Shri Rajen P.Shah, Surat V. The Dy.CIT.,Cent.Circle-1, Surat

ITSSA 221/AHD/2012

• Counselvise Citation: [2012] 121 COUNSELVISE.COM (IT) 8069 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 05-07-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 05-07-2012
• Assessment Year: 2009-2010
• Appeal Filed On: 02-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA
• Keywords: Gift; Search and seizure
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH AHMEDABAD BEFORE SHRI D.K.TYAGI , JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ITA(SS)NO. 221/AHD/2012 ASSESSMENT YEAR :2009-10 SHRI RAJEN P. SHAH 2, AMI BUNGALOW, NEAR UMRA POLICE STATION, ATHWALINES, SURAT-395007 V/S . THE D.C.I.T. CENTRAL CIRCLE 1, SURAT. PAN NO. AHHPS2742B (APPELLANT) .. (RESPONDENT) ITA(SS)NO. 222/AHD/2012 ASSESSMENT YEAR :2009-10 SHRI MITA R. SHAH 2, AMI BUNGALOW, NEAR UMRA POLICE STATION, ATHWALINES, SURAT-395007 V/S . THE D.C.I.T. CENTRAL CIRCLE 1, SURAT. PAN NO. AHHPS2741J (APPELLANT) .. (RESPONDENT) BY APPELLANT SHRI JAIMIN GANDHI, A.R. /BY RESPONDENT SHRI C.K. MISHRA, SR.D.R. /DATE OF HEARING 05.07.2012 /DATE OF PRONOUNCEMENT 05.07.2012 O R D E R PER : T.R.MEENA, ACCOUNTANT MEMBER THESE ARE TWO APPEALS AT THE BEHEST OF TWO ASSESSEE S WHICH HAVE EMANATED FROM THE ORDERS OF CIT(A)-II, AHMEDABAD, D ATED 17.01.2012 FOR ASSESSMENT YEAR 2009-10. BOTH ASSESSES ARE FAMILY MEMBERS AND ISSUES OF ITA(SS)NO. 221 & 222/AHD/2012 A.Y. 09-10 PAGE 2 THEIR APPEALS ARE COMMON. SO, BOTH APPEALS WERE HE ARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR T HE SAKE OF CONVENIENCE. THE SOLE GROUND OF APPEAL WAS CONFIRMING THE ADDITI ONS OF RS.1,47,846 IN CASE OF SHRI RAJEN P. SHAH AND RS.4,26,600/- IN CAS E OF SMT. MITA R. SHAH U/S 69 A OF THE IT ACT. 2. THE FACTUAL MATRIX OF THE CASE IS THAT THERE WAS A SEARCH AND SEIZURE OPERATION AT THE RESIDENCE PREMISES OF RAJAN P. SHA H. DURING THE COURSE OF SEARCH, JEWELLERY WEIGHING 2735.45 GM. IN TOTAL WAS FOUND FROM THE DIFFERENT PLACES OF THE ASSESSEE. THE A.O. HAD GIVEN REASONA BLE OPPORTUNITY AT THE TIME OF ASSESSMENT. THE ASSESSEES REPLIES WERE NO T FOUND CONVINCING TO THE A.O. AS THEY COULD NOT EXPLAIN THE JEWELLERY WITH E VIDENCES. THEREFORE, HE MADE ADDITION OF RS.1,47,846 IN CASE OF SHRI RAJEN P. SHAH AND RS.4,26,600/- IN CASE OF SMT. MITA R. SHAH ON ACCOUNT OF UNEXPLAI NED JEWELLERY U/S 69 A OF THE IT ACT. 3. BEING AGGRIEVED BY THE ORDERS OF THE A.O., THE A SSESSEES CARRIED THE MATTER BEFORE THE CIT(A) WHO HAS CONFIRMED THE ADDI TION IN BOTH THE CASES ON THE GROUND THAT NO EVIDENCE HAS BEEN FURNISHED BEFO RE THE A.O. AS WELL AS BEFORE HIM THAT THE INVENTORY OF THE VALUER WAS SAM E AS PER THE WEIGHT AND DESCRIPTION OF THE JEWELLERY DISCLOSED IN THE BOOK S OF ACCOUNT. THE INVENTORY PREPARED BY THE VALUER IN THE PRESENCE OF THE ASSES SEE AND TWO INDEPENDENT WITNESSES AND NO OBJECTION WAS FILED DURING THE CO URSE OF SEARCH PROCEEDING AS WELL AS AFTER CONCLUSION OF THE SEARCH BEFORE TH E A.O. IN CASE OF SMT. MITA R. SHAH, THE ASSESSEE TOOK THE PLEA BEFORE THE A.O. THAT RED CHOWKI SET WAS ITA(SS)NO. 221 & 222/AHD/2012 A.Y. 09-10 PAGE 3 RECEIVED FROM HER MOTHER AND MANY ITEMS WERE RECEIV ED IN GIFTS FROM MOTHER. THE LD. CIT(A) ALSO OBSERVED THAT CBDT INSTRUCTION NO. 1916 DATED 11.05.1994 HAD BEEN CONSIDERED BY THE AUTHORIZED OF FICER AT THE TIME OF SEIZURE OF THE JEWELLERY. THE EXPLANATIONS OF VARI OUS ITEMS OF JEWELLERY SHOWN IN THE INVENTORY HAD ALSO NOT BEEN EXPLAINED BEFORE THE A.O. WITH EVIDENCE. THEREFORE, HE CONFIRMED THE ADDITION IN CASE OF RAJ EN P. SHAH RS.1,47,846 AND IN CASE OF SMT. MITA R. SHAH RS.4,26,600/-. 4. NOW THE APPELLANTS ARE BEFORE US. THE LD. COUNS EL FOR THE APPELLANTS FILED THE COPY OF THE WRITTEN SUBMISSION MADE BEFOR E THE CIT(A), THE COPY OF THE INVENTORY OF JEWELLERY SEIZED DURING THE COURSE OF SEARCH AND CHART SHOWING JEWELLERY AS PER BOOK AND AS PER VALUERS IN VENTORY. HE ALSO FILED COPY OF THE CO-ORDINATE B BENCH DECISION IN CASE OF SMT. NEETA SUDARSHAN AMIN VS. ACIT IN ITA NO. 2343/AHD/2009 FOR A.Y. 06-07, IN CASE OF THE ACIT VS. SHRI BHARATBHAI A. PATEL IN ITA NO.2610/AHD/2009 FOR A.Y.06-07 & IN CASE OF SHRI ASHOK HARLALKA VS. THE ACIT IN ITA NOS. 554 & 555/MDS/2010 FOR A.YS. 05-06 & 07-08 RESPECTIVELY IN CASE OF RAJEN P. SHAH & IN CASE OF SMT. MANIBEN O. DER VS. DCIT IN IT(SS)A NO. 155/AHD/2002 FOR A.Y. 1990-91 TO 1999-2000 AND UPTO 29-10-1999 IN CASE OF SMT. MITA R. SHAH . THE MAIN PLANK OF ARGUMENT WAS THAT THE JEWELLERY VALUED BY THE VALUER DURING THE COURSE OF SEARCH HAS NOT WEIGHED CORRECTLY AND LD. A.O. HAD NOT VERIFIED THE JEWELLERY FROM THE JEWELLERY DISCLOSED IN THE BOOKS OF ACCOUNT CORRECTLY. HE FURTHER CLAIMED THAT THERE IS NO DIFFERENCE BETWEEN JEWELLERY FOUND DURING THE COURSE OF SEARCH AND JEWELLERY SHOWN IN THE BOOKS O F ACCOUNT BY THE ITA(SS)NO. 221 & 222/AHD/2012 A.Y. 09-10 PAGE 4 ASSESSEES. LD. COUNSEL FOR THE ASSESSES ALSO ARGUE D THAT BENEFIT OF THE INSTRUCTION NO. 1916 DATED 11.05.1994 OF CBDT WAS N OT GIVEN TO THE ASSESSEE. 5. ANOTHER SIDE, LD. D.R. RELIED UPON THE ORDERS OF THE A.O. AND CIT(A). 6. WE HAVE PERUSED THE ORDERS OF THE AUTHORITIES BE LOW AND SUBMISSIONS OF THE ASSESSES. THE INVENTORY OF JEWELLERY PREPAR ED DURING THE COURSE OF SEARCH BY VALUER IN THE NAME OF SHRI RAJEN P. SHAH AND SMT. MITA R. SHAH WHEREAS IT WAS CLAIMED BEFORE THE A.O. THAT IT BELO NGED TO VARIOUS FAMILY MEMBERS OF THE ASSESSES. BUT THE APPELLANTS HAD NO T GIVEN ANY DETAILS OF JEWELLERY PERSONWISE AS TO WHAT HAS BEEN SHOWN IN T HE BOOKS OF THE ACCOUNT WITH DESCRIPTION AND WEIGHT. THEREFORE, THE MATTER IS SET ASIDE TO THE A.O. FOR VERIFICATION OF ASSESSEES CLAIM AND CONSIDER THE E VIDENCE FILED BY THE ASSESSEE BEFORE THE CIT(A) AND US. THE A.O. IS ALS O DIRECTED TO CONSIDER THE INSTRUCTION NO.1916 DATED 11.05.1994 AT THE TIME OF RE-ASSESSMENT. 7. IN THE RESULT, THE ASSESSEES APPEALS ARE ALLOWE D FOR STATISTICAL PURPOSE. THIS ORDER PRONOUNCED IN OPEN COURT ON 05.07.2012 SD/- SD/- ( D.K.TYAGI ) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S.K.SINHA ! ! ! ! '! '! '! '! / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '(' ) * / CONCERNED CIT 4. *- / CIT (A) 5. !./ ), ) , 12( / DR, ITAT, AHMEDABAD ITA(SS)NO. 221 & 222/AHD/2012 A.Y. 09-10 PAGE 5 6. /45 67 / GUARD FILE. BY ORDER/ , 8/ 1 ': ) , 12( ; STRENGTHEN PREPARATION & DELIVERY OF ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 01.08.2012 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE XXX 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 02.08.2012 4) DATE OF CORRECTION ,, ,, 5) DATE OF FURTHER CORRECTION XXX 6) DATE OF INITIAL SIGN BY MEMBERS 07.08.2012 7) ORDER UPLOADED ON ,, ,, 8) ORIGINAL DICTATION PAD HAS BEEN ENCLOSED IN THIS FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 07.08.2012