Shri Ramprakash Gupta, Bhopal v. The A C I T, Bhopal

ITSSA 84/IND/2009 | misc
Pronouncement Date: 31-01-2011 | Result: Allowed

Appeal Details

RSA Number 8422716 RSA 2009
Assessee PAN ACOPG5747G
Bench Indore
Appeal Number ITSSA 84/IND/2009
Duration Of Justice 1 year(s) 7 month(s) 15 day(s)
Appellant Shri Ramprakash Gupta, Bhopal
Respondent The A C I T, Bhopal
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 31-01-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 31-01-2011
Date Of Final Hearing 10-01-2011
Next Hearing Date 10-01-2011
Assessment Year misc
Appeal Filed On 15-06-2009
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI R.C. SHARMA ACCOUNTANT MEMBER IT(SS)A NO.84 /IND/09 BLOCK PERIOD 1.4.1996 TO 13.6.2002 SHRI RAM PRAKASH GUPTA BHOPAL PAN ACOPG5747G APPELLANT VS ASSTT. COMMISSIONER OF INCOME TAX 1(1) BHOPAL RESPONDENT IT(SS)A NO.85 /IND/09 BLOCK PERIOD 1.4.1996 TO 13.6.2002 RAJENDRA GUPTA BHOPAL PAN ACOPG5745L APPELLANT VS ASSTT. COMMISSIONER OF INCOME TAX 1(1) BHOPAL RESPONDENT 2 APPELLANTS BY : SHRI PRADEEP GUPTA RESPONDENT BY : SHRI P.K. MITRA O R D E R PER JOGINDER SINGH JUDICIAL MEMBER THESE APPEALS ARE BY THE DIFFERENT ASSESSEES AGAIN ST THE RESPECTIVE ORDERS OF THE LEARNED CIT(A) DATED 8.4. 2009 ON THE COMMON GROUND THAT ON THE FACTS AND IN THE CIRCUMSTANCES O F THE CASE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION AND CONSEQUENT PENALTY IMPOSED U/S 158BFA( 2) OF THE ACT. 2. DURING HEARING OF THESE APPEALS WE HAVE HEARD S HRI PRADEEP GUPTA LD. COUNSEL FOR THE ASSESSEE AND SHRI P.K. M ITRA LEARNED SENIOR DEPARTMENTAL REPRESENTATIVE. THE CRUX OF ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT THE TRIBUNAL HAS CONSIDERED THE AV AILABILITY OF GOLD JEWELLERY WITH VARIOUS MEMBERS OF THE FAMILY FOUND DURING SEARCH AND THE BREAKUP OF WHICH WAS DULY FURNISHED BEFORE THE LEARNED ASSESSING OFFICER THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) AS WELL AS BEFORE THE TRIBUNAL. IT WAS FURTHER SUBMITTED THAT THE IMPUGNED JEWELLERY WAS DULY EXPLAINED BY THE ASSESSEE FOR WHICH OUR AT TENTION WAS INVITED TO PAGES 2 AND 3 OF THE IMPUGNED ORDER ALONG WITH P AGE 52 OF THE ORDER OF THE TRIBUNAL. A PLEA WAS ALSO RAISED THAT THE L IST OF GOLD ARTICLES CLAIMED TO BE BELONGING TO VARIOUS FAMILY MEMBERS W AS FILED BEFORE THE 3 DEPARTMENT. IT WAS ALSO SUBMITTED THAT BENEFIT OF POSSESSION OF GOLD JEWELLERY SHOULD HAVE BEEN GIVEN AS PER CBDT CIRCUL AR NO. 1916 DATED 11.5.1994 IN CASE OF 21 MEMBERS OF THE FAMILY AND T HE WEIGHT PRESCRIBED BY THE CIRCULAR. ON THE OTHER HAND TH E LEARNED SENIOR DEPARTMENTAL REPRESENTATIVE DEFENDED THE IMPUGNED O RDER BY CONTENDING THAT THE PENALTY WAS RIGHTLY IMPOSED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RE CORD. BRIEF FACTS ARE THAT A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT AT THE BUSINESS PREMISES OF M/S GUPTA BROTHERS AT CHOWK BAZAR BHOPA L AND ALSO AT THE RESIDENTIAL PREMISES OF THE ASSESSEE. THE ASSESSEE S ARE PARTNERS IN M/S GUPTA BROTHERS WHO ARE ENGAGED IN MONEY LENDING BUSINESS ALONG WITH BUSINESS OF TRADING OF GOLD AND SILVER JEWELLE RY UNDER THE NAME OF M/S RADHE JEWELLERS AT BHOPAL. THE BLOCK ASSESSMEN T WAS COMPLETED U/S 158BC OF THE ACT READ WITH SECTION 143(3) OF TH E ACT ON 28.6.2004 AT THE TOTAL UNDISCLOSED INCOME OF RS.44 55 575/- (IN THE CASE OF SHRI RAMPRAKASH GUPTA) AND RS.21 56 844/- (IN THE CASE O F SHRI RAJENDRA KUMAR GUPTA). THE PENALTY PROCEEDINGS U/S 158BFA(2) OF THE ACT WERE INITIATED WHICH RESULTED INTO PENALTY OF RS.1 10 93 5/- AND RS. 1 64 154/- RESPECTIVELY ON THE ALLEGED UNDISCL OSED INCOME OF RS.1 76 089/- AND RS.2 60 561/- RESPECTIVELY. THE ADDITIONS MADE BY 4 LEARNED ASSESSING OFFICER AND SUSTAINED BY THE LEAR NED COMMISSIONER OF INCOME TAX (APPEALS) ARE SUMMARIZED AS UNDER :- IN THE CASE OF SHRI RAM PRAKASH GUPTA NATURE OF ADDITION AMOUNT AS PER ASSESSMENT ORDER (RS.) AMOUNT SUSTAINED IN APPEAL (RS.) BY CIT(A) ON ACCOUNT OF UNEXPLAINED CASH & GOLD JEWELLERY FOUND U/S 69A OF INCOME TAX ACT 631644 144499 ON ACCOUNT OF CASH AND JEWELLERY FOUND FROM PUJA ROOM 545558 PROTECTIVELY 376133 PROTECTIVELY NIL NIL UNDISCLOSED INCOME ON ACCOUNT OF UNDISCLOSED PROFIT ON SALE OF SILVER 401106 NIL ON ACCOUNT OF UNDISCLOSED HOUSEHOLD EXPENDITURE 800000 NIL UNEXPLAINED INVESTMENT IN ACQUIRING AGRICULTURAL LAND 20000 20000 ON ACCOUNT OF BENAMI ACCOUNT 265000 NIL ON ACCOUNT OF UNEXPLAINED CREDIT IN BANK ACCOUNT 1416114 11590 SO FAR AS THE QUANTUM ADDITION IS CONCERNED WE FIN D THAT THE SAME WAS DELETED BY THE TRIBUNAL VIDE ORDER DATED 22.2.2008 IN IT(SS) A NO. 65/IND/2006 ETC. OTHERS IN THE CASE OF RADHEY SHY AM GUPTA (HUF) AND OTHERS. THE RELEVANT PORTION OF THE ORDER OF THE T RIBUNAL IS AS UNDER :- DETAILS OF GOLD ORNAMENTS & SILVER ARTICLES HELD BY FAMILY MEMBERS AND DECLARED IN WEALTH-TAX RETURNS ETC. S.NO. NAME OF PERSON GOLD SILVER UTENSILS SILV ER EVIDENCE ENCLOSED 1 PRABHAT CHAND (HUF) 302 GMS 4.5 KG 20 KG WT RETURN FOR AY 90 - 91 (ACK. + COMPUTATION) 2 OMPRAKASH (HUF) 302 GMS 4.5 KG 20 KG WT RETURN FOR AY 85 - 86 (ACK. + 5 COMPUTATION ) 3 RAMPRAKASH (HUF) 302 GMS 4.5 KG 20 KG WT RETURN FOR AY 90 - 91 + ASSMT. ORDER 4 SURESH (IND.) - - 1 20 KG WT RETURN FOR AY 90 - 91 + ASSMT. ORDER 5 RAJENDRA GUPTA (IND) BUT LATERON HUF ON MARRIAGE 302 GMS 4.5 KG 20 KG WT RETURN FOR AY 86 - 87 + ASSMT. ORDER 6 RADHEY SHAYM (IND) (SILVER 23.5 KG IN SUBSEQUENT YEAR HENCE EXCLUDED 302 GMS - 1 20 KG WT RETURN FOR AY 90 - 91 (ACK. + COMPUTATION) 7 SMT. VIDHYA DEVI 9 02 GMS - 9.962 KG WT RETURN FOR AY 90 - 91 (ACK. + COMPUTATION) 8 SMT. MEERA DEVI 932 GMS 3 KG - WT RETURN FOR AY 90 - 91 (ACK. + COMPUTATION) 9 SMT. ASHA RANI 835 GMS 3 KG - COMPUTATION OF WEALTH (SEE NOTE BELOW) 10 SMT. SANDHYA 2292 GMS - - VDIS 97 CERTIFICATE 6471 GMS 24 KG 329.962 KGS NOTE: COMPUTATION OF NET WEALTH IS ENCLOSED. BECAUS E THE ACKNOWLEDGE OF THE WT RETURN IS NOT PRESENT TRACEAB LE IN FILE OF COUNSEL MR. KAUSHIK. THE ACK. OR OTHER EVIDENCE WILL FILED AS AND WHEN TRACED IN COUNSELS FILED. 4 LD. COUNSEL FOR ASSESSEE REFERRED TO PAGES 148 TO 176 OF THE PAPER BOOK WHICH ARE THE COPIES OF THE WEALTH-TAX RETURNS AND COMPUTATION IN THE CASES OF ABOVE PERSONS AND COPY OF VDIS CERTIFICATE IN THE C ASE OF SMT. SANDHYA DEVI. LD. COUNSEL FOR ASSESSEE ALSO REFERRED TO PAGES 177 TO 180 OF THE PAPER BOOK IN WHICH IT WAS MENTIONED THAT TOTAL GOLD JEWELLERY AVAILABLE IN THE FAMILY WAS 11071 GMS OUT OF WHICH 3559.870 GMS WERE FOUND IN THE BEDROOM OF FAMILY MEMBERS AND REMAINING 7512.330 GMS WERE FOUND IN POOJA ROOM. LD. COUNSEL FOR ASSESSEE ALSO REFERRED TO STATEMENTS OF SMT. MEERA GUPTA SMT. REKHA GUPTA AND SMT. NEHA RECORDED IN THE SEARCH IN WHICH THE Y HAVE STATED THAT THEY HAVE RECEIVED JEWELLERY AT TH E TIME OF THEIR MARRIAGE AND ALSO RECEIVED THEREAFTER 6 JEWELLERY FROM THEIR PARENTS AND IN-LAWS AND FRIEND S AND RELATIVES. THEIR COPIES OF STATEMENTS ARE FILED AT PAGES 181 TO 187 OF THE PAPER BOOK. LD. COUNSEL FOR ASSESSEE ALSO REFERRED TO LIST OF FAMILY MEMBERS W HO HAD NOT FILED WEALTH-TAX RETURNS AND CLAIMED POSSESSION OF 4600 GMS BY 21 FAMILY MEMBERS (PB 147) ON THE BASIS OF CBDT CIRCULAR/INSTRUCTION 1916 DATED 11.5.1994 IN WHICH IT WAS EXPLAINED THAT IN CASE OF PERSON NOT ASSESSED TO WEALTH-TAX GOLD JEWELLERY AND ORNAMENTS TO THE EXTENT OF 500 GMS PER MARRIED LADY 250 GMS PER UNMARRIED LADY AND 100 GMS PER MALE MEMBER OF THE FAMILY NEED NOT BE SEIZED. LD. COUNSEL FOR ASSESSEE IN SUPPORT OF HIS CONTENTION RELIED UPON DECISION OF KARNATAKA HIGH COURT IN THE CASE OF SMT. PATIDEVI VS. ITO 240 ITR 727 IN WHICH BY REFERRING THE SAME INSTRUCTION DATED 11.5.1994 IT WAS HELD THAT IT IS NOT THE VAL UE WHICH IS CONSIDERED BUT IT IS THE WEIGHT WHICH IS CONSIDERED REASONABLE LOOKING TO THE SOCIAL CIRCUMSTANCES PREVAILING IN THE COUNTRY THEREFORE BENEFIT OF THESE INSTRUCTIONS CANNOT BE DENIED TO T HE ASSESSEE. LD. COUNSEL FOR ASSESSEE ALSO RELIED UPON ORDER IN THE CASE OF SMT. NEENA SYAL VS. ACIT 70 I TD 62 IN WHICH BY FOLLOWING THE SAME INSTRUCTION AO WAS DIRECTED TO ALLOW APPROPRIATE RELIEF TO THE ASSESSEE. LD. COUNSEL FOR ASSESSEE ALSO RELIED UPON UNREPORTED DECISION OF HONBLE MP HIGH COURT IN THE CASE OF CIT VS. SMT. SAVITRIDEVI SHUKLA DATED 2.3.2 005 IN MA(IT)63/2003 IN WHICH HONBLE HIGH COURT CONFIRMED THE ORDER OF THE APPELLATE TRIBUNAL IN WHICH THE ADDITION OF JEWELLERY WAS DELETED RELYIN G ON ABOVE INSTRUCTION NO.1916 DATED 11.5.1994 AND THE HONBLE HIGH COURT HELD THAT IT IS A QUESTION O F FACT AND THE LD. CIT(A) HAS CONSIDERED THE MATTER WITH REFERENCE TO THE STATUS OF THE FAMILY AND STAT US AND FINANCIAL CAPACITY AND OTHER RELEVANT FACTS AND ACCORDINGLY DISMISSED THE APPEAL OF THE REVENUE. LD . COUNSEL FOR ASSESSEE ALSO RELIED UPON ORDER OF THIS BENCH DATED 22.6.7 IN THE CASE OF SURESHCHAND GARG IN IT(SS)A NO.51 OF 2005 IN WHICH BY FOLLOWING THE SAME CIRCULAR THE ISSUE WAS DECIDED IN FAVOUR OF TH E ASSESSEE. LD. COUNSEL FOR ASSESSEE THEREFORE 7 SUBMITTED THAT ADDITION IS CLEARLY UNJUSTIFIED AND MAY BE DELETED. ON THE OTHER HAND LD. DR RELIED UPON ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT BUSINESS ASSETS WERE FOUND IN THE SEARCH THEREFORE THE SAME CANNOT BE HOUSEHOLD GOODS AND AS SUCH CBDT CIRCULAR IS NOT APPLICABLE. 5 WE HAVE CONSIDERED RIVAL SUBMISSIONS AND MATERIAL AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE ASSESSEE EXPLAINED POSSESSION OF GOLD AND SILVER JEWELLERY AS PER THE WEALTH-TAX RETURNS WHICH WERE DISCLOSED BY VARIOUS MEMBERS OF THE FAMILY IN THE WEALTH-TAX RETURNS. INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH IN THE CASE OF SMT. BOMMANNA SWARNA REKHA VS. ACIT 94 TTJ 885 IN WHICH TRIBUNAL FOLLOWING ABOVE CBDT CIRCULAR HELD THAT WHEN THE JOINT FAMILY MEMBERS ARE PUTTING TOGETHER IT IS QUITE NATURAL THAT ALL THE MEMBERS OF THE FAMILY MAY TAKE THE JEWELLERY FROM EACH OTHER AND WEAR THE SAME THEREFORE JEWELLERY SHOULD HAVE BEEN ASCERTAINED AFTER CONSIDERING ALL JEWELLERY WI TH ALL THE MEMBERS AND ENTIRE ADDITION SHOULD BE DELETED. THE EXPLANATIONS OF MEMBERS OF HUF DECLARING JEWELLERY IN WEALTH-TAX RETURNS AND VDIS AS EXPLAINED IN THE CHART IS REPRODUCED ABOVE IN THE SUBMISSION OF LD. COUNSEL FOR ASSESSEE. THE SAME IS ALSO SUPPORTED BY COPIES OF COMPUTATION OF WEALTH AND ACKNOWLEDGMENTS OF THE RETURNS. THE VDIS CERTIFICATE IN THE CASE OF SMT. SANDHYA IS ALSO FIL ED. THESE EVIDENCES ARE NOT DISPUTED BY THE AUTHORITIES BELOW THEREFORE THE ASSESSEE HAS BEEN ABLE TO EXPLAIN THE POSSESSION OF GOLD ARTICLES IN 6471 GMS AS WELL AS SILVER ARTICLES IN 353.962 KGS. SINCE THESE ITEMS HAVE ALREADY BEEN DECLARED IN THE WEALTH-TAX RETURNS AND VDIS 1997 PRIOR TO SEARCH THEREFORE SAME CANNOT BE UNDISCLOSED GOLD/SILVER ARTICLES. TH E ASSESSEE ALSO EXPLAINED GOLD ARTICLES OF VARIOUS FA MILY MEMBERS WHO HAVE NOT FILED WEALTH-TAX RETURNS AS PER CBDT CIRCULAR IN 4600 GMS. DETAILS OF SAME IS FILED IN PAGE 147 OF THE PAPER BOOK. THE DECISIONS CITED BY LD. COUNSEL FOR ASSESSEE ABOVE SUPPORT THE CASE OF THE ASSESSEE THAT BENEFIT OF POSSESSION OF GOLD JEWELLERY SHOULD BE GIVEN TO THE ASSESSEE AS P ER 8 CBDT CIRCULAR NO.1916 DATED 11.5.1994 IN CASE OF 21 MEMBERS OF FAMILY IN WEIGHT PRESCRIBED BY CIRCULAR. APART FROM THAT WE FIND THAT DURING THE COURSE OF SEARCH STATEMENTS OF SMT. MEERA GUPTA SMT. NEHA GUPTA AND REKHA GUPTA WERE RECORDED IN WHICH THEY HAVE EXPLAINED TO HAVE RECEIVED JEWELLERY FROM THEI R PARENTS AT THE TIME OF THEIR MARRIAGE AND SUBSEQUENTLY ALSO RECEIVED THE SAME WHICH HAVE BEEN KEPT BY THEM WITH THEIR MOTHER-IN-LAW. THEIR STATEMENTS ALSO SUPPORT THE EXPLANATION BY THE ASSESSEE. THE AO MERELY ON THE REASONS THAT THE SAME DID NOT HAVE SIMILARITY OR THE CORRELATION REJECTED THE EXPLANATION OF THE ASSESSEE. THE AO PRESUMED THAT PROBABLY THE JEWELLERY OF THE BUSINES S IS KEPT AT THE HOUSE. THE FINDINGS OF THE AO ARE BASED ON PRESUMPTIONS AND WITHOUT ANY BASIS. THE NUMBER OF PERSONS OF ASSESSEE AND NATURE OF ARTICLE S FOUND SHOWS THESE WERE BELONGING TO HUF MEMBERS BECAUSE NO OTHER PERSONAL JEWELLERY OF ANY MEMBER WAS FOUND IN THE SEARCH. IT IS HIGHLY UNBELIEVABLE THAT THE ENTIRE FAMILY MEMBERS MENTIONED ABOVE WOULD NOT HAVE PERSONAL JEWELLERY. THE EVIDENCES ON RECORD CLEARLY CO-RELATE THE PERSONAL JEWELLERY WIT H THE DECLARED JEWELLERY IN THE WEALTH-TAX AND OTHERS . THE AO HAS FAILED TO APPRECIATE THAT IN CASE THE ABOVE ARTICLES AS EXPLAINED BY ASSESSEE ARE NOT THE SAME AS FOUND AT THE TIME OF SEARCH BUT THE VALUE O F JEWELLERY ALREADY DECLARED IN THE WEALTH-TAX AND VDIS IS AVAILABLE TO THE ASSESSEE TO EXPLAIN POSSES SION OF THE JEWELLERY FOUND AT THE TIME OF SEARCH. THE BENEFIT OF CBDT CIRCULAR CANNOT BE DENIED TO THE ASSESSEE BY MERELY SAYING THAT THESE ARE BUSINESS ASSETS. CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES NOTED ABOVE EVIDENCE AND MATERIAL ON RECORD WE ARE OF THE VIEW THAT ASSESSEE HAS BEEN ABLE TO EXPLAIN POSSESSION OF JEWELLERY FOUND IN PO OJA ROOM. THE ADDITION OF RS.30 51 486/- IS THEREFORE UNWARRANTED. THE ORDERS OF THE AUTHORITIES BELOW AR E THEREFORE SET ASIDE AND THE ADDITION IS DELETED. TH IS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 9 4. IF THE TOTALITY OF FACTS IS ANALYSED WE FIND TH AT THE LEARNED ASSESSING OFFICER COMPUTED THE UNDISCLOSED INCOME AT RS.44 55 575/- WHICH WAS REDUCED TO RS.1 76 089/- B Y THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) AND TH E TRIBUNAL SUSTAINED THE FOLLOWING ADDITIONS VIDE ORDER DATED 22.2.2008 HENCE THE ADDITION OF RS.1 76 089/- WAS MADE THE BA SIS OF PENALTY BY THE ASSESSING OFFICER. THE BREAK UP OF THE ADDITION SUSTAINED BY THE TRIBUNAL IS AS UNDER :- SR. NO. NATURE OF ADDITION AMOUNT 1 OUT OF THE GOLD JEWELLERY OF 1041.470 GMS FOUND IN BED ROOM OF THE ASSESSEE RS.1 44 499 2 CREDIT IN BANK ACCOUNT RS.11 590 3 ADDITION ON HYPOTHETICAL ESTIMATION RS.20 000 TOTAL RS.1 76 089 AS FAR AS THE ADDITION OF RS.1 44 499/- IS CONCERNE D DURING THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER ASKED THE ASSESSEE VIDE NOTICE DATED 13.4.2004 TO EXPLAIN THE ENTIRE GOLD JEDWELLERY FOUND AT THE RESIDENTIAL PREMISES WHICH AS PER THE ASSESSEE WAS EXPLAINED. EVEN THE TRIBUNAL (PAGE 52 OF THE ORDER 10 OF THE TRIBUNAL DATED 22.2.2008) HAS REFERRED THE D ETAILS OF AVAILABILITY OF GOLD JEWELLERY WITH VARIOUS MEMBERS OF THE FAMILY FOUND DURING THE COURSE OF SEARCH AS UNDER : - PARTICULARS GOLD ARTICLES (NET WT. IN GMS GOLD AND SILVER ARTICLES OF VARIOUS FAMILY MEMBERS AS DECLARED BY THEM IN THEIR WEALTHTAX RETURNS & VDIS 1997 AS PER LIST AT PBP NO. 14 6471 GOLD ARTICLES OF VARIOUS FAMILY MEMBERS THOSE HAVE NOT FILED THEIR WEALTHTAX RETURNS AS PER LIST AT PBP NO. 15 4600 TOTAL 11071 LESS : FOUND IN SEARCH (-) 11068 SHORT FOUND (-) 3 AS FAR AS THE BREAK OF AVAILABILITY OF THE AFORESAI D 11071 GMS OF GOLD WHICH INCLUDED THE JEWELLERY OF FAMILY OF THE ASSESSEE IS CONCERNED THE WAS EXPLAINED AS UNDER :- S.NO POSSESSED BY AVAILABILITY FOUND ( NET WEIGHT IN GMS) BED ROOM POOJA ROOM 1 LATE SHRI RADHEY SHYAM GUPTA AND HIS WIFE 1204.000 1204.000 2 LATE SHRI SURESH CHAND GUPTA AND HIS FAMILY MEMBERS 935.000 935.000 3 SHRI PRABHAT CHAND GUPTA AND 2684.000 2684.000 11 HIS FAMILY MEMBERS 4 SHRI RAMPRAKASH GUPTA AND HIS FAMILY MEMBERS 1352.000 1041.470 310.530 5 SHRI OMPRAKASH GUPTA AND HIS FAMILY MEMBERS 3594.000 1215.200 2378.800 6 SHRI RAJENDRA KUMAR GUPTA AND HIS FAMILY MEMBERS 1302.000 1303.200 TOTAL 11071.000 3559.970 7512.330 THE BREAKUP OF JEWELLERY FOUND IN BED ROOM AND POOJ A ROOM AND ITS RELATION WITH THE RESPECTIVE FAMILY MEMBERS IS AS UNDER :- S R. NO . BELONGS TO PER ASSESSEE PER CIT(A) PER ITAT NET WEIGHT CLAIMED ON THE BASIS OF 1 RAMPRAKASH GUPTA (HUF) 302 GMS W.T. RETURN ACCEPTED ON THE BASIS OF W.T. RETURN ORDER OF THE LEARNED CIT(A) IS CONFIRMED ON THIS ISSUE 2 SMT REKHA ( WIFE OF RAMPRAKASH) 500 GMS CBDT CIRCULAR NO. 1996 DATED 11.05.19 94 ACCEPTED ON THE BASIS OF CBDT CIRCULAR 3 RAMPRAKASH GUPTA (INDIVIDUAL) 250 GMS CBDT CIRCULAR NO.1996 DATED 11.05.19 94 NOT ACCEPTED ORDER OF THE LD. CIT(A) IS CONFIRMED ON THIS ISSUE WHICH IS CONTRARY AND OVERLAPPING TO THE 4 SAURABH (SON) 100 GMS CBDT CIRCULAR NO. 1996 NOT ACCEPTED 12 DATED 11.05.19 94 HONBLE ITATS OWN FINDING AT PAGE NO. 58 PARA 44 OF THEIR ORDER DATED 22.02.2008 5 NITIN (SON) 100 GMS CBDT CIRCULAR NO.1996 DATED 11.05.19 94 NOT ACCEPTED 6 ANUBHAV (SON) 100 GMS CBDT CIRCULAR NO.1996 DATED 11.05.19 94 NOT ACCEPTED TOTAL LESS:FOUND IN POOJA ROOM 1352.000 GMS 310.500 GMS BALANCE FOUND IN BED ROOM OF RAMPRAKASA H GUPTA 1041.470 IF THE AFORESAID TABLES ARE KEPT IN JUXTAPOSITION A ND ANALYSED IT IS CLEAR THAT THE GOLD JEWELLERY FOUND FROM THE BED RO OM OF RAM PRAKASH GUPTA WAS 1041.470 GMS ONLY WHICH WAS THE NET WEIGH T AND NOT 1776.130 GMS (AS MENTIONED BY THE ASSESSING OFFICER IN PARA 3.1 OF THE ASSESSMENT ORDER) AND THE SAID MISTAKE CONTINUED UP TO THE IMPUGNED ORDER (PAGE 7) WHEREIN IT WAS HELD THAT OUT OF 1176 .130 GMS THE EXPLAINED GOLD JEWELLERY WAS 802 GMS AND UNEXPLAINE D JEWELLERY WAS 374.180 GMS AS AGAINST MENTIONED IN THE CHART (TABL E 3 ABOVE). IN RESPECT OF GOLD ARTICLES WEIGHING 4600 GMS THE TR IBUNAL VIDE ITS ORDER 22.2.2008 (PAGE 58 PARA 44) HAS RECORDED THE FOLLOW ING FINDINGS :- THE ASSESSEE HAS EXPLAINED GOLD ARTICLES OF VARIOUS FAMILY MEMBERS WHO HAVE NOT FILLED WEALTH 13 TAX RETURNS AS PER CBDT CIRCULAR IN 4600 GMS DETAILS OF WHICH ARE FILED IN PAGE NO. 147 OF PAPER BOOK. THE DECISION CITED BY THE LD. COUNSEL FOR TH E ASSESSEE ABOVE SUPPORT THE CASE OF THROUGH ASSESSEE THAT BENEFIT OF POSSESSION OF GOLD JEWELLERY SHOULD BE GIVEN TO THE ASSESSEE AS PER CBDT CIRCULAR NO. 1916 DTD. 11.05.1994 IN CASE OF 21 MEMBERS OF THE FAMILY IN WEIGHT PRESCRIBED BY THE CIRCULAR. 5. IF THE AFORESAID FINDING IS ANALYSED WE FIND TH AT THE PERSONS NAMED AT SL. NOS. 3 TO 6 (IN TABLE NO. 3 ABOVE) POS SESSED THE GOLD ARTICLES AND THE SAME WAS DULY CONSIDERED IN THE LI ST OF 21 MEMBERS OF FAMILY WHEREIN THE POSSESSION OF 4600 GM GOLD WAS A CCEPTED BY THE TRIBUNAL. IF THE EXPLANATION OF THE ASSESSEE IS AC CEPTED IN THE LIGHT OF THE CIRCULAR OF THE CBDT THEN IT IS NOT THE CASE TH AT IN THE CASE OF ONE MEMBER IT CAN BE ACCEPTED AND IT CAN BE REJECTED I N CASE OF ANOTHER MEMBER. THIS PROPOSITION IS SUPPORTED BY THE DECIS ION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SURAJBEN P ATEL V. CIT; (1973) MPLJ-27 (COPY OF THE SAME IS AVAILABLE AT PAGE 69 O F THE PAPER BOOK) WHEREIN THE HONBLE COURT HAS ALREADY CONSIDERED VA RIOUS DECISIONS FROM THE HONBLE APEX COURT. IN VIEW OF THESE FAC TS AND THE CBDT CIRCULAR NO PENALTY SHOULD HAVE BEEN IMPOSED ON TH E ASSESSEE. THE PENALTY PROCEEDINGS AND QUANTUM PROCEEDINGS ARE SEP ARATE AND DISTINCT AND IF THE DISCUSSION MADE IN THE ASSESSME NT ORDER AS WELL AS IN THE IMPUGNED ORDER IS ANALYSED THEN WE ARE SATI SFIED THAT PENALTY HAS WRONGLY BEEN IMPOSED AS PER THE CIRCULAR OF THE CBDT AND THE 14 DISCUSSION MADE BY US IN THE PRECEDING PARAS OF THI S ORDER. THE RATIO LAID DOWN BY THE HONBLE PUNJAB AND HARYANA HIGH CO URT IN CIT V. DHILLO RICE MILL; 256 ITR 447 ALSO COMES TO THE RES CUE OF THE ASSESSEE AS THE ADDITION WAS BASED ON HYPOTHETICAL CALCULATI ON AND THE MAJOR PART OF THE ADDITION WAS DELETED BY THE TRIBUNAL W HICH HAS BECOME FINAL AS NO CONTRARY DECISION FROM ANY HONBLE HIGH ER FORUM WAS BROUGHT TO OUR NOTICE. WE THEREFORE DIRECT THE A SSESSING OFFICER TO DELETE THE PENALTY IN BOTH THE APPEALS. IN THE RESULT BOTH THE APPEALS OF THE ASSESSEE AR E ALLOWED. ORDER PRONOUNCED IN OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES OF BOTH THE SIDES AT THE CONCLUSION OF HEARING ON 10 TH JANUARY 2011. (R.C.SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10 TH JANUARY 2011 COPY TO: APPELLANT RESPONDENT CIT CIT(A) DR G UARD FILE DN/-