ACIT, CC-2(1), KOLKATA, Kolkata V. Shri Sunil Kumar Khemka, Patna

ITSSA 99/KOL/2016

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3414 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 13 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 02-08-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 19-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MD USMAN
• Assessee Lawyers: S JHAJHARIA
• Keywords: Unexplained cash credit; Unexplained investment; Gift; Salary income; Question of law; Valuation report
• Section: 143(3); 68; 69; 6; 132

Judgement Text

1 ITA NO.99/KOL/2016 SUNIL KUMAR KHEMKA A.YR.13-14 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B KOL KATA [BEFORE HONBLE SHRI A.T. VARKEY, JM & SHRI M. BA LAGANESH, AM ] IT(SS)A NO.99/KOL/2016 ASSESSMENT YEAR : 2013-14 A.C.I.T., CENTRAL CIRCLE-2(1), -VERSUS- SHR I SUNIL KUMAR KHEMKA KOLKATA KOLKATA (PAN:ADGPK 7822 F) (APPELLANT) (RESPONDENT) C.O. NO. 61/KOL/2017 A/O IT(SS)A NO.99/KOL/2016 ASSESSMENT YEARS : 2013-14 SHRI SUNIL KUMAR KHEMKA -VERSUS- A.C.I.T., C IRCLE-2(1), KOLKATA KOLKATA (PAN:ADGPK 7822 F) (CROSS OBJECTOR) (RESPONDENT) FOR THE REVENUE: MD. USMAN, CIT DR FOR THE ASSESSEE: SHRI S. JHAJHARIA, FCA AND SHRI S UJOY SEN, ADVOCATE DATE OF HEARING : 25.07.2017. DATE OF PRONOUNCEMENT : 02 .08.2017 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE ARISE OUT OF THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) -20, KOLKATA [ IN SHORT THE LD CITA] IN APPEAL NO. 36/CIT(A)-20/CC -2(1)/15-16 DATED 29.07.2016 AGAINST THE ORDER PASSED BY THE ACIT, CE NTRAL CIRCLE-2(1), KOLKATA [ IN SHORT THE LD AO] UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 26.03.2015 FOR THE ASSESSMENT YEAR 201 3-14. 2 ITA NO.99/KOL/2016 SUNIL KUMAR KHEMKA A.YR.13-14 2. THE FIRST ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER, THE LD CITA WAS JUSTIFIED IN DELETING THE ADDITION MADE IN THE SUM OF RS. 13,50,000/- TOWARDS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT, IN THE F ACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE IS THAT THE LD. AO OBSERVED FROM ITS DATA THAT ASSESSEE HAD DEPOSITED CASH OF DIFFERENT DENOMINATI ONS IN HIS SAVING ACCOUNT TO THE TUNE OF RS. 13,50,000/- DURING THE YEAR UNDER APPEA L. THE ASSESSEE IS DERIVING INCOME FROM SALARY, BUSINESS AND OTHER SOURCES. WHE N CONFRONTED BY THE LD. AO TO EXPLAIN THE SOURCE OF THE SAID CASH DEPOSITS, TH E ASSESSEE SUBMITTED THAT THE SAME WERE MADE OUT OF CASH WITHDRAWALS FROM THE BAN K WHICH IS ALREADY DISCLOSED IN THE BOOKS OF ACCOUNTS AND RETURN OF INCOME. THE LD. AO HOWEVER PROCEEDED TO ADD THE SUM OF RS. 13,50,000/- REPRESENTING TOTAL C ASH DEPOSITS AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT. BEFORE THE LD. CIT(A ), THE ASSESSEE EXPLAINED THAT HE HAD DULY WITHDRAWN CASH FROM HIS REGULAR BANK ACCOU NT AND THE SAME WERE DULY DEPOSITED IN PART IN THE REGULAR BANK ACCOUNT AND H ENCE THE SOURCES OF CASH DEPOSITS WERE DULY EXPLAINED OUT OF CASH WITHDRAWAL S ITSELF. HE ALSO ARGUED THAT THE SAME COULD BE DULY VERIFIED IF THE CASH BOOK AN D BANK BOOK ARE KEPT AND VERIFIED TOGETHER. IN OTHER WORDS, IT WAS EXPLAINED THAT THE ASSESSEE HAD SUFFICIENT CASH BALANCES IN HIS BOOKS TO MAKE THE REGULAR CASH DEPOSITS IN THE DISCLOSED BANK ACCOUNT AND HENCE, NO ADDITION TO THIS EFFECT IS WA RRANTED U/S 68 OF THE ACT. 4. THE LD. CIT(A) BY VERIFYING BOTH THE BANK BOOK A S WELL AS CASH BOOK OF THE ASSESSEE, CONCLUDED THAT THE ASSESSEE WAS INDEED HA VING SUFFICIENT CASH BALANCES FOR MAKING CASH DEPOSITS IN THE BANK ACCOUNT. ACCOR DINGLY, HE DELETED ADDITION AFTER GIVING A FINDING THAT THE ASSESSEE HAD WITHDR AWN A SUM OF RS. 28,70,000/- IN 3 ITA NO.99/KOL/2016 SUNIL KUMAR KHEMKA A.YR.13-14 CASH DURING THE YEAR AND HAD MADE RS. 13,50,000/- D EPOSITS IN CASH IN THE SAME BANK. AGGRIEVED THE REVENUE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN ALLOWING RELIEF OF RS. 13,50,000/- ON ACCOUNT OF AD DITION OF UNEXPLAINED CASH CREDIT MADE U/S 68 OF THE ACT, 1961. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) FAILED TO APPRECIATE THE FACT OBSERVED BY THE AO THAT THE ASS ESSEE FAILED TO ESTABLISHING ANY NEXUS BETWEEN CASH DEPOSITED AND C ASH WITHDRAWN. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE LD. CIT(A) HAD DELETED THE ADDITION AFTER SATISFYING HIMSELF ABOUT THE AVAILABILITY OF CASH SOURCES FOR MAKING CASH DEPOSITS IN THE REGULAR BANK ACCOUNT BY DUE VERIFICATION WITH THE B ANK BOOK AS WELL AS CASH BOOK OF THE ASSESSEE. THE LD. AR ALSO FILED THE SAME CAS H BOOK AND BANK BOOK BEFORE US THAT WERE FILED BEFORE THE LOWER AUTHORITIES. ON VERIFICATION OF THE SAME, WE FIND THAT THE ASSESSEE WAS INDEED HAVING SUFFICIENT SOUR CES OF CASH FOR MAKING CASH DEPOSITS INTO THE BANK ACCOUNT AND HENCE THE LD. CI T(A) WAS RIGHTLY JUSTIFIED IN DELETING THE ADDITION MADE THEREON. ACCORDINGLY, GR OUND NOS. 1 AND 2 RAISED BY THE REVENUE ARE DISMISSED. 6. THE LAST ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION OF RS. 75,05,071 /- ON ACCOUNT OF UNACCOUNTED INVESTMENT IN JEWELLERY U/S 69A OF THE ACT, IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 7. THE BRIEF FACTS OF THIS ISSUE IS THAT PURSUANT T O THE SEARCH CONDUCTED U/S 132 OF THE ACT IN THE RESIDENTIAL PREMISES OF THE ASSESSEE ON 30.08.2012, GOLD JEWELLERY TO THE TUNE OF RS. 2022.50 GRAMS (1770.50 + 250) VALUE D AT RS. 75,05,071/- WERE FOUND. THE ASSESSEE INITIALLY SUBMITTED THAT 498 GR AMS OF GOLD JEWELLERY BELONGS TO 4 ITA NO.99/KOL/2016 SUNIL KUMAR KHEMKA A.YR.13-14 HIS DAUGHTER AND SON AND THE SAME IS WITHIN THE LIM ITS PRESCRIBED IN CBDT INSTRUCTION NO. 1916 DATED 11.05.1994 AND ACCORDING LY THE SAME STOOD EXPLAINED. IT WAS ALSO EXPLAINED THAT THE ASSESSEE FURTHER SUB MITTED INITIALLY THAT 1524.50 GRAMS OF GOLD BELONGED TO HIS WIFE AND MOTHER WHO H AD DULY DISCLOSED THOSE JEWELLERIES IN DECLARATION FILED UNDER VDIS 1997 AN D PAID TAXES THEREON. 8. THE LD. AO OBSERVED THAT CBDT INSTRUCTION NO. 19 16 DATED 11.05.1994 IS MEANT ONLY FOR THE LIMITED PURPOSE OF SEIZURE OF GO LD JEWELLERY AND CANNOT BE TAKEN AS BLANK PROTECTION TO ESCAPE UNDISCLOSED JEW ELLERY FROM TAXATION NET. WITH REGARD TO THE JEWELLERY DISCLOSED UNDER VDIS 1997, HE OBSERVED THAT THE ASSESSEE WAS NOT ABLE TO RECONCILE THE JEWELLERY ITEM WISE F OUND DURING SEARCH VIS--VIS THE JEWELLERY DECLARED UNDER VDIS 1997 BY HIS WIFE AND MOTHER. BASED ON THESE OBSERVATIONS, HE SOUGHT TO MAKE AN ADDITION OF RS. 75,05,071/- AS UNACCOUNTED INVESTMENT IN JEWELLERY MADE BY THE ASSESSEE U/S 6 9A OF THE ACT. 9. THE LD. CIT(A) DELETED THE ADDITION MADE U/S 69A OF THE ACT TOWARDS JEWELLERY BY MAKING FOLLOWING OBSERVATIONS: I HAVE CONSIDERED THE FINDING OF THE AO IN THE ASS ESSMENT ORDER AND THE WRITTEN SUBMISSION FILED BY THE AR DURING THE APPEL LATE PROCEEDING. I FIND THAT THE MAIN CONTENTION OF THE AO FOR MAKING ADDIT ION ON THIS GROUND IS THAT THE DESCRIPTION OF ITEM WISE JEWELLARIES IN TH E VALUATION REPORT OF VDIS DOES NOT TALLY ITEM-WISE DESCRIPTION IN THE VALUATI ON REPORT PREPARED AT THE TIME OF SEARCH. I THINK MANY JUDICIAL AUTHORITIES I NCLUDING THE KOLKATA BENCH OF ITAT AND THE CALCUTTA HIGH COURT HAVE DISC USSED THIS ISSUE AND DECIDED THE RATIO THAT IT IS NOT THE ITEM-WISE SIMI LARITY IN DESCRIPTION OF JEWELLARIES BUT THE WEIGHT OF GOLD THAT IS TO BE TA KEN INTO CONSIDERATION WHILE EVALUATING TWO VALUATION REPORTS OF SAME JEWE LLARIES PREPARED AT TWO DIFFERENT POINTS OF TIME. ACCORDINGLY, GOLD DECLARE D IN VDIS (858.745 GMS) IN THE NAME OF SHRADA DEVI KHEMKA AND 945.933GMS DE CLARED IN THE NAME OF SMT. SUNITA KHEMKA IN VDIS 1997 (1804.678 GMS) D OES NOT REQUIRE ANY FURTHER EVIDENCE. FOR THE REMAINING OUT OF 217.822 GMS, 77.09 GMS OF GOLD JEWELLERY ORNAMENTS ARE ALREADY DECLARED TO THE IN COME TAX DEPARTMENT 5 ITA NO.99/KOL/2016 SUNIL KUMAR KHEMKA A.YR.13-14 BY THE ASSESSEE SUNIL KUMAR KHEMKA IN HIS OWN NAME. THE AR HAS ALSO BROUGHT IT ON RECORD THAT THE ASSESSEE HAS TWO UNMA RRIED DAUGHTERS SOHANI AND SALONI WHO HAVE GOT SOME GIFTS AT THE TIME OF T HEIR BIRTH AND OTHER OCCASIONS IN THE FORM OF GOLD JEWELLERIES. THE AR H AS FURTHER POINTED OUT THAT IT IS FULLY COVERED UNDER CBDTS INSTRUCTION N O. 1916 DATED 11.05.1994 WHEREIN AN UNMARRIED LADY COULD POSSESS GOLD JEWELLERY UPTO 250 GMS. IN CASE, ALL THESE FACTS ARE TAKEN INTO CO NSIDERATION, GOLD JEWELLERY FOUND AT THE TIME OF SEARCH STAND EXPLAIN ED. ACCORDINGLY, ASSESSEES APPEAL ON GROUND NO. 3 IS ALLOWED. 10. AGGRIEVED THE REVENUE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS: 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN ALLOWING RELIEF OF RS. 75,05,071/- ON ACCOUNT OF AD DITION OF UNACCOUNTED INVESTMENT IN JEWELLERY U/S 69A OF THE I.T. ACT, 19 61, FOUND DURING THE COURSE OF SEARCH. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) FAILED TO APPRECIATE THE FACT OBSERVED BY THE AO THAT NO ITEM S OF VDIS VALUATION REPORT WAS MATCHING WITH THE SEARCH VALUATION REPOR T. 11. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE LD. CIT(A) HAD GIVEN A CAT EGORICAL FINDING THAT JEWELLERY IS DULY DISCLOSED BY THE ASSESSEES WIFE AND HIS MOTHER TO THE TUNE OF 1804.678 GMS IN VDIS 1997 AND THEREFORE, FOR WANT OF ITEM WI SE RECONCILIATION OF THE SAME, NO ADDITION THEREON COULD BE MADE PURSUANT TO THE S EARCH CONDUCTED IN THE PREMISES OF THE ASSESSEE. WE HOLD THAT JEWELLERY BE ING A FASHION INDUSTRY, IT IS VERY LIKELY THAT THE HOUSEHOLD PEOPLE FREQUENTLY RESORT TO CHANGING OF THE SAME TO BE IN TUNE WITH THE LATEST FASHION TRENDS BY EITHER CONVE RSION OR REMAKING OF THE SAME AND HENCE THE SAME WOULD FALL UNDER PREVAILING DOME STIC, CUSTOMARY AND HABITUAL PRACTICES. THIS FACT HAS BEEN DULY APPRECIATED BY T HE SEVERAL JUDICIAL FORUMS AND HAD NOT SUGGESTED ANY ADDITION TOWARDS JEWELLERY AS LONG AS THE WEIGHT IN GRAMS IS SATISFIED BY THE ASSESSEE. WITH REGARD TO THE REMA INING GMS OF 217.822 (2022.50 1804.678 GMS), IT WAS EXPLAINED THAT 77.09 GMS HAS ALREADY BEEN OFFERED BY THE 6 ITA NO.99/KOL/2016 SUNIL KUMAR KHEMKA A.YR.13-14 ASSESSEE AND REMAINING JEWELLERY WERE RECEIVED AS G IFTS BY THE TWO UNMARRIED DAUGHTERS ON VARIOUS AUSPICIOUS OCCASIONS. WE FIND THAT IT IS QUITE COMMON THAT JEWELLERY BEING RECEIVED BY THE CHILDREN ON VARIOUS AUSPICIOUS OCCASIONS AND MORE SO BY THE FEMALES DEPENDING UPON THEIR CUSTOMS AND HABITS. WE ALSO FIND THAT THE SAID JEWELLERY IS WELL WITHIN THE LIMITS PRESCRIBED UNDER CBDT INSTRUCTION NO. 1916 DATED 11.05.1994, WHICH THOUGH ISSUED FOR THE PURPOSE OF SEIZURE, SHOULD ALSO BE EXTENDED TO THE FACT OF SAME JEWELLERY BEIN G EXPLAINED BY THE ASSESSEE. HENCE, NO ADDITION IN THIS REGARD IS WARRANTED AS L ONG AS THE SAID JEWELLERY IS WITHIN THE LIMITS PRESCRIBED BY THE CBDT INSTRUCTIO N SUPRA. IN THIS REGARD WE PLACED RELIANCE ON THE FOLLOWING DECISIONS: A) DECISION OF HONBLE RAJASTHAN HIGH COURT IN THE CA SE OF CIT VS SATYA NARAIN PATNI REPORTED IN (2014) 366 ITR 325 (RAJ) WHEREIN IT WAS HELD THAT :- 12. IT IS TRUE THAT THE CIRCULAR OF THE CBDT, REFERRED TO SUPRA DT. 11/05/1994 ONLY REFERS TO THE JEWELLERY TO THE EXTENT OF 500 GMS PE R MARRIED LADY, 250 GMS PER UNMARRIED LADY AND 100 GMS PER MALE MEMBER OF THE F AMILY, NEED NOT BE SEIZED AND IT DOES NOT SPEAK ABOUT THE QUESTIONING OF THE SAID JEWELLERY FROM THE PERSON WHO HAS BEEN FOUND WITH POSSESSION OF THE SAID JEWE LLERY. HOWEVER, THE BOARD, LOOKING TO THE INDIAN CUSTOMS AND TRADITIONS, HAS F AIRLY EXPRESSED THAT JEWELLERY TO THE SAID EXTENT WILL NOT BE SEIZED AND ONCE THE BOA RD IS ALSO OF THE EXPRESS OPINION THAT THE SAID JEWELLERY CANNOT BE SEIZED, IT SHOULD NORMALLY MEAN THAT ANY JEWELLERY, FOUND IN POSSESION OF A MARRIED LADY TO THE EXTENT OF 500 GMS, 250 GMS PER UNMARRIED LADY AND 100 GMS PER MALE MEMBER OF T HE FAMILY WILL ALSO NOT BE QUESTIONED ABOUT ITS SOURCE AND ACQUISITION. WE CAN TAKE NOTICE OF THE FACT THAT AT THE TIME OF WEDDING, THE DAUGHTER/DAUGHTER-IN-LAW R ECEIVES GOLD ORNAMENTS JEWELLERY AND OTHER GOODS NOT ONLY FROM PARENTAL SI DE BUT IN-LAWS SIDE AS WELL AT THE TIME OF 'VIDAI' (FAREWELL) OR/AND AT THE TIME W HEN THE DAUGHTER-IN-LAW ENTERS THE HOUSE OF HER HUSBAND. WE CAN ALSO TAKE NOTICE O F THE FACT THAT THEREAFTER ALSO, SHE CONTINUES TO RECEIVE SOME SMALL ITEMS BY VARIOU S OTHER CLOSE FRIENDS AND RELATIVES OF BOTH THE SIDES AS WELL AS ON THE AUSPI CIOUS OCCASION OF BIRTH OF A CHILD WHETHER MALE OR FEMALE AND THE CBDT, LOOKING TO SUC H CUTOMS PREVAILING THROUGHOUT INDIA, IN ONE WAY OR THE ANOTHER, CAME O UT WITH THIS CIRCULAR AND WE ACCORDINGLY ARE OF THE FIRM OPINION THAT IT SHOULD ALSO MEAN THAT TO THE EXTENT OF THE AFORESAID JEWELLERY, FOUND IN POSSESSION OF THE VAROIUS PERSONS, EVEN SOURCE CANNOT BE QUESTIONED. IT IS CERTAINLY 'STRIDHAN' OF THE WOMAN AND NORMALLY NO 7 ITA NO.99/KOL/2016 SUNIL KUMAR KHEMKA A.YR.13-14 QUESTION AT LEAST TO THE SAID EXTENT CAN BE MADE. H OWEVER, IF THE AUTHORIZED OFFICERS OR/AND THE ASSESSING OFFICERS, FIND JEWELL ERY BEYOND THE SAID WEIGHT, THEN CERTAINLY THEY CAN QUESTION THE SOURCE OF ACQUISATI ON OF THE JEWELLERY AND ALSO IN APPROPRIATE CASES, IF NO PROPER EXPLANATION HAS BEE N OFFERED, CAN TREAT THE JEWELLERY BEYOND THE SAID LIMIT AS UNEXPLAINED INVE STMENT OF THE PERSON WITH WHOM THE SAID JEWELLERY HAS BEEN FOUND. 13. ADMITTEDLY, LOOKING TO THE STATUS OF THE FAMILY AN D THE JEWELLERY FOUND IN POSSESSSION OF FOUR LADIES, WAS HELD TO BE REASONAB LE AND THEREFORE, THE AUTHORIZED OFFICERS, IN THE FIRST INSTANCE, DID NOT SEIZE THE SAID JEWELLERY AS THE SAME BEING WITHIN THE TOLERABLE LIMIT OR THE LIMITS PRESCRIBED BY THE BOARD AND THUS, IN OUR VIEW, SUBSEQUENT ADDITION IS ALSO NOT JUSTIFICABLE ON THE PART OF THE ASSESSING OFFICER AND RIGHTLY DELETED BY BOTH THE T WO APPELLATE AUTHORITIES NAMELY' CIT(A) AS WELL AS THE TRIBUNAL. 14. IT CAN ALSO BE OBSERVED HERE THAT PRIOR TO 1992, W HEN THE EXEMPTION LIMIT UNDER THE WEALTH TAX ACT WAS ABOUT RS.1,00,000/- OR RS.1,50,000/-, THEN IN MOST OF THE CASES, RETURNS WERE FILED UNDER THE WEALTH T AX ACT BECAUSE EVEN IN CASE OF POSSESSION OF 500 GMS PER LADY AND THE OTHER ASSETS NAMELY; CAPITAL, INVESTMENTS IN FIRMS/SHARES, LANDED PROPERTY ETC. ETC. BEING TA XABLE RETURN OF WEALTH WERE INVARIABLY FILED BY THE ASSESSEES. HOWEVER, BY THE FINANCE ACT, 1992 W.E.F. 01/04/1993 DRASTIC CHANGE WAS INTRODUCED UNDER THE WEALTH TAX ACT WHERE ONLY SOME ASSETS U/S 2(EA) CAME WITHIN THE PERVIEW OF TH E DEFINITION OF AN 'ASSET' UNDER THE WEALTH TAX AND BY AND LARGE, THE OTHER AS SETS NAMELY; LIQUID, CAPITAL INVESTMENTS IN FIRMS/SHARES, ONE HOUSE PROPERTY, CO MMERCIAL ASSETS WERE EXEMPT AND EVEN THE LIMIT OF OTHER ASSETS WAS RAISED TO 15 LACS (FOR THE ASSESSMENT YEAR 1993-94 TO 2009-10) AND THEREAFTER, BY AND LARGE, E VEN THE ASSESSEES, WHO WERE FURNISHING RETURNS PRIOR TO 01/04/1992, IN VIEW OF THE DRASTIC AMENDMENT MADE UNDER THE WEALTH TAX ACT, CHOSE NOT TO FILE WEALTH TAX RETURN AS THERE WAS NO LIABILITY FOR FURNISHING WEALTH TAX RETURNS. THAT D OES NOT MEAN THAT WHATEVER ASSETS WERE THERE IN THEIR POSSESSION, NOT DISCLOSE D UNDER THE WEALTH TAX ACT, REMAINED UNDISCLOSED. MAY BE, LATER ON, ON ACCOUNT OF INCREASE IN THE GOLD/SILVER PRICES, VALUE OF GEMS/ STONES, VALUE OF JEWELLERY M AY HAVE EXCEEDED BUT THAT DOES NOT MEAN THAT IF A PERSON HAS NOT FILED WEALTH TAX RETURN, THEN JEWELLERY EVEN TO THE SAID EXTENT OF 500 GMS PRESCRIBED BY THE AFORES AID CIRCULAR, BECAME UNDISCLOSED. ADMITTEDLY, IT IS NOT THE CASE OF THE REVENUE THAT THE JEWELLERY, SO FOUND, WHICH HAS BEEN PRESCRIBED HEREINABOVE, WAS N OT ADMITTED BY THE FAMILY MEMBERS AT THE TIME OF SEARCH. ALL THE LADIES IN TH E FAMILY ADMITTED THAT THE JEWELLERY FOUND WERE ALL THEIR OWN AND SOME OF THE JEWELLERY WAS LYING IN CUSTODY AND CONTROL OF THEIR MOTHER-IN-LAW AND IN INDIAN CO NDITIONS, IT HAPPENS THAT THE DAUGHTER-IN-LAW KEEPS HER JEWELLERY WITH HER MOTHER -IN-LAW OR/AND HEAD OF THE FAMILY AND TAKES THE SAME WHENEVER REQUIRED FOR SOM E OCCASION IN THE FAMILY. EVEN OTHERWISE, THE JEWELLERY IS PERSONAL WEARING I N NATURE AND THE REVENUE HAS NOT PLACED ANY MATERIAL ON RECORD TO SHOW THAT THE ITEMS, WHICH WERE FOUND, WERE NOT PERSONAL WEARING OF THE LADIES. 8 ITA NO.99/KOL/2016 SUNIL KUMAR KHEMKA A.YR.13-14 15. CONSIDERING THE ABOVE FACTS AND CIRCUMSTANCES, IN O UR VIEW, THE TRIBUNAL HAS CORRECTLY ANALYZED THE CIRCULAR OF THE BOARD AND WE DO NOT FIND ANY INFIRMITY OR PERVERSITY IN THE ORDER OF THE ITAT SO AS TO CALL F OR ANY INTERFERENCE OF THIS COURT. IN OUR VIEW, NO SUBSTANTIAL QUESTION OF LAW ARISE O UT OF THE ORDER PASSED BY THE ITAT. B) DECISION OF CO-ORDINATE BENCH OF JODHPUR TRIBUNAL I N THE CASE OF DCIT VS ARJUN DASS KALWANI REPORTED IN (2006) 101 ITD 337 ( JODHPUR) THE HEAD NOTES THEREON ARE REPRODUCED AS UNDER:- SECTION 69 OF THE INCOME-TAX ACT, 1961 - UNEXPLAINE D INVESTMENTS - ASSESSMENT YEAR 1991-92 - CONSEQUENT UPON A SEARCH ACTION TAKE N ON ASSESSEE'S RESIDENTIAL PREMISES, CERTAIN QUANTITY OF GOLD ORNAMENTS WAS FO UND IN HIS POSSESSION - WHEN CONFRONTED, HE EXPLAINED WITH EVIDENCE THAT SAME BE LONGED TO HIS WIFE, DAUGHTER- IN-LAW AND TWO MARRIED DAUGHTERS; AND THAT EXCEPT H IS WIFE, EACH OF THEM HELD LESS THAN 500 GRAMS OF TOTAL QUANTITY - AS REGARDS HIS WIFE, HE PRODUCED LIST OF INVENTORY OF GOLD ORNAMENTS PREPARED ON 20-12-1983 DURING EARLIER SEARCH AND TAX RETURNS WHERE REVENUE HAD ASSESSED HIS WIFE AT MUCH MORE JEWELLERY THAN SEIZED - ASSESSING OFFICER, HOWEVER, TREATED ALMOST ENTIRE QUANTITY OF SAID GOLD AS UNEXPLAINED ON GROUND THAT ITEMS IN LIST DATED 20-1 2-1983 DID NOT TALLY WITH ITEMS FOUND IN INSTANT SEARCH AND ASSESSEE COULD NOT ADDU CE ANY EVIDENCE WITH REGARD TO REMAKING OR CONVERSION OF OLD GOLD ORNAMENTS - W HETHER SIMPLY BECAUSE ASSESSEE COULD NOT LEAD EVIDENCE FOR CONVERSION OR REMAKING OF JEWELLERY, POSSESSION OF WHICH WAS OTHERWISE ACCEPTED, IT COUL D BE SAID THAT HOLDING OF GOLD JEWELLERY TO THAT EXTENT COULD NOT BE ACCEPTED - HE LD, NO - WHETHER SINCE ASSESSEE'S DAUGHTER-IN-LAW AND MARRIED DAUGHTERS WE RE IN POSSESSION OF GOLD JEWELLERY, WHICH WAS MUCH BELOW CBDT'S PRESCRIBED L IMIT OF 500 GRAMS, NO ADDITION COULD BE SUSTAINED ON THAT ACCOUNT - HELD, YES - WHETHER, THEREFORE, COMMISSIONER (APPEALS) WAS JUSTIFIED IN DELETING IM PUGNED ADDITION - HELD, YES IN VIEW OF THE AFORESAID FACTS AND RESPECTFUL FOLLO WING THE AFORESAID JUDICIAL PRECEDENTS, WE FIND NO INFIRMITY IN THE ORDER OF TH E LD. CIT(A) IN THIS REGARD. ACCORDINGLY, GROUND NOS. 3 AND 4 RAISED BY THE REVE NUE ARE DISMISSED. 12. CO NO. 61/KOL/2017 FILED BY THE ASSESSEE IS ON LY SUPPORTIVE ORDER OF THE LD. CIT(A). 9 ITA NO.99/KOL/2016 SUNIL KUMAR KHEMKA A.YR.13-14 13. IN THE RESULT, THE APPEAL OF THE REVENUE IS DIS MISSED AND CROSS OBJECTION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 02.08.2017 SD/- SD/- [A.T.VARKEY] [ M.BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 02.08.2017 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. ACIT, CIRCLE-2(1), KOLKATA 2. SHRI SUNIL KUMAR KHEMKA, FLAT NO. 301, APARNA AP ARTMENT NEW DAK BUNGLOW ROAD, PATNA, BIHAR-800001 3..C.I.T.(A)-20, KOLKATA 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S