Mahendra Kumar Jain, Visakhapatnam V. The Assisant Commissioner of Income Tax, Central Circle-1, Visakhapatnam

ITA 570/VIZ/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 8875 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2016-2017
• Appeal Filed On: 01-10-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T.S.N. MURTHY
• Keywords: Application of stay
• Section: 10; 201; 69A; 22; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , HONBLE ACCOUNTANT MEMBER S.A.NO. 107 /VIZ/2019 AND ITA NO. 570 / VIZ /201 9 (ASST. YEAR : 20 1 6 - 1 7 ) MAHENDRA KUMAR JAIN, MVR COMPLEX, DWARAKANAGAR, OPP. APSRTC COMMERCIAL COMPLEX, VISAKHAPATNAM. V S . A CIT, CENTRAL CIRCLE - 1 , VISAKHAPATNAM. PAN NO. ABEPJ 9098 E (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.V.N. HARI ADV OCATE . DEPARTMENT BY : SHRI T.S.N. MURTHY SR. DR SMT. SUMAN MALIK SR.DR DATE OF HEARING : 18 / 1 1 /201 9 . DATE OF PRONOUNCEMENT : 22 / 1 1 /201 9 . O R D E R PER V. DURGA RAO , JUDICIAL MEMBER BY FILING THIS STAY APPLICATION, ASSESSEE SEEKS EARLY HEARING OF THE APPEAL . TH E ASSESSEE ALSO FILED THIS APPEAL AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - 3 , VISAKHAPATNAM , DATED 1 4 /0 7 /201 9 FOR THE A . Y . 201 6 - 1 7 . 2. GROUND NOS. 1 & 5 ARE GENERAL IN NATURE, NO ADJUDICATION IS REQUIRED, THEREFORE SAME ARE DISMISSED. GROUND NO. 4 IS 2 ITA NO. 570 /VIZ/2019 S.A.NO.107 /VIZ/2019 ( MAHENDRA KUMAR JAIN ) CONSEQUENTIAL IN NATURE , NO SEPARATE ADJUDICATION IS REQUIRED, THEREFORE SAME IS DISMISSED . THE ONLY GROUND S FOR ADJUDICATION BEFORE US ARE GROUND NO S .2 & 3 , WHICH ARE AS FOLLOWS: - 2. THE LD. CIT(A) IS NOT JUSTIFIED IN PARTLY SUSTAINING TO THE EXTENT OF RS. 8,80,402 / - ADDITION MADE BY THE ASSESSING OFFICER TOWARDS UNEXPLAINED JEWELLERY AND SILVER ARTICLES. RS. 2, 7 2 , 045 / - 3. THE LD. CIT(A) IS NOT JUSTIFIED IN PARTLY SUSTAINING TO THE EXTENT OF RS. 1,17,000/ - ADDITION MADE BY THE ASSESSING OFFICER TOWARDS UNEXPLAINED CASH. RS. 36,153 / - 3 . GROUND NO.2 RELATES TO UNEXPLAINED JEWELLERY AND SILVER ARTICLES. DURING THE COURSE OF SEARCH , IT WAS FOUND THAT APPELLANT WAS IN POSSESSION OF 616.23 GRAMS OF GOLD , WHICH IS VALUED BY THE REGISTERED VALUER AT RS. 17,60,804/ - , THEREFORE, T HE ASSESSING OFFICER HAS MADE THE ENTIRE ADDITION IN THE HANDS OF THE ASSESSEE U/SEC. 69A OF THE ACT ON THE GROUND OF UNEXPLAINED MONEY . 4 . ON APPEAL , THE LD. CIT(A) HAS GIVEN RELIEF TO THE EXTENT OF 50% AND THE REMAINING 50% HAS BEEN CONFIRMED . 5. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. 6 . BEFORE US, LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT ASSESSEE IS HAVING WIFE AND SON . ACCORDING TO THE ASSESSEE , WIFE SHOULD BE GIVEN 500 GRAMS, SON SHOULD BE GIVEN 100 GRAMS , AND ASSESSEE SHOULD BE GIVEN 100 GRAMS , TOTALLING TO 7 00 GRAMS. AS 3 ITA NO. 570 /VIZ/2019 S.A.NO.107 /VIZ/2019 ( MAHENDRA KUMAR JAIN ) THE ASSESSEE IS NOT HAVING MORE THAN THE GOLD ORNAMENTS AS PROVIDED IN CBDT INSTRUCTION NO. 1916 , DATED 11.05.1994 , T HE ADDITION CANNOT BE SURVIVED . 7 . LD.DR STRONGLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 8 . WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THA T AS PER CBDT INSTRUCTION NO. 1916 , DATED 11.05.1994 AND TAKING INTO CONSIDERATION OF THE STRENGTH OF THE FAMILY, WEIGHTAGE SHOULD BE GIVEN TO THE ASSESSEE . IN THIS CASE TOTAL JEWELLERY OF 616.23 GRAMS WAS SEIZED AND WEIGHTAGE AS PER FAMILY MEMBERS COMES TO 700 GRAMS , T HEREFORE, ADDITION CANNOT SURVIVE. THUS, THIS GROUND OF APPEAL RAISED BY THE ASSESSEE IS ALLOWED. 9 . GROUND NO.3 RELATES TO THE ADDITION TO THE EXTENT OF RS. 1.17 LAKHS TOWARDS UNEXPLAINED CASH . DURING THE COURSE OF SEARCH , A CASH AMOUNTING TO RS. 1.17 LAKHS WAS FOUND . NO S A TISFACTORY EXPLANATION IS OFFERED BEFORE THE ASSESSING OFFICER AND BEFORE THE LD. CIT(A) . EVEN BEFORE THE ITAT, THE ASSESSEE IS NOT ABLE TO SUBSTANTIATE THE SOURCE OF CASH FOUND DURING THE COURSE OF SEARCH . THEREFORE, WE FIND NO REASON TO INTERFERE WITH THE ORDER PASSED BY THE LD. CIT(A). THUS, THIS GROUND OF APPEAL RAISED BY THE ASSESSEE IS DISMISSED. 4 ITA NO. 570 /VIZ/2019 S.A.NO.107 /VIZ/2019 ( MAHENDRA KUMAR JAIN ) 10 SO FAR AS STAY APPLICATION FILED BY THE ASSESSEE IS CONCERNED, AS WE HAVE DISPOSED OF THE ASSESSEES APPEAL (SUPRA) , THE STAY APPLICATION FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS AND IS DISMISSED ACCORDINGLY. 1 1 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED AND THE S.A. IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON TH IS 2 2 N D DAY OF NOV . , 201 9 . S D / - S D / - (D.S. SUNDER SINGH) (V. DURGA RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 2 2 N D NOVEMBER , 201 9 . VR/ - COPY TO: 1. THE ASSESSEE MAHENDRA KUMAR JAIN, MVR COMPLEX, DWARAKANAGAR, OPP. APSRTC COMMERCIAL COMPLEX, VISAKHAPATNAM. 2. THE REVENUE ACIT, CENTRAL CIRCLE - 1, VISAKHAPATNAM. 3. THE PR. CIT (CENTRAL), VISAKHAPATNAM. 4. THE CIT(A) - 3, VISAKHAPATNAM . 5. THE D.R . , VISAKHAPATNAM. 6. GUARD FILE. BY ORDER (VUKKEM RAMBABU) SR. PRIVATE SECRETARY, ITAT, VISAKHAPATNAM.