Shri Motilal J.Bothra, Ahmedabad V. The ACIT.,Circle-11, Ahmedabad

ITSSA 681/AHD/2010

• Counselvise Citation: [2014] 122 COUNSELVISE.COM (IT) 0044 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 07-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 26-02-2014
• Assessment Year: misc
• Appeal Filed On: 01-09-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J P JHANGID
• Keywords: Block assessment
• Section: 32; 132; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: SRI D.K TYAGI, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTAN T MEMBER MOTILAL JAICHANDLAL BOTHRA C/O R.B. RATHI & CO., NEW CLOTH MARKET, AHMEDABAD PAN: AATPB2888G (APPELLANT) VS ACIT, CIRCLE-11, AHMEDABAD (RESPONDENT) REVENUE BY: SRI J.P. JHANGID, SR.D.R. ASSESSEE BY: MS. URVASHI SODHAN, A.R . DATE OF HEARING : 26-02-2014 DATE OF PRONOUNCEMENT : 07-03-20 14 / ORDER PER : D.K. TYAGI, JUDICIAL MEMBER:- THIS IS THE ASSESSEES APPEAL AGAINST THE ORDER OF LD. CIT(A)-XVI AHMEDABAD DATED 22-06-2010. IT(SS)A NO. 681/AHD/2010 ASSESSMENT YEAR: BLOCK ASSESSMENT (01-04-1995 TO 08-02-2002) I.T.(SS)A NO. 681/AHD/2010 A.Y. BLOCK ASSTT. PAGE NO MOTILAL JAICHANDLAL BOTHRA VS. ACIT 2 2. ASSESSEE HAS TAKEN FOLLOWING GROUND OF APPEAL:- 1. THE AUTHORITIES BELOW HAVE ERRED IN LAW AND FAC T BY THE LEVYING THE PENALTY OF RS. 44,322/- U/S. 158BFA(2) OF THE A CT WHEN IN THE CIRCUMSTANCES AND FACTS, THE APPELLANT HAS COMPLETE LY DISCLOSED JEWELLERY PERTAINING TO THE IN-LARGE FAMILY IN HIS WIFES LOCKER IN HIS WIFES LOCKER IN THE PRELIMINARY STATEMENT RECORDED BY ADI. 3. BRIEF FACTS OF THE CASE ARE THAT A SEARCH U/S. 1 32 OF THE ACT WAS CARRIED OUT IN THE CASE OF THE BROTHER OF THE ASSESSEE WITH WHOM ASSESSEE WAS RESIDING WHEREIN CASH OF RS. 94,000/- WAS FOUND. G OLD JEWELLERY WEIGHING 786.6 GMS AND 4 KG OF SILVER WAS ALSO FOUND BUT NOT SEIZED. AO COMPLETED THE ASSESSMENT U/S. 188BD R.W.S. 18BC OF THE ACT. ON APPEAL LD. CIT(A) GRANTED RELIEF OF RS. 47,000/- IN RESPECT OF UNEXPL AINED CASH AND OF RS. 3,016,57/- IN RESPECT OF UNEXPLAINED JEWELLERY. TH E JEWELLERY OF 175.2 GMS WAS TREATED AS UNEXPLAINED BY THE LD. CIT(A). AGAI NST THIS ORDER OF LD. CIT(A) ASSESSEE PREFERRED AN APPEAL BEFORE HONBLE ITAT WHO UPHELD THE ORDER OF LD. CIT(A) BY CONFIRMING THE ADDITION OF R S. 175.2 GMS OF JEWELLERY. THE ASSESSEE THEN FILED A MA WHICH WAS ALSO DISMISSED BY HONBLE ITAT. AFTER THIS, AO PROCEEDED WITH THE LEV Y OF PENALTY ON THIS CONFIRMED ADDITION OF JEWELLERY OF 175.2 GMS VALUIN G AT RS. 72,422/- AND LEVIED MINIMUM PENALTY OF RS. 44,322/- BEFORE LD. C IT(A) ASSESSEES CONTENTION WAS AS UNDER:- 3. SHRI R B RATHI, CA ATTENDED ON 18-06-2010 AND 2 1-06-2010 AND FILED WRITTEN SUBMISSIONS. HIS MAIN CONTENTION IS THAT IN THE STATEMENT RECORDED U/S. 132(4) ON 8-1-2002, IN RESP ONSE TO QUESTION NO. 5 & 6 SHRI MOTILAL BOTHRA HAS STATED ASUNDER:- QST 5: APART FROM HOUSEHOLD EXPENSES MONEY OF RS. 25,00/-, WE HAVE RECOVERED RS. 90,000/- FROM YOUR CUPBOARD. WHOSE IS IT AND WHERE HAS IT COME FROM ? ANS.5 : THIS AMOUNT IS COMBINED CASH OF MY WIFE AND MY DAUGHTER IN LAW. HOW MUCH IS EACH ONE'S CASH, I D ON'T KNOW. I.T.(SS)A NO. 681/AHD/2010 A.Y. BLOCK ASSTT. PAGE NO MOTILAL JAICHANDLAL BOTHRA VS. ACIT 3 EVEN THEY DO NOT KNOW. THIS AMOUNT IS SAVINGS ACCUM ULATED FROM TIME TO TIME. QST. 6: TODAY HOW MUCH GOLD ORNAMENTS AND WHOM DO T HEY BELONG TO AND HOW MUCH ORNAMENTS ARE IN YOUR BANK L OCKER AND WHOM DO THEY BELONG TO ? ANS. 6: THERE ORE ORNAMENTS OF ABOUT 20 TOLAS GOLD IN MY HOUSE AND IN MY BANK LOCKER NO. 317 IN STATE BANK OF INDI A, ABOUT 25 TOLA ORNAMENTS ARE THERE OUT OF WHICH 10 TOLAS ORE OF MY MOTHER IN LAW, ABOUT 5 TO 7 TOLAS ARE OF MY BROTHER IN LAW'S WIFE. THE REMAINING ORNAMENTS ARE MINE,' 4. THE JEWELLERY WAS ALSO INVENTORISED BY THE DEPA RTMENTAL VALUER / SEARCH TEAM AS 'CLAIMED TO BELONGING TO MANOJKUMA R JNUMARMAL' AT SR NO 11 & 12 OF THE INVENTORY OF THE JEWELLERY PREPARED EN 8-1- 2002. SHRI MONOJKUMAR JHUMARMAL IS BROTHER IN LAW O F THE APPELLANT. THE JEWELLERY WAS STATED TO BE BELONGING TO HIS MOT HER AND HIS WIFE. WHILE DEALING THIS ISSUE THE CIT(A) IN HIS ORDER DA TED 30-4-08 HAS HELD AS UNDER :- ' HOWEVER, AS REGARDS TO GOLD JEWELLERY CLAIMED TO BE OF SMT RATNIDEVI SURANA OF 175.2 GMS, DIFFERENT VERSIONS H AVE BEEN GIVEN OF DIFFERENT STAGES I.E. IN SEARCH, IT WAS CL AIMED TO BE BELONGING TO MANOJKUMAR (BROTHER IN LAW), DURING AS SESSMENT, IT WAS CLAIMED TO BE BELONGING TO SMT RATNIDEVR ( M OTHER IN LAW). DURING APPEAL, IT WAS STATED TO BE FOUND IN L OCKER OF SMT PUKHARAJBEN. IN NORMAL CIRCUMSTANCES, IT IS NOT ACC EPTABLE THAT MOTHER IN LAW OF THE APPELLANT WHO WAS VISITING APP ELLANT WILL CARRY HER JEWELLERY AND PUT IT IN LOCKER OF APPELLA NT'S WIFE. NO DETAILS OF HER ASSESSMENT HAVE BEEN GIVEN AND NO SU PPORTING EVIDENCE THAT IT BELONGED TO MOTHER IN LAW OF APPEL LANT HAS BEEN GIVEN. ALSO, NOTHING WAS SUBMITTED TO THE EFFECT TH AT SMT RATNIDEVI HAS BROUGHT HER, JEWELLERY TO AHMEDABAD W HILE VISITING HER DAUGHTER AND SAME WAS PLACED IN LOCKER OF SMT PUKHRAJBEN I.E. APPELLANT'S WIFE. 5. THIS FINDING OF THE CIT(A) WAS ALSO CONFIRMED BY THE ITAT, AHMEDABAD. THE CONTENTION OF THE APPELLANT IS THAT RIGHT FROM THE DATE OF SEARCH TILL THE DATE OF ASSESSMENT PROCEEDINGS, THE APPELLANT HAS STATED THAT THE JEWELLERY BELONGS TO HIS MOTHER IN LAW AND WIFE OF THE BROTHER IN LAW. NO INACCURATE PARTICULARS WERE FILE D BY THE APPELLANT. MERELY THAT THE ADDITION OF RS. 72,422/- WAS CONFIR MED BY THE CIT(A) I.T.(SS)A NO. 681/AHD/2010 A.Y. BLOCK ASSTT. PAGE NO MOTILAL JAICHANDLAL BOTHRA VS. ACIT 4 AND ITAT BY REJECTING THE EXPLANATION OF THE ASSESS ES THAT THE JEWELLERY BELONG TO MOTHER IN LAW AND THE WIFE OF T HE BROTHER IN LAW OF THE ASSESSEE, DOES NOT AUTOMATICALLY MEAN THAT PENA LTY U/S. 158BFA(2) IS LEVIABLE IN THIS CASE. 4. LD. CIT(A) HOWEVER CONFIRMED THE PENALTY IMPOSED BY AO. 5. FURTHER AGGRIEVED NOW THE ASSESSEE IS IN APPEAL BEFORE US. 6. AT THE TIME OF HEARING LEARNED COUNSEL OF THE AS SESSEE REITERATED THE SAME SUBMISSION AS MADE BEFORE LOWER AUTHORITIES AN D ALSO PLACED RELIANCE ON TRIBUNALS DECISIONS IN THE CASE OF ACIT VS. SHA NTI BAI YADAV VIDE ITA NOS. 21 & 22 (JP) OF 2009 DATED 14 TH JULY, 2011 OF JAIPUR BENCH AND IN THE CASE OF SAKALCHAND C. PATEL VS. ACIT VIDE IT(SS)A N O. 641/AHD/2010 DATED 31 ST DECEMBER 2012 OF AHMEDABAD BENCH. LD. DR ON THE OTHER HAND RELIED ON THE ORDERS OF LOWER AUTHORITIES AND ALSO PLACED RELIANCE ON THE CASE OF MEENABEN J. BHANSALI VS. ACIT IT(SS)A VIDE ITA N O. 55/AHD/2009 DATED 23-11-2012 WHEREIN HONBLE ITAT ON SIMILAR FA CTS FOLLOWING THE JURISDICTIONAL HIGH COURT DECISION IN THE CASE OF CIT VS BECHARBHAI P. PARMAR 341 ITR 499 HAS CONFIRMED THE PENALTY U/S. 1 58BFA(2). 7. AFTER HEARING BOTH THE PARTIES AND PERUSING THE RECORD WE FIND THAT THERE IS NO DISPUTE ABOUT THE FACT THAT PENALTY U/S . 158BFA(2) HAS BEEN IMPOSED IN RESPECT OF ADDITION OF RS. 72,422/- MADE BY AO BY PASSING AN ORDER U/S. 158BD R.W.S. 158BC OF THE ACT ON THE BAS IS OF JEWELLERY FOUND AT THE TIME OF SEARCH WHICH HAS BEEN CONFIRMED BY HON BLE ITAT. ON THESE FACTS THE RATIO LAID DOWN IN THE CASE OF CIT VS BEC HARBHAI P. PARMAR OF JURISDICTIONAL GUJARAT HIGH COURT IS SQUARELY APPLI CABLE FOLLOWING WHICH THE TRIBUNAL IN THE CASE OF MEENABEN J. BHANSALI VS. AC IT (SUPRA) ON SIMILAR I.T.(SS)A NO. 681/AHD/2010 A.Y. BLOCK ASSTT. PAGE NO MOTILAL JAICHANDLAL BOTHRA VS. ACIT 5 FACTS HAS ALSO CONFIRMED THE PENALTY IMPOSED BY AO. WE ARE THEREFORE INCLINED TO FOLLOW THE SAME. AS FAR AS CASE LAWS RELIED UPON BY THE LEARNED COUNSEL OF THE ASSESSEE, WE FIND THAT HONBLE ITAT HAS NOT CONSIDERED THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CA SE OF CIT VS. BECHARBHAI P. PARMAR(SUPRA), THEREFORE WITH DUE RESPECT THE SAME IS NOT BEING FOLLOWED. AS FAR AS ANOTHER CASE OF JAIPUR BENCH IN THE CASE OF ACIT VS. SHANTI BAI YADAV IS CONCERNED, THE PENALTY WAS DELETED IN THAT CASE AS ADDITION IN THAT CASE WAS NOT BASED ON ANY EVIDENCE FOUND DURING THE SEARCH. SINCE IN THIS CASE, ADDITION WAS MADE BY AO ON THE BASIS OF JEWEL LERY FOUND DURING THE SEARCH, THIS DECISION OF JAIPUR BENCH IS ALSO NOT A PPLICABLE TO THE FACTS OF THIS CASE. IN VIEW OF THIS, WE ARE NOT INCLINED TO INTE RFERE WITH THE ORDER OF LD. CIT(A) AND THE SAME IS HEREBY UPHELD. 8. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (ANIL CHATURVEDI) ( D.K. TYAGI) ACCOUNTANT MEMBER J UDICIAL MEMBER AHMEDABAD : DATED 07/03/2014 AK / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,