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Income Tax Appellate Tribunal, MUMBAI BENCHES “F”, MUMBAI
Before: SHRI RAJESH KUMAR (AM) & SHRI RAM LAL NEGI (JM)
O R D E R PER RAM LAL NEGI, JM The “J” Bench of the Tribunal passed the common order dated 10.08.2016 in the captioned appeal other appeals of the assessee pertaining to the earlier and subsequent assessment years. However, the Tribunal vide order dated 03.05.2017, passed in MA 117-23/Mum/2017 recalled order dated 10.08.2016 for limited purpose of adjudicating Ground No. 5 of the appeal pertaining to the assessment year 2003-04 for the reason that the Tribunal has not adjudicated Ground No. 5 of the appeal with regard to addition of Rs. 5,68,942/- on account of sale of gold jewellery. The ground No. 5 of the appeal reads as under:-
“5.1 The Ld. CIT (A) erred in confirming the action of the A.O. in making the addition of Rs. 5,68,942/- to the income of the Appellant on account of alleged unexplained/unaccounted jewellery.
2 Assessment Year: 2003-04 5.2 It is submitted that in the facts and the circumstances of the case, and in law, no such addition was called for.”
Before us, the Ld. counsel for the assessee submitted that the Ld. CIT(A) has wrongly sustained the addition of Rs. 5,68,942/- on account of alleged unexplained/unaccounted jewellery. The Ld. counsel pointed out that the Tribunal has deleted the addition made in respect of gifts received by the assessee in 2003-04 and 2004-05 basically on the ground that no incriminating material was found during search. The Tribunal has decided said issue by following the ratio laid down by the Hon’ble Mumbai High Court in the case of Continental Warehousing Corporation (Nhava Sheva) 374 ITR 645, decision of the Delhi Bench of the Tribunal in the case of Jakson Enterprises, decision of Jodhpur Bench of the ITAT in the case of Vishal Dembla 40 taxmann.com 134, decision of the Mumbai Bench of the Tribunal in the case of Jayendra P Jhaveri 46 taxmann.com 457 and the decisions of the other Benches of the Tribunal. The Ld. counsel further pointed out that since no incriminating documents were recovered during the course of search in respect of the alleged unexplained/ unaccounted jewellery, the findings of the Ld. CIT(A) is bad in law, therefore liable to be set aside.
On the other hand, the Ld. Departmental Representative (DR) fairly admitted that the Tribunal has deleted the addition confirmed by the Ld. CIT (A) on account of bogus gifts pertaining to the assessment year 2003-04 and 2004-05 on the ground that no incriminating material was recovered during the course of search. The Ld. DR, however, supported the order passed by the Ld.CIT (A).
We have heard the rival submissions of the parties and perused the material on record including the order of the Tribunal passed in assessee’s appeals referred above. The AO made addition of Rs. 10,30,933/- on account of unaccounted sale of gold jewellery holding that the assessee has been able to provide the source of gold to the extent of 3984.7 grams by way of VDIS documents and bills. However, the assessee has failed to explain the source of balance jewellery weighing 2297.6 grams. In the first appeal, the Ld. CIT (A)