SUNDARI UMESH THAKUR, MUMBAI v. ACIT CEN CIR -9, MUMBAI

ITA 5420/MUM/2009 | 2007-2008
Pronouncement Date: 28-01-2011 | Result: Dismissed

Appeal Details

RSA Number 542019914 RSA 2009
Assessee PAN ADGPT0963J
Bench Mumbai
Appeal Number ITA 5420/MUM/2009
Duration Of Justice 1 year(s) 3 month(s) 28 day(s)
Appellant SUNDARI UMESH THAKUR, MUMBAI
Respondent ACIT CEN CIR -9, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 28-01-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 28-01-2011
Assessment Year 2007-2008
Appeal Filed On 30-09-2009
Judgment Text
1 MRS SUNDARI UMESH THAKUR ITA NO. 5150/MUM/2009 ITA NO. 5420/MUM/2009 I II IN THE INCOME TAX APPELLATE TRIBUNAL N THE INCOME TAX APPELLATE TRIBUNAL N THE INCOME TAX APPELLATE TRIBUNAL N THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH MUMBAI BENCH MUMBAI BENCH MUMBAI BENCH E EE E MUMBAI MUMBAI MUMBAI MUMBAI BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI R R R R K PANDA K PANDA K PANDA K PANDA AM AM AM AM & SMT ASHA VIJAYARAGHAVAN JM & SMT ASHA VIJAYARAGHAVAN JM & SMT ASHA VIJAYARAGHAVAN JM & SMT ASHA VIJAYARAGHAVAN JM ITA NO. ITA NO. ITA NO. ITA NO. 5150/MUM/2009 5150/MUM/2009 5150/MUM/2009 5150/MUM/2009 (ASST YEAR 2007-08) THE ASST COMMR OF INCOME TAX CEN.CIR 9 MUMBAI VS MRS SUNDARI UMESH THAKUR ALFA CHSL J P ROAD SEVEN BUNGALOWS ANDHERI (W) MUMBAI (APPELLANT) (RESPONDENT) ITA NO. ITA NO. ITA NO. ITA NO. 5420/MUM/2009 5420/MUM/2009 5420/MUM/2009 5420/MUM/2009 (ASST YEAR 2007-08) MRS SUNDARI UMESH THAKUR ALFA CHSL J P ROAD SEVEN BUNGALOWS ANDHERI (W) MUMBAI VS THE ASST COMMR OF INCOME TAX CEN.CIR 9 MUMBAI (APPELLANT) (RESPONDENT) PAN PAN PAN PAN ADGPT0963J ADGPT0963J ADGPT0963J ADGPT0963J ASSESSEE BY: SHRI DEEPAK R TRALSHAWALA REVENUE BY: MS KUSUM INGLE O OO O R RR R D DD D E EE E R RR R PER PER PER PER R RR R K PANDA K PANDA K PANDA K PANDA: :: : THESE ARE CROSS APPEALS THE FIRST ONE FILED BY THE REVENUE AND THE SECOND ONE FILED BY THE ASSESSEE AND ARE DIRECTED AGAINST THE ORDER DATED 10.7.2009 OF THE CIT(A)-CENTRAL-VII MUMBAI RELATING TO ASSESSME NT YEAR 2007-08. FOR THE SAKE OF CONVENIENCE THESE APPEALS WERE HEARD TOGETH ER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. 2 MRS SUNDARI UMESH THAKUR ITA NO. 5150/MUM/2009 ITA NO. 5420/MUM/2009 2 FACTS OF THE CASE IN BRIEF ARE THAT A SEARCH AN D SEIZURE ACTION U/S 132(1) OF THE ACT WAS COMMENCED ON THE ASSESSEES BANK LOC KER NO.756 WITH SECURE SAFE VAULTS PVT LTD (SSVL) ON 6.11.2006 AND LAST WA RRANT IN CASE OF ASSESSEE WAS EXECUTED ON 2.1.2007. PURSUANT TO THE SEARCH ACTION IN THE CASE OF SSVL NOTICES U/S 153A WERE ISSUED ON 27.8.2008 DIRECTING HER TO FILE RETURN OF INCOME FOR THE AYS 2001-02 TO 2006-07. 2.1 THE ASSESSING OFFICER NOTED THAT DURING THE S EARCH AND SEIZURE ACTION U/S 132(1) IN RESPECT OF LOCKER NO.756 HELD BY THE ASSESSEE WITH SSVL GOLD JEWELLERY NET WT. 1739.400 GRAMS WORTH ` 13 91 520/- AS PER GOVT. APPROVED VALUERS REPORT DATED 2.1.2007 WAS FOUND. OUT OF T HESE JEWELLERY OF NET WEIGHT OF 1221.40 GRAMS WORTH ` 9 77 120/- HAS BEEN SEIZED AS PER ANNEXURE J-1 TO THE PANCHNAMA DATED 2.1.2007. THE STATEMENT OF THE ASSE SSEE WAS RECORDED U/S 132(4) OF THE I T ACT 1961 ON 2.1.2007. THE ASSESS EE WAS ASKED TO EXPLAIN THE SOURCE OF INVESTMENT IN THE SAID JEWELLERY VIDE QU ESTION NO.3 THEREOF. IN REPLY TO THE SAID QUESTION THE ASSESSEE HAD STATED THAT I AM NOT FILLING MY WEALTH TAX RETURN NOR I AM HAVING VALUATION REPORT AND ACQUISI TION BILLS ETC. HENCE THIS JEWELLERY IS UNDISCLOSED JEWELLERY. NOW I AM OFFERI NG A SUM OF ` . 9 77 120/- FOR FY 2006-07 AS UNDISCLOSED INCOME FOR TAXATION. I WILL SUBMIT DEMAND DRAFT BY 5.1.2007. 2.2 DURING THE COURSE OF ASSESSMENT PROCEEDINGS TH E ASSESSING OFFICER ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF JEWELLERY FOU ND OF ` . 13 91 520/- WITH SUPPORTING DOCUMENTARY EVIDENCE. IN COMPLIANCE TO THE SAID NOTICE THE 3 MRS SUNDARI UMESH THAKUR ITA NO. 5150/MUM/2009 ITA NO. 5420/MUM/2009 ASSESSEE VIDE LETTER DATED 15.12.2008 SUBMITTED A L IST STATING THAT THE LOCKER WAS JOINTLY HELD AND THE JEWELLERY PERTAINS TO THE FOLLOWING PERSONS: NAME OF THE JEWELLERY HOLDER NAME OF THE JEWELLERY HOLDER NAME OF THE JEWELLERY HOLDER NAME OF THE JEWELLERY HOLDER NET WT.OF NET WT.OF NET WT.OF NET WT.OF JEWELLERY IN JEWELLERY IN JEWELLERY IN JEWELLERY IN GRAMS GRAMS GRAMS GRAMS VALUE OF THE VALUE OF THE VALUE OF THE VALUE OF THE JEWEL JEWEL JEWEL JEWELLERY IN LERY IN LERY IN LERY IN ` `` ` MRS RAJANI/SUNDARI U THAKUR 683.300 5 46 640/- MRS LEELA THAKUR (MOTHER) 534 800 4 27 840/- MRS KUSUM SINGH (ELDER SISTER) 255.700 1 80 560/- MRS LAXMI SHARMA (AUNT) 185.500 1 48 400/- MOHIT THAKUR (SON) 110.100 88 080/ - TOTAL TOTAL TOTAL TOTAL 1739.400 1739.400 1739.400 1739.400 123 91 520/ 123 91 520/ 123 91 520/ 123 91 520/- -- - 2.3 HOWEVER IN ABSENCE OF FILING OF ANY SUPPORTIN G EVIDENCE REGARDING THE JEWELLERY FOUND OF ` 13 91 520/- THE ASSESSING OFFICER HELD THAT THE JE WELLERY FOUND IS UNEXPLAINED. HE ACCORDINGLY ADDED THE AM OUNT OF ` 13 91 520/- TO THE INCOME OF THE ASSESSEE AS UNEXPLAINED INVESTMENT IN JEWELLERY. 3 BEFORE THE CIT(A) IT WAS SUBMITTED THAT IMMEDIAT ELY ON NOTICING THAT THE LOCKER HAS BEEN SEIZED BY THE DEPARTMENT THE ASSESSEE APPROACHED THE DDIT(INV) UNIT VII MUMBAI VIDE HER LETTER DATED 14.12.2006. JEWELLERY WEIGHING 1739.400 GRAM VALUED AT ` 13 91 520/- BY THE DEPARTMENT VALUER WAS FOUND IN THE SAID LOCKER. OUT OF JEWELLERY OF 1739.400 GRM JEWELLERY WEIGHING 518 GRM VALUED AT ` 4 14 400/- WAS RELEASED AND BALANCE WEIGHTING 1221 .400 GRM VALUING ` 9 77 120/- WAS SEIZED BY THE DEPARTMENT AFTER RECO RDING THE STATEMENT OF THE ASSESSEE. IT WAS SUBMITTED THAT THE ASSESSING OFF ICER HAS SOLELY RELIED ON THE STATEMENT OF THE ASSESSEE WITHOUT PROVIDING A COPY OF THE SAME TO THE ASSESSEE 4 MRS SUNDARI UMESH THAKUR ITA NO. 5150/MUM/2009 ITA NO. 5420/MUM/2009 AND SEEKING HER EXPLANATION AS REQUIRED UNDER THE L AW. THEREFORE ANY ADVERSE INFERENCE DRAWN FROM THE SAID STATEMENT WITHOUT AFF ORDING AN OPPORTUNITY TO BE HEARD IS BAD IN LAW AND THEREFORE NOT SUSTAINABLE. IT WAS SUBMITTED THAT THE ASSESSEE HAD WRITTEN TWO MORE LETTERS TO THE DDIT ( INV) VIDE LETTER DATED 5.1.2007 AND 8.1.2007. THE STATEMENT RECORDED ON 2.1.2007 WAS RETRACTED BY THE ASSESSEE VIDE HER LETTER DATED 8.1.2007 AND BEC AUSE OF THIS THE DDIT(INV) DID NOT FORCE FOR THE SAID PROMISED DEMAND DRAFT FR OM THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAD RE CORDED THAT THE ASSESSEE COULD NOT FILE ANY SUPPORTING EVIDENCE WHEREAS THE ASSESSEE VIDE HER LETTER DATED 22.12.2008 HAS GIVEN FULL DETAILS OF THE JE WELLERY FOUND AND THE DETAILS OF THE PERSONS TO WHOM DOES IT BELONGS TO AND THE S OURCE OF ACQUISITION OF EACH INDIVIDUAL DULY SUPPORTED BY THE AFFIDAVITS. THE C OPY OF THE I T RETURN AND BALANCE SHEET OF HER MOTHER SMT LEELA THAKUR WHEREI N THE JEWELLERY BELONGING TO HER IS REFLECTED WAS FILED. THE ASSESSEE HAD AL SO SUBMITTED THE EVIDENCE REGARDING JOINT HOLDING OF THE LOCKER WITH SMT LAXM I SHARMA. A COPY OF HER RATION CARD WAS FILED TO SHOW THAT HER SISTER KUSU M SINGHS NAME WAS INCLUDED IN THE SAME. IT WAS ARGUED THAT TWO OF THE LADIES WERE MARRIED LONG BACK AND HAD RECEIVED JEWELLERY AT THE TIME OF THEIR MARRIA GE AND THE VALUE AT THAT TIME WAS NEGLIGIBLE AND THERE CANNOT BE ANY EVIDENCE FOR SUCH TYPE OF ACQUISITION AND CONSIDERING THE SMALL AMOUNT OF JEWELLERY THE WEALTH TAX RETURN WERE ALSO NOT REQUIRED TO BE FILED. THE CBDT INSTRUCTION NO. 1916 DATED 11.5.1994 WAS ALSO BROUGHT TO THE NOTICE OF THE CIT(A) WHEREIN CERTAIN GUIDELINES WERE ISSUED NOT TO SEIZE THE JEWELLERY OF 500 GRAMS PER MARRIED LA DY 250 GRMS PER UN-MARRIED LADY AND 100 GRMS PER MALE MEMBER. 5 MRS SUNDARI UMESH THAKUR ITA NO. 5150/MUM/2009 ITA NO. 5420/MUM/2009 4 BASED ON VARIOUS ARGUMENTS ADVANCED BY THE ASSESS EE THE CIT(A) DELETED THE ADDITION TO THE EXTENT OF 1255.700 GRM . WHILE DOING SO HE NOTED THAT THE ASSESSING OFFICER HAS RELIED HEAVILY AND S OLELY ON THE STATEMENT OF THE ASSESSEE AND OVERLOOKED SUBSEQUENT RETRACTION AS AL SO VARIOUS EXPLANATIONS OFFERED IN THIS RESPECT BEFORE THE DDIT AS WELL AS BEFORE ASSESSING OFFICER. HE NOTED THAT NO ADDITION COULD BE MADE MERELY ON THE BASIS OF THE STATEMENT UNLESS THE SAME IS CORROBORATED BY ANY EVIDENCE AS PER THE SETTLED POSITION OF LAW. IN THE INSTANT CASE THE ASSESSEE RETRACTED THE STATED FACTS WITHIN A VERY SHORT SPAN OF TIME AND NOT AFTER A CONSIDERABLE GAP GIVING AN IMPRESSION OF AFTERTHOUGHT. RELYING ON A COUPLE OF DECISIONS HE NOTED THAT THE ADDITION MADE ON THE BASIS OF THE STATEMENT RECORDED U/S 132(4) W HICH HAS BEEN SUBSEQUENTLY RETRACTED CANNOT BE SUSTAINED PARTLY OR AS A WHOLE WITHOUT ANY CORROBORATIVE EVIDENCE. THEREFORE THE ASSESSING OFFICER IN REL YING EXCLUSIVELY ON THE STATEMENT WHICH STOOD RETRACTED IS NOT AT ALL JUSTI FIED FROM THIS POINT OF VIEW. 4.1 HE FURTHER NOTED THAT IT IS ALSO INCORRECT TO H OLD THAT THE ASSESSEE DID NOT FURNISH ANY SUPPORTING EVIDENCE IN SUPPORT OF T HE CONTENTION THAT THE JEWELLERY BELONGS TO SEVERAL PERSONS. FROM THE COPY OF THE LETTER DATED 22.12.2008 WHICH WAS SUBMITTED BEFORE THE ASSESSIN G OFFICER HE NOTED THAT THE ASSESSEE HAD GIVEN A DETAILED REPLY AND ALSO FURNIS HED AFFIDAVITS OF CERTAIN PERSONS. HOWEVER THE ASSESSING OFFICER HAS NOT MA DE ANY FURTHER EFFORT IN THIS REGARD EITHER BY EXAMINING THE PERSON CONCERNED OR MAKING FURTHER INVESTIGATION. FROM THE CONTENTS OF THE LETTER DAT ED 14.12.2006 FILED BEFORE THE DDIT (INVST) HE NOTED THAT BEFORE OPERATION OF THE SAID LOCKER BY THE DEPARTMENT THE ASSESSEE HAD STATED THAT THE CONT ENTS BEING JEWELLERY BELONGING TO THREE LADIES I.E. THE ASSESSEE HERSELF SMT LEELA THAKUR (HER 6 MRS SUNDARI UMESH THAKUR ITA NO. 5150/MUM/2009 ITA NO. 5420/MUM/2009 MOTHER) AND SMT KUSUM SINGH BEING HER ELDER SISTER. AGAIN VIDE LETTER DATED 8.1.2007 THE DDIT(INVT) WAS INTIMATED SUCH FACTS A ND THE ASSESSEE RETRACTED HER STATEMENT BY CITING IGNORANCE AT THE TIME OR RECORD ING OF STATEMENT AT THE TIME OF SEARCH. THE REASONS FOR KEEPING JEWELLERY OF OTH ER PERSONS WERE ALSO STATED THEREIN. NONE OF SUCH FACTS HAVE NEITHER BEEN APPR ECIATED NOR REBUTTED BY THE ASSESSING OFFICER IN ANY MANNER; THEREFORE THE ASS ESSING OFFICER IS NOT JUSTIFIED IN CONCLUDING THAT THEATRE JEWELLERY BELONGED TO TH E ASSESSEE WHICH HAS BEEN TREATED BY HIM AS HER OWN UNEXPLAINED INVESTMENT. 4.2 HE HOWEVER NOTED THAT THERE IS SOME CONTRADICT ION IN THE STAND OF THE ASSESSEE TAKEN BEFORE THE DDIT AND BEFORE THE ASSES SING OFFICER. WHILE BEFORE THE DDIT IT WAS TIME AND AGAIN STATED THAT THE JEW ELLERY BELONGED TO THREE LADIES ONLY AS NAMED ABOVE WHICH INCLUDED HERSELF; HOWEVER IN REPLY TO THE ASSESSING OFFICER IT WAS STATED THAT APART FROM THE JEWELLER Y BELONGED TO THREE LADIES JEWELLERY TO THE EXTENT OF 185.500 GRM WORTH ` 1.84 LAKHS AND 110.100 GRM WORTH ` 88 080/- RESPECTIVELY BELONGED TO HER AUNT AND MI NOR CHILDREN. ALSO AT CERTAIN POINTS IT WAS STATED THAT THE JEWELLERY BE LONGED TO THREE LADIES IN EQUAL QUANTITIES WHILE BEFORE THE ASSESSING OFFICER DIFF ERENT QUANTITIES BELONGING TO SUCH LADIES WERE MENTIONED. 4.3 CONSIDERING THE ABOVE FACTS HE CAME TO THE CON CLUSION THAT THE SAID JEWELLERY COULD BE CONSIDERED TO BE BELONGING TO T HE THREE LADIES ONLY AS PER THE STATED STAND OF THE ASSESSEE AND NO BENEFIT TO THE EXTENT OF 1850.50 GRM AND 110.100 GRM COULD BE GIVEN. AS REGARDS THE SOURCE OF ACQUISITION THE ASSESSEE HAS FURTHER CLAIMED THAT SUCH JEWELLERIES WERE ACQU IRED BY THE LADIES WHO ARE ALL 7 MRS SUNDARI UMESH THAKUR ITA NO. 5150/MUM/2009 ITA NO. 5420/MUM/2009 MARRIED ON THE OCCASION OF THEIR MARRIAGE ETC. RE LYING ON THE INSTRUCTION OF CBDT AND CONSIDERING THE TOTALITY OF THE FACTS OF T HE CASE HE HELD THAT BENEFIT OF 500 GRMS PER LADY COULD BE ALLOWED TO THE ASSESSEE AND SMT LEELA THAKUR HER MOTHER WHO OWNED UP JEWELLERY EXCEEDING 500 GRMS. FURTHER CONCESSION TO THE EXTENT OF 255.700 GRM WAS ALLOWED BY HIM IN RESPECT OF SMT KUSUM SINGH BEING ELDER SISTER OF THE ASSESSEE. 4.4 SO FAR AS THE BALANCE JEWELLERY IS CONCERNED S INCE THE ASSESSEE HAS BEEN UNABLE TO EXPLAIN THE SOURCE THEREOF IN ANY MA NNER HE HELD THE SAME AS UNEXPLAINED INVESTMENT OF THE ASSESSEE. HE NOTED THAT THE EXPLANATION OF THE BALANCE JEWELLERY BELONGING PARTLY TO HER AUNT AND PARTLY TO HER CHILDREN IS MERELY AN AFTERTHOUGHT AS NO SUCH STAND WAS TAKEN B EFORE THE INVESTIGATION OR IN SEVERAL CORRESPONDENCE MADE WITH THEM. ACCORDI NGLY HE DIRECTED THE ASSESSING OFFICER TO DELETE THE ADDITION TO THE EXT ENT OF ` .1255.700 GRM. 5 AGGRIEVED WITH SUCH PART RELIEF BY THE CIT(A) T HE ASSESSEE AS WELL AS THE REVENUE ARE IN APPEAL BEFORE US WITH THE FOLLO WING GROUNDS: ITA NO. 5150/MUM/2009(BY THE ITA NO. 5150/MUM/2009(BY THE ITA NO. 5150/MUM/2009(BY THE ITA NO. 5150/MUM/2009(BY THE REVENUE REVENUE REVENUE REVENUE) )) ) 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF TH3E CASE AND IN LAW THE LD CIT(A) ERRED IN DELETING THE ADDITION TO THE EXTENT OF JEWELLERY WEIGHTING 1255.700 GMS IGNORING THE FACT THAT THE ASSESSEE FA ILED TO EXPLAIN THE SAME OF ALL JEWELLERY WITH SUPPORTING EVIDENCE DURI NG THE COURSE OF SEARCH PROCEEDINGS AND ALSO ASSESSMENT PROCEEDINGS. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF TH3E CASE AND IN LAW THE LD CIT(A) ERRED IN DELETING THE ADDITION TO THE EXTENT OF JEWELLERY WEIGHTING 1255.700 GMS IGNORING THE FACT THAT NOWHERE THE BOA RDS INSTRUCTION NO.1916(F.286/63/93-IT(INV.II) DATED 11.5.1994 STA TES THAT JEWELLERY OF 500 GMS PER EVERY MARRI3D LADY SHOULD BE TAKEN AS E XPLAINED. 8 MRS SUNDARI UMESH THAKUR ITA NO. 5150/MUM/2009 ITA NO. 5420/MUM/2009 ITA NO. 5 ITA NO. 5 ITA NO. 5 ITA NO. 5420 420 420 420/MUM/200 /MUM/200 /MUM/200 /MUM/2009(BY THE 9(BY THE 9(BY THE 9(BY THE ASSESSEE ASSESSEE ASSESSEE ASSESSEE) )) ) 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF TH3E CASE AND IN LAW THE LD CIT(A) ERRED IN RESTRICTING THE EXPLAINED JEWELLERY IN THE HANDS OF TWO LADIES VS SMT SUNDARI THAKUR (APPELLANT) AND SMT LE ELA THAKUR (MOTHER OF THE APPELLANT) TO THE EXTENT OF 500 GM. EACH AS AG AINST THE JEWELLERY DECLARED 683.300 GM AND 534.80GM RESPECTIVELY AND CONFIRMING THE LD ASSESSING OFFICERS ACTION IN RESPECT OF BALANCE JE WELLERY OF 183.300 GMS AND 34 800 GM. 2) IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD C IT(A) ERRED IN DENYING THE BENEFIT OF 185.500 GM. OF JEWELLERY BEL ONGING TO SMT LAXME SHARMA AUNT OF THE ASSESSEE AND JOINT HOLDER O THE LOCKER. 3) IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD C IT(A) ERRED IN DISALLOWING THE JEWELLERY OF 185.100 GM BELONGING T O THE MINOR CHILDREN OF THE APPELLANT. 6 THE LD COUNSEL FOR THE ASSESSEE REFERRING TO THE LETTER DATED 8.1.2006 ADDRESSED TO DDIT (INVT) WHICH IS PLACED AT PAGE 3 8 OF THE PAPER BOOK SUBMITTED THAT THE JEWELLERY IN THE SAID LOCKER WAS BELONGING TO THE ASSESSEE HER MOTHER AND HER ELDER SISTER. REFERRING TO PAG ES 6 TO 8 OF THE PAPER BOOK HE SUBMITTED THAT AN EXPLANATION REGARDING THE OWNERS HIP OF THE JEWELLERY WERE FILED BEFORE THE ASSESSING OFFICER GIVING THE QUANT ITY WISE JEWELLERY BELONGING TO THE ASSESSEE HER MOTHER HER SISTER HER AUNT AND TWO CHILDREN. REFERRING TO PAGE 9 TO 15 OF THE PAPER BOOK HE DREW THE ATTENTI ON OF THE BENCH TO THE AFFIDAVITS FILED BY VARIOUS PERSONS GIVING THE DETA ILS OF THE JEWELLERY BELONGING TO EACH OF THEM. 6.1 REFERRING TO THE LETTER DATED 14.12.2006 ADDRES SED TO THE DDIT (INV) UNIT VII MUMBAI; HE SUBMITTED THAT THE LOCKER BELO NGING TO THREE LADIES WAS EXPLAINED TO THE DDIT. REFERRING TO PAGE 5 OF THE PAPER BOOK HE DREW THE ATTENTION OF THE BENCH TO THE INDIVIDUAL ITEMS OF T HE JEWELLERY IN THE LOCKER AND THE OWNERSHIP THEREOF. REFERRING TO PAGE 41 OF TH E PAPER BOOK HE DREW THE 9 MRS SUNDARI UMESH THAKUR ITA NO. 5150/MUM/2009 ITA NO. 5420/MUM/2009 ATTENTION OF THE BENCH THAT AS PER THE LOCKER AGREE MENT THE SAME IS BETWEEN MRS RAJANI THAKUR AND MS LAKSHMI SHARMA VS SECURE S AFE VAULTS LTD. HE SUBMITTED THAT MRS LAKSHMI SHARMA IS THE AUNT OF TH E ASSESSEE. 6.2 REFERRING TO THE INSTRUCTION ISSUED BY THE CBD T VIDE INSTRUCTION NO. 1916 OF 11.5.1994 THE DECISION OF THE HONBLE GU JARAT HIGH COURT IN THE CASE OF CIT VS RATANLAL VYAPARILAL JAIN REPORTED IN 235 CTR 568 DECISION OF THE ITAT AHMEDABAD BENCH OF THE TRIBUNAL (THIRD MEMBER) IN T HE CASE OF DCIT VS PRAMUKH BUILDERS REPORTED IN 115 ITD 179 AND THE D ECISION OF THE AHMEDABAD A BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS MAN ILAL D DAVE REPORTED IN 70 TTJ 801 HE SUBMITTED THAT NO ADDITION SHOULD HAVE BEE N MADE ON ACCOUNT OF SUCH JEWELLERY FOUND IN THE LOCKER BELONGING TO DIFFEREN T PERSONS. 6.3 REFERRING TO THE INSTRUCTION ISSUED BY THE CBDT CIRCULAR NO. 286/2/2003 DATED 10.3.2003 HE SUBMITTED THAT THE BOARD HAS G IVEN INSTRUCTION TO THE FIELD OFFICERS THAT THE CONFESSION GIVEN DURING THE SEARC H & SEIZURE AND SURVEY OPERATIONS DO NOT SERVE ANY USEFUL PURPOSE IF SUCH CONFESSION ARE NOT BASED ON ANY CREDIBLE EVIDENCE AND ARE LATER ON RETRACTED BY THE CONCERNED ASSESSEE WHILE FILING RETURN OF INCOME. SINCE IN THE INSTA NT CASE THE ASSESSEE HAS RETRACTED HER STATEMENT GIVEN DURING THE COURSE OF SEARCH AND SEIZURE OPERATION AND SINCE THE DEPARTMENT HAS NO CREDIBLE EVIDENCE A ND SINCE THE ASSESSEE HAS FILED VARIOUS DETAILS EXPLAINING THAT THE JEWELLE RY BELONG TO DIFFERENT PERSONS; THEREFORE THE CIT(A) SHOULD HAVE HELD THAT THE EN TIRE JEWELLERY IS FULLY EXPLAINED. HE SUBMITTED THAT THE STATEMENT OF THE ASSESSEE SHO ULD NOT BE HELD AGAINST HER 10 MRS SUNDARI UMESH THAKUR ITA NO. 5150/MUM/2009 ITA NO. 5420/MUM/2009 AND THE ENTIRE JEWELLERY SHOULD BE TREATED AS EXPLA INED. HE ALSO RELIED ON A COUPLE OF DECISIONS 6.4 THE LD DR ON THE OTHER HAND SUBMITTED THAT WHA TEVER HAS BEEN STATED CONSEQUENT TO THE SEARCH IS ONLY AN AFTERTHOUGHT. T HEREFORE THE ENTIRE ADDITION MADE BY THE ASSESSING OFFICER SHOULD HAVE BEEN UPHE LD AND THE CIT(A) IS NOT JUSTIFIED IN GIVING PART RELIEF. SHE ACCORDINGLY SU BMITTED THAT THE ORDER OF THE CIT(A) SHOULD BE SET ASIDE AND THAT OF THE ASSESSIN G OFFICER BE RESTORED. AS REGARDS THE ARGUMENT OF THE LD COUNSEL FOR THE ASSE SSEE REGARDING THE JEWELLERY BELONGING TO HER AND TWO CHILDREN SHE SUBMITTED TH AT THE SAME IS MERELY AN AFTERTHOUGHT. 6.5 THE LD COUNSEL FOR THE ASSESSEE IN HIS REJOIND ER SUBMITTED THAT THE ASSESSEE CAN ALWAYS CLARIFY AND RETRACT THE STATEME NT GIVEN DURING THE COURSE OF SEARCH. 7 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE BY BOTH THE PARTIES PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. THERE IS NO DISPUTE TO THE FACT THAT A SEARCH AND S EIZURE OPERATION U/S 132(1) OF THE I T ACT WAS INITIATED ON THE ASSESSEES BANK LO CKER NO.756 WITH SECURE SAFE VAULTS PVT LTD ON 6.11.2006. THERE IS ALSO NO DISPU TE TO THE FACT THAT DURING THE SAID SEARCH JEWELLERY NET WEIGHT 1739.400 GM WORTH ` 13 91 520/- AS PER GOVT APPROVED VALUER REPORT DATED 2.1.2007 WAS FOUND. O UT OF THIS JEWELLERY NET 11 MRS SUNDARI UMESH THAKUR ITA NO. 5150/MUM/2009 ITA NO. 5420/MUM/2009 WEIGHT OF 1221.400 GM WORTH ` 9 77 120/- HAS BEEN SEIZED AS PER ANNEXURE J-1 TO THE PANCHANAMA DATED 2.1.2007. THERE IS ALSO NO DISPUTE TO THE FACT THAT THE ASSESSEE IN HER STATEMENT RECORDED U/S 132(4) O F THE ACT ON 2.1.2007 IN REPLY TO QUESTION NO.3 HAD STATED THAT JEWELLERY IS UNDIS CLOSED JEWELLERY AND THEREFORE SHE HAS OFFERED A SUM OF ` 9 77 120/- FOR THE FY 2006-07 AS HER UNDISCLOSED INCOME FOR TAXATION. THERE IS ALSO NO DISPUTE TO TH E FACT THAT THE ASSESSEE IN HER LETTER DATED 8.1.207 (WRONGLY WRITTEN AS 8.1.2006) ADDRESSED TO THE DDIT HAD RETRACTED HER STATEMENT AND HAS GIVEN THE DETAILS O F THE JEWELLERY BELONGING TO HERSELF HER MOTHER AND HER SISTER. 7.1 WE FIND THE ASSESSING OFFICER MADE THE ADDITION OF ` 13 91 520/- BEING UNDISCLOSED INVESTMENT IN JEWELLERY ON THE GROUND THAT THE ASSESSEE COULD NOT FILE ANY SUPPORTING EVIDENCE REGARDING JEWELLERY FO UND FROM THE LOCKER. WE FIND FROM THE COPY OF THE AGREEMENT WITH M/S SECURE SAFE VAULTS LTD COPY OF WHICH IS PLACED AT PAGES 41 TO 46 OF THE PAPER BOOK THAT THE SAID LOCKER STANDS IN THE NAME OF THE ASSESSEE SMT RAJANI THAKUR AND MRS LAKS HMI SHARMA. WE FURTHER FIND THE ASSESSEE IN HER VARIOUS LETTERS ADDRESSED TO DDIT(INV) HAD SUBMITTED THAT THE JEWELLERY IN THE SAID LOCKER BELONG TO HER HER MOTHER AND HER SISTER. FURTHER THE AFFIDAVITS OF THE OTHER THREE LADIES W ERE ALSO FILED BEFORE THE ASSESSING OFFICER. WE FIND THE ASSESSING OFFICER H AS NOT AT ALL CONSIDERED THE ABOVE DOCUMENTS WHICH WERE AVAILABLE BEFORE HIM AND MADE THE ENTIRE ADDITION ON THE GROUND THAT THE ASSESSEE COULD NOT EXPLAIN W ITH DOCUMENTARY EVIDENCES REGARDING SUCH JEWELLERY FOUND FROM THE LOCKER. 12 MRS SUNDARI UMESH THAKUR ITA NO. 5150/MUM/2009 ITA NO. 5420/MUM/2009 7.2 WE FIND THE CIT(A) ON THE BASIS OF THE VARIOUS DOCUMENTS SUBMITTED BEFORE HIM AS WELL AS MADE BEFORE THE DDIT AND THE ASSESSING OFFICER AND ON THE BASIS OF THE CBDT INSTRUCTION NO.1916 HAS HELD THAT THE BENEFIT TO THE EXTENT OF 500 GM PER LADY COULD BE ALLOWED TO THE ASSESSEE AND SMT LEELA THAKUR(MOTHER OF THE ASSESSEE) AND 255.700 GRM IN RESPECT OF KUSUM SINGH BEING THE ELDER SISTER OF THE ASSESSEE. WE FIND THE FINDINGS GIVEN BY THE CIT(A) UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE IS JU ST AND PROPER. ADMITTEDLY THE ASSESSEE HAS RETRACTED HER STATEMENT WHICH WAS GIVEN EARLIER DURING THE COURSE OF HER STATEMENT RECORDED U/S 132(4). THE A SSESSEE HAS ALL ALONG BEEN CLAIMING THAT THE JEWELLERY FOUND IN THE LOCKER BEL ONGING TO THREE PERSONS I.E. HERSELF HER MOTHER AND HER SISTER AS PER LETTER AD DRESSED TO DDIT DATED 5.1.2007 AND 8.1.207 (WRONGLY MENTIONED AS 5.1.2006 AND 8.1. 2006. 7.3 FURTHER THE ASSESSEE IN HER LETTER ADDRESSED T O DDIT DATED 8.1.2007 HAS GIVEN A LIST OF ORNAMENTS BELONGING TO HER SIST ER AND HER MOTHER. ALTHOUGH THE LOCKER STANDS IN THE NAME OF THE ASSESSEE AS WE LL AS MRS LAXMI SHARMA THE ASSESSEE HAS NEVER SATED BEFORE THE DDIT THAT THE L OCKER CONTAINS ORNAMENTS BELONGING TO MRS LAXMI SHARMA OR THAT OF HER TWO CH ILDREN. ONLY DURING THE COURSE OF ASSESSMENT PROCEEDINGS THAT TOO AFTER AB OUT TWO YEARS THE ASSESSEE SUBMITTED BEFORE THE ASSESSING OFFICER REGARDING TH E THEORY OF JEWELLERY BELONGING TO MRS LAXMI SHARMA AND THE TWO CHILDREN OF THE ASSESSEE. THEREFORE WE FIND THE FORCE IN THE SUBMISSIONS OF THE LD DR T HAT THE JEWELLERY BELONGING TO SMT LAXMI SHARMA AND THE TWO CHILDREN OF THE ASSESS EE ARE MERELY AN AFTERTHOUGHT. ACCORDINGLY THE ORDER OF THE CIT(A) REJECTING THE CLAIM OF THE ASSESSEE THAT A PART OF THE JEWELLERY BELONG TO MR S LAXMI SHARMA AND THE TWO CHILDREN IS UPHELD 13 MRS SUNDARI UMESH THAKUR ITA NO. 5150/MUM/2009 ITA NO. 5420/MUM/2009 7.4 SO FAR AS THE ORDER OF THE CIT(A) ALLOWING CRED IT OF JEWELLERY WT 1255.700 GMS IS CONCERNED WE FIND THE ASSESSEE HAD GIVEN DE TAILS OF JEWELLERY BELONGING TO HER AT 683.300 GMS HER MOTHER SMT LEELA THAKU R AT 534.800 GMS WORTH ` 4.27 LACS AND SMT KUSUM SINGH HER ELDER SISTER AT 255.700 GM WORTH ` 1.80 LACS. SINCE THE ASSESSEE HAS ADMITTEDLY COULD NOT FURNISH ANY DOCUMENTARY EVIDENCE REGARDING ACQUISITION OF THE JEWELLERY; TH EREFORE PLACING RELIANCE ON THE CBDT INSTRUCTION NO.1916 WE ARE OF THE CONSIDERED OPINION THAT THE CREDIT TO THE TUNE OF 500 GM FOR MRS RAJANI THAKUR ALIAS MRS SUN DARI THAKUR 500 GMS FOR SMT LEELA THAKUR AND 255.700 FOR SMT KUSUM SINGH CAN BE ALLOWED CONSIDERING THE STATUS OF THE FAMILY AGE OF THE LADIES ETC. WE THEREFORE UPHOLD THE ORDER OF THE CIT(A) DELETING THE ADDITION ON ACCOUNT OF JEWE LLERY TO THE EXTENT OF 1255.700 GM. THE GROUNDS RAISED BY THE REVENUE AS WELL AS TH E ASSESSEE ARE ACCORDINGLY DISMISSED. 8 IN THE RESULT THE APPEALS FILED BY THE REVENUE A S WELL AS THE ASSESSEE ARE DISMISSED ORDER PRONOUNCED ON THE 28 TH DAY OF JAN 2011. SD/- SD/- ( (( ( SMT ASHA VIJAYARAGHAVAN SMT ASHA VIJAYARAGHAVAN SMT ASHA VIJAYARAGHAVAN SMT ASHA VIJAYARAGHAVAN ) )) ) JUDICIAL MEMBER ( (( ( R K PANDA R K PANDA R K PANDA R K PANDA ) )) ) ACCOUNTANT MEMBER PLACE: MUMBAI : DATED: JAN 2011 RAJ* 14 MRS SUNDARI UMESH THAKUR ITA NO. 5150/MUM/2009 ITA NO. 5420/MUM/2009 COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR ITAT MUMBAI