Mrs Kiran Wadhwa, Delhi V. ITO, New Delhi

ITA 6618/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5133 (ITAT-DELHI)
• Duration Of Justice: 7 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 08-05-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 27-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: BEDOBANI
• Keywords: Unexplained investment; Gift; Valuation report; Accommodation entries; Capital receipt
• Section: 54F; 69; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: SMC , NEW DELHI BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO. 6618/DEL/2016 AY: 2012 - 13 MRS. KIRAN WADHWA 33/39, BHIKAM SINGH COLONY SHAHDARA DELHI 110 092 PAN: AARPW 8261 A VS . ITO, WARD 59(3) NEW DELHI (APPELLANT) (RESPONDENT) APPELLAN T BY SH. MANOJ GUPTA, ADV. RESPONDENT BY MS.BEDOBANI, SR.D.R. DATE OF HEARING 11 TH MAY, 2017 DATE OF PRONOUNCEMENT 09 TH AUGUST , 2017 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DT. 17.10. 2016 OF THE LD. CIT(A) - 19, NEW DELHI RELATING TO ASSESSMENT YEAR (A.Y.) 20 12 - 13 . 2. FACTS OF THE CASE , IN BRIEF , ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND FILED HER RETURN OF INCOME ON 10 TH JANUARY, 2013 ITA NO.6618/DEL/2016 A.Y. 2012 - 13 MRS. KIRAN WADHWA, DELHI 2 DECLARING TOTAL INCOME OF RS.5,64,630/ - . DURIN G THE IMPUGNED ASSESSMENT YEAR (A.Y.) THE ASSESSEE HAD SOLD A PROPERTY NO.70 , CHITRA VIHAR, DELHI - 110092 FOR A CONSIDERATION OF RS.95,00,000/ - AND HAD DECLARED LONG TERM CAPITAL GAIN OF RS.81,91,667/ - . THE ABOVE CAPITAL GAIN WAS CLAIMED AS EXEMPT U/ S 54 OF THE INCOME TAX ACT, 1961 (THE ACT). DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE ASSESSEE FILED THE FOLLOWING DETAILS TO SUBSTANTIATE THE CLAIM OF EXEMPTION U/S 54 OF THE ACT. ( A ) PROPERTY NO.103, GROUND FLOOR, BLOCK A, SECTOR 12, RAMPRASTHA, GHAZ IABAD RS.51,53,000/ - ( B ) PROPERTY NO.103, 2 ND FLOOR, BLOCK A, SECTOR 12, RAMPRASTHA, GHAZIABAD RS. 6 1, 8 5,000/ - ( C ) FLAT NO.7C,KOHINOOR APARTMENT, I.P.EXTN., DELHI RS. 24,18,000/ - ------------------- GRAND TOTAL: RS. 1,37,56,500/ - ============== 2.1. RELYING ON VARIOUS DECISION THE ASSESSING OFFICER (A.O.) HELD THAT DEDUCTION U/S 54 OF THE ACT IS ALLOWABLE IN RESPECT OF ONLY ONE RESIDENTIAL UNIT AT THE CHOICE OF THE ASSESSEE. HE FURTHER NOTED THAT THOUGH THE ASSESSEE HAD PURCHAS ED 2 RESIDENTIAL UNITS IN THE SAME BUILDING BUT HAS FAILED TO PROVE TH E 2 RESIDENTIAL UNITS AS ONE SELF CONTAINED DWELLING UNIT AND THERE IS ITA NO.6618/DEL/2016 A.Y. 2012 - 13 MRS. KIRAN WADHWA, DELHI 3 UNIT Y OF STRUCTURE SUCH AS HAVING COMMON KITCHEN AND COMMON USAGE. SINCE THE ASSESSEE DID NOT RESPOND TO THE QUERY RAISED BY THE AO ON THIS ISSUE, THE AO ALLOWED CLAIM OF EXEMPTION U/S 54 OF THE ACT IN RESPECT OF ONLY ONE PROPERTY SITUATED AT GHAZIABAD AMOUNTING TO RS.6 1 ,85,500/ - AND DENIED THE CLAIM OF EXEMPTION U/S 54 AMOUNTING TO RS.20,61,167/ - AS EXCESS CLAIM ED . 2.2. SIMILARLY THE AO OBSERVED FROM THE DETAILS FURNISHED BY THE ASSESSEE THAT THE ASSESSEE HAD INVESTED AN AMOUNT OF RS.1,37,56,500/ - TOWARDS INVESTMENT IN THE ABOVE PROPERTIES. FROM THE DETAILS FURNISHED BY THE ASSESSEE HE NOTED THAT THE ASSESSEE HAD RECEIVED RS.19,84,500/ - FROM VARIOUS PERSONS. IN ABSENCE OF FILING OF CONFIRMATION FROM THE LOAN CREDITORS THE AO MADE ADDITION OF RS.19,8 4 ,500/ - TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED . SIMILARLY THE CLAIM OF THE ASSESSEE THAT RS .3,12,000/ - WAS INVESTED BY HER OUT OF ACCUMULATED PROFITS, PAST SAVINGS WAS REJECTED BY THE AO IN ABSENCE OF NECESSARY DOCUMENTS TO SUPPORT THE CLAIM. THUS THE AO MADE ADDITION OF RS.3,12,000/ - ON ACCOUNT OF THE SAME AND COMPLETED THE ASSESSMENT ON A TO TAL INCOME OF RS.46,81,800/ - AS AGAINST RS.5,64,630/ - DECLARED BY THE ASSESSEE. ITA NO.6618/DEL/2016 A.Y. 2012 - 13 MRS. KIRAN WADHWA, DELHI 4 3. IN APPEAL THE LD.CIT(A) FOLLOWING THE DECISION OF HON BLE DELHI HIGH COURT IN THE CASE OF CIT VS. GEETHA DUGGAL HELD THAT THE ASSESSEE IS ENTITLED TO CLAIM EXEMPTION U/S 54 OF THE ACT IN RESPECT OF THE TWO UNITS PURCHASED AT RAMPRASTHA , GHAZIABAD. SIMILARLY HE ALSO DELETED ADDITION OF RS.19,8 4 ,500/ - RECEIVED BY THE ASSESSEE FROM VARIOUS PERSONS ON THE BASIS OF THE REMAND REPORT RECEIVED FROM THE AO. 4. SO FAR AS THE CLAIM OF EXEMPTION U/S 54F OF THE ACT AMOUNTING TO RS.5,58,231/ - OUT OF THE CAPITAL GAIN AROSE TO THE ASSESSEE ON ACCOUNT OF SALE OF JEWELLERY IS CONCERNED, HE OBSERVED THAT THE ASSESSEE DURING THE IMPUGNED ASSESSMENT YEAR HAS CLAIMED TO HAVE SOLD JEWELLERY AM OUNTING TO RS.15,00,019/ - . IT WAS EXPLAINED THAT THE INDEX ED COST OF SUCH JEWELLERY WAS RS.9,41,778/ - AND ACCORDINGLY LONG TERM CAPITAL GAIN WAS RS.5,58,231/ - AND THE ASSESSEE HA D PAID TAXES THEREON. IT WAS ALSO SUBMITTED THAT AS ON 18 TH JULY, 2011 WHEN THE JEWELLERY WAS SOLD, THE ASSESSEE WAS HAVING ONLY ONE RESIDENTIAL HOUSE I.E. AT CHITRA VIHAR. THE ASSESSEE HAS NOT PURCHASED ANY OTHER RESIDENTIAL HOUSE AFTER BUYING PROPERTY AT RAM PRASTHA COLONY, GHAZIABAD, UP FOR RS.1,13,38,500/ - . T HEREFORE, THE ASSESSEE IS ITA NO.6618/DEL/2016 A.Y. 2012 - 13 MRS. KIRAN WADHWA, DELHI 5 ELIGIBLE TO CLAIM EXEMPTION U/S 54F OF THE ACT OUT OF THE LONG TERM CAPITAL GAIN ON SALE OF JEWELLERY AND UTILISED TOWARDS PURCHASE OF THE HOUSE PROPERTY. 5. SINCE THIS WAS A FRESH GROUND RAISED DURING THE COURSE OF APPEAL PROCEEDINGS THE LD. CIT(A) ASKED THE ASSESSEE TO SUBMIT THE STATEMENT OF AFFAIRS AND THE EVIDENCE TO SHOW THAT JEWELLERY WAS A LONG TERM CAPITAL GAIN DULY DISCLOSED BY THE ASSESSEE. TO SUBSTANTIATE THE AVAILABILITY OF JEWELLERY THE ASSESSEE FILED A VALUATION REPORT FROM OMPR AKASH KOHLI JEWELLER DATED 13.6.1989 AND 25.8.90 SHOWING JEWELLERY WITH AGGREGATE VALUE OF RS.1,47,719/ - . THE ASSESSEE ALSO FILED A LETTER FROM H ER BROTHERS STAT ING THAT THE MOTHER OF THE ASSESSEE AFTER THE DEATH OF HER FATHER BECAME A SADHWI AND GAVE A LL HER JEWELLERY WEIGHING APPROXIMATELY 377 GRAMS TO THE ASSESSEE. THE ASSESSEE ALSO FILED COPY OF SALE BILL ISSUED BY SHYAM BULLION PVT.LTD. DATED 18.7.2011 FOR PURCHASE OF OLD ORNAMENTS WEIGHING 718.4 GRAMS WITH PURITY OF 90%. 5.1. HOWEVER, THE LD.CI T(A) WAS NOT SATISFIED WITH THE ARGUMENTS ADVANCED BY THE ASSESSEE. HE OBSERVED THAT THE ASSESSEE HAS NOT SHOWN ANY EVIDENCE FOR PAYMENT OF ANY CHARGES FOR OBTAINING THE ITA NO.6618/DEL/2016 A.Y. 2012 - 13 MRS. KIRAN WADHWA, DELHI 6 VALUATION REPORT. FURTHER THE VALUATION REPORT IS NOT EVEN SERIALLY NUMBERED AND TH EREFORE THE GENUINENESS OF THE SAME IS DOUBTFUL . HE OBSERVED THAT THE VALUATION REPORT SHOWS THAT IT WAS PREPARED FOR WEALTH TAX PURPOSES BUT THE ASSESSEE HAS NOT FURNISHED COPY OF ANY WEALTH TAX RETURN HAVING EVER BEEN FILED. FURTHER NET VALUE OF GOL D JEWELLERY SHOWS 525.8 GMS WHICH WAS VALUED AT 80% PURITY AND BY TAKING THE STANDARD GOLD RATE AT RS.3150/ - PER 10 GMS. HE OBSERVED THAT THERE IS NEITHER ANY GIFT DEED NOR ANY OTHER EVIDENCE TO SHOW THAT THE MOTHER HAD THAT KIND OF JEWELLERY AND THAT THE SAME HAS BEEN GIFTED TO THE MARRIED DAUGHTER OUT OF NATURAL LOVE AND AFFECTION. ACCORDING TO HIM IN THE NORMAL INSTANCE THE FAMILY JEWELLERY IS OFTEN GIVEN TO THE DAUGHTER IN LAW WITH WHO M THE PARENTS ARE STAYING AND NOT TO THE MARRIED DAUGHTER. THE ASSESSEE HAS NOT FILED ANY EVIDENCE OR ANY VALUATION MADE AFTER 1990 TO SHOW THAT SHE POSSESSED SUCH KIND OF JEWELLERY. EVEN THE FURNISHED STATEMENT OF AFFAIRS DOES NOT SHOW RECEIPT OF SUCH JEWELLERY IN THE PRECEDING YEAR. T HEREFORE , HE HELD THAT IT IS THE TUTORED CERTIFICATE PROCURED BY THE ASSESSEE FROM HER BROTHERS TO ACCOMMODATE HER TO SUBSTANTIATE THE SALE OF JEWELLERY OF 718.4 GMS OF GOLD. HE , THEREFORE , REJECTED THE STORY OF GIFT FROM THE MOTHER. ITA NO.6618/DEL/2016 A.Y. 2012 - 13 MRS. KIRAN WADHWA, DELHI 7 5.2. SO FAR AS GENUINENESS OF JEWELLERY IS CONCERNED, HE OBSERVED THAT THE BUYER HAS GIVEN A PURITY OF 90% IN RESPECT OF GOLD ORNAMENTS WHERE AS THE VALUATION REPORT SHOWS THE SAME AT 80% PURITY. THIS ACCORDING TO THE LD.CIT(A) SHOWS THAT EITHER THE ASSESSEE HAD OBTAIN ED ACCOMMODATION ENTRIES FROM THE JEWELLER OR JEWELLERY SOLD WAS UNDISCLOSED JEWELLERY OF THE ASSESSEE HAVING 90% PURITY. THEREFORE, ACCORDING TO THE LD.CIT(A) A SUM OF RS.15,00,019/ - DOES NOT REFLECT SALE OF OLD JEWELLERY LIABLE TO YIELD ANY LONG TERM C APITAL GAIN AND RATHER IT IS THE UNDISCLOSED INCOME OF THE ASSESSEE. HE , THEREFORE , CONFRONTED THE SAME TO THE ASSESSEE BY ASKING HER TO EXPLAIN AS TO WHY THE INCOME OF THE ASSESSEE SHOULD NOT BE ENHANCED. REJECTING THE EXPLANATION GIVEN BY THE ASSESSE E THE LD.CIT(A) ENHANCED THE INCOME OF THE ASSESSEE TO THE EXTENT OF RS.15,00,019/ - BY OBSERVING AS UNDER. 18. I HAVE GONE THROUGH THE SUBMISSIONS. THE VALUATION HAD BEEN PROVIDED BY THE APPELLANT HIMSELF. IT HAS BEEN CARRIED OUT BY A CERTIFIED VALUER. BUT, NOW, THE APPELLANT IS HIMSELF CASTING ASPIRATIONS ON THE SAME. AUTHORISED REPRESENTATIVE ALLEGES THAT THE WHOLE JEWELLERY WAS ALWAYS 90% PURE AND THAT THE STANDARD OF THE VALUER MIGHT HAVE BEEN DIFFERENT FROM THE OTHER VALUER. THE ITA NO.6618/DEL/2016 A.Y. 2012 - 13 MRS. KIRAN WADHWA, DELHI 8 SUBMISSIONS OF TH E APPELLANT ARE VERY GENERAL IN NATURE AND THEY DO NOT SHOW ANY POSSIBLE REASON WHY APPROVED VALUER WHILE PREPARING THE VALUATION, WILL MENTION A WRONG PURITY IN HIS REPORT. THE FACT REMAINS THAT THE JEWELLERY WAS ONLY 80% PURE AND DOES NOT REPRESENT THE JEWELLERY ACTUALLY SOLD BY THE APPELLANT. AS FAR AS THE GOLD GIVEN BY HER MOTHER IS CONCERNED, I HAVE ALREADY DISCUSSED ABOVE THAT THE GENUINENESS OF THE SAME IS NOT PROVED. ACCORDINGLY, A SUM OF RS.15,00,019/ - IS TREATED AS UNEXPLAINED. THE ASSESSMENT IS ENHANCED TO THE EXTENT OF RS.15,00,019/ - . 5.3 . AS REGARDS THE EXPLANATION OF THE ASSESSEE REGARDING RECEIPT OF GIFT OF RS.2,75,000/ - FROM DIFFERENT PERSONS IS CONCERNED, HE OBSERVED THAT THE ASSESSEE WAS NOT ABLE TO PROVIDE ANY EVIDENCE IN RESPECT OF AVAILABILITY OF CASH NOR ANY OCCASION FOR RECEIPT OF GIFTS . S INCE THE ASSESSEE WAS NOT ABLE TO EXPLAIN THE SOURCE OF THE DONOR HE CONFRONTED THE SAME TO THE ASSESSEE BY ASKING HER TO EXPLAIN AS TO WHY THE INCOME OF THE ASSESSEE SHOULD NOT BE ENHANCED T O THAT EXTENT. AFTER CONSIDERING THE REPLY RECEIVED FROM THE ASSESSEE THE LD.CIT(A) ACCEPTED AN AMOUNT OF RS. 65, 000/ - RECEIVED BY HER FROM HARSH WADHWA AND SUSTAINED ITA NO.6618/DEL/2016 A.Y. 2012 - 13 MRS. KIRAN WADHWA, DELHI 9 ADDITION OF RS.2,10,000/ - AS UNEXPLAINED INCOME U/S 69 OF THE ACT DISGUISED IN THE FORM OF BOGUS GIFT . 5.4. SO FAR AS THE EXPLANATION OF THE ASSESSEE REGARDING AVAILABILITY OF RS.3,12,000/ - AS CASH IN HAND IS CONCERNED, THE LD.CIT(A) SUSTAINED AN AMOU NT OF RS.3,81,828/ - BY OBSERVING AS UNDER. 20. THE NEXT GROUND OF APPEAL IS IN RESPECT OF ADDITION OF RS.3,12,000/ - AS ALLEGED CASH IN HAND. TO MAKE UP THE SHORTFALL IN RESPECT OF INVESTMENT IN PROPERTIES, THE APPELLANT HAS FURTHER STATED THAT RS.3,12 ,000/ - HAS BEEN INVESTED OUT OF ACCUMULATED PROFITS AND PAST SAVINGS OF THE APPELLANT. TO SUBSTANTIATE THE SAME, THE AR HAS FILED COPIES OF INCOME TAX RETURNS OF APPELLANT FOR PROVIDING EVIDENCE SHOWING AN INCOME FROM RETAIL SALES, HOWEVER, THE BANK ACCOU NT OF THE APPELLANT DOES NOT SHOW ANY EVIDENCE OF ANY SUCH BUSINESS. THE APPELLANT HAS NEVER FILED ANY STATEMENT OF AFFAIRS ALONG WITH RETURNS. THE AR HAS MERELY RELIED UPON THE COPIES OF RETURNS BUT HE HAS NOT BEEN ABLE TO SUBSTANTIATE THE AVAILABILITY OF RS.3,12,000/ - WITH THE APPELLANT. IN FACT, THE CASH FLOW STATEMENT NOW SUBMITTED SHOW THAT IT IS NOT EVEN IN CONFORMITY WITH THE SUBMISSION MADE DURING THE COURSE OF ASSESSMENT. THE CASH FLOW IS AS UNDER. ITA NO.6618/DEL/2016 A.Y. 2012 - 13 MRS. KIRAN WADHWA, DELHI 10 SL.NO. DETAILS AMOUNT - RS. AMOUNT - RS. 1 . A. I. II. OPENING CASH IN HAND 1.4.11 SOURCES OF CASH: CASH GIFT RECEIVED SALE OF FURNITURE 2,75,000 2,00,000 3,93,508 4,75,000 LESS: I. II. III. UTILISATION OF CASH IN KOHINOOR APARTMENT RAMPRASTHA FLOOR DRAWINGS 93,000 7,23,500 40,328 8,56,828 CASH IN HAND AS AT 31.3.2013 11,680 THIS SHOWS THAT THE OPENING CASH WAS NOT RS.3,12,000/ - BUT RS.3,93,508/ - OUT OF WHICH ALMOST RS.3,82,000/ - HAD BEEN CONSUMED AND NOT RS.3,12,000/ - . THIS CLEARLY SHOWS THAT AVAILABILITY OF CASH IS ONLY A CONCOCTED THEORY TO TRY AND EXPLAIN THE UNEXPLAINED MONEY WHICH WAS UTILISED IN THE PURCHASE OF PROPERTIES. THEREFORE, THE SUM OF RS.3,81,828/ - (3,93,508 - 11,680) IS TREATED AS UNEXPLAINED INVESTMENT AND THE ADDITION IS ENHANCED TO THAT EXTENT. 6. AGGRIEVED WITH SUCH ORDER OF THE LD.CIT(A) THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL WITH THE FOLLOWING GROUNDS. 1. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE ORDER PASSED BY LD.CIT(A) ENHANCING THE INCOME IS PERVERSE TO THE ITA NO.6618/DEL/2016 A.Y. 2012 - 13 MRS. KIRAN WADHWA, DELHI 11 SETTLE D PRINCIPLES OF LAW AND PROVISIONS OF INCOME TAX ACT AND HENCE ORDER PASSED QUA ENHANCEMENT OF INCOME IS LIABLE TO BE SET ASIDE AND THE APPELLANT BE ASSESSED AT RETURNED INCOME. 2 . THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A0 ERRED IN TREATING INCOME FROM SALE OF JEWELLERY OF RS.15,00,019/ - AS UNDISCLOSED INCOME U/S 69 OF ACT AS AGAINST LONG TERM CAPITAL RECEIPT DECLARED BY THE APPELLANT AND THUS NOT ALLOWING BENEFIT OF INDEXATION. 3 . THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE APPELLANT IS ELIGIBLE TO THE CLAIM OF DEDUCTION U/S 54F OF THE IT ACT, 1961 OF RS.5,58,231/ - ON SALE OF JEWELLERY AS STATED IN GROUND NO.2 THOUGH NOT CLAIMED IN THE RETURN OF INCOME FILED. 4 . THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) ERRED IN ENHANCING INCOME OF APPELLANT BY RS.2,10,000/ - BY TREATING GIFTS RECEIVED FROM CLOSE RELATIVES AS UNEXPLAINED INCOME U/S 69 OF THE ACT. 5 . THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.AO ERRED IN MAKING ADDITION OF RS.3,12,000/ - OF ACCUMULATED PROFITS, POST SAVING ETC. WITHOUT ANY BASIS. ITA NO.6618/DEL/2016 A.Y. 2012 - 13 MRS. KIRAN WADHWA, DELHI 12 6 . THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) ERRED IN ENHANCING INCOME OF THE APPELLANT BY RS.69,828/ - BEING THE DIFFERENCE BETWEEN OPENING CASH IN HA ND UTILISED DURING THE YEAR AND ADDITION MADE BY LD.AO BY TREATING THE SAME AS UNEXPLAINED INVESTMENT. 7 . THAT APPELLANT CRAVES LEAVE OF THIS HON BLE COURT TO AMEND, ALTER AND ADD THE GROUNDS OF APPEAL BEFORE HEARING. 7. LD.COUNSEL FOR THE ASSESSEE SUBMITTE D THAT THE SALE OF JEWELLERY WAS ACCEPTED BY THE AO BUT THE LD.CIT(A) ENHANCED THE INCOME OF THE ASSESSEE BY TREATING SUCH SALE OF JEWELLERY AS UNDISCLOSED INCOME OF THE ASSESSEE U/S 69 OF THE I.T. ACT, 1961 (ACT). REFERRING TO PAGE 15 OF THE PAPER BOOK THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS NOT CLAIMED ANY EXEMPTION U/S 54 OF THE ACT ON ACCOUNT OF SALE OF JEWELLERY. THEREFORE, THE LD.CIT(A) WAS NOT JUSTIFIED IN REJECTING THE CLAIM OF SALE OF JEWELLERY TO EXPLAIN THE SOURCE TOWA RDS INVESTMENT IN THE PROPERTY AND DENYING THE BENEFIT OF EXCEPTION U/S 54 OF THE ACT. SO FAR AS THE OTHER OBJECTIONS OF THE LD.CIT(A) ARE CONCERNED THAT THE VALUATION REPORT WAS NOT SERIALLY NUMBERED , THAT THERE IS DIFFERENCE IN THE PURITY ELEMENT AN D NO GIFT DEED WAS MADE BY ITA NO.6618/DEL/2016 A.Y. 2012 - 13 MRS. KIRAN WADHWA, DELHI 13 THE MOTHER ARE CONCERNED, THE LD.COUNSEL REFERRING TO THE STATEMENT OF AFFAIRS ENCLOSED AT PAGE 24 OF THE PAPER BOOK SUBMITTED THAT THE ASSESSEE HAD SHOWN JEWELLERY WORTH RS.1,15,000/ - AS ON 31.3.2011 AFTER CREDITING THE PROFI T ON SALE OF JEWELLERY FOR RS. 13,80,046/ - . FURTHER NO GIFT DEED IS REQUIRED FOR TRANSFER OF MOVABLE PROPERTIES AND IT CAN BE ORAL. 7.1. REFERRING TO THE DECISION OF HON BLE DELHI HIGH COURT IN THE CASE OF SAJANAD DAS & SONS VS. CIT REPORTED IN 181 CTR 5 81 HE SUBMITTED THAT THE ORDER OF THE TRIBUNAL ACCEPTING THE GIFT FROM A NON RELATED PARTY WAS UPHELD. HE SUBMITTED THAT THE ASSESSEE IN THE INSTANT CASE IS THE DAUGHTER OF THE DONOR AND THEREFORE NO DOUBT SHOULD HAVE BEEN RAISED. REFERRING TO PROVISION S OF S.123 OF THE TRANSFER OF PROPERTY ACT, 1882, HE SUBMITTED THAT FOR THE PURPOSE OF MAKING A GIFT OF MOVABLE PROPERTY THE TRANSFER MAY BE E FFECTED BY DELIVERY AND THE REGISTERED DOCUMENT IS NOT REQUIRED. 7.2. REFERRING TO THE DECISION OF HON BLE DELHI HIGH COURT IN THE CASE OF ASHOK CHADDHA VS. ITO VIDE ITA NO.274/2011 ORDER DT. 5 TH JULY,2011 HE SUBMITTED THAT THE HON BLE HIGH COURT IN THE SAID DECISION HAS HELD THAT COLLECTING JEWELLERY OF 906.900 GMS BY ITA NO.6618/DEL/2016 A.Y. 2012 - 13 MRS. KIRAN WADHWA, DELHI 14 A WOMAN IN A MARRIED LIFE OF 25 TO 30 YEARS IS N OT ABNORMAL. HE ACCORDINGLY SUBMITTED THAT THE ORDER OF LD.CIT(A) SHOULD BE REVERSED ON THE ISSUE OF ADDITION OF RS.15,00,019/ - ON ACCOUNT OF SALE OF JEWELLERY AND RS.2,10,000/ - ON ACCOUNT OF GIFT. 7.3. SO FAR AS THE ADDITION OF RS.3,81,828/ - ON ACCOUN T OF CASH IN HAND IS CONCERNED HE SUBMITTED THAT SINCE THE CASH WAS AVAILABLE AS PER CASH FLOW STATEMENT THE REFORE THE SAME SHOULD NOT HAVE BEEN DOUBTED. HE ACCORDINGLY SUBMITTED THAT THE ORDER OF LD.CIT(A) SHOULD BE SET ASIDE AND THE INCOME RETURNED BY THE ASSESSEE SHOULD BE ACCEPTED. 7.4. LD.DR ON THE OTHER HAND STRONGLY RELIED ON THE ORDER OF LD.CIT(A) . S H E SUBMITTED THAT THE SALE OF JEWELLERY BY THE ASSESSEE IS A CONCOCTED STORY WHICH H AS BEEN DEMOLISHED BY LD.CIT(A). S IMILARLY , THE ASSESSEE WAS UNABLE TO EXPLAIN THE SOURCE OF GIFT AND THE AVAILABILITY OF CASH WITH HER TO EXPLAIN THE SOURCE OF INVESTMENT . S H E SUBMITTED THAT THE LD.CIT(A) HAS PASSED A SPEAKING ORDER O N ALL THE THREE ISSUES WHICH IS JUSTIFIED UNDER THE FACTS AND CIRC UMSTANCES OF THE CASE. S H E ACCORDINGLY SUBMITTED THAT THE ORDER OF LD.CIT(A) SHOULD BE ITA NO.6618/DEL/2016 A.Y. 2012 - 13 MRS. KIRAN WADHWA, DELHI 15 UPHELD AND THE GROUNDS RAISED BY THE ASSESEE SHOULD BE DISMISSED. 8. I HAVE CONSIDERED RIVAL ARGUMENTS MADE BY BOTH THE PARTIES, PERUSED THE ORDERS OF THE LOWER AUTHORI TIES AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE . I HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE ME. I FIND IN THE GROUNDS OF APPEAL THE ASSESSEE HAS CHALLENGED THE ORDER OF LD.CIT(A) IN TREATING SALE OF JEWELLERY OF RS.15,00,019/ - AS UNDISCLOSED INCOME U/S 69 , DENIAL OF DEDUCTION U/S 54F ON ACCOUNT OF CAPITAL GAIN AROSE ON SALE OF JEWELLERY OF RS.5,58,231/ - , ADDITION ON ACCOUNT OF GIFT OF RS.2,10,000/ - AND ENHANCING THE INCOME OF THE ASSESSEE BY RS.69,828/ - AS UNEXPLAINED INVESTMENT. 9. SO FAR AS INCOME FROM SALE OF JEWELLERY OF RS.15,00,019/ - IS CONCERNED IT IS THE EXPLANATION OF THE ASSESSEE THAT PART OF THE JEWELLERY WAS RECEIVED FROM HER MOTHER FOR WHICH SHE HAD FILED A CONFIRMATION FROM HER BROTHER. HOWEVER THE FACTS STATED B EFORE THE LD.CIT(A) SHOW CERTAIN DISCREPANCIES WHICH THE ASSESSEE HAS NOT BEEN ABLE TO CONTROVERT. AS MENTIONED BY THE LD.CIT(A) THE VALUATION CERTIFICATE SHOWS THE PURITY OF GOLD AT 80% WHEREAS THE ITA NO.6618/DEL/2016 A.Y. 2012 - 13 MRS. KIRAN WADHWA, DELHI 16 BUYER HAS GIVEN MONEY ON THE BASIS OF PURITY OF 90% IN RESPECT OF OLD ORNAMENTS . ALTHOUGH A REGISTERED GIFT DEED IS NOT REQUIRED FOR RECEIPT OF MOVABLE PROPERTY SUCH AS GOLD JEWELLERY FROM THE MOTHER, HOWEVER, THE CREDIT WORTHINESS OF THE MOTHER TO GIFT SUCH HUGE QUANTITY OF GOLD HAS NOT BEEN EXPLAINED SATIS FACTORILY. THE AVAILABILITY OF THE BALANCE GO L D WITH THE ASSESSEE ALSO REMAINS UNVERIFIED IN ABSENCE OF FILING OF ANY WEALTH TAX RETURN. UNDER THESE CIRCUMSTANCES AND IN VIEW OF THE DETAILED REASONING GIVEN BY THE LD.CIT(A) WHILE ENHANCING THE INCOME OF THE ASSESSEE BY RS.15,00,019/ - I DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD.CIT(A ) . ACCORDINGLY THE SAME IS UPHELD AND THE GROUND RAISED BY THE ASSESSEE ON THIS ISSUE IS DISMISSED. 10. SO FAR AS ADDITION OF RS. 2,10, 000/ - SUSTAINED BY THE LD.CIT(A) OUT OF RS.2,75,000/ - RECEIVED AS GIFT IS CONCERNED THE SAME IN MY OPINION DESERVES TO BE DELETED. IT IS AN ADMITTED FACT THAT THE CHILDREN HAVE GIVEN GIFT TO THE MOTHER. MERELY BECAUSE THE CHILDREN HAVE NOT GIVEN THE GIFT TO THEIR MOTHER BY ACCOUNT P AYEE CHEQUE OR BANK DRAFT AND THEY HAVE GIVEN THE GIFT IN CASH, THE SAME IN MY OPINION CANNOT BE A GROUND TO REJECT THE CLAIM. SIMILARLY AN AFFIDAVIT HAS BEEN FILED BY SMT.KRISHNA DEVI, CHACHI ITA NO.6618/DEL/2016 A.Y. 2012 - 13 MRS. KIRAN WADHWA, DELHI 17 OF THE ASSESSEE TO SUBSTANTIATE THE GIFT OF RS.1 LAKH. MERELY BECAUSE THERE WAS NO OCCASION TO GIVE A GIFT CANNOT BE A GROUND TO R EJECT THE CLAIM OF THE ASSESSEE ESPECIALLY WHEN THE CREDIT WORTHINESS IS NOT DOUBLED. 10.1. THE V ARIOUS DECISIONS RELIED UPON BY THE LD.CIT(A) ARE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. IN HAN U MANDAS VS. CIT REPORTED IN 221 TAXMAN 137 WHICH HAS BEEN RELIED UPON BY LD.CIT(A) IS CONCERNED , THE SAME RELATES TO FOREIGN GIFTS RECEIVED BY THE ASSESSEE FROM NON RELATED PARTIES . HOWEVER, IN THE INSTANT CASE THE ASSESSEE HAS REC EIVED GIFT FROM HER C H A C H I . T HEREFORE, TH E SAID DECISION IS NOT APPLICABLE. SIMILARLY THE V A R I O U S O T H E R D E C I S I O N S R E L I E D O N B Y LD. CIT(A) A R E A L S O N O T A P P L I C A B L E T O T H E F A C T S O F T H E P R E S E N T C A S E . CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND CONSIDERING THE FACT THAT THE ASSESSEE HAS RECEIVED CASH GIFT O F R S . 1 , 1 0 , 0 0 0 / - F R O M H E R C H I L D R E N A N D R S . 1 , 0 0 , 0 0 0 / - F R O M H E R C H A C H I B O T H T O T A L L I N G T O R S . 2 , 1 0 , 0 0 0 / - , THAT TOO FOR PURCHASE OF A PROPERTY, THE SAME IN MY OPINION SHOULD NOT BE DOUBTED. THE ORDER OF LD.CIT(A) IS T H E R E F O R E REVERSED ON THIS ISSUE A ND THE GROUND RAISED BY THE ASSESSEE IS ALLOWED. ITA NO.6618/DEL/2016 A.Y. 2012 - 13 MRS. KIRAN WADHWA, DELHI 18 10.2. SO FAR AS THE ORDER OF LD.CIT(A) IN SUSTAINING ADDITION OF RS.3,81,828/ - IS CONCERNED, THE REASONS HAVE ALREADY BEEN REPRODUCED IN THE PRECEDING PARAGRAPH . T HE LD.COUNSEL FOR THE ASSESSEE COULD NOT C ONTROVERT THE FAC TUAL FINDINGS GIVEN BY THE LD.CIT(A). I DO NOT FIND ANY INFIR MITY IN THE ORDER OF LD.CIT(A) ON THIS ISSUES. ACCORDINGLY THE SAME IS UPHELD AND THE GROUND RAISED BY THE ASSESSEE ON THIS ISSUE IS DISMISSED. 11. IN THE RESULT ASSESSEE S A PPEAL IS PARTLY ALLOWED. PRONOUNCED IN THE OPEN COURT ON 0 9 T H AUGUST , 2017. S D / - (R.K. PANDA) ACCOUNTANT MEMBER DATED: THE 0 9 T H AUGUST , 2017 * GMV ITA NO.6618/DEL/2016 A.Y. 2012 - 13 MRS. KIRAN WADHWA, DELHI 19 COPY FORWARDED TO: - 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR ITAT DELHI BENCHES