Smt. Kesar Kaur Prop, New Delhi v. ITO, New Delhi

ITA 441/DEL/2009 | 1999-2000
Pronouncement Date: 15-01-2010 | Result: Partly Allowed

Appeal Details

RSA Number 44120114 RSA 2009
Bench Delhi
Appeal Number ITA 441/DEL/2009
Duration Of Justice 11 month(s) 9 day(s)
Appellant Smt. Kesar Kaur Prop, New Delhi
Respondent ITO, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 15-01-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted D
Tribunal Order Date 15-01-2010
Date Of Final Hearing 15-12-2009
Next Hearing Date 15-12-2009
Assessment Year 1999-2000
Appeal Filed On 05-02-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI R.C. SHARMA I.T.A. NO. 441/DEL/2009 ASSESSMENT YEAR: 1999-00 SMT. KESAR KAUR PROP. VS. INCOME-TAX OFFICER M/S.ACID & CHEMICALS WARD 29(1) 2379 TILAK BAZAR NEW DELHI. DELHI-1100 06 (APPELLANT) (RESPONDENT) APPELLANT BY: S/SH KR MANJANI & MS SOHN I ADVS. RESPONDENT BY: SHRI BK GUPTA S ENIOR DR ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF LEARNED CIT(APPEALS) DATED 14.01.2009 PASSED FOR ASSESSMENT YEAR 1999-00. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE NOT IN CONSONANCE WITH THE RULE 8 OF ITAT'S RULES THEY ARE DESCRIPTIVE AND ARGUME NTATIVE IN NATURE. IN BRIEF GRIEVANCE OF THE ASSESSEE IS THAT THE LEARNE D CIT(APPEALS) HAS ERRED IN CONFIRMING THE ADDITION OF RS.9 33 485. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE H AS FILED HER ORIGINAL RETURN OF INCOME ON 30.8.1999 DECLARING TOTAL INCOM E OF RS.5 863. THE DCIT CENTRAL CIR.3 NEW DELHI HAS INFORMED THE ASS ESSING OFFICER HAVING JURISDICTION OVER THE ASSESSEE THAT ONE M/S.BISHAN CHAND MUKESH KUMAR 2 WAS PROVIDING ENTRIES IN RESPECT OF BOGUS TRANSACTI ON OF SALE OF JEWELRY. THE ASSESSEE IS ONE OF THE BENEFICIARIES WHO HAS TAKEN ENTRY FROM THAT CONCERN. ASSESSING OFFICER ON THE BASIS OF THIS INFORMATION ISSUED A NOTICE UNDER SEC.148 ON 29.3.2006 REQUIRING THE ASSESSEE TO FILE HER RETURN OF INCOME. ACCORDING TO THE ASSESSING OFFICER THE ASSESSEE HAS REQUESTED THE ASSESSING OFFICER FOR PROVIDING COPY OF THE REASONS RECORDED BEFORE ISSUING NOTICE UNDER SEC. 148 OF THE ACT. HE ISSUED NOTICE UNDER S EC. 143(2) 142(1) OF THE ACT. IN RESPONSE TO THE QUERY OF ASSESSING OFFICER IT WAS CONTENDED BY THE ASSESSEE THAT SHE HAD AVAILED BENEFIT OF VDIS 1977 WHEREIN SHE DISCLOSED JEWELLERY/GOLD ORNAMENTS HAVING VALUE OF RS.6 29 49 8. THE ASSESSEE SOLD THAT JEWELLERY FOR A SUM OF RS.9 28 841 DURING THE ASSESSMENT YEAR 1999-00. THE DETAILS OF THE SALES WERE DISCLOSED AT THE TIME OF FILING THE REGULAR RETURN OF INCOME THE SALE PROCEEDS WERE RECEIVED THROUGH ACCOUNT PAYEE CHEQUE. ASSESSING OFFICER ON THE BASIS OF THE FINDING MADE BY DCIT CENTRAL CIRCLE NEW DELHI IN HIS ASSESSMENT ORDER DATED 31.12.04 IN THE CASE OF M/S.BISHAN CHAND MUKESH KUMAR HAS ARRIVED AT A CONCLUSION THAT THAT CONCERN WAS ONLY ENGAGED IN PROVIDING THE ENTRY AND THEREFORE THE CLAIM OF SALE MADE BY THE ASSESSEE DESERVES TO BE REJECTED. HE MADE AN AD DITION OF RS.9 28 841 I.E. 3 ALLEGED PRICE OF GOLD JEWELLERY PLUS RS.4644 I.E. C OMMISSION PAID FOR ARRANGING SUCH ENTRY. 3. APPEAL TO THE LEARNED CIT(APPEALS) DID NOT BRING ANY RELIEF TO THE ASSESSEE. 4. THE LEARNED COUNSEL FOR THE ASSESSEE WHILE IMPUG NING THE ORDER OF THE LEARNED CIT(APPEALS) CONTENDED THAT SPECIAL BENCH O F THE ITAT IN THE CASE OF MANOJ AGGARWAL & ORS. 113 ITD 377 HAS HELD THAT THE SALE MADE TO M/S. BISHAN CHAND MUKESH KUMAR BY VDIS DECLARANT ARE NOT TO BE DOUBTED. LEARNED CIT(APPEALS) WHILE DISTINGUISHING THIS JUDG MENT HAS OBSERVED THAT ASSESSEE WAS NOT POSSESSING SAME JEWELLERY WHICH WA S DECLARED IN THE VDIS. SHE HAD MADE REFERENCE WITH REGARD TO DESCRIP TION OF JEWELLERY ON THE BASIS OF THE DETAILS APPEARING IN THE SALE BILL ISS UED BY M/S.BISHAN CHAND MUKESH KUMAR AND THE DESCRIPTION OF JEWELLERY AVAIL ABLE IN VALUATION REPORT SUBMITTED WITH VDIS RETURN. HE POINTED OUT THAT LEA RNED CIT(APPEALS) HAS GIVEN UNDUE WEIGHTAGE TO SUCH DESCRIPTION BECAUSE I N TERMS OF QUANTITY OF GOLD JEWELLERY THERE IS NO SPECIFIC DIFFERENCE. HE INVITED OUR ATTENTION TOWARDS PAGE NOS. 4 AND 6 OF THE PAPER BOOK WHERE R EPORT OF VALUER DATED 14.12.1997 AND PURCHASE INVOICE BY BISHAN CHAND MUK ESH KUMAR ARE AVAILABLE. THE LEARNED COUNSEL FOR THE ASSESSEE FUR THER SUBMITTED THAT 4 ACCORDING TO THE LEARNED CIT(APPEALS) IN THE PURCH ASE INVOICE ONE PIECE OF CHAIN HAVING 114 GMS. HAS BEEN SHOWN WHEREAS AT SR. NO.8 IN THE VALUATION REPORT THESE ARE FIVE PIECES OF CHAIN. ACCORDING T O THE LEARNED COUNSEL THERE IS NO MAJOR DIFFERENCE IN THE DESCRIPTION OF JEWELL ERY IN RESPECT OF ALL OTHER ITEMS. HE POINTED OUT THAT LEARNED CIT(APPEALS) IS NOT JUSTIFIED IN DOUBTING THE SALE OF THE GOLD JEWELLERY MADE BY THE ASSESSEE ONLY ON THE BASIS OF DESCRIPTION OF THE JEWELLERY IN ONE OR TWO ITEMS. O N THE OTHER HAND LEARNED DR RELIED UPON THE ORDER OF THE ASSESSING OFFICER. 5. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND GON E THROUGH THE RECORDS CAREFULLY. AS FAR AS THE REOPENING OF ASSES SMENT IS CONCERNED ASSESSING OFFICER HAS REOPENED IT ON THE BASIS OF I NFORMATION SUPPLIED BY THE ADI(INVESTIGATION) EXHIBITING THE FACT THAT M/S.BIS HAN CHAND MUKESH KUMAR WAS INVOLVED IN PROVIDING ACCOMMODATION ENTRY IN RESPECT OF SALE OF JEWELLERY TO VDIS DECLARANT. IN OUR OPINION THIS I S A SUFFICIENT INFORMATION WHICH CAN BE CONSIDERED BY THE ASSESSING OFFICER TO FORM A BELIEF THAT INCOME HAS ESCAPED FOR ASSESSMENT. THEREFORE WE DO NOT FIND ANY MERIT IN THE GROUND WITH RESPECT OF REOPENING OF ASSESSMENT. IT IS REJECTED. 6. AS FAR AS THE ADDITION ON MERIT IS CONCERNED TH E BASIS ASSIGNED BY THE LEARNED FIRST APPELLATE AUTHORITY IS NOT SUFFICIENT TO DOUBT THE CLAIM OF 5 ASSESSEE. ACCORDING TO THE LEARNED FIRST APPELLATE AUTHORITY THERE IS DIFFERENCE IN THE DESCRIPTION OF JEWELLERY AVAILABL E IN THE VALUATION REPORT AS WELL AS PURCHASE INVOICE. THUS IT INDICATES THAT A SSESSEE HAS NOT SOLD THE JEWELLERY WHICH WAS DECLARED IN THE VDIS. IN OUR OP INION AN ASSESSEE WHO HAS MADE A DECLARATION IN THE VDIS IN RESPECT OF CE RTAIN JEWELLERY IS SUPPOSED TO REPORT THE CAPITAL GAIN OR LOSS ON SALE OF SUCH JEWELLERY AS AND WHEN HAPPEN TO THAT ASSESSEE. IN CASE AN ASSESSEE G OT CONVERTED A PARTICULAR ITEM INTO A DIFFERENT ITEM OF ORNAMENTS AND THERE I S NO CAPITAL LOSS OR GAIN THEN HE WOULD NOT BE REQUIRED TO BRING SUCH CHANGE IN THE JEWELLERY TO THE NOTICE OF DEPARTMENT. THE JEWELLERY PERTAINS TO ASS ESSMENT YEAR 1981-82 AS REFLECTED IN THE CERTIFICATE ISSUED UNDER SEC. 68(2 ) OF THE INCOME-TAX ACT 1961 AS PER VDIS SCHEME. THE SALE WAS MADE IN ASSES SMENT YEAR 1999-00. IN BETWEEN THE VDIS DECLARATION AND THE ALLEGED SAL E IF ASSESSEE HAS GOT RENOVATED THE GOLD ORNAMENTS OR CHANGE THEIR IDENTI TY SAY BANGLES CONVERTED INTO CHAIN OR CHAIN CONVERTED INTO OTHER ORNAMENTS WOULD NOT SUCH A FACTOR WHICH WOULD DISENTITLE THE ASSESSEE TO CLAIM THE SA LE OF GOLD JEWELLERY OUT OF THE DECLARATION MADE UNDER THE VDIS UNLESS THERE IS STRONG EVIDENCE ON THE RECORD. THERE IS NO DIFFERENCE IN THE QUANTITY OF T HE JEWELLERY. WE COULD UNDERSTAND THE LOGIC OF LEARNED FIRST APPELLATE AUT HORITY IF THERE WAS A 6 DIFFERENCE BETWEEN THE TOTAL GOLD QUANTITY OR DEPAR TMENT IS ABLE TO LAY ITS HAND ON ANY OTHER EVIDENCE THAT ASSESSEE IS STILL P OSSESSING THAT MUCH JEWELKLERY. ON THE BASIS OF DESCRIPTION IT CANNOT BE SAID THAT ASSESSEE HAS NOT MADE THE SALE OF THE JEWELLERY MADE IN THE VDIS OTHERWISE THE ISSUE IN DISPUTE IS COVERED IN FAVOUR OF THE ASSESSEE BY SPE CIAL BENCH DECISION. TAKING INTO CONSIDERATION ALL THESE FACTS AND CIRCU MSTANCES WE ALLOW THE APPEAL OF THE ASSESSEE AND DELETE THE ADDITION OF R S.9 33 485. 7. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON 15.01.2010 ( R.C. SHARMA ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 15/01/2010 MOHAN LAL COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR:ITAT ASSISTANT REGISTRAR