Shri Raghunath Prasad Gupta, Lucknow V. The Deputy Commissioner of Income Tax, Central Circle-2(2), Ahmedabad

ITSSA 45/AHD/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6604 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 23-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 23-01-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N R SONI
• Assessee Lawyers: KHANJAN CHHAYA
• Section: 153A; 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER 1. (SS) ./ IT(SS)A NO.44/AHD/2017 2. (SS) ./ IT(SS)A NO.45/AHD/2017 ( / ASSESSMENT YEAR : 2009-10) 1. SMT.VIJAYALAXMI R.GUPTA 12, CHANDRALOK ALIGANJ,LUCKNOW 226 024 PAN:AHKPG 7336E 2. RAGHUNATH PRASAD GUPTA -ADDRESS ABOVE- PAN:ADTPG 9707 C / VS. 1.THE DCIT CENTRAL CIRCLE-2(2) AHMEDABAD 2. DO- DCIT ( / APPELLANTS ) .. ( / RESPONDENT ) / APPELLANTS BY : MS.KHANJAN CHHAYA, AR / RESPONDENT BY : SHRI N.R. SONI, CIT-DR / DATE OF HEARING 17/01/2019 / DATE OF PRONOUNCEMENT 23/01/2019 / O R D E R PER SHRI RAJPAL YADAV, JUDICIAL MEMBER : THE PRESENT TWO APPEALS ARE DIRECTED AT THE INSTA NCE OF ASSESSEES AGAINST THE SEPARATE ORDERS OF THE LD.COMMISSIONER OF INCOME IT(SS)A NOS.44 & 45/ AHD/2017 SMT.VIJAYALAXMI R.GUPTA AND RAGHUNATH PRASAD GUPTA VS. DCIT ASST.YEAR 2009-10 - 2 - TAX(APPEALS)-12,AHMEDABAD [CIT(A) IN SHORT] DATED 18/10/2016 IN ASSESSMENT YEAR (AY) 2009-10 PASSED ON THEIR RESPEC TIVE APPEALS. 2. GROUNDS OF APPEAL TAKEN BY BOTH THE ASSESSE ES ARE ARGUMENTATIVE AND DESCRIPTIVE IN NATURE. THEY ARE HUSBAND AND WI FE. IN BRIEF, THE FIRST FOLD OF THEIR GRIEVANCE IS THAT THE LD.CIT(A) HAS E RRED IN CONFIRMING THE ADDITION OF RS.5,46,000/- (IN THE CASE OF SMT. VIJA YALAXMI R.GUPTA - WIFE) AND RS.5,07,085/- (IN THE CASE OF SHRI RAGHUN ATH PRASAD GUPTA - HUSBAND). 3. THE FACTS ON VITAL POINTS ARE COMMON. THE LD.C IT(A) HAS DECIDED THE APPEAL OF SMT. VIJAYALAXMI R.GUPTA AND THEREAFTER F OLLOWED HIS ORDER IN THE CASE OF SHRI RAGHUNATH PRASAD GUPTA. THEREFOR E, FOR THE FACILITY OF REFERENCE, WE ARE TAKING UP THE FACTS FROM THE CASE OF SHRI RAGHUNATH PRASAD GUPTA. 4. THE BRIEF FACTS OF THE CASE ARE THAT A SEARCH U/ S.132 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT' ) WAS CARRIED OUT IN THE GROUP CASE OF NEESA GROUP ON 08/09/2010. A SEARCH WARRANT OF AUTHORIZATION U/S.132 WAS ISSUED IN THE NAME OF THE ASSESSEE. IN ORDER TO GIVE LOGICAL END TO THE PROCEEDINGS, THE LD. ASSESS ING OFFICER (AO) HAS ISSUED NOTICE U/S.153A OF THE ACT IN THE CASE OF BO TH THE ASSESSEES. IN RESPONSE TO THE NOTICE, THEY HAVE FILED THEIR RETUR NS ON 17/04/2012 IT(SS)A NOS.44 & 45/ AHD/2017 SMT.VIJAYALAXMI R.GUPTA AND RAGHUNATH PRASAD GUPTA VS. DCIT ASST.YEAR 2009-10 - 3 - DECLARING TOTAL INCOME OF RS.9,88,970/- (IN THE CAS E OF SHRI RAGHUNATH PRASAD GUPTA) AND RS.7,10,840/- (IN THE CASE OF SMT . VIJAYALAXMI RAGHUNATH PRASAD GUPTA). 5. ON SCRUTINY OF THE ACCOUNTS, LD.AO FOUND THAT TH E ASSESSEE HAS CLAIMED SALE OF JEWELLERY WORTH RS.5,07,085/- (HUSB AND) AND RS.5,46,743/- (WIFE) DURING THE ASSESSMENT YEAR AND CLAIMED INDEXATION SINCE 1981-82. IN SUPPORT OF THEIR CLAIM, THEY HAV E PRODUCED BILLS FROM M/S.ZANZAR JEWELLERS, BANK STATEMENT SHOWING THE CR EDIT ENTRIES OF THE SALE PROCEEDS. SOMEHOW, LD.AO WAS NOT SATISFIED WI TH THE EVIDENCES SUBMITTED BY BOTH THE ASSESSEES AND HE CONFIRMED TH E ADDITION(S) ON ACCOUNT OF INCOME FROM OTHER SOURCE. 6. DISSATISFIED WITH THE ADDITION(S), ASSESSEES WEN T IN APPEALS BEFORE THE CIT(A). THE LD.CIT(A) CONCURRED WITH THE ORDER S OF ASSESSING OFFICER. THE LD.CIT(A) RELIED UPON HIS FINDING RE CORDED IN THE CASE OF WIFE. HE REPRODUCED THAT FINDING IN THE CASE OF HU SBAND, THEREFORE, WE TAKE NOTE OF HIS FINDING IN THE CASE OF HUSBAND, WH ICH READ AS UNDER: APPEAL NO.CIT(A)-12/68/DCIT CC2(2)/13-14 (A;Y.2009 -10) 7. THE ONLY ADDITION CONTESTED IN THIS APPEAL IS T HE ADDITION OF RS.5,07,085/-. THE APPELLANT DISCLOSED THE CAPITAL GAINS, CLAIMING INDEXATION, OF RS.1,19,642/- IT(SS)A NOS.44 & 45/ AHD/2017 SMT.VIJAYALAXMI R.GUPTA AND RAGHUNATH PRASAD GUPTA VS. DCIT ASST.YEAR 2009-10 - 4 - ON A SALE CONSIDERATION OF RS.5,07,085/-. AS NOTED BY THE AO, SUCH CAPITAL GAIN WAS NOT DISCLOSED IN THE ORIGINAL RETURN OF INCOME FILED U/S 139. THE CONSIDERATION IS RECEIVED BY CHEQUE AND THE ALLEGED CAPITAL GAIN IS ON ACCOUNT OF SALE OF OLD JEWELLERY ALLEGEDLY TO M/S. ZANZAR J EWELLERS. THE FACTS, CIRCUMSTANCES, OBSERVATIONS OF THE AO AND SUBMISSIO NS MADE ON BEHALF OF THE APPELLANT INCLUDING THE EVIDENCE FILED ARE EXACTLY IDENTICAL TO THOSE IN THE CASE OF APPELLANT'S WIFE SMT. VIJAYALAXMI GUPTA IN WHOSE CASE THE ISSUE HAS BEEN DECIDED BY ME AGAINST THE APPELLANT (APPEAL ORDER O F EVEN DATE) HOLDING THAT THE CLAIM OF THE APPELLANT THAT JEWELLERY WAS ACQUI RED PRIOR TO 1/4/2004 AND FURTHER THAT THE PROCEEDS CREDITED INTO BANK ACCOUN T IS ON ACCOUNT OF SALE OF JEWELLERY IS NOT DULY SUBSTANTIATED. I THEREFORE HAVE UPHELD THE ADDITION IN THAT CASE OBSERVING AS UNDER: '6. AFTER HAVING PERUSED THE MATERIAL ON RECORD, I HAVE NOTED THAT THE APPELLANT HAS ENCLOSED THE COPIES OF TWO PURCHASE B ILLS FOR '22C ORNAMENTS' DATED 2/ 12/2008 AND DATED 12/1/2009 FRO M ONE M/S. ZANZAR JEWELLERS, ALONG WITH THE SUBMISSIONS TO THE AO DATED 4/3/2013, THE COPY OF WHICH HAS BEEN ENCLOSED AS EXHIBIT-1 TO THE WRITTEN SUBMISSIONS BEFORE THE AO DATED 18/5/2015 DURING RE MAND PROCEEDINGS. THUS THE LD. AO IS NOT RIGHT THAT THER E IS NO EVIDENCE WORTH ITS NAME SUBSTANTIATING THE CLAIM OF SALE OF JEWELLERY MADE BEFORE THE AO. HOWEVER, THE FACT REMAINS THAT THE CLAIM I S OF DOUBTFUL NATURE AS FURTHER SUPPORTED BY AN UNEXPLAINED REALITY THAT THE ALLEGED UNDERLYING CAPITAL GARIS AND THE ACCOMPANYING RECEI PTS WERE NOT DISCLOSED IN THE RETURN OF INCOME ORIGINALLY FILED U/S 139. MOREOVER, AND NOTEWORTHILY, THE BANK ACCOUNT NO.732901010000756 W ITH VIJAYA BANK IS AN ACCOUNT HELD BY THE APPELLANT JOINTLY WITH ON E SARITA GUPTA AND THERE IS NO CLARITY ABOUT THE OWNERSHIP OF THE TRAN SACTIONS AS REFLECTED IN THE BANK ACCOUNT. SIMILARLY, AS RIGHTLY OBSERVED BY THE AO, THE AVERMENT OF THE APPELLANT THAT THE ALLEGED UNDERLYI NG JEWELLERY WAS PURCHASED BEFORE 1/4/2004 IS ALSO BALD AND UNSUBSTA NTIATED. IN VIEW, OF ALL, THESE, FACTORS, 1, HAVE NO HESITATION IN AGREE ING WITH THE LD. AO THAT THE CLAIM OF CAPITAL GAINS WHICH WAS NOT MADE IN TH E RETURN U/S 139 AND WHICH WAS MADE IN THE RETURN U/S 153A IS NOT VALIDL Y SUBSTANTIATED AND THEREFORE HAS RIGHTLY BEEN REJECTED BY THE AO. CONS EQUENTLY, THE AMOUNT CREDITED IN THE BANK ACCOUNT WITH VIJAYA BANK REPRE SENTS THE IT(SS)A NOS.44 & 45/ AHD/2017 SMT.VIJAYALAXMI R.GUPTA AND RAGHUNATH PRASAD GUPTA VS. DCIT ASST.YEAR 2009-10 - 5 - UNEXPLAINED DEPOSIT IN THE APPELLANT'S BANK ACCOUNT WHICH HAS RIGHTLY BEEN BROUGHT TO TAX BY THE AO. EVEN IF THE RECEIPTS OF AMOUNTS IN THE BANK ACCOUNT ARE ACCEPTED TO BE THOSE FROM THE SALE OF JEWELLERY AS EVIDENCED BY THE PURCHASE BILLS OF M/S, ZANZAR JEWE LLERS, AS THE SOURCES OF PURCHASE OF THESE ORNAMENTS AND DATES OF PURCHAS E OF THESE ORNAMENTS HAVE REMAINED UNEXPLAINED, COUPLED. WITH THE FURTHER FACT THAT NO SUCH 'CAPITAL GAINS' WERE DISCLOSED IN THE RETURN ORIGINALLY FILED U/S 139, I AGREE WITH THE LD. AO THAT THE WHOLE AM OUNT CREDITED IN THE BANK ACCOUNT HEEDS TO BE BROUGHT TO TAX AS UNEXPLAI NED RECEIPTS. ACCORDINGLY, THE ADDITION OF RS.5,46,743/- IS UPHEL D. RELATED GROUND IS REJECTED.' 7.1 IN VIEW OF THE ABOVE, ADDITION OF RS.5,07, 085 IS UPHELD, REJECTING THE RELATED GROUND. 8. IN THE RESULT, APPEAL FOR A.Y. 2009-10 IS DISMI SSED. 7. WITH THE ASSISTANCE OF LD. REPRESENTATIVES, WE H AVE GONE THROUGH THE RECORD CAREFULLY. THE CLAIM OF BOTH THE ASSESS EES IS THAT THEY WERE POSSESSING JEWELLERY WHICH WAS SOLD MUCH PRIOR TO T HE SEARCH CONDUCTED ON THEIR PREMISES. THE SALE BILLS ARE OF 02/12/200 8 AND 12/01/2009 AND THE SEARCH HAS TAKEN PLACE ON 08/09/2010. THUS, AC CORDING TO BOTH THE ASSESSEES, NO MANIPULATION SHOULD BE ASSUMED. THEY HAVE SUBMITTED THE SALE BILLS. THEY HAVE SUBMITTED THE BANKING DETAILS TO WHOM THE SALE CONSIDERATION WERE CREDITED. ON THE OTHER HAND, CA SE OF THE REVENUE REST ON CIRCUMSTANTIAL EVIDENCE, THAT THEY HAVE NOT DIS CLOSED THE SALE IN THEIR REGULAR RETURNS. IT IS PERTINENT TO NOTE THAT BOTH THE ASSESSEES HAVE FILED THEIR RETURNS U/S.139(1) ON 31/03/2010. WE ARE CON SCIOUS OF THE FACT THAT IT(SS)A NOS.44 & 45/ AHD/2017 SMT.VIJAYALAXMI R.GUPTA AND RAGHUNATH PRASAD GUPTA VS. DCIT ASST.YEAR 2009-10 - 6 - IN OUR SOCIETY ON SOCIAL OCCASIONS IN THE FAMILY, I .E. MARRIAGE, BIRTH OF A CHILD ETC. LADIES TEND TO GET GOLD ORNAMENTS IN GIF T. THESE ARE CUSTOMARY AND THE CUSTOMS ARE PREVAILING IN THE SOCIETY. THE REFORE, TO SOME EXTENT, IT IS POSSIBLE THAT SMT.VIJAYALAXMI R.GUPTA MIGHT B E POSSESSING JEWELLERY. BUT THE QUESTION IN THESE APPEALS IS TH AT THE SALE OF JEWELLERY HAS BEEN ALLEGED PRIOR TO FILING OF THE RETURN U/S. 139(1) OF THE ACT. WHY THE CAPITAL GAIN WAS NOT DISCLOSED BY THEM? THE SE COND CIRCUMSTANCE WHICH HAS BEEN NOTICED BY THE LD.CIT(A) IS THAT THE ACCOUNT IN WHICH THESE AMOUNTS HAVE BEEN STATED TO BE DEPOSITED I.E. VIJAYA BANK IS A JOINT BANK WITH SMT. SARITA GUPTA. THE FIRST APPELLATE AUTHORITY HAS EXPRESSED ITS APPREHENSION THAT IDENTITY OF THE SALE PROCEED IS NOT ASCERTAINABLE. IN OTHER WORDS, THERE ARE CHEQUE ENTRIES AVAILABLE IN THIS ACCOUNT PERTAINING TO THESE JEWELERS ON CREDIT SIDE. THOUGH COMPLETE STATEMENT HAS NOT BEEN PLACED BEFORE US, BUT A PAGE STARTING FROM 13/ 03/2008 UPTO 13/07/2009 HAS BEEN PLACED ON RECORD. A PERUSAL OF THIS BANK STATEMENT WOULD REVEAL THAT APART FROM THESE 2-3 ENTRIES ALL EGED BY THE ASSESSEE THERE ARE ANOTHER SUBSTANTIAL CLEARING ENTRY FROM M /S.ZANZAR JEWELLERS NAMELY : 14/07/2009 1,15,000 16/072009 1,50,000 18/07/2009 95,000 IT(SS)A NOS.44 & 45/ AHD/2017 SMT.VIJAYALAXMI R.GUPTA AND RAGHUNATH PRASAD GUPTA VS. DCIT ASST.YEAR 2009-10 - 7 - 8. THESE ARE DEPOSITS IN THESE ACCOUNTS THROUGH CHE QUE RAISED FROM ALLEGED JEWELLER. IT CREATES A DOUBT ABOUT THE GEN UINENESS OF THE CLAIM MADE BY THE ASSESSEE. THE ASSESSEE FAILED TO PRODU CE ANY DIRECT EVIDENCE EXCEPT TWO SALE BILLS IN THE CASE OF EACH ASSESSEE AND ALLEGED A LINK THE AMOUNT MENTIONED IN THOSE SALE BILLS WITH THE CREDI T ENTRY IN THE BANK. THE JEWELLER WAS ALSO STATED TO BE A CLOSE CONCERN OF THE ASSESSEE FAMILY. IT IS PERTINENT TO OBSERVE THAT WHEN AN EXPLANATION OR DEFENCE OF AN ASSESSEE BASED ON NUMBER OF FACTS SUPPORTED BY EVID ENCE AND CIRCUMSTANCE REQUIRED FOR CONSIDERATION, WHETHER TH E EXPLANATION IS SOUND OR NOT, MUST BE DETERMINED NOT BY CONSIDERIN G THE WEIGHT TO BE ATTACHED TO EACH SINGLE FACT IN ISOLATION BUT BY AS SESSING THE CUMULATIVE EFFECT OF ALL THE FACTS IN THEIR SETTING AS A WHOLE . IF ANALYZED THE CIRCUMSTANCES HIGHLIGHTED BY THE LD.FIRST APPELLATE AUTHORITY IN THE ORDER EXTRACTED SUPRA ALONG WITH THE NON-DISCLOSURE OF TH ESE CAPITAL GAINS IN THE REGULAR RETURN, NUMBER OF CREDIT ENTRIES IN THE SAM E BANK ACCOUNT FROM M/S.ZANZAR JEWELLERS AND JOINT ACCOUNT WITH ONE SMT . SARITA GUPTA IN WHOSE HANDS DIFFERENT ADDITIONS HAVE BEEN MADE, WE ARE OF THE VIEW THAT ASSESSEE HAVE FAILED TO DEMONSTRATE SALE OF JEWELLE RY AND RESULTANT CAPITAL GAIN AROSE TO THEM. IT APPEARS THAT THEY HAVE GIVE N THIS EXPLANATION, AFTER THE SEARCH IN ORDER TO HELP SMT.SARITA GUPTA AND OT HERS FOR EXPLAINING THE CREDIT ENTRIES IN THE JOINT ACCOUNT WHICH COULD BE INVESTIGATED IN THE POST SEARCH ENQUIRY. THEREFORE, WE DO NOT HAVE ANY HESI TATION IN CONCURRING WITH THE ORDER OF THE LD.CIT(A) ON THIS ISSUE. W E DO NOT FIND ANY MERIT IT(SS)A NOS.44 & 45/ AHD/2017 SMT.VIJAYALAXMI R.GUPTA AND RAGHUNATH PRASAD GUPTA VS. DCIT ASST.YEAR 2009-10 - 8 - IN THIS FOLD OF GRIEVANCE IN BOTH THE APPEALS. THI S GROUND IS REJECTED IN BOTH THE APPEALS. 9. IN THE APPEAL OF SMT. VIJAYALAXMI R.GUPTA, THE A SSESSEE HAS RAISED ONE MORE GROUND OF APPEAL WHEREIN SHE HAS PLEADED T HAT ASSESSMENT ORDER IS VOID AB INITIO AND WITHOUT JURISDICTION BECAUSE NO WARRANT OF AUTHORIZATION U/S.132 OF THE ACT WAS SERVED ON THE ASSESSEE. 10. THE LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT ASSESSEE HAS RAISED A SPECIFIC GROUND OF APPEAL BEFORE THE LD.CIT(A). HE TOOK US THROUGH FORM NO.35, WHEREIN UNDER GROUND NO.1 ASSESSEE HAS PLEADED AS UNDER: (1) BECAUSE, THE ORDER PASSED BY THE LD.AO IS VOI D-AB-INITIO, HENCE, ILLEGAL AND BAD IN LAW AS THE LD.AO ACTED WI THOUT JURISDICTION ON THE APPELLANT AS NO WARRANT OF AUTH ORIZATION U/S.132 WAS SERVED ON THE APPELLANT. 11. THE LD.CIT(A) HAS NOT ADJUDICATED THIS GROUND A ND NO FINDING HAS BEEN RECORDED. 12. CONSIDERING THE ABOVE ASPECT, WE REMIT THIS GRO UND OF APPEAL TO THE FILE OF LD.CIT(A) FOR ADJUDICATION. 13. AS FAR AS THE APPEAL OF RAGHUNATH PRASAD GUPTA IS CONCERNED, NO OTHER ARGUMENT WAS RAISED. HENCE, THIS APPEAL IS D ISMISSED. THE APPEAL IT(SS)A NOS.44 & 45/ AHD/2017 SMT.VIJAYALAXMI R.GUPTA AND RAGHUNATH PRASAD GUPTA VS. DCIT ASST.YEAR 2009-10 - 9 - OF THE SMT. VIJAYALAXMI R.GUPTA IS PARTLY ALLOWED F OR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 23 RD JANUARY-2019 AT AHMEDABAD. SD/- SD/- ( WASEEM AHMED ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 23/ 01 /2019 #.., .%../ T.C. NAIR, SR. PS !'#$%$' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. &'( ) / CONCERNED CIT 4. ) ( ) / THE CIT(A)-12, AHMEDABAD 5. ,-. %%'( , '( , & / DR, ITAT, AHMEDABAD 6. .12 3 / GUARD FILE. / BY ORDER, , % //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION ..19.1.2019 (DICTATION-PAD 19- PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..19.1.2019 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.23.1.2019 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 23.1.2019 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER