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Income Tax Appellate Tribunal, DELHI BENCH “A”: NEW DELHI
Before: SHRI AMIT SHUKLA & SHRI O.P. KANT
The aforesaid appeal has been filed by the assessee against impugned order dated 30.1.2015 passed by Ld. CIT(Appeals)-24, New Delhi for the quantum of assessment passed u/s 143(3) for the assessment year 2011-12. In the grounds of the appeal assessee has raised following grounds :-
1. “ Ld. CIT(A) has erred in law and facts in disregarding the explanation and submissions made in regard to addition made by the Ld. AO on account of gold and silver ornaments/articles over and above permitted by CBDT’s Instruction No. 1916 and confirming the addition made by the Ld. AO which is highly, unjustified, uncalled for and bad in law.”
2. At the outset Ld. Counsel for the assessee Shri Ved Jain submitted that the Ld. CIT(A) in the impugned order as relied upon the appellate order in the case of the Shri Vibhu Agarwal for the same assessment year 2011-12 and the said appellate order has now been reversed by the Tribunal vide order dated 4.5.2018 in wherein exactly similar addition on account of unexplained jewellery has been deleted. He further pointed out that the order passed by the AO in the case of the assessee as well as in the case of Shri Vibhu Agarwal is verbatim same. Thus, without their being any new facts in this appeal, the order of the Tribunal should be followed. 3. On the other hand Ld. DR strongly relying upon the order of the Ld. CIT(A) submitted that already benefit of CBDT instruction No. 1919 dated 11.4.94 has been given by the AO and for the balance quantity of jewellery, no evidence was given by the assessee and therefore, such an excess quantity of jewellery has rightly been added by the AO and confirmed by the Ld. CIT(A). 4. After considering the rival submissions and on perusal of the relevant finding given in the impugned orders, we find that the search and seizure action was taken at the residential premises of Shri Anju Agarwal wherein jewellery, gold weighing 353.103 gms, diamond of 14.7 Ct. valued at Rs. 14,93,250/- was found. Further from the search of locker No. 68 maintained in Bank of Maharashtra in the name of the assesee and his wife further jewellery weighing 1336.50 gms valued at Rs. 29,37,614/- was found. Thus the total jewellery found from two different locations were as under :-
S. Details of Premises Weight of gold Value as per No. (gms.) Valuation Report (Rs.) 1. House : 52/78, SF- 353.103 14,93,250/- III, Harmony Apartments, West Punjabi Bagh, New Delhi - 36 2. Locker: No. 68, 1336.500 29,37,614/- Bank of Maharashtra, Paschim Vihar, New Delhi. Total (Rs.) 1689.603 44,30,864/-
During the course of search it was submitted that jewellery was acquired from one of the occasion of assessee’s gift to his wife from her parents and part of the jewellery belongs to HUF which was devolved to assessee and also certain jewelleries belongs to their two sons. Assessee has prepared person wise list of all the family members explaining the different items found in the residence and locker which was acquired in the following manner :- Particulars Gold Silver (Grams) (Kgs.) Anu Aggarwal 664.100 1.500 Anu Aggarwal 198.900 1.800 Anu Aggarwal 587.500 1.700 HUF Abhinav Aggarwal 122.800 - Akshat Aggarwal 116.300 - Total 1689.600 5.000 However the AO in the absence of any documentary evidence produced during the course of search to substantiate the claim, AO relying upon the CBDT instruction No. 1916 (supra) had given the benefit of jewellery weighing 889.60 gms and balance was treated as unexplained / value at Rs. 21,33,839/-.
Before the Ld. CIT(A), assessee gave person wise (family members) detils and explanation with regard to the amount of jewellery held by each person including HUF of the assessee as Karta. These have been incorporated and discussed in detail at pages 20 to 24 of the appellate order. The assessee’s main explanation with regard to the source of jewellery was ; firstly the assessee was gifted jewellery from his parents and grandparents at the time of the marriage in the year 1988 and his wife was also gifted certain jewellery from her parents and her grandparents and also from her in laws. Secondly, his two children had received ornaments in the form of gifts at the time of their births and on occasion of their birthdays; and lastly, the HUF has inherited ornaments from the assessee’s ancestors over the period of time. The quantity of jewellery belong to each and every person was given. However, the Ld. CIT(A) held that similar issue has been decided in the case of assesee’s brother Shri Vibhu Aggarwal for the same assessment year, wherein the jewellery over and above the benefit given by the AO as per CBDT instruction was confirmed.
We find that in the case of Shri Vibhu Agarwal precisely same explanation and reasoning has been considered by the Tribunal in detail. The Tribunal has held that looking to the overall status of the family and customary practices the amount of jewellery found cannot be said to be unexplained and in support of such reasoning reliance has been placed on the judgment of the Delhi High Court in the case of Ashok Chaddha vs. ITO, reported in 202 taxman 395 and also certain decisions of ITAT Delhi Bench and held that explanation given by the assessee is liable to be accepted. Since similar facts are permeating in the case of present assessee also AS HELD BY Ld. CIT(A), therefore, we hold that the addition of Rs. 21,33,838/- on account of unexplained jewellery cannot be sustained and is directed to be deleted.
In the result grounds raised
by the assessee is allowed. This decision was pronounced in the Open Court on 2nd August, 2018. sd/- sd/- (O.P. KANT) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: /08/2018 Veena Copy forwarded to 1. Applicant
2. Respondent 3. CIT 4. CIT (A) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, New Delhi
Date 1. Draft dictated on (Direct on 01.08.2018 computer) 2. Draft placed before author 06.08.2018 3. Draft proposed & placed before the second member 4. Draft discussed/approved by Second Member. 5. Approved Draft comes to the Sr.PS/PS 6. Kept for pronouncement on 7. File comes back to PS/Sr. PS 8. Uploaded on 9. File sent to the Bench Clerk 10. Date on which file goes to the AR 11. Date on which file goes to the Head Clerk. 12. Date of dispatch of Order.