Suresh Kumar Jain, Visakhapatnam V. The Assistant Commissioner of Income Tax, Central Circle-1, , Visakhapatnam

ITA 585/VIZ/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 1774 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 09-10-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: T S N MURTHY
• Keywords: Unexplained investment; Unexplained expenditure; Gift; Income from undisclosed sources; Search and seizure; Loose papers; Application of stay; Corroborative evidences; Valuation report; Set aside
• Section: 143(3); 153A; 234B; 250; 80IA; 201; 143(2); 69A; 13; 69; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER& SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER S . A.NO. 69 /VIZ/201 9 TO 7 1 /VIZ/201 9 (ARISING OUT OF I.T.A. NOS. 585 - 587/VIZ/2019 RESPECTIVE L Y) ( / A SSESSMENT Y EAR : 20 14 - 15 TO 2016 - 17 RESPECTIVELY ) SRI SURESH KUMAR JAIN D.NO.50 - 50 - 38/9 TPT COLONY SEETHAMMADHARA VISAKHAPATNAM [PAN : ADZPJ5028K] VS. ASST.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE - 1 VISAKHAPATNAM ( / APPELLANT) ( / RESPONDENT) ./ I.T.A. NO. 585 /VIZ/2019 TO 587 /VIZ/2019 ( / A SSESSMENT Y EAR : 20 14 - 15 TO 2016 - 17 RESPECTIVELY) SRI SURESH KUMAR JAIN D.NO.50 - 50 - 38/9 TPT COLONY SEETHAMMADHARA VISAKHAPATNAM [PAN : ADZPJ5028K] VS. ASST.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE - 1 VISAKHAPATNAM ( / APPELLANT) ( / RESPONDENT) / ASSESSEE BY : SHRI G.V.N.HARI, AR /REVENUE BY : S HRI T.S.N.MURTHY, CIT, DR / DATE OF HEARING : 1 8 .11.2019 / DATE OF PRONOUNCEMENT : 11 .1 2 .2019 2 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM / O R D E R P ER SHRI D.S.SUNDER SINGH, ACCOUNTANT MEMBER : S.A.NO.69/VIZ/2019 TO 71/VIZ/2019 THE ASSESSEE FILED STAY APPLICATIONS REQUESTING FOR STAY OF OUTSTANDING DEMAND FOR THE A.Y.2014 - 15 TO 2016 - 17. SINCE THE APPEALS ARE TAKEN UP SIMULTANEOUSLY, THE STAY APPLICATIONS FILED BY THE ASSESSEE ARE DISMISSED. 2. TH ESE APPEAL S ARE FILED BY THE ASSESSEE AGAINST THE ORDER S OF THE COMMISSIONER OF INCOME TAX (APPEALS ) [CIT(A)] - 3, VISAKHAPATNAM IN APPEAL NO.230, 231 AND 271/201 7 - 18/CIT(A) - 3/VSP/2019 - 20 DATED 14.07.2019 FOR THE ASSESSMENT YEAR (A.Y.) 20 14 - 15. FOR THE SAKE OF CONVENIENCE, THESE APPEALS ARE CLUBBED, HEARD TOGETHER AND A COMMON ORDER IS BEING PASSED AS UNDER. I.T.A. NO.585/VIZ/2019, A.Y.2014 - 15 3. IN THIS CASE, SEARCH AND SEIZURE OPERATION U/S 132 OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) WAS CARRIED OUT IN THE BUSINESS PREMISES OF THE ASSESSEE, M/S HIRA PANNA JEWELLERS ON 24.11.2015. THE ASSESSEE WAS THE PROPRIETOR OF THE SAID BUSINESS CONCERN, (M/S HIRA PANNA JEWELLERS) UPTO 31.10.2014. THEREAFTER, THE PROPRIETARY CONCERN WAS CONVERTED INTO THE 3 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM STATUS OF PARTNERSHIP FIRM FROM 01.11.2014, CONSISTING OF 3 PARTNERS VIZ. SRI SURESH KUMAR JAIN, SRI MAHENDRA KUMAR JAIN AND SRI RAJENDRA JAIN. THE ASSESSEE FILED THE RETURN OF INCOME ON 28.11.2014 ADMITTING TOTAL INCOME OF RS.1,87,83,950/ - . SUBSEQUENTLY, A NOTICE U/S 153A OF THE ACT WAS ISSUED TO THE ASSESSEE CALLING FOR THE RETURN OF INCOME FOR T HE A.Y.2014 - 15, IN RESPONSE TO WHICH THE ASSESSEE FILED HIS RETURN OF INCOME ON 24.02.2017 ADMITTING TOTAL INCOME OF RS.1,87,83,950/ - . THE ASSESSING OFFICER (AO) COMPLETED THE ASSESSMENT U/S 143(3) R.W.S. 153A OF THE ACT ON TOTAL INCOME OF RS.3,49,19,910 / - . THE AO MADE THE FOLLOWING ADDITIONS TO THE RETURNED INCOME IN THE ASSESSMENT MADE U/S 143(3) R.W.S. 153A : UNEXPLAINED EXPENDITURE U/S 69A OF THE ACT - RS.23,32,200 UNEXPLAINED MONEY - RS.1,28,90,658 DISALLOWANCE OF DEDUCTION U/S 80IA OF TH E ACT - RS.5,13,096 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND THE LD.CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. THEREFORE, THE ASSESSEE FILED APPEAL BEFORE THIS TRIBUNAL. 5. IN THE APPEAL, THE ASSESSEE RAISED AS MANY AS FIVE GROUNDS IN TOTAL. GROUND NO.1 AND 5 ARE GENERAL IN NATURE WHICH DOES NOT REQUIRE SPECIFIC ADJUDICATION. 4 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM 6 GROUND NO.2 IS RELATED TO THE ADDITION SUSTAINED BY THE LD.CIT(A) RELATING TO THE DISALLOWANCE OF DEDUCTION U/S 80IA OF THE ACT. DURING THE ASSESSMENT PROCEEDINGS, THE AO FOUND THAT THE ASSESSEE HAS CLAIMED THE DEDUCTION U/S 80IA OF THE ACT AMOUNTING TO RS.5,13,096/ - AND FILED FORM NO.10CCB MANUALLY. AS PER THE MANDATORY REQUIREMENT, FORM NO.10CCB I S REQUIRED TO BE FILED ELECTRONICALLY, THEREFORE, THE AO DISALLOWED THE BENEFIT AND DISALLOWED THE DEDUCTION CLAIMED U/S 80IA OF THE ACT. 7. AGAINST THE ORDER OF THE AO, THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND THE LD.CIT(A) FOUND THAT HAVING N OT FILED THE FORM 10CCB ELECTRONICALLY, THE ASSESSEE IS DISENTITLED FOR DEDUCTION U/S 80IA OF THE ACT, ACCORDINGLY, CONFIRMED THE ADDITION MADE BY THE AO. AGAINST WHICH THE ASSESSEE FILED APPEAL BEFORE US. 8. DURING THE APPEAL HEARING, THE LD.AR ARGUED TH AT IN THIS CASE, THE ASSESSEE HAS FILED THE RETURN OF INCOME ON 28.11.2014. SEARCH TOOK PLACE ON 24.11.2015 AND THE TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2) EXPIRED ON 30.09.2015, THEREFORE SUBMITTED THAT THE ASSESSMENT IS TO BE CONSTRUED AS A COMPLETED ASSESSMENT. IN THE COMPLETED ASSESSMENTS, NO ADDITION IS PERMITTED WITHOUT THE SUPPORT OF THE INCRIMINATING MATERIAL. IN THE INSTANT CASE, NO INCRIMINATING MATERIAL WAS FOUND DURING THE COURSE OF SURVEY OR 5 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM SEARCH AND THE DEDUCTION WAS CLAIMED BY THE ASS ESSEE IN THE REGULAR RETURNS OF INCOME. THE AUDIT REPORT IN FORM 10CCB WAS FILED MANUALLY. THE ASSESSEE HAS MADE THE GENUINE CLAIM FOR DEDUCTION U/S 80IA, THEREFORE, ARGUED THAT THE ADDITION MADE BY THE AO IS NOT PERMISSIBLE, HENCE REQUESTED TO DELETE TH E ADDITION. 9. ON THE OTHER HAND, THE LD.DR SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES AND REQUESTED TO UPHOLD THE ORDER OF THE LD.CIT(A). 10. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. THOUGH THE ASSESSEE HAS RAISED TH IS ISSUE IN GROUND NO.2 ASSAILING THE ADDITIONS MADE BY THE AO AS OUTSIDE THE SCOPE OF ASSESSMENT U/S 143(3) U/S 153A OF THE ACT, THE LD.CIT(A) DID NOT ADJUDICATE THE ISSUE. IN THIS CASE, THERE IS NO DISPUTE THAT THE ASSESSEE HAS FILED THE RETURN OF INCOM E ON 28.11.2014 AND THE TIME LIMIT FOR ISSUE OF NOTICE U/S 143(2) WAS EXPIRED ON 30.09.2015. AS PER THE SETTLED LAW, THE AO IS NOT PERMITTED TO MAKE THE ADDITION U/S 153A IN THE COMPLETED ASSESSMENTS WITHOUT THE SUPPORT OF INCRIMINATING MATERIAL. IN THE INSTANT CASE, THERE WA S NO INCRIMINATING MATERIAL FOUND AND THE ASSESSEE HA S FILED THE RETURN OF INCOME CLAIMING DEDUCTION U/S 80I A . THE AUDIT REPORT IN FORM 10CCB WAS FILED MANUALLY. THEREFORE, ADDITION MADE BY THE AO WITHOUT SUPPORT OF THE 6 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM INCRIMINATIN G MATERIAL U/S 80IA IS UNSUSTAINABLE, ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD.CIT(A) AND ALLOW THE APPEAL OF THE ASSESSEE. 11. GROUND NO.3 IS RELATED TO THE ADDITION OF RS.23,32,202/ - AND RS.1,28,90,658/ - U/S 69A OF THE ACT . A SURVEY U/S 13 3A WAS CONDUCTED IN THE BUSINESS PREMISES OF HIRA PANNA JEWELLERS. DURING THE COURSE OF SURVEY , SOFT COPY OF DATA WAS FOUND AND MARKED AS ANNEXURE A/HPJ/02/VSP IN THE BUSINESS PREMISES OF HIRA PANNA JEWELLERS ON 24.11.2015. BASED ON THE INFORMATION FOUND D URING THE COURSE OF SURVEY, THE AO CALLED FOR THE EXPLANATION OF THE ASSESSEE REQUESTING TO CLARIFY THE CONTENTS OF THE LOOSE SHEETS NOS. 1 TO 14 AND 16 FOUND DURING THE COURSE OF SURVEY. A STATEMENT U/S 131(1A) WAS RECO R DED FROM MAHENDRA KUMAR JAIN TO EXP LAIN THE CONTENTS ON 25.02.2016. SHRI MAHENDRA KUMAR JAIN STATED THAT PAGE NO. 1 TO 14 AND 16 ARE THE PAPERS WHICH DO NOT BELONG TO THE FIRM AND THEY WERE BELONGING TO SOME OTHER DEALERS WHO VISITED THE SHOP AND DOWN LOADED THE CONTENTS USING THEIR COMPUT ER SYSTEM. HOWEVER, HE HAS NOT GIVEN THE DETAILS OF PERSONS WHO DOWNLOADED THE INFORMATION. H E HAS DENIED REGARDING THE OWNERSHIP OF THE PAPERS BEARING NO. 1 TO 14 AND 16, H OWEVER, HE HAD ACCEPTED THAT PAGE NO.15, 17 AND 18 WERE VALUATION REPORTS BELONG TO HIS BROTHER SHRI SURESH KUMAR JAIN. THE AO DID NOT 7 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM BELIEVE THE CONTENTION OF THE ASSESSEE THAT THE PAPERS WERE NOT BELONGING TO THE ASSESSEE. THE AO INFERRED THAT JKS MENTIONED ON TOP OF THE SHEET WAS REFERRING TO SURESH KUMAR JAIN IN THE SHORT FORM AND LOOSE SHEETS FOUND CONTAINED THE DETAILS OF UNACCOUNTED EXPENDITURE AND UNEXPLAINED MONEY OF THE ASSESSEE. THE AO TREATED THE EXPENDITURE OF RS.23,32,202/ - AS UNACCOUNTED AND THE SAME WAS ADDED TO THE RETURN OF INCOME. FOR THE SAKE OF CLARITY, WE EXTRAC T THE RELEVANT PART OF THE ORDER OF THE AO WHICH READS AS UNDER : 9. THE SUBMISSION FILED BY THE ASSESSEE WAS PERUSED. THE CONTENTION OF THE ASSESSEE IS THAT PAGES NOS. FROM 1 TO 14 AND 16 DO NOT RELATE TO HIS BUSINESS. BECAUSE OF THEIR LONG ASSOCIATION AND THE CORDIAL RELATIONS WITH MANUFACTURERS/SUPPLIERS OF GOLD ORNAMENTS FROM OTHER PLACES, AND THE ACCOMMODATION PROVIDED BY THEM FOR THE PURPOSE, AGENTS OF DIFFERENT SUPPLIERS/MANUFACTURERS COME TO THEIR SHOP FOR VERIFICATION OF THEIR E - MAILS AND DOWNLOA DING OF THE INFORMATION THEY RECEIVE FROM THEIR PRINCIPALS. HOWEVER, THOUGH THE DETAILS THEREIN RELATE THE SAME LINE OF BUSINESS, BUT UNDOUBTEDLY, SAID INFORMATION IS NOT RELATED HIM. 9.1. IT IS PERTINENT TO MENTION THAT DATA IMPOUNDED AS MENTION ED I N SUB PAR A S 1.2 & 1.3 OF PARA 5 SUPRA ARE RELATES TO THE FINANCIAL YEAR 2013 - 14 & 2014 - 15 WHEN M/S HIRA PANNA JEWELLERS WAS A PROPRIETORSHIP BUSINESS OF ASSESSEE. THE SAME BUSINESS WITH SAME TRADE NAME WAS CONVERTED INTO PARTNERSHIP FIRM AS GOING CONCERN WITH ALL ASSETS AND LIABILITIES ON 1.11.2014 AND ASSESSEE WAS ONE OF THE PARTNERS DURING THE F.Y. 2014 - 15. DURING THE COURSE OF SURVEY PROCEEDINGS IN THE PREMISES OF M/S HIRA PANNA JEWELLERS ON 24.11.2015, A SOFT COPY OF THE DATA FOUND IN THE BUSINESS PREMISES OF FIRM WAS COPIED AND IMPOUNDED AS A/HPJ/02/VSP. ON PERUSAL OF THE DATA, CERTAIN EXCEL SHEETS WERE FOUND IN IT, WHICH WERE PRINTED AND SERIALLY NUMBERED FROM 1 TO 18. THE SAME WAS PROVIDED TO MANAGING PARTNER SRI MAHENDRA KUMAR JAIN TO EXPLAIN ITS CONTENT S VIDE SUMMONS U/S 131(1A) DATED 25.02.2016. HE STATED THAT THE PAPERS FROM PAGES NOS. 1 TO 14 AND 16 NOT THEIR PAPERS SOME DEALERS MAY BROUGHT MAIL FROM THEIR OFFICE, THEY JUST GIVE THEM THE PRINT OUTS FROM THEIR SYSTEM. THEY DON'T HAVE ANY IDEA ABOUT THE PAGES. THE PAGE NOS. 15, 17 AND 18 ARE THE VALUATION REPORTS ESTIMATED BY HIS BROTHER REGISTERED VALUER SRI SURESH KUMAR JAIN(ASSESSEE), MIGHT BE FOR VISA APPROVAL OR WEALTH TAX 8 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM PURPOSES. 9.2. THE ASSESSEE IS ADMITTING SOME PAGES NOS. 15, 17 AND 18 BELON GS TO HIM AND PAGES NOS. 1 TO 14 AND 16 NOT BELONG TO HIM THOUGH ALL PAGES SI. NO.1 TO 18 MENTIONED ABOVE ARE FOUND FROM THE SAME SYSTEM OF THE ASSESSEE. AS MENTIONED ABOVE, PROPRIETARY BUSINESS WAS CONVERTED INTO FIRM AS GOING CONCERN, ALL THE DATA, SOFT DATA, SYSTEM WERE USED BY THE SAID FIRM WHERE SURVEY WAS CONDUCTED. FURTHER, IT IS PERTINENT TO MENTION THAT IT CAN BE SEEN ON THE TOP OF THE PAGES IT MENTIONED JKS, THIS CAN BE INFERRED THAT THE ASSESSEE HAS USED DISGUISE NAME IN SHORT FORM OF NAME OF THE ASSESSEE SUREST, KUMAR JAIN AS JKS TO HIDE THE UNACCOUNTED TRANSACTION. MOREOVER, ASSESSEE SIMPLY STATED THAT THE ABOVE PAGES FOUND MAY BE PERTAIN TO SOME OTHER PERSON BUT FAILED TO PROVE THE CLAIM, THE ALLEGED DATA FOUND FROM THEIR BUSINESS PREMISES AND SYSTEM IS CERTAINLY PERTAINS TO ASSESSEE. HENCE PRIMA FADE IT IS PROVED THAT THE ALLEGED PAGES FOUND ARE RELATES TO THE ASSESSEE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. 9.3. TO ILLUSTRATE FURTHER, IF WE TAKE PAGE NO, 3, WHICH CORRESPONDS TO THE DATE 12.04.2014, IT CAN BE OBSERVED THAT THE ARTICLE MENTIONED IS '1 HARSET' THE WEIGHT OF THE ARTICLE IS 80.600 AND THE 'MC' OR THE MAKING CHARGE IS 4000.00. IF WE DIVIDE 4000 BY 80, T HE MAKING CHARGE IS COMING TO 50 OR RS. 50/GM, CONSIDERING THAT VARIOUS ASSESSES DURING THE COURSE OF THE PRESENT SEARCH AND SEIZURE ACTION HAVE STATED THAT MAKING CHARGES FOR GOLD ORNAMENTS ARE AROUND RS. 100/GM, THIS FIGURE OF RS. 50 GMS FOR THE YEAR 201 4 IS REASONABLE AND INDICATES THAT MC IS NOTHING BUT MAKING CHARGES. FURTHER, THE WEIGHT OF OTHER ITEMS USED IN THIS ARTICLE ARE 3.10 OF 'RPM', 0.40 OF 'EPM', 1.65 OF 'PEARLS' AND 2.98 OF 'OTHERS1'. THESE FIGURES HAVE BEEN MULTIPLIED TO COST PER UNIT WHI CH IS 450 EACH FOR 'RPM' AND 'EPM', 750 FOR 'PEARLS' AND 4900 FOR 'OTHERS1'. THESE RATES PER UNIT OF THE DIFFERENT QUANTITIES ARE SAME THROUGHOUT ALL THE 14 PAGES, THE ONLY DIFFERENCE IS THAT FOR THE SHEETS BELONGING TO THE PERIOD MARCH 2014 AND BEFORE, T HE RATE PER UNIT IS DIVIDED BY 100, WHEREAS FOR THE SHEETS PERTAINING TO APRIL 2014, THE ACTUAL VALUES ARE WRITTEN E.G. AS PER SHEET NO. 3 (PERTAINING TO 12.04.2014), THE COST PER UNIT OF 'R IS 375 AND 'E' IS 290, WHEREAS AS PER SHEET NO. 10, (PERTAINING TO 15.03.2014), THE COST PER UNIT OF 'R' IS 3.75 AND 'E' IS 2.9. THUS WHILE CALCULATING THE TOTAL VALUES FOR THE SHEETS PERTAINING TO MARCH 2014 AND BEFORE, A MULTIPLYING FACTOR OF 100 IS TO BE CONSIDERED FOR ARRIVING AT THE COST AND MAKING CHARGES. HOWEVE R, WITH RESPECT TO THE WEIGHT OF THE METAL OR THE OTHER STONES, THE ACTUAL WEIGHT IS ONLY MENTIONED AND NO MULTIPLYING FACTOR IS NECESSARY. 9.4. ON FURTHER PERUSAL OF THIS SHEET NO.3, IT CAN BE OBSERVED, THAT THE TOTAL MAKING COST IS CALCULATED BY ADDING THE COST OF THE MATERIAL AND THE MAKING CHARGE. THUS, IN THIS CASE, THE TOTAL COST AMOUNTS TO 4000+1395+180+1237.50+14602 = 21414.50 WHICH IS MENTIONED AGAINST THE HEAD 'CASH', FURTHER, BELOW IT IS MENTIONED 'OLD CASH' AND A VALUE OF 9 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM 2785771.25 IS MENTIONE D. THE 'TOTAL CASH IS SIMILARLY ARRIVED UPON BY ADDING THE TWO VALUES ABOVE AT 2807185.75. BELOW THE HEAD 'TOTAL CASH' IS MENTIONED 'PAID CASH' AGAINST WHICH 0 IS WRITTEN AND FURTHER BELOW IT, 'BAL. CASH' IS WRITTEN AGAINST WHICH THE FIGURE 2807185.75 IS REPEATED. 9.5. SIMILARLY, ON PERUSAL OF LEFTMOST COLUMN, ON THE BOTTOM HALF OF THE PAGE, THE 'TOT WEIGHT - IS ARRIVED UPON AT 81.820 BY TAKING THE GROSS WEIGHT OF THE METAL AT 80.600 AND THEN BY CONSIDERING THE ALLOWANCES AND WASTAGE. THIS 'TOT WEIGHT' IS T HEN CARRIED TO THE NEXT COLUMN WHERE THREE HEADS APPEAR VIZ 'METAL', OLD METAL', 'TOTAL METAL' AND THE VALUES WRITTEN AGAINST THEM ARE 81.820, 5900.780 AND 5982.600 RESPECTIVELY. TWO MORE HEADS, VIZ. 'PAID METAL' AND 'BAL. METAL' WITH FIGURES OF 0.0 AND 59 82.600 RESPECTIVELY ARE ALSO WRITTEN. 9.6. THE MODUS OPERANDI OF THE ASSESSEE WAS THAT GOLD USED FOR THE JEWELLERY WAS TO BE PROVIDED BY THE ASSESSEE HIMSELF TO THE GOLDSMITHS, WHEREAS THE OTHER STORIES/ITEMS ETC. WERE TO BE PROVIDED BY THE GOLDSMITHS. IN TURN, ON RECEIPT OF THE FINISHED JEWELLERY PRODUCT, THE ASSESSEE WAS TO PAY THE COST INCURRED ON MAKING CHARGES AND STONES TO THE GOLDSMITH IN CASH. THIS ENTIRE TRANSACTION WAS CARRIED OUTSIDE THE BOOKS OF THE ASSESSEE. IN RESPONSE TO THE SUMMONS AS WELL, THE ASSESSEE HAS REPLIED THAT THE LOOSE SHEETS BELONG TO SOME OTHER PARTY AND WAS ONLY FOUND IN THEIR COMPUTER FOR GIVING PRINT OUT AND IT DOES NOT BELONG TO IT. SUCH A REPLY IS NOT ACCEPTABLE BECAUSE AS PER S 292C OF THE I.T. ACT, 1961, ANY MATERIAL FOUND IN THE POSSESSION OF THE ASSESSEE DURING THE COURSE OF SEARCH AND SURVEY PROCEEDINGS ARE DEEMED TO BELONG TO HIM/HER, UNLESS PROVEN OTHERWISE, THE ONUS OF PROOF IS CLEARLY ON THE ASSESSEE AND IN THIS CASE, THE SAME HAS NOT BEEN DISCHARGED AND MERE CLAIM W ITHOUT ANY DOCUMENTARY SUPPORT IS NOT TENABLE. FURTHER, SUCH A REPLY FURTHER STRENGTHENS THE GROUND THAT THE TRANSACTIONS AS REFLECTED IN THE LOOSE SHEETS ARE OUTSIDE THE BOOKS OF THE ASSESSEE. 9.7. IN VIEW OF THE ABOVE, TO QUANTIFY THE TOTAL UNACCOUNTED INCOME DETECTED FROM THE ABOVE SHEETS. ON ANALYSIS OF PAGE NOS. 1 TO 13 OF THE IMPOUNDED MATERIAL A/HPJ/02/VSP, IT CAN BE OBSERVED THAT PAGE NOS. 1,2, 10, 11,12 AND 13 ARE SIMILAR SHEETS PERTAINI NG TO VARIOUS DATES DURING THE PERIOD 31 - 01.2014 TO 20 - 03 - 2014. THE REMAINING PAGES PERTAIN TO SHEETS FOR THE PERIOD 04 - 04 - 2014 TO 12 - 04 - 2014. FURTHER, FROM ALL THE SHEETS IMPOUNDED ABOVE, IT CAN BE OBSERVED THAT NOT A SINGLE SHEET HAS ANY DETAILS OF ANY P AYMENTS ACTUALLY MADE UNDER THE HEAD, 'PAID CASH'. THEREFORE, IT BECOMES CLEAR THAT THE ENTIRE AMOUNT REFLECTING AS 'BAL. CASH' ON THE LAST DATE OF THE YEAR IS PAYABLE BY THE ASSESSEE. THE LAST DATE FOR THE F.Y. 2013 - 14, AVAILABLE IS PAGE NO. 11 CORRESPOND ING TO 20.03.2014. THEREFORE, THE BAL. CASH AS APPEARING ON THE SHEET DATED 20.03.2014 (PAGE NO. 11) IS THE TOTAL UNEXPLAINED EXPENDITURE INCURRED BY THE ASSESSEE. SIMILARLY, THE VALUE AGAINST THE HEAD 'BAL. METAL', REFLECTS THE TOTAL METAL GIVEN BY THE AS SESSEE TO THE GOLDSMITH 10 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM FOR MAKING OF GOLD JEWELLERY. SINCE, SUCH METAL IS NOT REFLECTING ANYWHERE IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE, THEREFORE IT IS UNACCOUNTED AND IS TO BE TREATED AS UNEXPLAINED MONEY U/S 69A OF THE I.T. ACT, 1961. THUS TO ARRIVE AT THE TOTAL UNEXPLAINED EXPENDITURE FOR THE F.Y. 2013 - 14, IT IS TAKEN THE VALUE AGAINST BAL CASH' AS APPEARING ON PAGE NO. 11 WHICH IS 23322.02 AND MULTIPLY IT WITH THE FACTOR OF 100. THUS, TOTAL UNEXPLAINED EXPENDITURE FOR THE AY 2014 - 15 IS RS. 23,32,2 02/ - IN ADDITION TO THE RETURNED INCOME. 12. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND THE LD.CIT(A) CONFIRMED THE ADDITION MADE BY THE AO AS DISCUSSED IN PARA NO.6.2 OF THE CIT(A) ORDER AS UNDER : 6 2. I HAVE CONSIDERED THE ASSESSMENT ORDER, SUBMISSIONS OF THE APPELLANT AND THE MATERIAL PLACED BEFORE ME. IT IS SEEN THAT THE MATERIAL UNDER QUESTION CONTAIN , DETAILS OF TRANSACTIONS RELATED TO GOLD / JEWELLERY BUSINESS. THE SAME ARE DETAILS OF GOLD ISSUED TO 'GO LDSMITHS' FOR MAKING ORNAMENTS AND THEIR CHARGES INCLUDING COST OF OTHER METALS/MATERIAL USED IN MAKING ORNAMENTS. THE DESCRIPTION AND THE LINKING OF THE DETAILS TO BRING OUT THE SUBSTANCE OF TRANSACTION HAS BEEN PAINSTAKINGLY BROUGHT OUT BY THE AO IN THE ORDER. THE APPELLANT HAS NOTHING TO SAY ABOUT OR AGAINST THE ABOVE. THE ONLY EXPLANATION /STAND OF THE APPELLANT IS THAT THEY DO NOT BELONG TO THEM AND THAT SOME CUSTOMERS USE THEIR COMPUTER FOR DOWNLOADING THEIR EMAIL S ETC. THE APPELLANT NEVER VENTURED TO IDENTIFY THE CUSTOMER WHO REGULARLY COM ES THERE AND USES THEIR COMPUTER. FROM THE ABOVE MATERIAL, IT IS SEEN THAT THE SAME PRO - FORMA HAS BEEN USED IN ALL THE ABOVE PAPERS. IF ONE CUSTOMER USED THEIR COMPUTER SO OFTEN, IT IS NOT POSSIBLE THAT THE APPELLANT WOULD NOT BE ABLE TO IDENTIFY THEM. THE MATERIAL IS ON THE COMPUTER OF THE APPELLANT AND THE DETAILS RELATE TO THE SAME BUSINESS CARRIED ON BY THE APPELLANT. THE PRESUMPTION UNDER LAW IS THAT THE SAME BELONGS TO THE APPELLANT ONLY. THE PRESUMPTION IS TO B E REBUTTED BY THE APPELLANT BY COGENT EVIDENCES. THE APPELLANT HAS TO IDENTIFY THE PERSON TO WHOM THE ENTRIES BELONG AND SHOW THAT THE ENTRIES ARE ALSO REFLECTED IN HIS ACCOUNTS TO DISCHARGE THE ONES CAST ON THE ASSESSEE. SIMPLY DENYING WITHOUT ANY EFFORT TO IDENTIFY AND BRING THE ACTUAL PERSON FOR EXAMINATION, THE ONUS CAST ON APPELLANT, CANNOT BE SAID TO BE DISCHARGED. THE ENTRIES IN THE SHEETS AND THEIR RELATION TO BUSINESS OF THE APPELLANT POINTS OUT TO ONLY POSSIBLE CONCLUSION THAT THE SAME ARE TRANSAC TION OF THE APPELLANT. IN VIEW OF THE ABOVE, THE AO AFTER ANALYZING ALL THE ENTRIES RIGHTLY BROUGHT TO TAX THE AMOUNT AS UNEXPLAINED INVESTMENT OF THE APPELLANT. THE ACTION OF AO IS NOT ONLY LEGAL BUT HE IS DUTY BOUND TO BRING TO TAX THE INCOME EMANATING THERE FROM. THE ADDITION MADE BY AO IS CONFIRMED AND THE GROUNDS RAISED BY APPELLANT ARE REJECTED. 11 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM 13. AGAINST THE ORDER OF THE LD.CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. DURING THE APPEAL HEARING, THE LD.AR SUBMITTED THAT THE ASSESSEE HAS RETIRED FROM THE PARTNERSHIP FIRM AND HE IS NO MORE A PARTNER OF HIRA PANNA JEWELLERS AND THE COMPUTER SYSTEM DOES NOT BELONG TO THE ASSESSEE . SURVEY WAS CONDUCTED IN HIRA PANNA JEWELLERS AND THE MANAGING PARTNER AVAILABLE AT THE TIME OF SURVEY HAS C ATEGORICALLY TOLD THAT THE LOOSE SHEETS FOUND DURING THE COURSE OF SEARCH DO NOT BELONG TO THE FIRM OR SHRI SURESH KUMAR JAIN. SINCE, THE MATERIAL WAS NOT FOUND IN THE ASSESSEES PREMISES, THE BURDEN IS ON THE INCOME TAX DEPARTMENT TO ESTABLISH THAT THE L OOSE SHEETS FOUND AT THE PREMISES OF HIRA PANNA JEWELLERS BELONGED TO THE ASSESSEE. AS PER THE PRESUMPTION U/S 292C OF THE ACT, THE BOOKS OF ACCOUNTS, LOOSE SHEETS, DOCUMENTS FOUND IN THE SEARCH / SURVEY PREMISES PRESUMED TO BE BELONGING TO THE ASSESSEE W HO WAS UNDER SEARCH / SURVEY , UNLESS IT IS ESTABLISHED THAT THE SAME BELONGS TO THE THIRD PARTY. IN THE INSTANT CASE, NEITHER THE ASSESSEE NOR SHRI MAHENDRA KUMAR JAIN, MANAGING PARTNER OF HIRA PANNA JEWELLERS HA VE ACCEPTED THAT THE MATERIAL DOES BELONG TO THE ASSESSEE. THE DEPARTMENT ALSO DID NOT PROVE THAT THE INFORMATION CONTAINED IN THE LOOSE SHEETS PERTAINED TO THE ASSESSEE. THEREFORE, ARGUED THAT THE LOOSE SHEETS FOUND DURING THE COURSE OF SEARCH DO NOT BELONG TO THE ASSESSEE, HENCE, THE SAME CANNOT B E ASSESSED IN THE 12 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM HANDS OF THE ASSESSEE. ACCORDINGLY , REQUESTED TO SET ASIDE THE ORDER OF THE LD.CIT(A) AND ALLOW THE APPEAL OF THE ASSESSEE. 14. ON THE OTHER HAND, THE LD.DR ARGUED THAT AN EXCEL LOOSE SHEET WAS FOUND DURING THE COURSE OF SURVEY CONDUCTED IN THE HIRA PANNA JEWELLERS AND THE ASSESSEE WAS THE PARTNER TILL 30.03.2015 AND THE LOOSE SHEETS FOUND DURING THE COURSE OF SURVEY WERE PERTAINING TO THE PERIOD WHEN SURESH KUMAR JAIN WAS THE PROPRIETOR OF THE FIRM, I.E THE DATE MENTIONED IN THE LOOSE SHEET WAS 20.03.2014. ON THE TOP OF THE LOOSE SHEET, IT WAS MENTIONED AS JKS, WHICH MEANS SURESH KUMAR JAIN IN SHORT . CONTENTS OF THE LOOSE SHEETS CLEARLY SHOW THAT THESE WERE THE BUSINESS TRANSACTIONS OF THE ASSESSEE FOR ISSUE OF GOLD AND PAYMENTS TO GO LDSMITHS FOR MANUFACTURE OF ORNAMENTS. THEREFORE, ARGUED THAT THE MATERIAL DOES BELONG TO THE ASSESSEE SINCE, THE LOOSE SHEETS FOUND IN THE PREMISES WERE RELATING TO THE PERIOD OF THE PROPRIETARY CONCERN OF SHRI SURESH KUMAR JAIN. THE LD.DR STRONGLY ARGUE D THAT THE AO RIGHTLY MADE THE ADDITION WHICH WAS CONFIRMED BY THE LD.CIT(A). HENCE REQUESTED TO UPHOLD THE ORDER OF THE LD.CIT(A) AND DISMISS THE APPEAL OF THE ASSESSEE. 15. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. HIRA PANNA JEWELLERS WAS A PROPRIETARY CONCERN OF SHRI SURESH 13 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM KUMAR JAIN TILL 31.10.2014. THEREAFTER, PROPRIETARY CONCERN WAS CONVERTED INTO PARTNERSHIP FIRM WITH THE PARTNERS OF S URESH KUMAR JAIN, MAHENDRA KUMAR JAIN AND SHRI RAJENDRA JAIN. SHRI SURESH KUMAR JAIN RETIRED FROM THE PARTNERSHIP FIRM ON 01.04.2015 AND THE S URVEY IN THIS CASE WAS CONDUCTED ON 24.11.2015. DURING THE COURSE OF S URVEY , SOFT COPY WAS FOUND MARKED AS ANNEXU RE A/HPJ/02/VSP AND FROM THE PAGES CULLED OUT FROM THE SOFT COPY, THE AO FOUND THAT PAGE NO.1 TO 18 ARE BELONGING TO THE ASSESSEE AND O N PAGE NO. 1 TO 14 AND 16, THERE WAS A MENTION OF JKS WHICH THE AO PRESUMED THAT IT WAS SHRI SURESH KUMAR JAIN WHOSE NAME IS WRITTEN IN THE SHORT FORM. THEREFORE, THE AO BELIEVED THAT PAGE NO.1 TO 16 ARE RELATED TO UNEXPLAINED EXPENDITURE FOR THE A.Y. 2014 - 15 BELONGING TO THE ASSESSEE SHRI SURESH KUMAR JAIN AND WORKED OUT THE UNEXPLAINED EXPENDITURE INCURRED. ACCORDING LY, MADE THE ADDITION OF RS.23,32,202/ - TO THE RETURNED INCOME . SIMILARLY, AS PER PAGE NO.11 OF THE LOOSE SHEET, THE AO FOUND MENTION OF 4414.760 GMS OF GOLD WHICH WAS VALUED AT THE RATE OF RS.2919.90 PER GRAM AND THE AGGREGATE AMOUNT WORKED OUT WAS RS.1, 28,90,658/ - , WAS ALSO BROUGHT TO TAX AS UNEXPLAINED MONEY IN THE HANDS OF THE ASSESSEE . 14 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM 16. LOOSE SHEETS WERE EXTRACTED FROM THE COMPUTER OF HIRA PANNA JEWELLERS PERTAINING TO THE PERIOD OF APRIL 2014 FROM 01.04.2014, THOUGH IT WAS MENTIONED AS JKS, NEITH ER THE ASSESSEE, NOR SHRI MAHENDRA KUMAR JAIN HAVE ACCEPTED THAT LOOSE PAPERS DO BELONG TO THEM. THE ASSESSEE BLUNTLY DENIED AND STATED THAT THESE LOOSE PAPERS DID NOT BELONG TO THE ASSESSEE. THE COMPUTER SYSTEM FOUND DURING THE COURSE OF SURVEY BELONGED TO HIRA PANNA JEWELLERS, BUT NOT BELONGED TO THE ASSESSEE. AS PER SECTION 292C OF THE ACT, THE LOOSE SHEETS, BOOKS OF ACCOUNTS FOUND DURING THE COURSE OF SEARCH /SURVEY ARE PRESUMED TO BE BELONGING TO THE ASSESSEE, WHERE THE SEARCH OR SURVEY IS CONDUCTED. IN THE INSTANT CASE, SURVEY WAS CONDUCTED IN THE BUSINESS PREMISES OF HIRA PANNA JEWELLERS. THEREFORE, AS PER THE PRESUMPTION U/S 292C, LOOSE SHEETS PERTAINED TO THE HIRA PANNA JEWELLERS, BUT NOT TO THE ASSESSEE. UNLESS IT IS ESTABLISHED THAT THE LOOSE SHEETS PERTAINED TO THE ASSESSEE, THE AO IS NOT PERMITTED TO TAX THE CONTENTS OR UNEXPLAINED MONEY OR EXPENDITURE RECORDED IN THE LOOSE SHEETS IN THE HANDS OF THE ASSESSEE. IN THE INSTANT CASE, THERE WAS NO MATERIAL PLACED ON RECORD TO SHOW THAT THE LOOSE SHEETS WERE BELONGING TO THE ASSESSEE, THEREFORE, THE ADDITION MADE BY THE AO IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED MONEY OR EXPENDITURE IS UNSUSTAINABLE. 15 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM ACCORDINGLY, WE SET ASIDE THE ORDER OF THE LD.CIT(A) AND DELETE THE ADDITION MADE B Y THE AO. APPEAL OF THE ASSESSEE IS ALLOWED ON THIS ISSUE. I.T.A. NO.586/VIZ/2019, A.Y.2015 - 16 17. GROUND NO.1 AND 5 ARE GENERAL IN NATURE WHICH DOES NOT REQUIRE SPECIFIC ADJUDICATION. 18. GROUND NO.2 IS RELATED TO THE ADDITION MADE ON THE BASIS OF MATERIAL IMPOUNDED AS ANNEXURE A/HPJ/02/VSP IN PAGE NO.1 TO 16 DISCUSSED EARLIER IN THE ASSESSMENT ORDER. SINCE THE FACTS ARE IDENTICAL AND THE AO DID NOT ESTABLISH THAT THE LOOSE SHEETS FOUND DURING THE COURSE OF SURVEY WAS BELONGING TO THE ASSESSEE, THE ADDITION MADE BY THE AO ON ACCOUNT OF UNEXPLAINED MONEY OR EXPENDITURE IN THE HANDS OF THE ASSESSEE IS UNSUSTAINABLE AND THE SAME IS DELETED. ACCORDINGLY, THE ORDER OF THE LD.CIT(A) IS SET ASIDE AND THE APPEAL OF THE ASSESSEE ALLOWED. 19. GROUND NO.3 IS RELATED TO THE ADDITION MADE BY THE AO U/S 80IA OF THE ACT. THE AO FOUND THAT THE ASSESSEE HAS CLAIMED THE DEDUCTION U/S 80IA FOR A SUM OF RS.12,25,052/ - AND DID NOT UPLOAD FORM 10CCB ELECTRONICALLY. THEREFORE, THE AO DISALLOWED THE DEDUCTION CLAIMED BY THE ASSESSEE U/S 80IA AND ACCORDINGLY MADE THE ADDITION. 16 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM 20. AGAINST THE ORDER OF THE AO, THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND THE LD.CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. AGAINST WHICH THE ASSESSEE FILED APPEAL BEFORE US. 21. WE H AVE CONSIDERED THE SUBMISSIONS OF BOTH THE SIDES. AS PER SECTION 80IA, IT IS MANDATORY TO FILE THE AUDIT REPORT U/S 10CCB ELECTRONICALLY AND IN THE INSTANT CASE, THE ASSESSEE HAS FAILED TO FURNISH THE SAME. THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD.CIT(A) AND THE SAME IS UPHELD. APPEAL OF THE ASSESSEE IS DISMISSED ON THIS GROUND. I.T.A. NO.587/VIZ/2019, A.Y. 2016 - 17 22. GROUND NO.1 AND 3 ARE GENERAL IN NATURE WHICH DOES NOT REQUIRE SPECIFIC ADJUDICATION. 23. GROUND NO.2 IS RELATED TO THE PARTLY SUSTAINING THE ADDITION OF RS.8,45,793/ - IN RESPECT OF UNEXPLAINED JEWELLERY . DURING THE COURSE OF SURVEY CONDUCTED IN THE RESIDENCE OF THE ASSESSEE ON 24.11.2015, THE AO FOUND GOLD ORNAMENTS WITH GROSS WEIGHT OF 792.50 GMS, NET WEIGHT OF 6 95.00 GMS OF VALUE OF WHICH WAS ESTIMATED AT RS.16,30,900/ - . SILVER ARTICLES WEIGHING 1210 GMS, NET WEIGHT 1070 GMS VALUED AT RS.36,594/ - WERE ALSO FOUND. THE AO MADE THE VALUE OF ENTIRE GOLD JEWELLERY AND SILVER 17 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM ARTICLES AS AN ADDITION SINCE NONE OF THE FAMILY MEMBERS FILED THE WEALTH TAX RETURNS OR DISCLOSED THE SAME IN THE RETURN OF INCOME. 24. AGAINST THE ORDER OF THE AO, THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND THE LD.CIT(A) ALLOWED 50% OF JEWELLERY AS EXPLAINED KEEPING IN VIEW THE BOARD CI RCULAR AND CONFIRMED THE BALANCE ADDITION AS DISCUSSED IN PARA 5.2. OF THE LD.CIT(A) ORDER WHICH READS AS UNDER. 5.2) 1 HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER AND THE SUBMISSIONS OF THE APP ELLANT. .IT - IS SEEN THAT THE APPELLANT ONLY OFFERED GENERAL EXPLANATION RIGHT FROM THE SEARCH PROCEEDINGS, POST - SEARCH ENQUIRIES, ASSESSMENT PROCEEDINGS AND ALSO DURING THE APPELLATE \ PROCEEDINGS EXCEPT SAYING THAT JEWELLERY IS RECEIVED DURING THE MARRIAGE AND AS GIFT ON OTHER OCCASIONS NO SUPPORTING EVIDENCE WHATSOEVER HAS BEEN PRODUCED BY THE APPELLANT. THE DECISIONS RELIED ON ARE NOT APPLICABLE TO THE FACTS OF THE CASE AS THE CIRCUMSTANCES AND FACTUAL POSITION DIFFERS HOWEVER, KEEPING IN VIEW THE FACT TH AT SUBSTANTIAL PORTION OF THE GOLD WAS EXPLAINED AS BELONGING TO MRS KANCHAN JAIN WHO IS MOTHER OF THE APPELLANT AND SHE HAS BEEN INCOME TAX ASSESSEE FOR A LONG TIME, THE EXPLANATION OF THE APPELLANT CAN NOT BE IGNORED A1 TOGETHER ALSO. THE/ CUSTOMS AND TR ADITION OF THE FAMILY OF HOLDING GOLD AND JEWELLERY ALSO CANNOT BE IGNORED. ACCORDINGLY, 50% OF JEWELLERY IS TREATED AS EXPLAINED TO MEET THE ENDS OF JUSTICE. THE ADDITION TO THE EXTENT OF 50% IS DELETED AND THE BALANCE IS CONFIRMED. THE APPELLANT PARTIAL LY SUCCEEDS ON GROUNDS RAISED . 25. AGAINST WHICH THE ASSESSEE FILED APPEAL BEFORE US. DURING THE APPEAL HEARING, THE LD.AR SUBMITTED THAT AS PER THE BOARD CIRCULAR 500 GMS OF GOLD JEWELLERY TO EACH MARRIED FEMALE MEMBER AND 250 GMS OF GOLD JEWELLERY TO UNMARRIED FEMALE MEMBER AND 100 GMS. O F GOLD JEWELLERY TO MALE MEMBER IS PERMITTED, THEREFORE, NO ADDITION IS REQUIRED TO BE MADE ON ACCOUNT OF GOLD JEWELLERY FOUND DURING THE COURSE OF SEARCH. THE ASSESSEE RELIED ON 18 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM THE DECISION OF THIS TRIBUNAL IN THE CASE OF CHEKURI VENKATA RANGA RAJU, BHI MAVARAM VS. ACIT, CC, RJY IN I.A. NO. 30 & 410/VIZ/2012 DATED 21.07.2014 AND ARGUED THAT AS PER THE BOARD CIRCULAR, THE CREDIT MAY BE GIVEN FOR THE FAMILY MEMBERS AND THE BALANCE MAY BE BROUGHT TO TAX. 26. ON THE OTHER HAND, THE LD.DR SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 27. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. THE ITAT, IN THE ORDER CITED SUPRA HELD THAT THOUGH THE CIRCULAR IS ISSUED FOR THE PURPOSE OF LAYING GUIDELINES FOR SEIZURE OF JEWELLERY, BUT IT ALSO CAN BE APPLIED FOR THE PURPOSE OF EXPLAINING THE SOURCE OF JEWELLERY IN TERMS OF GUIDELINES LAID DOWN IN THE I NSTRUCTION. DURING THE COURSE OF HEARING, THE LD.AR SUBMITTED BEFORE US THAT THE ASSESSEE IS A BUSINESS MAN AND RECEIVED THE GIFTS OR INHERITED THE JEWELLERY FROM THEIR PARENTS AT THE TIME OF MARRIAGE AND SUBSEQUENT TO THE MARRIAGE ON VARIOUS OCCASIONS. SIMILARLY, UNMARRIED FEMALE ALSO RECEIVED THE GIFTS OVER THE PERIOD OF YEARS ON VARIOUS OCCASIONS. THEREFORE, SUBMITTED THAT GOLD JEWELLERY TO TH E EXTENT OF LIMITS SPECIFIED IN BOARD CIRCULAR REQUIRED TO BE TREATED AS EXPLAINED AND NO ADDITION IS CALLED FOR. THE ASSESSEES F AMILY CONSISTS OF WIFE OF THE ASSESSEE, DAUGHTER AND TWO MALE MEMBERS INCLUDING THE 19 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM ASSESSEE, THEREFORE, AS PER THE GUIDELINE S ISSUED IN INSTRUCTION NO. 1916, 950 GMS OF GOLD JEWELLERY REQUIRED TO BE ALLOWED AS CREDIT AND NO ADDITION IS CALLED FOR. IN THIS REGARD, WE EXTRACT RELEVANT PART OF THE ORDER OF THIS TRIBUNAL IN THE CASE OF CHEKURI VENKATA RANGA RAJU (SUPRA) WHICH RE ADS AS UNDER : 9. IT IS THE CONTENTION OF THE ASSESSEE THAT AS PER BOARD'S INSTRUCTION NO.1916, THE ASSESSEE WILL BE ENTITLED FOR CREDIT OF 500GMS. IN RESPECT OF MARRIED LADY AND 250 GMS. FOR UNMARRIED LADY. AFTER GOING THROUGH THE BOARD'S INSTRUCTION NO. 1916, A COPY OF WHICH IS PLACED BEFORE US BY THE LD. AR., WE ARE OF THE VIEW THAT THOUGH THE AFORESAID CIRCULAR IS IN THE CONTEXT OF SEIZURE OF GOLD JEWELLERY BUT THE SAME CAN ALSO BE APPLIED WHILE CONSIDERING THE UNEXPLAINED INVESTMENT IN GOLD JEWELLERY B Y THE ASSESSEE. IN THE AFORESAID INSTRUCTION 1915 DATED 11.5.1994, IT IS CLEARLY MENTIONED THAT IN CASE OF MARRIED LADY 500 GMS. AND IN CASE OF UNMARRIED LADY 250 GMS CAN BE GIVEN CREDIT. THE HON'BLE GUJARAT HIGH COURT IN CASE OF CIT VS. RATANLAL VYAPARILA L JAM (SUPRA) TAKING NOTE OF BOARD'S INSTRUCTION NO.1916 HAS ALSO EXPRESSED SIMILAR VIEW BY HOLDING THAT THOUGH THE CIRCULAR HAS BEEN ISSUED FOR THE PURPOSE OF LAYING DOWN GUIDELINES FOR SEIZURE OF JEWELLERY BUT IT CAN ALSO BE CONSIDERED FOR THE PURPOSE OF EXPLAINING THE SOURCE OF JEWELLERY IN TERMS WITH THE GUIDELINES LAID DOWN IN THE SAID INSTRUCTION. CONSIDERING THE AFORESAID FACTS AND CIRCUMSTANCES AND IN THE LIGHT OF THE BOARD'S INSTRUCTION NO.1916 DATED 11.5.1994 AND DECISION OF HONBLE GUJARAT HIGH C OURT WE DIRECT THE ASSESSING OFFICER TO WORK OUT THE UNEXPLAINED INVESTMENT, IF ANY,, AFTER GIVING CREDIT FOR GOLD JEWELLERY AS PER CLAUSE (IL) OF BOARD'S INSTRUCTION NO.1916 DATED 11.5.1994. ACCORDINGLY, ASSESSEE'S APPEAL IS CONSIDERED TO BE ALLOWED FOR S TATISTICAL PURPOSES. SINCE THE ASSESSEES FAMILY CONSISTS OF THE ASSESSEE, HIS WIFE, DAUGHTER AND SON, THE ASSESSEE IS ENTITLED FOR CREDIT OF 950 GMS AND THE BALANCE TO BE BROUGHT TO TAX. I N THE ASSESSEES CASE, GOLD JEWELLERY ORNAMENTS FOUND WAS ONLY 792.50 GMS., THE ENTIRE JEWELLERY IS TREATED AS EXPLAINED AND NO ADDITION IS CALLED FOR. HOWEVER, WE CONFIRM THE ADDITION RELATING TO THE 20 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM SILVER ARTICLES FOUND DURING THE COURSE OF SEARCH. AC CORDINGLY, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 28. GROUND NO.4 FOR THE A.Y. 2014 - 15 AND 2015 - 16 IS RELAT ED TO CHARGING OF INTEREST U/S 234A, 234B AND 234C OF THE ACT. LEVY OF INTEREST U/S 234A, 234B AND 234C IS MANDATORY. ACCORDINGLY, WE DIRECT THE AO TO LEVY THE INTEREST CORRECTLY AS PROVIDED U/S 234A, 234B AND 234C OF THE ACT. ACCORDINGLY, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE . 29 . IN THE RESULT, (A) S TAY APPLICATIONS OF THE ASSESSEE FOR THE A.Y.2014 - 15 TO 2016 - 17 ARE DISMISSED . (B) I.T.A. NO.585/VIZ/2019 FOR THE A.Y.2014 - 15 IS ALLOWED FOR STATISTICAL PURPOSE. (C) I.T.A. NO.586/VIZ/2019 FOR THE A.Y.2015 - 16 IS ALLOWED FOR STATISTICAL PURPOSE. (D) I.T.A. NO.587/VIZ/2019 FOR THE A.Y. 2016 - 17 IS PARTLY ALLOWED. 21 S .A. NO .69/VIZ/2019 TO 71/VIZ/2019 AND I.T.A NOS.585/VIZ/2019 TO 587/VIZ/2019, A.Y.2014 - 15 TO 2016 - 17 SRI SURESH KUMAR JAIN, VISAKHAPATNAM ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH DECEMBER, 2019. SD/ - SD/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 11 .1 2 .2019 L.RAMA, SPS / COPY OF THE ORDER FORWARDED TO: - 1 . / THE ASSESSEE SURESH KUMAR JAIN , D.NO.50 - 50 - 38/9, TPT COLONY SEETHAMMADHARA, VISAKHAPATNAM 2. ASST.COMMISSIONER OF INCOME TAX , CENTRAL CIRCLE - 1, VISAKHAPATNAM 3. THE PRINCIPAL COMMISSIONER OF INCOME TAX ( CENTRAL ), VISAKHAPATNAM 4. THE COMMISSIONER OF INCOME TAX (APPEALS) - 3 , VISAKHAPATNAM 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM