DCIT CEN CIR 33, MUMBAI V. RAJENDRA P. DOSHI, MUMBAI

ITA 973/MUM/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8375 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 27-11-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 05-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JEETENDRA KUMAR
• Assessee Lawyers: S ATISH CHANDAK
• Keywords: Gift; Search and seizure
• Section: 2

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BE NCH, MUMBAI , !' #$% , !& ! ' BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./I .T.A. NO. 973/MUM/2013 ( ( ( ( ( / ASSESSMENT YEAR : 2010-11 THE DY. CIT, CC.33, AAYAKAR BHAVAN, MUMBAI-400 020 / VS. SHRI RAJENDRA P. DOSHI, 902, 9 TH FLOOR, TRIDEV TOWERS, NEAR KAMGAR HOSPITAL, KADAMPADA, MULUND (W), MUMBAI-400 080 ) !& ./ * ./ PAN/GIR NO. : AABPD 1983C ( )+ / APPELLANT ) .. ( ,-)+ / RESPONDENT ) )+ . ! / APPELLANT BY: SHRI JEETENDRA KUMAR ,-)+ / . ! / RESPONDENT BY: SHRI SATISH CHANDAK / 0& / DATE OF HEARING :27.11.2014 12( / 0& / DATE OF PRONOUNCEMENT :27.11.2014 !3 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS PREFERRED AGAINST TH E ORDER OF THE LD. CIT(A)-41, MUMBAI DT.1.11.2012 PERTAINING TO A. Y.2010-11. 2. THE SOLE GRIEVANCE OF THE REVENUE IS THAT THE L D. CIT(A) ERRED IN DELETING THE ADDITION OF RS. 23,03,260/- ON ACCOUN T OF EXCESS JEWELLERY ITA NO. 973/M/2013 2 FOUND U/S. 69A OF THE ACT. IT IS THE CLAIM OF THE REVENUE THAT THE LD. CIT(A) ERRED IN RELYING ON CBDT INSTRUCTION NO. 191 6 DT. 11.5.1994. 3. THE ASSESSEE IS INDIVIDUAL DERIVING DIRECTOR REM UNERATION, INCOME FROM PARTNERSHIP FIRM AND INCOME FROM OTHER SOURCES . DURING THE COURSE OF SEARCH AND SEIZURE ACTION AT THE RESIDENCE OF T HE ASSESSEE INTER ALIA JEWELLERY VALUED AT RS. 25,51,297/- WAS FOUND . TH E ASSESSEE WAS ASKED TO EXPLAIN THE SAME. THE ASSESSEE FILED A DETAILED REPLY ON 5.9.2011 WHICH READS AS UNDER: WITH REFERENCE TO THE ABOVE AND UNDER THE INSTRUCT IONS FROM OUR ABOVE REFERRED CLIENT WE BEG TO STATE THAT OUR ABOVE REFERRED CLIENT IS IN RECEIPT OF YOUR NOTICE DT. 12 TH JULY, 2011 IN WHICH YOUR HONOUR HAD ASKED TO FURNISH EXPLANATI ON IN RESPECT OF THE JEWELLERY OF RS. 25,51,297/- FOUND D URING THE COURSE OF SEARCH PROCEEDINGS ON 15/09/2009 AT RESID ENTIAL PREMISES OF THE ASSESSEE. IN THIS RESPECT WE WOULD LIKE TO STATE THAT THE SAID JEWELLERY BELONGS TO THE ASSESS EE, HIS WIFE PARENTS AND DAUGHTERS. THE JEWELLERY WEIGHING TO 1 573.40 GMS WAS FOUND FROM RESIDENCE OF THE ASSESSEE. THE JEWELLERY SO FOUND WAS RECEIVED AS GIFT AT THE TIME OF MARRIAGE OF THE ASSESSEE FROM PARENTS, RELATIVES & FRIENDS AND ALSO AT THE TIME OF MEETING WITH RELATIVES ON T HE VARIOUS AUSPICIOUS OCCASIONS SUCH AS DIWALI, RAKSHA BANDHAN , BIRTH OF CHILDREN, BIRTHDAYS ETC. THE WORKING OF J EWELLERY FOUND DURING THE COURSE OF SEARCH PROCEEDINGS AND EXPLANATION THEREOF IS ENCLOSED, MARKED AS ANNEXUR E-A. WE FURTHER STATE THAT TOTAL JEWELLERY FOUND DURING THE COURSE OF SEARCH WAS 1573.40 GMS WHICH IS LESS THAN THE EX EMPT LIMIT AS PER INSTRUCTION NO. 1916 DT. 11.5.1994 ISS UED BY THE CBDT WHICH COMES TO 1950 GMS. WE ALSO STATE THAT THE SOURCE OF THE JEWELLERY HAS ALREADY BEEN EXPLAINED TO THE CONCERN DDIT AT THE TIME OF S EARCH AND HE WAS FULLY SATISFIED ABOUT THE SOURCE OF THE JEWELLERY AND NO JEWELLERY WAS SEIZED. ITA NO. 973/M/2013 3 4. THE AO DECLINED TO FOLLOW THE CBDT INSTRUCTION N O. 1916 DT. 11.5.1994 STATING THAT THE SAME HAS BEEN ISSUED BY THE BOARD FOR INTERNAL CIRCULATION AND GUIDANCE OF AUTHORISED OFFICERS AT SEARCH PREMISES FOR ARRIVING AT DECISION ABOUT SEIZURE OF JEWELLERY TO BE MADE. ACCORDING TO THE AO SUCH INSTRUCTION CANNOT BE APPLIED TO QUANTI FICATION OF EXCESS JEWELLERY WITH REGARD TO THE JEWELLERY ALREADY DISC LOSED. THE AO PROCEEDED BY MAKING ADDITION U/S. 69A OF THE I.T. A CT AND ADDED RS. 25,51,297/- TO THE INCOME RETURNED. 5. AGGRIEVED BY THIS, THE ASSESSEE CARRIED THE MATT ER BEFORE THE LD. CIT(A) AND REITERATED HIS CLAIM. AFTER CONSIDERI NG THE FACTS AND THE SUBMISSIONS AND THE CBDT INSTRUCTION NO. 1916 DT. 1 1.5.1996 AND FOLLOWING CERTAIN JUDICIAL DECISION, THE LD. CIT(A) DELETED THE ADDITION. 6. AGGRIEVED BY THIS, REVENUE IS BEFORE US. 7. THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY REL IED UPON THE FINDINGS OF THE AO. 8. PER CONTRA, LD. COUNSEL FOR THE ASSESSEE REITERA TED WHAT HAS BEEN SUBMITTED BEFORE THE LOWER AUTHORITIES. 9. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTH ORITIES BELOW. THE CLAIM OF THE ASSESSEE IS THAT THE ISSUE IS SQUARELY COVERED BY THE CBDT INSTRUCTION NO. 1916 DT. 11.5.1994. THE HONBLE GU JARAT HIGH COURT IN THE CASE OF CIT VS RATANLAL VYAPARILAL JAIN 235 CT R 568 HAS HELD AS UNDER: ITA NO. 973/M/2013 4 THUS ALTHOUGH THE CIRCULAR HAD BEEN ISSUED FOR THE PURPOSE OF NON-SEIZURE OF JEWELLERY DURING THE COUR SE OF SEARCH, THE BASIS FOR THE SAME RECOGNIZES CUSTOMS P REVAILING IN HINDU SOCIETY. IN THE CIRCUMSTANCES, UNLESS THE REVENUE SHOWS ANYTHING TO THE CONTRARY, IT CAN SAFELY BE PR ESUMED THAT THE SOURCE TO THE EXTENT OF THE JEWELLERY STAT ED IN THE CIRCULAR STANDS EXPLAINED. 10. A SIMILAR VIEW HAS BEEN TAKEN BY THE TRIBUNAL M UMBAI BENCH IN THE CASE OF KISHINCHAND UTTAMCHANDANI VS DCIT IN IT (SS)A/MUM/77 ORDER DT. 30 TH SEPTEMBER, 2011. ALL THESE JUDICIAL DECISIONS HAV E BEEN CONSIDERED BY THE LD. CIT(A). WE, THEREFORE, DO NO T FIND ANY REASON TO INTERFERE WITH THE FINDINGS OF THE LD. CIT(A). 11. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 27 TH NOVEMBER, 2014. SD/- SD/- (VIJAY PAL RAO ) (N.K. BILLAIYA) /JUDICIAL MEMBER !& / ACCOUNTANT MEMBER MUMBAI; 4 DATED : 27 TH NOVEMBER, 2014 . . ./ RJ , SR. PS ITA NO. 973/M/2013 5 !3 !3 !3 !3 / // / ,0 ,0 ,0 ,0 5!(0 5!(0 5!(0 5!(0 / COPY OF THE ORDER FORWARDED TO : 1. )+ / THE APPELLANT 2. ,-)+ / THE RESPONDENT. 3. 6 ( ) / THE CIT(A)- 4. 6 / CIT 5. 78 ,0 , , / DR, ITAT, MUMBAI 6. 8 9 / GUARD FILE. !3 !3 !3 !3 / BY ORDER, -0 ,0 //TRUE COPY// : :: : / ; ; ; ; (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI