Shri Sohan Lal Sisodia Prop. M/s. Sohan Lal Prakash Chand Sisodia, UDAIPUR V. ACIT, UDAIPUR

ITSSA 3/JODH/2012

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 9628 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 13-11-2013
• Assessment Year: misc
• Appeal Filed On: 21-03-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR DEEPAK SEHGAL
• Keywords: Unexplained investment
• Section: 133A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER IT(SS)A NO.03/JODH/2012 BLOCK PERIOD: 1989-90 TO 1998-99 SHRI SOHAN LAL SISODIA, VS. ASST. COMMISSIONER O F INCOME TAX, PROP. M/S. SOHAN LAL PRAKSH CHAND CIRCLE-2, UDAIPU R . SISODIA, C/O. SHRI PRAKASH JAVARIA, ADVOCATE, RAJASTHAN HIGH COURT, 1 ST FLOOR, 109 SAMRIDHI COMPLEX, OPP. KRISHI UPAJ MANDI, UDAIPUR. (PAN: S-782/C-2). (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : DR. DEEPAK SEHGAL, CIT (D.R.) DATE OF HEARING : 13.11.2013 DATE OF PRONOUNCEMENT : 29.11.2013 ORDER PER HARI OM MARATHA, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A), UDAIPUR DATED 09.01.2012. 2 IT(SS)A NO.03/JODH/2012 BLOCK PERIOD: 1989-90 TO 1998-99 2. THIS APPEAL EMANATES FROM ORDER PASSED FOR THE L OCK PERIOD COMPRISING OF A.YS. 1989-90 TO 1998-99 AND UPTO 18.12.1998 PASSED UNDER SECTION 158BB/158BC OF THE INCOME TAX ACT, 1961 (THE ACT FOR SHORT) BY THE ACIT, UDAIPUR. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE, AS INDIVIDUAL, DERIVED INCOME FROM PURCHASE AND SALE OF GOLD AND S ILVER JEWELLERY IN THE NAME AND STYLE OF M/S. SOHAN LAL PRAKASH CHAND SISODIA. A SEARCH UNDER SECTION 133A OF THE ACT WAS CONDUCTED AT THE BUSINESS PREMISES O F THE ASSESSEE ON 17.12.1998. SUBSEQUENTLY THE SURVEY WAS TRAVELLED INTO ACTION U NDER SECTION 132 OF THE ACT ON THE RECOMMENDATION OF THE SURVEY TEAM. DURING THE COURSE OF SURVEY VARIOUS INCRIMINATING EVIDENCES INCLUDING VALUABLES LIKE GO LD/SILVER JEWELLERY, CASH ETC. WERE FOUND, APART FROM OTHER PAPERS/DOCUMENTS. THE INCRIMINATING EVIDENCES DURING THE SEARCH WERE SEIZED. THE ASSESSEE WAS RE QUIRED TO FILE RETURN OF UNDISCLOSED INCOME UNDER SECTION 158BC OF THE ACT A T RS.23,82,135/-. HOWEVER, THE A.O. HAS DETERMINED THE ASSESSEES UNDISCLOSED INCOME AT RS.44,64,732/-. AGGRIEVED, THE ASSESSEE WENT IN APPEAL BEFORE LD. C IT(A) WHO HAS GIVEN A PART RELIEF . AGAINST THE SUSTAINED ADDITION, THE ASSES SEE IS IN SECOND APPEAL BY RAISING THE FOLLOWING GROUNDS WHICH WERE AMENDED ON 08.08.2 013 1. THAT UNDER THE FACTS AND CIRCUMSTANCE OF THE CA SE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS), UDAIPUR HAS G ROSSLY ERRED IN PARTLY ALLOWING THE APPEAL AND CONFIRM THE UNDISCLO SED INCOME OF THE 3 IT(SS)A NO.03/JODH/2012 BLOCK PERIOD: 1989-90 TO 1998-99 OTHER FAMILY MEMBERS ASSESSED IN THE HAND OF THE AS SESSEE AND THUS, DISMISSED THE APPEAL WITHOUT ANY JUSTIFICATION. AS FOLLOWED: NAME FOUND IN GRAMS UNEXPLAINED TREATMENT BY A.O. UNEXPLAINED TREATMENT BY CIT(A) SMT. JYOTI SISODIA 1010 510 110 SMT. KUSUM SISODIA 683 183 183 SMT. ANOKA SAISODIA 952 702 702 TOTALLING TO 995 GRAMS GOLD AS UNEXPLAINED AND VALU ED @ 277.90 PER GRAM AMOUNTING TO RS.2,76,510/-. 2. THAT THE LD. CIT HAS ERRED IN NOT ALLOWING THE 2 00 GRAM GOLD JEWELLERY FOUND IN THE POSSESSION OF SMT. ANOKHA DE VI SISODIA AND THE THEN LD. CIT HAS ALREADY ALLOWED IN APPEAL ORDER DA TED 15.11.2000. 3. THAT THE ALLOWED CIT HAS ERRED IN CONFIRMING THE CHARGING OF INTEREST U/S 158BFA(1). 4. THAT THE ORDER IS BAD IN LAW. 4. THE RELEVANT FACTS ARE THAT DURING THE COURSE OF SEARCH TOTAL GOLD JEWELLERY WEIGHING 2671 GRAMS WERE FOUND AT THE RESIDENCE OF THE ASSESSEE. THE ASSESSEE WAS REQUIRED TO GIVE EXPLANATION AND TELL THE SOURC E OF ACQUISITION OF THIS JEWELLERY. THE ASSESSEE FILED HIS EXPLANATION AND AFTER CONSID ERING THE SAME THE A.O. TREATED PART OF THE JEWELLERY AS EXPLAINED AND REMAINING AS UNEXPLAINED. THE A.O. HAS VALUED GOLD JEWELLERY AT THE RATE OF RS.4,320/- PER 10 GRAMS. THE ASSESSEE BEING AGGRIEVED, FILED APPEAL BEFORE THE LD. CIT(A) WHO P ARTLY ALLOWED THE APPEAL. AGAINST THIS RELIEF, THE DEPARTMENT WENT IN FURTHER APPEAL BEFORE THE APPELLATE TRIBUNAL WHO VIDE THEIR ORDER DATED 13.02.2007 PART LY ALLOWED THE APPEAL BY 4 IT(SS)A NO.03/JODH/2012 BLOCK PERIOD: 1989-90 TO 1998-99 RESTORING GROUND NO.2 & 3 TO THE FILE OF A.O. FOR F RESH ADJUDICATION. THESE GROUNDS ARE (1) ALLOWANCE OF RELIEF OF RS.4,41,239/- OUT OF ADDITION OF RS.8,36,408/- ADDED ON ACCOUNT UNEXPLAINED GOLD JEWELLERY, (2) ALLOWANC E OF RELIEF OF RS.1,25,662/- OUT OF ADDITION OF RS.3,95,366/- MADE ON ACCOUNT OF UNE XPLAINED SILVER JEWELLERY/ARTICLES. WE MAY MENTION THAT THESE GROU NDS WERE NUMBERED AS GROUND NO.2 & 3, RESPECTIVELY, IN THE REVISED GROUNDS OF A PPEAL DATED 09.06.2006. 5. WHILE GIVING EFFECT TO THIS ORDER, THE A.O. HAS MADE ADDITION OF (1) RS.1,83,440/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN GOLD JEWELLERY AND (2) RS.20,260/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN SILVER JEWELLERY. THE A.O. HAS ALSO TREATED RS.37,45,835/- AS UNDISCLOSED INCO ME AS PER ORDER PASSED UNDER SCION 158BC/250/154 OF THE ACT DATED 22.10.2003. A GAINST THIS ORDER, THE ASSESSEE FILED APPEAL IN THE SECOND ROUND BY TAKING THE GROU ND THAT 510 GRAMS OF GOLD JEWELLERY FOUND IN THE BED ROOM OF SMT. JYOTI SISOD IA AND 702 GRAMS OF GOLD JEWELLERY WAS FOUND IN THE BRED ROOM OF SMT. ANOKHA SISODIA WHICH HAVE BEEN WRONGLY ADDED IN THE HANDS OF THE ASSESSEE AS HIS U NEXPLAINED INVESTMENT. AFTER HEARING THE RIVAL SUBMISSIONS, THE LD. CIT(A) HAS S USTAINED THE ADDITION TO THE EXTENT OF 702 GRAMS OF GOLD JEWELLERY BY MAKING VAL UATION @ RS.277.90 PER GRAM WHICH IS NOT DISPUTED. THE LD. CIT(A) HAS DELETED THE ADDITION OF 25 TOLAS BASED ON THE STATEMENT OF THE ASSESSEE AND FURTHER EVIDENCE WHICH WAS BROUGHT ON RECORD 5 IT(SS)A NO.03/JODH/2012 BLOCK PERIOD: 1989-90 TO 1998-99 THAT SHE HAD RECEIVED GOLD JEWELLERY WEIGHING 247 G RAMS AND POSSESSED THE SAME AS ON 20.03.1998. HOWEVER, THE ASSESSEE IS FURTHER AGGRIEVED. 6. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E. AS IS EVIDENT FROM THE GROUNDS OF APPEAL, THIS GOLD JEWELLERY WEIGHING 101 0 GRAMS WAS FOUND FROM THE POSSESSION OF SMT. JYOTI SISODIA AND 683 GRAMS FROM SMT. KUSUM SISODIA AND 952 GRAMS FROM THE POSSESSION OF SMT. ANOKHA SISODIA. THE LD. CIT(A) HAS TREATED 110 GRAMS, 183 GRAMS AND 702 GRAMS, RESPECTIVELY, A S UNEXPLAINED. THUS, TOTAL 995 GRAMS OF GOLD VALUED AT RS.227.90 PER GRAM HAS RESULTED INTO ADDITION OF RS.2,76,510/-. IT WAS ARGUED THAT IN THE FIRST ROU ND, THE LD. CIT(A) HAD ALLOWED 200 GRAMS OF GOLD JEWELLERY FOUND FROM THE POSSESSION O F SMT. ANOKHA SISODIA WHICH ORDER HAS BECOME FINAL AND HAS NOT BEEN CHALLENGED BEFORE ANY AUTHORITY. THE ABOVE FACTS HAVE NOT BEEN DISPUTED BY THE LD. C.I.T . (D.R.) THEREFORE, WE HAVE ALSO FOUND THAT VIDE ORDER DATED 25.11.2000, THE LD . CIT(A) IN FIRST ROUND HAS ALREADY ALLOWED 200 GRAMS OF GOLD JEWELLERY FOUND F ROM THE POSSESSION OF SMT. ANOKHA SISODIA AS EXPLAINED. THEREFORE, THIS MUCH GOLD JEWELLERY HAS TO BE REDUCED FROM HER HANDS AND THEREAFTER ONLY 502 GRAM S OF GOLD JEWELLERY WILL REMAIN AS SUCH IN HER HANDS. HAVING HELD AS ABOVE, THE OTHER CONTENTION OF THE APPELLANT IS THAT THESE GOLD JEWELLERY ADMITTEDLY B ELONGED TO THE RESPECTIVE LADIES AND THEY HAVE TRIED TO EXPLAIN THE POSSESSION AND S OURCES THEREOF IN THEIR OWN WAY. AS PER THE ASSESSEE, THE JEWELLERY BELONGED TO THE LADIES CANNOT BE ADDED IN THE 6 IT(SS)A NO.03/JODH/2012 BLOCK PERIOD: 1989-90 TO 1998-99 HANDS OF THE ASSESSEE BY ANY STRETCH OF IMAGINATION . IN FACT, THE ISSUE WHETHER THE JEWELLERY WERE FOUND FROM THE BED ROOM OF THESE LAD IES SEPARATELY HAS NEITHER BEEN DISPUTED NOR DENIED. SINCE THE ASSESSEE IS THE HEA D OF THE FAMILY OF THE HOUSE IN WHICH THESE LADIES WERE ALSO LIVING WAS SEARCHED IN WHICH THESE INCRIMINATING DOCUMENTS, GOLD ETC. WERE FOUND. IT IS TRUE THAT O WNER OF THE HOUSE IS DUTY BOUND TO EXPLAIN WHATEVER IS FOUND FROM HIS HOUSE. HOWEV ER, WHEN THE GOLD JEWELLERY IS FOUND FROM SEPARATE ROOMS OF THESE LADIES AND THEY HAVE TRIED TO EXPLAIN THE POSSESSION AND SOURCE THEREOF, IT WOULD NOT BE JUST TO MAKE ADDITION OF THESE JEWELLERY IN THE HANDS OF THE ASSESSEE. ACCORDINGL Y, WE ALLOW GROUND NO.1 & 2 OF THIS APPEAL. 7. THE THIRD GROUND RELATES TO CHARGING OF INTEREST UNDER SECTION 158BFA(1) OF THE ACT. CHARGING OF INTEREST BEING MANDATORY HAS TO BE CHARGED AS PER LAW AFTER GIVING BENEFIT OF QUANTUM DELETION AS WE HAVE DONE ABOVE. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE STAN DS PARTLY ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 29.11.2013) SD/- SD/- (N.K. SAINI) (HARI OM MARATHA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29 TH NOVEMBER, 2013 PBN/* 7 IT(SS)A NO.03/JODH/2012 BLOCK PERIOD: 1989-90 TO 1998-99 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, JODHPUR BENCH, JODHPUR 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME-TAX APPELLATE T RIBUNAL, JODHPUR