The ACIT, Central Circle-1(1), Ahmedabad V. Shri Mahavirprasad D.Sharma, Ahmedabad

ITA 641/AHD/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60420 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 15-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ANKIT TALSANIA
• Keywords: Gift; Search and seizure

Judgement Text

ITA NO.641/ AHD/2012 A.YR. 2009- 10 1 IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD (BEFORE SHRI D. K. TYAGI, JM & SHRI ANIL CHATURVEDI A.M.) I.T.A. NO.641 /AHD/2012. (ASSESSMENT YEAR: 2009-10) ASSISTANT COMMISSIONER OF INCOME TAX, CENT.CIR.1(1), 3 RD FLOOR, AAYAKAR BHAVAN, ASHRAM ROAD, AHMEDABAD. (APPELLANT) VS. MAHAVIRPRASAD D. SHARMA, 5 DEVALAYAM BUNGALOWS B/H.SWAGAT PLAZA-II, BOPAL-AMBLI ROAD,AHMEDABAD. (RESPONDENT) PAN: ACNPS 4453Q BY REVENUE : SHRI VINOD TANWANI, SR. D.R. BY ASSESSEE : SHRI ANKIT TALSANIA. ( )/ ORDER DATE OF HEARING : 9-5-2012 DATE OF PRONOUNCEMENT : 25-5-2012 PER: SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER OF LD. CIT(A)-I, AHMEDABAD DATED 10-1-2012 FOR THE ASSESSMENT YEAR 2 009-10. 2. THE REVENUE HAS TAKEN EFFECTIVELY ONE GROUND OF APPEAL WHICH READS AS UNDER:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS I N DELETING THE ADDITION OF RS.9,62,068/- OUT OF TOTAL ADDITION OF RS.10,67,279/- MADE ON ACCOUNT OF UNEXPLAINED JEWELLERY U/S.69A OF THE ACT. ITA NO.641/ AHD/2012 A.YR. 2009- 10 2 3. BRIEF FACTS OF THE CASE ARE THAT A SEARCH U/S.13 2 OF THE ACT WAS CONDUCTED ON 1-9-2008 AT THE ASSESSEES RESIDENTIAL PREMISES AS HE WAS WORKING WITH GUJARAT AMBUJA EXPORT LTD. DURING THE COURSE OF SEARCH PROCEEDINGS AT THE RESIDENCE OF THE ASSESSEE, JEWEL LERY WEIGHING 1359.500 GM. VALUED AT RS.14,67,270/- WAS FOUND. AUTHORISED OFFICER OF THE SEARCH PARTY LOOKING TO THE SIZE OF THE FAMILY, SOCIAL ST ATUS, CUSTOMS AND FOLLOWING THE INSTRUCTIONS OF THE DEPARTMENT IN RESPECT OF GO LD AND JEWELLERY IN THE CASE OF SEARCH AND SEIZURE TREATED THE SAME AS EXPL AINED AND DID NOT MAKE ANY SEIZURE. IT WAS EXPLAINED BY THE ASSESSEE THAT HE WAS STAYING WITH FAMILY CONSISTING OF WIFE, SON, GRAND-SON, DAU GHTER IN LAW AND 3 DAUGHTERS. BEFORE THE A.O. THE EXPLANATION OF SOURC E OF JEWELLERY WAS STATED TO BE GIFTS ON THE OCCASIONS OF MARRIAGES ET C. THE A.O. HELD THAT THE ASSESSEE HAS FAILED TO SUBMIT DOCUMENTARY EVIDENCE TO SUBSTANTIATE THE CLAIM AND ALSO FAILED TO ESTABLISH ONE TO ONE MATCH ING BETWEEN THE ITEMS AS REFLECTED IN THE INVENTORY SUBMITTED BY THE ASSE SSEE. AFTER CONSIDERING THE RETURN OF INCOME FILED BY THE ASSESSEE IN THE E ARLIER YEARS, SOCIAL AND MARRIAGE OCCASIONS AND PURCHASE BILLS SUBMITTED DUR ING THE COURSE OF ASSESSMENT PROCEEDINGS, JEWELLERY TO THE EXTENT OF RS.4 LAKHS WAS CONSIDERED AS EXPLAINED AND THE BALANCE AMOUNT OF R S.10,67,279/- WAS TREATED AS UNEXPLAINED ASSET OF THE ASSESSEE AND AD DED TO THE TOTAL INCOME UNDER THE PROVISIONS OF SEC. 69A OF THE ACT. AGGRIEVED BY THE ORDER OF A.O., THE ASSESSEE PREFERRED APPEAL BEFORE THE C IT (A). 4. CIT (A) AFTER CONSIDERING THE EXPLANATION OFFERE D BY THE ASSESSEE THAT IT HAD RECEIVED GOLD ORNAMENTS AND JEWELLERY ON SOC IAL OCCASIONS AND RELYING ON THE DECISION OF JURISDICTIONAL HIGH COUR T IN THE CASE OF CIT VS. RATANLAL VYAPARILAL JAIN (2010) 235 CTR 568 (GUJ) H ELD THAT THE GOLD ITA NO.641/ AHD/2012 A.YR. 2009- 10 3 ORNAMENTS AND JEWELLERY ARE AS PER CIRCULAR NO.1916 DATED 11-5-1994 AND WITHIN THE LIMIT LAID DOWN BY THE AFORESAID CIRCUL AR AND THEREFORE HELD ONLY JEWELLERY TO THE EXTENT OF RS.1,05,211/- AS UNEXPLA INED AND THE BALANCE GOLD ORNAMENTS AND JEWELLERY WORTH RS.13,62,068/- AS EXPLAINED AND HE ACCORDINGLY DIRECTED THE A.O. TO RESTRICT THE ADDIT ION TO RS.1,05,211/-. 5. AGGRIEVED BY THE DECISION OF THE CIT (A), NOW TH E REVENUE IS IN APPEAL BEFORE US. 6. BEFORE US, THE LD. D.R. WAS FAIR ENOUGH TO CONCE DE THAT THE ISSUE IS COVERED AGAINST THE REVENUE IN VIEW OF THE JURISDIC TIONAL HIGH COURT DECISION IN THE CASE OF CIT VS. RATANLAL V. JAIN.(2 010) 235 CTR 568 (GUJ.). 7. THE LD. A.R. ON THE OTHER HAND RELIED ON THE ORD ER OF THE CIT (A). 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. HONBLE GUJARAT HIGH COURT IN THE CASE OF C IT VS. RATANLAL V. JAIN (SUPRA) HAS HELD AS UNDER:- CIT VS. RATANLAL VYAPARILAL JAIN (2010) 235 CTR 56 8 (GUJ.) INSTRUCTION NO.1916 DT. 11 TH MAY,1994 WHICH LAYS DOWN GUIDELINES FOR SEIZURE OF JEWELLERY IN THE COURSE OF SEARCH TAKES INTO ACCOUNT THE QUANTITY OF JEWELLERY WHICH WOULD GENERALLY BE HELD BY THE FAMILY MEMBERS OF AN ASSESSEE BELONGING TO HINDU FAMILIES, WHEREBY JEWELLERY IS GIFTED BY THE RELATIVES AND FRIENDS AT THE TIME OF SOCIAL FUNCTIONS, VIZ., MARRIAGES, BIRTHDAYS, MARRIAGE ANN IVERSARY AND OTHER FESTIVALS. THESE GIFTS ARE CUSTOMARY AND CUSTOMS PR EVAILING IN A ITA NO.641/ AHD/2012 A.YR. 2009- 10 4 SOCIETY CANNOT BE IGNORED AND, THEREFORE, UNLESS AN YTHING CONTRARY IS SHOWN, IT CAN BE SAFELY PRESUMED THAT THE SOURCE TO THE EXTENT OF THE JEWELRY STATED IN THE CIRCULAR STANDS EXPLAINED. 9. AS THE FACTS OF THE PRESENT CASE ARE IDENTICAL T O THAT DECIDED BY GUJARAT HIGH COURT, RESPECTFULLY FOLLOWING THE DECI SION OF THE JURISDICTIONAL HIGH COURT (SUPRA), THE ORDER PASSED BY LD. CIT (A) IS HEREBY UPHELD. 10. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISS ED ORDER PRONOUNCED IN OPEN COURT ON 25 - 5 - 2012. SD/- SD/- (D. K. TYAGI) (ANIL CHATURVEDI) JUDICIAL MEMBER ACC OUNTANT MEMBER AHMEDABAD. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-I, AHMEDABAD. 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. ITA NO.641/ AHD/2012 A.YR. 2009- 10 5 1.DATE OF DICTATION 9 - 5 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 17 /5 / 2012 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 24 - 5 -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 25 - 5 -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 25 - 5 -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 28 - 5 -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..