Raju Bansal , New Delhi V. DCIT, Central Circle- II , Faridabad

ITA 7066/DEL/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3037 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2013-2014
• Appeal Filed On: 05-11-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI F BENCH: NEW DELHI (THROUGH VIDEO CONFERENCING ) BEFORE SHRI N.K.BILLAIYA, ACCOUNTANT MEMBER & SHRI KUL BHARAT, JUDICIAL MEMBER ITA NOS.6449 & 7066/DEL/2018 ASSESSMENT YEARS : 2012-13 & 2013-14 RAJU BANSAL, C/O-M/S. RRA TAXINDIA, D-28, SOUTH EXTENSION, PART-I, NEW DELHI-110049. PAN-AANPB7648A VS DCIT, CENTRAL CIRCLE-II, FARIDABAD. APPELLANT RESPONDENT APPELLANT BY SH.SOMIL AGARWAL RESPONDENT BY NONE DATE OF HEARING 21.10.2021 DATE OF PRONOUNCEMENT 21.10.2021 ORDER PER KUL BHARAT, JM : BOTH APPEALS FILED BY THE ASSESSEE FOR TH E ASSESSMENT YEARS 2012-13 & 2013-14 ARE DIRECTED AGAINST THE SEPARATE ORDERS OF LD. CIT(A)-3, GURGAON DATED 13.07.2018 & 22.09.2018 RESPECTIVELY. BOTH APPEALS WERE TAKEN UP FOR HEARING TOGETHER AND ARE BEING DISPOSE D OF BY WAY OF CONSOLIDATED ORDER. 2. NO REPRESENTATION WAS MADE ON BEHALF OF THE DEPARTMENT. 3. FIRST WE TAKE UP ITA NO.6449/DEL/2018 PERTAINING TO ASSESSMENT YEAR 2012-13. ITA NOS. 6449 & 7066/DEL/2018 PAGE | 2 4. THE LD. COUNSEL FOR THE ASSESSEE, VIDE ITS LETTE R DATED 21.10.2021, RECEIVED THROUGH EMAIL, HAS REQUESTED FOR WITHDRAWA L OF THE APPEAL FILED BY HIM AND STATED THAT THE ASSESSEE HAS OPTED TO SETTL E THE DISPUTE RELATING TO THE TAX ARREARS FOR THE ASSESSMENT YEAR UNDER CONSI DERATION UNDER THE VIVAD SE VISHWAS SCHEME, 2020. FORM NO.5 ISSUED BY THE DEPARTMENT IS ALSO ENCLOSED WITH THE APPLICATION SEEKING WITHD RAWAL OF THE APPEAL. 5. IN VIEW OF THE ABOVE, WE ACCEPT THE REQUEST OF THE ASSESSEE FOR WITHDRAWAL OF THE APPEAL. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. 7. NOW, WE TAKE UP ITA NO.7066/DEL/2018 PERTAINING TO ASSESSMENT YEAR 2013-14. 8. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SUBM ITTED THAT THE PRESENT APPEAL HAS BEEN FILED AGAINST THE LEVY OF P ENALTY U/S 271AAA OF THE INCOME TAX ACT, 1961 (THE ACT). HE CONTENDED THA T THE ASSESSING OFFICER HAD MADE ADDITION IN RESPECT OF JEWELLERY AMOUNTING TO RS.56,36,748/- AND CASH OF RS.50,000/-. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ON THE QUANTUM PROCEEDINGS, THE ISSUE HAD TRAVELLED UPTO T HE STAGE OF THE TRIBUNAL AND THE TRIBUNAL IN ITA NO 832/DEL/2017 P ERTAINING TO ASSESSMENT YEAR 2013-14 VIDE ORDER DATED 07.10.2020 WAS PLEASED TO DELETE THE ADDITION RELATED TO THE ADDITION MADE ON ACCOUNT OF UNEXPLAINED JEWELLERY OF RS.56,36,748/- BY OBSERVING AS UNDER:- ITA NOS. 6449 & 7066/DEL/2018 PAGE | 3 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT GROUNDS IS WITH RESPECT TO ADDITION ON ACCOUNT OF JEWELLARY FOUND DURING THE COURSE OF SEARCH. IT IS AN UNDISPUTED FACT THAT THE JEWELLARY WAS FOUND FROM T HE RESIDENTIAL PREMISES OF THE ASSESSEE. THE FACT THAT THE ASSESSE E WAS STAYING IN A JOINT FAMILY CONSISTING OF HIS PARENTS, THE FAMILY OF HIS BROTHERS AND HIS FAMILY CONSISTING OF HIS WIFE AND DAUGHTER IS UNDIS PUTED. IT IS ALSO A FACT THAT DURING THE COURSE OF SEARCH, THE STATEMEN T OF THE ASSESSEE WAS RECORDED AND HIS EXPLANATION ABOUT THE JEWELLAR Y WAS THAT IT BELONGED TO THE FAMILY MEMBERS AND HE HAD ALSO PROV IDED THE BREAKUP (VALUE WISE). THE STATEMENT OF THE ASSESSEE THAT WE RE RECORDED AT THE TIME OF SEARCH HAS NOT BEEN FOUND TO BE FALSE OR IN CORRECT. WE FIND THAT THE CBDT HAD ISSUED INSTRUCTIONS NO 1916 ([F.NO.286 /63/93-IT (INV.II)] DTD 11TH MAY 1994 WHEREIN IT HAS ISSUED G UIDELINES FOR SEIZURE OF JEWELLARY AND ORNAMENTS IN THE COURSE OF SEARCH. THE INSTRUCTIONS INTER ALIA STATES THAT IN THE CASE OF A PERSON NOT ASSESSED TO WEALTH-TAX, GOLD JEWELLERY AND ORNAMENTS TO THE EXTENT OF 500 GMS. PER MARRIED LADY, 250 GMS. PER UNMARRIED LADY AND 1 00 GMS. PER MALE MEMBER OF THE FAMILY, NEED NOT BE SEIZED. WE FIND T HAT THE HONBLE HIGH COURT IN THE CASE OF CIT V. RATANLAL VYAPARILA L JAIN 339 ITR 351 (GUJ) HAS HELD THAT THOUGH THE CBDT CIRCULAR NO.191 6 DATED 11TH MAY 1994 HAS BEEN ISSUED FOR THE PURPOSE OF NON SEIZURE OF JEWELLERY DURING THE COURSE OF SEARCH BUT UNLESS THE REVENUE SHOWS ANYTHING TO THE CONTRARY, IT CAN SAFELY BE PRESUMED THAT SOURCE TO THE EXTENT OF JEWELLERY STATED IN THE CIRCULAR STANDS EXPLAINED. 9. IN THE PRESENT CASE IF THE FACTS ARE SEEN IN TH E LIGHT OF THE AFORESAID DECISION OF HONBLE HIGH COURT IN THE CAS E OF RATANLAL VYAPARILAL JAIN (SUPRA), IT IS SEEN THAT NOTHING HA S BEEN BROUGHT ON RECORD BY REVENUE TO CONTRADICT THE STATEMENT MADE AT THE TIME OF SEARCH. BEFORE US NO CONTRARY BINDING DECISION SUPP ORTING THE STAND OF REVENUE HAS BEEN PLACED BY THE REVENUE. IN SUCH A S ITUATION, RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF HO NBLE GUJARAT HIGH ITA NOS. 6449 & 7066/DEL/2018 PAGE | 4 COURT, WE ARE OF THE VIEW THAT NO ADDITION CAN BE M ADE IN THE PRESENT CASE. WE THUS DIRECT THE DELETION OF ADDITION. THUS THE GROUND OF THE ASSESSEE IS ALLOWED. 10. 2ND ISSUE IS WITH RESPECT TO ADDITION OF RS 50, 000/-. 11. AO HAS NOTED THAT CASH OF RS. 3,87,200/- WAS FO UND AT THE TIME OF SEARCH. SINCE THE ASSESSEE COULD NOT EXPLAIN ITS SO URCE, AO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE MADE AD DITION OF RS. 50,000/- . AGGRIEVED BY THE ORDER OF AO, ASSESSEE C ARRIED THE MATTER BEFORE CIT(A) WHO CONFIRMED THE ACTION OF AO. AGGRI EVED BY THE ORDER OF CIT(A), ASSESSEE IS NOW BEFORE US. 12. BEFORE US, LD AR POINTED TO THE ANSWERS GIVEN BY THE ASSESSEE AT THE TIME OF SEARCH AND WHICH IS NOTED BY THE AO IN THE ASSESSMENT ORDER. HE SUBMITTED THAT THE ASSESSEE HAD GIVEN THE EXPLANATION AND THERE WAS NO JUSTIFICATION IN MAKING THE ADDITION O F RS. 50,000/. HE THUS SUBMITTED THAT THE ADDITION BE DELETED. LD DR ON THE OTHER HAND SUPPORTED THE ORDER OF LOWER AUTHORITIES. HOWEVER, THE ADDITION OF RS.50,000/- MADE ON ACCOUN T OF CASH WAS CONFIRMED. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PENALTY QUA THE UNEXPLAINED JEWELLERY DESERVES TO BE DELETED. 9. WE HAVE HEARD THE LD. COUNSEL FOR THE ASSESSEE A ND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE TRI BUNAL IN ITA NO.832/DEL/2017 (SUPRA) HAS DELETED THE ADDITION IN RESPECT OF UNEXPLAINED JEWELLERY AMOUNTING TO RS.56,36,748/-. THEREFORE, THE PENALTY RELATED TO THE UNEXPLAINED JEWELLERY AMOUNTING TO R S.56,36,748/- IS HEREBY DELETED AND THE REMAINING AMOUNT RELATED TO THE CO NFIRMATION OF ADDITION OF RS.50,000/- IS SUSTAINED. ITA NOS. 6449 & 7066/DEL/2018 PAGE | 5 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. ABOVE DECISION WAS PRONOUNCED ON CONCLUSION OF VIRT UAL HEARING ON 21 ST OCTOBER, 2021. SD/- SD/- (N.K.BILLAIYA) (K UL BHARAT) ACCOUNTANT MEMBER JUDICIA L MEMBER *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI