ASHOK J. THAKKAR, MUMBAI V. ASST CIT CEN CIR 39, MUMBAI

ITA 5732/MUM/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0164 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 23-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V JANARDHANAN
• Assessee Lawyers: DI LIP J THAKKAR
• Keywords: Unexplained investment; Gift; Corroborative evidences; Valuation report

Judgement Text

, SMC , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO.5732/MUM/2016 : ASST.YEAR 2012-2013 LATE SHRI ASHOK J.THAKKAR (THROUGH LEGAL HEIR SMT.SMITA ASHOK THAKKAR, 111-A, MAHATMA GANDHI ROAD KARIMJI BUILDING, FORT MUMBAI 400 023. PAN : AAAPT7132J. / VS. ASST.COMMISSIONER OF INCOME - TAX CENTRAL CIRCLE 39 MUMBAI. ( / APPELLANT) ( / RESPONDENT) /APPELLANT BY : SHRI DILIP J.THAKKAR & SHRI RAJESH P.SHAH /RESPONDENT BY : SHRI V.JANARDHANAN / DATE OF HEARING : 04.07.2017 / DATE OF PRONOUNCEMENT : 04.09.2017 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF LEARNED CIT(A) DATED 21.07.2016 AND PERTAINS TO ASSESSMENT YEAR 2012-2013. 2. THE GROUNDS OF APPEAL READ AS UNDER:- 1. ON THE FACTS AND UNDER THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS. 10,02,226/- ON ACCOUNT OF UNEXPLAINED JEWELLERY, WHICH DID NOT BELONG TO THE APPELLANT. 2. ON THE FACTS AND UNDER THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN IGNORING THE COGENT EVIDENCE ON RECORD AND THE FACT THAT THE SAID JEWELLERY WAS NOT FOUND FROM THE PREMISES OF THE APPELLANT BUT WAS IN A BANK LOCKER IN THE NAME OF THE APPELLANT'S MARRIED DAUGHTER, WHILE CONFIRMING THE ADDITION. 3. ON THE FACTS AND UNDER THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN RELYING UPON THE VIEWS EXPRESSED IN ANOTHER ITA NO.5732/MUM/2016. LATE SHRI ASHOK J THAKKAR (THROUGH LH SMT.SMITA ASHOK THAKKAR). 2 APPELLANT'S CASE BY ANOTHER CIT(A) WHO HAS NO JURISDICTION OVER THIS APPELLANT'S CASE, WHILE CONFIRMING THE ADDITION. 4. THE APPELLANT CRAVED LEAVE TO ADD TO, ALTER AND/OR MODIFY ANY OF THE ABOVE GROUNDS OF APPEAL. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSMENT IN THIS CASE WAS FRAMED PURSUANT TO THE SEARCH ACTION ON THAKKAR GROUP. THE IMPUGNED ADDITION FOR THE JEWELLERY FOUND WAS MADE BY THE ASSESSING OFFICER BY ELABORATELY BRINGING OUT THE JEWELLERY FOUND AND THE ASSESSEES EXPLANATION THERE UPON. THE ASSESSING OFFICER DULY GAVE CREDIT FOR THE JEWELLERY PROPERLY EXPLAINED AND MADE ADDITION FOR AN AMOUNT OF RS.10,02,226 FOR THE JEWELLERY FOR WHICH THE ASSESSEES EXPLANATION WAS NOT COGENT. 4. THE ASSESSING OFFICERS ORDER IN THIS REGARD MAY BE GAINFULLY REFERRED AS UNDER:- THE TOTAL JEWELLERY FOUND IS AS UNDER:- JEWELLERY FROM LOCKER OF BANK OF BARODA 1121.000 JEWELLERY FROM LOCKER OF BANK OF INDIA 1502.000 JEWELLERY FROM HOME 411.400 ------------ 3034.400 GOLD CONTENTS IN DIAMONDS JEWELLERY 50.780 ------------ 3085.180 JEWELLERY ON PERSON (SMT.SMITA THAKKAR) 166.300 ------------ TOTAL JEWELLERY 3251.480 OUT OF THE ABOVE, JEWELER FOUND, THE ASSESSEE FILED EXPLANATION GRAM-WISE AND THE FINDING THEREOF ARE AS UNDER: ITA NO.5732/MUM/2016. LATE SHRI ASHOK J THAKKAR (THROUGH LH SMT.SMITA ASHOK THAKKAR). 3 I) 982.000 GRAMS- THE ASSESSEE HAS PROVIDED BILLS, VALUATION REPORT AND BANK STATEMENTS AS PROOF. THE SAME HAS BEEN CONSIDERED AND FOUND TO BE IN ORDER. II) 567.200 GRAMS- THE ASSESSEE EXPLAINED THIS JEWELLERY WAS RECEIVED AS GIFT BY SMT. DARSHITA. HOWEVER, THE ASSESSEE'S EXPLANATION IS NOT ACCEPTABLE AS THE ASSESSEE FAILED TO PROVIDE ANY DOCUMENTARY EVIDENCE IN THIS REGARD. THE CLAIM OF GIFT IS MADE NOW AFTER A GAP OF TWO YEARS OF SEARCH. III) 584.70 GRAMS- THE ASSESSEE EXPLAINED THERE WAS A WEALTH-TAX ASSESSMENT IN THE CASE OF THE ASSESSEE IN A.Y. 1992-93 WHEREIN THE VALUATION HAS BEEN ENHANCED BY RS. 3,50,000/-. THE ASSESSEE HAS SUBMITTED RELEVANT COPIES OF THE SAID ORDER. THE ASSESSEE HAS SUBMITTED RELEVANT COPIES OF THE SAID ORDER. THE ASSESSEE SUBMITTED THAT OUT OF SUCH AMOUNT OF RS. 2,00,000/- PERTAINING THIS JEWELLERY. IN VIEW OF THE ABOVE, THE EXPLANATION OF THE ASSESSEE S ACCEPTABLE AND FOUND TO BE IN ORDER, IV) 126.55 GRAMS- THE ASSESSEE SUBMITTED THAT THE JEWELLER/ PERTAIN TO SHH JEHIL THAKKAR AND SUBMITTED THE VALUATION REPORT. THE SUBMISSION AND EXPLANATION IS FOUND TO BE ACCEPTABLE. V) 349.00 GRAMS- IN THIS CONTEXT THE ASSESSEE EXPLAINED THE SOURCE STATING THAT SHRI ASHOK THAKKAR HAS WITHDRAWN CASH FROM FHE BANK ACCOUNF AND PURCHASED SUCH AMOUNTS. HOWEVER, THE SAME IS NOT ACCEPTABLE DUE TO THE FACT THAT THE ASSESSEE HAS NOT PROVIDED ANY DOCUMENTARY EVIDENCE IN THE FORM OF BILLS/VOUCHERS ETC. VI) 72.99 GRAMS- THE ASSESSEE HAS SUBMITTED THAT THE SAME WAS PURCHASED OUT OF CASH WITHDRAWAL FROM SHRI ASHOK THAKKAR HUF OF RS. 75,000/-. HOWEVER, THE SAME IS NOT ACCEPTABLE DUE TO THE FACT THAT THE ASSESSEE HAS NOT PROVIDED ANY DOCUMENTARY EVIDENCE IN THE FORM OF BILLS AND VOUCHERS ETC. ITA NO.5732/MUM/2016. LATE SHRI ASHOK J THAKKAR (THROUGH LH SMT.SMITA ASHOK THAKKAR). 4 VII) 166.300 GRAMS- AT THE TIME OF SEARCH, THE JEWELLERY IS ON PERSON OF THE ASSESSEE AND NO EXPLANATION HAS BEEN OFFERED FOR SUCH JEWELLERY. VIII) 180.000 GRAMS- THE ASSESSEE HAS SUBMITTED THAT THE JEWELLERY WAS PURCHASED OUT OF CASH GIFTS RECEIVED BY SMT. DARSHITA. THE SAME IS ALSO NOT ACCEPTABLE IN VIEW OF THE FACT THAT THE ASSESSEE COULD NOT SUBSTANTIATE THE CLAIM WITH DOCUMENTARY EVIDENCE IN THE FORM OF BILLS/VOUCHERS. THE CLAIM OF THE GIFT IS MADE NOW AFTER A GAP OF TWO YEARS OF SEARCH. IX) 222.77 GRAMS- THE ASSESSEE HAS FAILED TO PROVIDE ANY EXPLANATION FOR THE SAME JEWELLERY. FROM THE ABOVE, IT IS CLEAR THAT THE ASSESSEE FAILED TO PROVIDE ANY N FOR JEWELLERY VALUING 1558.2 GRAMS (567.200 + 349.00 + 72.99 + + 180.000). THE EXPLANATION OF THE ASSESSEE IS DEVOID OF ANY MERITS IS PURELY ON AFTER THOUGHTS. THE ASSESSEE HAD FAILED TO EXPLAIN THE SAME DURING THE SEARCH PROCEEDINGS AND POST SEARCH PROCEEDINGS. THE ASSESSEE WAS ASKED TO EXPLAIN THE SAME VIDE DETAIL QUESTIONNAIRE DATED 06/08/2013. HOWEVER, THE ASSESSEE FAILED TO OFFER ANY EXPLANATION WITH SUPPORTING EVIDENCE. THE ASSESSEE CONTENDS THAT THE CASH WITHDRAWALS WERE ONLY MEANT FOR PURCHASE OF JEWELLERY. THE ASSESSEE NEVER TRIED TO THIS FACT IN ANY OF THE EARLIER SUBMISSIONS. NOW AFTER ALMOST TWO AND HALF YEARS OFFER YE SEARCH PROCEEDINGS WERE COMPLETED, THE ASSESSEE IS TRYING TO EXPLAIN THE SAME WITHOUT ANY BASIS OR SUPPORTING EVIDENCE. EVEN, THEN THE CONTENTION OF THE ASSESSEE THAT CASH WITHDRAWALS DURING THE MARRIAGE OF THEIR DAUGHTER SMT. DARSHITA THAKKAR WERE ONLY MEANT TO PURCHASE JEWELLERY AND NOT FOR ANY OTHER EXPENSES RELATED TO MARRIAGE IS WITHOUT ANY BASIS. THEREFORE, THE REASONING OF THE ASSESSEE IS REJECTED. OUT OF THE JEWELLERY MENTIONED IN 7.5, AS PER ASSESSEE'S SUBMISSION, JEWELLERY VALUING 72,99 GRAMS AND 349.00 GRAMS AGGREGATING TO 421.99 GRAMS WERE SOURCED BY THE ASSESSEE. THEREFORE, THE SAME HAS BEEN CONSIDERED IN THE HANDS OF THE ASSESSEE. ITA NO.5732/MUM/2016. LATE SHRI ASHOK J THAKKAR (THROUGH LH SMT.SMITA ASHOK THAKKAR). 5 AS FAR AS REMAINING JEWELLERY WORTH 1136.21 GRAMS IS CONCERNED, EVEN THOUGH THE ASSESSEE HAS TRIED TO SHOW THE SOURCE IN THE HANDS OF SMT. DARSHITA AND SMT. SMITA THAKKAR, ALL THE JEWELLERY VALUING 1136.21 GRAMS IS CONSIDERED AS UNEXPLAINED INVESTMENTS IN THE HANDS OF SMT. SMITA THAKKAR, AND THIS FACT IS EVIDENT FROM THE PANCHANAMA AND VALUATION REPORTS IN THE DEPARTMENTAL VALUERS DURING THE SEARCH PROCEEDINGS ON 10/08/2011 AND IS DEALT WITH SEPARATELY IN THE ORDER OF SMT. SMITA THAKKAR. WITH REFERENCE TO QUANTIFICATION OF ADDITION IS CONCERNED, CONSIDERING THE FACT THAT THE VALUERS WHILE VALUING THE JEWELLERY HAVE TAKEN THE RATE PER GRAM AT RS. 2,375/- WHICH FACT HAS BEEN ACCEPTED BY THE ASSESSEE IN HIS SUBMISSION DATED 24/03/2014 IN PARA 3, THE SAME IS TAKEN AS RATE PER GRAM WHILE DETERMINING THE QUANTUM OF THE UNEXPLAINED INVESTMENTS. CONSIDERING THE ABOVE, FACTS, AN ADDITION OF RS. 10,02,226/- (421.99 GRAMS X RS. 2375/-) IS MADE ON ACCOUNT OF UNEXPLAINED JEWELLERY UNDER SECTION 69A OF THE ACT IN THE HANDS OF THE ASSESSEE. 5. UPON ASSESSEES APPEAL, LEARNED CIT(A) ELABORATELY CONSIDERED THE ISSUE. HE CONFIRMED THE ACTION OF THE ASSESSING OFFICER. HE ALSO NOTED THAT THE PLEA THAT THE JEWELLERY DID NOT BELONG TO ASSESSEES MARRIED DAUGHTER HAS ALREADY BEEN UPHELD BY THE CONCERNED CIT(A) MAKING THE ASSESSMENT FOR THE DAUGHTER. 6. THE ORDER OF THE LEARNED CIT(A) IN THIS REGARD MAY BE GAINFULLY REFERRED AS UNDER:- 7.4.1 I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE APPELLANT HAS ITA NO.5732/MUM/2016. LATE SHRI ASHOK J THAKKAR (THROUGH LH SMT.SMITA ASHOK THAKKAR). 6 REQUESTED TO DELETE THE IMPUGNED ADDITION OF RS. 10,02,226/-, BEING UNEXPLAINED INVESTMENT IN JEWELLERY. THE APPELLANT'S MAIN CONTENTIONS ARE THAT THE JEWELLERY UNDER CONSIDERATIONS WERE PURCHASED PAYING CASH WHICH WAS WITHDRAWN FROM BANK SELLERS WERE RELUCTANT TO ACCEPT CHEQUES AND THE APPELLANT HAS CHART OF SUCH CASH WITHDRAWALS ARID PAYMENTS BY CHEQUES BEFORE, DURING AND AFTER THE DAUGHTER'S WEDDING; THE OTHER MARRIAGE RELATED EXPENSES WERE MADE BY CHEQUES AND CASH WITHDRAWN FROM BANKS; THE JEWELLERY UNDER CONSIDERATION BELONGED TO HIS DAUGHTER SIMT. DARSHITA THAKKAR TALIM WHO WAS RESIDING AT USA AND HENCE THE SAID INVESTMENTS IN JEWELLERY SHOULD NOT HAVE BEEN MADE IN THE HANDS OF THE APPELLANT. THE CONTENTIONS OF THE APPELLANT HAVE BEEN CONSIDERED CAREFULLY. FROM THE PERUSAL OF ASSESSMENT ORDER THAT THE LD. AO HAS COMPUTED THE TOTAL JEWELLERY FOUND AT 3251.480 GMS. AND HELD THAT OUT OF SAME JEWELLERY WEIGHING 1558.2 GRAMS [567.200 + 349.00 + 72.99 + 166.300 + 180.00) WERE UNEXPLAINED. IT IS ALSO OBSERVED THAT THE TOTAL OF 567.200 + 349,00 + 72.99 + 166.300 + 180.00 WORKS OUT TO BE 1 335.49 GRAMS WHEREAS THE LD. AO HAS ADOPTED THE SAME AT 1 558.2 GRAMS. HENCE THERE IS DIFFERENCE OF 222.71 GRAMS AND FROM PERUSAL OF PAGE 7 OF ASSESSMENT ORDER IT IS OBSERVED THAT IN PARA 7.5 (IX) THE LD. AO HAS HELD THAT 222.71 GRAMS OF JEWELLERY WAS FOUND UNEXPLAINED BUT THE SAME WAS NOT INCLUDED IN ABOVE WORKING. HENCE, THE TOTAL OF 1558.2 GRAMS HAVE BEEN CORRECTLY COMPUTED BY THE LD. AO, HOWEVER WHILE GIVING BREAK UP OF SAME THE LD. AO HAD OMITTED TO INCLUDE THE SAID 222.71 GRAMS OF UNEXPLAINED JEWELLERY. OUT OF SAID LOTAL UNEXPLAINED JEWELLERY AT 1558.2 GRAMS THE LD. AO HAS CONSIDERED 421.99 GRAMS OF JEWELLERY AS UNEXPLAINED IN THE HANDS OF APPELLANT AND BALANCE OF 1136.21 GRAMS OF UNEXPLAINED JEWELLERY WAS CONSIDERED IN THE HANDS OF APPELLANT'S WIFE SMT. SMITA A THAKKAR. 7.4.2 FROM THE PERUSAL OF ASSESSMENT ORDER IT IS OBSERVED THAT THE APPELLANT VIDE HIS STATEMENT DATED 28.09.2011, WHILE EXPLAINING THE SOURCE OF INVESTMENTS MADE IN JEWELLERY FOUND DURING THE SEARCH AT RESIDENCE IN RESPONSE TO Q.7 WHEREIN HE WAS APPRISED OF THE FACT THAT HIS REQUEST CANNOT BE CONSIDERED FULLY AS EXPLAINED AND ALSO ALREADY ALLOWED PART OF THE JEWELLERY ITA NO.5732/MUM/2016. LATE SHRI ASHOK J THAKKAR (THROUGH LH SMT.SMITA ASHOK THAKKAR). 7 FOUND IN LOCKER NO. 321 AT BANK OF INDIA, WALKESHV/AR BRANCH, MUMBAI AS PER INSTRUCTION NO. 1916 AND CONSIDERING HIS FAMILY STATUS ETC AND HENCE THE AUTHORISED OFFICER/ASSESSING OFFICER HAS EXPRESSED THAT HE CAN ALLOW THE JEWELLERY VALUED ON PERSON AT THE RESIDENCE CAN BE CONSIDERED AS ALLOWED AS PER INSTRUCTION NO. 1916 AND THE FAMILY ETC., APART FROM THE JEWELLERY ALLOWED OUT OF THE JEWELLERY FOUND IN THE LOCKER NO. 321 , THE BALANCE JEWELLERY WAS SEIZED AS PER ANNEXURE J DATED 28.09.201 1 AND ON BEING ASKED TO COMMENT THE APPELLANT HAS STATED THAT HE HAS NO COMMENTS TO OFFER. 7.4.3 SIMILARLY THE APPELLANT'S WIFE SMT. SMITA THAKKAR IN HER STATEMENT DATED 28.09.2011 IN RESPONSE TO Q.4 WHEREIN SHE WAS ASKED TO EXPLAIN THE SOURCE OF JEWELLERY FOUND IN LOCKER NO. 321, SHE HAS CONFIRMED THE JEWELLERY FOUND IN LOCKER NO. 321 CONSISTS OF GOLD & DIAMOND JEWELLERY ARE VALUED AT RS. 39,54,600/- ON 28.09.2011. SHE FURTHER EXPLAINED THAT JEWELLERY BELONGS TO HERSELF AND HER DAUGHTER-IN-LAW AND ALSO OF HER FAMILY MEMBERS CONSISTING OF HERSELF AND HER HUSBAND THE APPELLANT. IT WAS ALSO EXPLAINED BY HER THAT THE JEWELLERY PERTAINS TO ALL THE FAMILY MEMBERS. 7.4.4 THE ASSESSMENT ORDER ALSO REVEALS THAT THE LD. AO HAD ASKED THE APPELLANT TO SUBMIT THE EXPLANATION FOR THE JEWELLERY FOUND AND SEIZED DURING THE COURSE OF SEARCH ACTION VIDE LETTER DATED 06.08.2013. IN RESPONSE TO THE SAME THE LD. AR OF THE APPELLANT SHRI DILIP J THAKKAR, CA AND HIS L/H SMT. SMITA THAKKAR SUBMITTED THE RECONCILIATION OF THE TOTAL JEWELLERY FOUND AND SEIZED DURING THE COURSE OF SEARCH PROCEEDINGS. AFTER CONSIDERING SUCH RECONCILIATION AND EXPLANATIONS OF THE APPELLANT'S AR AND L/H THE LD. AO HAS HELD THAT IN RESPECT OF JEWELLERY WEIGHING 349.00 GRAMS IT WAS EXPLAINED THAT THE SOURCE IN INVESTMENTS OF SAME WERE FROM THE CASH WITHDRAWALS MADE FROM THE BANK BY THE APPELLANT. HOWEVER THE SAME WAS NOT ACCEPTED BY THE LD. AO AS THE APPELLANT HAD FAILED TO SUBMIT ANY DOCUMENTARY EVIDENCE IN THE FORM OF BILLS/VOUCHERS. SIMILARLY IN RESPECT OF JEWELLERY WEIGHING 72.99 GRAMS IT WAS EXPLAINED THAT THE SAME WAS PURCHASED OUT OF CASH WITHDRAWALS MADE BY SHRI ITA NO.5732/MUM/2016. LATE SHRI ASHOK J THAKKAR (THROUGH LH SMT.SMITA ASHOK THAKKAR). 8 ASHOK THAKKAR HUF. HOWEVER THE SAME WAS NOT ACCEPTED BY THE LD. AO AS THE APPELLANT HAD FAILED TO SUBMIT ANY DOCUMENTARY EVIDENCE IN THE FORM OF BILLS/VOUCHERS. IN VIEW OF THESE FACTS THE LD. AO CONSIDERED TOTAL JEWELLERY WEIGHING 421.99 GRAMS (349.00 GRAMS + 72.99 GRAMS) VALUED AT RS. 10,02,226/- AS UNEXPLAINED IN THE HANDS OF THE APPELLANT. THE SAID AMOUNT WAS ALSO ADDED ON PROTECTIVE BASIS IN THE HANDS OF APPELLANT'S WIFE SMT. SMITA A THAKKAR. 7.4.5 FROM THE FACTS DISCUSSED ABOVE, IT IS EVIDENT THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, FOR THE ABOVE REFERRED JEWELLERY WEIGHING 421.99 GRAMS THE APPELLANT HAD EXPLAINED THE SOURCES OF SAME AS CASH WITHDRAWALS MADE BY HIM AND HIS HUF. EVEN IN APPELLATE PROCEEDINGS THE APPELLANT'S LD, AR VIDE HIS LETTER DATED 07TH JULY 2016 HAS EXPLAINED THAT THESE TWO AMOUNT OF JEWELLERY OF 349.00 GRAMS AND 72.99 GRAMS WERE PURCHASED IN CASH WITHDRAWN FROM BANKS AND HAS ALSO SUBMITTED CHART OF SUCH WITHDRAWALS WHEREIN THE DETAILS OF WITHDRAWALS BY SHRI/SMT. AJIT INDIVIDUAL, AJIT HUF, SMITA ASHOK JAYANTILAL, ASHOK JAYANTILA!, SMITA THAKKAR FROM 1997 TILL 2000 HAS BEEN GIVEN. AT ONE POINT THE APPELLANT HAS TRIED TO EXPLAIN THE SOURCE OF ABOVE REFERRED JEWELLERY TREATED AS UNEXPLAINED INVESTMENTS IN HIS HANDS THROUGH THESE WITHDRAWALS, AT ANOTHER POINT THE APPELLANT SUBMITS THAT THE JEWELLERY UNDER CONSIDERATIONS BELONGED TO HIS DAUGHTER SMT. DARSHITA J TALIM. THESE TWO EXPLANATIONS ARE CONTRADICTORY TO EACH OTHER. 7.4.6 DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE APPELLANT HAS SUBMITTED THE APPELLATE ORDER IN THE CASE OF HIS WIFE SMT. SMITA A THAKKAR FOR A.Y. 2012-13. FROM PERUSAL OF THE SAID ORDER DATED 31.03.2016 OF THE LD. CIT(A)-52, MUMBAI IN THE APPELLANT'S WIFE CASE IN APPEAL NO. CIT(A)-52/IT/AC-CC-6(4)/L 98/2015-16 IT IS OBSERVED THAT WHILE DELETING THE PROTECTIVE ADDITION MADE IN HER CASE AT RS. 10,02,226/- THE LD. CIT(A) HAS HELD AS UNDER. 'I HAVE CONSIDERED THE FACTS OF THE CASE, SUBMISSIONS AND CONTENTIONS OF THE ASSESSEE AS ALSO THE ORDER OF THE AO. SINCE THE OWNERSHIP OF THE JEWELLERY HAS BEEN CLAIMED BY SHRI ASHOK ITA NO.5732/MUM/2016. LATE SHRI ASHOK J THAKKAR (THROUGH LH SMT.SMITA ASHOK THAKKAR). 9 THAKKAR AND HE HAS ALSO MENTIONED SOURCES OF PURCHASES OF THE JEWELLERY AS WITHDRAWAL FROM HIS OWN BANK ACCOUNT AND ALSO BANK ACCOUNT OF HIS HUF, THIS JEWELLERY CAN ONLY BE CONSIDERED IN HIS HANDS, EVEN THOUGH IT HAD BEEN FOUND FROM THE RESIDENCE'S MISES WHERE ASSESSEE ALSO LIVED. THEREFORE, I AM OF THE VIEW THAT THIS JEWELLERY HAS RIGHTLY BEEN CONSIDERED IN THE HANDS OF SHRI ASHOK THAKKAR, WHERE SUBSTANTIVE ADDITION HAS BEEN MADE. ACCORDINGLY, THE PROTECTIVE ADDITION OF RS. 10,02,226/- MADE IN THE HANDS OF THE ASSESSEE BECOMES INFRUCTUOUS AND IS, THEREFORE, DIRECTED TO BE DELETED.' 7.4.7 FROM THE ABOVE REFERRED FINDING OF THE LD. CLT(A)-52, MUMBAI IT IS EVIDENT THAT HE HAS HELD THAT THE ABOVE REFERRED JEWELLERY WORTH RS. 10,02,226/-, WHICH IS UNDER CONSIDERATION HAS RIGHTLY BEEN CONSIDERED IN THE HANDS OF THE SHRI ASHOK THAKKAR, THE APPELLANT. THE SAID FINDING OF THE LD. CIT(A)-52, MUMBAI APPARENTLY HAS NEITHER BEEN CHALLENGED NOR REVERSED. HENCE IT IS HELD THAT THE LD. AO HAS RIGHTLY CONSIDERED THE SAID JEWELLERY WEIGHING 421.99 GRAMS IN THE HANDS OF APPELLANT. 7.4.8 FROM PERUSAL OF ABOVE REFERRED DECISION OF THE LD. CIT[A}- 52, MUMBAI IN THE APPELLANT'S WIFE SRNT. SMITA A THAKKAR IT IS ALSO OBSERVED THAT HER CLAIM THAT PART OF JEWELLERY WAS PURCHASED OUT OF WITHDRAWALS HAS BEEN REJECTED AFTER HOLDING AS UNDER. 'THOUGH THE CASH WITHDRAWALS FROM THESE BANK ACCOUNTS ARE VERIFIABLE, HOWEVER, NO SUPPORTING BILLS OR VOUCHERS FOR PURCHASE OF JEWELLERY HAVE BEEN SUBMITTED BY THE ASSESSEE IN THIS REGARD. NO DOUBT, THESE WITHDRAWALS ARE VERY CLOSE TO THE DOTE OF WEDDING. HOWEVER, IT CANNOT NECESSARILY BE SAID THAT THESE WITHDRAWALS WERE USED FOR PURCHASE OF JEWELLERY ONLY AND NOT FOR OTHER EXPENSES RELATING TO THE WEDDING. THEREFORE, CONSIDERING THE OVERALL FACTS OF THE CASE, I AM NOT INCLINED TO GIVE ANY BENEFIT TO THE ASSESSEE, IN RESPECT OF THE ABOVE CASH WITHDRAWALS.' IN THE PRESENT CASE ALSO THE APPELLANT HAS SUBMITTED THAT THE ABOVE REFERRED JEWELLERY OF RS. 10,02,226/- HAS BEEN PURCHASED FROM THE WITHDRAWALS MADE IN CASH, BUT NO SUPPORTING EVIDENCE IN ITA NO.5732/MUM/2016. LATE SHRI ASHOK J THAKKAR (THROUGH LH SMT.SMITA ASHOK THAKKAR). 10 THE FORM OF BILLS AND VOUCHERS HAVE BEEN SUBMITTED. THE FACTS AND CIRCUMSTANCES ON THIS ISSUE ARE SIMILAR AS THAT ADJUDICATED BY THE LD. CIT(A)-52, MUMBAI IN THE CASE OF SMT. SMITA A THAKKAR AND HENCE RESPECTFULLY FOLLOWING THE ABOVE REFERRED DECISION OF THE LD. QT(A)-52, NO BENEFIT OF SUCH WITHDRAWALS CAN BE GIVEN AS C AIMED BY THE APPELLANT. 7.4.9 IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE DISCUSSED ABOVE, I AM OF THE CONSIDERED OPINION THAT THE LD. AO WAS JUSTIFIED IN TREATING THE INVESTMENTS IN 421.99 GRAMS OF JEWELLERY AS UNEXPLAINED. HENCE THE ADDITION MADE ON THIS ACCOUNT AT RS. 10,02,226/- IS CONFIRMED. 7. AGAINST THE ABOVE ORDER, ASSESSEE IS IN APPEAL BEFORE THE ITAT. 8. I HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. LEARNED COUNSEL OF THE ASSESSEE COULD NOT DISPUTE THAT THE ASSESSEES SUBMISSION REGARDING THE SOURCE OF THE IMPUGNED ADDITION FOR JEWELLERY WERE NOT COGENT. HOWEVER, HE EMPHASIZED THAT THE JEWELLERY DID NOT BELONG TO THE ASSESSEE. THAT THE JEWELLERY WAS FOUND FROM THE BANK ACCOUNT IN THE NAME OF ASSESSEES MARRIED DAUGHTER. THAT ASSESSMENT MADE IN THE CASE OF THE MARRIED DAUGHTER CANNOT LEAD TO CONFIRMATION OF ADDITION IN THE PRESENT CASE IN ASSESSEES HANDS. 9. I FIND THAT ASSESSEES PLEA THAT THE JEWELLERY DID NOT BELONG TO THE ASSESSEE BUT BELONG TO THE MARRIED DAUGHTER IS NOT SUSTAINABLE IN LIGHT OF THE FACT THAT IN SEARCH THE ASSESSEES WIFE SMT. SMITA THAKKAR IN HER STATEMENT DATED 28.09.2011 IN RESPONSE TO Q.4 WHEREIN SHE WAS ASKED TO EXPLAIN THE SOURCE OF JEWELLERY FOUND IN LOCKER NO. 321, SHE HAS CONFIRMED THE JEWELLERY FOUND IN LOCKER NO. 321 CONSISTS OF GOLD & DIAMOND JEWELLERY ARE VALUED AT ITA NO.5732/MUM/2016. LATE SHRI ASHOK J THAKKAR (THROUGH LH SMT.SMITA ASHOK THAKKAR). 11 RS.39,54,600 ON 28.09.2011. THE ASSESSEES WIFE FURTHER EXPLAINED THAT JEWELLERY BELONGS TO HERSELF AND HER DAUGHTER-IN-LAW AND ALSO OF HER FAMILY MEMBERS CONSISTING OF HERSELF AND HER HUSBAND THE ASSESSEE. IT WAS ALSO EXPLAINED BY HER THAT THE JEWELLERY PERTAINS TO ALL THE FAMILY MEMBERS. 10. FURTHER, IN RESPONSE TO THE ASSESSING OFFICERS ENQUIRY ON THE SOURCE OF THE JEWELLERY, ASSESSEES COUNSEL HAS GIVEN EXPLANATION AND RECONCILIATION. IN THOSE SUBMISSIONS IT WAS NEVER STATED THAT ASSESSEE CANNOT GIVE ANY EXPLANATION AS THE JEWELLERY DID NOT BELONG TO HIM OR THAT THE ONUS WAS NOT UPON THE ASSESSEE TO EXPLAIN THE SAME. WHEN THE ASSESSEES EXPLANATION HAS NOT BEEN ACCEPTED, FOR BEING DEVOID OF COGENCY, ASSESSEE IS RAISING GROUND THAT THE JEWELLERY DID NOT BELONG TO THE ASSESSEE, RATHER IT BELONGED TO HIS DAUGHTER. I FIND THAT THE SUBMISSION IS NOT AT ALL SUSTAINABLE. THE LEARNED CIT(A) IN THE CASE OF ASSESSEES DAUGHTER HAS CLEARLY HELD THAT THE SAID ADDITION ON ACCOUNT OF JEWELLERY WAS NOT SUSTAINABLE IN HER HANDS. IN THIS BACKGROUND, I FIND THAT ORDERS OF AUTHORITIES BELOW ARE VERY COGENT AND CORRECT. THE SHIFTING OF STAND BY THE ASSESSEE NOW DE HORS ANY COGENT EXPLANATION FOR THE SOURCE OF IMPUGNED JEWELLERY FOUND, IS NOT AT ALL SUSTAINABLE. ACCORDINGLY I DO NOT FIND ANY INFIRMITY IN THE ORDERS OF THE AUTHORITIES BELOW. HENCE I UPHOLD THE SAME. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED ON THIS 04 TH DAY OF SEPTEMBER, 2017. SD/- ( SHAMIM YAHYA ) ACCOUNTANT MEMBER MUMBAI; DATED : 04 TH SEPTEMBER, 2017. DEVDAS* ITA NO.5732/MUM/2016. LATE SHRI ASHOK J THAKKAR (THROUGH LH SMT.SMITA ASHOK THAKKAR). 12 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A), MUMBAI 5. , , / DR, ITAT, MUMBAI 6. [ / GUARD FILE.