(Smt) Chitra Gupta, Kanpur V. Asstt. Commissioner of Income Tax, Kanpur

ITA 80/LKW/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4753 (ITAT-LUCKNOW)
• Duration Of Justice: 2 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-01-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 11-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Principle of natural justice
• Section: 69

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.80/LKW/2014 ASSESSMENT YEAR 2006-07 ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-VI, KANPUR VS SMT. CHITRA GUPTA, 49, GOVT. INDUSTRIAL ESTATE KANPUR PAN AAPPG 3698 B (RESPONDENT) (APPELLANT) SHRI PRADEEP KAPOOR, CA APPELLANT BY SHRI AMIT NIGAM, DR RESPONDENT BY 19/01/2016 DATE OF HEARING 11 /0 2 /2016 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE O RDER OF LD. CIT (A)-I, KANPUR DATED 29.11.2013 FOR THE AY 2006-07. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. BECAUSE THE 'CIT(A)' HAS ERRED IN LAW AND ON FA CTS IN HOLDING THAT, JEWELLERY WORTH RS.3,03,864/- (OUT OF JEWELLERY FOUND DURING THE COURSE OF SEARCH ON 29.12.2005) RE PRESENTED UNDISCLOSED INVESTMENT UNDER SECTION 69 OF THE ACT AND IN UPHOLDING THE ADDITION OF THE SAME TO THE INCOME OF THE APPELLANT. 2. BECAUSE ON A DUE CONSIDERATION OF THE OVERALL FA CTS AND CIRCUMSTANCES OF THE CASE, MATERIAL AND INFORMATION PLACED ON RECORD, NO PART OF THE JEWELLERY FOUND DURING THE C OURSE OF SEARCH COULD BE HELD TO BE UNEXPLAINED INVESTMENT W ITHIN THE 2 MEANING OF SECTION 69 OF THE ACT, SO AS TO CALL FOR SUSTENANCE OF ANY ADDITION ON THAT SCORE. 3. BECAUSE THE ORDER APPEALED AGAINST IS CONTRARY T O THE FACTS LAW AND PRINCIPLES OF NATURAL JUSTICE. 3. LD. AR OF THE ASSESSEE PLACED RELIANCE ON A JUDG MENT OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS. RATANLAL VYAPARILAL JAIN REPORTED IN 339 ITR 351 (GUJ.) IN SUPPORT OF HIS CO NTENTION THAT THE AMOUNT OF JEWELLERY AS PER BOARD INSTRUCTION NO. 1916 DATED 1 1 TH MAY, 1992 SHOULD ALSO BE ADOPTED FOR THE PURPOSE OF ACCEPTING THAT THIS M UCH JEWELLERY IS PROPERLY EXPLAINED. HE FURTHER SUBMITTED THAT IN THE PRESENT CASE, TOTAL JEWELLERY FOUND WAS 2347.2 GMS FROM RESIDENCE, 1002 GMS OF GOLD FRO M LOCKER NO.4 AND 1044.9 GMS FROM LOCKER NO.13 TOTAL 4394.1 GMS. HE F URTHER SUBMITTED THAT OUT OF THIS QUANTITY OF JEWELLERY, THE DEPARTMENT H AS ALSO ACCEPTED JEWELLERY OF 3627.94 GMS AS EXPLAINED AS PER BALANCE SHEET OF M/S R.K. GUPTA (HUF), SMT. KAMLA DEVI GUPTA AND SMT. CHITRA GUPTA AND ADD ITION HAS BEEN MADE ONLY FOR THE BALANCE JEWELLERY OF 721.158 GMS. THE REAFTER, HE SUBMITTED THAT FOR THIS EXCESS JEWELLERY, IT SHOULD BE ACCEPTED TH AT 100 GMS OF JEWELLERY PER MAIL MEMBER AND 250 GRAMS PER UNMARRIED LADY OF THE FAMILY SHOULD BE CONSIDERED AS EXPLAINED AND THERE WERE FOUR MALE ME MBERS IN THE ASSESSEES FAMILY BEING SHRI RAM KRISHNA GUPTA HUSBAND OF THE ASSESEEE, SHRI JUGAL BEHARI GUPTA FATHER-IN-LAW OF THE ASSESSEE AND TWO SONS BEING MASTER SHUBHAM AND MASTER SHREYA AND ONE UNMARRIED LADY BE ING THE DAUGHTER KUMARI DIVYA MALA. HE SUBMITTED THAT THEREFORE, 650 GMS OF JEWELLERY AS PER THIS BOARD INSTRUCTION AND JUDGMENT OF THE HONBLE GUJARAT HIGH COURT SHOULD BE CONSIDERED AS EXPLAINED IN ADDITION TO JEWLLERY OF 3627.942 GMS ALREADY ACCEPTED BY THE DEPARTMENT AS EXPLAINED. HE SUBMITT ED UNDER THESE FACTS, NO ADDITION IS JUSTIFIED. 4. LD. DR OF THE REVENUE SUPPORTED THE ORDERS OF TH E AUTHORITIES BELOW. 3 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D THAT TOTAL JEWELLERY FOUND IN COURSE OF SEARCH IS 4394.1 GMS OUT OF WHIC H THE DEPARTMENT HAS ACCEPTED THAT JEWELLERY OF 3627.94 GMS IS EXPLAINED BECAUSE THIS MUCH JEWLLERY WAS APPEARING IN THE BALANCE SHEET AS ON 3 1.03.2005 FILED BY THE ASSESSEES MR. R.K. GUPTA, HUF, SMT. KAMLA DEVI GUPT A AND SMT. CHITRA GUPTA AND ADDITION WAS MADE IN RESPECT OF EXCESS JE WELLERY FOUND OF ONLY 721.158 GMS. NOW, AS PER THIS JUDGMENT OF HONBLE G UJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS. RATANLAL VYAPARILAL JAIN (SUPRA), REFERENCE WAS MADE TO THE BOARD INSTRUCTION NO.1916 DATED 11. 05.1992 WHICH LAYS DOWN GUIDELINES FOR SEIZURE OF JEWELLERY AND ORNAME NTS IN THE COURSE OF SEARCH AND IT WAS HELD THAT UNLESS ANYTHING CONTRAR Y IS SHOWN, IT CAN BE SAFELY PRESUMED THAT THE SOURCE TO THE EXTENT OF THE JEWEL LERY STATED IN THE SAID CIRCULAR STANDS EXPLAINED. AS PER THE ASSESSEES SU BMISSION NOTED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER WHICH IS REPRODUCED BY LD. CIT(A) IN PARA 4.1 OF HIS ORDER, THERE WERE FOUR MALE MEMB ERS AND ONE UNMARRIED LADY IN THE FAMILY ON WHOSE ACCOUNTS, NO EXPLAINED JEWELLERY WAS CONSIDERED WHILE ACCEPTING JEWELLERY TO THE EXTENT OF 3627.942 GMS. HENCE AS PER THIS JUDGMENT OF HONBLE GUJARAT HIGH COURT AND BOARD AS PER INSTRUCTION NO.1916 DATED 11.05.1994, 400 GMS JEWELLERY FOR FOUR MALE M EMBERS AND 250 GMS OF JEWELLERY FOR ONE UNMARRIED LADY TOTAL 650 GMS SHOU LD BE CONSIDERED AS EXPLAINED. AFTER THIS, THE UNEXPLAINED JEWELLERY RE MAINS OF ONLY 71.158 GMS. EVEN IN RESPECT OF THIS SMALL QUANTITY OF JEWELLERY , WE FEEL THAT HOW THE ADDITION CAN BE MADE IN THE HANDS OF THE PRESENT AS SESSEE SMT. CHITRA GUPTA WHEN THERE WERE SO MANY FAMILY MEMBERS IN THE FAMIL Y AND OUT OF TOTAL 4394 GMS OF JEWLLERY FOUND IN COURSE OF SEARCH, 2327 GMS OF JEWELLERY WAS FOUND FROM THE BED ROOM OF SMT. KAMLA DEVI AND TWO LOCKER S BEING LOCKER NOS. 4 AND 13 JOINTLY OWNED BY SHRI G.B. GUPTA, SMT. KAMLA DEVI GUPTA AND HE PRESENT ASSESSEE SMT. CHITRA GUPTA. 4 6. CONSIDERING OF THESE FACTS AND THE LEGAL POSITIO N, WE ARE OF THE CONSIDERED OPINION IN THE FACTS OF THE PRESENT CASE , NO ADDITION IS JUSTIFIED IN THE HANDS OF THE PRESENT ASSESSEE. WE, THEREFORE, D ELETE THE SAME. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/- SD/- (SUNIL KUMAR YADAV) (A.K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11/02/2016 AKS COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGISTR AR