Poojashree chouksey, Bhopal V. ACIT-2(1), Bhopal, Bhopal

ITA 572/Ind/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7740 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 11-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S B PRASAD
• Assessee Lawyers: YASH KUKREJA CAS
• Keywords: Unexplained investment; Gift
• Section: 143(3); 250; 69A; 13; 69; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE HONBLE KUL BHARAT, JUDICIAL MEMBER AND HONBLE MANISH BORAD, ACCOUNTANT MEMBER ITA NO.572/IND/2018 ASSESSMENT YEAR 2010-11 REVENUE BY SHRI S.B. PRASAD , SR.DR ASSESSEE BY S/ SHRI HITESH CHIMNANI & YASH KUKREJA, CAS DATE OF HEARING 2 7 . 1 .20 20 DATE OF PRONOUNCEMENT 29 .1.2020 O R D E R PER MANISH BORAD, AM THE ABOVE CAPTIONED APPEAL FILED AT THE INSTANCE OF THE ASSESSEE PERTAINING TO ASSESSMENT YEAR 2010-11 IS DIRECTED AGAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEA LS)-1 (IN SHORT LD.CIT(A)], BHOPAL DATED 22.5.2018 WHICH IS ARISI NG OUT OF THE ORDER U/S 143(3) R.W.S. 153A/143(3) OF THE INCOME T AX ACT 1961(IN SHORT THE ACT) DATED 16.12.2011 FRAMED BY ACIT-2( 1), BHOPAL. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEA L; MS. POOJA SHREE CHOUKSEY, 31, SHYAMALA HILLS, BHOPAL (M.P) VS. ASSTT. COMMISSIONER OF INCOME TAX-2(1), BHOPAL (APPELLANT) (RESPONDENT ) PAN NO. AKXPC3728Q MS. POOJA SHREE CHOUKSEY ITA NO. 572/IND/2018 2 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E APPELLANTS CASE AND IN LAW, THE LD. CIT(A) UPHOLDING THE ADDITION OF RS . 6,51,090/- OUT OF TOTAL ADDITION OF RS. 9,51,090/- MADE BY LD. AO ON ACCOUN T OF JEWELLERY FOUND DURING SEARCH. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEND T HE AFORESAID GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3 . BRIEF FACTS OF THE CASE AS CULLED OUT FROM THE RECORDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL. THE ASSESSEE HAS FIL ED THE ORIGINAL RETURN OF INCOME ON 28.03.2011 DECLARING TOTAL INCO ME OF RS.6,70,502/-. A SEARCH U/S 132 WAS CARRIED OUT AT THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 23.7.2009. THE CASE FO R ASSESSMENT YEAR 2009-10 AND 2010-11 WERE TAKEN UP FOR COMPULSO RY SCRUTINY. IN ASSESSMENT YEAR 2010-11 ADDITION OF CASH DEPOSIT OF RS. 1,47,000/- IN THE BANK ACCOUNT AND ADDITION OF RS.9 ,51,090/- IN RESPECT OF JEWELLERY FOUND. ASSESSMENT U/S 143(3) FOR A.Y. 2010-11 WAS COMPLETED AT RS. 17,68,590/-. AGGRIEVED ASSESS EE PREFERRED AN APPEAL BEFORE LD. CIT(A) AND PARTLY SUCCEEDED. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST THE ADDITION OF RS.6,51,090/-. 5. LD. COUNSEL FOR THE ASSESSEE ARGUED REFERRING TO T HE FOLLOWING SUBMISSIONS:- MS. POOJA SHREE CHOUKSEY ITA NO. 572/IND/2018 3 JEWELLERY BELONGING TO THE ASSESSEE WAS FOUND DURIN G THE COURSE OF SEARCH (680 GRAMS APPROX.- 580 GMS GOLD JEWELLERY A ND 117.63 GMS DIAMOND JEWELLERY - PG 31 OF PB) THE LD. AO TREATED THE ENTIRE JEWELLERY AS UNEXPLAI NED INVESTMENT AND MADE ADDITION ON ACCOUNT OF SAME U/S 69 OF THE INCO ME TAX ACT 1961 THE ASSESSEE HAS FILED AFFIDAVITS HERSELF AS DEPONE NT AND ALSO OF HER 2 AUNTS, ALL STATING THE FACT THAT SHE RECEIVED JEWEL LERY AS A GIFT FROM HER AUNTS AND MATERNAL GRANDMOTHER ON VARIOUS OCCASIONS . (PAGE NO. 32, 33, 34 A/THE PE.) (225 GMS + 175 GMS + 300 GMS = 700 GMS APROX. OVER THE YEARS) NONE OF THE DEPONENTS HAVE BEEN DISCREDITED BY THE DEPARTMENT BY WAY OF CROSS EXAMINATION IF THE DEPONENT IS NOT CROSS-EXAMINED BY THE AUTHOR ITIES THEN MERE REJECTION OF THE AFFIDAVIT FILED BY THE ASSESSEE IS NOT JUSTIFIED [MEHTA PARIKH & CO. VS. CIT 30 ITR 181 AT 187 (SC)! ASSESSEE IS A MEMBER OF AN AFFLUENT HOUSEHOLD AND H ENCE THE AMOUNT OF JEWELLERY FOUND IS A NOT EXCESSIVE OR DISPROPORTION ATE GIVEN THE PRESTIGE AND PROMINENCE OF HER FAMILY MEMBERS AND THE FACT T HAT SHE WAS 19 YEARS OLD AT THE TIME OF SEARCH SINCE THE JEWELLERY FOUND DURING THE COURSE OF SEAR CH IS VERY MUCH REASONABLE (EVEN THOUGH IN EXCESS OF THE LIMIT PRES CRIBED AS PER CBDY CIRCULAR) THE ADDITION MADE ON ACCOUNT OF SAME IS U NCALLED FOR [VIBHU AGANVAL VS. DCIT (93 TAXMANN.COM 275 (DELHI- TRIB))/ [ASHOK CHADDHA VS. ITO 14 TAXMANLL.COM 57 (DELHI) IN ABSENCE OF ANY FURTHER EVIDENCE AND SINCE THE AB ILITY OF THE ASSESSEE TO PRODUCE FURTHER EVIDENCES IS CONSTRAINED BY THE CIR CUMSTANCE OF THE CASE THE CONTENTION OF THE ASSESSEE MAY VERY KINDLY BE A CCEPTED. MS. POOJA SHREE CHOUKSEY ITA NO. 572/IND/2018 4 6. LD. DEPARTMENTAL COUNSEL VEHEMENTLY ARGUED SUPPORT ING THE ORDERS OF LOWER AUTHORITIES. 7. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RE CORDS PLACED BEFORE US. THE SOLE GRIEVANCE OF THE ASSESSE E IS AGAINST THE FINDING OF LD. CIT(A) CONFIRMING THE ADDITION FOR U NEXPLAINED JEWELLERY AT RS.9,51,090/- FOUND DURING THE COURSE OF SEARCH CARRIED OUT U/S 132 OF THE ACT ON 23.7.2009. DURING THE CO URSE OF SEARCH JEWELLERY VALUED AT RS. 9,51,090/- (550 GRAMS) WAS FOUND AND SEIZED. THOUGH IT WAS CONTENDED BY THE ASSESSEE TH AT SHE RECEIVED THEM AS GIFTS FROM MATERNAL SIDE OF RELATIVES FROM HER BIRTH ONWARDS AND ON MANY CEREMONIAL AS PER CULTURE BUT IT WAS NO T SUFFICIENT TO CONVINCE THE LD. A.O WHO PROCEEDED AHEAD WITH THE A DDITION FOR TOTAL JEWELLERY VALUED AT RS.9,51,090/-. WHEN THE ISSUE CAME UP BEFORE THE LD. CIT(A) WHO IN VIEW OF THE GUIDELINES ISSUED BY CENTRAL BOARD OF DIRECT TAXES INSTRUCTION NO.1916 DATED 10. 05.1994 HELD THAT THE POSSESSION OF THE GOLD JEWELLERY WEIGHING 250 GRAMS WAS QUITE NORMAL FOR AN UNMARRIED GIRL IN AN INDIAN FAM ILY. LD. CIT(A) ACCORDINGLY GAVE RELIEF OF RS.3,00,000/- AND SUSTAI NED THE REMAINING ADDITION. LD. CIT(A) ALSO DID NOT GIVE A NY WEIGHTAGE TO THE AFFIDAVITS FILED BY THE ASSESSEE WHICH WERE ISS UED BY THE MS. POOJA SHREE CHOUKSEY ITA NO. 572/IND/2018 5 ASSESSEES RELATIVES WHO HAVE GIFTED GOLD JEWELLERY TO THE ASSESSEE ON VARIOUS AUSPICIOUS OCCASIONS. LD. CIT(A) FOUND THE M TO BE AFTER THOUGHT AS NO SUCH INFORMATION WAS GIVEN DURING THE COURSE OF SEARCH. 8. ON PERUSAL OF THE RECORDS AND THE SUBMISSIONS GIVE N BY THE LD. COUNSEL FOR THE ASSESSEE AS AN OFFICER OF THE C OURT, THAT DURING THE COURSE OF SEARCH NO SPECIFIC QUESTION WAS ASKED TO THE ASSESSEE ABOUT THE SOURCE OF JEWELLERY. IN THE AFFIDAVIT GI VEN BY THE ASSESSEE ON PAGE 32 OF PAPER BOOK THE ASSESSEE HAS CLAIMED T O HAVE RECEIVED JEWELLERY WEIGHING APPROXIMATE 700 GRAM AS GIFT FRO M HER LATE GRAND MOTHER SMT. KALAWATI GUPTA, TWO MATERNAL AUNTS SMT . LAXMI GUPTA AND SMT. SAOJINI CHOUSKEY. FURTHER ON PAGES 33 & 34 OF THE PAPER BOOK AFFIDAVIT GIVEN BY SMT. LAXMI GUPTA AND SMT. SAOJINI CHOUSKEY ARE ALSO FILED, BOTH OF WHOM ARE S ENIOR CITIZENS AND WERE EMPLOYED AS LECTURERS HAVING SUFFICIENT AC CUMULATED SAVINGS. SMT. LAXMI GUPTA GIFTED 225 GRAMS OF GOLD JEWELLERY AND SMT. SAOJINI CHOUSKEY HAS GIFTED 175 GRAMS OF GOLD JEWELLERY. THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE REFE RRING TO VARIOUS JUDGMENTS IS THAT GUIDELINES GIVEN BY CBDT INSTRUCT ION NO. 1916 DATED 10.5.1994 SHOULD NOT BE APPLIED STRICTLY AND LOWER MS. POOJA SHREE CHOUKSEY ITA NO. 572/IND/2018 6 AUTHORITIES SHOULD HAVE TAKEN A LENIENT VIEW LOOKIN G TO THE STATUS OF THE FAMILY AND THE INDIAN CUSTOMS WHERE GIFTING OF GOLD JEWELLERY IS VERY COMMON. THE ABOVE CONTENTION OF THE LD. COUNS EL FOR THE ASSESSEE NEEDS TO BE EXAMINED IN THE LIGHT OF JUDIC IAL PRONOUNCEMENTS. 9. WE FIND THAT THE HON'BLE DELHI HIGH COURT IN THE C ASE OF ASHOK CHADDHA VS. INCOME TAX OFFICER (2011) 14 TAXMANN.CO M 57 HELD AS UNDER:- 3. LEARNED COUNSEL FOR THE RESPONDENT ON THE OTHER HAND RELIED UPON THE REASONING GIVEN BY THE AUTHORITIES BELOW. AFTER CON SIDERING THE AFORESAID SUBMISSIONS WE ARE OF THE VIEW THAT ADDITION MADE I S TOTALLY ARBITRARY AND IS NOT FOUNDED ON ANY COGENT BASIS OR EVIDENCE. WE HAVE TO KEEP IN MIND THAT THE ASSESSEE WAS MARRIED FOR MORE THAN 25-30 YEARS. THE JEWELLERY IN QUESTION IS NOT VERY SUBSTANTIAL. THE LEARNED COUNS EL FOR THE APPELLANT/ASSESSEE IS CORRECT IN HER SUBMISSION THA T IT IS A NORMAL CUSTOM FOR WOMAN TO RECEIVE JEWELLERY IN THE FORM OF 'STRE E DHAN' OR ON 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 I S NOT ABNORMAL. FURTHERMORE, THERE WAS NO VALID AND/OR PROPER YARDS TICK ADOPTED BY THE ASSESSING OFFICER TO TREAT ONLY 400 GRAMS AS 'REASO NABLE ALLOWANCE' AND TREAT THE OTHER AS 'UNEXPLAINED'. MATTER WOULD HAVE BEEN DIFFERENT IF THE QUANTUM AND VALUE OF THE JEWELLERY FOUND WAS SUBSTA NTIAL. 4. 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 ASSESS EE AND AGAINST THE MS. POOJA SHREE CHOUKSEY ITA NO. 572/IND/2018 7 REVENUE THEREBY DELETING THE AFORESAID ADDITION OF RS. 3,87,364. APPEAL IS ALLOWED IN THE AFORESAID TERMS. 10. WE ALSO FIND THAT THE HON'BLE I.T.A.T. DELHI BENCH IN THE CASE OF VIBHU AGGARWAL VS. DCIT (2018) 93 TAXMANN.COM 27 5 HELD AS UNDER; 6.. WE HAVE HEARD BOTH THE PARTIES AND PERUSED TH E RECORDS, ESPECIALLY THE ORDERS OF THE AUTHORITIES BELOW AND THE CASE LA WS REFERRED BY ASSESSEE'S COUNSEL. WE FIND THAT IN THIS CASE A SEA RCH & SEIZURE OPERATION UNDER SECTION 132 OF THE IT ACT WAS CONDUCTED AT TH E BUSINESS PREMISES OF M/S BEST GROUP AND AS WELL AS IN THE RESIDENTIAL P REMISE OF THE DIRECTORS ON 28.03.2011, IN CONSEQUENCE TO WHICH THE CASE OF THE ASSESSEE WAS TAKEN UP FOR SCRUTINY. THE AO CALLED FOR AN EXPLANA TION DURING THE ASSESSMENT PROCEEDINGS EXPLAINING ALL THE ITEMS OF JEWELLERY FOUND DURING THE COURSE OF SEARCH. IN REPLY, THE ASSESSEE EXPLAI NED THAT THE JEWELLERY BELONGS TO THE ASSESSEE'S PARENTS, THEIR HUF, ASSES SEE'S FAMILY MEMBERS AND HIS HUF. MOST OF THE JEWELLERY ITEMS WERE INHER ITED FROM HIS GRANDPARENTS AND RECEIVED AS GIFTS ON THE OCCASION OF MARRIAGE AND BIRTH OF HIS CHILDREN AND ALSO GIFTS WERE RECEIVED ON MAR RIAGE ANNIVERSARY, BIRTHDAYS OF CHILDREN ETC. AND THERE WAS NO OCCASIO N TO FILE THE WEALTH TAX AS THE NET WEALTH DID NOT EXCEED THE MINIMUM LIMIT PRESCRIBED UNDER THE WEALTH TAX FROM PERIOD TO PERIOD IN EACH CASE, THER EFORE NEITHER THE ASSESSEE NOR HIS FAMILY MEMBERS WERE ASSESSED TO WE ALTH TAX. THE AO HAS COMPLETED THE ASSESSMENT BY MAKING AN ADDITION OF 40,73,373 ON ACCOUNT OF UNEXPLAINED INVESTMENT IN JEWELLERY. THE TOTAL JEWELLERY FOUND DURING THE COURSE OF SEARCH WAS 2531.5 GMS, OUT OF WHICH THE AO HAS GIVEN ASSESSEE THE BENEFIT OF 950 GMS, AS PER THE C BDT INSTRUCTION NO. MS. POOJA SHREE CHOUKSEY ITA NO. 572/IND/2018 8 1916 ON ACCOUNT OF WIFE AND TWO CHILDREN OF THE ASS ESSEE. WE FURTHER NOTE THAT IN APPEAL LD. CIT(A) HAS FURTHER ALLOWED THE B ENEFIT OF 600 GMS. OF JEWELLERY ON ACCOUNT OF MOTHER AND FATHER OF THE AS SESSEE, HOLDING THAT THE SAME WAS ALLOWABLE TO THE ASSESSEE AS PER THE CBDT INSTRUCTION NO. 1916, BUT HOWEVER, SUSTAINED THE BALANCE ADDITION M ADE BY THE AO, VIDE ORDER DATED 22.12.2014, TREATING THE BALANCE JEWELL ERY WEIGHTING 1050 GMS OF GOLD AS UNEXPLAINED, WITHOUT APPRECIATING TH E FACT THAT ASSESSEE BELONGS TO A WEALTHY FAMILY WHERE GIFTING OF JEWELL ERY POSSESSED BY EACH OF THE FAMILY MEMBERS; ALL THE FAMILY MEMBERS AS WE LL AS THE HUF WERE ASSESSED TO TAX SEPARATELY; THE ASSESSEE HAS BEEN M ARRIED FROM THE PAST 18 YEARS, AND ALSO HAD TWO CHILDREN, THE JEWELLERY WAS GIFTED/INHERITED TO THE ASSESSEE AND HIS WIFE BY THEIR PARENTS AND GRAN DPARENTS AND OTHER RELATIVES AT THE TIME OF THEIR MARRIAGE, AND ALSO O N SEVERAL OCCASIONS AFTER THAT, SUCH AS BIRTH OF THEIR TWO CHILDREN, MARRIAGE ANNIVERSARIES ETC. ALSO SOME OF THE JEWELLERY WAS PURCHASED BY ASSESSE'S WI FE OUT OF THE CASH GIFTS RECEIVED BY HER FROM THE RELATIVES ON VARIOUS OCCASIONS. WE ALSO OBSERVE THAT THAT THE CBDT INSTRUCTION NO. 1916 DAT ED 11.5.1994 VIDE PARA NO. (III) STIPULATES AS UNDER: 'THE AUTHORIZED OFFICER MAY, HAVING REGARD TO THE S TATUS OF THE FAMILY, AND THE CUSTOM AND PRACTICES OF THE COMMUNI TY TO WHICH THE FAMILY BELONGS AND OTHER CIRCUMSTANCES OF THE CASE, DECIDE TO EXCLUDE A LARGER QUANTITY OF JEWELLERY AND ORNAMENT S FROM SEIZURE.' 6.1 IN VIEW OF ABOVE INSTRUCTIONS, THE EXCESS JEWEL LERY FOUND IN THE CASE OF ASSESSEE, HIS PARENTS, HIS WIFE, THEIR CHILDREN AND THE HUF WAS VERY NOMINAL, AND WAS VERY MUCH REASONABLE, KEEPING IN M IND THE RICHES AND HIGH STATUS AND MORE CUSTOMARY PRACTICES. OUR AFORE SAID VIEW IS FORTIFIED BY FOLLOWING DECISIONS/JUDGMENTS:- (I) JUDGMENT OF THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF ASHOK CHADDHA (SUPRA) WHEREIN THE HON'BLE HIGH COURT HAS ACCEPTED THE MS. POOJA SHREE CHOUKSEY ITA NO. 572/IND/2018 9 JEWELLERY OF 906.60 GRAMS IN THE CASE OF MARRIED LA DY EVEN WITHOUT DOCUMENTARY EVIDENCE AS THE DENYING THE EXPLANATION WOULD TANTAMOUNT TO OVERLOOKING THE REALITIES OF LIFE BY HOLDING AS UNDER:- 'AS FAR AS ADDITION QUA JEWELLERY IS CONCERNED, DUR ING THE COURSE OF SEARCH, JEWELLERY WEIGHING 906.900 GRAMS OF THE VAL UE AMOUNTING TO RS. 6,93,582 WAS FOUND. THE APPELLANT'S EXPLANATION WAS THAT HE WAS MARRIED ABOUT 25 YEARS BACK AND THE JEWELLERY C OMPRISED 'STREEDHAN' OF SMT. JYOTI CHADHA, HIS WIFE AND OTHE R SMALL ITEMS JEWELLERY SUBSEQUENTLY PURCHASED AND ACCUMULATED OV ER THE YEARS. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE A BOVE EXPLANATION ON THE GROUND THAT DOCUMENTARY EVIDENCE REGARDING F AMILY STATUS AND THEIR FINANCIAL POSITION WAS NOT FURNISHED BY THE A PPELLANT. THE ASSESSING OFFICER ACCEPTED 400 GRAMS OF JEWELLERY A S EXPLAINED AND TREATED JEWELLERY AMOUNTING TO 506.900 GRAMS AS UNE XPLAINED AND MADE AN AD HOC ADDITION OF RS. 3,87,364 UNDER SECTI ON 69A OF THE ACT WORKING ON UNEXPLAINED JEWELLERY, BY APPLYING AVERA GE RATE OF THE TOTAL JEWELLERY FOUND. THE RELEVANT PORTION OF THE ASSESSMENT ORDER READS AS FOLLOWS:- 'A VERY REASONABLE ALLOWANCE OF OWNERSHIP OF GOLD J EWELLERY TO THE EXTENT OF 400 GRAMS IS CONSIDERED REASONABLE AND TH E BALANCE QUANTITY OF 506 GRAMS BY APPLYING AVERAGE RATE, THE UNEXPLAINED GOLD JEWELLERY IS CONSIDERED AT RS. 3,87,364 (506/900 X 6,93,582) U/S 69A OF THE ACT.' THE CIT (A) CONFIRMED THIS ADDITION STATING THAT TH E ASSESSING OFFICER HAD BEEN FAIR IN ACCEPTING THE PART OF JEWELLERY AS UNEXPLAINED. THE ITAT HAS ALSO ENDORSED THE AFORESAID VIEW. LEARNED COUNSEL FOR APPELLANT MS. KAPILA SUBMITTED THAT THERE WAS NO BA SIS FOR THE ASSESSING OFFICER TO ACCEPT THE OWNERSHIP OF THE GO LD JEWELLERY TO THE EXTENT OF 400 GRAMS ONLY AS 'REASONABLE ALLOWANCE' AND TREAT THE MS. POOJA SHREE CHOUKSEY ITA NO. 572/IND/2018 10 REMAINING JEWELLERY OF RS. 506.900 AS UNEXPLAINED. SHE ALSO SUBMITTED THAT ANOTHER GLARING FACT IGNORED BY THE ASSESSING OFFICER AS WELL AS OTHER AUTHORITIES WAS THAT AS THE DEPART MENT HAD CONDUCTED A SEARCH OF ALL THE FINANCIAL DEALINGS WH ICH WERE WITHIN HIS KNOWLEDGE AND NO PAPER OR DOCUMENT WAS FOUND TO IND ICATE 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 ADDIT ION ON SUBJECTIVE GUESS WORK, CONJECTURES AND SURMISES. IT WAS ALSO A RGUED THAT JEWELLERY IS 'STREEDHAN' OF THE ASSESSEE'S WIFE, EV IDENCED IN THE FORM OF DECLARATION WHICH WAS FURNISHED BY MOTHER-IN-LAW OF THE ASSESSEE STATING THAT SHE HAD GIVEN THE JEWELLERY IN QUESTIO N TO HER DAUGHTER. SHE ARGUED THAT IT IS A NORMAL CUSTOM FOR A WOMAN T O RECEIVE JEWELLERY IN THE FORM OF MARRIAGE AND OTHER OCCASIO NS 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. 3. LEARNED 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 ADDIT ION MADE IS TOTALLY ARBITRARY AND IS NOT FOUNDED ON ANY COGENT BASIS OR EVIDENCE. WE HAVE TO KEEP IN MIND THAT THE ASSESSEE WAS MARRI ED 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 RECEIVE JEWELLERY IN THE FORM OF 'STREEDHAN' OR ON OTHER OCCASIONS SU CH 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. FURTHE RMORE, THERE WAS NO VALID AND/OR PROPER YARDSTICK ADOPTED BY THE ASS ESSING OFFICER TO TREAT ONLY 400 GRAMS AS 'REASONABLE ALLOWANCE' AND TREAT THE OTHER MS. POOJA SHREE CHOUKSEY ITA NO. 572/IND/2018 11 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 THE FINDI NGS 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 AFORES AID ADDITION OF RS. 3,87,364. 5. APPEAL IS ALLOWED IN THE AFORESAID TERMS.' (II) JURISDICTION HIGH COURT IN THE CASE OF SUSHIL A DEVI (SUPRA) WHEREIN IT HAS BEEN HELD AS UNDER:- 'THE INCOME TAX AUTHORITIES RATIONALE OR JUSTIFICAT ION IS ENTIRELY INSUBSTANTIAL. THE ASSESSEE SAYS THAT SHE WAS MARRI ED IN MID 1960S AND HER DAUGHTERS WERE BORN IN 1967. SHE WAS 70 WHE N THESE PROCEEDINGS WERE STARTED. THE INCOME TAX AUTHORITIE S DO NOT DENY THIS. IN THE CIRCUMSTANCES, THE FURTHER EXPLANATION THAT THE JEWELLERY BELONGED TO HER AND REPRESENTED ACCUMULATIONS OF GI FTS RECEIVED FROM FAMILY MEMBERS OVER A PERIOD OF TIME, AND ALSO ACQU IRED DURING THE SUBSISTENCE OF HER MARRIAGE IS REASONABLE AND LOGIC AL [PARA 9]. THE ASSESSEE'S EXPLANATION IS JUSTIFIED AND REASONA BLE. HER CONTENTION THAT THE GOLD JEWELLERY WAS ACQUIRED THR OUGH GIFTS MADE BY RELATIVES AND OTHER FAMILY MEMBERS OVER A LONG PERI OD OF TIME, IS IN KEEPING WITH PREVAILING CUSTOMS AND HABITS. THE OBD URATE REFUSAL OF THE RESPONDENTS TO RELEASE THE JEWELLERY CONSTITUTE S DEPRIVATION OF PROPERTY WITHOUT LAWFUL AUTHORITY AND IS CONTRARY T O ARTICLE 300A OF THE CONSTITUTION OF INDIA. THE PETITION HAS TO SUCC EED; A DIRECTION IS ISSUED TO THE INCOME TAX AUTHORITY TO RELEASE THE J EWELLERY WITHIN TWO WEEKS AND IN THAT REGARD INTIMATE TO THE ASSESSEE T HE TIME AND PLACE MS. POOJA SHREE CHOUKSEY ITA NO. 572/IND/2018 12 WHERE SHE (OR HE REPRESENTATIVE) CAN RECEIVED IT [P ARA 10].' (II) ITAT, DELHI DECISION IN THE CASE OF SUNEELA S ONI (SUPRA) WHEREIN THE TRIBUNAL HAS ACCEPTED THE JEWELLERY IN EXCESS O F LIMITS SPECIFIED IN THE CSDT INSTRUCTION NO. 1916, BY FOLLOWING THE DEC ISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF ASHOK CHADD HA (SUPRA). 6.2 AFTER PERUSING THE AFORESAID DECISIONS OF THE H ON'BLE DELHI HIGH COURT AS WELL AS THE ITA T, DELHI, WE ARE OF THE CONSIDER ED VIEW THAT FACTS AND CIRCUMSTANCES OF THE PRESENT CASE ARE SIMILAR TO TH E AFORESAID DECISION OF THE HON'BLE DELHI HIGH COURT AND TRIBUNAL, HENCE, T HE ISSUE IN DISPUTE IS SQUARELY COVERED BY THE AFORESAID DECISIONS. 6.3 KEEPING IN VIEW OF THE AFORESAID FACTS AND CIRC UMSTANCES OF THE CASE AS WELL AS THE STATUS OF THE FAMILY AND ON THE ANVI L OF THE JUDGEMENT OF THE HIGH COURT OF DELHI IN THE CASE OF ASHOK CHADDHA (S UPRA) & OF SUSHILA DEVI (SUPRA) AND THE ITA T DELHI DECISION IN THE CA SE OF SUNEELA SONI (SUPRA), THE EXPLANATION GIVEN BY THE ASSESSEE'S CO UNSEL IS ACCEPTED. ACCORDINGLY THE ORDERS OF THE AUTHORITIES BELOW ARE CANCELLED AND ADDITION MADE BY THE AO AND PARTLY CONFIRMED BY THE LD. CIT( A) ON ACCOUNT OF BALANCE JEWELLERY WEIGHTING 1050 GMS OF GOLD AS UNE XPLAINED IS HEREBY DELETED. 7. IN THE RESULT, ASSESSEE'S APPEAL IS ALLOWED. 11. AFTER CAREFULLY EXAMINING THE FACTS OF THE INSTA NT CASE IN THE LIGHT OF ABOVE DECISION AND ALSO LOOKING TO THE FAC T THAT THE ASSESSEE HAS PLACED EVIDENCE ON RECORD TO EXPLAIN THE SOURCE OF JEWELLERY FOUND DURING THE COURSE OF SEARCH IN THE FORM OF AF FIDAVITS GIVEN BY HER RELATIVES HAVING SUFFICIENT MEANS, WE DIRECT TH E REVENUE MS. POOJA SHREE CHOUKSEY ITA NO. 572/IND/2018 13 AUTHORITIES TO DELETE THE ADDITION FOR UNEXPLAINED JEWELLERY OF RS.6,51,090/-. HOWEVER OUR THIS VIEW SHOULD NOT TA KEN AS A PRECEDENCE AS THE SAME DEPENDS ON THE MATERIAL FACT S OF A PARTICULAR CASE. THUS GROUND NO.1OF THE ASSESSEE I S ALLOWED. 12. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWE D. THE ORDER PRONOUNCED IN THE OPEN COURT ON 29.01.202 0. SD/- SD/- ( KUL BHARAT) (MANI SH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 29 JANUARY, 2020 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE