Bhawna Babbar, New Delhi v. ACIT, Central Circle- 2, New Delhi

ITA 7285/DEL/2017 | 2015-2016
Pronouncement Date: 07-11-2019 | Result: Dismissed

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Appeal Details

RSA Number 728520114 RSA 2017
Assessee PAN AAGPB7978N
Bench Delhi
Appeal Number ITA 7285/DEL/2017
Duration Of Justice 1 year(s) 11 month(s) 1 day(s)
Appellant Bhawna Babbar, New Delhi
Respondent ACIT, Central Circle- 2, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 07-11-2019
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted SMC
Tribunal Order Date 07-11-2019
Assessment Year 2015-2016
Appeal Filed On 06-12-2017
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI F BEN CH NEW DELHI BEFORE SHRI N.K. BILLAIYA ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE JUDICIAL M EMBER ITA NO. 7285/DEL/2017 [A.Y 2015-16] SMT. BHAWNA BABBAR VS. THE A.C.I .T C 1/19 SAFDARJUNG DEVELOPMENT AREA CENTRAL CIRC LE 2 HAUZ KHAS NEW DELHI NEW DELHI PAN: AAGPB 7978 N (APPLICANT) ( RESPONDENT) ASSESSEE BY : SHRI SALIL AG ARWAL ADV DEPARTMENT BY : SHRI SURENDRA PAL SR. DR DATE OF HEARING : 06.11.2019 DATE OF PRONOUNCEMENT : 07.11.2019 ORDER PER N.K. BILLAIYA ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] - 23 NEW DELH I DATED 30.08.2017 PERTAINING TO ASSESSMENT YEAR 2015-16. 2 2. THE GRIEVANCE RAISED BY THE ASSESSEE IN THIS APP EAL IS TWO FOLD FIRSTLY THE ASSESSEE IS AGGRIEVED BY THE CONFIRMAT ION OF ADDITION OF RS. 1 02 800/- IN RESPECT OF CASH FOUND DURING THE COUR SE OF SEARCH AND SECONDLY THE ASSESSEE IS AGGRIEVED BY THE CONFIRMA TION OF ADDITION OF RS. 19 48 159/- IN RESPECT OF JEWELLERY FOUND DURIN G THE COURSE OF SEARCH. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT S EARCH OPERATION U/S 132 OF THE INCOME-TAX ACT 1961 [HEREINAFTER REFERR ED TO AS 'THE ACT'] WAS CONDUCTED AT THE RESIDENCE OF THE ASSESSEE ON 1 0.03.2015. DURING THE COURSE OF SEARCH OPERATION IN LOCKER NO 323 I N CANARA BANK NEW DELHI CASH AMOUNTING TO RS. 5 42 800/- WAS FOUND. THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF CASH IN THE LOCKER. 4. IN HER REPLY THE ASSESSEE EXPLAINED THAT TH E CASH SO FOUND IN THE LOCKER WAS RECEIVED AS GIFTS ON THE OCCASION OF MAR RIAGE AND SUBSEQUENT CEREMONIES OF HER YOUNGER DAUGHTER MS. A NKITA GOYAL. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AS SESSEE SUBMITTED COPY OF CASH BOOK. AFTER CONSIDERING THE CONTENTS OF THE CASH BOOK THE ASSESSING OFFICER WAS NOT SATISFIED WITH THE SO URCE OF OPENING CASH BALANCE OF RS. 15 93 300/-. THE ASSESSING OFFICER REFUSED TO ENTERTAIN 3 THE CLAIM OF GIFTS ON CEREMONIAL FUNCTIONS. HOWEVE R CONSIDERING THE STATUS OF THE ASSESSEE THE ASSESSING OFFICER MADE ADDITION OF RS. 5 42 800/- AS UNEXPLAINED CASH. 5. THE ASSESSEE AGITATED THE MATTER BEFORE THE LD . CIT(A) AND REITERATED HER CLAIM OF HAVING RECEIVED GIFTS AT TH E TIME OF VARIOUS CEREMONIAL FUNCTIONS. 7. AFTER CONSIDERING THE FACTS AND SUBMISSIONS AND THE CUSTOM PREVAILING IN AN INDIAN HINDU FAMILY AND ALSO CONSI DERING THE STATUS OF THE ASSESSEES FAMILY THE LD. CIT(A) OBSERVED THA T A PART OF THE CASH FOUND CAN BE TREATED AS EXPLAINED BEING GIFTS. HO WEVER THE LD. CIT(A) CONCLUDED BY HOLDING THAT LOOKING AT THE STA TUS OF THE FAMILY RS. 4 40 000/- BEING ROUND FIGURE OF 16% OF INCOME DECLARED BY THE APPELLANT AND HER HUSBAND IS TREATED AS EXPLAINED BEING GIFT RECEIVED AT THE TIME OF MARRIAGE AND SUBSEQUENT CEREMONIES O F APPELLANTS DAUGHTER CONFIRMED THE BALANCE ADDITION OF RS. 1 0 2 800/-. 8. BEFORE US THE LD. AR VEHEMENTLY STATED THAT T HERE IS NO LOGICAL REASONING GIVEN BY THE LD. CIT(A) IN CONFIRMING THE BALANCE ADDITION OF RS. 1 02 800/-. IT IS THE SAY OF THE LD. COUNSEL F OR THE ASSESSEE THAT 4 APPLICATION OF 15% OF THE DECLARED INCOME OF THE AS SESSEE AND HUSBAND IS NOT ONLY ILLOGICAL BUT ALSO DO NOT FIND ANY PLAC E IN THE LAW OF INCOME TAX. 9. PER CONTRA THE LD. DR SUPPORTED THE FINDINGS OF THE LOWER AUTHORITIES. 10. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUT HORITIES BELOW. IT IS TRUE THAT THE FINDINGS OF THE LD. CIT(A) ARE NOT ONLY ILLOGICAL BUT ALSO DO NOT FIND ANY PLACE IN THE LAW OF INCOME TAX. IT IS EQUALLY TRUE THAT THE ONUS IS UPON THE ASSESSEE TO EXPLAIN THE POSSES SION OF CASH FOUND AT THE TIME OF SEARCH. IN OUR CONSIDERED OPINION THE BURDEN OF PROOF IS MORE WHEN CASH IS FOUND IN THE LOCKER OF A BANK AND NOT FOUND DEPOSITED IN THE BANK ACCOUNT. CONSIDERING THE STAT US OF THE APPELLANTS FAMILY HER LIFE STYLE AND STANDARD OF LIVING VIS A VIS RETURNED INCOME WE ARE OF THE CONSIDERED OPINION T HAT THE LOWER AUTHORITIES HAVE ALREADY GIVEN SUBSTANTIAL RELIEF I N RESPECT OF CASH FOUND FROM THE LOCKER. THEREFORE THE FINDINGS OF THE LD. CIT(A) UPHOLDING THE ADDITION OF A PALTRY SUM OF RS. 1 02 800/- DOES NOT CALL FOR ANY INTERFERENCE. GROUND NO. 1 IS DISMISSED. 5 11. COMING TO THE SECOND GRIEVANCE WHICH RELATES TO THE ADDITION OF RS. 19 48 159/- IN RESPECT OF JEWELLERY FOUND DURIN G THE COURSE OF SEARCH PROCEEDINGS THE FACTS ON RECORD SHOW THAT T HE FOLLOWING JEWELLERY WAS FOUND : NAME OF PREMISE WEIGHT/EQUIVALENT WEIGHT OF GOLD JEWELLERY VALUE OF JEWELLERY LOCKER NO. 32.3 IN CANARA BANK SDA BRANCH NEW DELHI 2300.45 GMS. RS. 77 83 778/- C - 1 /9 SAFDURJUNG DEVELOPMENT AREA HAUZ KHAS NEW DELHI 464.75 GMS RS. 11 26 561/ - 12. THE ASSESSEE WAS ASKED TO EXPLAIN THE POSSESSIO N OF JEWELLERY SO FOUND. IN HER REPLY TO THE STATEMENT RECORDED U/S 132(4) OF THE ACT THE ASSESSEE STATED AS UNDER: STATEMENT OF SMT. BHAWANA BABBAR W/O SH. RAKESH BA BBAR RECORDED ON DURING OPERATION OF LOCKER NO. 323 CANA RA BANK SDA BRANCH NEW DELHI: Q. NO. 7 UPON OPERATION OF LOCKER JEWELLERY VALUED AT RS. 77 83 778/- WEIGHING 2300.45 GM GOLD AND 142.18 CTS DIAMOND HAS BEEN FOUND. KINDLY EXPLAIN THE SOURCE OF ACQUIS ITION OF THE SAME? 6 ANS. THE JEWELLERY SO FOUND FROM THE LOCKER BELONGS TO MYSELF MY MOTHER IN LAW SMT. JANAK DULARI AND MY M ARRIED DAUGHTERS MRS. ASHIMA BEHAI AND ANKITA GOYAL. THE J EWELLERY HAVE BEEN ACQUIRED BY US ON VARIOUS OCCASIONS AS GI FTS RECEIVED FROM RELATIVES AND FRIENDS AS WELL AS ACQUIRED/PURCHASED BY US FOR VARIOUS PURPOSES. Q. NO. 8 WHY THE JEWELLERY OF YOUR MARRIED DAUGHTER S KEPT IN YOUR LOCKER? ARE THEY RESIDING WITH YOU? ANS. SINCE MY YOUNGER DAUGHTER SMT. ANKITA GOYAL IS NOT MAINTAIN ANY LOCKER IN HER NAME OR IN JOINT NAME WI TH ANYONE SHE HAD KEPT HER OWN JEWELLERY IN MY LOCKER. MOREOV ER SHE WAS MARRIED IN 2012 ONLY AND HER IN LAWS ARE BASED IN DELHI. FURTHER SOME OF THE JEWELLERY BELONGING TO MY ELDE R DAUGHTER IS ALSO KEPT IN MY LOCKER AS SHE HAD INTER ESTED THAT TO ME IN GOOD FAITH. NO THEY ARE NOT RESIDING WITH ME. Q. NO. 9 ARE YOUR DAUGHTERS WEALTH TAX ASSESSEES? ANS. NO THEY ARE NOT WEALTH TAX ASSESSEES. 13. AFTER PERUSING THE REPLY OF THE ASSESSEE THE A SSESSING OFFICER WAS OF THE OPINION THAT THE ASSESSEE HAS NOT GIVEN ANY SATISFACTORY REPLY/DOCUMENTARY EVIDENCES IN RESPECT OF SOURCE OF ACQUISITION OF JEWELLERY OF RS. 11 26 561/-. THE ASSESSING OFFICE R FURTHER OBSERVED 7 THAT CONSIDERING THE STATEMENT OF THE ASSESSEE AND CBDTS INSTRUCTION NO. 1916 OF 1994 DATED 11.05.1994 ALL THE FOUR MAR RIED LADIES OF THE FAMILY ARE ALLOWED 500 GMS. OF GOLD JEWELLERY AS ST REEDHAN AND 100 GMS. OF GOLD JEWELLERY IS ALLOWED FOR SHRI RAKESH B ABBAR THE HUSBAND OF THE ASSESSEE. ACCORDINGLY THE ASSESSING OFFICER GAVE RELIEF OF GOLD JEWELLERY WEIGHING 2100 GMS. AND TREATED THE BALANC E AS UNEXPLAINED AND MADE ADDITION OF RS. 32 87 039/-. 14. THE ASSESSEE STRONGLY AGITATED THE MATTER BEFOR E THE LD. CIT(A) AND CONTENDED THAT THE APPELLANT HAS BEEN MARRIED F OR MORE THAN 25 TO 30 YEARS AND THE POSSESSION OF GOLD JEWELLERY IN MARRIED LIFE OF 25-30 YEARS IS NOT ABNORMAL. IT WAS FURTHER CONTENDED TH AT IT IS CUSTOMARY IN AN INDIAN HINDU FAMILY TO RECEIVE JEWELLERY IN THE FORM OF STRIDHAN ON VARIOUS OCCASIONS AND CONSIDERING THE STATUS OF THE ASSESSEES FAMILY POSSESSION OF JEWELLERY SHOULD BE ACCEPTED. 15. AFTER CONSIDERING THE FACTS AND SUBMISSIONS TH E LD. CIT(A) OBSERVED AS UNDER: I HAVE CONSIDERED THE CASE LAW CITED BY THE APPELL ANT. THERE IS NO DOUBT THAT OF FAMILY HAS TO BE KEPT IN MIND W HILE DECIDING THE ALLOWANCE IN RESPECT OF EXPLANATION OF JEWELLERY FOUND IN CASE OF FAMILY MEMBERS. HOWEVER THERE CAN NOT BE 8 ANY STRAIGHT JACKETED FORMULAE FOR THE SAME IT IS SEEN THAT THE AO HAS DISREGARDED THE AFFIDAVITS FILED BY SMT. JANAK DULARI AND SMT. ANKITA GOEL WITHOUT ASSIGNING ANY R EASON FOR THE SAME. IT IS ALSO A FACT THAT DURING THE COURSE OF STATEMENT U/S 132(4) AT THE TIME OF SEARCH OF THE L OCKER THE APPELLANT HAD STATED THAT THE JEWELLERY BELONGS TO HER HER MOTHER-IN-LAW (SMT. JANAK DULARI) AND HER TWO MARRI ED DAUGHTER (SMT. ASHIMA BEHAI AND SMT. ANKITA GOEL). MOREOVER THE AO HAS APPLIED STRAIGHT JACKETED FORM ULAE AND GIVEN ALLOWANCE OF 500.00 GMS. IN RESPECT OF EACH M ARRIED LADY WITHOUT LOOKING THE PERIOD FOR WHICH A LADY I S MARRIED. FROM PERUSAL OF THE RETURNS OF INCOME FILED BY THE APPELLANT (SHE FILED RETURN OF INCOME DECLARING INCOME OF RS. 9 11 090/- FOR THE AY 2015-16) AND HER HUSBAND (SH. RAKESH BAB BAR WHO FILED RETURN OF INCOME DECLARING INCOME OF RS. 20 4 0 000/- FOR AY 2015-16) THE STATUS OF THE FAMILY CAN BE GA UGED LOOKING AT THE FACT THAT THE APPELLANT AND HER MOTH ER-IN-LAW WERE MARRIED FOR A MUCH LONGER PERIOD FURTHER ALLO WANCE OF 200.00 GMS. OF THE GOLD IN CASE OF THE APPELLANT AN D RS.300 GMS OF GOLD IN CASE OF MOTHER-IN-LAW OF THE APPELLA NT ARE ALLOWED. TAKING RATE OF GOLD AS TAKEN BY THE AO I.E . (> RS.2677.76 PER GMS. (AO HAS TAKEN VALUE OF JEWELLER Y WEIGHING AT 2100.00 GMS. AT RS. 56 23 300/-) THE A PPELLANT GETS RELIEF OF RS.13 38 880/- AND BALANCE AMOUNT OF ADDITION I.E. RS.19 48 159/- IS CONFIRMED. 9 16. BEFORE US THE LD. COUNSEL FOR THE ASSESSEE ONC E AGAIN REITERATED THAT CONSIDERING THE STATUS OF THE ASSESSEES FAMIL Y AND ALSO THE FACT THAT THE APPELLANT HAS BEEN MARRIED FOR MORE THAN 2 5 THE POSSESSION OF JEWELLERY SHOULD BE ACCEPTED. STRONG RELIANCE WA S PLACED ON THE DECISION OF THE COORDINATE BENCH IN THE CASE OF VIB HU AGGARWAL 93 TAXMANN.COM 275. 17. PER CONTRA THE LD. DR STRONGLY SUPPORTED THE F INDINGS OF THE LD. CIT(A). 18. WE HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW. THE UNDISPUTED FACT IS THAT THE JEWELLERY WEIGHING 2300.45 GMS WAS FOUND FROM LOCKER NO. 323 IN CANARA BANK SDA BRANCH NEW DELHI AND JEWELLERY WEIGHING 464.75 GMS JEWELLERY WAS FOUND FROM THE RESIDENCE OF THE APPELLANT. WE FIND THAT THE ASSESSING OFFICER HAS FOLLOWED INSTRUCTION NO. 1916 OF 1994 O F CBDT IN GIVING RELIEF OF 500 GMS. PER MARRIED LADY IN THE FAMILY A ND HAS FURTHER ALLOWED RELIEF OF 100 GMS IN RESPECT OF THE HUSBAND OF THE APPELLANT. 10 19. THE LD. CIT(A) FURTHER CONSIDERING THE STATUS O F THE ASSESSEES FAMILY VIS A VIS THE RETURNED INCOME OF THE APPELL ANT AND HER HUSBAND AND AFTER CONSIDERING THE FACT THAT THE APPELLANT H AS BEEN MARRIED FOR MORE THAN 25 YEARS FURTHER GAVE RELIEF OF 200 GMS OF GOLD JEWELLERY IN THE CASE OF MOTHER IN LAW OF THE ASSESSEE. AFTER C ONSIDERING THE COMPLETE STATUS RELIEF HAS BEEN GRANTED AND ADDITI ON OF RS. 19.48 LAKHS WAS CONFIRMED BY THE LD. CIT(A). 20. EVEN BEFORE US THE LD. COUNSEL FOR THE ASSESSE E HAS BEEN CONSTANTLY HARPING UPON THE STATUS OF THE FAMILY OF THE APPELLANT AND RETURNED INCOME OF THE APPELLANT AND HER HUSBAND. WE ARE OF THE CONSIDERED OPINION THAT THE FIRST APPELLATE AUTHORI TY HAS VERY JUDICIOUSLY CONSIDERED ALL THE ASPECTS OF THE APPEL LANT AND HAS GIVEN SUBSTANTIAL RELIEF. 21. RELIANCE PLACED ON THE DECISION OF THE COORDINA TE BENCH [SUPRA] APPEARS TO BE MISPLACED IN AS MUCH AS IN THAT CAS E THE COORDINATE BENCH HAS FOLLOWED THE DECISION OF THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF ASHOK CHADDHA 14 TAXMANN.COM 57 WHEREIN THE HON'BLE HIGH COURT HAS HELD THAT THE STATUS OF THE FAMILY C ANNOT BE LOST SIGHT OF. WE ARE OF THE VIEW THAT THE FIRST APPELLATE AU THORITY HAS VERY 11 JUDICIOUSLY CONSIDERED THE STATUS OF THE FAMILY AND AFTER CONSIDERING THE STATUS HAS ALREADY GIVEN SUBSTANTIAL RELIEF TO THE ASSESSEE. 22. FURTHER WE ARE OF THE CONSIDERED VIEW THAT THE STATUS OF THE FAMILY WOULD NOT JUSTIFY UNEXPLAINED POSSESSION OF JEWELLERY. EVEN IF A FAMILY HAS THE HIGHEST STATUS IN THE SOCIETY STILL THE FAMILY IS ACCOUNTABLE FOR THE POSSESSION OF GOLD/JEWELLERY/CA SH IN HAND AND CANNOT TAKE THE SHELTER BEHIND ITS STATUS WITHOUT E XPLAINING THE SOURCE OF POSSESSION. 23. BEFORE PARTING THE LD. COUNSEL FOR THE ASSESSE E HAD TAKEN AN ALTERNATIVE PLEA THAT THE VALUATION AS PER THE GMS. OF GOLD JEWELLERY ADOPTED BY THE ASSESSING OFFICER SHOULD BE TAKEN AS BASIS FOR MAKING THE ADDITION OF BALANCE UNEXPLAINED JEWELLERY. WE FIND THAT THIS HAS ALSO BEEN DISCUSSED BY THE LD. CIT(A) AT PARA 7.11 OF HIS ORDER ON PAGE 12 WHEREIN THE LD. CIT(A) HAS GIVEN A CATEGORICAL F INDING THAT THIS PLEA OF THE APPELLANT CANNOT BE ACCEPTED BECAUSE THE ENT IRE JEWELLERY IS NOT GOLD ONLY. IT HAS ITEMS OF DIAMOND ALSO. THER EFORE THE ACT OF THE ASSESSING OFFICER IN TAKING THE RATE AS PER RATES O F VALUATION OF GOLD IN VALUATION REPORT CANNOT BE STATED TO BE ERRONEOUS. WE DO NOT FIND ANY 12 ERROR OR INFIRMITY IN THIS FINDING OF THE LD. CIT(A ). THE ALTERNATIVE PLEA IS DISMISSED. 24. IN THE RESULT THE APPEAL OF THE ASSESSEE IN IT A NO. 7285/DEL/2017 IS DISMISSED THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 07.11 .2019. SD/- SD/- [ SUCHITRA KAMBLE ] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 07 TH NOVEMBER 2019 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR ITAT NEW DELHI 13 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS /PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P S/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WE BSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER