Chhavi Anand, Delhi V. ACIT, Central Circle-06, New Delhi

ITA 9098/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4288 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2017-2018
• Appeal Filed On: 25-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Gift; Search and seizure
• Section: 143(3); 142(1); 143(2); 69A; 13; 132; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH, SMC: NEW DELHI (THROUGH VIDEO CONFERENCING) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER ITA NO.9098/DEL/2019 [ASSESSMENT YEAR: 2017-18] SMT. CHHAVI ANAND, F-14/50, 1 ST FLOOR, MODEL TOWN-II, DELHI-110009 ACIT, CENTRAL CIRCLE-06, NEW DELHI PAN-ADGPD9947E ASSESSEE REVENUE ASSESSEE BY SH. MAYANK PATWARI, CA REVENUE BY SH. R. K. GUPTA, SR. DR DATE OF HEARING 25.08.2021 DATE OF PRONOUNCEMENT 30.09.2021 ORDER THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 11.10.2019 OF THE LEARNED CIT(A)-24, NE W DELHI, RELATING TO ASSESSMENT YEAR 2017-18. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSES SEE IS AN INDIVIDUAL. A SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT WAS CARRIED OUT ON ASHISH BEGWANI BY THE INVESTIGATION WING, NEW DELHI ON 22.10.2016. WARRANT OF AUTHORIZATION WAS ALSO EXECUTED IN THE CASE OF THE ASSESSEE ON 10.11.2016 AT LOCKER NO.489, UNION BANK OF INDIA, DELHI. IN RESPONSE TO NOTICE U/S 2 ITA NO.9098/DEL/2019 142(1) OF THE ACT ISSUED ON 04.06.2018, THE ASSESSE E FILED THE RETURN OF INCOME ON 27.03.2018, WHICH WAS THE RETUR N ORIGINALLY FILED DECLARING THE INCOME OF RS.3,50,91 0/-. THE AO ISSUED NOTICE U/S 143(2) OF THE ACT ON 20.09.2018 A ND THEREAFTER, ISSUED NOTICE U/S142(1) OF THE ACT ALON G WITH A QUESTIONNAIRE ON 08.10.2018. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, TH E AO NOTED THAT JEWELLERY VALUED AT RS.39,29,928/- WA S FOUND FROM THE LOCKER OUT OF WHICH JEWELLERY VALUED AT RS .23,46,108/- WAS SEIZED AFTER GIVING DUE CONSIDERATION TO CBDT INSTRUCTION/CIRCULAR IN RELATION TO SEIZURE OF JEW ELLERY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AO ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF JEWELLERY SEIZED. IT WAS SUBMITTED BY THE ASSESSEE THAT JEWELLERY FOUND FROM THE LOCKER IS NOTHING BUT FAMILY OWNED JEWELLERY OVER THE YEAR S. HOWEVER, THE AO REJECTED THE CONTENTION OF THE ASSESSEE ON T HE GROUND THAT THE ASSESSEE WAS FILING HER RETURN OF INCOME D ECLARING VERY MEAGRE INCOME EVERY YEAR AND THEREFORE CREDITWORTHI NESS IS DOUBTFUL. THE SUBMISSION OF THE ASSESSEE THAT THE JEWELLERY BELONGING TO HER SISTER-IN-LAW MS. SIKHA DAVID (UNM ARRIED SISTER OF HUSBAND), WHO IS RESIDING WITH THE ASSESS EE WAS ALSO 3 ITA NO.9098/DEL/2019 REJECTED BY THE AO ON THE GROUND THAT AT THE TIME O F SEIZURE OF LOCKER WHEN THE STATEMENT OF HUSBAND OF THE ASSESSE E SHAIL ANAND WAS TAKEN, HE HAS NOT STATED THE FACT THAT SO ME JEWELLERY IS BELONGING TO MS. SIKHA DAVID. SINCE, T HE ASSESSEE COULD NOT EXPLAIN THE SOURCE OF JEWELLERY TO THE SA TISFACTION OF THE AO, HE MADE ADDITION OF RS.23,46,108/- TO THE T OTAL INCOME OF THE ASSESSEE U/S 69A OF THE ACT. 4. BEFORE THE LEARNED CIT(A), IT WAS ARGUED THAT T HE JEWELLERY BELONGS TO THE ASSESSEE AND HER FAMILY ME MBERS NAMELY, SH. SHAIL ANAND, HUSBAND OF THE ASSESSEE, T ARUSH ANAND MINOR SON, MS. SIKHA DAVID, SISTER-IN-LAW AND LATE SOBHA DAVID, MOTHER-IN-LAW. REFERRING TO THE CBDT CIRCULAR NO.1916 DATED 11.05.1994 WHICH STATES THAT 500 GM J EWELLERY FOR EVERY MARRIED LADY AND 100 GMS FOR EVERY MALE M EMBER MAY NOT BE SEIZED, IT WAS ARGUED THAT THE TOTAL JEWELLE RY FOUND FROM THE LOCKER IS 1302.698 GMS WHICH IS LESS THAN THE PRESCRIBED LIMIT OF 1700 GMS ALLOWABLE IN THE INSTANT CASE AS PER CBDT INSTRUCTION SHOULD BE TREATED AS EXPLAINED. IT WAS ARGUED THAT JEWELLERY OF 442.344GMS BELONG TO LATE SHOBHA DAVID , MOTHER- IN-LAW OF THE ASSESSEE WHO HAD KEPT THE SAID JEWELL ERY IN THE SAFE CUSTODY OF THE ASSESSEE. HOWEVER, SHE HAS DIED PRIOR TO THE 4 ITA NO.9098/DEL/2019 DATE OF SEARCH. IT WAS ALSO SUBMITTED THAT JEWELLER Y OF 468.260 GMS OF SMT. SIKHA DAVID, WHO IS UNMARRIED SISTER-IN -LAW OF THE ASSESSEE, WAS ALSO KEPT IN THE LOCKER FOR SAFE CUST ODY SINCE THE WHOLE FAMILY HAS ONLY ONE LOCKER. AFFIDAVIT OF MS. SIKHA DAVID WAS ALREADY FILED BEFORE THE AO REGARDING THE OWNER SHIP OF THE SAID JEWELLERY. IT WAS ARGUED THAT REMAINING JEWEL LERY BELONGS TO THE ASSESSEE, HER HUSBAND AND MINOR SON. SO FAR AS THE CONCLUSION OF THE AO THAT THE ASSESSEE WAS NOT FILI NG WEALTH TAX RETURN IS CONCERNED, IT WAS ARGUED THAT THE ASSESSE E WAS NOT OBLIGED TO FILE WEALTH TAX RETURN SINCE, HER NET WE ALTH WAS BELOW THE PRESCRIBED LIMIT OF RS.30 LAKHS AND SHE DOES NO T HOLD OTHER ASSETS TILL DATE. RELYING ON VARIOUS DECISIONS, IT WAS ARGUED THAT THE ADDITION MADE BY THE AO SHOULD BE DELETED. 5. HOWEVER, THE LEARNED CIT(A) WAS NOT SATISFIED WI TH THE ARGUMENTS ADVANCED BY THE ASSESSEE AND UPHELD THE A DDITION MADE BY THE AO BY OBSERVING AS UNDER:- 5.1. I HAVE CONSIDERED THE MATERIAL ON RECORD INC LUDING WRITTEN SUBMISSION OF THE AR OF THE APPELLANT TILED IN COURSE OF APPELLATE PROCEEDINGS. I HAVE ALSO PERUSED THE ASSE SSMENT ORDER U/S 143(3) OF THE ACT PASSED BY THE ASSESSING OFFIC ER. 5.2.1. IN THE PRESENT APPEAL THE APPELLANT HAS RAI SED SIX GROUNDS OF APPEAL. GROUND NOS. 1 TO 3 RELATE TO AD DITION OF RS. 23,46,108/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN JEWELLERY U/S 69A R.W.S.115BBE OF THE ACT. IT HAS BEEN CONTEN DED THAT THE AO IGNORED THE CBDT INSTRUCTION NO. 1916 DATED 11.0 5.1994 AND TREATED JEWELLERY AS UNEXPLAINED INVESTMENT. IT WAS ALSO 5 ITA NO.9098/DEL/2019 CONTENDED THAT THE AO IGNORED THE FACT THAT JEWELLE RY FOUND BELONGED TO ALL THE MEMBERS OF THE FAMILY AND NOT S OLELY TO THE APPELLANT. 5.2.2. ON PERUSAL OF WRITTEN SUBMISSION OF THE AP PELLANT AND THE ASSESSMENT ORDER IT IS CLEAR THAT THE APPEL LANT WAS GIVEN FULL BENEFIT OF CBDT INSTRUCTION NO. 1916 DATED 11. 05.1994 AT THE TIME OF SEIZURE OF JEWELLERY. THIS IS EVIDENT FROM QUESTION NOS. 15 &16 OF STATEMENT RECORDED U/S 132(4) OF THE ACT OF THE APPELLANT ON 29.11.2016 DURING THE LOCKER OPERATION WHICH HAS BEEN QUOTED ALSO IN THE WRITTEN SUBMISSION. DURING THE COURSE O F SEARCH ON 22.10.2016 AT THE RESIDENTIAL PREMISES OF THE APPEL LANT GOLD EQUIVALENT WEIGHT OF 160GMS WAS FOUND WHICH WAS NOT SEIZED. AS PER THE STATEMENT OF SH. SHAIL ANAND, THE HUSBAND O F THE APPELLANT, THE FAMILY CONSISTS OF THE APPELLANT, HE R HUSBAND AND SON TARUSH ANAND. AS PER CBDT INSTRUCTION NO. 1916 DATED 11.05.1994 THE FAMILY WAS ENTITLED TO BENEFIT OF 70 0GMS. OF GOLD JEWELLERY. THEREFORE, AT THE TIME OF LOCKER OPERATI ON THE APPELLANT WAS FURTHER GRANTED BENEFIT OF 540GMS. GOLD JEWELLE RY AND THE BALANCE JEWELLERY WAS SEIZED. ALL THESE FACTS ARE C LEARLY MENTIONED IN QUESTION NOS. 15 &16 OF STATEMENT RECO RDED OF THE APPELLANT ON 29.11.2016 DURING THE LOCKER OPERATION . IN RESPONSE TO THESE QUERIES THE APPELLANT REPLIED *NO' WHEN SH E WAS ASKED WHETHER SHE WANTED TO SAY ANYTHING IN THIS REGARD. NO CLAIM OF JEWELLERY BELONGING TO HER SISTER-IN-LAW MS. SHIKHA DAVID WAS MADE IN THE STATEMENT RECORDED OF THE APPELLANT ON 29.11.2016 DURING THE LOCKER OPERATION. IN THE ABSENCE OF ANY SUCH CLAIM MADE BY THE APPELLANT DURING THE LOCKER OPERATION, SUBSEQUENT CLAIM OF 468.26 GMS. OF JEWELLERY BELONGING TO HER SISTER-IN-LAW MS. SHIKHA DAVID IS HELD TO BE UNACCEPTABLE AS THE CLAIM HAS BEEN OSTENSIBLY MADE TO EXPLAIN THE SOURCE OF SEI/E D JEW ELLERY BY INCLUDING ONE MORE MEMBER IN THE FAMILY TO GET BENE FIT OF CBDT INSTRUCTION NO. 1916. FURTHER CLAIM OF 442.344 GMS. OF JEWELLERY BELONGING TO LATE SMT. SHOBHA DAVID, MOTHER-IN-LAW OF THE APPELLANT IS ALSO NOT ACCEPTABLE AS SUCH CLAIM IS N OT SUPPORTED BY CREDITABLE AND RELIABLE DOCUMENTARY EVIDENCES. ALTH OUGH IN RESPONSE TO QUESTION NO. 9 IN STATEMENT RECORDED ON 29.11.2016 DURING LOCKER OPERATION THE APPELLANT EXPLAINED SOU RCE OF JEWELLERY TO BE FROM WEDDING, GIFTS RECEIVED FROM RELATIVES F OR HER SON AND SOME JEWELLERY RECEIVED FROM MOTHER-IN-LAW. HOWEVER , AT THAT TIME, THE APPELLANT IN RESPONSE TO QUESTION NO. 10. ACCEPTED THAT THERE IS NO REGISTERED W ILL OF MOTHER-IN-LAW WHERE IN, THE ITEMS OF JEWELLERY BEQUEATHED TO HER ARE LISTED. THE APPELLA NT COULD NOT PROVIDE DETAILS OF THE FRIENDS AND RELATIVES WHO GI FTED JEWELLERY TO HER. SHE COULD NOT PROVIDE BREAKUP OF THE QUANTITY OF JEWELLERY RECEIVED OR THE DATE OF RECEIPT OF GIFT. SHE DID NO T HAVE ANY RECORD OF THE GIFTS RECEIVED. AGAINST THE ABOVE BACKDROP O F FACTS THE CLAIM OF 442.344GMS. OF JEWELLERY BELONGING TO MOTHER-IN- LAW L.ATE SMT. SHOBHA DAVID CANNOT BE ACCEPTED. THE AFFIDAVITS FUR NISHED BY THE APPELLANT CANNOT HELP HER IN EXPLAINING THE SOURCE OF SEIZED 6 ITA NO.9098/DEL/2019 JEWELLERY IN THE ABSENCE OF SUPPORTING DOCUMENTS. T HE FACT OF CERTAIN DOCUMENTS OF HER SISTER-IN-LAW HAVING THE S AME ADDRESS AS THAT OF THE APPELLANT DOES NOT VALIDATE CLAIM-OF THE APPELLANT OF SISTER-IN-LAW STAYING THERE WITH HER AND KEEPING 46 8.26GMS OF JEWELLERY IN THE LOCKER OF THE APPELLANT. THE AFFID AVIT OF HUSBAND OF THE APPELLANT REGARDING 442.344GMS OF JEWELLERY OF HIS MOTHER LYING IN THE LOCKER IS HIGHLY UNACCEPTABLE IN THE A BSENCE OF ANY CREDIBLE AND RELIABLE DOCUMENTARY EVIDENCE. IN THE LIGHT OF THE ABOVE OBSERVATIONS. I HOLD THAT THE APPELLANT HAS N OT BEEN ABLE TO EXPLAIN SOURCE OF SEIZED JEWELLERY AMOUNTING TO RS. 23.46.108/- AND THERE IS NO MERIT IN THE CONTENTION OF THE APPE LLANT THAT THE AO IGNORED CBDT INSTRUCTION NO. 1916 DATED 11.05.1994. THUS, IN MY CONSIDERED VIEW, THE AO IS FULLY JUSTIFIED IN MA KING ADDITION OF RS. 23.46.108/- AS UNEXPLAINED INVESTMENT U/S 69A R .W.S. I15BBK OF THE ACT. THEREFORE, THE ADDITION OF RS. 2 3.46.108'- AS UNEXPLAINED INVESTMENT U/S 69A R.W.S. 115BBE OF THE ACT MADE BY THE AO IS CONFIRMED. ACCORDINGLY. GROUND NOS. 1 TO 3 OF APPEAL ARE DISMISSED. 6. AGGRIEVED WITH SUCH ORDER OF THE LEARNED CIT( A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISIN G THE FOLLOWING GROUNDS OF APPEAL:- I. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER PASSED BY LD. CIT(A) IS BAD BOTH IN EYES OF LAW AND ON FACTS. II. THAT THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN CONFIRMING THE IMPUGNED ORDER PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961. III. THAT THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS BY UPHOLDING THE ADDITION MADE BY THE LD. AO AMOUNTING TO RS.23,46,108/- U/S 69A R.W.S. 115BBE OF THE INCOME TAX ACT, 1961 ON ACCOUNT UNEXPLAINED INVESTMENT IN JEWELLERY. IV. THAT THE LD. CIT(A) AND THE LD. AO HAS ERRED IN LAW AS WELL AS ON FACTS BY IGNORING THE CBDT INSTRUCTION NO.1916 DATED 11.05.1994 AND TREATING JEWELLERY AS UNEXPLAINED INVESTMENT. V. THAT THE LD. CIT(A) AND THE LD. AO HAS ERRED IN LAW AS WELL AS ON FACTS BY IGNORING THAT THE JEWELLERY 7 ITA NO.9098/DEL/2019 FOUND BELONGED TO ALL THE MEMBERS OF THE FAMILY AND NOT SOLELY TO THE APPELLANT. VI. THAT THE LD. CIT(A) AND THE LD. AO HAS ERRED IN LAW AS WELL AS ON FACTS BY INITIATING THE PENALTY PROCEEDING U/S 271AAB(1)(C) OF THE INCOME TAX ACT, 1961. VII. THAT THE CIT(A) HAS ERRED IN LAW AS WELL AS ON FACT S BY CONFIRMING THE CHARGING OF INTEREST U/S 234A/B/C/D OF THE INCOME TAX ACT, 1961 . 7. THE LEARNED COUNSEL FOR THE ASSESSEE STRONGLY CHALLENGED THE ORDER OF THE LEARNED CIT(A) IN SUSTA INING THE ADDITION MADE BY THE ASSESSING OFFICER. THE LEARNED COUNSEL FOR THE ASSESSEE FILED THE FOLLOWING DETAILS:- NAME RELATION LIMIT AS PER INSTRUCTION QUANTITY OF JEWELLERY FOUND PERTAINING TO FAMILY MEMBERS SHAIL ANAND HUSBAND 100GMS 552.094GMS CHHAVI ANAND ASSESSEE 500GMS TARUSH ANAND SON 100GMS SIKHA DAVID (UNMARRIED) SISTER-IN-LAW 500GMS 468.260GMS LATE SHOBHA DAVID MOTHER-IN-LAW 500GMS 442.344GMS TOTAL 1700GMS 1302.698GMS 8. HE SUBMITTED THAT JEWELLERY FOUND FROM THE LOCK ER BELONGS TO THE ASSESSEE AS WELL AS HER HUSBAND, MIN OR SON, UNMARRIED SISTER-IN-LAW AND LATE MOTHER-IN-LAW IS O NLY 1302.698GMS, WHICH IS MUCH LESS THAN THE PRESCRIBED LIMIT OF 1700GMS AS PER CBDT INSTRUCTION/CIRCULAR 1961 DATED 11.05.1994. HE SUBMITTED THAT MOTHER-IN-LAW OF THE ASSESSEE 8 ITA NO.9098/DEL/2019 LATE SHOBHA DAVID DIED IN YEAR 2015 WHICH IS ONE YE AR PRIOR TO THE DATE OF SEARCH AND JEWELLERY OF 442.344GMS BELO NG TO HER WHICH WAS KEPT BY HER IN THE LOCKER OF THE ASSESSEE FOR SAFE CUSTODY. TO SUBSTANTIATE THE SAME, IT WAS ARGUED T HAT THE DAUGHTER AND SON OF LATE SHOBHA DAVID, NAMELY SHIKH A DAVID AND SH. SHAIL ANAND, RESPECTIVELY HAVE ALREADY FILE D THEIR AFFIDAVITS BEFORE THE AO CONFIRMING THAT JEWELLERY OF 442.344GMS PERTAINS TO HER. IT WAS ARGUED THAT JEWE LLERY OF 468.26GMS PERTAINS TO MS. SHIKHA DAVID, UNMARRIED S ISTER-IN- LAW OF THE ASSESSEE WHO LIVES WITH THE ASSESSEE AT HER RESIDENCE AND WAS ALSO KEPT BY HER IN LOCKER OF THE ASSESSEE FOR SAFE CUSTODY SINCE THE ENTIRE FAMILY WAS HAVING ONLY ONE LOCKER. IT WAS ARGUED THAT AFFIDAVIT CONFIRMING THE JEWELLERY OF 468.26GMS PERTAINING TO MS. SHIKHA DAVID WAS ALREADY FILED BE FORE THE ASSESSING OFFICER. IT WAS ARGUED THAT MS. SHIKHA DA VID IS UNMARRIED AND RESIDES AT THE RESIDENCE OF HER MOTHE R, LATE SHOBHA DAVID LIKE ANY OTHER UNMARRIED WOMEN IN A HI NDU FAMILY. IT WAS ARGUED THAT THE AADHAR CARD AND PAS SPORT OF MS. SHIKHA DAVID ALSO BEAR THE SAME ADDRESS AS THAT OF THE ASSESSEE. THEREFORE, QUESTIONING THE FACT THAT SHE IS NOT A MEMBER OF THE FAMILY IS UNCALLED FOR. IT WAS ARGUE D THAT THE 9 ITA NO.9098/DEL/2019 REMAINING JEWELLERY WEIGHING 552.094GMS BELONGS TO THE ASSESSEE, HER HUSBAND AND MINOR SON. 8.1. REFERRING TO THE DECISION OF THE HONBLE DELH I HIGH COURT IN THE CASE OF SUSHILA DEVI VS CIT IN W.P.(C) NO.7620/2011 ORDER DATED 21.10.2016, IT WAS ARGUED THAT THE HONBLE HIGH COURT HAS ACCEPTED THE EXPLANATION OF THE ASSESSEE THAT THE GOLD JEWELLERY ACQUIRED THROUGH G IFTS MADE BY RELATIVES AND OTHER FAMILY MEMBERS OVER A LONG PERI OD OF TIME, IS IN KEEPING WITH PREVAILING CUSTOMS AND HABITS. 8.2. REFERRING TO THE DECISION OF THE HONBLE DELH I HIGH COURT IN THE CASE OF ASHOK CHADHA VS ITO, IN ITA NO.274/2011, ORDER DATED 05/07/2011, HE SUBMITTED T HAT HONBLE HIGH COURT IN THE SAID DECISION HAS HELD TH AT IT IS A NORMAL CUSTOM OF WOMAN TO RECEIVE JEWELLERY IN THE FORM OF STREE DHAN OR ON OTHER OCCASIONS SUCH AS BIRTH OF CHILD ETC. IT WAS HELD THAT WHEN THE VALUE OF THE JEWELLERY WAS N OT SUBSTANTIAL, THE ADDITION MADE BY THE ASSESSING OFF ICER AND UPHELD BY THE LEARNED CIT(A) AS WELL AS BY THE TRIB UNAL IS NOT JUSTIFIED. 10 ITA NO.9098/DEL/2019 8.3. REFERRING TO THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SUNEELA SONI VS DCIT VI DE ITA NO.5259/DEL/2017, ORDER DATED 16.03.2018 FOR A.Y. 2 011-12, HE DREW THE ATTENTION OF THE BENCH TO THE FINDING O F THE TRIBUNAL AND SUBMITTED THAT AFTER CONSIDERING THE A BOVE DECISION AND VARIOUS OTHER DECISIONS, THE TRIBUNAL HAS DELETED THE ADDITION MADE BY THE ASSESSING OFFICER ON ACCOU NT OF UNEXPLAINED JEWELLERY. HE ACCORDINGLY SUBMITTED THA T THE ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINE D BY THE LEARNED CIT(A) IS NOT JUSTIFIED AND THEREFORE, THE SAME SHOULD BE DELETED. 9. THE LEARNED DR, ON THE OTHER HAND, SUBMITTED TH AT THE LEARNED CIT(A) HAS GIVEN ELABORATE REASONING WH ILE UPHOLDING THE ADDITION MADE BY THE ASSESSING OFFICE R TREATING THE JEWELLERY AS UNEXPLAINED. THEREFORE, THE ORDER OF THE LEARNED CIT(A) SHOULD BE UPHELD. 10. I HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFI CER AND THE CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE AS SESSEE. I HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE ME. I FIND THE ASSESSING OFFICER IN THE INSTANT CASE MADE ADDI TION OF 11 ITA NO.9098/DEL/2019 RS.23,46,108/- U/S 69A R.W.S. 115BBE OF THE ACT ON THE GROUND THAT THE ASSESSEE WAS UNABLE TO EXPLAIN THE SOURCE OF JEWELLERY FOUND FROM THE LOCKER MAINTAINED WITH UNI ON BANK OF INDIA, DELHI. I FIND THE LEARNED CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER, THE REASONS OF WHICH HAVE ALREAD Y BEEN REPRODUCED IN THE PRECEDING PARAGRAPHS. IT IS THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE JE WELLERY FOUND FROM THE LOCKER NOT ONLY BELONGS TO ASSESSEE BUT AL SO BELONGS TO HER HUSBAND, HER MINOR SON, UNMARRIED SISTER-IN-LAW AND LATE MOTHER-IN-LAW. FURTHER, IT IS ALSO HIS SUBMISSION THAT THE JEWELLERY FOUND FROM THE LOCKER IS NOT SUBSTANTIAL AND THE LOWER AUTHORITIES WITHOUT ASSIGNING ANY VALID REASONS AND ON MERE SUSPICION AND SURMISES HAVE MADE THE ADDITION OF RS.23,46,108/- WHICH IS UNCALLED FOR. 11. I FIND SOME FORCE IN THE ABOVE ARGUMENT OF THE LEARNED COUNSEL FOR THE ASSESSEE. IT IS AN ADMITTE D FACT THAT FROM THE DETAILS GIVEN BY THE ASSESSEE JEWELLERY WE IGHING 1302.698GMS VALUED AT RS.39,29,928/- WERE FOUND FRO M THE LOCKER NO.489 MAINTAINED WITH UNION BANK OF INDIA, OUT OF WHICH JEWELLERY VALUED AT RS.23,46,108/- WERE SEIZE D AFTER GIVING DUE CONSIDERATION TO CBDT INSTRUCTION/CIRCUL AR IN 12 ITA NO.9098/DEL/2019 RELATION TO JEWELLERY SEIZURE. I FIND BEFORE THE AS SESSING OFFICER AS WELL AS BEFORE THE LEARNED CIT(A), THE ASSESSEE WAS STATING THAT THE JEWELLERY FOUND FROM THE LOCKER WAS BELONG ING TO THE ASSESSEE CHHABI ANAND, HER HUSBAND MR. SHAIL ANAND, HER MINOR SON TARUSH ANAND, UNMARRIED SISTER-IN-LAW MS. SHIKHA DAVID AND LATE MOTHER-IN-LAW SOBHA DAVID. THE SUBMI SSION OF THE ASSESSEE BEFORE THE LOWER AUTHORITIES THAT THE ADDRESS OF MS. SHIKHA DAVID, THE UNMARRIED SISTER-IN-LAW OF TH E ASSESSEE IS THE SAME AS THAT OF THE ASSESSEE HAS NOT BEEN CO NTROVERTED. MERELY BECAUSE THE HUSBAND OF THE ASSESSEE DID NOT MENTION THE NAME OF MS. SHIKHA DAVID IN HIS STATEMENT RECOR DED U/S 132(4) IN MY OPINION CANNOT BE A GROUND TO DISREGAR D THE CONTENTION OF THE ASSESSEE THAT MS. SHIKHA DAVID WA S STAYING WITH HER IN THE HOUSE BELONGING TO HER MOTHER SHIKH A DAVID WHO IS THE MOTHER-IN-LAW OF THE ASSESSEE. THERE IS NO EVIDENCE ON RECORD BROUGHT BY THE REVENUE THAT MS. SHIKHA DA VID WHO IS UNMARRIED AT THE RELEVANT TIME WAS STAYING ELSEW HERE AND NOT AT HER PARENTAL PROPERTY. UNDER THESE CIRCUMSTA NCES, THE AFFIDAVIT OF SHIKHA DAVID STATING THAT JEWELLERY WE IGHING 468.260GMS WHICH WAS KEPT BY HER IN LOCKER OF HER S ISTER-IN- 13 ITA NO.9098/DEL/2019 LAW FOR SAFE CUSTODY CANNOT BE BRUSHED ASIDE, ESPEC IALLY WHEN THE ENTIRE FAMILY DOESNT HAVE ANY OTHER LOCKER. 12. SIMILARLY, I FIND THE AFFIDAVIT OF THE HUSBAND AND SISTER-IN-LAW OF THE ASSESSEE STATING THAT JEWELLER Y WEIGHING 442.344GMS BELONGING TO THEIR LATE MOTHER MRS. SOBH A DAVID I.E. MOTHER-IN-LAW OF THE ASSESSEE WAS REJECTED BY THE LEARNED CIT(A) ON THE GROUND THAT THERE IS NO CREDIBLE OR R ELIABLE DOCUMENTARY EVIDENCE. IN MY OPINION, THERE CANNOT BE ANY CREDIBLE OR RELIABLE EVIDENCE EXCEPT THE AFFIDAVIT OF THE CHILDREN OF THE DECEASED PERSON IN SUCH CASES. ALTHOUGH, IT MAY NOT BE ACCEPTED IN TOTO HOWEVER THE SAME ALSO CANNOT BE REJECTED IN TOTO . THEREFORE, CONSIDERING THE CBDT INSTRUCTION/CIRCU LAR 1916 DATED 11.05.1996 IF THE BENEFIT OF 500GMS OF EVERY MARRIED WOMAN, 250GMS FOR UNMARRIED WOMAN AND 100GMS JEWELL ERY FOR EVERY MALE MEMBER OF THE FAMILY IS ALLOWED THEN ENTIRE JEWELLERY FOUND FROM THE LOCKER STANDS EXPLAINED. 13. I FIND THE CO-ORDINATE BENCH OF THE TRIBUNAL I N THE CASE OF SUNEELA SONI (SUPRA) AFTER CONSIDERING THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF ASHOK C HADHA VS ITO, IN ITA NO.274/2011, ORDER DATED 05/07/2011 HAS OBSERVED AS UNDER:- 14 ITA NO.9098/DEL/2019 6. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS, ESPECIALLY THE ORDERS OF THE AUTHORITIES BELOW AND THE CASE LAWS REFERRED BY ASSESSEES COUNSEL. I FIND THAT AS SESSEES COUNSEL DURING THE HEARING HAS FILED A PAPER BOOK CONTAINING PAGES 1 TO 50 WHICH IS A COPY OF PANCHNA MA IN THE NAME OF SH. SANJIV SONI ALONGWITH ANNEXURES WHI CH INCLUDES LIST OF INVENTORY OF OTHER VALUABLES, LOCK ER KEYS , FDR ETC.; COPY OF INVENTORY OF CASH FOUND BUT NOT S EIZED; REPORT OF VALUATION OF JEWELLERY; (PG. 1 TO 8-PB); COPY OF REVOCATION ORDER OF SMT. SUNEELA SONI; COPY OF PANC HANAME IN THE NAME OF SMT. SUNEELA SONI ALONGWITH REPORT O F VALUATION OF JEWELLERY; COPY OF REVOCATION ORDER OF SH. SAJEEV SONI; COPY OF PANCHANAM IN THE NAME OF SH. SANJIV S ONI ALONGWITH ANNEXURES WHICH INCLUDES LIST INVENTORY O F BOOKS OF ACCOUNT, DOCUMENTS FOUND AND SEIZED; COPY OF INV ENTORY OF CASH FOUND BUT NOT SEIZED; REPORT OF VALUATION O F JEWELLERY; COPY OF REPLY FILED BY THE ASSESSEE BEFO RE ACIT; COPY OF REPLY FILED BY THE ASSESSEE BEFORE DCIT; CO PY OF SUBMISSION BEFORE CIT(A) ALONGWITH COPY OF AFFIDAVI T OF SMT. SUNEELA SONI AND DETAILS OF JEWELLERY OF IN LOCKERS ; COPY OF AFFIDAVIT PURCHASED BY SH. SHIV SUNDER SONI, SON OF LATE SH. MG SONI ALONGWITH DETAILS OF JEWELLERY IN LOCKERS; COPY OF JUDGMENT OF HONBLE RAJASTHAN HIGH COURT IN THE CAS E OF RADHA KISHAN SONI VS. CIT REPORTED IN 277 ITR 56 AN D COPY OF JUDGMENT OF HONBEL HIGH COURT OF DELHI IN THE C ASE OF ASHOK CHADHA VS. ITO REPORTED IN 14 TAXMANN.COM 57 (DELHI.) INVENTORY OF OTHER VALUABLES, LOCKER KEYS , FDR ETC.; COPY OF INVENTORY OF CASH FOUND BUT NOT SEIZED; REP ORT OF VALUATION OF JEWELLERY. I FIND THAT AO HAS MADE THE ADDITION OF RS. 10,65,312.00 ON ACCOUNT OF PURPORTED UNEXPLA INED JEWELERY CLAIMED BY THE ASSESSEE WITHOUT APPRECIATI NG THE FACT THAT THE JEWELERY FOUND DURING THE COURSE OF S EARCH AND SEIZURE OPERATIONS WAS FROM THE LOCKER HELD BY THE FATHER IN LAW AND HUSBAND OF THE ASSESSEE AND HENCE THE ADDIT ION IN THE HANDS OF THE ASSESSEE IS UNCALLED FOR. IT WAS N OTED THAT JEWELLERY FOUND FROM THE JOINT LOCKERS WAS EXPLAINE D TO BE BELONGING TO LATE MOTHER IN LAW OF THE ASSESSEE SMT . SARITA SONI, HOWEVER, THE AO HAS REJECTED THIS CONTENTION. IT IS FURTHER NOTED THAT ASSESSEES BELONGS TO JOINT FAMI LY AND IT IS UNDISPUTED POSITION THAT MARRIAGES OF MOTHER IN LAW HAD 15 ITA NO.9098/DEL/2019 TAKEN PLACE 53 YEARS PRIOR TO THE SEARCH AND MARRIA GE OF THE ASSESSEE HAD TAKEN PLACE 20 YEARS. I FURTHER NOTE T HAT THE HONBLE HIGH COURT OF DELHI IN THE CASE OF ASHOK CH ADHA VS. ITO REPORTED IN 14 TAXMANN.COM 57 (DELHI.)/202 TAXM ANN 395 HAS ACCEPTED THE JEWELLERY OF 906.60 GRAMS IN T HE CASE OF MARRIED LADY EVEN WITHOUT DOCUMENTARY EVIDENCE A S THE DENYING THE EXPLANATION WOULD TANTAMOUNT TO OVERLOO KING THE REALITIES OF LIFE BY HOLDING AS UNDER:- 'AS FAR AS ADDITION QUA JEWELLERY IS CONCERNED, DUR ING THE COURSE OF SEARCH, JEWELLERY WEIGHING 906.900 GRAMS OF THE VALUE AMOUNTING TO RS. 6,93,582 WAS FOUND. THE APPELLANT'S EXPLANATION WAS THAT HE WAS MARRIED ABO UT 25 YEARS BACK AND THE JEWELLERY COMPRISED 'STREEDHAN' OF SMT. JYOTI CHADHA, HIS WIFE AND OTHER SMALL ITEMS JEWELL ERY SUBSEQUENTLY PURCHASED AND ACCUMULATED OVER THE YEA RS. HOWEVER, THE ASSESSING OFFICER DID NOT ACCEPT THE A BOVE EXPLANATION ON THE GROUND THAT DOCUMENTARY EVIDENCE REGARDING FAMILY STATUS AND THEIR FINANCIAL POSITIO N WAS NOT FURNISHED BY THE APPELLANT. THE ASSESSING OFFICER A CCEPTED 400 GRAMS OF JEWELLERY AS EXPLAINED AND TREATED JEW ELLERY AMOUNTING TO 506.900 GRAMS AS UNEXPLAINED AND MADE AN AD HOC ADDITION OF RS. 3,87,364 UNDER SECTION 69A O F THE ACT WORKING ON UNEXPLAINED JEWELLERY, BY APPLYING A VERAGE RATE OF THE TOTAL JEWELLERY FOUND. THE RELEVANT POR TION OF THE ASSESSMENT ORDER READS AS FOLLOWS:- 'A VERY REASONABLE ALLOWANCE OF OWNERSHIP OF GOLD JEWELLERY TO THE EXTENT OF 400 GRAMS IS CONSIDERED REASONABLE AND THE BALANCE QUANTITY OF 506 GRAMS BY APPLYING AVERAGE RATE, THE UNEXPLAINED GOLD JEWELLE RY IS CONSIDERED AT RS. 3,87,364 (506/900 X 6,93,582) U/S 69A OF THE ACT.' THE CIT (A) CONFIRMED THIS ADDITION STATING THAT TH E ASSESSING OFFICER HAD BEEN FAIR IN ACCEPTING THE PA RT OF JEWELLERY AS UNEXPLAINED. THE ITAT HAS ALSO ENDORSE D THE AFORESAID VIEW. LEARNED COUNSEL FOR APPELLANT M S. KAPILA SUBMITTED THAT THERE WAS NO BASIS FOR THE ASSESSING OFFICER TO ACCEPT THE OWNERSHIP OF THE GO LD JEWELLERY TO THE EXTENT OF 400 GRAMS ONLY AS 16 ITA NO.9098/DEL/2019 'REASONABLE ALLOWANCE' AND TREAT THE REMAINING JEWELLERY OF RS. 506.900 AS UNEXPLAINED. SHE ALSO SUBMITTED THAT ANOTHER GLARING FACT IGNORED BY THE ASSESSING OFFICER AS WELL AS OTHER AUTHORITIES WAS THAT AS THE DEPARTMENT HAD CONDUCTED A SEARCH OF ALL THE FINANCIAL DEALINGS WHICH WERE WITHIN HIS KNOWLEDGE AND NO PAPER OR DOCUMENT WAS FOUND TO INDICATE THAT THIS JEWELLERY BELONGED TO THE APPELLANT AND THAT I T WAS UNDISCLOSED INCOME OF THE ASSESSMENT YEAR 2006-07. IN A SEARCH OPERATION, NO SCOPE IS LEFT WITH THE TA X DEPARTMENT TO MAKE ADDITION ON SUBJECTIVE GUESS WOR K, CONJECTURES AND SURMISES. IT WAS ALSO ARGUED THAT JEWELLERY IS 'STREEDHAN' OF THE ASSESSEE'S WIFE, EVIDENCED IN THE FORM OF DECLARATION WHICH WAS FURNISHED BY MOTHER-IN-LAW OF THE ASSESSEE STATING THAT SHE HAD GIVEN THE JEWELLERY IN QUESTION TO HER DAUGHTER. SHE ARGUED THAT IT IS A NORMAL CUSTOM FOR A WOMAN TO RECEIVE JEWELLERY IN THE FORM OF MARRIAGE AND OTHER OCCASIONS SUCH AS BIRTH OF A CHILD. THE ASSES SEE HAD BEEN MARRIED MORE THAN 25-30 YEARS AND ACQUISITION OF THE JEWELLERY OF 906.900 GRAMS COULD NOT BE TREATED AS EXCESSIVE. 3. LEARNED COUNSEL FOR THE RESPONDENT ON THE OTHER HAND RELIED UPON THE REASONING GIVEN BY THE AUTHORI TIES BELOW. AFTER CONSIDERING THE AFORESAID SUBMISSIONS WE ARE OF THE VIEW THAT ADDITION MADE IS TOTALLY ARBIT RARY AND IS NOT FOUNDED ON ANY COGENT BASIS OR EVIDENCE. WE HAVE TO KEEP IN MIND THAT THE ASSESSEE WAS MARRIED FOR MORE THAN 25-30 YEARS. THE JEWELLERY IN QUESTION IS NOT VERY SUBSTANTIAL. 'THE LEARNED COUN SEL FOR THE APPELLANT/ASSESSEE IS CORRECT IN HER SUBMIS SION THAT IT IS A NORMAL CUSTOM FOR WOMAN TO RECEIVE JEWELLERY IN THE FORM OF 'STREEDHAN' OR ON OTHER OCCASIONS SUCH AS BIRTH OF A CHILD ETC. COLLECTING JEWELLERY OF 906.900 GRAMS BY A WOMAN IN A MARRIED LIFE OF 25-30 YEARS IS NOT ABNORMAL. FURTHERMORE, T HERE WAS NO VALID AND/OR PROPER YARDSTICK ADOPTED BY THE ASSESSING OFFICER TO TREAT ONLY 400 GRAMS AS 'REASONABLE ALLOWANCE' AND TREAT THE OTHER AS 17 ITA NO.9098/DEL/2019 'UNEXPLAINED'. MATTER WOULD HAVE BEEN DIFFERENT IF THE QUANTUM AND VALUE OF THE JEWELLERY FOUND WAS SUBSTANTIAL. 4. WE ARE, THEREFORE, OF THE OPINION THAT THE FINDI NGS OF THE TRIBUNAL ARE TOTALLY PERVERSE AND FAR FROM THE REALITIES OF LIFE. IN THE PECULIAR FACTS OF THIS CA SE WE ANSWER THE QUESTION IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE THEREBY DELETING THE AFORESAID ADDITION OF RS. 3,87,364. 5. APPEAL IS ALLOWED IN THE AFORESAID TERMS.' 13. RESPECTFULLY FOLLOWING THE DECISION OF THE CO- ORDINATE BENCH OF THE TRIBUNAL CITED (SUPRA), I AM OF THE OP INION THAT THE EXPLANATION GIVEN BY THE ASSESSEE REGARDING THE SOU RCE OF JEWELLERY FOUND FROM THE LOCKER IS ACCEPTABLE. ACC ORDINGLY, THE ORDER OF THE LEARNED CIT(A) IS SET-ASIDE AND THE GR OUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 14. IN THE RESULT, THE APPEAL FILED BY THE ASSESSE E IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.09.2021. SD/- SD/- [KUL BHARAT] [R.K.PANDA] JUDICIAL MEMBER ACCOUNTANT MEMBER DELHI; DATED: 30 TH SEPTEMBER, 2021 F{X~{T? F{X~{T? F{X~{T? F{X~{T? FA FA FA FA P.S P.SP.S P.S COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 18 ITA NO.9098/DEL/2019 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI