KIRAN BIRAWAT, MUMBAI v. ACIT CEN CIR 14, MUMBAI

ITA 4780/MUM/2009 | 2007-2008
Pronouncement Date: 15-07-2011 | Result: Allowed

Appeal Details

RSA Number 478019914 RSA 2009
Assessee PAN AACPB9890K
Bench Mumbai
Appeal Number ITA 4780/MUM/2009
Duration Of Justice 1 year(s) 10 month(s) 27 day(s)
Appellant KIRAN BIRAWAT, MUMBAI
Respondent ACIT CEN CIR 14, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 15-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 15-07-2011
Date Of Final Hearing 27-06-2011
Next Hearing Date 27-06-2011
Assessment Year 2007-2008
Appeal Filed On 18-08-2009
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F MUMBAI BEFORE SHRI P.M.JAGTAP ACCOUNTANT MEMBER & SMT. ASHA VIJAYRAGHAVAN JUDICIAL MEMBER. I.T.A. NO.4780/MUM/2009. ASSESS MENT YEAR : 2007-08. SHRI KIRAN BIRAWAT ASSTT. COMMISSIONER OF INCOME-TAX 105/106 305/306 B-BLOCK VS. CENTRAL CIRCLE-14 DEEPAK JYOTI TOWER MUMBAI. G.D.AMBEDKAR MARG KALACHOWKI MUMBAI 4000 033. PAN AACPB9890K APPELLANT. RESPONDENT. APPELLANT BY : NONE. RESPON DENT BY : SHRI T.T. JACOB. O R D E R. PER P.M. JAGTAP A.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LEARNED CIT(APPEALS) CENTRAL-III MUMBAI DATED 27-07-2009. 2. IN GROUND NO. 1 THE ASSESSEE HAS DISPUTED THE A DDITION OF RS.5 08 725/- MADE BY THE AO AND CONFIRMED BY THE LEARNED CIT(APP EALS) ON ACCOUNT OF UNEXPLAINED SILVER ARTICLES FOUND DURING THE COURSE OF SEARCH. 3. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L WHO BELONGS TO BIRWAT GROUP. A SEARCH AND SEIZURE ACTION U/S 132 WAS COND UCTED ON 10-01-2007 IN THE CASES BELONGING TO BIRWAT GROUP INCLUDING THE CASE OF THE ASSESSEE. DURING THE COURSE OF SEARCH 52.6 KGS. OF SILVER ARTICLES WERE FOUND. EXPLANATION OFFERED BY THE 2 ITA NO.4780/MUM/2009 ASSTT. YEAR : 2007-08. ASSESSEE IN RESPECT OF THE SAID SILVER ARTICLES WAS ACCEPTED BY THE AO TO THE EXTENT OF 23.530 KGS. OF SILVER ARTICLES AS THE SAME WAS F OUND TO BE SUPPORTED AND SUBSTANTIATED BY RELEVANT DOCUMENTARY EVIDENCE. AS REGARDS THE REMAINING SILVER ARTICLES THE EXPLANATION OF THE ASSESSEE THAT THE SAME WAS RECEIVED BY HIS FAMILY ON VARIOUS FESTIVE OCCASIONS RELIGIOUS FUNCTIONS MAR RIAGE FUNCTIONS ETC. WAS NOT ACCEPTED BY THE AO AS THE SAME WAS VERY VAGUE AND W AS NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE. THE SILVER ARTICLES FOUND DUR ING THE COURSE OF SEARCH TO THE EXTENT OF 29.07 KGS. THUS WAS TREATED BY HIM AS UNE XPLAINED INVESTMENT OF THE ASSESSEE AND THE VALUE THEREOF WORKED OUT AT RS.5 0 8 725/- WAS ADDED BY HIM TO THE TOTAL INCOME OF THE ASSESSEE IN THE ASSESSMENT COMP LETED U/S 143(3) READ WITH SECTION 153A. ON APPEAL THE LEARNED CIT(APPEALS) C ONFIRMED THE SAID ADDITION MADE BY THE AO. AGGRIEVED BY THE ORDER OF THE LEARN ED CIT(APPEALS) THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING BEFORE US NONE HAS APPEA RED ON BEHALF OF THE ASSESSEE DESPITE THE FACT THAT NOTICE OF THE SAID HEARING FI XED ON 27-06-2011 WAS GIVEN TO THE ASSESSEE THROUGH NOTICE BOARD WELL IN ADVANCE. IT I S NOTED FROM THE RECORD THAT EVEN AT THE TIME OF HEARINGS FIXED EARLIER ON AT LEAST 4 OCCASIONS THE ASSESSEE HAS SOUGHT ADJOURNMENTS ON ONE PRETEXT OR THE OTHER. THIS APPE AL OF THE ASSESSEE IS THEREFORE BEING DISPOSED OF EXPARTE AFTER HEARING THE ARGUMEN TS OF THE LEARNED DR AND PERUSING THE RELEVANT MATERIAL ON RECORD. 5. IT IS OBSERVED THAT THE ADDITION OF RS.5 08 725/ - MADE BY THE AO ON ACCOUNT OF UNEXPLAINED INVESTMENT FOUND TO BE MADE BY THE A SSESSEE IN SILVER ARTICLES WAS CONFIRMED BY THE LEARNED CIT(APPEALS) FOR THE FOLLO WING REASONS GIVEN IN PARA NO. 3.3 OF HIS IMPUGNED ORDER : I HAVE CAREFULLY CONSIDERED THE FACTS AND SUBMISS IONS AND AN NOT CONVINCED WITH THE A.RS ARGUMENTS. SILVER ARTICLES FOUND DURING THE COURSE 3 ITA NO.4780/MUM/2009 ASSTT. YEAR : 2007-08. OF SEARCH WERE SUBSTANTIAL IN QUANTITY AND CANNOT B E EXPLAINED BY WAY OF GIFTS ON VARIOUS OCCASIONS. THE FACT THAT IN THE WE ALTH TAX RETURN OF FAMILY MEMBERS UPTO A.Y. 1992-03 THE WEIGHT OF SILVER ARTI CLES HAS BEEN SHOWN AT A CONSTANT FIGURE DOES NOT SUPPORT THE APPELLANTS C LAIM THAT THERE WERE REGULAR RECEIPTS OF SILVER ARTICLES ON VARIOUS FEST IVE & OTHER OCCASIONS. FURTHER THE ASSESSEE HAD FAILED TO PRODUCE ANY SUPP ORTING EVIDENCE IN SUPPORT OF THE CLAIM THAT SUCH SUBSTANTIAL SILVER S ILVER ARTICLES WEIGHING 29.07 KGS STOOD RECEIVED BY WAY OF GIFTS. SINCE THE ASSESSEE FAILED TO PRODUCE ANY EVIDENCE IN SUPPORT OF THE CLAIM AND S UCH CLAIM WAS NOT REFLECTED IN THE W.T. RETURNS FILED DURING THE EARL IER YEARS THE A.O.S ACTION IN TREATING THE BALANCE SILVER ARTICLES WEIGHING 29 .07KG AS UNEXPLAINED WAS PERFECTLY JUSTIFIED. THE PLEA THAT THE SILVER ARTIC LES WERE NOT SEIZED AND THEREFORE STOOD ACCEPTED AS EXPLAINED BY SEARCH PA RTY IS NOT ACCEPTABLE AS MANY A TIMES BECAUSE OF THE HEAVY VOLUME AND PRACTI CAL DIFFICULTIES IN SEIZURE CERTAIN ITEMS ARE NOT SEIZED BY THE SEARCH PARTY. THE INSTRUCTIONS RELATING TO THE NON SEIZURE OF GOLD ORNAMENTS CANNO T BE EXTENDED TO THE OTHER PERSONAL EFFECTS INCLUDING THE SILVER ARTICLES. THE REFORE THE ADDITION MADE AT RS.5 08 725/- (29.07 KGS X RS.17 500/-) BY WAY OF U NEXPLAINED SILVER ARTICLES IS HEREBY CONFIRMED. THIS GROUND OF APPEAL IS THEREFORE DISMISSED. AS IS CLEARLY EVIDENT FROM THE RELEVANT PORTION OF THE LEARNED CIT(APPEALS) IMPUGNED ORDER EXTRACTED ABOVE THE ASSESSEE HAS FA ILED TO PRODUCE ANY EVIDENCE TO SUPPORT AND SUBSTANTIATE HIS EXPLANATION IN RESPECT OF SILVER ARTICLES WEIGHING 29.07 KGS. FOUND DURING THE COURSE OF SEARCH AND IN THE A BSENCE OF THE SAID EVIDENCE AS WELL AS FOR THE OTHER REASONS GIVEN IN HIS IMPUGNED ORDER THE LEARNED CIT(APPEALS) HAS CONFIRMED THE ADDITION MADE BY THE AO TREATING THE SILVER TO THAT EXTENT AS UNEXPLAINED INVESTMENT OF THE ASSESSEE. E VEN BEFORE US THE ASSESSEE HAS NOT PRODUCED ANY SUCH EVIDENCE TO SUPPORT AND SUBST ANTIATE HIS EXPLANATION INSPITE OF SUFFICIENT OPPORTUNITY HAVING BEEN AFFORDED TO I T. WE THEREFORE FIND NO JUSTIFIABLE REASON TO INTERFERE WITH THE IMPUGNED O RDER OF THE LEARNED CIT(APPEALS) CONFIRMING THE ADDITION MADE BY THE AO ON ACCOUNT O F UNEXPLAINED SILVER ARTICLES AND UPHOLDING THE SAME ON THIS ISSUE WE DISMISS TH IS APPEAL FILED BY THE ASSESSEE. 4 ITA NO.4780/MUM/2009 ASSTT. YEAR : 2007-08. 5. AS REGARDS GROUND NO.2 IT IS OBSERVED THAT THE ISSUE RAISED THEREIN RELATING TO LEVY OF INTEREST U/S 234A 234B AND 234C IS CONS EQUENTIAL TO THE MAIN ISSUE. AS WE HAVE ALREADY DECIDED THE MAIN ISSUE AGAINST THE ASSESSEE WE ALSO DECIDE THIS CONSEQUENTIAL ISSUE AGAINST THE ASSESSEE AND DISMIS S GROUND NO.2. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DIS MISSED. . ORDER PRONOUNCED ON THIS 15 TH DAY OF JULY 2011. SD/- SD/- (ASHA VIJAYRAGHAVAN) (P. M. JAGTAP) JUDICIAL MEMBER A CCOUNTANT MEMBER MUMBAI DATED: 15 TH JULY 2011. COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR F-BENCH. (TRUE COPY ) BY ORD ER ASSTT. R EGISTRAR ITAT MUMBAI BEN CHES MUMBA I. WAKODE