PADMA GANDHI, MUMBAI v. ITO 16(1)(2), MUMBAI

ITSSA 29/MUM/2009 | misc
Pronouncement Date: 14-05-2010 | Result: Allowed

Appeal Details

RSA Number 2919916 RSA 2009
Assessee PAN AAIPG6305L
Bench Mumbai
Appeal Number ITSSA 29/MUM/2009
Duration Of Justice 1 year(s) 2 month(s) 11 day(s)
Appellant PADMA GANDHI, MUMBAI
Respondent ITO 16(1)(2), MUMBAI
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 14-05-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 14-05-2010
Date Of Final Hearing 03-05-2010
Next Hearing Date 03-05-2010
Assessment Year misc
Appeal Filed On 04-03-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C : MUMBAI BEFORE SHRI D.K. AGARWAL (JM) AND SHRI T.R. SOOD (AM) IT(SS)A NO.29/MUM/2009 ASSESSMENT YEAR : BLOCK PERIOD 1.4.1988 TO 15.12.1998 MRS. PADMA GANDHI 6 TH FLOOR 59-B FIONIKA WALKESHWAR ROAD MUMBAI-400 006. ..( APPELLANT ) P.A. NO. (AAIPG 6305 L) VS. INCOME TAX OFFICER WARD 16(1)(2) MUMBAI. ..( RESPONDENT ) APPELLANT BY : SHRI S.C. GUPTA RESPONDENT BY : SHRI AJ IT KUMAR SINHA O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER DATED 5.1.2009 PASSED BY THE LD. CIT(A) FOR THE ASSESSMENT YEAR PERTAINING TO BLOCK PERIOD 1.4.1988 TO 15.12.19 98. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT A SEARCH U/S .132(1) OF THE ACT WAS CARRIED OUT ON 15.12.1998 AT THE BUSINESS PR EMISES OF GAZDAR PVT. LTD. ITS GROUP CONCERN M/S. GANDHI TRADIN G AND THE RESIDENCES OF THEIR DIRECTORS AND PARTNERS. NOTICE U/S.15 8BC WAS ISSUED AND IN RESPONSE THE ASSESSEE FILED RETURN DECLARING U NDISCLOSED IT(SS)A NO.29 A.Y:BP 2 INCOME AT RS. NIL. HOWEVER THE ASSESSMENT WAS COMPLETED A T AN UNDISCLOSED INCOME OF RS.47 06 000/- VIDE ORDER DATED 2 7.12.2000 PASSED U/S.158 BC OF THE I.T. ACT 1961 (THE ACT). ON APPEAL THE LD. CIT(A) PARTLY ALLOWED THE APPEAL. ON FURTHER APPE AL BY THE REVENUE AND ASSESSEE THE TRIBUNAL IN IT(SS) NO.305/M/2002 AND I T(SS) NO.341/M/2003 FOR THE BLOCK PERIOD 1.4.1988 TO 5.12. 1998 VIDE ORDER DATED 31.1.2007 PARTLY ALLOWED BOTH THE APPEALS. IN THE SAID ORDER THE TRIBUNAL VIDE PARA-26 OF ITS ORDER ON THE ISSUE O F VALUE OF JEWELLERY RELATING TO ITEM NO.2 3 AND 10 OF THE VAL UATION REPORT OF JEWELLERY FOUND IN LOCKER NO.482 WITH BANK OF BARODA WALKESHWAR BRANCH SET ASIDE THE ISSUE TO THE FILE OF THE LD. CIT(A ) TO DECIDE THE SAME AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. PURSUANT TO THE ORDER OF THE TRIBUNAL THE LD. CIT(A ) WHILE OBSERVING THAT ITEM NO.2 AND 3 OF THE VALUATION REPORT DATED 13.1.1999 BEING JEWELLERY FOUND IN THE LOCKER NO.482 IN BANK OF BARO DA WALKESHWAR BRANCH MUMBAI HAVE BEEN SATISFACTORILY EXPLAINED DELE TED THE ADDITION OF RS.1 78 475/-. HOWEVER THE LD. CIT(A) O N THE ADDITION OF ITEM NO.10 OF THE VALUATION REPORT DATED 13.1.1999 OBSERVED AND HELD THAT THE SITUATION BETWEEN THE LAST ORDER OF THIS OFF ICE AND AT PRESENT HAS NOT BEEN CHANGED THE APPELLANT HAS NOT FILED ANYT HING WHICH INDICATES THAT THE ITEM NO.10 IS THE SAME AS THAT WAS DIS CLOSED UNDER VDIS AND AS INDICATED IN THE ORDER OF THE OFFICE DATED 19.3.2002 THAT IT(SS)A NO.29 A.Y:BP 3 THE DESCRIPTIONS DO NOT TALLY SUSTAINED THE ADDITION O N ACCOUNT OF ITEM NO.10 AMOUNTING TO RS.24 500/- AND ACCORDINGLY PARTLY ALLOWED THE APPEAL. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) T HE ASSESSEE IS IN APPEAL BEFORE US TAKING THE FOLLOWING GROUND OF APPE AL :- THE CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMIN G THE ADDITION OF RS.24 500/- AS UNEXPLAINED INVESTME NT IN A JEWELLERY ITEM IGNORING THE SUBMISSIONS AND SUPPO RTING DOCUMENTS FILED BY THE APPELLANT IN THIS REGARD AND JUST RELYING ON THE DECISION OF HIS PREDECESSOR. 4. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE A SSESSEE WHILE REITERATING THE SAME SUBMISSIONS AS SUBMITTED BEFORE THE LD. CIT(A) FURTHER SUBMITS THAT THE ITEM NO.10 IS OWNED BY ASSESSEE 'S DAUGHTER MRS. MUDITA GANDHI WHO MADE VDIS IN 1975 DISCLOSING INTERALIA THE PENDANT OF WHITE METAL HAVING 27 DIAMONDS SUPPORTED B Y VALUATION REPORT BY GAZDAR & CO. DATED 28.3.1986 WHO VALUED THE SAME AT RS.6 500/- AT THAT TIME. HOWEVER IN THE REPORT DATE D 13.1.1999 BY SHRI SURESH KAPOOR THE SAME WAS VALUED AT RS.24 500/- WITH MINOR DIFFERENCE IN THE CARATS OF THE DIAMONDS. THE DIFFEREN CE IN THE CARATS AND VALUATION IS DUE TO ESTIMATE AND APPRECIATION IN 1 3 YEARS. HE THEREFORE SUBMITS THAT THE ADDITION SUSTAINED BY THE L D. CIT(A) BE DELETED. IT(SS)A NO.29 A.Y:BP 4 5. ON THE OTHER HAND THE LD. DR SUPPORTS THE ORDER OF THE LD. CIT(A) AND IN PARTICULAR THE FINDING RECORDED BY THE LD. CIT (A) IN PARA-15 OF HIS EARLIER ORDER DATED 19.3.2002. HE THEREFORE SUBMI TS THAT THE ADDITION SUSTAINED BY THE LD. CIT(A) BE UPHELD. 6. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT BEFORE THE LD. CIT(A) IT WAS STATED BY THE ASSESSEE VIDE LETTER DAT ED 17.11.2008 APPEARING AT PAGE-6 OF THE ORDER OF THE LD. CIT(A) THAT THE SAID ITEM IS OWNED BY HER DAUGHTER MRS. MUDITA GANDHI. SHE ALSO MADE A COMPARISON OF THE SAID ITEM DISCLOSED IN 1975 WITH THE ITEM MENTIONED AT POINT NO.10 OF THE VALUATION REPORT. THE DESCRIPT ION OF BOTH THE ITEMS IS THE SAME. THE SAID ITEM HAD BEEN DISCLOSED BY MR S. MUDITA GANDHI IN THE DISCLOSURE MADE BY HER IN THE VDIS SCHE ME IN 1975 FOR WHICH A COPY OF THE CERTIFICATE FROM M/S. CHOKSHI AND CO MPANY INDEPENDENT CHARTERED ACCOUNTANT WAS FILED. COPIES OF THE VDIS DISCLOSURE AND CERTIFICATE OF THE C.A. CANNOT BE TREATED AS SELF SERVING DOCUMENTS. THE ONLY GROUND FOR THE ADDITION OF THESE ITEMS WAS THAT THE LOCKER KEY WAS FOUND WITH THE APPELLANT. IN VIEW OF THE VDIS 1975 DISCLOSURE OF SMT. MUDITA GANDHI THE ITEMNO.10 OF THE VALUATION REPORT DATED 13.1.1999 SHOULD BE TREATED AS HAVING BEEN EXPL AINED. HOWEVER THE LD. CIT(A) DID NOT ACCEPT THE ASSESSEE'S EXPLA NATION ON THE GROUND THAT (I) THE SITUATION BETWEEN THE LAST OR DER OF THIS OFFICE IT(SS)A NO.29 A.Y:BP 5 AND AT PRESENT HAS NOT CHANGED (II) THE APPELLANT HA S NOT FILED ANYTHING WHICH INDICATES THAT THE ITEM NO.10 IS THE SAME AS THAT WAS DISCLOSED UNDER VDIS AND (III) AS INDICATED IN THE ORDE R OF THE OFFICE DATED 19.3.2002 THE DESCRIPTIONS DO NOT TALLY. 7. FROM THE COMBINED READING OF THE ASSESSEE'S EXPLANATI ON AND THE ORDER OF THE LD. CIT(A) WE FIND THAT THE ASSESSEE H AS PROVED THAT THERE IS NO DIFFERENCE IN BOTH THE VALUATION REPORTS EXCEPT CARATS OF THE DIAMONDS AND VALUE WHICH IS REPRODUCED AS UNDER : VALUATION REPORT BY GAZDAR & CO. REPORT BY SURESH KAPOOR REMARKS DATED 28.3.1986 13.01.1999 PENDANT PENDANT MATCHES WHITE METAL WHITE METAL MATCHES 27 DIAMONDS 1.50 CTS. 27 DIAMONDS 1.75 CTS. DIFF. DUE TO ESTIMATE VALUED AT RS.6500 VALUED AT RS.24 500 NORMAL APPRECIATION IN 13 YEARS CONSIDERING THE FACT THAT THE LD. CIT(A) HAS ACCEPTED I TEM NO.2 AND 3 OF THE SAME VALUATION REPORT DATED 13.1.1999 FOUND I N LOCKER NO.482 IN BANK OF BARODA WALKESHWAR BRANCH MUMBAI AS GENU INE AND KEEPING IN VIEW THAT THERE IS NO DIFFERENCE IN THE NU MBER OF DIAMONDS I.E. IN BOTH THE REPORTS THE NUMBER OF DIAMONDS IN WH ITE METAL PENDANT ARE 27 WITH A MINOR DIFFERENCE IN THE CARAT S I.E. IN OLD REPORT DATED 28.3.1986 IT WAS 1.50 CARATS AND IN THE LATER RE PORT DATED IT(SS)A NO.29 A.Y:BP 6 13.1.1999 THE SAME IS 1.75 CARATS WHICH MAY BE DUE TO DIFFERENCE OF OPINION/ESTIMATE DURING VALUATION AS THERE IS NO MATER IAL ON RECORD TO SHOW AS TO HOW THE VALUATION WAS TAKEN. THIS BEING SO A ND KEEPING IN VIEW THAT IT IS NOT THE CASE OF THE REVENUE THAT THERE WAS NO SUCH VDIS BY ASSESSEES DAUGHTER MRS. MUDITA GANDHI IN RESPECT OF TH E SAID DIAMOND PENDANT OR THE VALUE SHOWN BY HER OF THE SAID DIAMOND WAS NOT GENUINE OR THERE ARE TWO PENDANTS WE ARE OF TH E VIEW THAT THE ADDITION OF RS.24 500/- MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LD. CIT(A) IS NOT SUSTAINABLE AND ACCORDINGLY THE SAME IS DELETED. THE GROUNDS TAKEN BY THE ASSESSEE ARE THEREFOR E ALLOWED. 8. IN THE RESULT ASSESSEES APPEAL STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.5.2010. SD/- SD/- (T.R. SOOD) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDIC IAL MEMBER MUMBAI DATED: 14.5.2010. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI.