RAJESHR. MEGHANI, MUMBAI v. ACIT CEN CIR 45, MUMBAI

ITA 4094/MUM/2009 | 2007-2008
Pronouncement Date: 31-03-2010 | Result: Partly Allowed

Appeal Details

RSA Number 409419914 RSA 2009
Assessee PAN AACPM9544P
Bench Mumbai
Appeal Number ITA 4094/MUM/2009
Duration Of Justice 8 month(s) 29 day(s)
Appellant RAJESHR. MEGHANI, MUMBAI
Respondent ACIT CEN CIR 45, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 31-03-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 31-03-2010
Assessment Year 2007-2008
Appeal Filed On 02-07-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D: MUMBAI BEFORE SHRI S.V. MEHROTRA (AM) AND SHRI R.S. PADVEKAR (JM) ITA NO. 4094/MUM/2009 (ASSTT. YEAR : 2007-08) SHRI RAJESH R. MEHANI APPELLANT FLAT NO.13 VANDANA CO-OP. HSG. SOC. PESTON SAGAR ROAD CHEMBUR MUMBAI 400089 PAN : AACPM9544P V/S. ASST. C.I.T. CENTRAL CIR. 45 RESPONDENT AAYAKAR BHAVAN MAHARSHI KARVE ROAD MUMBAI 400 020 APPELLANT BY :SHRI D.C. JAIN RESPONDENT BY :MR. T.T. JACOB (D .R) : O R D E R : PER R.S. PADVEKAR J.M IN THIS APPEAL THE ASSESSEE HAS CHALLENGED THE ADD ITION SUSTAINED BY THE LD CIT(A) OF RS. 4 97 862/- OUT OF THE TOTAL AD DITION IN RESPECT OF THE GOLD BARS. 2. THE FACTS ARE IN NARROW COMPASS IN RESPECT OF T HE CONTROVERSY BEFORE US. THERE WAS A SEARCH AND SEIZURE ACTION U/S. 132 (1) OF THE I.T. ACT AGAINST M/S. SMS ISPAT LTD. GROUP AND ALSO AGAINST THE ASS ESSEE. IN CONSEQUENCE OF THE SEARCH THE ASSESSMENT WAS MADE IN THE CASE OF THE ASSESSEE. DURING THE COURSE OF THE SEARCH CERTAIN JEWELLERY INCLUDING T HE GOLD BARS WERE FOUND. THE DEPARTMENT VALUER MADE THE VALUATION OF THE GOL D BARS AT RS. 4 98 000/-. THE ASSESSEE CONTENDED THAT GOLD JEWELLERY AND GOLD BARS WERE ACQUIRED OUT OF THE INCOME GENERATED FROM THE INCOME GENERATED FROM ACCOMMODATING AND DISCOUNT TRANSACTIONS. HE FURTHER CLAIMED THAT HIS WIFE HAS RECEIVED GOLD JEWELLERY AT THE TIME OF MARRIAGE AND ON RELIGIOUS CEREMONIES FROM TIME TO ITA NO. 4094/MUM/2009 2 TIME. THE EXPLANATION OF THE ASSESSEE WAS NOT ACCEP TED AND THE A.O MADE THE ADDITION OF RS. 10 45 684/- IN RESPECT OF THE G OLD JEWELLERY WHICH INCLUDED THE GOLD BARS TO THE TOTAL INCOME OF THE ASSESSEE . THE ASSESSEE CHALLENGED THE ADDITION MADE BY THE A.O BEFORE THE LD CIT(A) B Y WAY OF APPEAL. IN RESPECT OF THE GOLD JEWELLERY WHICH WAS VALUED AT R S. 5 43 165/- THE LD CIT(A) WAS OF THE OPINION THAT THE EXPLANATION OF T HE ASSESSEE THAT IT WAS ACQUIRED AT VARIOUS/DIFFERENT AUSPICIOUS OCCASION IS NORMAL PLEA IN TERMS OF THE QUANTITY FOUND BEING IT WAS A MIDDLE-CLASS HIN DU FAMILY. HE THEREFORE DELETED THE ADDITION OF RS.5 43 165/-. AS REGARDS THE GOLD BARS WHICH WERE VALUED AT RS.4 95 862/- THE EXPLANATION OF THE ASS ESSEE WAS REJECTED THAT THE BENEFIT OF SET OFF AGAINST THE ADDITIONAL INCOME DE CLARED AT RS. 9 79 390/- SHOULD BE GIVEN AND THE ADDITION MADE IN RESPECT OF THE GOLD BARS MAY BE DELETED. THE LD CIT(A) DID NOT ACCEPT THE PLEA OF THE ASSESSEE THAT THE GOLD BARS WERE ACQUIRED OUT OF THE ADDITIONAL INCOME DEC LARED BY THE ASSESSEE AND HE CONFIRMED THE ADDITION TO THE EXTENT OF RS.4 97 862/- AND NOW THE ASSESSEE IS IN APPEAL BEFORE US. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTI ES. WE HAVE ALSO PERUSED THE RECORD. THE LD COUNSEL ARGUED THAT THE ASSESSEE HAD MADE THE DECLARATION OF INCOME BY FILING THE REVISED INCOME OF RS.2 27 335/-. IT IS ALSO ARGUED THAT THE ASSESSEE IS REGULARLY DECLARING THE INCOME IN PAST AND THE GOLD BARS WERE ACQUIRED OUT OF THE TOTAL INCOME DEC LARED BY THE ASSESSEE IN RESPECT OF THE A.Y. 2001-02 TO A.Y. 2007-08. IT IS PLEADED BY THE LD COUNSEL THAT IN THIS SEVEN A.YS. THE ASSESSEE HAD DECLARED THE ADDITIONAL INCOME OF RS.9 79 319/- AND OUT OF THE SAID INCOME THE ASSES SEE HAS ACQUIRED THE GOLD BARS AND HENCE THE BENEFIT OF THE SET OFF AGAINST THE SAID INCOME MAY BE GIVEN. ADMITTEDLY IN THIS CASE THE ASSESSEE HAS NOT PRODUCED ANY EVIDENCE TO SHOW IN WHICH YEAR THE GOLD BARS WERE ACQUIRED. IT IS SEEN THAT IN THE A.YRS. 2004-05 AND 2005-06 THE ASSESSEE HAS MADE S UBSTANTIAL DECLARATION OF INCOME. THE ASSESSEES EXPLANATION CANNOT BE ENTIR ELY BRUSHED ASIDE BUT AT THE SAME TIME THE ASSESSEE HAS NOT PRODUCED ANY EV IDENCE TO SUPPORT HIS PLEA. WE ARE THEREFORE OF THE OPINION THAT 50% O F THE GOLD BARS IF TREATED AS ACQUIRED OUT OF THE ADDITIONAL INCOME GENERATED AN D OFFERED FOR TAX IN A.Y. 2004-05 AND 2005-06 IS TREATED THEN IT WILL MEET T HE ENDS OF JUSTICE. WE ITA NO. 4094/MUM/2009 3 THEREFORE DIRECT THE A.O TO SUSTAIN THE ADDITION I N RESPECT OF THE GOLD BARS AT 50% OF RS.4 97 862/- AND TO THAT EXTENT THE ASSESS EE SUCCEEDS. 4. IN THE RESULT ASSESSEES APPEAL IS PARTLY ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 31ST DAY OF MARCH 2010. SD/- SD/- (S.V. MEHROTRA) (R.S. PADVEKAR) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ON THIS 31ST DAY OF MARCH 2010. :US COPY TO: 1. APPELLANT 2. RESPONDENT 3.THE CIT(A)- CENT. III MUMBAI 4.THE CIT CENTRAL-IV MUMBAI 5.THE DR D BENCH MUMBAI 6.GUARD FILE BY ORDER TRUE COPY ASSTT..REGISTRAR ITAT MUMBAI. ITA NO. 4094/MUM/2009 4 US DATE INITIALS 1. DRAFT DICTATED ON 27/3/10 --------------- SR.P.S . 2. DRAFT PLACED BEFORE AUTHORITY 30/3/10 -------- ------ SR.P.S. 3. DRAFT PROPOSED & PLACED ----------- ---------- --- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED ----------- ----------- -- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO ----------- ------------ - SR.P.S. THE SR. P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON --------- ----------- -- SR.P.S. 7. FILE SENT TO THE BENCH CLERK --------- --------- ---- SR.P.S. 8. DATE ON WHICH FILE GOES TO THE ------- --------- ---- 9. DATE OF DISPATCH OF ORDER --------- --------- ----