Smt. Neeta Sudarshan Amin, Anand v. The ACIT.,Cent.Circle-1,, Baroda

ITA 2343/AHD/2009 | 2006-2007
Pronouncement Date: 08-07-2011 | Result: Partly Allowed

Appeal Details

RSA Number 234320514 RSA 2009
Assessee PAN ACJPA6311M
Bench Ahmedabad
Appeal Number ITA 2343/AHD/2009
Duration Of Justice 1 year(s) 11 month(s) 4 day(s)
Appellant Smt. Neeta Sudarshan Amin, Anand
Respondent The ACIT.,Cent.Circle-1,, Baroda
Appeal Type Income Tax Appeal
Pronouncement Date 08-07-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 08-07-2011
Date Of Final Hearing 15-06-2011
Next Hearing Date 15-06-2011
Assessment Year 2006-2007
Appeal Filed On 03-08-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD B BENCH (BEFORE S/SHRI G.D. AGARWAL VICE-PRESIDENT AND T.K. SHARMA JUDICIAL MEMBER) ITA NO.2343/AHD/2009 [ASSTT. YEAR: 2006-2007] SMT. NEETA SUDARSHAN AMIN NEESTHA VINUKAKA MARG VALLABH VIDYANAGAR ANAND. PAN : ACJPA 6311 M VS. ACIT CENT.CIR.1 BARODA. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.N. SOPARKAR WITH MS.URVASHI SHODHAN REVENUE BY : SHRI ALOK JOHRI O R D E R PER G.D. AGARWAL VICE-PRESIDENT : THIS IS ASSESSEES APPEAL AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF IN COME-TAX (APPEALS)- IV AHMEDABAD DATED 20.01.2009 FOR A.Y.2006-2007. 2. THE ONLY GROUND RAISED IN THIS APPEAL OF THE ASS ESSEE READS AS UNDER: 1. THAT BOTH THE LOWER AUTHORITIES HAVE ERRED IN C ONFIRMATION THE ADDITION OF RS.10 78 670/- ON FACTS AND CIRCUMS TANCES OF THE CASE. 3. AT THE TIME OF HEARING BEFORE US IT WAS CLARIFI ED BY THE LEARNED COUNSEL THAT BY MISTAKE IN THE GROUNDS OF APPEAL T HE AMOUNT OF RS.10 78 670/- IS MENTIONED. IT IS IN FACT THE INC OME ASSESSED AND THE ONLY ADDITION IS RS.4 18 300/-. THEREFORE THE ASS ESSEES APPEAL MAY BE CONSIDERED AGAINST THE ADDITION OF RS.4 18 300/- AN D THE GROUND OF THE ASSESSEES APPEAL MAY BE DEEMED TO BE MODIFIED ACCO RDINGLY. THE LEARNED DR HAS NO OBJECTION TO THIS SUBMISSION OF T HE ASSESSEES COUNSEL. ITA NO.2343/AHD/2009 -2- 4. THE FACTS OF THE CASE ARE THAT SEARCH WAS CARRIE D OUT IN THE SWISS GLASS COAT GROUP OF CASES AND AT THE ASSESSEES PRE MISES ON 19-1-2006. IN THE COURSE OF SEARCH LOCKER NO.122 WITH UNION OF BANK OF INDIA IN THE NAME OF SHRI SUDARSHAN P. AMIN SMT. NITA S. AMIN A ND MS. PHAGUN S. AMIN JWELLERY WEIGHING 1163.5 GRAMS WERE FOUND. I T WAS STATED BY THE ASSESSEE THAT ALMOST ENTIRE JEWELLERY WAS RECEIVED BY HER ON HER MARRIAGE IN THE YEAR 1979. HOWEVER SUDHARSHAN P. AMIN IN H IS RETURN OF INCOME HAS DISCLOSED THE JEWELLERY WORTH RS.80 000/-. THE AO GAVE CREDIT OF 500 GRAMS AS PER THE BOARD CIRCULAR AND AFTER GIVIN G CREDIT OF RS.80 000/- DISCLOSED BY THE ASSESSEES HUSBAND MADE ADDITION O F RS.4 18 300/-. ON APPEAL THE CIT(A) SUSTAINED THE ADDITION WITH THE FOLLOWING FINDING: 2.1 I HAVE CAREFULLY CONSIDERED THE CONTENTION OF T HE LEARNED COUNSEL AS WELL GONE THROUGH THE RECORD. ON PERUSA L OF ASSESSMENT ORDER IT HAS BEEN NOTICED THAT IN THE COURSE OF SE ARCH FROM LOCKER NO. 122 MAINTAINED WITH UTI BANK HELD IN THE NAMES OF SMT NITA S. AMIN SHRI SUDARSHAN P. AMIN AND MS. PHAGUN S. AMIN TOTAL JEWELLERY WORTH RS.9 59 573/- WEIGHING 1163.5 GRAMS WAS FOUND. IT WAS EXPLAINED BY THE APPELLANT IN HER REPLY DATED 2 2.11.2007 THAT ENTIRE JEWELLERY WAS RECEIVED BY HER ON HER MARRIAG E IN THE YEAR 1979. HOWEVER HER HUSBAND SHRI SUDARSHAN P. AMIN H AD DISCLOSED ON ACCOUNT OF INVESTMENT IN JEWELLERY WORTH RS. 80 000/-DURING ASSESSMENT YEAR 2006-07. HENCE THE CONTENTIONS OF LEARNED COUNSEL THAT BENEFIT OF OWNERSHIP OF JEWELL ERY ON THE BASIS OF CBDT CIRCULAR HAS TO BE GIVEN TO ALL THE MEMBERS OF THE FAMILY CANNOT BE ACCEDED TO SINCE SPECIFIC OWNERSHIP WAS E STABLISHED IN THE PRESENT CASE WITH REFERENCE TO JEWELLERY FOUND FROM THE LOCKER IN WHICH NO BODY ELSE CLAIMED OWNERSHIP EXCEPT THE APPELLANT THAT TOO SHE ACCEPTED AS RECEIVED DURING HER MARRIAGE. M OREOVER THE SEIZURE WAS NOT MADE FROM HER RESIDENCE SO THAT ALL THE FAMILY MEMBERS CAN BE CONSIDERED FOR THE BENEFIT OF OWNERS HIP OF JEWELLERY ON THE BASIS OF CBDT CIRCULAR. THE ASSESS ING OFFICER HAS ALREADY GIVEN THE BENEFIT OF 500 GRAMS OF JEWELLERY TO THE APPELLANT HENCE THE CONTENTIONS OF LEARNED COUNSE L CANNOT BE ACCEDED TO WHICH ARE HEREBY REJECTED. KEEPING IN VI EW OF ABOVE ITA NO.2343/AHD/2009 -3- FACTS AND CIRCUMSTANCES OF THE CASE NO INTERFERENC E IS CALLED FOR IN THE ADDITIONS MADE IN THE PRESENT CASE. HENCE THE FIRST GROUND OF APPEAL IS HEREBY DISMISSED. 5. THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE AO GAVE CREDIT OF ONLY 500 GRAMS OF GOLD JEWELLERY WHILE APART FRO M ASSESSEE HER HUSBAND AND TWO UNMARRIED DAUGHTERS ARE ALSO THERE IN THE FAMILY. THEREFORE AS PER THE BOARD CIRCULAR THE AO SHOULD ACCEPT 1100 GRAMS OF GOLD ORNAMENTS AS UNDER: I) ASSESSEE : 500 GRAMS II) TWO DAUGHTERS : 500 GRAMS (250 GRAMS EACH) III) HUSBAND : 100 GRAMS. TOTAL : 1100 GRAMS. IN ADDITION THE ASSESSEES HUSBAND HAS ALREADY DEC LARED JEWELLERY WORTH RS.80 000/-. THEREFORE NO ADDITION IS CALLED FOR AS ENTIRE GOLD JEWELLERY WAS EXPLAINED. 6. THE LEARNED DR ON THE OTHER HAND ARGUED AT LEN GTH. HIS ARGUMENTS WERE TWO FOLDS. (I) THAT AS PER THE STAT EMENT OF THE ASSESSEE THE ENTIRE GOLD ORNAMENTS WAS BELONGING TO HER. IN THE STATEMENT SHE NEVER CLAIMED THAT THE PART OF THE GOLD ORNAMENTS W AS BELONGING TO HER DAUGHTERS OR HER HUSBAND AND (II) CBDT CIRCULAR IS A GUIDELINE WITH REGARD TO SEIZURE OF THE JWELLERY AND IT WILL HAVE NO APPLICATION FOR MAKING ASSESSMENT OF UNEXPLAINED INVESTMENT IN JEWE LLERY. IN THE ASSESSMENT IT IS THE DUTY OF THE ASSESSEE TO PRODU CE EVIDENCE FOR THE ACQUISITION OF THE JEWELLERY. 7. IN REJOINDER IT IS STATED BY THE LEARNED COUNSE L THAT IN THE STATEMENT THE ASSESSEE HAS STATED THAT ALMOST ENTIRE JEWELLER Y WAS RECEIVED BY HER IN HER MARRIAGE IN THE YEAR 1979. IF HER STATEMENT IS TO BE RELIED UPON THEN ITA NO.2343/AHD/2009 -4- NO ADDITION CAN BE MADE IN THE YEAR UNDER APPEAL B ECAUSE AS PER STATEMENT JEWELLERY WAS ACQUIRED IN THE YEAR 1979. THE REVENUE CANNOT CHOOSE TO RELY UPON THE STATEMENT PARTLY. IF THIS STATEMENT IS NOT ACCEPTED THEN THE ENTIRE JEWELLERY FOUND FROM THE FAMILY WAS ONLY 1163 GRAMS AND THE AO SHOULD ALLOW THE BENEFIT AS PER THE BOARD CI RCULAR. WITH REGARD TO THE APPLICABILITY OF THE BOARD CIRCULAR IN THE A SSESSMENT HE RELIED UPON THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COU RT IN THE CASE OF CIT VS. RATALAL VYPARILAL JAIN 235 CTR (GUJ) 568. 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL PLACED BEFORE US. WE FIND THAT IN THE ASSESSMENT ORDER TH E AO HAS HIMSELF HAS RECORDED THAT AS PER THE ASSESSEES REPLY DATED 21- 11-2007 SHE HAS STATED THAT ALMOST ENTIRE JEWELLERY WAS RECEIVED BY HER ON HER MARRIAGE IN THE YEAR 1979. THE CIT(A) HAS RELIED UPON ONLY PART OF THE STATEMENT I.E. ENTIRE JEWELLERY WAS HERS. BUT IGNORED OTHER PART WHEREIN SHE STATED THAT SUCH JEWELLERY WAS RECEIVED BY HER IN MARRIAGE IN T HE YEAR. THE AO OR CIT(A) CANNOT CHOOSE TO RELY UPON THE STATEMENT PAR TLY. EITHER THE ENTIRE STATEMENT IS TO BE CONSIDERED OR THE STATEMENT IS T O BE IGNORED. SINCE NO CORROBORATIVE EVIDENCE IN SUPPORT OF THE STATEMENT FOR ACQUISITION OF JEWELLERY AT THE TIME OF MARRIAGE WAS FURNISHED WE ARE OF THE VIEW THAT THE AO WAS JUSTIFIED IN IGNORING THE STATEMENT. HO WEVER IN OUR OPINION THEN THE ENTIRE STATEMENT SHOULD BE IGNORED. THE A O SHOULD ALLOW THE CREDIT OF GOLD JEWELLERY AS PER THE BOARD CIRCULAR. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF RATANLAL V YPARILAL JAIN (SUPRA) HAS CONSIDERED THE APPLICABILITY OF CIRCULAR AND HE LD AS UNDER: THE TRIBUNAL FOUND THAT THE JEWELLERY HELD BY THE ASSESSEE AND HIS FAMILY MEMBERS WAS WELL WITHIN THE LIMIT LAID DOWN UNDER THE ITA NO.2343/AHD/2009 -5- CBDT CIRCULAR AND ACCORDINGLY DELETED THE WHOLE AD DITION ON THE GROUND THAT THE JEWELLERY HELD BY EACH OF THE FAMIL Y MEMBERS WAS BELOW THE LIMITS SPECIFIED IN THE SAID CIRCULAR. TH OUGH IT IS TRUE THAT THE CBDT INSTRUCTION NO. 1916 DT. 11TH MAY 1994 L AYS DOWN GUIDELINES FOR SEIZURE OF JEWELLERY AND ORNAMENTS I N THE COURSE OF SEARCH THE SAME TAKES INTO ACCOUNT THE QUANTITY OF JEWELLERY WHICH WOULD GENERALLY BE HELD BY FAMILY MEMBERS OF AN ASS ESSEE BELONGING TO AN ORDINARY HINDU HOUSEHOLD. THE APPRO ACH ADOPTED BY THE TRIBUNAL IN FOLLOWING THE SAID CIRCULAR AND GIVING BENEFIT TO THE ASSESSEE EVEN FOR EXPLAINING THE SOURCE IN RES PECT OF THE JEWELLERY BEING HELD BY THE FAMILY IS IN CONSONANCE WITH THE GENERAL PRACTICE IN HINDU FAMILIES WHEREBY JEWELLER Y IS GIFTED BY THE RELATIVES AND FRIENDS AT THE TIME OF SOCIAL FUN CTIONS VIZ. MARRIAGES BIRTHDAYS MARRIAGE ANNIVERSARY AND OTHE R FESTIVALS. THESE GIFTS ARE CUSTOMARY AND CUSTOMS PREVAILING IN A SOCIETY CANNOT BE IGNORED. THUS ALTHOUGH THE CIRCULAR HAD B EEN ISSUED FOR THE PURPOSE OF NON-SEIZURE OF JEWELLERY DURING THE COURSE OF SEARCH THE BASIS FOR THE SAME RECOGNIZES CUSTOMS PREVAILIN G IN HINDU SOCIETY. IN THE CIRCUMSTANCES UNLESS THE REVENUE S HOWS ANYTHING TO THE CONTRARY IT CAN SAFELY BE PRESUMED THAT THE SOURCE TO THE EXTENT OF THE JEWELLERY STATED IN THE CIRCULAR STAN DS EXPLAINED. THUS THE APPROACH ADOPTED BY THE TRIBUNAL IN CONSIDERING THE EXTENT OF JEWELLERY SPECIFIED TINDER THE SAID CIRCULAR TO BE A REASONABLE QUANTITY CANNOT BE FAULTED WITH. IN THE CIRCUMSTAN CES IT IS NOT POSSIBLE TO STATE THAT THE TRIBUNAL HAS COMMITTED A NY LEGAL ERROR SO AS TO GIVE RISE TO A QUESTION OF LAW. ITA NO.2343/AHD/2009 -6- IN VIEW OF THE ABOVE WE HOLD THAT THE ABOVE GUIDEL INES GIVEN IN THE ABOVE CIRCULAR ARE TO BE FOLLOWED NOT ONLY WHILE EF FECTING THE SEIZURE OF THE JEWELLERY BUT ALSO IN THE ASSESSMENT PROCEEDING S. IT IS NOT IN DISPUTE THAT AS PER THE ABOVE CIRCULAR THE ASSESSEE SHOULD GET THE BENEFIT OF 1100 GRAMS OF GOLD ORNAMENTS I.E. 500 GRAMS FOR ASSESSEE AND 500 GRAMS FOR HER TWO DAUGHTERS AND 100 GRAMS FOR HER HUSBAND. T HUS THE UNEXPLAINED PORTION OF THE JEWELLERY IS ONLY 63 GRAMS. SINCE A S PER THE AO THE HUSBAND OF THE ASSESSEE VIZ. SHRI SUDHARSHAN P. AMI N HAS ALREADY DECLARED A SUM OF RS.80 000/- FOR ACQUISITION OF TH E JEWELLERY DURING THE ASSESSMENT YEAR 2006-2007 THE AO SHOULD ALLOW THE CREDIT FOR THE SAME AND IF THE VALUE OF THE UNEXPLAINED JEWELLERY IS MO RE THAN RS.80 000/- THE ADDITION WOULD BE MADE ONLY FOR DIFFERENCE BETW EEN THE VALUE OF 63.5 GRAMS AND RS.80 000/-. 9. IN THE RESULT ASSESSEES APPEAL IS PARTLY ALLOW ED AS ABOVE. ORDER PRONOUNCED IN OPEN COURT ON 8 TH JULY 2011 SD/- SD/- (T.K. SHARMA) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 08-07-2011