DCIT, Madurai v. Smt. S.P.Geetha, Madurai

ITSSA 15/CHNY/2007 | misc
Pronouncement Date: 03-01-2011 | Result: Partly Allowed

Appeal Details

RSA Number 1521716 RSA 2007
Assessee PAN ABAPG2368L
Bench Chennai
Appeal Number ITSSA 15/CHNY/2007
Duration Of Justice 3 year(s) 11 month(s) 2 day(s)
Appellant DCIT, Madurai
Respondent Smt. S.P.Geetha, Madurai
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 03-01-2011
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 03-01-2011
Date Of Final Hearing 08-12-2010
Next Hearing Date 08-12-2010
Assessment Year misc
Appeal Filed On 31-01-2007
Judgment Text
IN THE INCOMETAX APPELLATE TRIBUNAL: B- BENCH:CHENN AI (BEFORE SHRI U.B.S.BEDI JUDICIAL MEMBER & SHRI ABRAHAM P. GEORGE. ACCOUNTANT MEMBER) IT(SS) A NO.15 / MDS/07 BLOCK ASST. YEARS 1991-92 TO 2001-02 THE DCIT CENTRAL.CIR.II MADURAI VS SMT. S.P GEETHA NO.5 MANJANKARA ST. MADURAI 625001 PAN ABAPG2368L (APPELLANT) (RESPONDENT) APPELLANT BY: RESPONDENT BY: SHRI P.B.SEKARAN CIT-DR SHRI T.N.SEETHARAMAN ORDER PER ABRAHAM P.GEORGE ACCOUNTANT MEMBER THIS IS A RECALLED MATTER. THE RECALL IS IN PURSUA NCE OF AN ORDER OF THIS TRIBUNAL DATED 04-12-2009 WHEREIN IT IS MENTIO NED THAT APPEAL OF THE REVENUE WITH REGARD TO THE ISSUE OF UNEXPLAINED JEW ELLERY WAS INADVERTENTLY OMITTED TO BE CONSIDERED. RELATED GRO UND OF THE REVENUE APPEARS AT GROUND 2 OF ITS APPEAL. ITA(SS)NO 15/MDS/07 2 2. SHORT FACTS APROPOS ARE THAT DURING A SEARCH CON DUCTED ON 05-01- 2001 IN THE PREMISES OF ONE SRI S.P. SANJAI CERTAI N QUANTITY OF GOLD JEWELLERY WAS FOUND OF WHICH 1209 GMS. WAS STATED T O BE BELONGING SMT.S.P. GEETHA THE ASSESSEE HERE. SMT. S.P. GEETH A IS THE MOTHER OF SHRI S.P.SANJAI. AS PER THE AO ON ACTUAL WEIGHMENT THE JEWELLERY CLAIMED TO BE BEEN BELONGED TO THE ASSESSEE CAME TO 1201.7 GRAMS OF GOLD AND 17CARETS OF DIAMONDS. ASSESSEE WAS REQUIRED TO EXPL AIN. ASSESSEE THROUGH HER LETTER DATED 03-10-2002 STATED THAT SH E OWNED 925 GRAMS OF GOLD JEWELLERY AND 12 CT. DIAMOND JEWELLERY ONLY. F OR 925 GMS. EXPLANATIONS WERE ALSO GIVEN WHICH WAS ACCEPTED BY THE AO EXCEPT FOR 300 GMS. EXPLANATION OF THE ASSESSEE VIS--VIS 12 C ARETS OF DIAMONDS WERE ALSO ACCEPTED. IN SO FAR AS 300 GMS. OF GOLD J EWELLERY WAS CONCERNED ASSESSEE HAD ASSERTED THAT IT WAS PURCH ASED OUT OF MONEY RECEIVED BY HER FROM HER SONS NAMELY SRI S.P. SANJA I AND SRI S.P.KARTHIK. AS PER ASSESSEE SHE HAD RECEIVED ` 1 LAKH EACH FROM BOTH THE SONS AND A SUM OF ` 1 40 000/- OUT OF THAT WAS SPENT FOR PURCHASE OF 30 0 GMS. OF GOLD JEWELLERY. PART OF THE PURCHASES WAS STATED TO HAVE BEEN MADE FROM KERALA JEWELLERS CHENNAI AND OTHER PART FROM ONE S RI N.S.R. MOHAN GOLDSMITH. AO REFUSED TO BELIEVE THE EXPLANATION OF THE ASSESSEE. ACCORDING TO HIM HER SONS SHRI S.P.SANJAI AND SRI S.P.KARTHIK DID NOT AT ANY TIME STATE TO HAVE GIVEN ANY MONEY TO THE ASSES SEE. FURTHER AS PER ITA(SS)NO 15/MDS/07 3 THE AO IN THE SWORN STATEMENT RECORDED FROM SRI N.S.R.MOHAN ONE OF THE VENDORS MENTIONED BY THE ASSESSEE HE HAD STATE D THAT HIS BUSINESS TRANSACTIONS WITH THE FAMILY MEMBERS OF THE ASSESSE E WERE LIMITED TO ONLY SIX TRANSACTION AND IN NONE OF THESE ASSESSEE WAS A PARTY. FURTHER AS PER THE AO ASSESSEE HAD ALSO AFFIRMED THIS STATEMENT G IVEN BY SHRI N.S.R.MOHAN. AO WAS OF THE OPINION THAT THE PURCHAS E OF 300 GMS. OF OF GOLD JEWELRY MENTIONED BY THE ASSESSEE COULD NOT BE BELIEVED. FURTHER ACCORDING TO HIM AGAINST 1201.7 GMS. FOUND TO BE B ELONGING TO THE ASSESSEE ASSESSEE HERSELF HAD GIVEN EXPLANATION ON LY FOR 925 GMS. LEAVING A BALANCE OF 276.7 GRAMS AS UNEXPLAINED. HE THEREFORE DETERMINED 576.7 GMS. AS UNACCOUNTED GOLD JEWELLERY . VIS--VIS THE DIAMOND JEWELLERY AO FOUND THAT THE ASSESSEE HAD H ERSELF ADMITTED AND EXPLAINED ONLY 12 CTS. LEAVING A BALANCE OF 5 CARE TS UNEXPLAINED. IN THE RESULT THE UNACCOUNTED INVESTMENT IN THE SAID JEWE LLERY WAS VALUED AT ` 3 64 705/- AND ADDITION MADE. 3. IN HER APPEAL BEFORE THE CIT(A) CONTENTION OF TH E ASSESSEE WAS THAT ASSESSEE NEVER CLAIMED OWNERSHIP OF 1201.70 GMS OF GOLD AND 17 CT. OF DIAMOND JEWELLERY. ACCORDING TO THE ASSESSEE THERE WAS NO SWORN STATEMENT RECORDED FROM HER ON THE DATE OF SEARCH V IZ. 05-01-2001. FURTHER AS PER THE ASSESSE THE FIRST STATEMENT WA S RECORDED FROM THE ASSESSEE ON 27-02-2001 WHEREIN SHE HAD STATED THAT SHE OWNED ONLY 925 GMS. OF GOLD JEWELLERY AND 12 CTS. OF DIAMOND JEWEL LERY. ARGUMENT OF THE ITA(SS)NO 15/MDS/07 4 ASSESSEE WAS THAT BALANCE OF GOLD JEWELLERY FOUND A T THE TIME OF SEARCH WITH SRI S.P.SANJAI WAS EXPLAINED BY OTHER FAMILY MEMBERS. 4. CIT(A) WAS OF THE OPINION THAT THE INVENTORY FO R THE JEWELLERY TAKEN ON 05-01-2001 AND FORMING PART OF THE PANCHNAMA WAS SIGNED ONLY BY SRI S.P.SANJAI WHO WAS; SUBJECTED TO SEARCH AND ASSES SEE HAD NOT VOUCHED IT AT ANY PLACE. ACCORDING TO THE CIT(A) THERE WAS POSSIBILITY OF ERRORS IN IDENTIFICATION OF JEWELLERY IN BETWEEN VARIOUS MEMB ERS OF THE FAMILY OF SRI S.P. SANJAI. THEREFORE IN HIS OPINION ASSESSEE WAS REQUIRED TO EXPLAIN ONLY 925 GRMS. OF GOLD AND 12 CT. OF DIAMOND AS MEN TIONED BY HER IN HER SWORN STATEMENT DATED 27-02-2001 AND NOTHING MORE. VIS--VIS THE 300 GMS. OF GOLD JEWELLERY WHICH WAS CONSIDERED BY THE AO TO HAVE BEEN NOT PROPERTY EXPLAINED CIT(A) FOUND THAT ASSESSEE HAD FILED COPY OF HER ACCOUNT IN THE BOOKS OF SHRI S.P.KARTHIK ONE OF HE R SON. THERE WERE ENTRIES THEREIN SHOWING PAYMENT OF ` 1 LAKH TO THE ASSESSEE. LD. CIT(A) ALSO NOTED THAT ASSESSEE HAD FILED A LETTER DATED 2 8-09-2002 OF HER OTHER SON SRI S.P.SANJAI WHEREIN A CLAIM MADE BY HIM THAT HE HAD PAID HIS MOTHER NAMELY THE ASSESSEE ` 1 LAKH DURING THE PERIOD JULY TO SEPTEMBER 2000. ACCORDING TO THE CIT(A) JEWELLERY COULD BE PU RCHASED IN THE MARKET WITHOUT BILL AND ASSESSEE HAD SUFFICIENT FUND WITH HER FOR EXPLAINING SOURCE OF 300 GMS. OF GOLD JEWELLERY PURCHASED BY HER. HE THEREFORE DELETED THE ADDITION MADE BY THE AO. ITA(SS)NO 15/MDS/07 5 5. NOW BEFORE US LD. DR STRONGLY ASSAILING THE ORD ER OF THE CIT(A) SUBMITTED THAT THE PURCHASE OF 300M GMS. OF GOLD JE WELLERY ALLEGED TO HAVE BEEN MADE OUT OF ` 2 LAKHS RECEIVED BY THE ASSESSEE FROM HER SONS WERE NOT PROVED. ACCORDING TO HIM THERE WAS NO EVIDENCE WHATSOEVER FOR THE PURCHASE OF JEWELLERY NOR FOR THE SUM OF ` 1 LAKH EACH RECEIVED BY THE ASSESSEE FROM HER SONS. LD. DR ALSO SUBMITTED THAT THE ASSESSEE WAS BOUND TO EXPLAIN 1201.7 GMS. GOLD JEWELLERY AND 17 CT. OF DIAMOND JEWELLERY STATED BY HER SON SHRI S.P.SANJAI AT TH E TIME OF SEARCH AS BELONGING TO THE ASSESSEE AND NOT 925 GMS. OF GOLD JEWELLERY AND 12 CT. OF DIAMOND. IN OTHER WORDS ACCORDING TO HIM THE ADDI TION MADE BY THE AO WAS JUSTIFIED AND CIT(A) WITHOUT ANY EVIDENCE HAD B ROUGHT DOWN SUCH ADDITION. 6. PER CONTRA LD. AR SUPPORTING THE ORDER OF THE C IT(A) SUBMITTED LTHAT THE SEARCH WAS NOT ON THE ASSESSEE BUT HER SON SRI S.P.SANJAI.. GOLD JEWELLERY FOUND AT THE TIME OF SEARCH WAS INVENTORI SED AND ONLY SRI S.P.SANJAI HAS SIGNED IT. FURTHER ACCORDING TO HIM ASSESSEE HAD NEVER AT ANY PLACE ACCEPTED OWNERSHIP OF 1201.7 GMS. OF GOLD AND 17 CT. OF DIAMOND JEWELLERY INVENTORISED AT THE TIME OF SEARC H. SHE HAD AT ALL POINTS OF TIME CLAIMED THAT SHE OWNED ONLY 925 GMS. OF GOL D AND 12 CT. OF DIAMOND JEWELLERY WHICH WAS TOTALLY EXPLAINED BY HE R. ACCORDING TO HIM 300 GMS. OF GOLD JEWELLERY WAS PURCHASED BY THE ASS ESSEE FROM ` 1 LAKH EACH RECEIVED FROM HER SONS WHICH WERE PROPERLY EVI DENCED. THUS ITA(SS)NO 15/MDS/07 6 ACCORDING TO HIM THERE WAS NOTHING MORE FOR THE AS SESSEE TO EXPLAIN ON THE JEWELLERY. 7. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL S UBMISSIONS. AT THE TIME OF SEARCH AT THE PREMISES OF SRI S.P.SANJAI A S PER THE PANCHNAMA MENTIONED BY THE AO 3139.90 GMS. OF GOLD JEWELLERY WAS FOUND. ADMITTEDLY AS PER THE SAID PANCHNAMA GOLD WAS EXPL AINED BY THE SAID SHRI S.P.SANJAI AS BELONGING TO VARIOUS CLOSE RELAT IVES OF HIS OF WHICH ASSESSEE WAS ONE. ANY STATEMENT THAT WOULD HAVE BEE N RECORDED IN THIS REGARD ALSO WOULD HAVE BEEN SIGNED BY SHRI SANJAI O NLY. HOWEVER HIS SIGNATURE ON SUCH PANCHNAMA OR IN ANY OTHER STATEME NT MADE BY HIM WOULD NOT RENDER THE ASSESSEE LIABLE FOR ALL WHAT W AS STATED BY HIM THEREIN. THERE IS NO DISPUTE THAT NO STATEMENT OF T HE ASSESSEE WAS TAKEN AT THE TIME OF SEARCH ON 05-01-2001. WHEN A STATEME NT WAS TAKEN ON A LATER DATE VIZ. 27-02-2001 ASSESSEE AFFIRMED OWNE RSHIP OF 925 GMS. OF GOLD JEWELLERY AND 12 CARETS OF DIAMOND JEWELLERY O NLY. ASSESSEE HAD THUS ALL ALONG STATED THAT SHE WAS HAVING 925 GMS. OF GO LD JEWELLERY AND 12 CTS. OF DIAMOND JEWELLERY ONLY. IN OUR OPINION THERE WA S NO EVIDENCE WITH THE REVENUE TO FASTEN THE OWNERSHIP OF ANYTHING MORE TH AN THE DECLARED QUANTITY ON THE ASSERSSEE OR TO COME TO A CONCLUSIO N THAT ASSESSEE OWNED ANYTHING MORE THAN WHAT WAS STATED BY HER. THUS IN OUR OPINION ASSESSEE WAS BOUND TO EXPLAIN ONLY 925 GRMS. OF GOLD AND 12 CTS. OF DIAMOND JEWELLERY. OUT OF THIS EXPLANATION VIS--VIS 12 CAR ETS OF DIAMOND AND 625 ITA(SS)NO 15/MDS/07 7 GMS. OF GOLD JEWELLERY WAS FOUND BY THE AO TO BE S ATISFACTORY. BALANCE OF 300 GMS. WAS STATED BY THE ASSESSEE TO HAVE BEEN P URCHASED OUT OF SUMS RECEIVED BY HER FROM HER SONS. WE FIND THAT A SSESSEES ASSERTION REGARDING RECEIPT OF ` 1 LAKH EACH FROM HER TWO SONS WAS SUPPORTED BY PROPER EVIDENCE. IN THE CASE OF ` 1 LAKH RECEIVED FROM SRI S.P.KARTHIK SHE HAD PRODUCED COPY OF HER ACCOUNT IN THE BOOKS OF SR I S.P.KARTHIK AND THIS HAS NOT BEEN REBUTTED BY THE DR. SIMILARLY FOR ` 1 LAKHS RECEIVED FROM SRI S.P.SANJAI SAID PERSON HAD FILED CONFIRMATION LETT ER WHICH ALSO HAS NOT BEEN DISPUTED BY THE LD.DR. HENCE ASSESEE WAS HAVIN G SOURCE OF ` 2 LAKHS FOR ACQUIRING JEWELLERY. PRIMA FACIE THIS WOULD EXP LAIN THE SOURCE FOR PURCHASING 300 GMS. SOF GOLD JEWELLERY. BUT THE PRO BLEM HERE IS THAT A PART OF THE PURCHASE WAS CLAIMED BY THE ASSESSEE TO HAVE BEEN MADE FROM ONE SRI N.S.R.MOHAN GOLDSMITH. SRI N.S.R.MOHAN IN HIS STATEMENT GIVEN TO THE SEARCH PARTY HAD STATED THAT HE HAD NOT DONE ANY TRANSACTION WITH THE ASSESSEE BUT ONLY WITH HER FAMILY MEMBERS. AS P ER THE ASSESSEE 5 SOVEREIGNS OF PAVALAM NECKLACE AND 10 GMS. OF EARRI NGS WERE PURCHASED FROM KERALA JEWELLERS WHICH AO HAD FOUND NO REASON TO DISBELIEVE THUS ASSESEES EXPLANATION VIS--VIS 50 GMS. HAS TO BE C ONSIDERED AS ACCEPTED LEAVING A BALANCE OF 250 GMS. AS PER ASSESSEE SHE H AD PURCHASED THIS FROM SRI N.S.R.MOHAN. SINCE SRI N.S.R.MOHAN HAS STA TED THAT HE HAD DONE NO TRANSACTION WITH THE ASSESSEE AND ASSESSEE WAS NOT HAVING ANY PURCHASE BILL WE ARE UNABLE TO ACCEPT THE CONTENTI ON OF THE ASSESSEE THAT ITA(SS)NO 15/MDS/07 8 THERE WAS A PURCHASE OF 250 GMS. OF GOLD JEWELLERY FROM SRI N.S.R.MOHAN. THUS THOUGH ASSESSEE WAS HAVING SUFFICIENT SOURCE HER STATEMENT REGARDING PURCHASE FROM SRI N.S.R.MOHAN HAVING BEEN FOUND TO BE FALSE WE ARE UNABLE TO ACCEPT THE GENUINENESS OF PURCHASE TO THE EXTENT IT WAS CLAIMED TO HAVE BEEN MADE FROM SHRI N.S.R.MOHAN. T HUS OUT OF 300 GMS. OF GOLD JEWELLERY ALLEGED TO HAVE BEEN PURCHAS ED IN OUR OPINION ONLY 50 GMS. CAN BE ACCEPTED AS PROPERLY EVIDENCED AND B ALANCE OF 250 GMS. WOULD REMAIN UNEXPLAINED. THUS IN OUR OPINION ADD ITION FOR THE UNEXPLAINED JEWELLERY HAS TO BE RESTRICTED TO 250 GMS. OF GOLD JEWELLERY AND NOTHING MORE. THE ADDITION IS DIRECTED TO BE L IMITED TO THE VALUE OF 250 GMS. OF GOLD JEWELLERY AND TO THIS EXTENT ORDER LD. CIT(A) IS SET ASIDE. . ORDERED ACCORDINGLY. GROUND NO.2 OF THE REVENUE IS ALLOWED TO THE EXTENT CITED ABOVE. 8. IN THE RESULT APPEAL OF THE REVENUE IS TREATED AS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 03-01-2011. SD/- SD/- ( U.B.S.BEDI) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI: 3 RD JANUARY 2011. NBR CC: ASSESSEE/ ASSESSING OFFICER/ CIT(A)/ CIT/ D .R/ GUARD FILE. ITA(SS)NO 15/MDS/07 9