DURING THE COURSE OF SEARCH THE ASSESSEE HAS NOT PO INTED OUT THAT RS. 10 LAC WAS GIVEN BY SH. ANAND PRAKASH A GARWAL FOR MARRIAGE EXPENSES AND THAT SUCH EXPLANATION WAS SIMPLY AN AFTERTHOUGHT. IT IS ALSO STATED THAT, RECEIPT OF RS. 10 LACS ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 9 FROM SH. ANAND PRAKASH AGARWAL IS ALSO NOT EVIDENCED IN PAGE NO. 13 OF THE SEIZED DOCUMENTS IN WHICH THE SOU RCE OF EXPENDITURE OF RS. 21.47 LACS IS SHOWN. AS REGARDS T HE CONTENTION OF THE ASSESSEE THAT ON 6.7 2007 THERE WE RE TWO MARRIAGES, ONE OF ASSESSEES DAUGHTER AND ANOTHER M ARRIAGE OF DAUGHTER SH. ANAND PRAKASH AGARWAL, THE AO OBSERV ED THAT THE CASH EXTRACT SEIZED DURING THE COURSE OF S EARCH DOES NOT SHOW ANY COMMON EXPENSES INCURRED FOR TWO MARRIAGES AND THAT IN THE SEIZED DOCUMENT EXPENSES SPECIFIC TO THE ASSESSEE ARE ONLY RECORDED. AS REGARDS ANOTH ER CONTENTION OF THE ASSESSEE THAT AN AMOUNT OF RS. 12 .85 LACS WAS RECEIVED FROM SH. SUNIL GATTANI FOR WHICH THE ASS ESSEE ALSO FILED AN AFFIDAVIT STATING THAT SH. SUNIL GATT ANI HAS GIVEN CLOSE ENVELOPE CONTAINING CASH OF RS. 7.85 LACS WITH OUT KNOWING WHAT WAS INSIDE THE ENVELOP. AS PER AO THE AO SUCH AN EXPLANATION IS UNBELIEVABLE THAT SUCH HUGE AMOUNT HAS BEEN TAKEN WITHOUT THE KNOWLEDGE OF OTHER PARTY. THE AO ACCORDINGLY TREATED EXPENSES TO THE EXTENT OF RS . 205800 (190800+15000), THE AMOUNT RECEIVED FROM ASSESSEES BROTHER FOR ENGAGEMENT FUNCTION AND RS. 15000/- OF PERSONAL WITHDRAWAL BY THE ASSESSEE AND THE REST AMOU NT FOR RS. 1941200/- WAS TREATING AS UNEXPLAINED EXPEN DITURE U/S 69C OF IT ACT. ON THE OTHER HAND APPELLANTS CASE IS THAT THE MAR RIAGE EXPENDITURE TAKEN BY THE AO AT RS. 21.47 LACS ON TH E BA.SIS OF PAGE 13 OF ANNEX. A-L IS INCORRECT IN AS MUCH AS THE PAPER ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 10 RECORD THE AMOUNT LYING WITH VARIOUS PERSONS FOR INC URRING THE EXPENDITURE AND TOTAL AVAILABLE FUND AS PER THI S PAPER FOR RS 16.47 LACS. IT IS FURTHER STATED THAT THE AMOUNT OF RS. 5 LACS RECEIVED FROM THE IN-LAWS OF THE DAUGHTER OF TH E ASSESSEE AND UTILIZED FOR THEIR PURPOSE IS EVIDENT FROM THIS PAPER ITSELF. IT IS ACCORDINGLY STATED THAT THE TOT AL EXPENDITURE AS PER THIS PAPER SHOULD BE CONSIDERED AT RS. 16.47 LACS AND NOT RS. 21.47 LACS. OUT OF RS. 16.47 LACS, RS, 1 LAC IS MET OUT OF THE GIFTS RECEIVED AND THEREFOR E THE NET EXPENDITURE IS RS. 15.47 LACS WHEREAS THE ASSESSEE H AS INCURRED EXPENDITURE OF RS. 1614398/-. AGAINST SUCH EXPENDITURE OF RS. 1614398/- THE APPELLANT HAS CLAI MED TO HAVE A SUFFICIENT SOURCE AMOUNTING TO RS. 2260216/- AS UNDER: SL. NO. AMOUNT CONTRIBUTION MADE BY 1 190800 JUGAL KISHO NAWAL 2 15000 ASSESSEE 3. 1,63,600/- MANAK CHAND GATTANI 4. 10,00,000/- ANAND PRAKASH AGARWAL 5. 100000 GIFTS 6. 3,78,000/- RUKMANI GATTANI 7. 3,12,816/- ASSESSEES WIFE 8. 1,00,000/- DAUGHTER RUBY IT MAY BE NOTED THAT THE MARRIAGE OF THE DAUGHTER O F THE APPELLANT WAS SOLEMNIZED ON 6.7.2007 AND SUBSEQUENT TO SUCH FUNCTION ACTION U/S 132 OF IT ACT WAS CARRIED OU T ON 14.3.2008. THERE IS NO DISPUTE ON THE FACT THAT DURI NG THE COURSE OF SEARCH PROCEEDINGS INCRIMINATING DOCUMENT S WERE ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 11 FOUND AND SEIZED CONTAINING VERY SYSTEMATIC DETAILS OF EXPENDITURE INCURRED BY THE APPELLANT ON THE MARRIA GE OF HIS DAUGHTER. IT IS UNDISPUTED FACT THAT DURING THE COU RSE OF SEARCH STATEMENT OF THE APPELLANT WAS RECORDED U/S 1 32(4) OF IT ACT AND IN ANSWER TO QUESTION NO. 23 THE APPEL LANT HAS VERY SPECIFICALLY ADMITTED THAT ON THE BASIS OF PAG E NO. 8 & 9 AN EXPENDITURE OF RS. 1716400/- WAS INCURRED ON THE MARRIAGE OF HIS DAUGHTER. IT WAS ALSO STATED THAT S UCH DOCUMENTS WERE MAINTAINED/ WRITTEN BY WIFE OF THE APPELLANT. IT IS A SETTLED LAW THAT THE STATEMENT RE CORDED U/S 132(4) IS HAVING VALID EVIDENTIARY VALUE. MOREOVER THE APPELLANT HAS NEVER RETRACTED TO HIS STATEMENT IN R ESPECT OF INCURRING OF EXPENDITURE. THERE IS NOTHING ON RECORD WHICH MAY INDICATE THAT SUCH STATEMENT WAS RECORDED UNDER DURESS. FIRST OF ALL IT MAY BE STATED THAT THE APPE LLANT HAS GIVEN ALMOST CONTRADICTORY STATEMENT IN RESPECT OF EXPENDITURE INCURRED ON THE MARRIAGE OF HIS DAUGHTE R AT THE TIME OF SEARCH, AT THE TIME ASSESSMENT PROCEEDING A ND AT THE TIME OF APPELLATE PROCEEDINGS. IT MAY BE NOTED THAT AT THE TIME OF SEARCH TOTAL EXPENDITURE WAS STATED TO B E INCURRED FOR RS. 3-3.50 LACS EXCEPT SOME EXPENDITUR E INCURRED BY OTHER FAMILY MEMBERS, THOUGH THE SEIZED DOCUMENTS REFLECTED EXPENDITURE FOR RS. 21.47 LACS. DURING ASSESSMENT PROCEEDINGS, TOTAL EXPENDITURE WAS STATED TO BE RS. 882097/- AND DURING APPELLATE PROCEEDING SUCH EXPENDITURE WAS STATED TO BE FOR RS. 1614398/-. DURI NG ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 12 ASSESSMENT PROCEEDINGS AVAILABILITY OF FUND/ RECEIP T OF MONEY WAS ALSO SHOWN FROM ONE SH. SUNIL GATTANI THAT TOO FOR RS. 12.85 LACS INCLUDING CASH OF RS. 7.85 LACS BUT NO SUCH SOURCE WAS STATED DURING APPELLATE PROCEEDINGS. THESE FACTS INDICATED THAT THE APPELLANTS EXPLANATION IN RESPE CT OF SOURCE OF MARRIAGE EXPENSES WAS ALWAYS OF DIFFERING A ND CONTRADICTORY NATURE. WITH THIS BACKGROUND THE OTHE R ISSUES AND OBJECTIONS RAISED BY THE APPELLANT DURING THE A PPELLATE PROCEEDINGS ARE TO BE EXAMINED. THE FIRST OBJECTION OF THE APPELLANT IS THAT THE AO HAS WRONGLY TAKEN MARRIAGE EXPENDITURE AT RS. 21.47 LACS BASED ON PAGE 13 OF A NNEX. A- L IN AS MUCH AS THE PAPER RECORD THE AMOUNT LYING WI TH VARIOUS PERSONS FOR INCURRING THE EXPENDITURE AND T HE TOTAL AVAILABLE FUNDS AS PER THIS PAPER WERE RS. 16.47 LAC S + RS. 5 LACS RECEIVED FROM IN-LAWS OF THE DAUGHTER OF THE AS SESSEE AND UTILIZED IN THE MARRIAGE WHICH IS EVIDENT FROM T HE SAME PAPER. IT IS ACCORDINGLY STATED THAT EVEN IF THE AM OUNT RECORDED ON THIS PAPER IS CONSIDERED AS EXPENDITURE THE TOTAL OF SUCH AMOUNT SHOULD BE 16.47 LACS AND NOT 21.47 L ACS AS THE REMAINING RS. 5 LACS ARE SHOWN TO BE RECORDED O N THE SAME PAPER AS RECEIVED FROM THE IN-LAWS OF THE DAUGH TER. AS REGARDS THIS OBJECTION IT MAY BE NOTED THAT THERE I S NO DISPUTE THAT THE AMOUNT OF RS. 5 LACS IS SHOWN TO BE RECEIVED FROM THE IN-LAWS OF THE DAUGHTER BUT THE FA CT REMAINS THAT THE SAME AMOUNT WAS INCURRED IN THE SAM E MARRIAGE. THEREFORE AS FAR AS THE TOTAL EXPENDITURE INCURRED ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 13 ON THE MARRIAGE AS PER PAGE 13 IS CONCERNED THE SAM E IS ARRIVED AT RS. 21.47 LACS (15.47+1 LAC+51AC). MOREOVER EVEN IF SUCH AMOUNT IS SHOWN TO BE RECEIVED FROM IN- LAWS, IT HAS TO BE EXPLAINED PROPERTY WHEREAS THE APPELLANT H AS NOT EXPLAINED THE SAME. THE APPELLANTS CASE IS THAT THE TOTAL EXPENDITURE WAS INCURRED FOR RS. 1614398/- AS AGAINS T RS. 21.47 LACS DETERMINED BY THE AO AND AGAINST SUCH TO TAL EXPENDITURE OF RS. 1614398/- THE APPELLANT WAS HAVIN G TOTAL AVAILABILITY OF FUNDS AMOUNTING TO RS. 2260216/-. A S REGARDS THE CLAIM OF THE APPELLANT AT TOTAL EXPENDITURE INC URRED WAS RS. 1614398/- SUCH CLAIM HAS ALREADY BEEN REJECTED AND THEREFORE THE TOTAL EXPENDITURE INCURRED BY APPELLA NT REMAINS AT RS. 21.47 LACS. THE GENUINENESS OF SUCH A VAILABLE FUND AS CLAIMED BY THE APPELLANT IN THE WRITTEN SUB MISSION IS BEING EXAMINED AND DISCUSSED AS UNDER. THE AVAILABIL ITY OF FUND AMOUNTING TO RS. 190800/- FROM SH. JUGAL KISHO RE NAVAL AND RS. 15000/- FROM THE ASSESSEE HIMSELF HAS ALREADY BEEN ACCEPTED BY THE AO. AS REGARDS THE AVA ILABILITY OF RS. 163600/- FROM SH. MANAK CHAND GATTANI IT IS CLAIMED THAT SH. MANAK CHAND GATTANI IS THE FATHER-IN-LAW OF THE ASSESSEE (MATERNAL UNCLE OF DAUGHTER OF THE APPELLA NT) AND THAT HE CONTRIBUTED SUCH AMOUNT ON THE MARRIAGE. FO R SUCH SUBMISSION CONFIRMATION OF SH. MANAK CHAND GATTANI AND BANK ACCOUNT OF SH. MANAK CHAND GATTANI WAS FILED. ON CAREFUL CONSIDERATION OF SUCH EXPLANATION AND P ERUSAL OF CONFIRMATION AS ALSO THE BANK STATEMENTS FILED BY S H. MANAK ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 14 CHAND GATTANI IT IS NOTED THAT SH. MANAK CHAND GATT ANI IS PENSIONER GETTING PENSION OF RS. 6500-7000 APPROXIM ATELY AND HAVING HIS BANK ACCOUNT WITH SBBJ, MAKRANA AND PERUSAL OF SUCH ACCOUNT INDICATE THAT THE APPELLANT WAS HAVING VERY NOMINAL BALANCES IN SUCH ACCOUNT. IN FA CT THE AVAILABLE BALANCE IN SUCH ACCOUNT HAS RARELY EXCEED ED RS. 50000/- OR MORE AND PRIMA FACIE SUCH ACCOUNT DOES N OT REFLECT HEALTHY FINANCE STATUS OF SH. MANAK CHAND G ATTANI. MOREOVER IT IS ALSO NOTED THAT SH. MANAK CHAND GATT ANI HAS SHOWN MOST OF SUCH WITHDRAWN EITHER IN THE PERIOD BEF ORE THE DATE OF MARRIAGE OR SUBSEQUENT TO THE PERIOD OF MARRIAGE. IN FACT SUBSTANTIAL AMOUNT IS WITHDRAWN FRO M MONTH OF MAY 2006 WHERE AS THE MARRIAGE OF DAUGHTER WAS SOLEMNIZED ON 6.7.2007. THE DETAILS OF SUCH WITHDRAWAL S MADE BY SH. MANAK CHAND GATTANI ARE AS UNDER: DATE PARTICULARS AMOU NT 14.5.06 6002061011300037309 15000 15.5.06 6002061011300037309 15000 20.5.06 6002061011300037309 15000 20.5.06 6002061011300037309 15000 22.5.06 6002061011300037309 15000 23.5.06 6002061011300037309 15000 24.5.06 600206 L011300037309 13600 18.1.0 7 6002061011300037309 15000 3.7.07 6002061011300037309 15000 1.11.07 6002061011300037309 15000 17.11.07 6002061011300037309 15000 THIS WILL INDICATE THAT THE SUBSTANTIAL AMOUNT IS NOT SHOWN TO BE WITHDRAWN NEARER TO THE DATE OF THE MARRIAGE. MORE OVER DURING THE COURSE OF SEARCH WHEN THE STATEMENT OF A PPELLANT WAS RECORDED NO SUCH AMOUNT WAS STATED TO HAVE BEEN ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 15 RECEIVED FROM SH. MANAK CHAND GATTANI BY THE APPELL ANT. THEREFORE KEEPING IN VIEW THE STATEMENT OF APPELLANT AS ALSO THE CORROBORATIVE FACTS AS DISCUSSED ABOVE, THE AVA ILABILITY OF FUND TO THE EXTENT OF RS. 163600/- FROM SH. MANAK C HAND GATTANI FOR INCURRING OF MARRIAGE OF HIS DAUGHTER C ANNOT BE ACCEPTED. AS REGARDS ANOTHER AVAILABILITY OF FUNDS AMOUNTING TO RS. 10 LACS FROM SH. ANAND PRAKASH AGARWAL, IT IS STATED T HAT SH. L. N. MUNDRA IS HAVING TWO SONS NAMELY RAHUL AND ROHIT AND MARRIAGE OF RAHUL WAS PERFORMED WITH THE DAUGHTER OF THE ASSESSEE AND THAT MARRIAGE OF ROHIT WAS PERFORMED WIT H THE DAUGHTER OF SH. ANAND PRAKASH AGARWAL. IT IS FURTHER STATED THAT BOTH THESE MARRIAGES WERE SOLEMNIZED ON 6.7.200 7 AT ISSARDA PALACE, JAIPUR AND EXPENDITURE ON THE MARRI AGE FUNCTION WAS SHARED EQUALLY BY THE ASSESSEE AND SH. ANAND PRAKASH AGARWAL WHERE THE ARRANGEMENTS WERE MADE AND MANAGED BY THE ASSESSEE. IT IS CONTENDED FOR INCURR ING THE COMMON EXPENDITURE SH. ANAND PRAKASH AGARWAL SENT RS . 10 LACS TO THE ASSESSEE AND THE ASSESSEE ALSO FILED AF FIDAVIT AND COPY OF BANK ACCOUNT FROM WHERE SH. ANAND PRAKASH AGARWAL WITHDRAWN THE AMOUNT. AS REGARDS SUCH CONTENTI ON IT MAY BE STATED THAT THERE IS NO DISPUTE ON THE FA CT THAT BOTH THE MARRIAGES WERE SOLEMNIZED ON THE SAME PLACE I.E. ISSARDA PALACE, JAIPUR. BUT THE IMPORTANT POINTED T O BE NOTED IS THAT THE EXPENDITURE OF RS. 21.47 LACS WAS ONLY I N RESPECT OF MARRIAGE EXPENSES OF THE DAUGHTER OF APPELLANT. IN FACT ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 16 NATURE OF EXPENSES RECORDED ON PAGE 8, 9, 10 AND 13 VERY CLEARLY INDICATE THAT SUCH EXPENSES WERE NOT OF COMM ON NATURE AND THESE EXPENSES WERE OF VERY SPECIFIC NATU RE PERTAINING TO THE APPELLANT ONLY. IN THIS BACKGROUN D EVEN IF RS. 10 LAC HAS BEEN WITHDRAWN BY SH. ANAND PRAKASH AGARWAL, IT CANNOT BE SAID AND BELIEVED THAT SUCH AM OUNT OF RS. 10 LACS WAS INCURRED AGAINST SUCH EXPENDITURE OF RS. 21.47 LACS. THEREFORE SUCH AVAILABILITY OF FUND AMOU NTING TO RS. 10 LACS CANNOT BE ACCEPTED. AS REGARDS ANOTHER AVAILABILITY OF RS. 1 LAC BY WAY OF GIFTS IT IS STATED THAT AS A SOCIAL CUSTOM ALL PERSONS ATTEN DING A MARRIAGE GIVES GIFTS EITHER IN THE FORM OF ANY ITEM S OR AN ENVELOPE CONTAINING CASH AND THAT THE ASSESSEE HAS RECEIVED APPROXIMATELY ONE LAC FROM VARIOUS PERSONS. T HIS FACT IS ALSO STATED TO BE EVIDENT FROM THE RECORDING IN THE SEIZ ED PAPER. ON CAREFUL CONSIDERATION OF RELEVANT FACT INCLUDING THE SEIZED DOCUMENT IT IS NOTED THAT THERE IS MENTION OF RECEP TION FOR 1500 MEMBERS AND IT IS ALSO ACCEPTED FACT THAT ON S UCH SOCIAL CUSTOMS CERTAIN GIFTS ARE GIVEN. IF THE FUNC TION WAS ARRANGED FOR APPROXIMATELY 1500 PERSONS THEREFORE R ECEIPT OF GIFTS TO THE EXTENT OF RS. ONE LACS SHOULD NOT BE D OUBTED. THEREFORE AVAILABILITY OF SUCH AMOUNT CAN BE CONSIDE RED AND CREDIT CAN BE GIVEN. AS REGARDS AVAILABILITY OF RS. 378000/- FROM SH. RU KMANI GATTANI GRANDMOTHER OF THE ASSESSEE IT MAY BE STATE D THAT ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 17 NO SUCH FACTS WERE STATED THAT DURING THE COURSE OF SEARCH IN HIS STATEMENT BY THE APPELLANT AND SUCH SUBMISSION THAT SH. RUKMANI GATTANI HAS SET APART CERTAIN JEWELLERY AS PER HIS BILL DATED 5.4.2000 TO BE UTILIZED FOR OCCASION OF MARRI AGE OF DAUGHTER OF THE APPELLANT AND THAT AS PER HER BILL THE SAID JEWELLERY WAS GIVEN TO THE DAUGHTER OF THE APPELLANT AT THE TIME OF MARRIAGE APPEARS TO BE SIMPLY AND AFTERTHOU GHT, MOREOVER EVEN IF SUCH JEWELLERY WAS THERE THE EVIDENC E OF SELLING THE SAME AND GETTING RS. 378000/- SHOULD BE AVAILABLE. HOWEVER NO SUCH DOCUMENTS HAVE BEEN FILED . SMT. RUKMANI GATTANI IS STATED TO HAVE EXPIRED IN JUNE, 2005 AND IT IS NOT KNOWN AS TO WHEN THE SAID JEWELLERY EXACTLY HANDED OVER TO THE APPELLANT OR THE DAUGHTER OF THE APPELL ANT. PRIMA FACIE SUCH SUBMISSION IS OF UNBELIEVABLE NATURE AND THEREFORE CREDIT IS GIVEN FOR SUCH AMOUNT. IT IS ALSO STATED THAT THE ASSESSEES WIFE WHO IS A R EGULAR INCOME TAX ASSESSEE WAS HAVING CASH IN HAND AT RS. 312816/- AS ON 31.3.2007 AND THAT SUCH AMOUNT WAS AL SO UTILIZED IN THE MARRIAGE. AS REGARDS SUCH SUBMISSIO N IT IS NOTED THAT DURING 'SEARCH THE APPELLANT IN HIS STAT EMENT REFERRED TO THE CONTRIBUTION MADE BY OTHER FAMILY M EMBERS IN RESPECT OF MARRIAGE EXPENSES. THERE IS NO DISPUTE THAT THE WIFE OF THE APPELLANT IS HAVING TAXABLE INCOME, FILI NG RETURN OF INCOME AND ON THE BASIS OF RETURN OF INCOME CASH AVAILABILITY AS ON 31.3.2007 IS SHOWN AT RS. 312817 /-. THEREFORE AVAILABILITY OF FUNDS CANNOT BE DOUBTED. S UCH ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 18 AVAILABILITY IS ALSO IN CLOSE VICINITY TO THE DATE OF MARRIAGE. FURTHER DURING SEARCH THERE IS NO CONTRADICTORY EVI DENCE WHICH MAY INDICATE THAT APPELLANTS WIFE HAS INCURRED SUCH AVAILABLE FUNDS IN ANY OTHER MANNER. THEREFORE AVAIL ABILITY OF FUNDS TO SUCH EXTENT IS TO BE ACCEPTED AND EXPENDIT URE TO SUCH EXTENT IS TO BE TREATED AS EXPLAINED. AS REGARDS AVAILABILITY OF RS. 1 LAC WHICH IS STATED TO BE CONTRIBUTED BY THE DAUGHTER OF THE ASSESSEE WHO IS A RTIST, PAINTER AND ADVERTISEMENT DESIGNER AND WAS STATED TO BE HAVING INCOME OF RS. ONE LAC APPROXIMATELY EACH YEA R, IT MAY STATED THAT SUCH SUBMISSION AND EXPLANATION IS ALSO WITHOUT ANY DOCUMENTARY EVIDENCE IN AS MUCH AS IF TH E DAUGHTER OF APPELLANT WAS HAVING INCOME OF RS. 1 LAC EVERY YEAR, THE ACCUMULATION OF FUNDS BY WAY OF SAVINGS SH OULD HAVE BEEN REFLECTED BY WAY OF BANK BALANCE ETC. THE APPELLANT ALSO DID NOT SUBMIT ANY SUCH EXPLANATION FOR AVAILABILITY OF RS. 1 LAC WHEN STATEMENT WAS RECORDED U/S 132(4). THEREFORE SUCH SUBMISSION IS ALSO PRIMA FACI E AN AFTERTHOUGHT. KEEPING IN VIEW FACTS AND CIRCUMSTANCES DISCUSSED AB OVE, THE SOURCE OF FUNDS AMOUNTING TO RS. 618616(190800+15000+100000+312816) CAN ONLY BE CONSIDERED TO BE OF EXPLAINED NATURE. ACCORDINGLY O UT OF TOTAL ADDITION OF RS. 1941200/- ADDITION OF RS. 412816/- (312816+100000) IS DELETED AND ADDITION OF RS. 1528 384/- IS ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 19 CONFIRMED. THE GROUND OF APPEAL IS PARTLY ALLOWED. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LD AR OF THE ASSESSEE HAS SUBMITTED AS UNDER:- 1. THE AO ON THE BASIS OF PG. 13 OF ANNEXURE A-1 TOO K TOTAL EXPENDITURE ON MARRIAGE IS RS.21.47 LACS. THIS IS CO NFIRMED BY CIT(A). THIS IS INCORRECT AS THIS PAPER RECORDS THE A MOUNT LYING WITH VARIOUS PERSONS FOR INCURRING THE EXPENDITURE. THE TOTAL AVAILABLE FUNDS AS PER THIS PAPER IS RS.15.47 LACS + 1 LAC FOR GIFT TOTALLING TO RS. 16.47 LACS. IN FACT ON THIS PAPER, THE AMOUNT OF RS.15.47 LACS RECEIVED FROM VARIOUS PERSONS TOWARDS MARRIAGE EXPENSES PLUS RS.1 LACS RECEIVED ON ACCOUNT OF GIFT IS NOTED. THEREAFTER, AN AMOUNT OF RS.5 LACS IS NOTED ON THIS PAPER AS RECEIVED FROM BYAIJI I.E, FATHER IN-LAW OF THE DA UGHTER OF ASSESSEE. THE UTILIZATION OF THIS AMOUNT OF RS.5 LAC S IS ALSO NOTED ON THE PAPER. THEREFORE, RS.5 LACS CANNOT BE C ONSIDERED AS MARRIAGE EXPENDITURE OF THE ASSESSEE. FURTHER EX PENDITURE OF RS.1 LACS IS MET OUT OF THE GIFT RECEIVED. HENCE , THE NET EXPENDITURE INCURRED BY THE ASSESSEE AS NOTED ON TH IS PAPER IS RS.15.47 LACS. AS AGAINST THIS ASSESSEE HAS CLAIMED THE TOTAL EXPENDITURE ON MARRIAGE AT RS.16,14,398/-. THIS FACT IS FURTHER CORROBORATED FROM THE ESTIMATED HEAD WISE EXPENDITUR E DETAILS NOTED ON PAGE 8 TO 10 OF ANNEXURE A-1 AT RS.17,16,4 00/-. IN THESE FACTS ESTIMATION OF THE TOTAL EXPENDITURE ON MARRIAGE AT RS. 21.47 LACS IS INCORRECT. EVEN THE CIT(A) AT PG12 OF HIS ORDER IN LAST 5 LINES HAS STATED THAT THERE IS NO DISPUTE THAT THE ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 20 AMOUNT OF RS.5 LACS IS SHOWN TO BE RECEIVED FROM IN LAWS OF THE DAUGHTER BUT HE DID NOT ALLOW THE CREDIT OF THIS AMO UNT FROM THE TOTAL AMOUNT OF RS.21.47 LACS NOTED ON THIS PAP ER BY SIMPLY STATING THAT EVEN IF THE AMOUNT IS SHOWN TO BE RECEI VED FROM IN LAWS IT HAS TO BE EXPLAINED PROPERLY WHICH THE ASSESS EE HAS NOT EXPLAINED. THEREFORE, ONCE A FINDING IS GIVEN ON THE BASIS OF THE PAPER THAT RS.5 LACS IS RECEIVED FROM THE IN LA WS FOR INCURRING THE EXPENDITURE, EVEN IF THE SAME IS ADDE D TO THE AMOUNT OF MARRIAGE EXPENDITURE, THE SAME CANNOT BE CONSIDERED AS UNDISCLOSED INCOME OF THE ASSESSEE AS THE SOURCE OF SUCH AMOUNT IS THE AMOUNT RECEIVED FROM I N LAWS AS RECORDED ON THE PAPER. THE PAPER HAS TO BE READ AS A WHOLE AND NOT IN PART. THEREFORE, THE AMOUNT ARRANGED FOR MARRIAGE EXPENDITURE AS PER THIS PAPER IS ONLY RS.16.47 LACS AND NOT RS.21.47 LACS AS HELD BY THE LOWER AUTHORITIES. 2. THE ASSESSEE VIDE LETTER DT. 28.04.2009 HAS EXPLA INED THAT THE EXPENDITURE INCURRED ON MARRIAGE IS RS.16,14,398/- FOR WHICH SOURCE WAS EXPLAINED. AS AGAINST THIS, ON PG 7-8 OF ANNEXURE A-1, ESTIMATED AMOUNT OF MARRIAGE EXPENDITURE IS NO TED AT RS.17,16,400/- AND AS PER PG 13 OF ANNEXURE A-1 , I T IS NOTED AT RS.16,47,000/-. THE AO/CIT(A) HAVE ACCEPTED THE SOURCE TO THE EXTENT OF RS.6,18,616/-. (1,90,800+15,000+1,00,000+3,12,816). THE EXPLANATION OF THE ASSESSEE IN RESPECT OF THE REMAINING EXPENDITUR E OF RS.10,28,384/- (1647000-618616), THE OBSERVATION OF THE ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 21 CIT(A) AND THE FURTHER EXPLANATION OF THE ASSESSEE I S TABULATED AS UNDER:- S. NO CONTRIBUTION MADE BY AND AMOUNT EXPLANATION OF THE ASSESSEE O BSERVATION OF CIT(A) CONTENTION OF THE ASSESSEE 1. MANAK CHAND GATTANI RS.1,63,600/- HE IS FATHER IN LAW OF THE ASSESSEE. AS PER THE CUSTOM HE CONTRIBUTED THIS AMOUNT FOR THE MARRIAGE. IN SUPPORT OF THIS, HIS CONFIRMATION AND THE BANK ACCOUNT WAS FILED. THIS CONFIRMATION AND AFFIDAVIT WAS NOT CONTROVERTED BY THE AO. SH. MANAK CHAND GATTANI IS PENSIONER GETTING PENSION OF RS.6500-7000 APPROX. THE PERUSAL OF HIS BANK ACCOUNT SHOWS THAT HE IS HAVING VERY NOMINAL BALANCES IN HIS ACCOUNT. FURTHER, MOST OF THE WITHDRAWN WAS MADE EITHER BEFORE THE DATE OF MARRIAGE OR SUBSEQUENT TO THE DATE OF MARRIAGE. MOREOVER DURING THE COURSE OF SEARCH NO SUCH AMOUNT WAS STATED TO HAVE BEEN RECEIVED FROM HIM. NO MATERIAL IS BROUGHT ON RECORD BY ANY OF THE LOWER AUTHORITIES TO NEGATE THE CONFIRMATION. THE CONTRIBUTION MADE BY SH. MANAK CHAND IS SUPPORTED FROM THE WITHDRAWALS MADE FROM HIS BANK ACCOUNT BETWEEN 16.05.2005 TO 03.07.2007 OF RS.1,33,600 WHICH IS BEFORE THE DATE OF MARRIAGE AND RS.30,000/- GIVEN SUBSEQUENTLY IN NOV.2007 WHICH IS UTILIZED IN MEETING THE OUTSTANDING MARRIAGE EXPENDITURE. 2. ANAND PRAKASH AGARWAL RS. AS EXPLAINED ABOVE MARRIAGE OF BOTH THE SON OF SH. L.N. MUNDRA WAS PERFORMED ON 6-07- THERE IS NO DISPUTE ON THE FACT THAT BOTH THE MARRIAGES WERE SOLEMNIZED ON THE SAME PLACE. BUT THE IT IS NOT DISPUTED THAT SH. ANAND PRAKASH AGARWAL HAS MADE WITHDRAWAL OF RS.10 LACS FROM HIS ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 22 10,00,000/- 2007 AND COMMON MARRIAGE FUNCTION WAS SOLEMNIZED. THE EXPENDITURE ON THE MARRIAGE FUNCTION WAS SHARED EQUALLY BY ASSESSEE AND SH. ANAND PRAKASH AGARWAL. THE ARRANGEMENT WAS MANAGED BY THE ASSESSEE. FOR INCURRING THE COMMON EXPENDITURE SH. ANAND PRAKASH AGARWAL SEND RS.10 LACS TO THE ASSESSEE. THE ASSESSEE HAS ALSO FILED THE AFFIDAVIT AND THE COPY OF THE BANK ACCOUNT FROM WHERE ANAND PRAKASH AGARWAL WITHDRAWN THE AMOUNT AND GIVEN TO ASSESSEE FOR COMMON EXPENDITURE. THUS THE SOURCE TO THE EXTENT OF RS.10 LACS IS FULLY EXPLAINED. IMPORTANT POINT TO BE NOTED IS THAT THE EXPENDITURE OF RS.21.47 LACS WAS ONLY IN RESPECT OF MARRIAGE EXPENSES OF THE DAUGHTER OF THE APPELLANT. THE NATURE OF EXPENSES RECORDED ON PG 8,9,10 AND 13 CLEARLY INDICATE THAT SUCH EXPENSES WERE NOT OF COMMON NATURE AND THESE EXPENSES WERE OF VERY SPECIFIC NATURE PERTAINING TO THE APPELLANT ONLY. THUS, EVEN IF RS.10 LACS HAS BEEN WITHDRAWN BY SH. ANAND PRAKASH AGARWAL, IT CANNOT BE SAID AND BELIEVED THAT SUCH AMOUNT OF RS.10 LACS WAS INCURRED AGAINST SUCH EXPENDITURE OF RS.21.47 LACS. BANK ACCOUNT ON THE OCCASION OF MARRIAGE OF HER DAUGHTER. HOWEVER, THE EXPLANATION OF THE ASSESSEE THAT THIS AMOUNT WAS PARTLY UTILIZED FOR INCURRING COMMON MARRIAGE EXPENDITURE HAS NOT BEEN ACCEPTED ONLY ON ASSUMPTION AND PRESUMPTION EVEN WHEN IT IS THE FACT ON RECORD THAT THE MARRIAGE FUNCTION WAS COMMON AND SH. ANAND PRAKASH AGARWAL HAS FILED THE AFFIDAVIT CONFIRMING THIS FACT. THEREFORE, REASONABLE CREDIT OUT OF THE AMOUNT RECEIVED FROM ANAND PRAKASH AGARWAL SHOULD BE ALLOWED AGAINST THE MARRIAGE EXPENDITURE INCURRED BY THE ASSESSEE. 3. RUKMANI GATTANI RS. 3,78,000/ SMT. RUKMA GATTANI, GRAND MOTHER-IN-LAW OF ASSESSEE, HAS SET APART CERTAIN JEWELLERY AS PER HER WILL DT.5-4- 2000 TO BE UTILIZED ON NO SUCH FACTS WERE STATED DURING THE COURSE OF SEARCH IN THE STATEMENT BY THE APPELLANT. THE SUBMISSION APPEARS ONLY BECAUSE ASSESSEE HAS NOT STATED THE FACT OF THE JEWELLERY SET APART BY THE GRAND MOTHER-IN-LAW OF THE ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 23 OCCASION OF MARRIAGE OF RUBY. SMT. RUKMA GATTANI EXPIRED IN JUNE 2005 & ACCORDINGLY AS PER HER WILL SH. MANAK CHAND GATTANI HANDED OVER THE JEWELLERY TO ASSESSEE ON THE OCCASION OF MARRIAGE HAVING PRESENT VALUE OF RS. 378000/-. COPY OF WILL, LETTER AND AFFIDAVIT BY SH. MANAK CHAND GATTANI CONFIRMING HANDING OVER THE JEWELLERY WAS FILED TO THE AO. TO BE AN AFTERTHOUGHT. EVEN IF SUCH JEWELLERY WAS THERE THE EVIDENCE OF SELLING THE SAME AND GETTING RS.3,78,000/- SHOULD BE AVAILABLE. HOWEVER, NO SUCH DOCUMENTS HAVE BEEN FILED. FURTHER SMT. RUKMANI GATTANI IS STATED TO HAVE EXPIRED IN JUNE, 2005 AND IT IS NOT KNOWN AS TO WHEN THE SAID JEWELLERY EXACTLY HANDED OVER TO THE APPELLANT OR THE DAUGHTER OF THE APPELLANT. ASSESSEE IN COURSE OF SEARCH, THE EXPLANATION OF THE ASSESSEE CANNOT BE CONSIDERED TO BE AN AFTERTHOUGHT MORE PARTICULARLY WHEN NO EVIDENCE IS BROUGHT ON RECORD BY ANY OF THE LOWER AUTHORITIES TO DISPROVE THE GENUINENESS OF THE WILL AND AFFIDAVIT OF SH. MANAK CHAND GATTANI S/O OF SMT. RUKMANI GATTANI. THEREFORE, THE CREDIT OF RS.3,78,000/- BE DIRECTED TO BE ALLOWED. 4. DAUGHTER RUBY RS. 1,00,000/ THE DAUGHTER OF ASSESSEE IS ARTIST PAINTER & LOGOS AND ADVERTISEMENT DESIGNER. SHE IS HAVING INCOME OF APPROXIMATELY RS.1 LACS EACH YEAR. OUT OF HER INCOME ALSO SOME OF THE EXPENDITURE WAS INCURRED. HER INCOME WAS BELOW TAXABLE INCOME AND THEREFORE SHE HAD NOT FILED INCOME TAX RETURNS. HENCE, THIS THE SUBMISSION AND EXPLANATION IS WITHOUT ANY DOCUMENTARY EVIDENCE IN AS MUCH AS IF THE DAUGHTER OF APPELLANT WAS HAVING INCOME OF RS.1 LAC EVERY YEAR, THE ACCUMULATION OF FUNDS BY WAY OF SAVINGS SHOULD HAVE BEEN REFLECTED BY WAY OF BANK BALANCE. THE APPELLANT ALSO DID NOT SUBMIT ANY THE SMALL SAVINGS IN THE HANDS OF DAUGHTER RUBY CANNOT BE DENIED WHEN THE FACT OF SHE BEING AN ARTIST PAINTER & LOGOS AND ADVERTISEMENT DESIGNER IS NOT DISPUTED. THEREFORE, THE CREDIT OF RS.1,00,000/- BE DIRECTED TO BE ALLOWED AGAINST THE TOTAL MARRIAGE EXPENDITURE INCURRED ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 24 FUND IS ALSO AVAILABLE WITH THE ASSESSEE FOR INCURRING THE MARRIAGE EXPENDITURE. SUCH EXPLANATION FOR AVAILABILITY OF RS.1 LAC WHEN STATEMENT U/S 132(4) WAS RECORDED. THEREFORE, SUBMISSION IS AN AFTERTHOUGHT. BY THE ASSESSEE. IN VIEW OF ABOVE, THE ADDITION OF RS.15.28,384/- CON FIRMED BY CIT(A) IS UNJUSTIFIED AND THE SAME BE DELETED. 5. AT THE OUTSET, THE LD CIT DR HAS VEHEMENTLY SUPPO RTED THE ORDER OF THE LD CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE IS SUE IS SURROUNDING THE LOOSE PAPER FOUND DURING THE COURSE OF SEARCH, IN WH ICH THE DETAILS OF MARRIAGE EXPENSES OF ASSESSEES DAUGHTER RUBI, WHICH WAS SOLEMNIZED ON 06/7/2007 HAD BEEN RECORDED BY THE ASSESSEE. THE ASSESSEE HAD CLAIMED THAT THE ASSESSING OFFICER HAD CALCULATED T HESE EXPENDITURES AT RS. 21.47 LACS WHEREAS AS PER ASSESSEES SUBMISSIONS , IT WAS RS. 16.47 LACS. THE ASSESSEES CLAIMED THAT RS. 5 LACS RECEIVE D BY THE ASSESSEE FROM BYAIJI (FATHER IN LAW OF THE DAUGHTER OF THE AS SESSEE) BUT THE ASSESSEE HAS NOT SUBMITTED ANY CONFIRMATION FROM TH E FATHER IN LAW OF THE DAUGHTER OF THE ASSESSEE BEFORE THE LOWER AUTHOR ITIES AS WELL AS ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 25 BEFORE US. WHEN FATHER IN LAW HAS WITHDRAWN THESE SUMS FROM HIS REGULAR BOOKS OF ACCOUNT. THE CREDIT OF RS. 1 LAC, WHICH WAS MET OUT OF THE GIFT RECEIVED HAS BEEN GIVEN BY THE LD CIT(A). AS PER ASS ESSEE, FINALLY EXPENDITURE REMAINS TO BE EXPLAINED AT RS. 15.47 LA CS. THE ASSESSEE FURTHER EXPLAINED THAT HE HAS RECEIVED RS. 1,63,600 /- FROM SH. MANAK CHAND GATTANI, FATHER IN LAW OF THE ASSESSEE, BUT TH ERE IS NO EVIDENCE FURNISHED BY THE ASSESSEE THAT SHRI GATTANI HAS CAP ACITY TO CONTRIBUTE SUCH AMOUNT AS HE IS PENSIONER AND GETTING PENSION OF RS. 6500-7000 APPROXIMATELY PER MONTH. FURTHER THE ASSESSEE CLAIM ED THAT THERE WAS A COMMON MARRIAGE CEREMONY ON THAT DATE I.E. MARRIAGE OF BOTH SONS OF SH. L.N. MUNDRA WAS ALSO SOLEMNIZED ON 06/7/2007 AND COMMON EXPENSES WERE SHARED EQUALLY BY THE ASSESSEE AND SHR I ANAND PRAKASH AGARWAL AND HE SENT RS. 10 LACS FOR HIS SHARE. BUT WH ATEVER EXPENSES CALCULATED BY THE ASSESSING OFFICER WAS RELATED TO O NLY HIS DAUGHTERS MARRIAGE. THE ASSESSEE HAS NOT CORRELATED WITH EVIDEN CE THAT THERE IS SOURCE OF RS. 10 LACS AND THIS AMOUNT WAS RECEIVED F OR COMMON EXPENDITURE. THE ASSESSEE ALSO CLAIMED RS. 3,78,000 /- FROM SMT. RUKMANI GATTANI, MOTHER IN LAW OF ASSESSEE AND CERTA IN JEWELLERY AS PER HER WILL DATED 05/4/2000. THESE EVIDENCES WERE NOT FO UND DURING THE SOURCE OF SEARCH AT THE RESIDENCE OF THE ASSESSEE. THERE IS A TIME LAPSE ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 26 BETWEEN THE DATE OF WILL AND DATE OF MARRIAGE AND AS SESSEE DID NOT HAVE ANY EVIDENCE REGARDING JEWELLERY RECEIVED FROM HIS M OTHER IN LAW. THE ASSESSEES DAUGHTER RUBI ALSO CONTRIBUTED RS. 1 LAC AS CLAIMED BY THE ASSESSEE BUT DURING THE COURSE OF SEARCH, NO EVIDEN CE WAS FOUND. EVEN AT THE TIME OF RECORDING STATEMENT U/S 132(4) OF TH E ACT, THE ASSESSEE HAD NOT MADE ANY REFERENCE OF INCOME OF THE RUBI. TH EREFORE, WE DO NOT FIND ANY REASON TO INTERVENE IN THE ORDER OF THE LD CIT(A). ACCORDINGLY APPEAL OF THE ASSESSEE ON THIS GROUND IS DISMISSED. 7. GROUND NO. 2 OF THE ASSESSEES APPEAL IS AGAINST CONFIRMING THE ADDITION OF RS. 3,633/- OUT OF CAR INSURANCE, CONVE YANCE AND TELEPHONE EXPENSES. THE LD ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD CLAIMED TOTAL EXPENDITURE UNDER THE HEADS, CAR INSU RANCE, CONVEYANCE EXPENSES AND TELEPHONE EXPENSES AT RS. 18,167/-. HE DISALLOWED 20% EXPENSES ON ACCOUNT OF PERSONAL EXPENSES AT RS. 3,6 33/-, WHICH HAS BEEN CONFIRMED BY THE LD CIT(A) BY OBSERVING THAT TH E APPELLANT HAD NOT DISPUTED PERSONAL ELEMENT IN SUCH EXPENSES AND DIS ALLOWANCE IS FAIR AND REASONABLE. THE LD AR OF ASSESSEE HAD SUBMITTED THAT THE EXPEND ITURE CLAIMED BY THE ASSESSEE AT RS. 18,157/- AGAINST THE INCOME OF RS. 2,77,394/-, WHICH WAS QUITE REASONABLE, HENCE NO DISALLOWANCE CAN BE MADE. HE ITA 557/JP/2013_ KAMAL KISHORE MAHESHWARI VS. ACIT 27 FURTHER RELIED ON THE DECISION OF HONBLE MUMBAI SP ECIAL BENCH IN THE CASE OF TOPMAN EXPORTS VS. ITO 318 ITR 87 (AT) AND REQ UESTED THAT DISALLOWANCE MAY BE RESTRICTED TO 10% OF EXPENSES AS ASSESSING OFFICER HAS NOT SPECIFICALLY POINTED OUT ANY PERSONAL USE B UT ESTIMATED DISALLOWANCE HAS BEEN MADE, WHICH IS ALSO APPEARS TO BE HIGHER SIDE. ACCORDINGLY, WE RESTRICT THIS DISALLOWANCE @ 10%. THE ASSESSING OFFICER SUITABLY MODIFIED THE ADDITION. ACCORDINGLY, THIS G ROUND OF THE ASSESSEES APPEAL IS PARTLY ALLOWED. 8. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/01/2016. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 21 ST JANUARY, 2016 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI KAMAL KISHORE MAHESHWARI, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE A.C.I.T., CENTRAL CIRCLE-1, JAIPU R. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 557/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR