ACIT CC-45, MUMBAI V. HITEN R. MEHTA, MUMBAI

ITA 5719/MUM/2009

• Counselvise Citation: 571919914 RSA 2009
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 30-05-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 26-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DR K SHIVARAM
• Keywords: Gift; Search and seizure; Block assessment
• Section: 132

Judgement Text

1 ITA NO.S 5706 & 5719/ MUM/2009 IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI MUMBAI MUMBAI MUMBAI H HH H BENCH BENCH BENCH BENCH MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI J SUDHAKAR REDDY, J SUDHAKAR REDDY, J SUDHAKAR REDDY, J SUDHAKAR REDDY, AM & AM & AM & AM & SHRI SHRI SHRI SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM ITA NO. ITA NO. ITA NO. ITA NO. 5706/MUM/2009 5706/MUM/2009 5706/MUM/2009 5706/MUM/2009 (ASST YEAR (ASST YEAR (ASST YEAR (ASST YEAR 2007 2007 2007 2007- -- -08 0808 08) )) ) SHRI HITEN MEHTA A/26 ABHIVAN APARTMENT MATHURADAS EXTN ROAD MANDIVALI (W) MUMBAI 67 VS THE ASST COMMR OF INCOME TAX CEN.CIR 45 MUMBAI ( (( (APPELLANT APPELLANT APPELLANT APPELLANT) )) ) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) PAN NO. PAN NO. PAN NO. PAN NO. AHZPM2969E AHZPM2969E AHZPM2969E AHZPM2969E ITA NO. ITA NO. ITA NO. ITA NO. 5719/MUM/2009 5719/MUM/2009 5719/MUM/2009 5719/MUM/2009 (ASST YEAR 2007 (ASST YEAR 2007 (ASST YEAR 2007 (ASST YEAR 2007- -- -08) 08) 08) 08) THE ASST COMMR OF INCOME TAX CEN.CIR 45 MUMBAI VS SHRI HITEN MEHTA A/26 ABHIVAN APARTMENT MATHURADAS EXTN ROAD MANDIVALI (W) MUMBAI 67 (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) A SSESSEE BY DR K SHIVARAM REVENUE BY SHRI GOLI SRINIWAS RAO PER PER PER PER VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO, , , , JM JMJM JM THESE CROSS APPEALS FILED BY THE ASSESSEE AND THE R EVENUE ARE DIRECTED AGAINST THE ORDER DATED 17.8.2009 OF THE CIT(A) REL ATING TO AY 2007-08. 2 BRIEFLY STATED FACTS OF THE CASE ARE THAT DURING THE COURSE OF SEARCH AND SEIZURE ACTION THE FOLLOWING GOLD AND DIAMOND JEWEL LERY FOUND AT RESIDENCE AND IN THE LOCKERS: 2 ITA NO.S 5706 & 5719/ MUM/2009 GOLD JEWELLERY RS. 11,32,320/ DIAMOND RS. 4,90,750/- TOTAL RS. 16,23,070/- THE ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE SOURCES OF INVESTMENT AND OTHER RELEVANT DETAILS. THE ASSESSING OFFICER NOTED THAT RS. 5,25,000/- HAS BEEN ADJUSTED AGAINST THE TOTAL JEWELLERY OF RS. 16 ,23,070/-. IT WAS CLARIFIED BY THE ASSESSEE THAT ON ACCOUNT OF PAYMENT OF RS. 5,25 ,000/- AS A SUBSTITUTE AGAINST THE TOTAL JEWELLERY AGAINST, WHICH NO SEIZU RE WAS EFFECTED. FURTHER, IT WAS EXPLAINED THAT SEARCH PARTY WAS SATISFIED WITH THE EXPLANATION AND ON THE BASIS OF TOTAL NUMBER OF FAMILY MEMBERS. IN HIS WRITTEN SUBMISSION DATED 5.12.2008, IT WAS SUBMITTED THAT THE JEWELLERY WAS RECEIVED ON MA RRIAGE AND VARIOUS OTHER CEREMONIES. FURTHER, IN IT WAS CLAIMED THAT WITH R EGARDS TO MEMBERS IN THE FAMILY, THE JEWELLERY FOUND IS WELL WITHIN THE LIMI TS OF CBDT INSTRUCTION NO.1916 DT 11.5.1994. 2.1 THE ASSESSING OFFICER RECORDED THAT THE ASSESS EE COULD NOT SUBMIT ALL THE DETAILS SUCH AS PURCHASE BILLS, GIFT DEED, PROOF OF GIFT RECEIVED, PROOF THAT THE GIFTS ARE RECEIVED ON VARIOUS OCCASIONS. ACCORDINGLY, THE ASSESSING OFFICER HELD THAT THE ASSESSEE MADE INVESTMENT IN ASSESSMENT YEAR 200 6-07, WHICH ARE NOT RECORDED IN THE BOOKS OF ACCOUNT AND ALSO COULD NOT PROVE THE SOURCE OF INCOME FOR SUCH INVESTMENT. CONSEQUENTLY, ADDITION OF RS. 16,23,370/- WAS MAD U/S 69A OF THE I T ACT. 3 ON APPEAL, THE CIT(A) GAVE PART RELIEF TO THE ASS ESSEE TO THE EXTENT OF THE QUANTITY OF THE JEWELLERY AS PER THE LIMIT PRESCRIB ED IN CBDT INSTRUCTION NO.1916 DATED 11.5.1994; BUT ONLY WITH REGARD TO THE ASSES SEE AND HIS WIFE AS WELL AS 3 ITA NO.S 5706 & 5719/ MUM/2009 THE JEWELLERY FOUND IN THE BANK LOCKER IN THE NAME OF THE MOTHER OF THE ASSESSEE. THE CIT(A) REJECTED THE CLAIM OF THE ASSESSEE THAT THE LIMIT UNDER THE SAID INSTRUCTION SHOULD BE APPLIED WITH REGARD TO ALL TH E MEMBERS OF THE FAMILY INCLUDING THE FATHER AND MOTHER OF THE ASSESSEE. BO TH THE ASSESSEE AS WELL AS THE REVENUE HAVE CHALLENGED THE ORDER OF THE CIT(A) . 3.1 ACCORDINGLY, COMMON ISSUE ARISES FOR OUR CONSI DERATION AND ADJUDICATION WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) IS JUSTIFIED IN CONFIRMING THE ADDITION TO THE EXTENT OF RS. 9,92,8 39/- AND DELETING THE BALANCE TO THE EXTENT OF RS. 6,30,231/-. 4 BEFORE US, THE LD AR OF THE ASSESSEE HAS REITERAT ED THE SUBMISSIONS AS MADE BEFORE THE CIT(A), WHICH ARE REPRODUCED IN PAR A 3.3 OF THE ORDER OF THE CIT(A) AS UNDER: 3.3 REGARDING THE JEWELLERY FOUND IN THE LOCKER NO .512 OF UCO BANK VALUED AT RS. 13,46,780/- AND AT THE HOUSE VALUED AT RS. 1,54 ,340/-BELONGS TO THE FOLLOWING FAMILY MEMBERS: SR.NO. PARTICULARS WEIGHT IN PCS IN YEAR 1 HASADI SET 58.6 3 1993 2 EARNINGS 20 4 1993 3 JADTAR SET 70 3 1993 4 PENDAT SET 58 3 1993 RECEIVED IN ENGAGEMENT FROM MOTHER IN LAWS BY HITEN 1 CHAIN 25.3 1 1993 2 DIAMOND BRACELET 25 1993 RECEIVED IN ENGAGEMENT FROM MOTHER BY HITEN 1 CHAIN 30 1 1993 2 BRACELET 40 1 1993 RECEIVED IN MARRIAGE FROM MOTHER BY HITEN 1 DIAMOND BRACELET 37 1994 2 CHAIN 35 1 1994 3 BRACELET 45 1 1994 4 ITA NO.S 5706 & 5719/ MUM/2009 RECEIVED IN MARRIAGE FROM MOTHER BY MEETA SR.NO. PARTICULARS WEIGHT IN PCS IN YEAR 1 HALF SE 80 3 1994 2 BANGLES 150 6 1994 3 PATIA 75 2 1994 RECEIVED IN MARRIAGE FROM MOTHER IN LAWS BY MEETA 1 KADA 70 2 1994 2 BANGLES 25 10 1994 3 CHAIN 4 1 1994 4 JADTAR SET 70 3 1994 RECEIVED ON THE OCCASION OF BIRTH OF SON FROM MOTH ER-IN-LAW BY MEETA 1 NECKLACE 80 1 1995 2 BANGLES 35 1 1995 3 PENDENT SET 80 195 RECEIVED ON THE OCCASION OF MARRIAGE ANNIVERSARY FR OM MOTHER-IN-LAW BY MEETA 1 CHANDAN HAR 35 3 1995 2 PENDENT SET 64 3 1995 3 PATLA 80 2 1995 THE MAIN CONTENTION OF THE LD AR OF THE ASSESSEE IS THAT THE ASSESSEE HAD EXPLAINED THE SOURCE OF THE JEWELLERY AND RECEIPTS BY THE ASSESSEE AND HIS WIFE ON VARIOUS OCCASIONS AS PER THE DETAILS GIVEN ABOVE . HE HAS FURTHER SUBMITTED THAT AS PER THE CIRCULAR NO.1916 DATED 11.5.1994, T HE JEWELLERY, TO THE EXTENT OF THE LIMIT PRESCRIBED IN THE SAID CIRCULAR, PER PE RSON OF THE JOINT FAMILY SHOULD BE ALLOWED AS EXPLAINED, BEING JEWELLERY HELD BY THE FAMILY AS GENERAL PRACTICE IN THE JOINT HINDU FAMILY. HE HAS REFERRED TO THE DE CISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS RATANLAL VYAPARIL AL JAIN REPORTED IN 45 DTR 290(GUJ). HE HAS ALSO RELIED UPON THE DECISION OF T HE HONBLE KARNATAKA HIGH COURT IN THE CASE OF SMT PATI DEVI VS ITO & ANR REP ORTED IN 240 ITR 727(KAR) AND SUBMITTED THAT THE ASSESSEE IS ENTITLED TO BEN EFIT AS PER THE CIRCULAR DATED 11.5.1994 TO THE EXTENT OF LIMIT PRESCRIBED IN THE SAID CIRCULAR FOR EACH MEMBER OF THE FAMILY. 5 ITA NO.S 5706 & 5719/ MUM/2009 4.1 ALTERNATIVELY, THE LD AR OF THE ASSESSEE ARGUED THAT TAX INVOLVED IN THE REVENUE APPEAL IS LESS THAN RS. 3 LACS AND THEREFO RE, IN VIEW OF CBDT CIRCULAR THE APPEAL OF THE REVENUE IS NOT MAINTAINABLE. 4.2 THE LD DR ON THE OTHER HAND, SUBMITTED THAT THE ASSESSEE HAS FAILED TO SUBMIT ANY EVIDENCE TO SHOW THAT GOLD JEWELLERY FOU ND DURING THE COURSE OF SEARCH WAS RECEIVED BY MEMBERS OF THE FAMILY OF THE ASSESSEE AS GIFT ON VARIOUS OCCASIONS. EVEN THE ASSESSEE DID NOT PRODUCE BILLS , GIFT DEED AND PROOF OF GIFTS RECEIPTS AND THEREFORE, THE ASSESSING OFFICER IS JU STIFIED IN MAKING THE ADDITION. THE LD DR SUBMITTED THAT THE CIRCULAR RELIED UPON B Y THE ASSESSEE AS WELL AS THE CIT(A) FOR GIVING RELIEF IS RELEVANT FOR THE PURPO SE OF SEARCH AND SEIZURE ACTION AND THE INSTRUCTIONS ARE ONLY FOR SEIZURE OF JEWEL LERY OF SMALL QUANTITY IN THE COURSE OF SEARCH OPERATION U/S 132 OF THE ACT AND THE SAME CANNOT BE TAKEN AS EXPLAINED SOURCE OF THE JEWELLERY. 5 WE HAVE CONSIDERED THE RIVAL CONTENTION AND PERUS ED THE RELEVANT MATERIAL ON RECORD. DURING THE COURSE OF SEARCH ACT ION, STATEMENT OF THE ASSESSEE WAS RECORDED U/S 132 OF THE I T ACT. THE A SSESSEE EXPLAINED THE SOURCE IN THE SAID STATEMENT WHILE GIVING ANSWER TO QUESTI ON 17 AS UNDER: QUS: 7 DURING THE COURSE OF SEARCH THE JEWELLERY W AS VALUED BY THE GOVT APPROVED VALUER OF RS. 1,54,340/- ALL THEE JEWELLER Y INCLUDES SOME DIAMOND JEWELLERY OF RS. 79,880/-. L. STATE TO WHOM ALL THE JEWELLERY BELONGS TO AND TELL THE SOURCE OF ITS ACQUISITION . 6 ITA NO.S 5706 & 5719/ MUM/2009 ANS: ALL THE JEWELLERY BELONGS TO MY WIFE. THE DIAM OND JEWELLERY ARE BEING GIFTED TO MY WIFE AT THE TIME OF MY MARRIAGE BY MY IN-LAWS AND SOME OF THE JEWELLERY ARE GIFTED BY RELATIVES AND FAMILY ME MBERS AT RELIGIOUS AND SOCIAL OCCASIONS AND SOME PART OF MY JEWELLERY ARE PURCHASED BY MY POCKED EXPENSE. BESIDES THAT THERE IS SOME JEWELLER Y LYING IN THE LOCKER WHICH IS SEIZED BY YOU. THE SOURCE OF AID JEWELLERY ARE ALSO GIFTED AT THE TIME OF MY MARRIAGE BY RELATIVES. 5.1 IT IS CLEAR FROM THE STATEMENT OF THE ASSESSEE AND PARTICULARLY THE ANSWER TO THE QUESTION NO.17 THAT THE ENTIRE JEWELLERY CLA IMED TO HAVE BEEN RECEIVED BY WIFE OF THE ASSESSEE ON VARIOUS OCCASIONS AND SOME PART OF THE JEWELLERY WAS PURCHASED BY THE ASSESSEE HIMSELF. THUS, IT WAS UNA MBIGUOUS CLAIM BY THE ASSESSEE THAT THE JEWELLERY BELONGS TO THE WIFE OF THE ASSESSEE AS SHE RECEIVED THE SAME ON VARIOUS OCCASIONS AND SOME OF THE JEWEL LERY WAS PURCHASED BY THE ASSESSEE HIMSELF. THERE IS NO WHISPER THAT ANY PART OF THE JEWELLERY BELONGS TO THE MOTHER OF THE ASSESSEE. THE JEWELLERY FOUND IN THE BANK LOCKER, IN THE NAME OF THE MOTHER OF THE ASSESSEE HAS ALSO BEEN CONSI DERED BY THE CIT(A). THE CIT(A) HAS GIVEN RELIEF AFTER CONSIDERING THE RELEV ANT MATERIAL AND ADJUDICATED THE ISSUE IN PARA 3.5 TO 4.1 AS UNDER: 3.5 I HAVE CAREFULLY CONSIDERED THE FACTS AND SUBM ISSIONS. IT IS SEEN THAT THE JEWELLERY VALUING AT RS. 1,21,950/- W AS FOUND IN THE LOCKER NO.148 OF KAPOL COOP BANK IN THE NAME OF MR S JYOTI R MEHTA, MOTHER OF THE APPELLANT. IT HAS BEEN CLAIMED THAT JEWELLERY FOUND IN THE LOCKER BELONGED TO HER. CONSIDERING TH E FACT THAT APPELLANT BELONGED TO JOINT HINDU FAMILY WHERE T WA S CUSTOMARY FOR LADIES TO RECEIVED SOME AMOUNT OF JEWELLERY AT THE TIME OF MARRIAGE AND OTHER FESTIVALS AND THE QUANTITY OF JE WELLERY FOUND IN THE LOCKER WAS WELL WITHIN THE LIMITS OF CBDT INSTR UCTION NO.1916, THE JEWELLERY FOUND IN THE AFORESAID LOCKER AT RS. 1,21,950/ DESERVES TO BE ACCEPTED AS BELONGING TO MRS JYOTI M EHTA. 4.1 WITH REGARDS TO THE JEWELLERY OF RS. 13,46,780/ - IN THE LOCKER NO.512 OF UCO BANK IN THE NAME OF THE APPELLANT AND NEETA MEHTA, IT IS SEEN THAT THE APPELLANT HAD NOT BEEN A BLE TO FURNISH ANY DOCUMENTARY EVIDENCE SUPPORTING THE CLAIM FOR R ECEIPT OF JEWELLERY BY WAY OF GIFTS ON VARIOUS OCCASIONS. NO EVIDENCE HAS 7 ITA NO.S 5706 & 5719/ MUM/2009 BEEN ADDUCED TO HOW THAT THE MOTHER AND MOTHER-IN-L AW OF THE APPELLANT OWNED SUCH JEWELLERY CLAIMED TO HAVE BEEN GIFTED. THEREFORE, IN THE ABSENCE OF ANY DOCUMENTARY EVIDEN CE THE APPELLANTS CLAIM AND CONTENTION FOR RECEIPT OF JEW ELLERY BY HIM AND HIS WIFE CANNOT BE ACCEPTED AS TRUE. HOWEVER, S INCE THE A APPELLANT BELONGED TO JOINT HINDU FAMILY WHERE IT W AS CUSTOMARY FOR THE MEMBERS TO RECEIVE SOME JEWELLERY ON VARIOU S OCCASIONS, THE APPELLANT AND HIS WIFE DESERVE TO BE ALLOWED TH E BENEFIT AS PER CBDT INSTRUCTION N.1916. THE NET WEIGHT OF GOLD JEW ELLERY FOUND IN THE LOCKER STOOD AT 1010.500 GMS IN ADDITION TO THE VALUE OF DIAMOND JEWELLERY AT RS. 4,90,750/-. THE APPELLANT HAS ARGUED THAT JEWELLERY FOUND IN THE LOCKER WAS WELL WITHIN THE L IMITS OF CBDT INSTRUCTION NO.1916 DT11.5.1994 WHICH IS NOT CORREC T. AS PER THE AFORESAID INSTRUCTION, THE GOLD JEWELLERY AND ORNAM ENTS TO THE EXTENT OF 500 GMS PER MARRIED LADY AND100 GMS PER M ALE MEMBER OF THE FAMILY WERE NOT REQUIRED TO BE SIZED. THEREF ORE, EVEN IF THE CLAIM OF THE APPELLANT IS TO BE CONSIDERED IN THE L IGHT OF THE AFORESAID INSTRUCTIONS, THE GOLD JEWELLERY UP TO TH E EXTENT OF 600 GMS (100 GMS FOR THE APPELLANT AND 500 GMS FOR THE WIFE) ONLY COULD BE TREATED AS EXPLAINED. THEREFORE, THE BALAN CE GOLD JEWELLERY WEIGHING 410.50 GMS REMAINED UNEXPLAINED AND ITS VALUE AT RS. 3,47,749/- IS TO BE TREATED AS UNEXPLA INED IN ADDITION TO THE DIAMOND JEWELLERY VALUING AT RS. 4,90,750/-. BESIDES, THE JEWELLERY VALUING AT RS. 1,54,340/- WAS FOUND AT TH E HOUSE AND CONSIDERING THE FACT THAT THE APPELLANT AND HIS WIF E HAVE ALREADY BEEN ALLOWED THE MAXIMUM BENEFIT OF JEWELLERY AS PE R CBDT INSTRUCTION NO.1916 THIS TOO HAS TO BE TREATED AS U NEXPLAINED. IN RESULT, THE ASSESSING OFFICERS ACTION IN TREATING THE JEWELLERY AS UNEXPLAINED TO THE EXTENT OF RS 9,92,839/- (3,47,74 9/- + 4,90,50/- + 1,54,340/-) IS HEREBY CONFIRMED. THE APPELLANT GE TS A RELIEF OF RS. 6,30,231/-. THIS GROUND OF APPEAL IS PARTLY ALL OWED. 5.2 THUS, IT IS CLEAR THAT THE CIT(A) HAS GIVEN REL IEF AS PER THE CIRCULAR ISSUED BY THE CBDT IN RESPECT OF THE ASSESSEE AND HIS WIFE AND TO THE EXTENT OF THE JEWELLERY FOUND IN THE BANK LOCKER IN THE NAME OF THE MOTHER OF THE ASSESSEE. WHEN THE ASSESSEE IN HIS STATEMENT DID NOT CLAIM TH AT THE JEWELLERY FOUND DURING THE COURSE OF SEARCH BELONGS TO THE JOINT FAMILY ME MBERS, BUT EXPLAINED THE SOURCE AS GIFT RECEIVED BY THE WIFE OF THE ASSESSE E ON VARIOUS OCCASIONS AND SOME PART OF THE JEWELLERY PURCHASED BY THE ASSESSE E HIMSELF, THEN THE BENEFIT OF THE LIMIT PRESCRIBED IN THE CIRCULAR NO.1916 DT 11.5.1994 CAN BE AVAILED ONLY TO THE ASSESSEE AND THE WIFE AND TO THE EXTENT OF T HE JEWELLERY FOUND IN THE BANK 8 ITA NO.S 5706 & 5719/ MUM/2009 LOCKER IN THE NAME OF THE MOTHER OF THE ASSESSEE. T HE INSTRUCTION NO.1916 DATED 11.5.1994 READS AS UNDER: SEARCH & SEIZURE SECTION 132 INSTANCES OF SEIZURE OF JEWELLERY OF SMALL QUANTITY IN COURSE OF OPERATIONS UNDER S. 132 HAVE COME TO THE NOTICE OF THE BOARD. THE QUESTION OF A COMMON APPROACH TO SITUATIONS WHERE SEARCH PARTIES COME ACROSS ITEMS OF JEWELLERY, HAS BEEN EXAMINED BY THE BOARD AND FOLLO WING GUIDELINES ARE ISSUED FOR STRICT COMPLIANCE I) IN THE CASE OF A WEALTH TAX ASSESSEE, GOLD JEWEL LERY AND ORNAMENTS FOUND IN EXCESS OF THE GROSS WEIGHT DECLA RED IN THE WEALTH TAX RETURN ONLY NEED BE SEIZED. II) IN THE CASE OF A PERSON NOT ASSESSED TO WEALTH TAX, GOLD JEWELLERY AND ORNAMENTS TO THE EXTENT OF 500 GM PER MARRIED LADY, 250 GMS PER UNMARRED LADY AND 100 GMS PER MALE MEMBER OF TH E FAMILY, NEED NOT BE SEIZED. III) THE AUTHORISED OFFICER MAY, HAVING REGARD TO T HE STATUS OF THE FAMILY AND THE CUSTOM AND PRACTICES OF THE COMMUNIT Y TO WHICH THE FAMILY BELONGS AND OTHER CIRCUMSTANCES OF THE CASE, DECIDE TO EXCLUDE A LARGER QUANTITY OF JEWELLERY AND ORNAMENT S FROM SEIZURE. THIS SHOULD BE REPORTED TO THE DIRECTOR OF INCOME T AX/COMMISSIONER AUTHORISING HE SEARCH AT THE TIME F FURNISHING THE SEARCH REPORT. IV) IN ALL CASES, A DETAILED INVENTORY OF THE JEWEL LERY AND ORNAMENTS FOUND MUST BE PREPARED TO BE USED FOR ASSESSMENT PU RPOSES. 6 THE SCOPE OF THE CIRCULAR CANNOT BE EXPANDED BEYO ND THE FACTS OF THE CASE AND MATERIAL BROUGHT ON RECORD. MOREOVER, THE BENEF IT OF THE CIRCULAR IS AVAILABLE FOR THE PURPOSE OF SEIZURE OF THE JEWELLERY FOUND D URING THE COURSE OF SEARCH ACTION AND CONSEQUENTIAL BLOCK ASSESSMENT. 7 IN THE CASE IN HAND, THE ASSESSMENT IS A REGULAR ASSESSMENT AND THEREFORE, THE BENEFIT OF THE CIRCULAR COULD NOT BE AVAILABLE BEYOND THE 9 ITA NO.S 5706 & 5719/ MUM/2009 EXPLANATION AND CLAIM OF THE ASSESSEE AT THE TIME OF STATEMENT RECORDED U/S 132 WHEN THERE IS NO MATERIAL AND EVIDENCE TO PROV E THE CONTRARY. 8 HAVING REGARDED THE FACTS AND CIRCUMSTANCES OF TH E CASE, WE ARE OF THE CONSIDERED OPINION THAT THE CIT(A) HAS TAKEN A CORR ECT AND PROPER VIEW IN GRANTING THE BENEFIT OF THE CIRCULAR NO.1916 DT 11 .5.1994. ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THE CROSS APPEALS FILED BY TH E ASSESSEE AS WELL AS THE REVENUE AND THE SAME DESERVE TO BE DISMISSED. 8.1 THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF RATANLAL VYAARILAL JAIN (SUPRA) AS RELIED UPON BY THE ASSESS EE WILL NOT HELP THE ASSESSEE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. ACCORDING LY, THE APPEALS FILED BOTH BY THE ASSESSEE AS WELL AS REVENUE ARE DISMISSED. 9 IN THE RESULT, APPEALS FILED BY THE ASSESSEE AND THE REVENUE ARE DISMISSED. ORDER PRONOUNCED ON THE 15 TH , DAY OF JUNE 2011. SD/- SD/- ( (( ( J J J J S SS SU UU UDHAKAR REDDY DHAKAR REDDY DHAKAR REDDY DHAKAR REDDY ) )) ) ACCOUNTANT MEMBER ( (( ( VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO ) )) ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 15 TH , JUNE 2011 RAJ* 10 ITA NO.S 5706 & 5719/ MUM/2009 COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI