ACIT, New Delhi V. Priyanka Arora, New Delhi

ITA 71/DEL/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69394 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 29-10-2013
• Assessment Year: 2002-2003
• Appeal Filed On: 05-01-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VEENA JOSHI
• Keywords: Unexplained investment; Search and seizure; Additional evidence; Valuation report

Judgement Text

ITA NO. 71/DEL/2012 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 71/DEL/2012 A.Y. : 200 2 - 0 3 ASSTT. COMMISSIONER OF INCOME TAX, CC-22, NEW DELHI VS. PRIYANKA ARORA, 201, VIPPS CENTRE, 2, COMMUNITY COMPLEX, MASJID MOTH, G.K.-II, NEW DELHI 110 048 (PAN: AAYPA9653K) (APPELLANT) (APPELLANT) (APPELLANT) (APPELLANT) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) ASSESSEE BY : SH. SALIL KAPOOR, ADVOCATE DEPARTMENT BY : SMT. VEENA JOSHI, C.I.T.(D.R.) ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-III, D ELHI DATED 24.10.2011 PERTAINING TO ASSESSMENT YEAR 2002-03. 2. THE GROUNDS RAISED READ AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 24,22,615/- MADE BY TH E AO U/S. 69A OF THE I.T. ACT, 1961 ON ACCOUNT OF UNEXPLAINED JEWELLERY FOUND DURING THE COURSE OF SEARCH. ITA NO. 71/DEL/2012 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN ADMITTING ADDITIONAL EVIDENCES UNDER RULE 46A OF THE I.T. RULES, 1962 WITHOUT PROVIDING AN OPPORTUNITY TO THE AO. 3. THE ORDER OF THE LD. CIT(A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 4. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY / ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF THE HEARING OF THE APPEAL. 3. IN THIS CASE LD. AO NOTED THAT DURING THE COUR SE OF SEARCH AND SEIZURE ACTION, JEWELLERY AMOUNTING TO RS. 25,4 4,360/- WAS FOUND IN THE BEDROOM OF THE ASSESSEE AND HER HUSB AND SHRI NITIN ARORA. SH. NITIN ARORA IN HIS STATEMENT STATED THA T THE JEWELLERY BELONG TO HIS WIFE MRS. PRIYANA ARORA I.E. ASSESS EE. IN THE STATEMENT, IT WAS STATED THAT MRS. PRIYANKA ARORA O WNED 3406.1 GM OF JEWELLERY AS ON 31.3.2002. IN SUPPORT OF THIS CL AIM, THE ASSESSEE FILED VALUATION REPORT SHOWING VALUATION OF RS. 27 ,22,615/-. LD. AO ENQUIRED ABOUT THE SOURCE OF ACQUISITION OF JEWELLE RY. LD. AO WAS NOT SATISFIED FROM THE RESPONSE OF THE ASSESSEE. H E OBSERVED THAT ASSESSEE HAS NEITHER FILED ANY EVIDENCE TO PROVE TH E SOURCE OF THE ABOVE JEWELLERY NOR HAVE ANY MEANS TO ACQUIRE SUCH A HUGE INVESTMENT IN JEWELLERY IN THE CURRENT YEAR AS THE ASSESSEE HAS ONLY DECLARED AN INCOME OF RS. 9313/-. LD. AO HELD THA T CONSIDERING THE FAMILY AND MARITAL STATUS OF THE ASSESSEE JEWELLERY EQUIVALENT TO AN AMOUNT OF RS. 3,00,000/- WAS CONSIDERED AS EXPLAINE D AND THE BALANCE OF RS. 24,22,615/- WAS ASSESSED AS UNDISCLO SED INVESTMENT U/S. 69A OF THE ACT AND ADDED TO THE TOTAL INCOME O F THE ASSESSEE. ITA NO. 71/DEL/2012 3 4. AGAINST THE ABOVE ORDER THE ASSESSEE APPEALED B EFORE THE LD. CIT(A). 5. LD. CIT(A) NOTED THAT AT THE APPELLATE STAGE, AS SESSEES COUNSEL HAS FURNISHED THE PAPER BOOK. IN THIS PAP ER BOOK WEALTH TAX RETURN OF THE ASSESSEE FOR THE ASSTT. YEAR 199 8-99, 1999-2000, 2000-01, 2001-02, 2002-03, 2003-04 AND 2008-09 WERE FILED. CONSIDERING THE ABOVE, LD. CIT(A) HELD THAT VALUE O F THE JEWELLERY HAS BEEN REFLECTED IN THE WEALTH TAX RETURN OF THE ASSESSEE. IN THESE CIRCUMSTANCES, LD. CIT(A) HELD THAT THERE I S NO EVIDENCE TO HOLD THAT THE JEWELLERY FOUND FROM THE ROOM OF THE ASSESSEE DURING THE COURSE OF SEARCH WAS UNDISCLOSED INVESTMENT FOR THE IMPUGNED ASSESSMENT YEAR 2002-03. LD. CIT(A) CONCLUDED AS U NDER:- IN VIEW OF THE ABOVE FACTS TAKEN IN TOTALITY THE A DDITION MADE FOR RS. 24,22,615/- IS DIRECTED TO BE DELETED AS THERE IS NO EVIDENCE ON RECORD TO SUGGEST THAT THE JEWELLERY WORTH RS. 25,44,360/- WAS UNACCOUNTED INVESTMENT FOR A.Y. 2002-03. MORE SO FOR THE FACT T HAT IN THE WEALTH TAX RETURN FOR A.Y. 1998-99 ONWARDS THE ASSESSEE HAS BEEN SHOWING GROSS WEIGHT OF GOLD JEWE LLERY WHICH IS 4220 GRAMS AND DIAMOND WHICH IS 153.54 CAR AT WHICH IS MUCH MORE THAN THE JEWELLERY WHICH WAS FOU ND DURING THE SEARCH FROM THE BED ROOM OF THE ASSESSEE . ACCORDINGLY, THE ADDITION MADE FOR RS. 24,22,615/- IS DIRECTED TO BE DELETED. ITA NO. 71/DEL/2012 4 6. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEA L BEFORE US. 7. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE LD . CIT(A) IN THIS CASE HAS ACCEPTED THE ADDITIONAL EVIDENCES IN THE F ORM OF WEALTH TAX RETURNS FILED BY THE ASSESSEE BEFORE HIM. SH E SUBMITTED THAT THE LD. AO DID NOT HAVE ANY OCCASION TO EXAMINE THE WEALTH TAX RETURN. HENCE, SHE SUBMITTED THAT LD. CIT(A) HAS ADMITTED THE ADDITION EVIDENCES UNDER RULE 46A OF THE I.T. RULE S WITHOUT PROVIDING AN OPPORTUNITY TO THE LD. AO. 8. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS. WE FIND THAT THE SUBMISSIONS OF THE REVENUE THAT LD. CIT(A) HAS ACCEPTED THE ADDITIONAL EVIDENCES IN VIOLATION OF RULE 46A OF TH E I.T. RULES IS QUITE COGENT. LD. CIT(A) HAS REFERRED TO WEALTH TAX RETU RN FOR THE PRECEDING YEARS AND THE SAME HAS BEEN THE BASIS FOR DELETION OF ADDITION ON ACCOUNT OF UNDISCLOSED INVESTMENT IN JE WELLERY. HENCE, LD. AO SHOULD HAVE BEEN GIVEN AN OPPORTUNITY TO GO THROUGH THE ADDITIONAL EVIDENCES. IN THESE CIRCUMSTANCES, WE A CCEPT THE REVENUES CONTENTION THAT LD. CIT(A) HAS ADMITTED T HE ADDITIONAL EVIDENCES IN VIOLATION OF RULE 46A. HENCE, IN OUR CONSIDERED OPINION, INTEREST OF JUSTICE WILL BE SERVED, IF THE MATTER IS REMITTED TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING O FFICER SHALL CONSIDER THE ISSUE AFRESH, IN LIGHT OF THE ADDITIONAL EVIDEN CES FILED BY THE ASSESSEE BEFORE THE LD. CIT(A). WE HOLD AND DIRECT ACCORDINGLY. ITA NO. 71/DEL/2012 5 9. IN THE RESULT, THE APPEAL FILED BY THE REVENUE S TANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29/10/2013, U PON CONCLUSION OF HEARING. SD/- SD/- [ [[ [R.P. TOLANI R.P. TOLANI R.P. TOLANI R.P. TOLANI] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 29/10/2013 SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR SRBHATNAGAR COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES ITA NO. 71/DEL/2012 6