Shri C.E.Fernandes, Bhopal V. The ACIT, 1(1), Bhopal

MA 14/IND/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0260 (ITAT-INDORE)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-04-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 31-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V I MEHTA
• Assessee Lawyers: H P VERMA

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R. C. SHARMA, ACCOUNTANT MEMBER M.A. NO.14/IND/2013 (ARISING OUT OF I.T.(SS)A. NO.226/IND/2012) ASSESSMENT YEAR:2007-08 SHRI C. E. FERNANDES, VS. A.C.I.T.-1(1), 26A, INDUSTRIAL AREA, BHOPAL. GOVINDPURA, BHOPAL. PAN:AADPF7878E (APPLICANT) (RESPONDENT) APPLICANT BY :SHRI H. P. VERMA, ADVOCATE RESPONDENT BY :SHRI V. I. MEHTA, SR. D.R. DATE OF HEARING :26/04/2013 DATE OF PRONOUNCEMENT :26/04/2013 ORDER PER R. C. SHARMA: THIS MISC. PETITION HAS BEEN FILED BY THE ASSESSEE TO RECTIFY THE MISTAKE ALLEGED TO BE OCCURRED IN THE ORDER DATED 31/12/201 2 PASSED BY I.T.A.T. IN I.T.(SS)A. NO.226/IND/2012. OUR ATTENTION WAS DRAW N TO PARA 3 OF THE APPELLATE ORDER. THE LAST TWO SENTENCES OF THIS PARAGRAPH RE AD AS UNDER: AFTER GIVING CREDIT OF 200 GMS. & 130 GMS. THE AS SESSING OFFICER IS TO RECOMPUTE THE AMOUNT OF ADDITION AFTER CONSIDERI NG THE IMPURITIES IN GOLD JEWELLERY SO FOUND. WE DIRECT A CCORDINGLY. 2. IT WAS CONTENDED BY LEARNED A. R. THAT JEWELLERY VALUED AT RS.5,66,106/- WAS FOUND DURING THE COURSE OF SEARCH. IT WAS CLAI MED THAT THE JEWELLERY BELONGED TO THE APPELLANT AND TO HIS WIFE MRS. EVER LYN FERNANDIS. THIS JEWELLERY 2 WAS BEING SHOWN IN THE RETURNS PRIOR TO THE FIRST A SSESSMENT U/S 153A. THE ASSESSEE IS SHOWING POSSESSION OF THIS JEWELLERY EV EN IN RETURN FILED FOR PERIOD ENDING 31/03/1983. ACCORDINGLY A FINDING WAS GIVEN IN THE CASE OF MRS. EVERLYN FERNANDIS THAT THE TOTAL JEWELLERY WAS EXPLAINED AN D ADDITION WAS DELETED. 3. ON THE OTHER HAND, LEARNED D.R. CONTENDED THAT T HERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL, THEREFORE, NO RECTIFICATION IS REQUIRED U/S 254(2) OF THE I. T. ACT. 4. WE HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFUL LY GONE THROUGH THE ORDER OF THE TRIBUNAL IN ASSESSEES CASE DATED 31/1 2/2012. WE FOUND THAT TRIBUNAL HAS ALREADY PASSED ORDER IN THE CASE OF WI FE OF THE ASSESSEE ON 31 ST OCTOBER, 2012 WHEREIN ISSUE WITH REGARD TO ADDITION MADE ON ACCOUNT OF JEWELLERY FOUND WAS DEALT BY THE TRIBUNAL AT PAGE 3 2, PARA 46, WHICH READS AS UNDER: 46. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORDS PERUSED. FROM THE RECORD, WE FOUND THAT JEWELLERY WEIGHING 2 800 GMS. WERE ACQUIRED BY THE ASSESSEE BETWEEN THE FINANCIAL YEAR 1964 TO 1999- 2000. DURING THE COURSE OF SEARCH, JEWELLERY WEIGH ING 1689.200 GMS. WERE FOUND AT THE RESIDENCE, WHEREAS JEWELLERY WEIGHING 1115.400 GMS. WAS FOUND IN LOCKER, TOTAL OF THESE J EWELLERIES WORKS OUT TO BE 2804.600 GMS. HOWEVER, THESE JEWELLERIES WERE NOT SEIZED BY THE SEARCH PARTY. DURING THE COURSE OF A SSESSMENT, THE ASSESSING OFFICER HELD THAT HALF OF ITS BELONGS TO THE ASSESSEE AND HALF TO HER HUSBAND AFTER GIVING REBATE OF 130 GMS. PURCHASED IN FINANCIAL YEAR 2005-06, THE ASSESSING OFFICER WORKE D OUT JEWELLERY AT 1272.300 GMS., WE FOUND THAT THE ASSESSEE WAS MA RRIED ON 20/05/1965 AND SINCE THEN, SHE POSSESSES THE JEWELL ERY AND ALSO ACQUIRED DURING THE SAID YEARS. WE ALSO FOUND THAT AS ON 31/03/1983, THE RATE OF 10 GMS. OF 24 CT. WAS RS.1, 800/-. ACCORDINGLY, THE VALUE OF JEWELLERY WEIGHING 2800 G MS. COMES TO RS.5,04,000/-. IN RESPECT OF GOLD ORNAMENTS WITH 2 0% IMPURITIES, THE VALUE IS RS.4,40,320/- AND THE ASSESSEE HAS REA SONABLY SHOWN 3 THE VALUE OF JEWELLERY AMOUNTING TO RS.2,59,880/- I N ASSESSEES HANDS. THE ASSESSEE IS SHOWING VALUATION OF RS.4,6 6,880/- WHICH COMES FOR JEWELLERY OF 21 CT. SINCE THE JEWELLERY W AS ACQUIRED BETWEEN THE PERIOD 1964 TO 1999-2000, THE AVERAGE R ATE OF JEWELLERY FROM 1965 TO 1966 WAS ADOPTED AT RS.1,412 /- PER 10 GMS. ACCORDINGLY, THE VALUE SHOULD BE WORKED OUT ON THE AVERAGE BASIS OF THE GOLD PRICE FROM 1965 TO 1996. THUS, THE WEI GHT OF JEWELLERY FOUND IN SEARCH AT 2804.600 GMS. IN PLACE OF JEWELL ERY CLAIMED AT 2800 GMS. IS A VERY NEGLIGIBLE DIFFERENCE DUE TO WE IGHT, IMPURITIES ETC. ACCORDINGLY, NO ADDITION WAS WARRANTED ON ACC OUNT OF JEWELLERY. WE DIRECT ACCORDINGLY. 5. IT IS CLEAR FROM THE EARLIER ORDER PASSED BY THE TRIBUNAL IN CASE OF WIFE OF THE ASSESSEE, THAT ENTIRE ADDITION MADE ON ACCOUNT OF TOTAL JEWELLERY FOUND DURING COURSE OF SEARCH WEIGHING 2804.600 GMS. WER E DELETED BY THE TRIBUNAL AFTER OBSERVING THAT THE WEIGHT OF JEWELLERY FOUND IN SEARCH AT 2804.600 GMS. IN PLACE OF JEWELLERY CLAIMED AT 2800 GMS. IS VERY NEG LIGIBLE DIFFERENCE DUE TO WEIGHT AND IMPURITIES. ACCORDINGLY, NO ADDITION WA S WARRANTED. 6. IN VIEW OF THIS CONCLUSION OF THE TRIBUNAL IN IT S ORDER DATED 31 ST OCTOBER, 2012 IN THE CASE OF WIFE OF THE ASSESSEE, THE DIREC TION GIVEN BY US IN CASE OF HUSBAND IN ORDER DATED 31 ST DECEMBER, 2012 HAS BECOME A MISTAKE APPARENT FROM RECORD. ACCORDINGLY, WE RECTIFY THE SAME AND DIRECT THE ASSESSING OFFICER THAT NO ADDITION IS WARRANTED ON ACCOUNT OF JEWELLE RY IN THE HANDS OF THE ASSESSEE WHO IS HUSBAND OF MRS. EVERLYN FERNANDIS. WE DIRECT ACCORDINGLY. 7. IN THE RESULT, THE MISC. APPLICATION OF THE ASSE SSEE IS ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON 26/04/2 013) SD/. SD/. (JOGINDER SINGH) ( R. C. SHARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:26/04/2013 *CL SINGH