The DCIT, Circle-14,, Ahmedabad v. Shri Anil R.Pareek, Ahmedabad

ITA 2189/AHD/2009 | 2006-2007
Pronouncement Date: 16-12-2011 | Result: Partly Allowed

Appeal Details

RSA Number 218920514 RSA 2009
Assessee PAN ADGPP9728P
Bench Ahmedabad
Appeal Number ITA 2189/AHD/2009
Duration Of Justice 2 year(s) 5 month(s) 6 day(s)
Appellant The DCIT, Circle-14,, Ahmedabad
Respondent Shri Anil R.Pareek, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 16-12-2011
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 16-12-2011
Date Of Final Hearing 12-12-2011
Next Hearing Date 12-12-2011
Assessment Year 2006-2007
Appeal Filed On 10-07-2009
Judgment Text
ITA NO.2189/AHD/2009 ASSE SSMENT YEAR 2006-07. 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE SHRI G.C. GUPTA VP & B.P. JAIN A.M.) I.T.A. NO.2189 /AHD/2009 (ASSESSMENT YEAR : 2006 -2007 ) DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-14 6 TH FLOOR NATURE VIEW BUILDING NR. H.K. HOUSE ASHRAM ROAD AHMEDABAD. (APPELLANT) VS. SHRI ANIL R.PAREEK 31 ANGAN BUNGALOWS JASODA CHOKDI N.H.NO.8 MANINAGAR AHMEDEABAD (RESPONDENT ) PAN: ADGPP 9728P APPELLANT BY : SHRI U. B. MISHRA S R. D.R. RESPONDENT BY : SHRI S.N. DIVATIA ( )/ ORDER DATE OF HEARING : 12-12-2011 . DATE OF PRONOUNCEMENT : 16-12-2011 PER: SHRI B.P. JAIN A.M. THIS APPEAL OF THE REVENUE ARISES FROM THE ORDER OF LD. CIT (A) XXI AHMEDABAD DATED 21-4-2009 FOR THE ASSESSMENT YEAR 2 006-07. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL :- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 41 73 205/- BEING UNEXPLAINED MONEY U/S. 69A OF THE I.T. ACT. ITA NO.2189/AHD/2009 ASSE SSMENT YEAR 2006-07. 2 2. THE LD. CIT (A) HAS ERRED IN LAW AND ON FACTS IN ALLOWING DEDUCTION U/S. 10(5) IN RESPECT OF LTA ALLOWING RELIEF OF RS. 94 000/-. 2. AS REGARDS GROUND NO.1 BRIEF FACTS ARE THAT THE ASSESSEE HAD DECLARED LONG TERM CAPITAL LOSS OF RS.26 500/- ON SALE OF GOLD OR NAMENTS AND JEWELLERY FOR RS.41 73 205/-.THE ASSESSEE HAD MADE INVESTMENT OF RS.26 55 000/- IN VARIOUS MUTUAL FUNDS RS. 15 14 900/- IN PURCHASE OF HOUSE AND RS.2 39 200/- IN PURCHASE OF A SHOP. DURING THE COURSE OF ASSESSMENT PROCEEDI NGS THE AO EXAMINED IN DETAIL THE CLAIM OF THE ASSESSEE OF HAVING SOLD JEWELLERY. THE AO SUMMONED THE STAMP VENDOR SHRI DATTARAM MAYASHANKAR DAVE AND RECORDED HIS STATEMENT ON 10-12- 2008. THE AO ALSO RECORDED STATEMENT OF THE ASSESSE E ON 5-12-2008. THE AO OBSERVED FROM THE TESTIMONY OF THE SAID STAMP VEND OR THAT HE HAD ALREADY SURRENDERED HIS LICENSE IN THE YEAR 1994 AND SOMEBO DY HAD APPROACHED HIM DURING THE DIWALI 2008 FOR PRE-DATED STAMPS OF RS.10/-. HE NCE THE STAMP VENDOR HAD HANDED OVER STAMP OF RS.10/- LYING IDLE WITH HIM. T HE AO ALSO GRANTED OPPORTUNITY FOR CROSS-EXAMINATION OF THE SAID STAMP VENDOR TO THE ASSESSEE ON 18- 12-2008 BUT THE STAMP VENDOR DID NOT REMAIN PRESENT . THE AO ALSO ISSUED SUMMONS TO M/S./ UMA JEWELLERS OF AHMEDABAD WHOM TH E SALE OF GOLD ORNAMENTS AND JEWELLERY WAS CLAIMED TO HAVE BEEN MADE BUT NO BODY ATTENDED. ULTIMATELY THE AO CONCLUDED THAT THE CLAIM OF THE ASSESSEE THA T HE HAD RECEIVED GOLD ORNAMENTS AND JEWELLERY FROM HIS GRANDFATHER WAS FA LSE. THE RELEVANT PARAGRAPH FROM AOS ORDER IS REPRODUCED AS UNDER FOR THE SAKE OF CLARITY: 8. THE ASSESSEES CLAIM THAT HE RECEIVED GOLD ORN AMENTS AND JEWELLERY FROM HIS GRANDFATHER FOUND TO BE FALSE BECAUSE OF T HE FOLLOWING REASONS:- (1) THE ASSESSEES GRANDFATHER WAS PRACTICING HOMEO PATHY. HE HAS NOT LEFT ANY ASSERTS EXCEPT JEWELLERY WHICH WAS CLAIMED TO BE RECEIVED BY THE ASSESSEE. EVEN NO BANK ACCOUNTS LAND HOUSE ETC. HAVE BEEN LEFT BY HIS GRANDFATHER. MOREOVER NONE ELSE IN THE FAMILY OF T HE ASSESSEE I.E. HIS FATHER BROTHER OR SISTER RECEIVED ANYTHING FROM HIS GRANDF ATHER. EVEN NONE OF THE ITA NO.2189/AHD/2009 ASSE SSMENT YEAR 2006-07. 3 FAMILY MEMBERS OF THE ASSESSEE ARE HAVING KNOWLEDGE OF GOLD ORNAMENTS AND JEWELLERY RECEIVED FROM HIS GRANDFATHER. THUS THE STATEMENT GIVEN BY THE ASSESSEE IS A SELF-STATEMENT AND THEREFORE HAV E NO EVIDENTIARY VALUE. (II) SO FAR AS A COPY OF GIFT DEED IS CONCERNED IT IS PROVED TO BE MADE AFTER OCTOBER 2008 I.E. AFTER THE DEPARTMENT INSISTED FO R ANY INDEPENDENT EVIDENCE IN SUPPORT OF THE CLAIM MADE BY THE ASSESS EE. THE STAMP PAPER HAS BEEN PURCHASED FROM THE STAMP VENDOR WHO IS NOT AUT HORIZED BECAUSE OF THE FACT THAT THE REGISTRATION HAS BEEN SURRENDERED IN THE YEAR 1994. THUS THE ASSESSEE TRIED TO CREATE THE EVIDENCE IN SUPPORT OF HIS CLAIM THAT HE RECEIVED FROM HIS GRANDFATHER. (III) SINCE THE SALE PROCEEDS HAVE BEEN DEPOSITED I N THE BANK ACCOUNT OF THE ASSESSEE MAINTAINED WITH CANARA BANK THE SAME REMA INS UNEXPLAINED MONEY WITHIN THE MEANING OF SECTION 69A OF THE I. T . ACT. 3. DURING REMAND PROCEEDINGS THE AO ONCE AGAIN RECO RDED STATEMENT OF THE ASSESSEE ON 17-4-2009 AND ALSO OF SHRI UMESH K. PAT EL OF UMA JEWELLERS. THE COPY OF THE REMAND REPORT WAS SUBMITTED TO THE ASSE SSEE WHO HAD FILED THE REPLY DATED 21-4-2009 TO THE LD. CIT (A). 4. THE LD. CIT (A) AFTER CONSIDERING THE REMAND REP ORT AND FACTS ON RECORD OBSERVED WITH REGARD TO CONTENTION OF THE AO THE C APABILITY OF THE DONOR- GRANDFATHER OF THE ASSESSEE AND IGNORANCE OF THE FA MILY MEMBERS ABOUT GIVING OF JEWELLERY TO THE ASSESSEE. HE FOUND SUBSTANCE IN TH E SUBMISSION OF THE ASSESSEE THAT THE ASSESSEE MAY NOT BE AWARE ABOUT THE JEWELLERY O R ANY OTHER ASSETS GIFTED BY HIS GRANDFATHER TO OTHER CHILDREN AND SIMPLY ON ACCOUNT OF SUCH IGNORANCE IT CANNOT BE SAID THAT THE ASSESSEE WAS NOT GIVEN GOLD ORNAMENTS AND JEWELLERY BY HIS GRANDFATHER. THE LD. CIT (A) FOUND CONVINCING EXPLA NATION OF THE ASSESSEE THAT THE ASSESSEE WAS STAYING ALONE AND HIS CLOSED RELATIVES WERE STAYING ABROAD. AS REGARDS THE STATEMENT OF STAMP VENDOR THE LD. CIT (A) OBSE RVED THAT STAMP VENDOR HAD NOT IDENTIFIED THE ASSESSEE AND ON THE CONTRARY HE OBSERVED THAT PRESUMPTION WOULD ITA NO.2189/AHD/2009 ASSE SSMENT YEAR 2006-07. 4 BE THAT THE CONTENTS MENTIONED ON THE STAMP PAPER A RE TRUE AND CORRECT UNLESS THE SAME HAVE BEEN PROVED TO BE FALSE. THE ASSESSEE HAD FILED THE AFFIDAVIT DATED 18-3- 2009 OF THE STAMP VENDOR WHEREIN HE CONFIRMED THAT IN THIS LINE OF BUSINESS THE IDENTITY OF THE SIGNATURE OF THE PURCHASER OF STAMP PAPER ARE NOT INSISTED UPON. HE ALSO STATED THAT THE REPLY TAKEN BY THE AO WAS TAKE N FORCIBLY AND WITHOUT ALLOWING HIM TO GO THROUGH THE SAID REPLY. 5. AS REGARDS THE SALE PROCEEDS OF GOLD ORNAMENTS THE ASSESSEE HAS FILED AFFIDAVIT DATED 16-3-2009 OF SHRI UMESH K. PATEL P ROP. OF UMA JEWELLERS WHO HAS GIVEN VIVID DESCRIPTION OF THE PROCEEDINGS TAKEN PL ACE BEFORE THE AO AND ALSO THE DOCUMENTARY EVIDENCE BY WAY OF STOCK REGISTER BANK ACCOUNT WITH REGARD TO PURCHASE OF THE SAID ORNAMENTS. SHRI UMESH K. PATEL PROP. OF UMA JEWELLERS WAS CROSS EXAMINED BY THE AO IN THE REMAND PROCEEDINGS WHEREIN IN REPLY TO QUESTION NO.8 TO 11 HE HAS CATEGORICALLY CONFIRMED TO HAVE P URCHASED JEWELLERY FROM THE ASSESSEE WHICH WAS SUPPORTED BY THE DOCUMENTARY EVI DENCES LIKE STOCK REGISTER BANK ACCOUNT AND OTHER BOOKS OF ACCOUNT. THE AO HAS NOT DISPUTED THIS ASPECT. ACCORDINGLY THE LD. CIT (A) OBSERVED THAT SALE PRO CEEDS OF GOLD ORNAMENTS AND JEWELLERY WERE DEPOSITED IN THE BANK ACCOUNT OF THE ASSESSEE AND SAID JEWELLERY AS CLAIMED BY THE ASSESSEE WAS RECEIVED FROM HIS GRAND FATHER AND ACCORDINGLY DIRECTED THE AO TO ACCEPT THE LONG TERM CAPITAL LOS S AND DELETE THE ADDITION OF RS.41 73 205/- WHICH IS UNEXPLAINED UNDER SECTION 69A OF THE ACT. 6. THE LD. D.R. ON BEHALF OF THE REVENUE RELIED UPO N THE ORDER OF THE AO AND ARGUED THAT THERE IS NOTHING ON RECORD WHETHER THE GRANDFATHER WAS IN POSSESSION OF SO MUCH OF THE JEWELLERY. ALL THE EVIDENCES CREATED BY THE ASSESSEE ARE AFTER THOUGHT. THE STAMP VENDOR HAD STATED THAT SOMEBODY HAD APPROACHED HIM FOR PURCHASING THE PRE-DATED STAMP OF RS.10/- FOR A CON SIDERATION OF RS.300/- AND ITA NO.2189/AHD/2009 ASSE SSMENT YEAR 2006-07. 5 STAMP VENDOR HAD CONFIRMED THE PURCHASERS SIGNATUR E AS APPEARING IN THE COPY ON THE SAID STAMP PAPER. THE ASSESSEE AFTER POSSESSION OF THE JEWELLERY IN 2000 HAS NOT FILED WEALTH TAX RETURN. THERE IS NO OTHER EVIDENCE WITH THE ASSESSEE WHICH IS PLACED ON RECORD THAT THE ASSESSEE WAS ACTUALLY IN POSSESSION OF SUCH JEWELLERY. THEREFORE THE LD. DR FOR THE REVENUE VEHEMENTLY AR GUED AND PRAYED TO CONFIRM THE ORDER OF THE AO WHICH IS WELL REASONED AND REVE RSE THE ORDER OF THE LD. CIT (A) ON THE ISSUE. 7. THE LD. COUNSEL FOR THE ASSESSEE MR. S.N. DIVATI A RELIED UPON THE ORDER OF THE LD. CIT (A). HE ARGUED THAT STATEMENT OF SHRI U MESH K. PATEL PROP. OF UMA JEWELLERS WAS RECORDED BY THE AO IN THE REMAND PROC EEDINGS WHO HAS PRODUCED THE STOCK REGISTER BOOKS OF ACCOUNT AND HAS CONFIR MED OF HAVING PURCHASED THE GOLD ORNAMENTS FROM THE ASSESSEE WHICH SHOULD NOT B E UNDER DISPUTE. AS REGARDS THE CONTENTS OF THE AFFIDAVIT IT HAS BEEN ALLEGED TO HAVE BEEN PURCHASED BY THE ASSESSEE DOES NOT HAVE ANY EVIDENTIARY VALUE BECAUS E THE STAMP VENDOR HAS NOT MENTIONED THE NAME OF THE ASSESSEE DURING THE STATE MENT BEFORE THE AO RECORDED U/S. 131 OF THE ACT TO THIS EFFECT. THE STAMP VENDO R HAD GIVEN THE AFFIDAVIT DATED 18-3-2009 CLARIFYING THE POSITION. 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. IT WAS ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAD NOT GIFTED THE JEWELLERY WEIGHING 3093 GMS. FOR WHICH GIFT DEED DA TED 10-12-1998 WAS PRODUCED BEFORE THE AO. WITH REGARD TO THE STAMP PAPER IN W HICH SAID DEED WAS WRITTEN HAS BEEN STATED BY THE STAMP VENDOR TO HAVE BEEN PURCHA SED PRE-DATED FOR A CONSIDERATION OF RS.300/- AND HE HAS CONFIRMED THE PURCHASERS SIGNATURE IS EVIDENT FROM PARAGRAPH-6 OF AOS ORDER. ACCORDING TO THE AO THIS IS AN AFTER THOUGHT STORY TO BRING ON RECORD THE POSSESSION OF JEWELLERY BY THE DONOR FOR ITA NO.2189/AHD/2009 ASSE SSMENT YEAR 2006-07. 6 GIFTING IT TO THE DONEE. THE AFFIDAVIT FILED BY THE STAMP VENDOR CANNOT BE OF ANY BENEFIT TO THE ASSESSEE. IN THE CIRCUMSTANCES AND F ACTS OF THE CASE THERE IS NO EVIDENCE OF POSSESSING THE JEWELLERY WEIGHING 3093 GMS. BY THE GRANDFATHER OF THE ASSESSEE AND OF TAKING THE GIFT OF THE SAID JEWELLE RY BY THE ASSESSEE TO THE DONOR. THERE IS NO DISPUTE THAT THE DONOR HAS NOT DECLARED TO DEPARTMENT SUCH JEWELLERY IN THE RELEVANT YEAR WHEN IT WAS GIFTED OR EARLIER YEA RS EITHER IN THE RETURN OF INCOME OR THE RETURN OF WEALTH. BUT AT THE SAME TIME THE U NDISPUTED FACT REMAINS THAT THE FATHER OF THE ASSESSEE IS THE ONLY SON OF THE ASSES SEES GRANDFATHER AND THE BROTHER AND SISTER OF THE ASSESSEE ARE LIVING ABROAD AND TH ERE IS NOTHING BROUGHT ON RECORD THAT ANY PART OF THE JEWELLERY OR ANY OTHER GIFT HA VING BEEN RECEIVED BY ANY OF THE BROTHER OR SISTER FROM THE GRANDFATHER OF THE ASSES SEE. THEREFORE NOW IN THE CIRCUMSTANCES AND FACTS OF THE PRESENT CASE IT CAN NOT BE BELIEVED THAT THE GRANDFATHER OF THE ASSESSEE HAD GIFTED 3093 GMS OF THE JEWELLERY TO THE ASSESSEE BUT THE ARGUMENTS OF THE LD. AR THE SUBMISSION OF THE ASSESSEE BEFORE BOTH THE AUTHORITIES BELOW AND THE CUSTOMS IN HINDU RELIGION IT CANNOT BE DENIED THAT JEWELLERY HAD NOT BEEN GIVEN BY THE GRANDFATHER TO THE ASSESSEE. SOME JEWELLERY CERTAINLY MUST HAVE BEEN GIVEN BY THE GRANDFATHER T O THE ASSESSEE. TO MEET BOTH THE ENDS OF JUSTICE AND IN THE PRESENT CIRCUMSTANCES AN D FACTS OF THE CASE AND CUSTOMS OF HINDU RELIGION WE ESTIMATE THE GIFT OF 1000 GMS . OF JEWELLERY BY THE GRANDFATHER TO THE PRESENT ASSESSEE. WE ACCORDINGLY DIRECT THE AO TO ACCEPT 1000 GMS OF JEWELLERY TO HAVE BEEN RECEIVED AS GIFT BY T HE ASSESSEE FROM HIS GRANDFATHER AND GRANT THE RELIEF ACCORDINGLY. THE ORDERS OF BOT H THE AUTHORITIES ARE MODIFIED ACCORDINGLY. THUS GROUND NO.1 OF THE REVENUE IS P ARTLY ALLOWED. 9. AS REGARDS GROUND NO.2 THE BRIEF FACTS ARE THAT ASSESSEE HAS CLAIMED EXEMPTION U/S. 10 OF THE ACT BEING AN AMOUNT OF RS. 1 28 250/- RECEIVED ON ACCOUNT OF LTA FROM THE EMPLOYER. IT WAS OBSERVED BY THE AO THAT AMOUNT RECEIVED ON ITA NO.2189/AHD/2009 ASSE SSMENT YEAR 2006-07. 7 ACCOUNT OF REIMBURSEMENT OF LTA HAS BEEN CREDITED T O CAPITAL ACCOUNT OF THE ASSESSEE AND THERE ARE NO WITHDRAWALS FOR THE JOURN EY PERFORMED BY THE ASSESSEE. THE HOUSEHOLD WITHDRAWALS ARE ONLY RS.1 44 000/- AN D THEREFORE AS PER THE PROVISIONS OF SECTION 10(5) READ WITH RULE 2(B) OF THE INCOME TAX RULES THE ASSESSEE IS NOT ENTITLED FOR DEDUCTION OF LTA REIMB URSEMENT. 10. THE LD. CIT (A) CONSIDERING THE WITHDRAWALS MAD E BY THE ASSESSEE AND CIRCUMSTANCES OF THE CASE ESTIMATED THE HOUSEHOLD E XPENSES AT RS.50 000/- AND ACCORDINGLY CONFIRMED ADDITION OF RS.34 250/- AND D ELETED THE BALANCE OF THE ADDITION. 11. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT (A) THAT THE H OUSEHOLD EXPENSES DURING THE YEAR AT RS. 50 000/- AND BALANCE AMOUNT OUT OF HOUS EHOLD WITHDRAWALS HAS BEEN USED TO MEET THE EXPENSES FOR TRAVELLING. THEREFOR E THE LD. CIT (A) HAS RIGHTLY DELETED THE ADDITION OF RS. 94 000/- ON ACCOUNT OF LTA U/S. 10(5) OF THE ACT. WE FIND NO INFIRMITY IN HIS ORDER. THUS GROUND NO.2 OF THE REVENUE IS DISMISSED. 12. GROUND NO. 3 IS GENERAL IN NATURE AND THEREFORE DO NOT REQUIRE ADJUDICATION. 13. IN THE RESULT THE APPEAL OF THE REVENUE IS PART LY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 16 - 12 - 2011 . SD/- SD/- (G. C. GUPTA) (B. P. JAIN) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI. ITA NO.2189/AHD/2009 ASSE SSMENT YEAR 2006-07. 8 COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-XXI AHMEDABAD. 4. THE CIT CONCERNED. 5. THE DR. ITAT AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT AHMEDABAD. 1.DATE OF DICTATION 12 -12 -2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 14 / 12 / 2011 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 15 - 12 -2011. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 16 - 12 -2011 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 16 -12 -2011 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 1 6 -12 -2011. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..