K.Sivakumar, Tirunelveli V. DCIT, CHENNAI

MA 178/CHNY/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4737 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 13-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Assessee Lawyers: R VIJAYARAGHAVAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI ... , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER M.P. NO.178/MDS/2016 (IN I.T.A. NO.1765/MDS/2014) ' (' / ASSESSMENT YEAR : 2009-10 SHRI K. SIVAKUMAR, 176F, TRIVANDRUM ROAD, TIRUNELVELI 627 003. PAN : AJTPS 5869 H V. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE IV(1), CHENNAI - 600 034. (*+' /PETITIONER) (*,+-/ RESPONDENT) *+' / 0 /PETITIONER BY : SH. R. VIJAYARAGHAVAN, ADVOC ATE *,+- / 0 / RESPONDENT BY : SHRI SHIVA SRINIVAS, JCIT 1 / 2% / DATE OF HEARING : 09.09.2016 3'( / 2% / DATE OF PRONOUNCEMENT : 23.09.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS PETITION ON THE GROUND THAT ONE OF THE GROUNDS RAISED BY THE ASSESSEE AS GROUND NO.5 WITH REGARD TO UNEXPLAINED JEWELLERY WA S NOT DISPOSED OF BY THIS TRIBUNAL. 2 M.P. NO.178/MDS/16 2. SH. R. VIJAYARAGHAVAN, THE LD.COUNSEL FOR THE AS SESSEE, SUBMITTED THAT THIS TRIBUNAL BY ORDER DATED 01.06.2 016, DISPOSED OF THE ASSESSEES APPEAL. THE ASSESSEE IN THE APPEAL HAS RAISED A SPECIFIC GROUND WITH REGARD TO ADDITION OF ` 38,95,935/- TOWARDS UNEXPLAINED JEWELLERY UNDER SECTION 69A OF THE INCO ME-TAX ACT, 1961 (IN SHORT 'THE ACT'). THE ASSESSEE CONTENDED BEFORE THE ASSESSING OFFICER THAT HAVING ACCEPTED THE DRAWING AND PERSONAL EXPENDITURES INCLUDING THE PURCHASE OF JEWELLERY, T HERE CANNOT BE ANY ADDITION DURING THE YEAR UNDER CONSIDERATION. THE LD.COUNSEL FURTHER SUBMITTED THAT IN THE OTHER FAMILY MEMBERS CASE, THIS TRIBUNAL FOUND THAT THE ASSESSEE MIGHT HAVE ACQUIRE D 1200 GMS OF JEWELLERY. THEREFORE, AS IT WAS ALLOWED IN THE CAS E OF OTHER FAMILY MEMBER OF THE ASSESSEE, THERE CANNOT BE ANY ADDITIO N TO THE EXTENT OF 1200 GMS OF JEWELLERY. 3. THE LD.COUNSEL FOR THE ASSESSEE FURTHER SUBMITTE D THAT THE ASSESSEE HAS DECLARED 129 GMS OF JEWELLERY FOR ASSE SSMENT YEAR 1992-93, WHICH WAS REFERRED TO BY THE ASSESSING OFF ICER AT PARA 9.7 OF THE ASSESSMENT ORDER. THIS 129 GMS OF JEWELLERY WAS ALSO DECLARED IN THE WEALTH-TAX RETURN. MOREOVER, 36.27 GMS OF GOLD JEWELLERY AND 5.98 CARAT OF DIAMOND JEWELLERY WAS D EBITED IN THE ACCOUNTS OF AREMKAY ON 26.10.2008. THIS WAS ALSO N OT GIVEN 3 M.P. NO.178/MDS/16 CREDIT. MOREOVER, 960 GMS OF GOLD JEWELLERY WAS BO UGHT ON 30.09.2005, WHICH WAS DEBITED IN INDIAN OVERSEAS BA NK, RK SALAI BRANCH. THIS WAS ALSO NOT CONSIDERED BY BOTH THE A UTHORITIES BELOW. MOREOVER, THE JEWELLERY RECEIVED BY THE ASSESSEES MOTHER DURING HER MARRIAGE AND THE ASSESSEES SON WAS ALSO NOT TA KEN INTO CONSIDERATION. REFERRING TO THE CASH FLOW STATEMEN T, THE LD.COUNSEL SUBMITTED THAT IN THE CASH FLOW STATEMENT, THE ASSE SSEE HAS DECLARED ` 12,60,749/- AS APPLIED FOR BUYING GOLD JEWELLERY. THIS WAS ALSO NOT TAKEN INTO CONSIDERATION. IF THESE EX PLANATIONS WERE TAKEN INTO CONSIDERATION, ACCORDING TO THE LD. COUN SEL, THE ENTIRE GOLD JEWELLERY FOUND WOULD STAND EXPLAINED. 4. ON THE CONTRARY, SHRI SHIVA SRINIVAS, THE LD. DE PARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE GROUND WITH REGA RD TO UNEXPLAINED JEWELLERY TO THE EXTENT OF ` 38,95,935/- WAS NOT DISPOSED OF BY THIS TRIBUNAL. THEREFORE, IT NEEDS TO BE DISPOSED OF. TO THAT EXTENT, THERE IS AN ERROR IN THE ORDER OF T HIS TRIBUNAL. REFERRING TO THE MERIT OF THE CLAIM MADE BY THE ASS ESSEE, THE LD. D.R. SUBMITTED THAT DURING THE COURSE OF SEARCH OPE RATION, 2891.5 GMS OF GOLD JEWELLERY WAS FOUND. AFTER GIVING CRED IT TO THE JEWELLERY OF THE RELATIVES, STRIDHAN JEWELLERY, JEWELLERY SAI D TO BE RECEIVED FROM MOTHER AND EXPLAINED SOURCE OF PURCHASE OF JEW ELLERY, THE 4 M.P. NO.178/MDS/16 ASSESSING OFFICER FOUND THAT 1704.4 GMS OF JEWELLER Y REMAINS TO BE EXPLAINED APART FROM 77.94 CT OF DIAMOND. THE ASSE SSING OFFICER ESTIMATED THE VALUE OF THE JEWELLERY AT ` 38,95,935/-. SINCE NO EXPLANATION WAS FORTHCOMING, ACCORDING TO THE LD. D .R., THE ASSESSING OFFICER HAS RIGHTLY MADE ADDITION UNDER S ECTION 69A OF THE ACT. THE CIT(APPEALS) HAS ALSO RIGHTLY CONFIRM ED THE ORDER OF THE ASSESSING OFFICER. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSEE CLAIMS THAT 129 GMS OF JEWELLERY WAS DECLARED IN TH E WEALTH-TAX RETURN FOR THE ASSESSMENT YEAR 1992-93, 36.27 GMS O F JEWELLERY AND 5.98 CT OF DIAMOND JEWELLERY WERE DEBITED IN THE AR EMKAYS ACCOUNTS ON 26.10.2008. THESE ARE ALL NOT GIVEN CR EDIT BY THE ASSESSING OFFICER. THE ASSESSEE ALSO CLAIMS THAT 9 60 GMS OF JEWELLERY WAS BOUGHT ON 30.09.2005, WHICH WAS DEBIT ED IN INDIAN OVERSEAS BANK, RK SALAI BRANCH. THE ASSESSEE ALSO CLAIMS THAT STRIDHAN PROPERTY AND JEWELLERY BELONGING TO HIS SO N AND MOTHER WAS ALSO TO BE CONSIDERED. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT BY TAKING INTO CONSIDERATION THE STATU S OF THE ASSESSEE IN THE LOCALITY AND HIS NATURE OF BUSINESS, THE ASS ESSEE MIGHT HAVE 1200 GMS OF JEWELLERY. 5 M.P. NO.178/MDS/16 6. MOREOVER, THE ASSESSEE ALSO CLAIMS THAT PURCHASE OF 960 GMS OF JEWELLERY WAS DEBITED IN INDIAN OVERSEAS BAN K, RK SALAI BRANCH. THE JEWELLERY WAS DISCLOSED IN THE WEALTH- TAX RETURN FOR ASSESSMENT YEAR 1992-93. ALL THESE NEED TO BE TAKE N INTO CONSIDERATION. THE AMOUNT DISCLOSED IN THE CASH FL OW STATEMENT FOR PURCHASE OF JEWELLERY TO THE EXTENT OF ` 12,60,749/- ALSO NEEDS TO BE TAKEN INTO CONSIDERATION. SINCE THESE WERE NOT TAK EN INTO CONSIDERATION, THIS TRIBUNAL IS OF THE CONSIDERED O PINION THAT THE ASSESSING OFFICER SHALL CONSIDER ALL THESE THINGS A ND THEREAFTER DECIDE THE ISSUE. ACCORDINGLY, THE ORDERS OF THE A UTHORITIES BELOW ARE SET ASIDE AND THE ISSUE OF UNDISCLOSED INVESTME NT OF ` 38,95,935/- IS REMITTED BACK TO THE FILE OF THE ASS ESSING OFFICER. THE ASSESSING OFFICER SHALL RE-EXAMINE THE MATTER A ND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING CREDIT IN RESPECT OF THE CLAIM MADE BY THE ASSESSEE AND THEREAFTER DE CIDE THE SAME IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS ALLOWED. 6 M.P. NO.178/MDS/16 ORDER PRONOUNCED ON 23 RD SEPTEMBER, 2016 AT CHENNAI. SD/- SD/- (. !'# ! ) ( ... ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 23 RD SEPTEMBER, 2016. KRI. / *267 87(2 /COPY TO: 1. *+' / PETITIONER 2. *,+- /RESPONDENT 3. 1 92 () /CIT(A) 4. 1 92 /CIT 5. 7: *2 /DR 6. ;' < /GF.