Appeal Details
Counselvise Citation
[2019] 115 COUNSELVISE.COM (IT) 6015 (ITAT-KOLKATA)
Assessee PAN
Bench
Appeal Number
CRN Number
Duration Of Justice
4 year(s) 8 month(s) 17 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
01-10-2019
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
A
Next Hearing Date
19-08-2019
Assessment Year
2012-2013
Appeal Filed On
14-01-2015
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER) I.T.A. NO. 55/KOL/2015 ASSESSMENT YEAR: 2012-13 PRABHADEVI MURARKA....................................................................................APPELLANT 1/C, MADEVILLA GARDEN KOLKATA 700 019 [PAN : AFDPM 2245 R] VS. DEPUTY COMMISSIONER OF INCOME TAX, CC-XVIII, KOLKATA....RESPONDENT I.T.A. NO. 56/KOL/2015 ASSESSMENT YEAR: 2012-13 SHARMITA MURARKA....................................................................................APPELLANT 1/C, MADEVILLA GARDEN KOLKATA 700 019 [PAN : AFDPM 1477 K] VS. DEPUTY COMMISSIONER OF INCOME TAX, CC-XVIII, KOLKATA..RESPONDENT I.T.A. NO. 57/KOL/2015 ASSESSMENT YEAR: 2012-13 SABITA DEY....................................................................................APPELLANT 1/C, MADEVILLA GARDEN KOLKATA 700 019 [PAN : AAIPD 9654 M] VS. DEPUTY COMMISSIONER OF INCOME TAX, CC-XVIII, KOLKATA..RESPONDENT APPEARANCES BY: SHRI AKKAL DUDHEWALA, FCA, APPEARED ON BEHALF OF THE ASSESSEE. SHRI RADHE SHYAM, CIT, D/R APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : AUGUST 18 TH , 2019 DATE OF PRONOUNCING THE ORDER : OCTOBER 1 ST , 2019 ORDER PER J. SUDHAKAR REDDY, AM :- ALL THESE APPEALS ARE BY THREE DIFFERENT ASSESSEES AND ARE DIRECTED AGAINST SEPARATE ORDERS PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-21, KOLKATA, ALL DT. 28/11/2014, PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (ACT). AS THE ISSUES ARISING IN ALL THESE APPEALS AND THE FACTS ARE COMMON, FOR THE SAKE OF CONVENIENCE, THEY ARE HEARD TOGETHER AND DISPOSED OFF BY WAY OF THIS CONSOLIDATED ORDER. 2. A SEARCH AND SEIZURE OPERATION WAS CONDUCTED U/S 132 OF THE ACT, IN THE CASE OF MURARKA GROUP ON 28/07 /2011 AND ON SUBSEQUENT DATES. DURING THE COURSE OF SEARCH OPERATION, THE RESIDENTIAL PREMISES OF SHRI SHYAMA PRASAD MURARKA & SMT. PRABHA DEVI MURARKA, LOCATED AT, 1/C, MANDEVILLE GARDEN, KOLKATA RESIDENCE OF SHRI PRAVEER MURARKA, AT 2A, MANDEVILLE GARDEN, FLAT NO. 2B, KOLKATA WAS ALSO SEARCHED. THE FAMILY MEMBERS RESIDING AT THESE ADDRESSES WERE ALSO COVERED BY THE SEARCH. THE SE PERSONS WERE DEVI MURARKA, HIS SON SHRI MURARKA, AND HIS TWO GRAND DAUGHTERS MRS. DIVYA AND MISS DIPIKSHA. SEARCH OPERATIONS WERE ALSO CONDUCTED IN RESPECT OF FOUR LOCKERS OWNED BY THE FAMILY MEMBERS. 3. WE FIRST CONSIDER THE APPEAL IN THE CASE 56/KOL/2015. 3.1. DURING THE COURSE OF SEARCH, SILVER AND CASH WERE FOUND AND SEIZED. CA 23,50,000/- WAS FOUND FROM LOCKER NUMBER 238 WHICH BELONGED TO SMT. SHARMITA MURARKA. AS REGARDS THE JEWELLERY, VALUATION RE ASSESSMENT WAS DONE U/S 143(3) OF THE ACT FOR THE ASSESSMENT YEAR 2012 THE COURSE OF ASSESSMENT PROCEEDINGS OF SMT. SHARMITA MURARKA, THE ASSESSEE EXPLAINED THE SOURCE OF CASH FOUND IN THE FOLLOWING MANNER: A) GIFT RECEIVED FROM SHRI SHYAMA PRASAD MURARKA ON 18/05/2005 B) GIFT RECEIVED FROM FATHER 20 LAKHS/- IN SUPPORT OF THIS CLAIM SHYAMA PRASAD MU RARKA, FATHER SHYAMA PRASAD MURARKA. THE ASSESSING OFFICER REJECTED THAT THE CASH RECEIVED WOULD NOT BE KEPT IN THE LOCKER AND WOULD HAVE BEEN DEPOSITE THE BANK ACCOU NT. HE ACCORDINGLY ASSESSED SHARMITA MURARKA. 2 A SEARCH AND SEIZURE OPERATION WAS CONDUCTED U/S 132 OF THE ACT, IN THE CASE OF /2011 AND ON SUBSEQUENT DATES. DURING THE COURSE OF SEARCH OPERATION, THE RESIDENTIAL PREMISES OF SHRI SHYAMA PRASAD MURARKA & SMT. PRABHA DEVI MURARKA, LOCATED AT, 1/C, MANDEVILLE GARDEN, KOLKATA 19, WAS ALSO SEARCHED. THE MURARKA, AT 2A, MANDEVILLE GARDEN, FLAT NO. 2B, KOLKATA WAS ALSO SEARCHED. THE FAMILY MEMBERS RESIDING AT THESE ADDRESSES WERE ALSO COVERED SE PERSONS WERE SHRI SHYAMA PRASAD MURARKA, HIS WIFE SMT. PRABHA DEVI MURARKA, HIS SON SHRI PRAVEER MURARKA, HIS DAUGHTER IN LAW SMT. SHARMITA MURARKA, AND HIS TWO GRAND DAUGHTERS MRS. DIVYA AND MISS DIPIKSHA. SEARCH OPERATIONS WERE ALSO CONDUCTED IN RESPECT OF FOUR LOCKERS OWNED BY THE FAMILY MEMBERS. CONSIDER THE APPEAL IN THE CASE OF SMT. SHARMITA MURARKA IN ITA NO. DURING THE COURSE OF SEARCH, SILVER AND CASH WERE FOUND AND SEIZED. CA WAS FOUND FROM LOCKER NUMBER 238 WHICH BELONGED TO SMT. SHARMITA MURARKA. AS REGARDS THE JEWELLERY, VALUATION RE PORTS WERE PREPARED BY THE DVO. ASSESSMENT WAS DONE U/S 143(3) OF THE ACT FOR THE ASSESSMENT YEAR 2012 THE COURSE OF ASSESSMENT PROCEEDINGS OF SMT. SHARMITA MURARKA, THE ASSESSEE EXPLAINED THE SOURCE OF CASH FOUND IN THE FOLLOWING MANNER: - RECEIVED FROM SHRI SHYAMA PRASAD MURARKA ON 18/05/2005 - GIFT RECEIVED FROM FATHER -IN- LAW, SHRI SHYAMA PRASAD MURARKA ON 20/05/2011 CLAIM , THE ASSESSEE FURNISHED A COPY OF THE CASH BOOK OF SHRI RARKA, FATHER -IN- LAW AS WELL AS CONFIRMATION OF THE GIFT FROM SHRI REJECTED THE EXPLANATION OF THE ASSESSEE AND WAS OF THE VIEW THAT THE CASH RECEIVED WOULD NOT BE KEPT IN THE LOCKER AND WOULD HAVE BEEN DEPOSITE NT. HE ACCORDINGLY ASSESSED 23,50,000/- AS UNDISCLOSED INCOME OF SMT. I.T.A. NO. 55/KOL/2015 ASSESSMENT YEAR: 2012-13 PRABHADEVI MURARKA I.T.A. NO. 56/KOL/2015 ASSESSMENT YEAR: 2012-13 SHARMITA MURARKA I.T.A. NO. 57/KOL/2015 ASSESSMENT YEAR: 2012-13 SABITA DEY A SEARCH AND SEIZURE OPERATION WAS CONDUCTED U/S 132 OF THE ACT, IN THE CASE OF /2011 AND ON SUBSEQUENT DATES. DURING THE COURSE OF SEARCH OPERATION, THE RESIDENTIAL PREMISES OF SHRI SHYAMA PRASAD MURARKA & SMT. PRABHA DEVI 19, WAS ALSO SEARCHED. THE MURARKA, AT 2A, MANDEVILLE GARDEN, FLAT NO. 2B, KOLKATA 19, WAS ALSO SEARCHED. THE FAMILY MEMBERS RESIDING AT THESE ADDRESSES WERE ALSO COVERED SHRI SHYAMA PRASAD MURARKA, HIS WIFE SMT. PRABHA PRAVEER MURARKA, HIS DAUGHTER IN LAW SMT. SHARMITA MURARKA, AND HIS TWO GRAND DAUGHTERS MRS. DIVYA AND MISS DIPIKSHA. SEARCH OPERATIONS WERE ALSO CONDUCTED IN RESPECT OF FOUR LOCKERS OWNED BY THE FAMILY MEMBERS. OF SMT. SHARMITA MURARKA IN ITA NO. DURING THE COURSE OF SEARCH, SILVER AND CASH WERE FOUND AND SEIZED. CA SH OF WAS FOUND FROM LOCKER NUMBER 238 WHICH BELONGED TO SMT. SHARMITA PORTS WERE PREPARED BY THE DVO. ASSESSMENT WAS DONE U/S 143(3) OF THE ACT FOR THE ASSESSMENT YEAR 2012 -13. DURING THE COURSE OF ASSESSMENT PROCEEDINGS OF SMT. SHARMITA MURARKA, THE ASSESSEE EXPLAINED - 350,000/- LAW, SHRI SHYAMA PRASAD MURARKA ON 20/05/2011 - , THE ASSESSEE FURNISHED A COPY OF THE CASH BOOK OF SHRI LAW AS WELL AS CONFIRMATION OF THE GIFT FROM SHRI THE EXPLANATION OF THE ASSESSEE AND WAS OF THE VIEW THAT THE CASH RECEIVED WOULD NOT BE KEPT IN THE LOCKER AND WOULD HAVE BEEN DEPOSITE D IN AS UNDISCLOSED INCOME OF SMT. 3.1.1. AS REGARDS THE JEWELLERY, THE ASSESSING OFFICER OBSERVED THAT NONE OF THE FAMILY MEMBERS WERE WEALTH TAX ASSESSEES AND THAT THE ITEMS OF JE DISCLOSED TO THE DEPARTMENT. AFTER CONSIDERING ALL THE EXPLANATIONS, HE ACCEPTED JEWELLERY VALUED TO THE EXTENT OF ASSESSEE BY SHRI PRAVEER MURARKA. THE BALANCE JEWELLERY OF CONSIDERED AS UNEXPLAINED AND BROUGHT TO TAX. THE ASSESSING OFFICER OF 63,49,395/- AS UNEXPLAINED INVESTMENT IN JEWELLERY BY SMT. SHARMITA MURARKA. IN THE CASE OF SMT. PRABHA DEVI MURARKA, UNEXPLAINED INVESTMENT IN JEWELLERY ASSESSED AT 47,65,945/ - 26/3/2014 DETERMINING THE TOTAL INCOME AT MURARKA. IN THE CASE OF SMT. PRABHA DEVI MURARKA, ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT, DETERMINING THE TOTAL INCOME AT ASSESSMENT U/S 143(3) OF THE ACT, WAS PASSED ON 25/03/2014 ASSESSING THE TOTAL INCOME AT 50,57,790/- INTERALIA MAKING AN ADDITION ON ACCOUNT OF UNDISCLOSED INVESTMENT IN JEWELLERY OF 42,29,894/ OF RS.42,492/-. 3.2. AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL. THE LD. FIRST APPELLATE AUTHORITY IN HIS ORDER 28/11/2014 UPHELD THE ORDER OF THE ASSESSING OFFICER AND D ISMISSED THE APPEALS OF THE ASSESSEE FOR THE VARIOUS REASONS GIVEN THEREIN. 4. AGGRIEVED THE ASSESSEE IS BEFORE US. 5. IN THE CASE OF SMT. SHARMITA MURARKA, THE GROUNDS OF APPEAL ARE AS FOLLOWS: '1. THAT THE LD AO ACTED IN ARBITRARY MANNER WHILE MAKING 23,50,000/ AS UNDISCLOSED CASH ON GROUNDS WHICH ARE NOT SUSTAINABLE. THE ADDITION NEEDS TO BE DELETED. 2. THAT THE LD AO ERRED IN FACT AND IN LAW IN MAKING AN ADDITION OF RS. 6349395/ UNDISCLOSED JEWELLERIES. 3. THAT THE ADDITION OF RS. 63494/ ORNAMENTS IS DEVOID OF ANY SUBSTANCE AND PURELY BASED ON SURMISES AND CONJECTURES. 4. THAT THE ADDITION OF RS. 15163/ ONLY RS. 1400/- IS NOT CORRECT AND NEEDS TO BE DELETED. 3 AS REGARDS THE JEWELLERY, THE ASSESSING OFFICER OBSERVED THAT NONE OF THE FAMILY MEMBERS WERE WEALTH TAX ASSESSEES AND THAT THE ITEMS OF JE WELLERY FOUND WERE NEVER DISCLOSED TO THE DEPARTMENT. AFTER CONSIDERING ALL THE EXPLANATIONS, HE ACCEPTED JEWELLERY VALUED TO THE EXTENT OF 1,950,000/- WHICH WAS CLAIMED AS GIFTED TO THE ASSESSEE BY SHRI PRAVEER MURARKA. THE BALANCE JEWELLERY OF 1,11,15 CONSIDERED AS UNEXPLAINED AND BROUGHT TO TAX. THE ASSESSING OFFICER ASSESSED AN AMOUNT AS UNEXPLAINED INVESTMENT IN JEWELLERY BY SMT. SHARMITA MURARKA. IN THE CASE OF SMT. PRABHA DEVI MURARKA, UNEXPLAINED INVESTMENT IN JEWELLERY - . THE ASSESSING OFFICER COMPLETED THE ASSESSMENT ON 26/3/2014 DETERMINING THE TOTAL INCOME AT 91,76,800/-, I N THE CASE OF SMT. SHARMITA IN THE CASE OF SMT. PRABHA DEVI MURARKA, ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT, DETERMINING THE TOTAL INCOME AT 48,27,715/- . IN THE CASE OF SMT. SABITA DEY, ASSESSMENT U/S 143(3) OF THE ACT, WAS PASSED ON 25/03/2014 ASSESSING THE TOTAL INTERALIA MAKING AN ADDITION ON ACCOUNT OF UNDISCLOSED 42,29,894/ - AND UNDISCLOSED MAKING CHARGES OF ORNAMENTS AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL. THE LD. FIRST APPELLATE AUTHORITY IN HIS ORDER 28/11/2014 UPHELD THE ORDER OF THE ASSESSING OFFICER AND ISMISSED THE APPEALS OF THE ASSESSEE FOR THE VARIOUS REASONS GIVEN THEREIN. AGGRIEVED THE ASSESSEE IS BEFORE US. IN THE CASE OF SMT. SHARMITA MURARKA, THE GROUNDS OF APPEAL ARE AS FOLLOWS: '1. THAT THE LD AO ACTED IN ARBITRARY MANNER WHILE MAKING AN ADDITION OF RS. AS UNDISCLOSED CASH ON GROUNDS WHICH ARE NOT SUSTAINABLE. THE ADDITION 2. THAT THE LD AO ERRED IN FACT AND IN LAW IN MAKING AN ADDITION OF RS. 6349395/ UNDISCLOSED JEWELLERIES. OF RS. 63494/ - MADE BY LD AO AS UNDISCLOSED MAKING CHARGES OF ORNAMENTS IS DEVOID OF ANY SUBSTANCE AND PURELY BASED ON SURMISES AND CONJECTURES. 4. THAT THE ADDITION OF RS. 15163/ - AS DISALLOWANCE U/S 14A ON A DIVIDEND INCOME OF IS NOT CORRECT AND NEEDS TO BE DELETED. I.T.A. NO. 55/KOL/2015 ASSESSMENT YEAR: 2012-13 PRABHADEVI MURARKA I.T.A. NO. 56/KOL/2015 ASSESSMENT YEAR: 2012-13 SHARMITA MURARKA I.T.A. NO. 57/KOL/2015 ASSESSMENT YEAR: 2012-13 SABITA DEY AS REGARDS THE JEWELLERY, THE ASSESSING OFFICER OBSERVED THAT NONE OF THE FAMILY WELLERY FOUND WERE NEVER DISCLOSED TO THE DEPARTMENT. AFTER CONSIDERING ALL THE EXPLANATIONS, HE ACCEPTED WHICH WAS CLAIMED AS GIFTED TO THE 1,11,15 ,340/- WAS ASSESSED AN AMOUNT AS UNEXPLAINED INVESTMENT IN JEWELLERY BY SMT. SHARMITA MURARKA. IN THE CASE OF SMT. PRABHA DEVI MURARKA, UNEXPLAINED INVESTMENT IN JEWELLERY WAS COMPLETED THE ASSESSMENT ON N THE CASE OF SMT. SHARMITA IN THE CASE OF SMT. PRABHA DEVI MURARKA, ASSESSMENT WAS COMPLETED U/S 143(3) . IN THE CASE OF SMT. SABITA DEY, ASSESSMENT U/S 143(3) OF THE ACT, WAS PASSED ON 25/03/2014 ASSESSING THE TOTAL INTERALIA MAKING AN ADDITION ON ACCOUNT OF UNDISCLOSED AND UNDISCLOSED MAKING CHARGES OF ORNAMENTS AGGRIEVED THE ASSESSEE CARRIED THE MATTER IN APPEAL. THE LD. FIRST APPELLATE AUTHORITY IN HIS ORDER 28/11/2014 UPHELD THE ORDER OF THE ASSESSING OFFICER AND ISMISSED THE APPEALS OF THE ASSESSEE FOR THE VARIOUS REASONS GIVEN THEREIN. IN THE CASE OF SMT. SHARMITA MURARKA, THE GROUNDS OF APPEAL ARE AS FOLLOWS: - AN ADDITION OF RS. AS UNDISCLOSED CASH ON GROUNDS WHICH ARE NOT SUSTAINABLE. THE ADDITION 2. THAT THE LD AO ERRED IN FACT AND IN LAW IN MAKING AN ADDITION OF RS. 6349395/ - AS MADE BY LD AO AS UNDISCLOSED MAKING CHARGES OF ORNAMENTS IS DEVOID OF ANY SUBSTANCE AND PURELY BASED ON SURMISES AND CONJECTURES. AS DISALLOWANCE U/S 14A ON A DIVIDEND INCOME OF 5. THAT OTHERWISE ALSO THE VALUATION OF RS. 38,04,423/ THE LD VALUER VIDE VALUATION RE EXCESSIVE HIGH AND UNJUSTIFIED. 6. THAT OTHERWISE ALSO THE LD CIT(A) GROSSLY ERRED IN FACT AS WELL AS IN LAW WHILE DISMISSING THE APPEAL OF THE APPELLANT AND FULLY IGNORED THE SUBMISSIONS OF THE APPELLAN T AND IN THE PROCESS JUSTICE WAS DENIED TO THE APPELLANT. 7. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY AND/OR WITHDRAW ANY GROUND BEFORE OR AT THE TIME OF HEARING OF THE APPEAL.' 6. THE LD. COUNSEL FOR THE ASSESSEE, SUBMITS THAT THE ASSESSING EXPLANATION OF THE ASSESSEE FOR THE CASH BALANCES OF LOCKER NUMBER 238, FOR THE REASON THAT HE DID NOT BELIEVE THE VERACITY OF THE CASH BOOK OF SHRI SHYAMA PRASAD MURARKA, PRODUCED BEFORE HIM. HE SUBMITT GENUINENESS OF THE CASH BOOK OF SHRI SHYAM PRASAD MURARKA, WAS A SUBJECT MATTER OF APPEAL AND IN THE APPELLATE ORDER PASSED BY THE LD. CIT(A) 2012- 13, ORDER DATED 26/12/2017, THE LD. CIT(A) ACCEPTED THE CLAIM OF THE ASS THE CASH BOOK PRODUCED BY SHRI SHYAMA PRASAD MURARKA MADE IN ALL THESE SEVEN ASSESSMENT YEARS I.E., FROM THE ASSESSMENT YEAR 2006 2012- 13, U/S 153A OF THE ACT, W SHRI SHYAMA PRASAD MURARKA WAS ACCEPTED AS GENUINE BY THE LD. CIT(A) IN HIS CASE, GIFTS MADE THEREFROM HAS TO BE ACCEPTED AS GENUINE WITH THE REVENUE TO SHOW OTHERWISE. HE SUBMITTED BURDEN OF PROOF THAT LAY ON H WAS ISSUED A NOTICE U/S 17 OF THE WEALTH TAX ACT AND IN RESPONSE THERETO, HE FILED HIS WEALTH TAX RETURN FOR THE ASSESSMENT YEAR 2006 OFFICER FRAMED ASSESSMENTS U/S BALANCES AS PER THE CASH BOOK OF THE ASSESSEE POINTED OUT THAT THE CASH BALANCE WITHDRAWALS MADE BY SHRI SHYAMA PRASAD MURARKA FROM HIS DISCLOSED BANK ACCOUNTS. THUS, HE SUBMITS THAT THE ADDITIONS IN QUESTION HAVE TO BE DELETED. 6.1. THE LD. D/R, ON THE OTHER HAND, OPPOSED THE CONTENTIONS OF THE ASSESSEE AND SU BMITTED THAT SHRI SHYAMA PRASAD MURARKA, NEVER FILED HIS RETURN OF THE ACT, FOR ANY OF THE ASSESSMENT YEARS 2006 OPERATION HAS TAKEN PLACE ON 28/07/2011. HE SUBMITTED THAT THE 4 5. THAT OTHERWISE ALSO THE VALUATION OF RS. 38,04,423/ - AND RS. 44,94,972/ THE LD VALUER VIDE VALUATION RE PORTS DATES 29.09.2011 AND DATED 28.07.2011 ARE TOO EXCESSIVE HIGH AND UNJUSTIFIED. 6. THAT OTHERWISE ALSO THE LD CIT(A) GROSSLY ERRED IN FACT AS WELL AS IN LAW WHILE DISMISSING THE APPEAL OF THE APPELLANT AND FULLY IGNORED THE SUBMISSIONS OF THE T AND IN THE PROCESS JUSTICE WAS DENIED TO THE APPELLANT. 7. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY AND/OR WITHDRAW ANY GROUND BEFORE OR AT THE TIME OF HEARING OF THE APPEAL.' THE LD. COUNSEL FOR THE ASSESSEE, SUBMITS THAT THE ASSESSING OFFICER REJECTED THE EXPLANATION OF THE ASSESSEE FOR THE CASH BALANCES OF 23,50,000/- FOUND IN THE BANK LOCKER NUMBER 238, FOR THE REASON THAT HE DID NOT BELIEVE THE VERACITY OF THE CASH BOOK OF SHRI SHYAMA PRASAD MURARKA, PRODUCED BEFORE HIM. HE SUBMITT GENUINENESS OF THE CASH BOOK OF SHRI SHYAM PRASAD MURARKA, WAS A SUBJECT MATTER OF APPEAL AND IN THE APPELLATE ORDER PASSED BY THE LD. CIT(A) , FOR THE ASSESSMENT YEAR 13, ORDER DATED 26/12/2017, THE LD. CIT(A) ACCEPTED THE CLAIM OF THE ASS PRODUCED BY SHRI SHYAMA PRASAD MURARKA WAS GENUINE AND THE ADDITIONS MADE IN ALL THESE SEVEN ASSESSMENT YEARS I.E., FROM THE ASSESSMENT YEAR 2006 13, U/S 153A OF THE ACT, W ERE DELETED. THUS, HE SUBMITS THAT ONCE THE CASH SHRI SHYAMA PRASAD MURARKA WAS ACCEPTED AS GENUINE BY THE LD. CIT(A) IN HIS CASE, GIFTS MADE THEREFROM HAS TO BE ACCEPTED AS GENUINE , AS THERE IS NO CONTRARY MATERIAL OTHERWISE. HE SUBMITTED THAT THE ASSESSEE HAS DISCH BURDEN OF PROOF THAT LAY ON H ER . HE FURTHER SUBMITTED THAT SHRI SHYAMA PRASAD MURARKA, WAS ISSUED A NOTICE U/S 17 OF THE WEALTH TAX ACT AND IN RESPONSE THERETO, HE FILED HIS FOR THE ASSESSMENT YEAR 2006 -07 TO 2012- 13 AND THAT TH OFFICER FRAMED ASSESSMENTS U/S 16 (3) OF THE WEALTH TAX ACT AND ACCEPTED THE CASH BALANCES AS PER THE CASH BOOK OF THE ASSESSEE DISCLOSED IN THESE WEALTH TAX RETURNS POINTED OUT THAT THE CASH BALANCE IN THE CASH BOOK WAS SUBSTANTIATED FROM THE WITHDRAWALS MADE BY SHRI SHYAMA PRASAD MURARKA FROM HIS DISCLOSED BANK ACCOUNTS. THUS, HE SUBMITS THAT THE ADDITIONS IN QUESTION HAVE TO BE DELETED. THE LD. D/R, ON THE OTHER HAND, OPPOSED THE CONTENTIONS OF THE ASSESSEE AND BMITTED THAT SHRI SHYAMA PRASAD MURARKA, NEVER FILED HIS RETURN OF INCOME U/S 139 OF ANY OF THE ASSESSMENT YEARS 2006 -07 TO 2012-13 AND TILL THE OPERATION HAS TAKEN PLACE ON 28/07/2011. HE SUBMITTED THAT THE CASH BOOK I.T.A. NO. 55/KOL/2015 ASSESSMENT YEAR: 2012-13 PRABHADEVI MURARKA I.T.A. NO. 56/KOL/2015 ASSESSMENT YEAR: 2012-13 SHARMITA MURARKA I.T.A. NO. 57/KOL/2015 ASSESSMENT YEAR: 2012-13 SABITA DEY AND RS. 44,94,972/ - MADE BY PORTS DATES 29.09.2011 AND DATED 28.07.2011 ARE TOO 6. THAT OTHERWISE ALSO THE LD CIT(A) GROSSLY ERRED IN FACT AS WELL AS IN LAW WHILE DISMISSING THE APPEAL OF THE APPELLANT AND FULLY IGNORED THE SUBMISSIONS OF THE 7. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, MODIFY AND/OR WITHDRAW ANY GROUND OFFICER REJECTED THE FOUND IN THE BANK LOCKER NUMBER 238, FOR THE REASON THAT HE DID NOT BELIEVE THE VERACITY OF THE CASH BOOK OF SHRI SHYAMA PRASAD MURARKA, PRODUCED BEFORE HIM. HE SUBMITT ED THAT THE GENUINENESS OF THE CASH BOOK OF SHRI SHYAM PRASAD MURARKA, WAS A SUBJECT MATTER OF FOR THE ASSESSMENT YEAR 13, ORDER DATED 26/12/2017, THE LD. CIT(A) ACCEPTED THE CLAIM OF THE ASS ESSEE THAT WAS GENUINE AND THE ADDITIONS MADE IN ALL THESE SEVEN ASSESSMENT YEARS I.E., FROM THE ASSESSMENT YEAR 2006 -07 TO DELETED. THUS, HE SUBMITS THAT ONCE THE CASH BOOK OF SHRI SHYAMA PRASAD MURARKA WAS ACCEPTED AS GENUINE BY THE LD. CIT(A) IN HIS CASE, THE AS THERE IS NO CONTRARY MATERIAL THAT THE ASSESSEE HAS DISCH ARGED THE . HE FURTHER SUBMITTED THAT SHRI SHYAMA PRASAD MURARKA, WAS ISSUED A NOTICE U/S 17 OF THE WEALTH TAX ACT AND IN RESPONSE THERETO, HE FILED HIS 13 AND THAT TH E ASSESSING (3) OF THE WEALTH TAX ACT AND ACCEPTED THE CASH DISCLOSED IN THESE WEALTH TAX RETURNS . HE SUBSTANTIATED FROM THE WITHDRAWALS MADE BY SHRI SHYAMA PRASAD MURARKA FROM HIS DISCLOSED BANK ACCOUNTS. THE LD. D/R, ON THE OTHER HAND, OPPOSED THE CONTENTIONS OF THE ASSESSEE AND INCOME U/S 139 OF AND TILL THE SEARCH CASH BOOK WAS AS AN AFTERTHO UGHT AND IT IS AGAINST HUMAN PROBABILITIES THAT A PERSON WOULD MAINTAIN SUBSTANTIAL CASH BALANCE OF CLAIM OF THE ASSESSEE THAT SHE RECEIVED GIFTS OF SUBMITTED THAT THE WEALTH TAX RETURNS CANNOT BE CONSIDERED AS EVIDENCE TO PROVE CASH BALANCE. ON A QUESTION FROM THE BENCH, HE COULD NOT PRODUCE ANY CONTRARY EVIDENCE, EXCEPT FOR EXPRESSING DOUBTS ON THE CLAIM OF THE ASSESSEE. 7. WE HAVE HEARD RIVAL CONTENTIONS. ON CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: 8. IN THE CASE OF SHRI SHYAMA PRASAD MURARKA, THE LD. CIT(A) ORDER DT. 26/12/2017, PASSED U/S 250 OF THE ACT, HAD CONSIDERED THE CASH BOOK IN QUESTION AT PARA 6, PAGE 6 & 7 OF HIS ORDER AND HELD AS FOLLOWS: '06. FINDINGS & DECISIONS: I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. A.R AND PERUSED PASSED BY THE ID. AO FOR THE AY 2012 REASONS JUSTIFYING THE ADDITION OF ALLEGED UNDISCLOSED CASH ARE VERBATIM SAME IN ALL THE ORDERS PASSED BY THE ID. AO FOR THE AYS 2006 RELEVANT YEARS, THE BASIC REASONING JUSTIFYING THE ADDITION OF CASH IN HAND ARE IDENTICALLY WORDED IN ALL THE ORDERS FOR AYS 2006 NOTE THAT FOR THE AY 2011 - 1957 HAD HELD THAT THE APPELLANT HELD CASH BALANCE OF RS.1,85,23,547/ NEITHER IN THE COURSE OF SEARCH NOR THEREAFTER THE DEPARTMENT HAD GATHERED ANY EVIDENCE OR DOCUMENT, WHICH PRO VED THAT THE CASH WAS SPENT OR OTHERWISE INVESTED BY THE APPELLANT AND THEREFORE SUCH CASH IN HAND, COULD NOT HAVE BEEN AVAILABLE WITH THE APPELLANT ON 31.03.2012. I FURTHER FIND THAT DURING FY 2011 TH E APPELLANT HAD WITHDRAWN CASH OF RS.18,00,000/ ENTRIES IN THE BANK PASSBOOKS SUBSTANTIATED THE APPELLANT'S CONTENTION THAT THE CASH WAS IN FACT WITHDRAWN DURING FY 2011 RS.9,71,000/- WAS RE- DEPOSITED IN THE BANK AND RS.38,00,000/ SPEND TO MEET ASSESSEE'S NEEDS AND FAMILY EXPENSES. FURTHER IN THE COURSE OF SEARCH, CASH OF RS.19,59,600/- WAS FOUND OUT OF WHICH RS.18,00,00/ THESE EXPENSES, DEPOSITS AND SEIZURE; THE CASH BALANCE SHOWN IN THE APPELLANT'S BALANCE SHEET AS ON 31.03.2012 WAS RS.1,43,92,547/ THAT THERE WAS NO TANGIBLE MATERIAL OR EVIDENCE AVAILABLE WIT CONCLUSION THAT THE CASH IN HAND DECLARED BY THE APPELLANT IN HIS PERSONAL BALANCE SHEET COULD BE CONSIDERED TO BE UNEXPLAINED ASSET. I FIND THAT HAVING REGARD TO THE WEALTH ASSESSMENT OF THE APPELLANT AND THE CASH WITHDRAWALS M THE APPELLANT EXPLAINED THE SOURCE FOR THE CASH BALANCE DISCLOSED IN HIS BALANCE SHEET AND THEREFORE UNLESS THE ID. AO HAD BROUGHT ON RECORD SUFFICIENT MATERIAL TO PROVE SUCH CASH WAS OTHERWISE SPENT, THE ID. AO COULD NOT APPEARED IN THE APPELLANT'S BALANCE SHEET. I ALSO NOTE THAT THE LD. AO HAS NOT CITED THE ENABLING PROVISION IN THE INCOME IN TERMS OF WHICH AN ASSET DISCLOSED IN THE BALANCE SHEET OF THE A UNEXPLAINED CASH. I ALSO FIND THAT THE REASONS JUSTIFYING THE IMPUGNED ADDITION WAS NOT 5 UGHT AND IT IS AGAINST HUMAN PROBABILITIES THAT A PERSON WOULD MAINTAIN SUBSTANTIAL CASH BALANCE OF 143.92 LAKHS/- . HE ALSO EXPRESSED SERIOUS DOUBTS ON THE THE ASSESSEE THAT SHE RECEIVED GIFTS OF 2,350,000/- FROM HER FATHER THAT THE WEALTH TAX RETURNS CANNOT BE CONSIDERED AS EVIDENCE TO PROVE CASH ON A QUESTION FROM THE BENCH, HE COULD NOT PRODUCE ANY CONTRARY EVIDENCE, EXCEPT FOR EXPRESSING DOUBTS ON THE CLAIM OF THE ASSESSEE. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: - IN THE CASE OF SHRI SHYAMA PRASAD MURARKA, THE LD. CIT(A) - 21, KOLKATA, ORDER DT. 26/12/2017, PASSED U/S 250 OF THE ACT, HAD CONSIDERED THE CASH BOOK IN QUESTION AT PARA 6, PAGE 6 & 7 OF HIS ORDER AND HELD AS FOLLOWS: - '06. FINDINGS & DECISIONS: I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE LD. A.R AND PERUSED THE IMPUGNED ORDER PASSED BY THE ID. AO FOR THE AY 2012 -13. B ARE PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE REASONS JUSTIFYING THE ADDITION OF ALLEGED UNDISCLOSED CASH ARE VERBATIM SAME IN ALL THE ORDERS PASSED BY THE ID. AO FOR THE AYS 2006 -07 TO 2012-1 3. SAVE & EXCEPT THE FIGURES FOR THE RELEVANT YEARS, THE BASIC REASONING JUSTIFYING THE ADDITION OF CASH IN HAND ARE IDENTICALLY WORDED IN ALL THE ORDERS FOR AYS 2006 -07 TO 2012- 13. FROM THE MATERIALS PLACED BEFORE ME, I - 12, THE S AME AO IN THE ORDER PASSED U/S 16(3)/17 OF THE W.T. ACT, 1957 HAD HELD THAT THE APPELLANT HELD CASH BALANCE OF RS.1,85,23,547/ - AS ON 31.03.2011. NEITHER IN THE COURSE OF SEARCH NOR THEREAFTER THE DEPARTMENT HAD GATHERED ANY EVIDENCE OR VED THAT THE CASH -IN HAND OF RS.1,85,23,547/- HELD AS ON 31.03.2011 WAS SPENT OR OTHERWISE INVESTED BY THE APPELLANT AND THEREFORE SUCH CASH IN HAND, COULD NOT HAVE BEEN AVAILABLE WITH THE APPELLANT ON 31.03.2012. I FURTHER FIND THAT DURING FY 2011 E APPELLANT HAD WITHDRAWN CASH OF RS.18,00,000/ - FROM HIS DISCLOSED BANK ACCOUNTS: ENTRIES IN THE BANK PASSBOOKS SUBSTANTIATED THE APPELLANT'S CONTENTION THAT THE CASH WAS IN FACT WITHDRAWN DURING FY 2011 - 12. OUT OF THE OPENING CASH BALANCE AND CASH WITHDR DEPOSITED IN THE BANK AND RS.38,00,000/ - WERE SHOWN TO HAVE BEEN SPEND TO MEET ASSESSEE'S NEEDS AND FAMILY EXPENSES. FURTHER IN THE COURSE OF SEARCH, CASH OF WAS FOUND OUT OF WHICH RS.18,00,00/ - WAS SEIZED. ACCORDIN THESE EXPENSES, DEPOSITS AND SEIZURE; THE CASH BALANCE SHOWN IN THE APPELLANT'S BALANCE SHEET AS ON 31.03.2012 WAS RS.1,43,92,547/ - . IN VIEW OF THE FOREGOING FACTS THEREFORE I FIND THAT THERE WAS NO TANGIBLE MATERIAL OR EVIDENCE AVAILABLE WIT H THE ID. AO TO COME TO CONCLUSION THAT THE CASH IN HAND DECLARED BY THE APPELLANT IN HIS PERSONAL BALANCE SHEET COULD BE CONSIDERED TO BE UNEXPLAINED ASSET. I FIND THAT HAVING REGARD TO THE WEALTH ASSESSMENT OF THE APPELLANT AND THE CASH WITHDRAWALS M ADE FROM DISCLOSED BANK ACCOUNTS, THE APPELLANT EXPLAINED THE SOURCE FOR THE CASH BALANCE DISCLOSED IN HIS BALANCE SHEET AND THEREFORE UNLESS THE ID. AO HAD BROUGHT ON RECORD SUFFICIENT MATERIAL TO PROVE SUCH CASH WAS OTHERWISE SPENT, THE ID. AO COULD NOT HAVE MADE ADDITION IN RESPECT OF AN ASSET WHICH DULY APPEARED IN THE APPELLANT'S BALANCE SHEET. I ALSO NOTE THAT THE LD. AO HAS NOT CITED THE ENABLING PROVISION IN THE INCOME IN TERMS OF WHICH AN ASSET DISCLOSED IN THE BALANCE SHEET OF THE A PPELLANT WAS CONSIDERED AS UNEXPLAINED CASH. I ALSO FIND THAT THE REASONS JUSTIFYING THE IMPUGNED ADDITION WAS NOT I.T.A. NO. 55/KOL/2015 ASSESSMENT YEAR: 2012-13 PRABHADEVI MURARKA I.T.A. NO. 56/KOL/2015 ASSESSMENT YEAR: 2012-13 SHARMITA MURARKA I.T.A. NO. 57/KOL/2015 ASSESSMENT YEAR: 2012-13 SABITA DEY UGHT AND IT IS AGAINST HUMAN PROBABILITIES THAT A PERSON WOULD MAINTAIN . HE ALSO EXPRESSED SERIOUS DOUBTS ON THE FROM HER FATHER -IN-LAW. HE THAT THE WEALTH TAX RETURNS CANNOT BE CONSIDERED AS EVIDENCE TO PROVE CASH ON A QUESTION FROM THE BENCH, HE COULD NOT PRODUCE ANY CONTRARY EVIDENCE, CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES 21, KOLKATA, VIDE HIS ORDER DT. 26/12/2017, PASSED U/S 250 OF THE ACT, HAD CONSIDERED THE CASH BOOK IN THE IMPUGNED ORDER ARE PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE REASONS JUSTIFYING THE ADDITION OF ALLEGED UNDISCLOSED CASH ARE VERBATIM SAME IN ALL THE 3. SAVE & EXCEPT THE FIGURES FOR THE RELEVANT YEARS, THE BASIC REASONING JUSTIFYING THE ADDITION OF CASH IN HAND ARE IDENTICALLY 13. FROM THE MATERIALS PLACED BEFORE ME, I AME AO IN THE ORDER PASSED U/S 16(3)/17 OF THE W.T. ACT, AS ON 31.03.2011. NEITHER IN THE COURSE OF SEARCH NOR THEREAFTER THE DEPARTMENT HAD GATHERED ANY EVIDENCE OR HELD AS ON 31.03.2011 WAS SPENT OR OTHERWISE INVESTED BY THE APPELLANT AND THEREFORE SUCH CASH IN HAND, COULD NOT HAVE BEEN AVAILABLE WITH THE APPELLANT ON 31.03.2012. I FURTHER FIND THAT DURING FY 2011 -12, FROM HIS DISCLOSED BANK ACCOUNTS: ENTRIES IN THE BANK PASSBOOKS SUBSTANTIATED THE APPELLANT'S CONTENTION THAT THE CASH WAS IN 12. OUT OF THE OPENING CASH BALANCE AND CASH WITHDR AWN, WERE SHOWN TO HAVE BEEN SPEND TO MEET ASSESSEE'S NEEDS AND FAMILY EXPENSES. FURTHER IN THE COURSE OF SEARCH, CASH OF WAS SEIZED. ACCORDIN GLY DEDUCTING THESE EXPENSES, DEPOSITS AND SEIZURE; THE CASH BALANCE SHOWN IN THE APPELLANT'S BALANCE . IN VIEW OF THE FOREGOING FACTS THEREFORE I FIND H THE ID. AO TO COME TO CONCLUSION THAT THE CASH IN HAND DECLARED BY THE APPELLANT IN HIS PERSONAL BALANCE SHEET COULD BE CONSIDERED TO BE UNEXPLAINED ASSET. I FIND THAT HAVING REGARD TO THE WEALTH -TAX ADE FROM DISCLOSED BANK ACCOUNTS, THE APPELLANT EXPLAINED THE SOURCE FOR THE CASH BALANCE DISCLOSED IN HIS BALANCE SHEET AND THEREFORE UNLESS THE ID. AO HAD BROUGHT ON RECORD SUFFICIENT MATERIAL TO PROVE SUCH CASH WAS HAVE MADE ADDITION IN RESPECT OF AN ASSET WHICH DULY I ALSO NOTE THAT THE LD. AO HAS NOT CITED THE ENABLING PROVISION IN THE INCOME -TAX ACT, 1961 PPELLANT WAS CONSIDERED AS UNEXPLAINED CASH. I ALSO FIND THAT THE REASONS JUSTIFYING THE IMPUGNED ADDITION WAS NOT UPHELD BY MY PREDECESSOR FOR AY 2006 'APPEAL NOS. 922 & 923/CC PREDECESSOR FOR AY 2007- 08 DATED 01.04.2015, WERE AS FOLLOWS: '9.1 ON CAREFUL CONSIDERATION OF THE FACTS, I AM OF THE OPINION THAT THE AD WAS NOT JUSTIFIED IN TREATING THE CASH IN HAND SHOWN BY THE APPELLANT IN HIS BALANCE IS OBSERVED THAT THE AO HAS ACCEPTED THE FACT THAT IN THE YEAR UNDER CONSIDERATION THE APPELLANT WAS NOT HAVING TAXABLE INCOME AND HIS TOTAL INCOME LIABLE TO TAX WAS ONLY RS.527/- AS SHOWN IN THE RETURN OF INCOME FILED U/S 15 ACCEPTED THAT THE APPELLANT WAS NOT HAVING TAXABLE INCOME IN THE YEAR UNDER CONSIDERATION; HE WAS NOT LIABLE TO FILE THE RETURN OF INCOME U/S 139(1) OF THE ACT. FURTHER, IT HAS ALSO NOT BEEN DISPUTED BY THE AO THAT THE CASH BY THE APPELLANT FROM HIS BANK ACCOUNTS AND IN SUPPORT THE APPELLANT HAS FILED COPIES OF THE BANK STATEMENTS AND THE CASH BOOK. IT IS ALSO OBSERVED THAT THE AO HAS ACCEPTED ALL THE ITEMS OF BALANCE SHEET FO R THE YEAR UNDER CONSIDERATION EXCEPT THE CASH IN HAND AND TREATED THE SAME AS UNACCOUNTED CASE. IT IS NOT THE CASE OF THE AO THAT EITHER THE INVESTMENTS MADE BY THE APPELLANT IN SHARES AND SECURITIES WERE UNDISCLOSED INVESTMENTS OR THE BANK ACCOUNTS SHOWN BY THE APPELLANT IN HIS BALANCE SHEET WERE UNDISCLOSED BANK ACCOUNTS. IT IS ALSO NOT THE CASE OF THE AO THAT THE DEPOSITS MADE IN THE BANK ACCOUNTS WERE THE UNDISCLOSED INCOME OF THE APPELLANT. I AM OF THE OPINION THAT ONCE, THE BANK ACCOUNTS SHOWN BY THE HIS BALANCE SHEET HAS BEEN ACCEPTED AS DISCLOSED BANK ACCOUNTS AND THE CASH IN BANK HAS BEEN ACCEPTED, THERE IS NO REASON TO TREAT THE CASH WITHDRAWN FROM THESE BANK ACCOUNTS AS UNDISCLOSED CASH. 9.2 IT IS OBSERVED THAT THE AO HAS RELIED ON REGARD RELIED ON THE DECISION OF THE SUPREME COURT IN THE CASE OF SUMATI DAYAL (SUPRA). HOWEVER, I AM OF THE OPINION THAT THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF SUMATI DAYAL IS NOT A DAYAL, THE ASSESSEE HAD WON ALL THE JACKPOTS CONTINUOUSLY IN TWO OR THREE YEARS. THERE WAS NO ENTRY OF PURCHASE OF TICKET OF JACKPOTS IN THE BOOKS OF ACCOUNT AND THERE WAS NO CASH IN HAND ON THE R ELEVANT DATES OF PURCHASE OF TICKETS. UNDER THE CIRCUMSTANCES, IT WAS HELD BY THE APEX COURT THAT IT WAS HIGHLY IMPROBABLE THAT A SAME PERSON HAD WON ALL THE JACKPOTS IN ALL THE YEARS. BUT, IN THE INSTANT CASE THE APPELLANT HAS CLAIMED CASH IN HAND OUT OF WITHDRAWN BY HIM FROM HIS BANK ACCOUNTS. THE AO HAS ACCEPTED THAT THE CASH WAS, INDEED, WITHDRAWN FROM THE BANK ACCOUNTS. THE AO HAS FURTHER OPINED THAT IT IS MOST IMPROBABLE IF NOT IMPOSSIBLE THAT A PERSON WOULD KEEP SUBSTANTIAL AMOUNT OF CASH IN KEEP THE SAME IN BANK. I AM OF THE OPINION THAT THE AO MAY BE CORRECT IN HIS LOGIC BUT THE' FACT REMAINS THAT NO LAW PROHIBITS A PERSON THAT HE COULD NOT KEEP THE CASH IN HAND. THE ONLY REQUIREMENT IS THAT SUCH PERSON HAS TO EXPLAIN TH CASE, THE APPELLANT HAS EXPLAINED THE CASH IN HAND BEING THE WITHDRAWALS FROM THE BANK ACCOUNTS WHICH HAS NOT BEEN DISPUTED. THE AO HAS ALSO MENTIONED THAT ACTUALLY THE CASH WAS WITHDRAWN BY THE ASSESSEE FROM HIS BA HOWEVER, IN SUPPORT OF HIS OBSERVATION THE AO HAS BROUGHT NO MATERIAL ON RECORD. IN THE CASE OF APPELLANT, THE SEARCH OPERATION U/S 132 OF THE ACT WAS CONDUCTED ON 28.07.2011 AND THERE IS NO EVIDENCE THAT TH ACCOUNTED FOR OR INCURRED OUT OF THE CASH WITHDRAWN FROM THE BANK. HENCE, IN THE ABSENCE OF ANY EVIDENCE IT WOULD NOT BE CORRECT TO HOLD THAT THE CASH FROM THE BANK WAS WITHDRAWN FOR OTHER PURPOSE S AND THE CASH SO WITHDRAWN WAS UTILIZED FOR OTHER PURPOSES. AS ADMITTED BY THE AO THE APPELLANT HAD WITHDRAWN CASH AGGREGATING TO RS.82,35,000/ ACCOUNTS ON VARIOUS DATES AND THE SUM OF RS.37,25,547/ 01.04.200 6. AFTER MAKING WITHDRAWALS DURING THE YEAR FOR PERSONAL PURPOSES THE REMAINING CASH IN HAND AS ON 31.03.2007 WAS RS.L,04,60,547/ CASH OF RS.15,OO,000/- DURING THE YEAR FOR VARIOUS PURPOSES. IN VIEW OF ABOVE, I AM OF OPINION THAT IT IS NOT CORRECT TO HOLD THAT THE CASH IN HAND SHOWN BY THE APPELLANT WAS 6 UPHELD BY MY PREDECESSOR FOR AY 2006 -07 & 2007- 08 IN THE APPELLATE ORDERS PASSED IN 'APPEAL NOS. 922 & 923/CC -3(3)/CIT(A)-21/2014-1S. THE REL EVANT FINDING OF MY LD. 08 DATED 01.04.2015, WERE AS FOLLOWS: '9.1 ON CAREFUL CONSIDERATION OF THE FACTS, I AM OF THE OPINION THAT THE AD WAS NOT JUSTIFIED IN TREATING THE CASH IN HAND SHOWN BY THE APPELLANT IN HIS BALANCE SHEET AS UNDISCLOSED CASH. IT IS OBSERVED THAT THE AO HAS ACCEPTED THE FACT THAT IN THE YEAR UNDER CONSIDERATION THE APPELLANT WAS NOT HAVING TAXABLE INCOME AND HIS TOTAL INCOME LIABLE TO TAX WAS ONLY AS SHOWN IN THE RETURN OF INCOME FILED U/S 15 3A OF THE ACT. ONCE, IT HAS BEEN ACCEPTED THAT THE APPELLANT WAS NOT HAVING TAXABLE INCOME IN THE YEAR UNDER CONSIDERATION; HE WAS NOT LIABLE TO FILE THE RETURN OF INCOME U/S 139(1) OF THE ACT. FURTHER, IT HAS ALSO NOT BEEN DISPUTED BY THE AO THAT THE CASH AGGREGATING TO RS.82,35,000/- HAD BEEN WITHDRAWN BY THE APPELLANT FROM HIS BANK ACCOUNTS AND IN SUPPORT THE APPELLANT HAS FILED COPIES OF THE BANK STATEMENTS AND THE CASH BOOK. IT IS ALSO OBSERVED THAT THE AO HAS ACCEPTED ALL THE ITEMS R THE YEAR UNDER CONSIDERATION EXCEPT THE CASH IN HAND AND TREATED THE SAME AS UNACCOUNTED CASE. IT IS NOT THE CASE OF THE AO THAT EITHER THE INVESTMENTS MADE BY THE APPELLANT IN SHARES AND SECURITIES WERE UNDISCLOSED INVESTMENTS OR THE BANK ACCOUNTS BY THE APPELLANT IN HIS BALANCE SHEET WERE UNDISCLOSED BANK ACCOUNTS. IT IS ALSO NOT THE CASE OF THE AO THAT THE DEPOSITS MADE IN THE BANK ACCOUNTS WERE THE UNDISCLOSED INCOME OF THE APPELLANT. I AM OF THE OPINION THAT ONCE, THE BANK ACCOUNTS SHOWN BY THE HIS BALANCE SHEET HAS BEEN ACCEPTED AS DISCLOSED BANK ACCOUNTS AND THE CASH IN BANK HAS BEEN ACCEPTED, THERE IS NO REASON TO TREAT THE CASH WITHDRAWN FROM THESE BANK ACCOUNTS AS 9.2 IT IS OBSERVED THAT THE AO HAS RELIED ON THE PRINCIPLE OF HUMAN PROBABILITIES AND IN THIS REGARD RELIED ON THE DECISION OF THE SUPREME COURT IN THE CASE OF SUMATI DAYAL (SUPRA). HOWEVER, I AM OF THE OPINION THAT THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF SUMATI DAYAL IS NOT A PPLICABLE IN THE INSTANT CASE BECAUSE IN THE CASE OF SUMATI DAYAL, THE ASSESSEE HAD WON ALL THE JACKPOTS CONTINUOUSLY IN TWO OR THREE YEARS. THERE WAS NO ENTRY OF PURCHASE OF TICKET OF JACKPOTS IN THE BOOKS OF ACCOUNT AND THERE WAS NO CASH IN ELEVANT DATES OF PURCHASE OF TICKETS. UNDER THE CIRCUMSTANCES, IT WAS HELD BY THE APEX COURT THAT IT WAS HIGHLY IMPROBABLE THAT A SAME PERSON HAD WON ALL THE JACKPOTS IN ALL THE YEARS. BUT, IN THE INSTANT CASE THE APPELLANT HAS CLAIMED CASH IN HAND OUT OF WITHDRAWN BY HIM FROM HIS BANK ACCOUNTS. THE AO HAS ACCEPTED THAT THE CASH WAS, INDEED, WITHDRAWN FROM THE BANK ACCOUNTS. THE AO HAS FURTHER OPINED THAT IT IS MOST IMPROBABLE IF NOT IMPOSSIBLE THAT A PERSON WOULD KEEP SUBSTANTIAL AMOUNT OF CASH IN HAND RATHER THAN TO KEEP THE SAME IN BANK. I AM OF THE OPINION THAT THE AO MAY BE CORRECT IN HIS LOGIC BUT THE' FACT REMAINS THAT NO LAW PROHIBITS A PERSON THAT HE COULD NOT KEEP THE CASH IN HAND. THE ONLY REQUIREMENT IS THAT SUCH PERSON HAS TO EXPLAIN TH E SOURCE OF CASH IN HAND. IN THE INSTANT CASE, THE APPELLANT HAS EXPLAINED THE CASH IN HAND BEING THE WITHDRAWALS FROM THE BANK ACCOUNTS WHICH HAS NOT BEEN DISPUTED. THE AO HAS ALSO MENTIONED THAT ACTUALLY THE CASH WAS WITHDRAWN BY THE ASSESSEE FROM HIS BA NK ACCOUNTS FOR OTHER PURPOSES AND EXPENSES ETC. HOWEVER, IN SUPPORT OF HIS OBSERVATION THE AO HAS BROUGHT NO MATERIAL ON RECORD. IN THE CASE OF APPELLANT, THE SEARCH OPERATION U/S 132 OF THE ACT WAS CONDUCTED ON 28.07.2011 AND THERE IS NO EVIDENCE THAT TH E APPELLANT HAD INCURRED ANY EXPENDITURE WHICH HAS NOT BEEN ACCOUNTED FOR OR INCURRED OUT OF THE CASH WITHDRAWN FROM THE BANK. HENCE, IN THE ABSENCE OF ANY EVIDENCE IT WOULD NOT BE CORRECT TO HOLD THAT THE CASH FROM THE BANK WAS WITHDRAWN FOR S AND THE CASH SO WITHDRAWN WAS UTILIZED FOR OTHER PURPOSES. AS ADMITTED BY THE AO THE APPELLANT HAD WITHDRAWN CASH AGGREGATING TO RS.82,35,000/ - FROM HIS BANK ACCOUNTS ON VARIOUS DATES AND THE SUM OF RS.37,25,547/ - WAS OPENING CASH IN HAND AS ON 6. AFTER MAKING WITHDRAWALS DURING THE YEAR FOR PERSONAL PURPOSES THE REMAINING CASH IN HAND AS ON 31.03.2007 WAS RS.L,04,60,547/ - . IT MEANS THAT THE APPELLANT HAD SPENT DURING THE YEAR FOR VARIOUS PURPOSES. IN VIEW OF ABOVE, I AM OF OPINION THAT IT IS NOT CORRECT TO HOLD THAT THE CASH IN HAND SHOWN BY THE APPELLANT WAS I.T.A. NO. 55/KOL/2015 ASSESSMENT YEAR: 2012-13 PRABHADEVI MURARKA I.T.A. NO. 56/KOL/2015 ASSESSMENT YEAR: 2012-13 SHARMITA MURARKA I.T.A. NO. 57/KOL/2015 ASSESSMENT YEAR: 2012-13 SABITA DEY 08 IN THE APPELLATE ORDERS PASSED IN EVANT FINDING OF MY LD. [QUOTE] '9.1 ON CAREFUL CONSIDERATION OF THE FACTS, I AM OF THE OPINION THAT THE AD WAS NOT JUSTIFIED IN SHEET AS UNDISCLOSED CASH. IT IS OBSERVED THAT THE AO HAS ACCEPTED THE FACT THAT IN THE YEAR UNDER CONSIDERATION THE APPELLANT WAS NOT HAVING TAXABLE INCOME AND HIS TOTAL INCOME LIABLE TO TAX WAS ONLY 3A OF THE ACT. ONCE, IT HAS BEEN ACCEPTED THAT THE APPELLANT WAS NOT HAVING TAXABLE INCOME IN THE YEAR UNDER CONSIDERATION; HE WAS NOT LIABLE TO FILE THE RETURN OF INCOME U/S 139(1) OF THE ACT. FURTHER, IT HAS ALSO NOT HAD BEEN WITHDRAWN BY THE APPELLANT FROM HIS BANK ACCOUNTS AND IN SUPPORT THE APPELLANT HAS FILED COPIES OF THE BANK STATEMENTS AND THE CASH BOOK. IT IS ALSO OBSERVED THAT THE AO HAS ACCEPTED ALL THE ITEMS R THE YEAR UNDER CONSIDERATION EXCEPT THE CASH IN HAND AND TREATED THE SAME AS UNACCOUNTED CASE. IT IS NOT THE CASE OF THE AO THAT EITHER THE INVESTMENTS MADE BY THE APPELLANT IN SHARES AND SECURITIES WERE UNDISCLOSED INVESTMENTS OR THE BANK ACCOUNTS BY THE APPELLANT IN HIS BALANCE SHEET WERE UNDISCLOSED BANK ACCOUNTS. IT IS ALSO NOT THE CASE OF THE AO THAT THE DEPOSITS MADE IN THE BANK ACCOUNTS WERE THE UNDISCLOSED INCOME OF THE APPELLANT. I AM OF THE OPINION THAT ONCE, THE BANK ACCOUNTS SHOWN BY THE APPELLANT IN HIS BALANCE SHEET HAS BEEN ACCEPTED AS DISCLOSED BANK ACCOUNTS AND THE CASH IN BANK HAS BEEN ACCEPTED, THERE IS NO REASON TO TREAT THE CASH WITHDRAWN FROM THESE BANK ACCOUNTS AS THE PRINCIPLE OF HUMAN PROBABILITIES AND IN THIS REGARD RELIED ON THE DECISION OF THE SUPREME COURT IN THE CASE OF SUMATI DAYAL (SUPRA). HOWEVER, I AM OF THE OPINION THAT THE RATIO LAID DOWN BY THE HON'BLE SUPREME COURT IN THE PPLICABLE IN THE INSTANT CASE BECAUSE IN THE CASE OF SUMATI DAYAL, THE ASSESSEE HAD WON ALL THE JACKPOTS CONTINUOUSLY IN TWO OR THREE YEARS. THERE WAS NO ENTRY OF PURCHASE OF TICKET OF JACKPOTS IN THE BOOKS OF ACCOUNT AND THERE WAS NO CASH IN ELEVANT DATES OF PURCHASE OF TICKETS. UNDER THE CIRCUMSTANCES, IT WAS HELD BY THE APEX COURT THAT IT WAS HIGHLY IMPROBABLE THAT A SAME PERSON HAD WON ALL THE JACKPOTS IN ALL THE YEARS. BUT, IN THE INSTANT CASE THE APPELLANT HAS CLAIMED CASH IN HAND OUT OF THE CASH WITHDRAWN BY HIM FROM HIS BANK ACCOUNTS. THE AO HAS ACCEPTED THAT THE CASH WAS, INDEED, WITHDRAWN FROM THE BANK ACCOUNTS. THE AO HAS FURTHER OPINED THAT IT IS MOST IMPROBABLE IF HAND RATHER THAN TO KEEP THE SAME IN BANK. I AM OF THE OPINION THAT THE AO MAY BE CORRECT IN HIS LOGIC BUT THE' FACT REMAINS THAT NO LAW PROHIBITS A PERSON THAT HE COULD NOT KEEP THE CASH IN HAND. THE E SOURCE OF CASH IN HAND. IN THE INSTANT CASE, THE APPELLANT HAS EXPLAINED THE CASH IN HAND BEING THE WITHDRAWALS FROM THE BANK ACCOUNTS WHICH HAS NOT BEEN DISPUTED. THE AO HAS ALSO MENTIONED THAT ACTUALLY THE CASH NK ACCOUNTS FOR OTHER PURPOSES AND EXPENSES ETC. HOWEVER, IN SUPPORT OF HIS OBSERVATION THE AO HAS BROUGHT NO MATERIAL ON RECORD. IN THE CASE OF APPELLANT, THE SEARCH OPERATION U/S 132 OF THE ACT WAS CONDUCTED ON 28.07.2011 AND E APPELLANT HAD INCURRED ANY EXPENDITURE WHICH HAS NOT BEEN ACCOUNTED FOR OR INCURRED OUT OF THE CASH WITHDRAWN FROM THE BANK. HENCE, IN THE ABSENCE OF ANY EVIDENCE IT WOULD NOT BE CORRECT TO HOLD THAT THE CASH FROM THE BANK WAS WITHDRAWN FOR S AND THE CASH SO WITHDRAWN WAS UTILIZED FOR OTHER PURPOSES. AS ADMITTED BY FROM HIS BANK WAS OPENING CASH IN HAND AS ON 6. AFTER MAKING WITHDRAWALS DURING THE YEAR FOR PERSONAL PURPOSES THE REMAINING . IT MEANS THAT THE APPELLANT HAD SPENT DURING THE YEAR FOR VARIOUS PURPOSES. IN VIEW OF ABOVE, I AM OF THE OPINION THAT IT IS NOT CORRECT TO HOLD THAT THE CASH IN HAND SHOWN BY THE APPELLANT WAS UNDISCLOSED CASH. THE AO IS DIRECTED TO DELETE THE ADDITION MADE BY HIM. THE GROUND NO. 3 IS ALLOWED.' 3. FOR THE REASONS SET OUT IN THE FOREGOING AND ADDITION OF RS.L,43,92,547/- IS HEREBY DELETED. GROUND NO. 1 IS THEREFORE ALLOWED.' 9. THE ASSESSING OFFICER HAS ALSO ASSESSED TO TAX THE CASH IN HAND UNDER THE WEALTH TAX ACT, AFTER REOPENING WEALTH TAX A NO OTHER ALTERNATIVE BUT TO ACCEPT THE GENUINENESS OF THE CLAIM OF SHRI SHYAMA PRASAD MURARKA TH AT THE CASH BOOK MAINTAINED BY HIM IS GENUINE. THE SUPPORTED BY STATEMENTS FROM SHR FROM DECLARED BANKS. THE LD. D/R, COULD NOT CONVERT THE FACTUAL FINDINGS OF THAT THE CASH BOOK OF SHRI SHYAMA PRASAD MURARKA IS GENUINE RECORD BY THE REVENUE TO CONTROVERT THE FACTUAL FINDINGS OF THE LD. CIT(A) IN THE CASE OF SHRI SHYAMA PRASAD MURARKA CASE OF SHRI SHYAMA PRASAD MURARKA, WHICH IS NOT CHAL TRIBUNAL, WE HAVE TO NECESSARILY ACCEPT THE CLAIM OF THE ASSESSE ADDITION, ON THE GROUND THAT THE CASH IN QUESTION WAS FROM CASH GIFTS RECEIVED BY THE ASSESSEE FROM HER FATHER-IN - 10. IN THE RESULT, THIS GRO UND OF THE ASSESSEE IS ALLOWED. 11. GROUND NO. 2 & 5 ARE AGAINST THE ADDITION MADE ON THE GROUND THAT THERE WAS UNDISCLOSED INVESTMENT IN JEWELLERY. 12. THE LD. COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THERE WAS A SEARCH CONDUCTED IN THE CASE OF MURARKA FA MILY IN THE YEAR 1987 AND THAT DURING THE COURSE OF SUCH SEARCH, JEWELLERY WAS FOUND AND INVENTORISED AND VALUATION REPORTS OBTAINED. THE ASSESSEE CLAIMED THAT THE DIAMOND JEWELLERY FOUND IN THE COURSE OF SEARCH IN THE YEAR 1987 WERE MADE IN WHITE METAL AN D THAT SUBSEQUENTLY THEY WERE 1989 WITH GOLD. HE POINTED OUT THAT THE TOTAL DIAMOND CARTAGE FOUND DURING THE COURSE OF SEARCH IN THE YEAR 1987 WAS 192.01 CKTS. AND SUBMITTED THAT CREDIT HAS TO BE GIVEN BY THE ASSESSING OFFICE R FOR THIS QUANTITY WHILE COMPUTING UNEXPLAINED INVESTMENT IN JEWELLERY FOUND DURING THE COURSE OF CURRENT SEARCH. EVIDENCE OF THIS JEWELLERY OF 1987, WAS SOLD OR DISPOSED OFF OTHERWISE. 7 UNDISCLOSED CASH. THE AO IS DIRECTED TO DELETE THE ADDITION MADE BY HIM. THE GROUND NO. 3 IS 3. FOR THE REASONS SET OUT IN THE FOREGOING AND FOLLOWING THE APPELLATE ORDER FOR AY 2007 IS HEREBY DELETED. GROUND NO. 1 IS THEREFORE ALLOWED.' THE ASSESSING OFFICER HAS ALSO ASSESSED TO TAX THE CASH IN HAND UNDER THE WEALTH TAX ACT, AFTER REOPENING WEALTH TAX A SSESSMENT OF THE ASSESSEE. ON THESE FACTS, WE HAVE NO OTHER ALTERNATIVE BUT TO ACCEPT THE GENUINENESS OF THE CLAIM OF SHRI SHYAMA PRASAD AT THE CASH BOOK MAINTAINED BY HIM IS GENUINE. THE GIFTS TO THE ASSESSEE SUPPORTED BY STATEMENTS FROM SHR I SHYAMA PRASAD MURARKA. THE CASH WITHDRAWALS ARE FROM DECLARED BANKS. THE LD. D/R, COULD NOT CONVERT THE FACTUAL FINDINGS OF THAT THE CASH BOOK OF SHRI SHYAMA PRASAD MURARKA IS GENUINE . NO EVIDENCE IS PLACED ON RECORD BY THE REVENUE TO CONTROVERT THE FACTUAL FINDINGS OF THE LD. CIT(A) IN THE CASE OF SHRI SHYAMA PRASAD MURARKA . IN VIEW OF THE FINDINGS OF THE REVENUE AUTHORITIES IN THE CASE OF SHRI SHYAMA PRASAD MURARKA, WHICH IS NOT CHAL LENGED IN APPEAL BEFORE THE TRIBUNAL, WE HAVE TO NECESSARILY ACCEPT THE CLAIM OF THE ASSESSE E AND DELETE THIS ADDITION, ON THE GROUND THAT THE CASH IN QUESTION WAS FROM CASH GIFTS RECEIVED BY THE - LAW. UND OF THE ASSESSEE IS ALLOWED. GROUND NO. 2 & 5 ARE AGAINST THE ADDITION MADE ON THE GROUND THAT THERE WAS UNDISCLOSED INVESTMENT IN JEWELLERY. THE LD. COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THERE WAS A SEARCH CONDUCTED IN MILY IN THE YEAR 1987 AND THAT DURING THE COURSE OF SUCH SEARCH, JEWELLERY WAS FOUND AND INVENTORISED AND VALUATION REPORTS OBTAINED. THE ASSESSEE CLAIMED THAT THE DIAMOND JEWELLERY FOUND IN THE COURSE OF SEARCH IN THE YEAR 1987 WERE D THAT SUBSEQUENTLY THEY WERE CONVERTED IN THE YEAR 1988 AND 1989 WITH GOLD. HE POINTED OUT THAT THE TOTAL DIAMOND CARTAGE FOUND DURING THE COURSE OF SEARCH IN THE YEAR 1987 WAS 192.01 CKTS. AND SUBMITTED THAT CREDIT HAS TO BE GIVEN BY R FOR THIS QUANTITY WHILE COMPUTING UNEXPLAINED INVESTMENT IN JEWELLERY FOUND DURING THE COURSE OF CURRENT SEARCH. HE POINTED OUT THAT THERE IS NO EVIDENCE OF THIS JEWELLERY OF 1987, WAS SOLD OR DISPOSED OFF OTHERWISE. I.T.A. NO. 55/KOL/2015 ASSESSMENT YEAR: 2012-13 PRABHADEVI MURARKA I.T.A. NO. 56/KOL/2015 ASSESSMENT YEAR: 2012-13 SHARMITA MURARKA I.T.A. NO. 57/KOL/2015 ASSESSMENT YEAR: 2012-13 SABITA DEY UNDISCLOSED CASH. THE AO IS DIRECTED TO DELETE THE ADDITION MADE BY HIM. THE GROUND NO. 3 IS [UNQUOTE] FOLLOWING THE APPELLATE ORDER FOR AY 2007 -08, THE THE ASSESSING OFFICER HAS ALSO ASSESSED TO TAX THE CASH IN HAND UNDER THE WEALTH SSESSMENT OF THE ASSESSEE. ON THESE FACTS, WE HAVE NO OTHER ALTERNATIVE BUT TO ACCEPT THE GENUINENESS OF THE CLAIM OF SHRI SHYAMA PRASAD GIFTS TO THE ASSESSEE ARE I SHYAMA PRASAD MURARKA. THE CASH WITHDRAWALS ARE FROM DECLARED BANKS. THE LD. D/R, COULD NOT CONVERT THE FACTUAL FINDINGS OF THE LD. CIT(A) . NO EVIDENCE IS PLACED ON RECORD BY THE REVENUE TO CONTROVERT THE FACTUAL FINDINGS OF THE LD. CIT(A) IN THE CASE OF . IN VIEW OF THE FINDINGS OF THE REVENUE AUTHORITIES IN THE LENGED IN APPEAL BEFORE THE E AND DELETE THIS ADDITION, ON THE GROUND THAT THE CASH IN QUESTION WAS FROM CASH GIFTS RECEIVED BY THE GROUND NO. 2 & 5 ARE AGAINST THE ADDITION MADE ON THE GROUND THAT THERE WAS THE LD. COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THERE WAS A SEARCH CONDUCTED IN MILY IN THE YEAR 1987 AND THAT DURING THE COURSE OF SUCH SEARCH, JEWELLERY WAS FOUND AND INVENTORISED AND VALUATION REPORTS OBTAINED. THE ASSESSEE CLAIMED THAT THE DIAMOND JEWELLERY FOUND IN THE COURSE OF SEARCH IN THE YEAR 1987 WERE IN THE YEAR 1988 AND 1989 WITH GOLD. HE POINTED OUT THAT THE TOTAL DIAMOND CARTAGE FOUND DURING THE COURSE OF SEARCH IN THE YEAR 1987 WAS 192.01 CKTS. AND SUBMITTED THAT CREDIT HAS TO BE GIVEN BY R FOR THIS QUANTITY WHILE COMPUTING UNEXPLAINED INVESTMENT IN HE POINTED OUT THAT THERE IS NO 12.1. THE LD. COUNSEL FOR THE ASSESSE DT. 11/05/1994 AND SUBMITTED THAT CREDIT HAS TO BE GIVEN FOR THE JEWELLERY HELD BY EACH OF THE PERSONS AS PER THE CIRCULAR. HE SUBMITTED THAT THERE WERE THREE MARRIED LADIES AND HENCE GOLD OF 500 G EACH SH CUSTOM, BY EACH OF THESE MARRIED LADIES AND GOLD OF 250 G EACH SHOULD BE THAT OF THE LONE UNMARRIED LADY. HE FURTHER CLAIMED THAT THE TWO MALE MEMBERS SHOULD BE DEEMED TO BE OWNERS AS PER CUS OF 1950 G SHOULD BE CONSIDERED AS EXPLAINED GOLD AND JEWELLERY . HE SUBMITTED A CHART ON THIS EXPLANATION. 12.1.1. THE LD. COUNSEL FOR THE ASSESSEE, POINTED OUT THESE CONTENTIONS OF THIS ON THE GROUND THAT THE ITEMS OF JEWELLERY FOUND IN THIS YEAR 1987 DID NOT TALLY WITH THE ITEMS OF JEWELLERY FOUND VEHEMENTLY CONTENTED THAT THE ITEM TO POSSIBLE SPECIFICALLY WHEN THE ITEMS OF JEWELLERY HAD UNDERGONE A CHANGE METAL WAS REPLACED BY GOLD BY THE ASSESSING OFFICER . HE POINTED OF SEARCH AND THEREAFTER, DID NOT FIND ANY OTHER JEWELLERY WITH THE FAMILY MEMBERS AND ALSO DID NOT FIND ANY EVIDENCE OF SALE THE FAMILY MEMBERS. HE FURT CHARGES, WHICH SUPPORTS THE CONTENTION OF THE ASSESSEE THAT THE JEWELLERY WAS REMADE AND THAT REMAKING CHARGES WERE IN FACT PROPOSITION THAT THE CBDT I AND BENEFIT OF THE SAME SHOULD BE GIVEN TO THE ASSESSEE BEFORE US, HE REPEATED THAT THE VERY SAME ARGUMENTS INVESTMENT IN JEWELLERY, MADE IN THE HANDS OF SMT. SHARMITA MURARKA AND SMT. PRABHA DEVI MURARKA. 13. THE LD. D/R, ON THE OTHER HAND, OPPOSED THE CONTENTIONS OF THE ASSESSEE AND SUBMITTED THAT NO CREDIT CAN BE GIVEN TO THE JEWELLERY FOUND FROM THE ASSESSEE D THE SEARCH CONDU CTED IN THE YEAR 1987, AS NONE OF THE ITEMS OF JEWELLERY FOUND D THAT TIME MATCHED WITH THE ITEMS OF JEWELLERY FOUND HE ARGUED THAT DIAMONDS ARE VALUED AS PER CARATS AND THESE CARATS ALSO DID NOT TALLY 8 THE LD. COUNSEL FOR THE ASSESSE E, FURTHER RELIED ON THE CBDT INSTRUCTION NO. 1916 DT. 11/05/1994 AND SUBMITTED THAT CREDIT HAS TO BE GIVEN FOR THE JEWELLERY HELD BY EACH OF THE PERSONS AS PER THE CIRCULAR. HE SUBMITTED THAT THERE WERE THREE MARRIED LADIES AND HENCE GOLD OF 500 G EACH SH OULD BE CONSIDERED, AS TO BE NORMALLY OWNED AS PER BY EACH OF THESE MARRIED LADIES AND GOLD OF 250 G EACH SHOULD BE LONE UNMARRIED LADY. HE FURTHER CLAIMED THAT THE TWO MALE MEMBERS SHOULD DEEMED TO BE OWNERS AS PER CUS TOMS, OF 100 G OF GOLD EACH. H ENCE GOLD TO THE EXTENT OF 1950 G SHOULD BE CONSIDERED AS EXPLAINED AS BEING HELD BY THE FAMILY AS . HE SUBMITTED A CHART ON THIS EXPLANATION. THE LD. COUNSEL FOR THE ASSESSEE, POINTED OUT THAT THE ASSESSING OFFICER REJECTED THESE CONTENTIONS OF THIS ON THE GROUND THAT THE ITEMS OF JEWELLERY FOUND IN WITH THE ITEMS OF JEWELLERY FOUND IN THE COURSE OF SEARCH. HE VEHEMENTLY CONTENTED THAT THE ITEM TO ITEM RECONCILIATION OVER THE PERIOD OF TIME, IS NOT WHEN THE ITEMS OF JEWELLERY HAD UNDERGONE A CHANGE THE CONVERSION CHARGES OF WHICH WAS TAXED AS UNEXPLAINED . HE POINTED OUT THAT THE REVENUE AUTHORITIES DURING THE COURSE OF SEARCH AND THEREAFTER, DID NOT FIND ANY OTHER JEWELLERY WITH THE FAMILY MEMBERS AND ALSO DID NOT FIND ANY EVIDENCE OF SALE OR OTHERWISE DISPOSING OFF THE JEWELLERY OF 1987 THE FAMILY MEMBERS. HE FURT HER POINTED OUT THAT THE ASSESSING OFFICER ADDED MAKING CHARGES, WHICH SUPPORTS THE CONTENTION OF THE ASSESSEE THAT THE JEWELLERY WAS REMADE WERE IN FACT INCURRED. HE RELIED ON CERTAIN DECISIONS FOR THE PROPOSITION THAT THE CBDT I NSTRUCTION NO. 1916, DT. 11/05/1994, SHOULD BE CONSIDERED AND BENEFIT OF THE SAME SHOULD BE GIVEN TO THE ASSESSEE . WITH THE HELP OF THE CHARTS FILED THAT THE VERY SAME ARGUMENTS ON THE ADDITION AS MADE IN THE HANDS OF SMT. SHARMITA MURARKA AND SMT. PRABHA THE LD. D/R, ON THE OTHER HAND, OPPOSED THE CONTENTIONS OF THE ASSESSEE AND SUBMITTED THAT NO CREDIT CAN BE GIVEN TO THE JEWELLERY FOUND FROM THE ASSESSEE D CTED IN THE YEAR 1987, AS NONE OF THE ITEMS OF JEWELLERY FOUND D MATCHED WITH THE ITEMS OF JEWELLERY FOUND DURING THE COURSE OF CURRENT SEARCH. ARE VALUED AS PER CARATS AND THESE CARATS ALSO DID NOT TALLY I.T.A. NO. 55/KOL/2015 ASSESSMENT YEAR: 2012-13 PRABHADEVI MURARKA I.T.A. NO. 56/KOL/2015 ASSESSMENT YEAR: 2012-13 SHARMITA MURARKA I.T.A. NO. 57/KOL/2015 ASSESSMENT YEAR: 2012-13 SABITA DEY E, FURTHER RELIED ON THE CBDT INSTRUCTION NO. 1916 DT. 11/05/1994 AND SUBMITTED THAT CREDIT HAS TO BE GIVEN FOR THE JEWELLERY HELD BY EACH OF THE PERSONS AS PER THE CIRCULAR. HE SUBMITTED THAT THERE WERE THREE MARRIED LADIES NORMALLY OWNED AS PER BY EACH OF THESE MARRIED LADIES AND GOLD OF 250 G EACH SHOULD BE CONSIDERED AS LONE UNMARRIED LADY. HE FURTHER CLAIMED THAT THE TWO MALE MEMBERS SHOULD ENCE GOLD TO THE EXTENT AS BEING HELD BY THE FAMILY AS CUSTOMARY THAT THE ASSESSING OFFICER REJECTED THESE CONTENTIONS OF THIS ON THE GROUND THAT THE ITEMS OF JEWELLERY FOUND IN THE SEARCH IN IN THE COURSE OF SEARCH. HE ITEM RECONCILIATION OVER THE PERIOD OF TIME, IS NOT WHEN THE ITEMS OF JEWELLERY HAD UNDERGONE A CHANGE , AS WHITE THE CONVERSION CHARGES OF WHICH WAS TAXED AS UNEXPLAINED OUT THAT THE REVENUE AUTHORITIES DURING THE COURSE OF SEARCH AND THEREAFTER, DID NOT FIND ANY OTHER JEWELLERY WITH THE FAMILY MEMBERS AND OR OTHERWISE DISPOSING OFF THE JEWELLERY OF 1987 BY HER POINTED OUT THAT THE ASSESSING OFFICER ADDED MAKING CHARGES, WHICH SUPPORTS THE CONTENTION OF THE ASSESSEE THAT THE JEWELLERY WAS REMADE INCURRED. HE RELIED ON CERTAIN DECISIONS FOR THE NSTRUCTION NO. 1916, DT. 11/05/1994, SHOULD BE CONSIDERED . WITH THE HELP OF THE CHARTS FILED ON THE ADDITION AS UNDISCLOSED MADE IN THE HANDS OF SMT. SHARMITA MURARKA AND SMT. PRABHA THE LD. D/R, ON THE OTHER HAND, OPPOSED THE CONTENTIONS OF THE ASSESSEE AND SUBMITTED THAT NO CREDIT CAN BE GIVEN TO THE JEWELLERY FOUND FROM THE ASSESSEE D URING CTED IN THE YEAR 1987, AS NONE OF THE ITEMS OF JEWELLERY FOUND D URING DURING THE COURSE OF CURRENT SEARCH. ARE VALUED AS PER CARATS AND THESE CARATS ALSO DID NOT TALLY ITEM -WISE. HE RELIED ON THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE ASSESSEE COULD NOT EXPLAIN WITH EVIDENCE, THE JEWELLERY FOUND DURING THE COURSE OF SEARCH. HE SUBMITTED THAT THE ASSESSING OFFICER WAS FAIR ENOUGH TO GRANT CREDIT TO THE EXTEN 18,50,000 OF JEWELLERY AS EXPLAINED. ON CBDT INSTRUCTION NO. 1916/1994, HE SUBMITTED THAT THE SAME CANNOT BE PRESSED INTO SERVICE BY THE ASSESSEE AS THE ASSESSING OFFICER HAD ALREADY GIVEN SUFFICIENT CREDIT TO THE ASSESSEE. HE PRAYED THAT THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY BE UPHELD ON THIS ISSUE FOR ALL THE THREE ASSESSEES. 13.1. IN REPLY, THE LD. COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE SEARCH REVEALED THAT THE STATUS OF THE ASSESSEE FAMILY AND THE CUSTOMS AND PRACTICES OF THE COMMUNITY ARE SUCH THAT CRED IT HAS TO BE GIVEN IN ANY CASE OF CUSTOMARY JEWELLERY, MUCH MORE THAN GUIDELINES PRESCRIBED IN CBDT INSTRUCTION NO. 1916/1994. HE RELIED ON CERTAIN CASE LAWS FOR THIS PROPOSITION, WHICH WE WOULD CONSIDER AS AND WHEN NECESSARY. 14. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: 15. THE CLAIM OF THE ASSESSEE IS THAT, DURING THE COURSE OF SEARCH IN THE YEAR 1987. THE REVENUE'S CASE IS THAT ITEM JEWELLERY COULD NOT BE TALLIED AND HENCE NO CREDIT CAN BE GIVEN. IN OUR VIEW, CREDIT HAS TO BE GIVEN FOR THE JEWELLERY FOUND REVENUE HAS NOT FOUND ANY EVIDENCE THAT THE ASSESSEE HAS SOLD SUCH JEWELLERY. THE CLAIM OF THE ASSESSEE THAT THE JEWELLERY WAS REMADE IS SUBSTANTIATED BY THE FACT THAT THE JEWEL LERY IN THE YEAR 1987 WAS MADE IN WHITE METAL WITH DIAMONDS AND WHEREAS THE JEWELLERY FOUND IN THE YEAR 2011 WAS MADE OF GOLD WITH DIAMONDS. VARIATIONS IN ITEMS ARE BOUND TO OCCUR, WHEN ITEMS ARE REMADE. HAS TAXED REMAKING CHARGES AS ASSESSEES. WHEN EXPENDITURE ON REMAKING CHARGES IS TAXED, THEN THE FACT THAT THE JEWELLERY IS REMADE HAS TO BE ACCEPTED. THE REVENUE, IT IS NOT OPEN TO REJECT FOR THE JEWELLERY FOUND DURING THE COURSE OF SEARCH IN THE YEAR 1987. IF SUCH CREDIT IS GIVEN, THE BALANCE JEWELLERY TO BE EXPLAINED 9 HE RELIED ON THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE ASSESSEE COULD NOT EXPLAIN WITH EVIDENCE, THE JEWELLERY FOUND DURING THE COURSE OF SEARCH. HE SUBMITTED THAT THE ASSESSING OFFICER WAS FAIR ENOUGH TO GRANT CREDIT TO THE EXTEN OF JEWELLERY AS EXPLAINED. ON CBDT INSTRUCTION NO. 1916/1994, HE SUBMITTED THAT THE SAME CANNOT BE PRESSED INTO SERVICE BY THE ASSESSEE AS THE ASSESSING OFFICER HAD ALREADY GIVEN SUFFICIENT CREDIT TO THE ASSESSEE. HE PRAYED THAT THE ORDER OF THE LD. FIRST APPELLATE AUTHORITY BE UPHELD ON THIS ISSUE FOR ALL THE THREE ASSESSEES. IN REPLY, THE LD. COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE SEARCH REVEALED THAT THE STATUS OF THE ASSESSEE FAMILY AND THE CUSTOMS AND PRACTICES OF THE COMMUNITY ARE IT HAS TO BE GIVEN IN ANY CASE OF CUSTOMARY JEWELLERY, MUCH MORE THAN GUIDELINES PRESCRIBED IN CBDT INSTRUCTION NO. 1916/1994. HE RELIED ON CERTAIN CASE LAWS FOR THIS PROPOSITION, WHICH WE WOULD CONSIDER AS AND WHEN NECESSARY. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: - THE CLAIM OF THE ASSESSEE IS THAT, CREDIT SHOULD BE GIVEN FOR THE JEWELLERY FOUND DURING THE COURSE OF SEARCH IN THE YEAR 1987. THE REVENUE'S CASE IS THAT ITEM JEWELLERY COULD NOT BE TALLIED AND HENCE NO CREDIT CAN BE GIVEN. IN OUR VIEW, CREDIT HAS TO BE GIVEN FOR THE JEWELLERY FOUND DURING THE COURSE OF SEARCH IN TH E YEAR 198 REVENUE HAS NOT FOUND ANY EVIDENCE THAT THE ASSESSEE HAS SOLD OR OTHERWISE DISPOSED OFF SUCH JEWELLERY. THE CLAIM OF THE ASSESSEE THAT THE JEWELLERY WAS REMADE IS SUBSTANTIATED LERY IN THE YEAR 1987 WAS MADE IN WHITE METAL WITH DIAMONDS AND WHEREAS THE JEWELLERY FOUND IN THE YEAR 2011 WAS MADE OF GOLD WITH DIAMONDS. VARIATIONS IN ITEMS ARE BOUND TO OCCUR, WHEN ITEMS ARE REMADE. THE ASSESSING OFFICER HAS TAXED REMAKING CHARGES AS UNEXPLAINED EXPENDITURE IN THE HANDS OF ALL THE THREE WHEN EXPENDITURE ON REMAKING CHARGES IS TAXED, THEN THE FACT THAT THE JEWELLERY IS REMADE HAS TO BE ACCEPTED. WHEN THERE IS NO CONTRARY EVIDENCE FOUND BY THE REVENUE, IT IS NOT OPEN TO REJECT THE CLAIM OF THE ASSESSEE, AND CREDIT HAS TO BE GIVEN FOR THE JEWELLERY FOUND DURING THE COURSE OF SEARCH IN THE YEAR 1987. IF SUCH CREDIT IS JEWELLERY TO BE EXPLAINED WOULD BE AS FOLLOWS:- I.T.A. NO. 55/KOL/2015 ASSESSMENT YEAR: 2012-13 PRABHADEVI MURARKA I.T.A. NO. 56/KOL/2015 ASSESSMENT YEAR: 2012-13 SHARMITA MURARKA I.T.A. NO. 57/KOL/2015 ASSESSMENT YEAR: 2012-13 SABITA DEY HE RELIED ON THE ORDER OF THE LD. CIT(A) AND SUBMITTED THAT THE ASSESSEE COULD NOT EXPLAIN WITH EVIDENCE, THE JEWELLERY FOUND DURING THE COURSE OF SEARCH. HE SUBMITTED THAT THE ASSESSING OFFICER WAS FAIR ENOUGH TO GRANT CREDIT TO THE EXTEN T OF OF JEWELLERY AS EXPLAINED. ON CBDT INSTRUCTION NO. 1916/1994, HE SUBMITTED THAT THE SAME CANNOT BE PRESSED INTO SERVICE BY THE ASSESSEE AS THE ASSESSING OFFICER HAD ALREADY GIVEN SUFFICIENT CREDIT TO THE ASSESSEE. HE PRAYED THAT THE ORDER OF THE LD. FIRST IN REPLY, THE LD. COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE SEARCH REVEALED THAT , THE STATUS OF THE ASSESSEE FAMILY AND THE CUSTOMS AND PRACTICES OF THE COMMUNITY ARE IT HAS TO BE GIVEN IN ANY CASE OF CUSTOMARY JEWELLERY, MUCH MORE THAN THE GUIDELINES PRESCRIBED IN CBDT INSTRUCTION NO. 1916/1994. HE RELIED ON CERTAIN CASE LAWS FOR THIS PROPOSITION, WHICH WE WOULD CONSIDER AS AND WHEN NECESSARY. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES CREDIT SHOULD BE GIVEN FOR THE JEWELLERY FOUND DURING THE COURSE OF SEARCH IN THE YEAR 1987. THE REVENUE'S CASE IS THAT ITEM -WISE JEWELLERY COULD NOT BE TALLIED AND HENCE NO CREDIT CAN BE GIVEN. IN OUR VIEW, CREDIT HAS TO E YEAR 198 7, AS THE OR OTHERWISE DISPOSED OFF SUCH JEWELLERY. THE CLAIM OF THE ASSESSEE THAT THE JEWELLERY WAS REMADE IS SUBSTANTIATED LERY IN THE YEAR 1987 WAS MADE IN WHITE METAL WITH DIAMONDS AND WHEREAS THE JEWELLERY FOUND IN THE YEAR 2011 WAS MADE OF GOLD WITH DIAMONDS. THE ASSESSING OFFICER UNEXPLAINED EXPENDITURE IN THE HANDS OF ALL THE THREE WHEN EXPENDITURE ON REMAKING CHARGES IS TAXED, THEN THE FACT THAT THE WHEN THERE IS NO CONTRARY EVIDENCE FOUND BY CREDIT HAS TO BE GIVEN FOR THE JEWELLERY FOUND DURING THE COURSE OF SEARCH IN THE YEAR 1987. IF SUCH CREDIT IS DIAMOND JEWELLERY FOUND DURING SEARCH IN 1987 JEWELLERY IN LOCKER NO. 619 JEWELLERY FOUND AT RESIDENCE TOTAL DIAMOND CARATAGE IN 1987 (A) DIAMOND FOUND IN 2011 (B) LESS: DIAMOND ALREADY ASSESSED DURING SEARCH OF 1987 (A) INCREASE IN DIAMOND (C) 15.1. THE ASSESSEE SUBMITS THAT THE INCREASE OF SHARMITA MURARKA, HAS BEEN ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS FOR THE FINANCIAL YEAR 2011- 12. THIS FACTUAL CLAIM IS NOT CONTROVERTED BY THE LD. D/R. THE ASSESSEE SUBMITT ED THAT THE INCREASE IN JEWELLERY COMPRISING OF 23.44 CARATS OF DIAMOND HAVE BEEN ACCOUNTED FOR IN THE BOOKS OF SMT. SHARMITA MURARKA, OVER THE YEARS. THE AVERAGE VALUE OF DIAMOND PER CARAT, AS PER THE VALUATION REPORT OF M/S BHIKAM CHAND BACCHAWAT, WAS CO NSIDERED AT RS.25,000/ THIS FACT IS ALSO NOT CONTROVERTED BY THE LD. D/R. NOW THE ISSUE IS WHETHER CREDIT HAS TO BE GIVEN AS PER THE CBDT INSTRUCTION NO. 1916/1994. 15.2. THIS BENCH OF THE TRIBUNAL IN THE CASE O NO. 40/KOL/2017, ORDER DT. 20/07/2018 HAS HELD AS FOLLOWS: '4. WE HAVE HEARD BOTH THE PARTIES REITERATING THEIR RESPECTIVE STAND AGAINST AND IN SUPPORT OF THE IMPUGNED ADDITION. THE SOLE QUESTION THAT ARISES FOR AUTHORITIES HAVE RIGHTLY HELD THE THE ASSESSEE TO BE NOT ENTITLED FOR CLAIMING RELIEF OF UPTO 500 GMS OF GOLD JEWELLERY AS PER CBDT CIRCULAR (SUPRA) OR NOT. WE FIND THIS QUESTION TO BE NO MORE RES INTEGRA AS A COORDIN ATE BENCH OF THIS TRIBUNAL'S DECISION IN SMT. SUCHITRA S.DHANANI, INDORE VS THE ACIT IN ITA NO.3014/AHD/2014 DECIDED ON 04.01.2018 HAS ADJUDICATED THE VERY ISSUE AGAINST THE REVENUE AS UNDER : '4. WE HAVE HEARD BOTH THE PARTIES REITERATING THEIR RESPECTIVE STANDS. CASE FILE PERUSED. THE SOLE QUESTION THAT ARISES FOR OUR ADJUDICATION IN THE INSTANT APPEAL IS AS TO WHETHER ASSESSEE'S JEWELLERY IN QUESTION NOT SEIZED DURING SEARCH COULD BE TAKEN AS EXPLAINED SINCE FALLING WITHIN THE PRESCRIBED QUANTITY UPTO 500 GRAMS AS PER CBDT'S ABOVESTATED CIRCULAR DATED 11.05.1994 (SUPRA). WE FIND THAT THIS QUESTION IS NO MORE RES INTEGRA AS PER A CO KHOKHARI YA ITA NO.2613/AHD/2009 DECIDED IN ASSESSEE'S FAVOUR ON 05.11.2015 QUOTING HON'BLE JURISDICTIONAL HIGH COURT'S JUDGMENT IN CIT VS. RATANLAL VYAPARILAL JAIN (2010) 235 CTR 568 (GUJ) AS FOLLOWS: '7.2 THE CBDT INSTRUCTION NO.1916 DATED 11.05.1994 SUGGESTS TH SUPPOSED TO HOLD CERTAIN JEWELLERY RECEIVED AT THE TIME OF MARRIAGES FROM 10 DIAMOND JEWELLERY FOUND DURING SEARCH IN 1987 KTS JEWELLERY IN LOCKER NO. 619 72.75 JEWELLERY FOUND AT RESIDENCE 119.26 TOTAL DIAMOND CARATAGE IN 1987 (A) 192.01 DIAMOND FOUND IN 2011 (B) ALREADY ASSESSED DURING SEARCH OF 1987 (A) INCREASE IN DIAMOND (C) THE ASSESSEE SUBMITS THAT THE INCREASE OF 635,000 IN THE JEWELLERY OF SMT. SHARMITA MURARKA, HAS BEEN ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS FOR THE FINANCIAL 12. THIS FACTUAL CLAIM IS NOT CONTROVERTED BY THE LD. D/R. THE ASSESSEE ED THAT THE INCREASE IN JEWELLERY COMPRISING OF 23.44 CARATS OF DIAMOND HAVE BEEN ACCOUNTED FOR IN THE BOOKS OF SMT. SHARMITA MURARKA, OVER THE YEARS. THE AVERAGE VALUE OF DIAMOND PER CARAT, AS PER THE VALUATION REPORT OF M/S BHIKAM CHAND NSIDERED AT RS.25,000/ - AND THE INCREASE WORKED OUT TO THIS FACT IS ALSO NOT CONTROVERTED BY THE LD. D/R. NOW THE ISSUE IS WHETHER CREDIT HAS TO BE GIVEN AS PER THE CBDT INSTRUCTION NO. THIS BENCH OF THE TRIBUNAL IN THE CASE O F SMT. RAJMATI KOTHARI VS. ACIT IN IT(SS)A NO. 40/KOL/2017, ORDER DT. 20/07/2018 HAS HELD AS FOLLOWS: - '4. WE HAVE HEARD BOTH THE PARTIES REITERATING THEIR RESPECTIVE STAND AGAINST AND IN SUPPORT OF THE IMPUGNED ADDITION. THE SOLE QUESTION THAT ARISES FOR ADJUDICAITON IS WHETHER BOTH THE LOWER AUTHORITIES HAVE RIGHTLY HELD THE THE ASSESSEE TO BE NOT ENTITLED FOR CLAIMING RELIEF OF UPTO 500 GMS OF GOLD JEWELLERY AS PER CBDT CIRCULAR (SUPRA) OR NOT. WE FIND THIS QUESTION TO BE NO MORE ATE BENCH OF THIS TRIBUNAL'S DECISION IN SMT. SUCHITRA S.DHANANI, INDORE VS THE ACIT IN ITA NO.3014/AHD/2014 DECIDED ON 04.01.2018 HAS ADJUDICATED THE VERY ISSUE AGAINST THE REVENUE AS UNDER : '4. WE HAVE HEARD BOTH THE PARTIES REITERATING THEIR RESPECTIVE STANDS. CASE FILE PERUSED. THE SOLE QUESTION THAT ARISES FOR OUR ADJUDICATION IN THE INSTANT APPEAL IS AS TO WHETHER ASSESSEE'S JEWELLERY IN QUESTION NOT SEIZED DURING SEARCH COULD BE TAKEN AS EXPLAINED SINCE FALLING WITHIN THE PRESCRIBED QUANTITY UPTO 500 GRAMS AS PER CBDT'S ABOVESTATED CIRCULAR DATED 11.05.1994 (SUPRA). WE FIND THAT THIS QUESTION IS NO MORE RES INTEGRA AS PER A CO - ORDINATE BENCH DECISION IN ACIT VS. SHRI JERAMBHAI B. YA ITA NO.2613/AHD/2009 DECIDED IN ASSESSEE'S FAVOUR ON 05.11.2015 QUOTING HON'BLE JURISDICTIONAL HIGH COURT'S JUDGMENT IN CIT VS. RATANLAL VYAPARILAL JAIN (2010) 235 CTR 568 (GUJ) AS FOLLOWS: '7.2 THE CBDT INSTRUCTION NO.1916 DATED 11.05.1994 SUGGESTS TH SUPPOSED TO HOLD CERTAIN JEWELLERY RECEIVED AT THE TIME OF MARRIAGES FROM I.T.A. NO. 55/KOL/2015 ASSESSMENT YEAR: 2012-13 PRABHADEVI MURARKA I.T.A. NO. 56/KOL/2015 ASSESSMENT YEAR: 2012-13 SHARMITA MURARKA I.T.A. NO. 57/KOL/2015 ASSESSMENT YEAR: 2012-13 SABITA DEY 215.45 192.01 23.44 635,000 IN THE JEWELLERY OF SMT. SHARMITA MURARKA, HAS BEEN ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS FOR THE FINANCIAL 12. THIS FACTUAL CLAIM IS NOT CONTROVERTED BY THE LD. D/R. THE ASSESSEE ED THAT THE INCREASE IN JEWELLERY COMPRISING OF 23.44 CARATS OF DIAMOND HAVE BEEN ACCOUNTED FOR IN THE BOOKS OF SMT. SHARMITA MURARKA, OVER THE YEARS. THE AVERAGE VALUE OF DIAMOND PER CARAT, AS PER THE VALUATION REPORT OF M/S BHIKAM CHAND AND THE INCREASE WORKED OUT TO 586,000. NOW THE ISSUE IS WHETHER CREDIT HAS TO BE GIVEN AS PER THE CBDT INSTRUCTION NO. F SMT. RAJMATI KOTHARI VS. ACIT IN IT(SS)A '4. WE HAVE HEARD BOTH THE PARTIES REITERATING THEIR RESPECTIVE STAND AGAINST AND IN SUPPORT OF ADJUDICAITON IS WHETHER BOTH THE LOWER AUTHORITIES HAVE RIGHTLY HELD THE THE ASSESSEE TO BE NOT ENTITLED FOR CLAIMING RELIEF OF UPTO 500 GMS OF GOLD JEWELLERY AS PER CBDT CIRCULAR (SUPRA) OR NOT. WE FIND THIS QUESTION TO BE NO MORE ATE BENCH OF THIS TRIBUNAL'S DECISION IN SMT. SUCHITRA S.DHANANI, INDORE VS THE ACIT IN ITA NO.3014/AHD/2014 DECIDED ON 04.01.2018 HAS ADJUDICATED THE VERY ISSUE '4. WE HAVE HEARD BOTH THE PARTIES REITERATING THEIR RESPECTIVE STANDS. CASE FILE PERUSED. THE SOLE QUESTION THAT ARISES FOR OUR ADJUDICATION IN THE INSTANT APPEAL IS AS TO WHETHER ASSESSEE'S JEWELLERY IN QUESTION NOT SEIZED DURING SEARCH COULD BE TAKEN AS EXPLAINED SINCE FALLING WITHIN THE PRESCRIBED QUANTITY UPTO 500 GRAMS AS PER CBDT'S ABOVESTATED CIRCULAR DATED 11.05.1994 (SUPRA). WE FIND THAT THIS QUESTION IS NO MORE ORDINATE BENCH DECISION IN ACIT VS. SHRI JERAMBHAI B. YA ITA NO.2613/AHD/2009 DECIDED IN ASSESSEE'S FAVOUR ON 05.11.2015 QUOTING HON'BLE JURISDICTIONAL HIGH COURT'S JUDGMENT IN CIT VS. RATANLAL VYAPARILAL JAIN '7.2 THE CBDT INSTRUCTION NO.1916 DATED 11.05.1994 SUGGESTS TH AT A FAMILY IS SUPPOSED TO HOLD CERTAIN JEWELLERY RECEIVED AT THE TIME OF MARRIAGES FROM PARENTS AND IN LAWS WITHIN THE LIMIT OF 500 GR. OF JEWELLERY FOR A MARRIED WOMAN, 250 GR. FOR UNMARRIED DAUGHTERS AND 100 GR. WITH UNMARRIED CHILD. THOUGH, THE INSTRUC OPERATION EXTENDED MEANING OF THE SAME SHOWS EXTENSION THAT THE JEWELLERY SHOULD BE TREATED AS EXPLAINED ONE AND IS NOT TO BE TREATED AS UNEXPLAINED FOR THE PURPOSE OF INCOME TAX. HON'BLE IT(SS)A.NO.40/KOL/ KOTHARI A.Y.2008 VYAPARILAL JAIN(2010) 235 CTR 0568 (GUJ) HAS HELD AS UNDER: 'THOUGH IT IS TRUE THAT THE CBDT CIRCULAR NO. 1916, DT.11TH MAY, 1994 LAYS DOWN GUIDELINES FOR SEIZUR SEARCH, THE SAME TAKES INTO ACCOUNT THE QUANTITY OF JEWELLERY WHICH WOULD GENERALLY BE HELD BY FAMILY MEMBERS OF AN ASSESSEE BELONGING TO AN ORDINARY HINDU HOUSEHOLD. THE APPROACH ADOPTED BY THE TRIBUNAL IN FOL SAID CIRCULAR AND GIVING BENEFIT TO THE ASSESSEE, EVEN FOR EXPLAINING THE SOURCE IN RESPECT OF THE JEWELLERY BEING HELD BY THE FAMILY IS IN CONSONANCE WITH THE GENERAL PRACTICE IN HINDU FAMILIES WHEREBY JEWELLERY IS GIFTED BY THE RELATIVES AND F BIRTHDAYS, MARRIAGE ANNIVERSARY AND OTHER FESTIVALS. THESE GIFTS ARE CUSTOMARY AND CUSTOMS PREVAILING IN A SOCIETY CANNOT BE IGNORED. THUS ALTHOUGH THE CIRCULAR HAD BEEN ISSUED FOR THE PURPOSE OF NON JEWELLERY DURING THE COURSE OF SEARCH, THE BASIS FOR THE SAME RECOGNIZES CUSTOMS PREVAILING IN HINDU SOCIETY. IN THE CIRCUMSTANCES, UNLESS THE REVENUE SHOWS ANYTHING TO THE CONTRARY, IT CAN SAFELY BE PRESUMED THAT THE SOURCE TO THE EXTENT OF T THUS, THE APPROACH ADOPTED BY THE TRIBUNAL IN CONSIDERING THE EXTENT OF JEWELLERY SPECIFIED UNDER THE SAID CIRCULAR TOBE A REASONABLE QUANTITY, CANNOT BE FAULTED WITH. IN THE CIRCUMSTANCES, IT IS NOT PO THE TRIBUNAL HAS COMMITTED ANY LEGAL ERROR SO AS TO GIVE RISE TO A QUESTION OF LAW.' FROM GOING THROUGH THE ABOVE JUDICIAL PRONOUNCEMENT, IT IS AMPLE CLEAR THAT GOLD JEWELLERY FOUND TO THE EXTENT OF LIMIT MENTIONED IN THE CIRCULAR IS AND THIS CAN BE CLEARLY APPLIED ON THE ASSESSEE'S CASE, WHEREIN NO SPECIFIC DEDUCTION OF GOLD JEWELLERY POSSESSED BY FAMILY MEMBERS AND GRAND CHILDREN WAS GIVEN BY THE ASSESSING OFFICER FROM THE TOTAL GOLD JEWELLERY FOUND AT THE TIME O OPERATION AND DIFFERENTIAL GOLD JEWELLERY OF 1924.22 GR. IS THE GOLD JEWELLERY POSSESSED BY THE FEMALE MEMBERS AND MINOR CHILDREN OF THE ASSESSEE'S JOINT FAMILY AND THIS QUANTITY OF 1924.22 GR. IS WELL WITHIN THE TOTAL LIMIT OF JEWELLE CBDT INSTRUCTION NO.1916 DATED 11.05.1994. THEREFORE BY RESPECTFULLY FOLLOWING THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN CASE OF CIT VS. RATANLAL VYAPARILAL JAIN (SUPRA) AND IN VIEW OF OUR DISCUSSIONS MADE ABOVE, WE FIN THE CIT(A) SO AS TO WARRANT INTERFERENCE AND ACCORDINGLY, THE GROUNDS TAKEN BY THE REVENUE ARE REJECTED. ACCORDINGLY APPEAL OF THE REVENUE IS DISMISSED.' IT IS THEREFORE CLEAR THAT GOLD JEWELLERY FOUND UPTO THE ABOVESTATED Q GRAMS IS TO BE TREATED AS EXPLAINED AS PER THE BOARD'S CIRCULAR HEREINABOVE. WE THEREFORE DELETE THE IMPUGNED ADDITION OF RS.6,71,113/ AUTHORITIES. 5. THIS ASSESSEE'S APPEAL IS ALLOWED.' 5. WE ADOPT THE ABOVE EXTRA ACCEPT ASSESSEE'S CLAIM UPTO 500 GMS OF GOLD JEWELLERY AS EXPLAINED AS PER CBDT CIRCULAR HEREINABOVE TO BE FOLLOWED BY NECESSARY COMPUTATION AS PER LAW.' 11 PARENTS AND IN LAWS WITHIN THE LIMIT OF 500 GR. OF JEWELLERY FOR A MARRIED WOMAN, 250 GR. FOR UNMARRIED DAUGHTERS AND 100 GR. WITH UNMARRIED CHILD. THOUGH, THE INSTRUC TION SPEAKS OF NOT SEIZING THE SAME DURING SEARCH OPERATION EXTENDED MEANING OF THE SAME SHOWS EXTENSION THAT THE JEWELLERY SHOULD BE TREATED AS EXPLAINED ONE AND IS NOT TO BE TREATED AS UNEXPLAINED FOR THE PURPOSE OF INCOME TAX. HON'BLE IT(SS)A.NO.40/KOL/ 2017 SMT. RAJMATI KOTHARI A.Y.2008 - 09 5 JURISDICTIONAL HIGH COURT IN CASE OF CIT VS. RATANLAL VYAPARILAL JAIN(2010) 235 CTR 0568 (GUJ) HAS HELD AS UNDER: 'THOUGH IT IS TRUE THAT THE CBDT CIRCULAR NO. 1916, DT.11TH MAY, 1994 LAYS DOWN GUIDELINES FOR SEIZUR E OF JEWELLERY AND ORNAMENTS IN THE COURSE OF SEARCH, THE SAME TAKES INTO ACCOUNT THE QUANTITY OF JEWELLERY WHICH WOULD GENERALLY BE HELD BY FAMILY MEMBERS OF AN ASSESSEE BELONGING TO AN ORDINARY HINDU HOUSEHOLD. THE APPROACH ADOPTED BY THE TRIBUNAL IN FOL SAID CIRCULAR AND GIVING BENEFIT TO THE ASSESSEE, EVEN FOR EXPLAINING THE SOURCE IN RESPECT OF THE JEWELLERY BEING HELD BY THE FAMILY IS IN CONSONANCE WITH THE GENERAL PRACTICE IN HINDU FAMILIES WHEREBY JEWELLERY IS GIFTED BY THE RELATIVES AND F RIENDS AT THE TIME OF SOCIAL FUNCTIONS, VIZ., MARRIAGES, BIRTHDAYS, MARRIAGE ANNIVERSARY AND OTHER FESTIVALS. THESE GIFTS ARE CUSTOMARY AND CUSTOMS PREVAILING IN A SOCIETY CANNOT BE IGNORED. THUS ALTHOUGH THE CIRCULAR HAD BEEN ISSUED FOR THE PURPOSE OF NON JEWELLERY DURING THE COURSE OF SEARCH, THE BASIS FOR THE SAME RECOGNIZES CUSTOMS PREVAILING IN HINDU SOCIETY. IN THE CIRCUMSTANCES, UNLESS THE REVENUE SHOWS ANYTHING TO THE CONTRARY, IT CAN SAFELY BE PRESUMED THAT THE SOURCE TO THE EXTENT OF T HE JEWELLERY STATED IN THE CIRCULAR STANDS EXPLAINED. THUS, THE APPROACH ADOPTED BY THE TRIBUNAL IN CONSIDERING THE EXTENT OF JEWELLERY SPECIFIED UNDER THE SAID CIRCULAR TOBE A REASONABLE QUANTITY, CANNOT BE FAULTED WITH. IN THE CIRCUMSTANCES, IT IS NOT PO SSIBLE TO STATE THAT THE TRIBUNAL HAS COMMITTED ANY LEGAL ERROR SO AS TO GIVE RISE TO A QUESTION OF FROM GOING THROUGH THE ABOVE JUDICIAL PRONOUNCEMENT, IT IS AMPLE CLEAR THAT GOLD JEWELLERY FOUND TO THE EXTENT OF LIMIT MENTIONED IN THE CIRCULAR IS TREATED AS EXPLAINED AND THIS CAN BE CLEARLY APPLIED ON THE ASSESSEE'S CASE, WHEREIN NO SPECIFIC DEDUCTION OF GOLD JEWELLERY POSSESSED BY FAMILY MEMBERS AND GRAND CHILDREN WAS GIVEN BY THE ASSESSING OFFICER FROM THE TOTAL GOLD JEWELLERY FOUND AT THE TIME O F SEARCH AND SEIZURE OPERATION AND DIFFERENTIAL GOLD JEWELLERY OF 1924.22 GR. IS THE GOLD JEWELLERY POSSESSED BY THE FEMALE MEMBERS AND MINOR CHILDREN OF THE ASSESSEE'S JOINT FAMILY AND THIS QUANTITY OF 1924.22 GR. IS WELL WITHIN THE TOTAL LIMIT OF JEWELLE RY AT 2100 GR. AS PER THE CBDT INSTRUCTION NO.1916 DATED 11.05.1994. THEREFORE BY RESPECTFULLY FOLLOWING THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN CASE OF CIT VS. RATANLAL VYAPARILAL JAIN (SUPRA) AND IN VIEW OF OUR DISCUSSIONS MADE ABOVE, WE FIN D NO INFIRMITY IN THE ORDER OF THE CIT(A) SO AS TO WARRANT INTERFERENCE AND ACCORDINGLY, THE GROUNDS TAKEN BY THE REVENUE ARE REJECTED. ACCORDINGLY APPEAL OF THE REVENUE IS DISMISSED.' IT IS THEREFORE CLEAR THAT GOLD JEWELLERY FOUND UPTO THE ABOVESTATED Q GRAMS IS TO BE TREATED AS EXPLAINED AS PER THE BOARD'S CIRCULAR HEREINABOVE. WE THEREFORE DELETE THE IMPUGNED ADDITION OF RS.6,71,113/ - MADE BY BOTH THE LOWER 5. THIS ASSESSEE'S APPEAL IS ALLOWED.' 5. WE ADOPT THE ABOVE EXTRA CTED REASONING MUTATIS MUTANDIS AND DIRECT THE ASSESSING OFFICER TO ACCEPT ASSESSEE'S CLAIM UPTO 500 GMS OF GOLD JEWELLERY AS EXPLAINED AS PER CBDT CIRCULAR HEREINABOVE TO BE FOLLOWED BY NECESSARY COMPUTATION AS PER LAW.' I.T.A. NO. 55/KOL/2015 ASSESSMENT YEAR: 2012-13 PRABHADEVI MURARKA I.T.A. NO. 56/KOL/2015 ASSESSMENT YEAR: 2012-13 SHARMITA MURARKA I.T.A. NO. 57/KOL/2015 ASSESSMENT YEAR: 2012-13 SABITA DEY PARENTS AND IN LAWS WITHIN THE LIMIT OF 500 GR. OF JEWELLERY FOR A MARRIED WOMAN, 250 GR. FOR UNMARRIED DAUGHTERS AND 100 GR. WITH UNMARRIED CHILD. TION SPEAKS OF NOT SEIZING THE SAME DURING SEARCH OPERATION EXTENDED MEANING OF THE SAME SHOWS EXTENSION THAT THE JEWELLERY SHOULD BE TREATED AS EXPLAINED ONE AND IS NOT TO BE TREATED AS UNEXPLAINED FOR 2017 SMT. RAJMATI 09 5 JURISDICTIONAL HIGH COURT IN CASE OF CIT VS. RATANLAL VYAPARILAL JAIN(2010) 235 CTR 0568 (GUJ) HAS HELD AS UNDER: 'THOUGH IT IS TRUE THAT THE CBDT CIRCULAR NO. 1916, DT.11TH MAY, 1994 LAYS E OF JEWELLERY AND ORNAMENTS IN THE COURSE OF SEARCH, THE SAME TAKES INTO ACCOUNT THE QUANTITY OF JEWELLERY WHICH WOULD GENERALLY BE HELD BY FAMILY MEMBERS OF AN ASSESSEE BELONGING TO AN ORDINARY HINDU HOUSEHOLD. THE APPROACH ADOPTED BY THE TRIBUNAL IN FOL LOWING THE SAID CIRCULAR AND GIVING BENEFIT TO THE ASSESSEE, EVEN FOR EXPLAINING THE SOURCE IN RESPECT OF THE JEWELLERY BEING HELD BY THE FAMILY IS IN CONSONANCE WITH THE GENERAL PRACTICE IN HINDU FAMILIES WHEREBY JEWELLERY IS GIFTED BY RIENDS AT THE TIME OF SOCIAL FUNCTIONS, VIZ., MARRIAGES, BIRTHDAYS, MARRIAGE ANNIVERSARY AND OTHER FESTIVALS. THESE GIFTS ARE CUSTOMARY AND CUSTOMS PREVAILING IN A SOCIETY CANNOT BE IGNORED. THUS ALTHOUGH THE CIRCULAR HAD BEEN ISSUED FOR THE PURPOSE OF NON - SEIZURE OF JEWELLERY DURING THE COURSE OF SEARCH, THE BASIS FOR THE SAME RECOGNIZES CUSTOMS PREVAILING IN HINDU SOCIETY. IN THE CIRCUMSTANCES, UNLESS THE REVENUE SHOWS ANYTHING TO THE CONTRARY, IT CAN SAFELY BE PRESUMED THAT THE HE JEWELLERY STATED IN THE CIRCULAR STANDS EXPLAINED. THUS, THE APPROACH ADOPTED BY THE TRIBUNAL IN CONSIDERING THE EXTENT OF JEWELLERY SPECIFIED UNDER THE SAID CIRCULAR TOBE A REASONABLE QUANTITY, SSIBLE TO STATE THAT THE TRIBUNAL HAS COMMITTED ANY LEGAL ERROR SO AS TO GIVE RISE TO A QUESTION OF FROM GOING THROUGH THE ABOVE JUDICIAL PRONOUNCEMENT, IT IS AMPLE CLEAR THAT GOLD TREATED AS EXPLAINED AND THIS CAN BE CLEARLY APPLIED ON THE ASSESSEE'S CASE, WHEREIN NO SPECIFIC DEDUCTION OF GOLD JEWELLERY POSSESSED BY FAMILY MEMBERS AND GRAND CHILDREN WAS GIVEN BY THE F SEARCH AND SEIZURE OPERATION AND DIFFERENTIAL GOLD JEWELLERY OF 1924.22 GR. IS THE GOLD JEWELLERY POSSESSED BY THE FEMALE MEMBERS AND MINOR CHILDREN OF THE ASSESSEE'S JOINT FAMILY AND THIS RY AT 2100 GR. AS PER THE CBDT INSTRUCTION NO.1916 DATED 11.05.1994. THEREFORE BY RESPECTFULLY FOLLOWING THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN CASE OF CIT VS. RATANLAL VYAPARILAL JAIN D NO INFIRMITY IN THE ORDER OF THE CIT(A) SO AS TO WARRANT INTERFERENCE AND ACCORDINGLY, THE GROUNDS TAKEN BY THE REVENUE ARE REJECTED. ACCORDINGLY APPEAL OF THE REVENUE IS DISMISSED.' IT IS THEREFORE CLEAR THAT GOLD JEWELLERY FOUND UPTO THE ABOVESTATED Q UANTITY OF 500 GRAMS IS TO BE TREATED AS EXPLAINED AS PER THE BOARD'S CIRCULAR HEREINABOVE. MADE BY BOTH THE LOWER CTED REASONING MUTATIS MUTANDIS AND DIRECT THE ASSESSING OFFICER TO ACCEPT ASSESSEE'S CLAIM UPTO 500 GMS OF GOLD JEWELLERY AS EXPLAINED AS PER CBDT CIRCULAR 15.3. RESPECTFULLY FOLLOWING THE PROPOSITIONS OF LAW LAID DOWN IN THIS CASE DIRECT THE ASSESSING OFFICER TO GIVE CREDIT OF 500 G TO EACH OF THE THREE MARRIED LADIES, 250 G FOR THE LONE UNMARRIED LADY AND 100 G FOR EACH OF THE MALE MEMBERS OF THE MURARKA FAMI LY, TOTALLING TO 1950 G OF GOLD AS CUSTOMARY GOLD HELD BY THE FAMILY AS PER CBDT CIRCULAR NO. 1916, D. 11/05/1994. 16. IN VIEW OF THE ABOVE DISCUSSION AND TAKING INTO ACCOUNT THAT THE JEWELLERY WORTH RS.19,50,000/- WAS GIFTED TO THE ASSESSEE BY HER HUS JEWELLERY FOUND DURING THE COURSE OF SEARCH IS EXPLAINED IN THE HANDS OF SMT. SHARMITA MURARKA AND OF SMT. PRABHA DEVI MURARKA. THUS, THE ADDITION MADE OF RS.63,49,395/ AND RS.47,65,945/- MADE ON ACCOUNT UNEXPLAINED INVESTMEN DELETED. 17. W NOW TAKE UP GROUND NO. 3 REGARDING UNEXPLAINED EXPENDITURE INCURRED FOR JEWELLERY MAKING CHARGES. IN VIEW OF OUR ABOVE DISCUSSION, WE DISMISS THIS GROUND OF THE ASSESSEE AND CONFIRM THIS ADDITION. 18. GROUND NO. 4 I S ON THE DISALLOWANCE U/S 14A R.W.S. 8D. 18.1. AS THE UNDISPUTED FACT IS THAT THE ASSESSEE HAS NOT EARNED ANY EXEMPT INCOME DURING THE YEAR, NO DISALLOWANCE CAN BE MADE U/S 14A R.W.R. 8D AS HELD BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SECURITIES LTD IN ITAT 100 OF 2014/GA 2122 OF 2014 ACCORDINGLY, GROUND NO. 4 OF THE ASSESSEE IS ALLOWED. 19. GROUND NO. 6 & 7 ARE GENERAL IN NATURE. 20. WE NOW TAKE UP THE APPEAL IN THE 55/KOL/2015. 21. GROUND NO. 1 IS ON THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN GOLD AND JEWELLERY. IN VIEW OF OUR DISCUSSION WHILE DISPOSING OFF GROUND NO. 2 TO 5 IN THE CASE OF SMT. SHARMITA MURA RKA IN ITA NO. 56/KOL/2015, THE ADDITION IS HEREBY DELETED AND GROUND NO. 1 OF THE ASSESSEE IS ALLOWED. 22. GROUND NO. 2 IS DISMISSED FOR THE SAME REASONS AS GIVEN IN ITA NO. 56/KOL/2015. 23. GROUND NO. 3, IS ON THE DISALLOWANCE U/S 14A R.W.R. 8D. 12 RESPECTFULLY FOLLOWING THE PROPOSITIONS OF LAW LAID DOWN IN THIS CASE DIRECT THE ASSESSING OFFICER TO GIVE CREDIT OF 500 G TO EACH OF THE THREE MARRIED LADIES, 250 G FOR THE LONE UNMARRIED LADY AND 100 G FOR EACH OF THE MALE MEMBERS OF THE LY, TOTALLING TO 1950 G OF GOLD AS CUSTOMARY GOLD HELD BY THE FAMILY AS PER CBDT CIRCULAR NO. 1916, D. 11/05/1994. IN VIEW OF THE ABOVE DISCUSSION AND TAKING INTO ACCOUNT THAT THE JEWELLERY WORTH WAS GIFTED TO THE ASSESSEE BY HER HUS BAND, WE FIND THAT THE ENTIRE JEWELLERY FOUND DURING THE COURSE OF SEARCH IS EXPLAINED IN THE HANDS OF SMT. SHARMITA SMT. PRABHA DEVI MURARKA. THUS, THE ADDITION MADE OF RS.63,49,395/ MADE ON ACCOUNT UNEXPLAINED INVESTMEN T IN JEWELLERY, IS HEREBY W NOW TAKE UP GROUND NO. 3 REGARDING UNEXPLAINED EXPENDITURE INCURRED FOR JEWELLERY MAKING CHARGES. IN VIEW OF OUR ABOVE DISCUSSION, WE DISMISS THIS GROUND OF THE ASSESSEE AND CONFIRM THIS ADDITION. S ON THE DISALLOWANCE U/S 14A R.W.S. 8D. AS THE UNDISPUTED FACT IS THAT THE ASSESSEE HAS NOT EARNED ANY EXEMPT INCOME DURING THE YEAR, NO DISALLOWANCE CAN BE MADE U/S 14A R.W.R. 8D AS HELD BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF COMMI SSIONER OF INCOME TAX VS M/S ITAT 100 OF 2014/GA 2122 OF 2014 JUDGMENT DT. 1 ACCORDINGLY, GROUND NO. 4 OF THE ASSESSEE IS ALLOWED. GROUND NO. 6 & 7 ARE GENERAL IN NATURE. WE NOW TAKE UP THE APPEAL IN THE CASE OF SMT. PRABHA DEVI MURARKA IN ITA NO. GROUND NO. 1 IS ON THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN IN VIEW OF OUR DISCUSSION WHILE DISPOSING OFF GROUND NO. 2 TO 5 IN THE RKA IN ITA NO. 56/KOL/2015, THE ADDITION IS HEREBY DELETED AND GROUND NO. 1 OF THE ASSESSEE IS ALLOWED. GROUND NO. 2 IS DISMISSED FOR THE SAME REASONS AS GIVEN IN ITA NO. 56/KOL/2015. GROUND NO. 3, IS ON THE DISALLOWANCE U/S 14A R.W.R. 8D. I.T.A. NO. 55/KOL/2015 ASSESSMENT YEAR: 2012-13 PRABHADEVI MURARKA I.T.A. NO. 56/KOL/2015 ASSESSMENT YEAR: 2012-13 SHARMITA MURARKA I.T.A. NO. 57/KOL/2015 ASSESSMENT YEAR: 2012-13 SABITA DEY RESPECTFULLY FOLLOWING THE PROPOSITIONS OF LAW LAID DOWN IN THIS CASE -LAW, WE DIRECT THE ASSESSING OFFICER TO GIVE CREDIT OF 500 G TO EACH OF THE THREE MARRIED LADIES, 250 G FOR THE LONE UNMARRIED LADY AND 100 G FOR EACH OF THE MALE MEMBERS OF THE LY, TOTALLING TO 1950 G OF GOLD AS CUSTOMARY GOLD HELD BY THE FAMILY AS PER IN VIEW OF THE ABOVE DISCUSSION AND TAKING INTO ACCOUNT THAT THE JEWELLERY WORTH BAND, WE FIND THAT THE ENTIRE JEWELLERY FOUND DURING THE COURSE OF SEARCH IS EXPLAINED IN THE HANDS OF SMT. SHARMITA SMT. PRABHA DEVI MURARKA. THUS, THE ADDITION MADE OF RS.63,49,395/ - T IN JEWELLERY, IS HEREBY W NOW TAKE UP GROUND NO. 3 REGARDING UNEXPLAINED EXPENDITURE INCURRED FOR JEWELLERY MAKING CHARGES. IN VIEW OF OUR ABOVE DISCUSSION, WE DISMISS THIS GROUND OF AS THE UNDISPUTED FACT IS THAT THE ASSESSEE HAS NOT EARNED ANY EXEMPT INCOME DURING THE YEAR, NO DISALLOWANCE CAN BE MADE U/S 14A R.W.R. 8D AS HELD BY THE HON'BLE SSIONER OF INCOME TAX VS M/S ASHIKA GLOBAL JUDGMENT DT. 1 1 JUNE, 2018. CASE OF SMT. PRABHA DEVI MURARKA IN ITA NO. GROUND NO. 1 IS ON THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN IN VIEW OF OUR DISCUSSION WHILE DISPOSING OFF GROUND NO. 2 TO 5 IN THE RKA IN ITA NO. 56/KOL/2015, THE ADDITION IS HEREBY DELETED GROUND NO. 2 IS DISMISSED FOR THE SAME REASONS AS GIVEN IN ITA NO. 56/KOL/2015. 23.1. AS THE ASSESSEE HAS NOT EARNED ANY DIVIDEND INCOME, THE DISA HEREBY DELETED IN VIEW OF THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURTS DECISION IS THE CASE OF M/S ASHIKA GLOBAL SECURITIES LTD 24. GROUND NOS. 4 & 5 ARE 25. WE NOW TAKE UP THE APPEAL IN THE CASE OF SMT. SABITA DEY IN ITA NO. 57/KOL/2015. 26. GROUND NO. 1, IS AGAINST THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENTS IN GOLD AND JEWELLERY OF RS.42,29,184/ 27. LOCKER NO. 238 , WHERE THIS GOLD WAS FOUND IS HELD UNDER THE JOINT NAMES OF SMT. SABITA DEY AND SMT. SHARMITA MURARKA. JEWELLERY HAVING GOLD CONTENT OF 662.42 GMS AND DIAMOND OF 80.6 CARATS VALUED AT RS.45,29,184/ DEY BY THE AUTHORITI ES AND A SEPARATE INVENTORY OF THE SAME WAS PREPARED. THE ASSESSING OFFICER CONSIDERED THE STATUS OF THE FAMILY AND THE CUSTOMS AND ALLOWED CREDIT FOR THE SAME OF RS.3,00,000/ HAVE BEEN RECEIVED BY THE ASSESSEE AT THE TIME OF HER MARRIAGE. THE BALANCE AMOUNT OF 4,229,184/- WAS ASSESSED IN HER HANDS. THE LD COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSEE WAS A WIDOW AND DUE TO HER OLD AGE, SHE HAD LOST DEPENDENT ON HER DA UGHTER SMT. SHARMITA MURARKA. HE SUBMITTED THAT THE ASSESSEE, SMT. SABITA DEY, WAS THE DAUGHTER OF LATE SHRI U.C. LAW, HONBLE JUDGE OF THE CALCUTTA HIGH COURT AND WAS MARRIED TO THE DEY FAMILY, IN THE YEAR 1962. HE SUBMITTED THAT THE DEY FAMILY WAS WELL E STABLISHED IN BUSINESS AND THAT THE ASSESSEE THE FIRST DIRECTOR OF BATA SHOE COMPANY AND THAT HER HUSBAND WAS A RENOWNED ARCHITECT. HE SUBMITTED THAT ON THESE FACTS IT CAN BE CONCLUDED THAT THE ASSESSEE BELONGS TO A REPUTED FAMILY HA VING HIGH SOCIAL STATUS AND SOUND FINANCIAL BACKGROUND AND THAT HER CLAIM OF HAVING ACQUIRED JEWELLERY FROM THE TIME OF HER MARRIAGE HAS TO BE BELIEVED. MERE NON- FILING OF WEALTH TAX RETURNS DOES NOT TAKE JEWELLERY FOUND IN THE LOCKER IN THE YEAR 2011 WAS UNDISCLOSED INVESTMENT. HE RELIED ON CERTAIN CASE- LAW IN SUPPORT OF HIS CONTENTION THAT A HIGH ALLOWANCE OF GOLD JEWELLERY SHOULD BE GIVEN KEEPING IN VIEW SOCIAL STATUS OF THE FAMILY AND THE LONGEVITY OF THE MARRIAGE. 13 THE ASSESSEE HAS NOT EARNED ANY DIVIDEND INCOME, THE DISA HEREBY DELETED IN VIEW OF THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURTS ASHIKA GLOBAL SECURITIES LTD . (SUPRA) GROUND NOS. 4 & 5 ARE DISMISSED AS GENERAL IN NATURE. WE NOW TAKE UP THE APPEAL IN THE CASE OF SMT. SABITA DEY IN ITA NO. GROUND NO. 1, IS AGAINST THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENTS IN GOLD AND JEWELLERY OF RS.42,29,184/ -. , WHERE THIS GOLD WAS FOUND IS HELD UNDER THE JOINT NAMES OF SMT. SABITA DEY AND SMT. SHARMITA MURARKA. JEWELLERY HAVING GOLD CONTENT OF 662.42 GMS AND DIAMOND OF 80.6 CARATS VALUED AT RS.45,29,184/ - , WAS FOUND BELONGING TO SMT. SABITA ES AND A SEPARATE INVENTORY OF THE SAME WAS PREPARED. THE ASSESSING OFFICER CONSIDERED THE STATUS OF THE FAMILY AND THE CUSTOMS AND ALLOWED CREDIT FOR THE SAME OF RS.3,00,000/ - TOWARDS JEWELLERY, ON THE GROUND THAT THE SAME WOULD ASSESSEE AT THE TIME OF HER MARRIAGE. THE BALANCE AMOUNT OF WAS ASSESSED IN HER HANDS. THE LD COUNSEL FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSEE WAS A WIDOW AND DUE TO HER OLD AGE, SHE HAD LOST HER VISION AND WAS SOLELY UGHTER SMT. SHARMITA MURARKA. HE SUBMITTED THAT THE ASSESSEE, SMT. SABITA DEY, WAS THE DAUGHTER OF LATE SHRI U.C. LAW, HONBLE JUDGE OF THE CALCUTTA HIGH COURT AND WAS MARRIED TO THE DEY FAMILY, IN THE YEAR 1962. HE SUBMITTED THAT THE STABLISHED IN BUSINESS AND THAT THE ASSESSEE S IS FATHER THE FIRST DIRECTOR OF BATA SHOE COMPANY AND THAT HER HUSBAND WAS A RENOWNED ARCHITECT. HE SUBMITTED THAT ON THESE FACTS IT CAN BE CONCLUDED THAT THE ASSESSEE BELONGS TO A VING HIGH SOCIAL STATUS AND SOUND FINANCIAL BACKGROUND AND THAT HER CLAIM OF HAVING ACQUIRED JEWELLERY FROM THE TIME OF HER MARRIAGE HAS TO BE BELIEVED. FILING OF WEALTH TAX RETURNS DOES NOT TAKE ONE TO A CONCLUSION THAT THE LOCKER IN THE YEAR 2011 WAS UNDISCLOSED INVESTMENT. HE RELIED ON LAW IN SUPPORT OF HIS CONTENTION THAT A HIGH ALLOWANCE OF GOLD JEWELLERY SHOULD BE GIVEN KEEPING IN VIEW SOCIAL STATUS OF THE FAMILY AND THE LONGEVITY OF THE I.T.A. NO. 55/KOL/2015 ASSESSMENT YEAR: 2012-13 PRABHADEVI MURARKA I.T.A. NO. 56/KOL/2015 ASSESSMENT YEAR: 2012-13 SHARMITA MURARKA I.T.A. NO. 57/KOL/2015 ASSESSMENT YEAR: 2012-13 SABITA DEY THE ASSESSEE HAS NOT EARNED ANY DIVIDEND INCOME, THE DISA LLOWANCE MADE IS HEREBY DELETED IN VIEW OF THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURTS WE NOW TAKE UP THE APPEAL IN THE CASE OF SMT. SABITA DEY IN ITA NO. GROUND NO. 1, IS AGAINST THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENTS IN , WHERE THIS GOLD WAS FOUND IS HELD UNDER THE JOINT NAMES OF SMT. SABITA DEY AND SMT. SHARMITA MURARKA. JEWELLERY HAVING GOLD CONTENT OF 662.42 GMS AND , WAS FOUND BELONGING TO SMT. SABITA ES AND A SEPARATE INVENTORY OF THE SAME WAS PREPARED. THE ASSESSING OFFICER CONSIDERED THE STATUS OF THE FAMILY AND THE CUSTOMS AND ALLOWED CREDIT THAT THE SAME WOULD ASSESSEE AT THE TIME OF HER MARRIAGE. THE BALANCE AMOUNT OF WAS ASSESSED IN HER HANDS. THE LD COUNSEL FOR THE ASSESSEE, SUBMITTED THAT VISION AND WAS SOLELY UGHTER SMT. SHARMITA MURARKA. HE SUBMITTED THAT THE ASSESSEE, SMT. SABITA DEY, WAS THE DAUGHTER OF LATE SHRI U.C. LAW, HONBLE JUDGE OF THE CALCUTTA HIGH COURT AND WAS MARRIED TO THE DEY FAMILY, IN THE YEAR 1962. HE SUBMITTED THAT THE IS FATHER -IN-LAW WAS THE FIRST DIRECTOR OF BATA SHOE COMPANY AND THAT HER HUSBAND WAS A RENOWNED ARCHITECT. HE SUBMITTED THAT ON THESE FACTS IT CAN BE CONCLUDED THAT THE ASSESSEE BELONGS TO A VING HIGH SOCIAL STATUS AND SOUND FINANCIAL BACKGROUND AND THAT HER CLAIM OF HAVING ACQUIRED JEWELLERY FROM THE TIME OF HER MARRIAGE HAS TO BE BELIEVED. TO A CONCLUSION THAT THE LOCKER IN THE YEAR 2011 WAS UNDISCLOSED INVESTMENT. HE RELIED ON LAW IN SUPPORT OF HIS CONTENTION THAT A HIGH ALLOWANCE OF GOLD JEWELLERY SHOULD BE GIVEN KEEPING IN VIEW SOCIAL STATUS OF THE FAMILY AND THE LONGEVITY OF THE 27.1. TH E LD. D/R, ON THE OTHER HAND, OPPOSED THE CONTENTIONS OF THE ASSESSEE AND SUBMITTED THAT THE ASSESSING OFFICER HAS GIVEN REASONABLE CREDIT OF FURTHER CREDIT NEED BE GIVEN UNDER THE FACTS AND CIRCUMSTANCES. HE RELIED ON THE ORDER OF TH E LD. CIT(A) AND SUBMITTED THAT THE SAME BE UPHELD. 28. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT THE ASSESSEE IS AN OLD WIDOW, WHO HAS LOST HER VISION. SHE IS 70 YEARS OLD. IT IS CLEAR FROM THE FAMILY BACKGROUND AND THE FACTS THAT SHE BELONGED TO AN A YEARS PRIOR TO THE DATE OF SEARCH. ON THESE FACTS AND CIRCUMSTANCES, THE CREDIT OF LAKHS TOWARDS JEWELLERY BY THE ASSESSING OFFICER, IN OUR VIEW, IS HIGHLY INADEQUATE. THE HONOURABLE DELHI HIGH COU RT IN THE CASE OF TAXMANN.COM 57 (DEL.) HELD AS FOLLOWS: AS FAR AS ADDITION QUA JEWELLERY IS CONCERNED, DURING THE COURSE OF SEARCH, JEWELLERY WEIGHING 906.900 GRAMS OF THE VALUE AMOUNTING TO RS. 6,93,582 WAS THAT HE WAS MARRIED ABOUT 25 YEARS BACK AND THE JEWELLERY COMPRISED 'STREE DHAN' OF SMT. JYOTI CHADHA, HIS WIFE AND OTHER SMALL ITEMS JEWELLERY SUBSEQUENTLY PURCHASED AND ACCUMULATED OVER THE YEARS. HOWEVER, THE GROUND THAT DOCUMENTARY EVIDENCE REGARDING FAMILY STATUS AND THEIR FINANCIAL POSITION WAS NOT FURNISHED BY THE APPELLANT. THE ASSESSING OFFICER ACCEPTED 400 GRAMS OF JEWELLERY AS EXPLAINED AND T REATED JEWELLERY AMOUNTING TO 506.900 GRAMS AS UNEXPLAINED AND MADE AN ADDITION OF RS. 3,87,364 UNDER SECTION 69A OF THE ACT WORKING ON UNEXPLAINED JEWELLERY, BY APPLYING AVERAGE RATE OF THE TOTAL JEWELLERY FOUND. THE RELEVANT PORTION OF THE ASSESSM READS AS FOLLOWS:- 'A VERY REASONABLE ALLOWANCE OF OWNERSHIP OF GOLD JEWELLERY TO THE EXTENT OF 400 GRAMS IS CONSIDERED REASONABLE AND THE BALANCE QUANTITY OF 506 GRAMS BY APPLYING AVERAGE RATE, THE UNEXPLAINED GOLD JEWELLERY IS CONSIDERED AT RS. 6,93,582) U/S 69A OF THE ACT.' THE CIT (A) CONFIRMED THIS ADDITION STATING THAT THE ASSESSING OFFICER HAD BEEN FAIR IN ACCEPTING THE PART OF JEWELLERY AS UNEXPLAINED. THE ITAT HAS ALSO ENDORSED THE AFORESAID VIEW. LEARNED COUNSEL FOR A PPELLANT MS. KAPILA SUBMITTED THAT THERE WAS NO BASIS FOR THE ASSESSING OFFICER TO ACCEPT THE OWNERSHIP OF THE GOLD JEWELLERY TO THE EXTENT OF 400 GRAMS ONLY AS 'REASONABLE ALLOWANCE' AND TREAT THE REMAINING JEWELLERY OF RS. 506.900 AS UNEXPLAINED. SHE ALS THAT ANOTHER GLARING FACT IGNORED BY THE ASSESSING OFFICER AS WELL AS OTHER AUTHORITIES WAS THAT AS THE DEPARTMENT HAD CONDUCTED A SEARCH OF ALL THE FINANCIAL DEALINGS WHICH WERE WITHIN HIS KNOWLEDGE AND NO PAPER OR DOCUMENT WAS FOUND TO INDICA APPELLANT AND THAT IT WAS UNDISCLOSED INCOME OF THE ASSESSMENT YEAR 2006 OPERATION, NO SCOPE IS LEFT WITH THE TAX DEPARTMENT TO MAKE ADDITION ON SUBJECTIVE GUESS WORK, CONJECTURES AND SURMISES. IT WAS WIFE, EVIDENCED IN THE FORM OF DECLARATION WHICH WAS FURNISHED BY MOTHER STATING THAT SHE HAD GIVEN THE JEWELLERY IN QUESTION TO HER DAUGHTER. SHE ARGUED THAT IT IS A NORMA L CUSTOM FOR A WOMAN TO RECEIVE JEWELLERY IN THE FORM OF MARRIAGE AND OTHER OCCASIONS SUCH AS BIRTH OF A CHILD. THE ASSESSEE HAD BEEN MARRIED MORE THAN 25 OF THE JEWELLERY OF 906.900 GRAMS COULD NOT BE TREATED AS EXCESSIVE. 3. LEAR NED COUNSEL FOR THE RESPONDENT ON THE OTHER HAND RELIED UPON THE REASONING GIVEN BY THE AUTHORITIES BELOW. AFTER CONSIDERING THE AFORESAID SUBMISSIONS WE ARE OF THE VIEW THAT ADDITION MADE IS TOTALLY ARBITRARY AND IS NOT FOUNDED ON ANY COGENT BASIS OR EVID 14 E LD. D/R, ON THE OTHER HAND, OPPOSED THE CONTENTIONS OF THE ASSESSEE AND SUBMITTED THAT THE ASSESSING OFFICER HAS GIVEN REASONABLE CREDIT OF 3 LAKHS AND THAT NO FURTHER CREDIT NEED BE GIVEN UNDER THE FACTS AND CIRCUMSTANCES. HE RELIED ON THE ORDER OF E LD. CIT(A) AND SUBMITTED THAT THE SAME BE UPHELD. CONTENTIONS, WE FIND THAT THE ASSESSEE IS AN OLD WIDOW, WHO HAS LOST HER VISION. SHE IS 70 YEARS OLD. IT IS CLEAR FROM THE FAMILY BACKGROUND AND THE FACTS THAT SHE BELONGED TO AN A FFLUENT FAMILY AND THAT HER MARRIAGE WAS SOLEMNISED 50 YEARS PRIOR TO THE DATE OF SEARCH. ON THESE FACTS AND CIRCUMSTANCES, THE CREDIT OF LAKHS TOWARDS JEWELLERY BY THE ASSESSING OFFICER, IN OUR VIEW, IS HIGHLY INADEQUATE. THE RT IN THE CASE OF ASHOK CHADDHA VS. ITO REPORTED IN [2011] 14 HELD AS FOLLOWS: - JEWELLERY IS CONCERNED, DURING THE COURSE OF SEARCH, JEWELLERY WEIGHING 906.900 GRAMS OF THE VALUE AMOUNTING TO RS. 6,93,582 WAS FOUND. THE APPELLANT'S EXPLANATION WAS THAT HE WAS MARRIED ABOUT 25 YEARS BACK AND THE JEWELLERY COMPRISED 'STREE DHAN' OF SMT. JYOTI CHADHA, HIS WIFE AND OTHER SMALL ITEMS JEWELLERY SUBSEQUENTLY PURCHASED AND ACCUMULATED OVER THE YEARS. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE ABOVE EXPLANATION ON THE GROUND THAT DOCUMENTARY EVIDENCE REGARDING FAMILY STATUS AND THEIR FINANCIAL POSITION WAS NOT FURNISHED BY THE APPELLANT. THE ASSESSING OFFICER ACCEPTED 400 GRAMS OF JEWELLERY AS EXPLAINED REATED JEWELLERY AMOUNTING TO 506.900 GRAMS AS UNEXPLAINED AND MADE AN ADDITION OF RS. 3,87,364 UNDER SECTION 69A OF THE ACT WORKING ON UNEXPLAINED JEWELLERY, BY APPLYING AVERAGE RATE OF THE TOTAL JEWELLERY FOUND. THE RELEVANT PORTION OF THE ASSESSM 'A VERY REASONABLE ALLOWANCE OF OWNERSHIP OF GOLD JEWELLERY TO THE EXTENT OF 400 GRAMS IS CONSIDERED REASONABLE AND THE BALANCE QUANTITY OF 506 GRAMS BY APPLYING AVERAGE RATE, THE UNEXPLAINED GOLD JEWELLERY IS CONSIDERED AT RS. 3,87,364 (506/900 6,93,582) U/S 69A OF THE ACT.' THE CIT (A) CONFIRMED THIS ADDITION STATING THAT THE ASSESSING OFFICER HAD BEEN FAIR IN ACCEPTING THE PART OF JEWELLERY AS UNEXPLAINED. THE ITAT HAS ALSO ENDORSED THE AFORESAID VIEW. LEARNED PPELLANT MS. KAPILA SUBMITTED THAT THERE WAS NO BASIS FOR THE ASSESSING OFFICER TO ACCEPT THE OWNERSHIP OF THE GOLD JEWELLERY TO THE EXTENT OF 400 GRAMS ONLY AS 'REASONABLE ALLOWANCE' AND TREAT THE REMAINING JEWELLERY OF RS. 506.900 AS UNEXPLAINED. SHE ALS THAT ANOTHER GLARING FACT IGNORED BY THE ASSESSING OFFICER AS WELL AS OTHER AUTHORITIES WAS THAT AS THE DEPARTMENT HAD CONDUCTED A SEARCH OF ALL THE FINANCIAL DEALINGS WHICH WERE WITHIN HIS KNOWLEDGE AND NO PAPER OR DOCUMENT WAS FOUND TO INDICA TE THAT THIS JEWELLERY BELONGED TO THE APPELLANT AND THAT IT WAS UNDISCLOSED INCOME OF THE ASSESSMENT YEAR 2006 OPERATION, NO SCOPE IS LEFT WITH THE TAX DEPARTMENT TO MAKE ADDITION ON SUBJECTIVE GUESS WORK, CONJECTURES AND SURMISES. IT WAS ALSO ARGUED THAT JEWELLERY IS 'STREE DHAN' OF THE ASSESSEE'S WIFE, EVIDENCED IN THE FORM OF DECLARATION WHICH WAS FURNISHED BY MOTHER -IN- LAW OF THE ASSESSEE STATING THAT SHE HAD GIVEN THE JEWELLERY IN QUESTION TO HER DAUGHTER. SHE ARGUED THAT IT IS A L CUSTOM FOR A WOMAN TO RECEIVE JEWELLERY IN THE FORM OF MARRIAGE AND OTHER OCCASIONS SUCH AS BIRTH OF A CHILD. THE ASSESSEE HAD BEEN MARRIED MORE THAN 25 - 30 YEARS AND ACQUISITION OF THE JEWELLERY OF 906.900 GRAMS COULD NOT BE TREATED AS EXCESSIVE. NED COUNSEL FOR THE RESPONDENT ON THE OTHER HAND RELIED UPON THE REASONING GIVEN BY THE AUTHORITIES BELOW. AFTER CONSIDERING THE AFORESAID SUBMISSIONS WE ARE OF THE VIEW THAT ADDITION MADE IS TOTALLY ARBITRARY AND IS NOT FOUNDED ON ANY COGENT BASIS OR EVID ENCE. WE HAVE TO KEEP IN I.T.A. NO. 55/KOL/2015 ASSESSMENT YEAR: 2012-13 PRABHADEVI MURARKA I.T.A. NO. 56/KOL/2015 ASSESSMENT YEAR: 2012-13 SHARMITA MURARKA I.T.A. NO. 57/KOL/2015 ASSESSMENT YEAR: 2012-13 SABITA DEY E LD. D/R, ON THE OTHER HAND, OPPOSED THE CONTENTIONS OF THE ASSESSEE AND 3 LAKHS AND THAT NO FURTHER CREDIT NEED BE GIVEN UNDER THE FACTS AND CIRCUMSTANCES. HE RELIED ON THE ORDER OF CONTENTIONS, WE FIND THAT THE ASSESSEE IS AN OLD WIDOW, WHO HAS LOST HER VISION. SHE IS 70 YEARS OLD. IT IS CLEAR FROM THE FAMILY BACKGROUND AND THE FFLUENT FAMILY AND THAT HER MARRIAGE WAS SOLEMNISED 50 YEARS PRIOR TO THE DATE OF SEARCH. ON THESE FACTS AND CIRCUMSTANCES, THE CREDIT OF 3 LAKHS TOWARDS JEWELLERY BY THE ASSESSING OFFICER, IN OUR VIEW, IS HIGHLY INADEQUATE. THE ASHOK CHADDHA VS. ITO REPORTED IN [2011] 14 JEWELLERY IS CONCERNED, DURING THE COURSE OF SEARCH, JEWELLERY WEIGHING WAS FOUND. THE APPELLANT'S EXPLANATION WAS THAT HE WAS MARRIED ABOUT 25 YEARS BACK AND THE JEWELLERY COMPRISED 'STREE DHAN' OF SMT. JYOTI CHADHA, HIS WIFE AND OTHER SMALL ITEMS JEWELLERY SUBSEQUENTLY PURCHASED AND ACCUMULATED ASSESSING OFFICER DID NOT ACCEPT THE ABOVE EXPLANATION ON THE GROUND THAT DOCUMENTARY EVIDENCE REGARDING FAMILY STATUS AND THEIR FINANCIAL POSITION WAS NOT FURNISHED BY THE APPELLANT. THE ASSESSING OFFICER ACCEPTED 400 GRAMS OF JEWELLERY AS EXPLAINED REATED JEWELLERY AMOUNTING TO 506.900 GRAMS AS UNEXPLAINED AND MADE AN AD HOC ADDITION OF RS. 3,87,364 UNDER SECTION 69A OF THE ACT WORKING ON UNEXPLAINED JEWELLERY, BY APPLYING AVERAGE RATE OF THE TOTAL JEWELLERY FOUND. THE RELEVANT PORTION OF THE ASSESSM ENT ORDER 'A VERY REASONABLE ALLOWANCE OF OWNERSHIP OF GOLD JEWELLERY TO THE EXTENT OF 400 GRAMS IS CONSIDERED REASONABLE AND THE BALANCE QUANTITY OF 506 GRAMS BY APPLYING 3,87,364 (506/900 THE CIT (A) CONFIRMED THIS ADDITION STATING THAT THE ASSESSING OFFICER HAD BEEN FAIR IN ACCEPTING THE PART OF JEWELLERY AS UNEXPLAINED. THE ITAT HAS ALSO ENDORSED THE AFORESAID VIEW. LEARNED PPELLANT MS. KAPILA SUBMITTED THAT THERE WAS NO BASIS FOR THE ASSESSING OFFICER TO ACCEPT THE OWNERSHIP OF THE GOLD JEWELLERY TO THE EXTENT OF 400 GRAMS ONLY AS 'REASONABLE ALLOWANCE' AND TREAT THE REMAINING JEWELLERY OF RS. 506.900 AS UNEXPLAINED. SHE ALS O SUBMITTED THAT ANOTHER GLARING FACT IGNORED BY THE ASSESSING OFFICER AS WELL AS OTHER AUTHORITIES WAS THAT AS THE DEPARTMENT HAD CONDUCTED A SEARCH OF ALL THE FINANCIAL DEALINGS WHICH WERE WITHIN HIS TE THAT THIS JEWELLERY BELONGED TO THE APPELLANT AND THAT IT WAS UNDISCLOSED INCOME OF THE ASSESSMENT YEAR 2006 -07. IN A SEARCH OPERATION, NO SCOPE IS LEFT WITH THE TAX DEPARTMENT TO MAKE ADDITION ON SUBJECTIVE GUESS WORK, ALSO ARGUED THAT JEWELLERY IS 'STREE DHAN' OF THE ASSESSEE'S LAW OF THE ASSESSEE STATING THAT SHE HAD GIVEN THE JEWELLERY IN QUESTION TO HER DAUGHTER. SHE ARGUED THAT IT IS A L CUSTOM FOR A WOMAN TO RECEIVE JEWELLERY IN THE FORM OF MARRIAGE AND OTHER OCCASIONS 30 YEARS AND ACQUISITION NED COUNSEL FOR THE RESPONDENT ON THE OTHER HAND RELIED UPON THE REASONING GIVEN BY THE AUTHORITIES BELOW. AFTER CONSIDERING THE AFORESAID SUBMISSIONS WE ARE OF THE VIEW THAT ADDITION ENCE. WE HAVE TO KEEP IN MIND THAT THE ASSESSEE WAS MARRIED FOR MORE THAN 25 VERY SUBSTANTIAL. THE LEARNED COUNSEL FOR THE APPELLANT/ASSESSEE IS CORRECT IN HER SUBMISSION THAT IT IS A NORMAL CUSTOM FOR WOMAN TO RE OTHER OCCASIONS SUCH AS BIRTH OF A CHILD ETC. COLLECTING JEWELLERY OF 906.900 GRAMS BY A WOMAN IN A MARRIED LIFE OF 25- 30 YEARS IS NOT ABNORMAL. FURTHERMORE, THERE WAS NO VALID AND/OR PROPER YARDSTICK ADOPT ED BY THE ASSESSING OFFICER TO TREAT ONLY 400 GRAMS AS 'REASONABLE ALLOWANCE' AND TREAT THE OTHER AS 'UNEXPLAINED'. MATTER WOULD HAVE BEEN DIFFERENT IF THE QUANTUM AND VALUE OF THE JEWELLERY FOUND WAS SUBSTANTIAL. 4. WE ARE, THEREFORE, OF THE OPINION THAT FROM THE REALITIES OF LIFE. IN THE PECULIAR FACTS OF THIS CASE WE ANSWER THE QUESTION IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE THEREBY DELETING THE AFORESAID ADDITION OF RS. 3,87,364. 28.1. ADOPTING THE REASONS GIVEN BY THE HONBLE DELHI HIGH COURT IN THE ABOVE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE JEWELLERY FOUND IN THE CASE OF SMT. SABIT DEY, THE OLD WIDOW SHOULD BE CONSIDERED REASONABLE 906.900 GMS, CONSIDERED BY THE HONBLE DELHI HIGH COURT. ARE HELD AS EXPLAINED FOR THE SAME REASONS AS GIVEN BY THE HONBLE DELHI HIGH COURT IN THE ABOVE REFERRED CASE . IN THE RESULT, THIS GROUND OF THE ASSESSEE IS ALLOWED. 29. GROUND NO. 2 ON THE ISSUE OF ADDITION ON ACCOUNT OF JEWELLERY MAKING CHARGES, IS DISMISSED FOR SIMILAR REASONS WHILE DISPOSING OFF THE APPEALS OF THE OTHER TWO ASSESSEES (SUPRA). 30. GROUND NO. 3 & 4 ARE GENERAL IN NATURE. 31. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED IN PART. KOLKATA, THE SD/- [ S.S. VISWANETHRA RAVI ] JUDICIAL MEMBER DATED : 01.10.2019 {SC SPS} 15 MIND THAT THE ASSESSEE WAS MARRIED FOR MORE THAN 25 - 30 YEARS. THE JEWELLERY IN QUESTION IS NOT VERY SUBSTANTIAL. THE LEARNED COUNSEL FOR THE APPELLANT/ASSESSEE IS CORRECT IN HER SUBMISSION THAT IT IS A NORMAL CUSTOM FOR WOMAN TO RE CEIVE JEWELLERY IN THE FORM OF 'STREE DHAN' OR ON OTHER OCCASIONS SUCH AS BIRTH OF A CHILD ETC. COLLECTING JEWELLERY OF 906.900 GRAMS BY A WOMAN 30 YEARS IS NOT ABNORMAL. FURTHERMORE, THERE WAS NO VALID AND/OR PROPER ED BY THE ASSESSING OFFICER TO TREAT ONLY 400 GRAMS AS 'REASONABLE ALLOWANCE' AND TREAT THE OTHER AS 'UNEXPLAINED'. MATTER WOULD HAVE BEEN DIFFERENT IF THE QUANTUM AND VALUE OF THE JEWELLERY FOUND WAS SUBSTANTIAL. WE ARE, THEREFORE, OF THE OPINION THAT THE FINDINGS OF THE TRIBUNAL ARE TOTALLY PERVERSE AND FAR FROM THE REALITIES OF LIFE. IN THE PECULIAR FACTS OF THIS CASE WE ANSWER THE QUESTION IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE THEREBY DELETING THE AFORESAID ADDITION OF RS. 3,87,364. ADOPTING THE REASONS GIVEN BY THE HONBLE DELHI HIGH COURT IN THE ABOVE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE JEWELLERY FOUND IN THE CASE OF SMT. SABIT DEY, THE OLD WIDOW SHOULD BE CONSIDERED REASONABLE AS IT IS ONLY 662.4 GMS AS COMPARED TO T 906.900 GMS, CONSIDERED BY THE HONBLE DELHI HIGH COURT. THE GOLD AND JEWELLERY ARE HELD AS EXPLAINED FOR THE SAME REASONS AS GIVEN BY THE HONBLE DELHI HIGH COURT IN . IN THE RESULT, THIS GROUND OF THE ASSESSEE IS ALLOWED. GROUND NO. 2 ON THE ISSUE OF ADDITION ON ACCOUNT OF JEWELLERY MAKING CHARGES, IS DISMISSED FOR SIMILAR REASONS WHILE DISPOSING OFF THE APPEALS OF THE OTHER TWO ASSESSEES GROUND NO. 3 & 4 ARE GENERAL IN NATURE. APPEALS OF THE ASSESSEE ARE ALLOWED IN PART. KOLKATA, THE 1 ST DAY OF OCTOBER, 2019. [ J. SUDHAKAR REDDY ACCOUNTANT MEMBER I.T.A. NO. 55/KOL/2015 ASSESSMENT YEAR: 2012-13 PRABHADEVI MURARKA I.T.A. NO. 56/KOL/2015 ASSESSMENT YEAR: 2012-13 SHARMITA MURARKA I.T.A. NO. 57/KOL/2015 ASSESSMENT YEAR: 2012-13 SABITA DEY 30 YEARS. THE JEWELLERY IN QUESTION IS NOT VERY SUBSTANTIAL. THE LEARNED COUNSEL FOR THE APPELLANT/ASSESSEE IS CORRECT IN HER SUBMISSION CEIVE JEWELLERY IN THE FORM OF 'STREE DHAN' OR ON OTHER OCCASIONS SUCH AS BIRTH OF A CHILD ETC. COLLECTING JEWELLERY OF 906.900 GRAMS BY A WOMAN 30 YEARS IS NOT ABNORMAL. FURTHERMORE, THERE WAS NO VALID AND/OR PROPER ED BY THE ASSESSING OFFICER TO TREAT ONLY 400 GRAMS AS 'REASONABLE ALLOWANCE' AND TREAT THE OTHER AS 'UNEXPLAINED'. MATTER WOULD HAVE BEEN DIFFERENT IF THE QUANTUM AND THE FINDINGS OF THE TRIBUNAL ARE TOTALLY PERVERSE AND FAR FROM THE REALITIES OF LIFE. IN THE PECULIAR FACTS OF THIS CASE WE ANSWER THE QUESTION IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE THEREBY DELETING THE AFORESAID ADDITION OF RS. 3,87,364. ADOPTING THE REASONS GIVEN BY THE HONBLE DELHI HIGH COURT IN THE ABOVE CASE, WE ARE OF THE CONSIDERED OPINION THAT THE JEWELLERY FOUND IN THE CASE OF SMT. SABIT DEY, THE AS IT IS ONLY 662.4 GMS AS COMPARED TO T HE THE GOLD AND JEWELLERY FOUND ARE HELD AS EXPLAINED FOR THE SAME REASONS AS GIVEN BY THE HONBLE DELHI HIGH COURT IN . IN THE RESULT, THIS GROUND OF THE ASSESSEE IS ALLOWED. GROUND NO. 2 ON THE ISSUE OF ADDITION ON ACCOUNT OF JEWELLERY MAKING CHARGES, IS DISMISSED FOR SIMILAR REASONS WHILE DISPOSING OFF THE APPEALS OF THE OTHER TWO ASSESSEES SD/- J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER COPY OF THE ORDER FORWARDED TO: 1. PRABHADEVI MURARKA 1/C, MADEVILLA GARDEN KOLKATA 700 019 2. SHARMITA MURARKA 1/C, MADEVILLA GARDEN KOLKATA 700 019 3. SABITA DEY 1/C, MADEVILLA GARDEN KOLKATA 700 019 4. DEPUTY COMMISSIONER OF INCOME TAX, 5. CIT(A)- 6. CIT- , 7 . CIT(DR), KOLKATA BENCHES, KOLKATA. 16 COPY OF THE ORDER FORWARDED TO: DEPUTY COMMISSIONER OF INCOME TAX, CC-XVIII, KOLKATA . CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES I.T.A. NO. 55/KOL/2015 ASSESSMENT YEAR: 2012-13 PRABHADEVI MURARKA I.T.A. NO. 56/KOL/2015 ASSESSMENT YEAR: 2012-13 SHARMITA MURARKA I.T.A. NO. 57/KOL/2015 ASSESSMENT YEAR: 2012-13 SABITA DEY TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES
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