ACIT, Central Circle-21, V. Bihari Lal Joshi,

ITSSA 364/DEL/2005

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 9150 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 9 month(s) 28 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 14-06-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 14-06-2010
• Assessment Year: misc
• Appeal Filed On: 17-08-2005
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K GAUTAM
• Assessee Lawyers: V MOHAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `E: NEW DELHI BEFORE SHRI C.L.SETHI, JM & SHRI B.C. MEENA, AM I.T. A. NO.364/DEL OF 2005 BLOCK PERIOD: 1.4.1996 TO 5.2.2003 ACIT, CENTRAL CIRCLE 21, VS SHRI BIHARI LAL JOSHI , NEW DELHI. 307, PRATAP CHAMBER GURUDWARA ROAD, KAROL BBAGH, NEW DELHI. PAN: ACOPJ1714C APPELLANT RESPONDENT APPELLANT BY: SHRI M.K. GAUTAM, CIT DR RESPONDENT BY: S/SHRI VED JAIN & V. MOHAN ORDER PER C.L. SETHI, JM: IN THIS APPEAL FILED BY THE REVENUE AGAINST THE ORD ER DATED 31.5.2005 PASSED BY THE LEARNED CIT(A) IN THE MATTER OF A BLO CK ASSESSMENT MADE U/S 158BC OF THE INCOME-TAX ACT, 1961 (THE ACT) FOR THE BLOCK PERIOD 1.4.96 TO 5.2.2003. 2. THE ONLY ISSUE RAISED BY THE REVENUE IS WHETHER THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.2,51,370/- MADE ON P ROTECTIVE BASIS IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED JEW ELLERY. 3. IN THE GROUND, THE REVENUE HAS STATED THAT THE C IT(A) HAS ERRED IN DELETING THE ADDITION OF RS.2,51,370/- MADE ON PROT ECTIVE BASIS IN THE HANDS 2 OF THE ASSESSEE ON ACCOUNT OF UNEXPLAINED JEWELLERY AS THE ISSUE HAS NOT YET BEEN DECIDED IN THE CASE OF M/S JKJ & SONS ENDEAVOU R P. LTD., WHERE THE SUBSTANTIVE ADDITION WAS MADE. 4. IN THE COURSE OF HEARING OF THIS APPEAL, THE LEA RNED COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE APPEAL FILED BEFORE T HE TRIBUNAL IN THE CASE OF M/S JKJ & SONS ENDEAVOUR P. LTD. VIDE IT(SS) A NO.1 83/DEL/2006 AND IT(SS) A NO.198/DEL/2006 HAS SINCE BEEN DISPOSED OF F VIDE ORDER DATED 29.1.2010 OF ITAT, DELHI BENCH A, NEW DELHI, WHER E THE ADDITION OF RS.2,51,370/- IN RESPECT OF JEWELLERY/ORNAMENTS FOU ND AT THE RESIDENCE OF THE PRESENT ASSESSEE I.E. SHRI BIHARI LAL JOSHI HAS BEE N CONFIRMED IN THE HANDS OF M/S JKJ & SONS ENDEAVOUR P. LTD., AND, THEREFORE, T HE ADDITION MADE IN THE HANDS OF THE PRESENT ASSESSEE I.E. SHRI BIHARI LAL JOSHI HAS BEEN RIGHTLY DELETED BY THE CIT(A). 5. WE HAVE CAREFULLY PERUSED THE MATERIAL ON RECORD . 6. IT IS SEEN THAT IDENTICAL ADDITION WAS MADE ON S UBSTANTIVE BASIS IN THE HANDS OF M/S JKJ & SONS ENDEAVOUR P. LTD. THE ADDI TION IN THE HANDS OF M/S JKJ & SONS ENDEAVOUR P. LTD. WAS UPHELD BY THE LEARNED CIT(A), AFTER TAKING INTO ACCOUNT THE FACT THAT THE JEWELLERY ACT UALLY BELONGED TO THE ASSESSEE COMPANY. THE ORDER OF CIT(A) HAS BEEN UPHE LD BY THE TRIBUNAL BY 3 CONFIRMING THE ADDITION IN THE HANDS OF THE AFORESA ID COMPANY. THE TRIBUNAL HAS DISCUSSED THIS ISSUE AS UNDER: 26. THE FIRST GRIEVANCE IN THE ASSESSEES APPEAL RELATES TO ADDITION OF RS.2,51,370/- IN RESPECT OF JEWELLERY ORNAMENTS FOUND AT THE RESIDENCE OF SHRI BIHARI LAL JOSHI, AN EMPLOYEE OF THE ASSESSEE COMPANY. CONTENTIONS OF THE AO WAS THAT THIS JEWELLERY WAS FOUND AT THE RESIDENCE OF SHRI BIHARI LAL JOSHI. DURING SEARCH, STATEMENT OF HIS SON SHRI SANDIP JOSHI WAS RECORDED, WHEREIN HE STATED THAT THIS JEWELLERY BELONGED TO THE ASSESSEE COMPANY. CONTENTION OF LEARNED AR WAS THAT ORNAMENTS FOUND AT THE RESIDENCE OF SHRI BIHARI LAL JOSHI AT 2735, KUCHA CELLAN, DARYA GANJ, NEW DELHI BELONGED TO HIM AND HIS FAMILY MEMBERS. THIS ADDITION WAS CONFIRMED BY CIT(A) AFTER RECORDING HIS OBSERVATION AT PARA 4.2. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND FOUND FROM THE RECORD THAT THE DIAMOND JEWELLERY OF RS.2,51,370/- WAS FOUND AT THE RESIDENCE OF EMPLOYEE SHRI BIHARI LAL JOSHI. STATEMENT OF SHRI SANDIP JOSHI, SON OF SHRI BIHARI LAL JOSHI, WHO WAS HAVING THE KEY OF ALMIRAH WHEREIN JEWELLERY WAS FOUND, WAS RECORDED DURING SEARCH AND HE HAS CATEGORICALLY STATED THAT THIS JEWELLERY BELONGED TO THE ASSESSEE COMPANY. WHILE FRAMING THE ASSESSMENT IN CASE OF SHRI BIHARI LAL JOSHI DATED 28.2.2005 WHICH IS PLACED IN THE PAPER BOOK, WE FOUND THAT THE TOTAL JEWELLERY OF RS.4,99,835/- WAS FOUND AT THE RESIDENCE OF SHRI BIHARI LOAL JOSHI OUT OF WHICH JEWELLERY WORTH RS.2,48,465/- WAS ACCEPTED AS BELONGING TO THE ASSESSEE AND HIS FAMILY MEMBERS. THE JEWELLERY CONSISTING OF DIAMONDS VALUED AT RS.2,51,370/- WAS CLEARLY STATED TO BE BELONGING TO THE ASSESSEE COMPANY. KEEPING INTO ACCOUNT THE STATUS OF THE 4 EMPLOYEE SHRI BIHARI LAL JOSHI, HIS PAST EARNING ETC., THE CIT(A) CONFIRMED THE ACTION OF THE AO IN MAKING ADDITION IN HIS HANDS. THE FINDINGS RECEIVED BY CIT(AS) IS AS PER MATERIAL ON RECORD. ACCORDINGLY, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF CIT(A) FOR CONFIRMING THE ADDITION ON ACCOUNT OF SUCH DIAMOND JEWELLERY FOUND AT THE RESIDENCE OF SHRI BIHARI LAL JOSHI. 7. IN THE LIGHT OF THE AFORESAID TRIBUNAL ORDER DAT ED 29.1.2010 PASSED IN THE CASE OF M/S JKJ & SONS ENDEAVOUR P. LTD., IT IS CLEAR THAT THE ADDITION HAS BEEN CONFIRMED IN THE HANDS OF THE AFORESAID PR IVATE LIMITED COMPANY, AND, THEREFORE, ADDITION ON PROTECTIVE BASIS MADE I N THE HANDS OF THE PRESENT ASSESSEE HAS BEEN RIGHTLY DELETED BY THE CIT(A). 8. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. 9. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT O N 14 TH JUNE, 2010 IMMEDIATELY AFTER THE HEARING WAS OVER. (B.C. MEENA) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: JUNE, 2010 VIJAY 5 COPY TO: 1. APPELLANT. 2. RESPONDENT. 3. CIT 4. CIT(A)-II, NEW DELHI 5. DR ASSISTANT REGISTRAR