DINESH H. KOTADIA, MUMBAI V. DCIT CEN CIR 35, MUMBAI

ITA 7956/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8266 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 25-11-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RUPINDER BRAR
• Assessee Lawyers: BEHARILAL
• Keywords: Gift; Search and seizure; Valuation report; Revised return
• Section: 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D BENCH BEFORE SHRI B.R.MITTAL(JUDICIAL MEMBER) AND SHRI P.M.JAGTAP (ACCOUNTANT MEMBER) ITA NO.7955/MUM/2011: ASSESSMENT YEAR: 2006-07 ITA NO.7956/MUM/2011: ASSESSMENT YEAR: 2007-08 ITA NO.7957/MUM/2011: ASSESSMENT YEAR: 2008-09 DINESH H KOTADIA, 301/302, ACCROD APARTMENT, DR. CHARTSINGH COLONY, ANDHERI KURLA ROAD, ANDHERI(E), MUMBAI-400 093 PA NO.AABPK 7839 C DCIT, CENT. CIRCLE-35, 1 ST FLOOR, R.NO.109, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : BEHARILAL RESPONDENT BY: RUPINDER BRAR DATE OF HEARING: 7.11.2012 DATE OF PRONOUNCEMENT: 16. 11.2012 ORDER PER B.R.MITTAL, JM: THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AG AINST SEPARATE ORDERS OF LD CIT(A) DATED 13.9.2011 FOR THE ASSESSMENT YEARS 200 6-07, 2007-08 AND 2008-09, RESPECTIVELY. 2. GROUNDS TAKEN IN ALL THESE ASSESSMENT YEARS ARE AS UNDER: 2006-07 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-36, MUMBAI ERRED IN LAW AS WEL L AS ON FACTS IN CONFIRMING THE ASSESSMENT ORDER OF ASSESSING OFFICER, ENHANCIN G THE LONG TERM CAPITAL GAINS, ON SALE OF SHARES BY RS. 7,03,957/- WITHOUT ASSIGNING ANY TENABLE REASON. 1.2 THE CIT (A) FAILED TO DEAL FULLY WITH WRITTEN S UBMISSIONS MADE BY APPELLANT, JUSTIFYING THE ADOPTION OF AVERAGE PREVALENT PRICE OF SHARES SOLD IN CASH. 1.3 THE REASONS ASSIGNED BY THE CIT (A) FOR CONFIRM ING THE ADDITION ARC WRONG AND INCORRECT. 2. THE CIT(A) ERRED FACTS IN CONFIRMING THE ADDITIO N IN RESPECT OF PERQUISITE! ATTRIBUTABLE TO RENT FREE ACCOMMODATION. ITA NO.7955/MUM/2011: ASSESSMENT YEAR: 2006-07 ITA NO.7956/MUM/2011: ASSESSMENT YEAR: 2007-08 ITA NO.7957/MUM/2011: ASSESSMENT YEAR: 2008-09 2 2007-08 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-36, MUMBAI ERRED IN LAW AS WEL L AS ON FACTS IN CONFIRMING THE ASSESSMENT ORDER OF ASSESSING OFFICER, ENHANCIN G THE LONG TERM CAPITAL GAINS, ON SALE OF SHARES BY RS. 2,98,814/- WITHOUT ASSIGNING ANY TENABLE REASON. 1.2 THE CIT (A) FAILED TO DEAL FULLY WITH WRITTEN S UBMISSIONS MADE BY APPELLANT, JUSTIFYING THE ADOPTION OF AVERAGE PREVALENT PRICE OF SHARES SOLD IN CASH. 1.3 THE REASONS ASSIGNED BY THE CIT (A) FOR CONFIRM ING THE ADDITION ARE WRONG AND INCORRECT. 2. THE CIT(A) ERRED FACTS IN CONFIRMING THE ADDITIO N IN RESPECT OF PERQUISITE! ATTRIBUTABLE TO RENT FREE ACCOMMODATION. 2008-09 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-36, MUMBAI ERRED IN LAW AS WEL L AS ON FACTS IN CONFIRMING THE ADDITION OF RS.604,522/- OUT OF JEWELLERY HELD BY THE APPELLANT, INSPITE IT BEING RELEASED BY THE SEARCH PARTY ON EXPLANATION G IVEN BY THE APPELLANT. 1.2 THE REASONS ASSIGNED BY THE AO IN MAKING THE AD DITION AND THE CIT(A) WHILE CONFIRMING THE SAID ADDITION ARE WRONG, INCORRECT A ND DENIED. 1.3 THE CIT(A) ERRED IN NOT DEALING WITH THE ALTER NATIVE GROUND RAISED BY THE APPELLANT RELATING TO TELESCOPING ADDITION WITH CAS H AVAILABLE FOR INVESTMENT. 2. THE CIT(A) ERRED FACTS IN CONFIRMING RS.55,000/- IN RESPECT OF PERQUISITE VALUE OF RENT FREE ACCOMMODATION PROVIDED WITH CASH AVAI LABLE BY THE EMPLOYEES. 3. IN RESPECT OF APPEALS FOR ASSESSMENT YEAR 2006-0 7 AND 2007-08, FACTS ARE IDENTICAL. 4. IT IS RELEVANT TO STATE THAT LD A.R. SUBMITTED T HAT GROUND NO.2 IN RESPECT OF ALL THESE THREE APPEALS RELATING TO ADDITION IN RESPECT OF PERQUISITE ATTRIBUTABLE TO RENT FREE ACCOMMODATION IS NOT PRESSED FOR. HENCE, GROUND NO .2 TAKEN BY ASSESSEE IN ALL THESE APPEALS IS REJECTED. 5. IN RESPECT OF GROUND NO.1 OF APPEAL FOR ASSESSME NT YEARS 2006-07 AND 2007-08, FACTS IN BRIEF ARE THAT A SEARCH AND SEIZURE OPERAT ION U/S. 132 OF THE I.T. ACT WAS CARRIED ITA NO.7955/MUM/2011: ASSESSMENT YEAR: 2006-07 ITA NO.7956/MUM/2011: ASSESSMENT YEAR: 2007-08 ITA NO.7957/MUM/2011: ASSESSMENT YEAR: 2008-09 3 OUT AT THE RESIDENTIAL AND BUSINESS PREMISES OF M/ S. DIMPLE DRUMS & BARRELS PVT. LTD. GROUP AND ITS GROUP ASSOCIATES INCLUDING ITS DIRECT ORS/PARTNERS. DURING THE COURSE OF SEARCH SEIZURE OPERATION, AN AMOUNT OF 5,00,00,000/ - WAS ADMITTED AS UNDISCLOSED INCOME IN THE HANDS OF DIFFERENT CONCERNS/PERSONS O F THE GROUP. DIRECTORS OF M/S. DIMPLE DRUMS & BARRELS PVT LTD., NAMELY S/SHRI AMIT KOTADIA, SURENDRA KOTADIA, DINESH KOTADIA AND RAJESH KOTADIA FILED A COMMON LETTER DA TED 24.6.2008 BEFORE THE INVESTIGATION WING ADMITTING AN UNDISCLOSED INCOME OF RS.5 CRORES. THE CONTENTS OF THE SAID LETTER ARE STATED BY AO AT PAGES 1 & 2. 6. IN VIEW OF ABOVE, NOTICE U/S.153A OF THE I.T.ACT , 1961 WAS ISSUED IN THE NAME OF ASSESSEE ON 9.9.2008 TO FILE HIS RETURN OF INCOME. ASSESSEE FILED HIS RETURN OF INCOME FOR BOTH ASSESSMENT YEARS NAMELY A.Y. 2006-07 AND A .Y. 2007-08 ON 17.11.2008 DECLARING AN INCOME OF RS.9,50,702 INCLUDING UNDISC LOSED INCOME OF RS.1,50,000 FOR A.Y. 2006-07 AND RS.19,82,040 INCLUDING UNDISCLOSED INCO ME OF RS.1,50,000 FOR A.Y. 2007- 08. 7. SUBSEQUENTLY, ASSESSEE REVISED HIS RETURN OF INC OME DECLARING AN INCOME OF RS.43,50,702 INCLUDING UNDISCLOSED INCOME OF RS.34, 00,000 ON ACCOUNT OF LONG TERM CAPITAL GAIN ON SALE OF SHARES FOR ASSESSMENT YEAR 2006-07. SIMILARLY, ASSESSEE FILED A REVISED RETURN OF INCOME DECLARING AN INCOME OF RS. 50,82,035 INCLUDING UNDISCLOSED INCOME OF RS.31,00,000 ON ACCOUNT OF LONG TERM CAPI TAL GAIN FOR ASSESSMENT YEAR 2007- 08. 8. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASS ESSEE WAS ASKED TO PRODUCE DETAILS OF DEMAT ACCOUNT AND BANK ACCOUNT HELD IN THE NAME OF ASSESSEE AND HIS DEPENDENTS. ASSESSEE FILED DETAILS OF DEMAT ACCOUNT S AND BANK ACCOUNTS. AO HAS STATED THAT ON PERUSAL OF DEMAT ACCOUNT, IT IS REVEALED TH AT SOME SHARES WERE APPEARING IN THE DEMAT ACCOUNT IN A PARTICULAR MONTH BUT THE SAME WE RE NOT APPEARING IN THE DEMAT ACCOUNT IMMEDIATELY SUCCEEDING MONTH. ASSESSEE WAS ASKED TO FILE DETAILS OF SHARES NOT APPEARING IN THE DEMAT ACCOUNT. AO HAS STATED THAT IN RESPONSE TO THE QUERIES RAISED ASSESSEE PREFERRED TO FILE A REVISED RETURN FOR A.Y . 2006-07 AND A.Y. 2007-08 AND DECLARED ADDITIONAL UNDISCLOSED INCOME ON ACCOUNT OF LONG TERM CAPITAL GAIN AMOUNTING TO RS. 34,00,000/- FOR A.Y. 2006-07 AND RS. 31,00,0 00/- FOR A.Y. 2007-08. ITA NO.7955/MUM/2011: ASSESSMENT YEAR: 2006-07 ITA NO.7956/MUM/2011: ASSESSMENT YEAR: 2007-08 ITA NO.7957/MUM/2011: ASSESSMENT YEAR: 2008-09 4 9. AO HAS STATED THAT ASSESSEE HAS TAKEN AVERAGE SA LE PRICE WHILE DECLARING ADDITIONAL INCOME IN THE REVISED RETURNS ON ACCOUNT OF LONG TERM CAPITAL GAIN. AO HAS STATED THAT ON PERUSAL OF DETAILED WORKING FILED FO R ADDITIONAL UNDISCLOSED INCOME AMOUNTING TO RS.33,00,000 FOR ASSESSMENT YEAR 2006- 07 AND RS.31,00,000 FOR ASSESSMENT YEAR 2007-08, ASSESSEE HAS TAKEN AVERAGE PRICE AS FOLLOWS: PRICE METHOD A.Y. 2006-07 A.Y. 2007-08 LOW SALE PRICE 26,54,046 26,63,146 HIGH SALE PRICE 41,03,957 33,98,814 AVERAGE SALE PRICE 33,79,001 30,20,980 10. AO HAS STATED THAT ON AN ENQUIRY, ASSESSEE HAS ADOPTED AVERAGE SALE PRICE OF SHARES FOR THE MONTH IN WHICH SHARES WERE SOLD. HE HAS STATED THAT DETAILS RELATING TO DATE OF ACQUISITION OF SHARES AND AMOUNT INVESTED I S NOT AVAILABLE, THE NET SALE CONSIDERATION RECEIVED BY THE ASSESSEE IS OFFERED A S UNDISCLOSED INCOME FOR RELEVANT ASSESSMENT YEARS. AO HAS STATED THAT ASSESSEE HAS NOT SOLD SHARES THROUGH A RECOGNIZED STOCK EXCHANGE AND NO STT HAS BEEN PAID ON SALE OF THESE SHARES. THAT THE SALE CONSIDERATION HAD BEEN RECEIVED BY THE AS SESSEE IN CASH. NO DETAILS AS TO WHEN THE SHARES WERE PURCHASED AND AMOUNT INVESTED HAVE BEEN FURNISHED FOR VERIFICATION. SIMILARLY EXACT DATE OF SALE OF SHARES HAS ALSO NOT BEEN FURNISHED FOR VERIFICATION. AO HAS STATED THAT IN ABSENCE OF ANY DOCUMENTARY EVIDE NCE, RELATING TO EXACT DATE OF SALE OF SHARES AND EXACT AMOUNT AT WHICH THE SHARES WERE SOLD, DID NOT ACCEPT ASSESSEES ACTION OF OFFERING AVERAGE SALE PRICE AS UNDISCLOSE D INCOME. AO HAS STATED THAT HE HAS LEFT WITH NO OTHER ALTERNATIVE BUT TO TREAT THE HIG HEST SALE VALUE OF THE SHARES FOR THE MONTH, IN WHICH THE SHARES WERE SOLD AND, ACCORDING LY, CONSIDERED THE UNDISCLOSED INCOME ON ACCOUNT OF LONG TERM CAPITAL GAIN FOR A.Y . 2006-07 AT RS. 41,03,957/- AND FOR A.Y. 2007-08 AT RS. 33,98,814/-. ACCORDINGLY, AO MADE ADDITION AT RS.7,03,957 (RS.41,03,957 RS.34,00,000) FOR ASSESSMENT YEAR 2 006-07 AND RS.2,98,814 (RS.33,98,814 RS.31,00,000) FOR ASSESSMENT YEAR 2 007-08 AS UNDISCLOSED INCOME. BEING AGGRIEVED, ASSESSEE FILED APPEALS BEFORE LD C IT(A). 11. LD CIT(A) CONFIRMED THE ADDITIONS MADE BY THE A O ON THE GROUND THAT ASSESSEE HAS NOT BEEN ABLE TO FILE DETAILS AS CALLED FOR BY THE AO AS TO WHEN THE SHARES WERE ITA NO.7955/MUM/2011: ASSESSMENT YEAR: 2006-07 ITA NO.7956/MUM/2011: ASSESSMENT YEAR: 2007-08 ITA NO.7957/MUM/2011: ASSESSMENT YEAR: 2008-09 5 PURCHASED , AMOUNT INVESTED AND EXACT DATE OF SALE OF SHARES. HENCE, THESE APPEALS FILED BY ASSESSEE BEFORE THE TRIBUNAL. 12. DURING THE COURSE OF HEARING, LD A.R. COULD NOT CONTROVERT ABOVE FACTS SAVE AND EXCEPT SUBMITTING THAT ASSESSEE HAS PREPARED A STAT EMENT OF SHARES STATING THE DATE OF ISSUE, RATES AND VALUE AS PER AVERAGE RATE. HOWEVE R, ASSESSEE HAS NOT FURNISHED THE BANK STATEMENT OR DEMAT ACCOUNT EVIDENCING AS TO WH EN THE SHARES WERE SOLD SO THAT THE RATE ON THAT PARTICULAR DATE COULD BE ASCERTAIN ED. CONSIDERING ABOVE FACTS, WE ARE OF THE CONSIDERED VIEW THAT AO HAS RIGHTLY TAKEN TH E HIGHEST SALE VALUE OF THE SHARES IN THE MONTH IN WHICH SHARES WERE SOLD AS SALE PRICE O F THE SHARES. THEREFORE, WE UPHOLD THE ADDITION OF RS.7,03,957 MADE BY AO FOR A.Y. 200 6-07 AND RS.2,98,814 FOR A.Y. 2007-08 BY ENHANCING LONG TERM CAPITAL GAIN. HENCE , GROUND NO.1 FOR ASSESSMENT YEARS 2006-07 AND 2007-08 IS REJECTED. 13. NOW COMING TO GROUND NO.1 OF APPEAL FOR ASSESSM ENT YEAR 2008-09, THE RELEVANT FACTS ARE THAT ASSESSEE IN RESPONSE TO NOTICE U/S.1 53A OF THE ACT FILED THE RETURN OF INCOME ON 17.11.2008 DECLARING AN INCOME OF RS.70,7 5,750 INCLUDING UNDISCLOSED INCOME OF RS.43,00,000 AS FOLLOWS: NATURE OF DISCLOSURES ADDITIONAL INCOME DISCLOSED R OUNDED OFF CASH RS.10,49,500 JEWELLERY RS.29,23,830 ELECTRONIC RS. 2,80,000 INTEREST RS. 39,711 RS.42,93,041 RS.43,00,000 14. AO HAS STATED THAT DURING THE COURSE OF SEARCH AND SEIZURE, JEWELLERY AGGREGATING TO RS.45,28,352 WAS FOUND. OUT OF JEWE LLERY FOUND WORTH OF RS.29,23,830 WAS SEIZED AT THE TIME OF SEARCH AND SEIZURE ACTION AND THE SAID AMOUNT WAS DECLARED AS UNDISCLOSED INCOME ON ACCOUNT OF JEWELLERY IN TH E RETURN FILED. AO HAS STATED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESS EE WAS ASKED TO FURNISH DETAILS AND SOURCE OF ACQUISITION OF JEWELLERY WORTH OF RS.45,2 8,352 FOUND DURING THE COURSE FO SEARCH AND SEIZURE OPERATION AND ASSESSEE STATED AS UNDER: ITA NO.7955/MUM/2011: ASSESSMENT YEAR: 2006-07 ITA NO.7956/MUM/2011: ASSESSMENT YEAR: 2007-08 ITA NO.7957/MUM/2011: ASSESSMENT YEAR: 2008-09 6 I HAVE SHOWN PURCHASE OF JEWELLEIY AT RS. 39,400 /- IN THE BOOKS OF ACCOUNTS. MY DECEASED FATHER LATE SHRI HIRALAL A. KOTADIA HEL D FOLLOWING JEWELLERY, WHICH WAS ALLOTTED TO MY GROUP :- DIAMOND 18.01 CTS 219/89 DIAMOND 18.52 CTS 259/89 36.53 CTS MY FATHER HAD MADE VALUATION REPORT ON 06.01.1989 W HEREIN FOLLOWING WAS MADE: MY MARRIAGE TOOK PLACE IN NOV.-1995 AND MY WIFES P ARENTS WERE RICH. THEY HAD GIVEN JEWELLERY AT THE TIME OF MARRIAGE. MY DAUGHTER WAS BORN IN 1999 AND SHE RECEIVED GIFTS OF JEWELLERY FROM MY PARENTS AND ALSO FROM PARENTS OF MY WIFE AND MY AUN TS AND OTHER RELATIVES WHO ARE ALL WELL TO DO AND HAD GIVEN JEWELLERY. MY MOTHER SMT. SURYAKANTA H. KOTADIA OWNED GOLD ORN AMENTS AND DIAMOND JEWELLERY. THE GOLD ORNAMENTS AS VALUED BY HER 1989 WERE ABOUT 600 GMS AND DIAMONDS WORKS ABOUT 6 CTS. IT IS FURTHER STATED THAT :- THE DIAMOND JEWELLERY RELEASED WAS OF RS. 2,61,650 /- (2,25,750 + 1,36,000/-). THIS JEWELLERY CONSISTED OF 23 ITEMS (21 + 27) AND 19 ITEMS WERE WEIGHING LESS THAN 50 CTS. NONE OF THE FOR REMAINING ITEMS WERE O F CTS 0.65, 0.74, 0.5, 0.65. THIS WERE RELEASED BY VIEWING THE STATUS OF THE FAM ILY, JEWELLERY OF THE FAMILY, I.E. SHOWN IN VALUATION REPORTS OF 1989 OF DECEASED FATHER LATE SHRI HIRALAL A. KOTADIA AND AVAILABLE CASH OUT OF DRAWING ETC. THE TOTAL DIAMOND JEWELLERY RELEASED WAS CTS. 8.63 WHICH INCLUDED DIAMOND JEWELLERY OF CTS 1.10 WORN BY HIS WIFE FLAVIA/JYOTI THE GOLD JEWELLEIY RELEASED WAS OF GMS 1289.400. THE VALUE OF RELEASED JEWELLERY WAS AS FOLLOWS:- GOLD GMS 1289.400 VALUE RS. 12,38,272/- DIAMOND CTS 8.63 VALUE RS. 3,66,250/- ITA NO.7955/MUM/2011: ASSESSMENT YEAR: 2006-07 ITA NO.7956/MUM/2011: ASSESSMENT YEAR: 2007-08 ITA NO.7957/MUM/2011: ASSESSMENT YEAR: 2008-09 7 RS. 16,04,522/- THE SOURCE OF RELEASED JEWELLERY IS AS FOLLOWS: (A) MARRIAGE SOLEMNIZED IN NOVEMBER 1995 WHEN THE R ATE OF GOLD WAS ABOUT RS. 6,500/- OF 24 CTS PURITY. THE RATE OF 22 CTS WOULD BE LESS THAN 5,900/-. (B) I HAD SHOWN PURCHASE OF JEWELLERY IN THE BOOKS OF ACCOUNT AT RS. 39,400/- SINCE 1990-91. THE RATE OF GOLD WAS ABOUT RS. 3,000 /- FOR 10 GMS AND DIAMOND WAS ABOUT RS. 7000 PER CTS. ONLY. (C) MY DAUGHTER SATHI WAS BORN IN 1999 WHEN FAMILY MEMBERS FROM PARENTAL SIDE AND MATERNAL SIDE AND FRIENDS WERE RECEIVED. (D) MY PARENTS HAD SUFFICIENT JEWELLERY WHICH WAS S UPPORTED BY OLD (1989). VALUATION REPORT AND SUBSEQUENTLY DECLARED JEWELLER Y INCORPORATED AS ASSETS IN THE BOOKS. 15. AO HAS STATED THAT HE DOES NOT FIND ANY FORCE I N THE SUBMISSIONS OF ASSESSEE. ASSESSEE IS NOT ASSESSED TO WEALTH TAX. NO SUPPORTI NG DOCUMENTS/EVIDENCES HAVE BEEN FURNISHED. MOREOVER, ASSESSEE FAILED TO RECONCILE JEWELLERY ITEM-WISE AND HAS SIMPLY STATED THAT HIS MARRIAGE TOOK PLACE IN THE YEAR 199 5 AND HE WAS BLESSED WITH A DAUGHTER IN THE YEAR 1999. ASSESSEE CLAIMED THAT HIS FATHER -IN-LAW IS A RICH PERSON. AO HAS STATED THAT NO DOCUMENTARY EVIDENCE OR PROOF HAS BE EN FURNISHED THAT HIS MOTHER SMT SUJRYAKANT KOTADIA, AS PER VALUATION REPORT OF 198 9, WAS ALSO HAVING GOLD ORNAMENTS ABOUT 600 GMS AND DIAMOND JEWELLERY ABOUT 6 CTS. AO HAS STATED THAT IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE, ASSESSEES CLAIM IS NO T ACCEPTED. HOWEVER, AO HAS ACCEPTED THE JEWELLERY AS EXPLAINED OF RS.10,00,000 . THEREFORE, BALANCE AMOUNT OF JEWELLERY WHICH IS RS.6,04,522/- HAS BEEN CONSIDERE D AS UNEXPLAINED AND HAS BEEN ACQUIRED BY THE ASSESSEE OUT OF UNDISCLOSED INCOME. BEING AGGRIEVED, ASSESSEE FILED APPEAL BEFORE LD CIT(A). 16. LD CIT(A) CONFIRMED THE ACTION OF AO. HENCE, T HIS APPEAL BY THE ASSESSEE. 17. DURING THE COURSE OF HEARING, LD A.R. MADE HIS SUBMISSIONS ON THE LINE OF SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. HE FURTHER SUBMITTED THAT IF THE SAID JEWELLERY IS CONSIDERED AS UNDISCLOSED, SHOULD BE C ONSIDERED TO HAVE BEEN ACQUIRED FROM THE SALE OF SHARES IN CASH AND THE AMOUNT OF LONG T ERM CAPITAL GAIN AS ENHANCED BE ADJUSTED AGAINST UNDISCLOSED JEWELLERY OF RS.6,04,5 22/-,. LD D.R. RELIED ON ORDERS OF AUTHORITIES BELOW AND DID NOT DISPUTE ABOVE CONTENT ION OF LD A.R. ITA NO.7955/MUM/2011: ASSESSMENT YEAR: 2006-07 ITA NO.7956/MUM/2011: ASSESSMENT YEAR: 2007-08 ITA NO.7957/MUM/2011: ASSESSMENT YEAR: 2008-09 8 18. WE HAVE CONSIDERED SUBMISSIONS OF LD REPRESENTA TIVES OF PARTIES AND ORDERS OF AUTHORITIES BELOW. 19. WE AGREE WITH THE AO THAT ASSESSEE HAS NOT BEEN ABLE TO PLACE ANY DOCUMENTARY EVIDENCE OR GIVE SATISFACTORY EXPLANATION REGARDING THE JEWELLERY WORTH OF RS.6,04,522 AND SAME HAS RIGHTLY BEEN CONSIDERED THAT HAS BEEN ACQUIRED BY ASSESSEE FROM UNDISCLOSED SOURCES. HOWEVER, WE HAVE CONFIRMED TH E ACTION OF AUTHORITIES BELOW IN RESPECT OF ADDITION MADE OF RS.7,03,957 FOR A.Y. 20 06-07 AND OF RS.2,98,814 FOR A.Y. 2007-08 BY ENHANCING THE LONG TERM CAPITAL GAIN ON SALE OF SHARES. THERE ARE NO FACTS THAT ASSESSEE HAS UTILIZED THE SAID AMOUNT TO ACQUI RE ANY OTHER ASSETS AND, ACCORDINGLY, WE FIND FORCE IN THE SUBMISSION OF LD A.R. THAT SAI D UNDISCLOSED JEWELERY OF RS.6,04,522 SHOULD BE CONSIDERED TO HAVE BEEN ACQUIRED OUT OF E NHANCED LONG TERM CAPITAL GAIN MADE IN THE PRECEDING ASSESSMENT YEARS I.E. 2006-0 7 AND 2007-08. THEREFORE, NO ADDITION ON ACCOUNT OF UNDISCLOSED JEWELERY OF RS.6 ,04,522 FOR ASSESSMENT YEAR 2008-09 SHOULD BE MADE. 20. IN THE RESULT, APPEALS FOR ASSESSMENT YEARS 200 6-07 AND 2007-08 ARE DISMISSED AND WHEREAS APPEAL FOR ASSESSMENT YEAR 2008-09 IS A LLOWED IN PART. PRONOUNCED IN THE OPEN COURT ON 16 TH NOVEMBER, 2012 SD/- (P.M.JAGTAP) ACCOUNTANT MEMBER SD/- (B.R. MITTAL) JUDICIAL MEMBER MUMBAI, DATED 16 TH NOVEMBER, 2012 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS),, MUMBAI 4. COMMISSIONER OF INCOME TAX, , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH D MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI