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1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR D.B. Income Tax Appeal No. 6/2002
Smt. Shanta Devi vs. Commissioner of Income Tax & Anr. Date of Order : 31st August, 2016 HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE AJAY RASTOGI Mr. P.K. Kasliwal for the appellant. Mr. Anuroop Singhi for the respondents. 1. By way of this appeal, the assessee has filed the appeal against the order of the Income Tax Appellate Tribunal whereby the tribunal has dismissed the appeal preferred by the assessee. 2. The Assessing Officer passed an order against the assessee. A search and seizure operation was carried out under Section 132 and unexplained ornaments were added to the income of the assesseee under Section 69-B. The said order was carried out in appeal before the CIT (Appeals). The appeal was dismissed. It was further carried by him in appeal to Income Tax Appellate Tribunal. The ITAT also dismissed the appeal filed by the assesseee. 3. This court while admitting the matter framed following substantial questions of law:- “Whether on the facts and in the circumstances of the case, the Tribunal was justified in treating gold ornaments as explained found during the course of search and sustaining making an addition of
2 Rs. 76065/- under Section 69 of the Income Tax Act, 1961 as explained investment in the hands of the appellant?” 4. Heard learned Counsel for appellant. 4.1. Taking note of the fact that the 132(5) at the same time of search on 10.10.1990, the statement of the husband of the assessee was not recorded in view of the provision of Section 69-B. 4.2. The observations made by the Tribunal in para 9 reads thus:- “We have carefully considered the rival submissions of the parties and perused the records. We find that in this case the addition was made by the A.O. on the basis of statement recorded at the time of opening of a locker on 6.12.90 whereas the search was commenced on 10.10.90. We have further noted that no rebuttal was made by the assessee while passing the order under Section 132(5) and not only this the assessee has also deposited the tax of Rs. 24,277/- in pursuance of the statement recorded at the time of search. We also noted that there is no allegation at any stage of the proceedings before the Income Tax authorities or before us that the statement has been procured by inducement, threat or promise by the authorised officer at the time of search operation. Even at the assessment stage the assessee has surrendered 88 gms of jewellery and in the assessment of Shri Kajornal, father-in-law of the appellant, for the A.Y. 1990-91 the findings of the AO disclosing the gift has not been challenged. In view of the clear admission made by the appellant and her husband and payment of tax on the surrendered amount and also no rebuttal was made at any stage of order made under Section 132 (5), we are of the opinion that the affidavits in the form of gift deeds are of no help to the assessee. Admissions made by the assessee during search operation constitute a substantial evidence in view of
3 sections 17 & 21 of the Evidence Act. The admission is fully corroborated by documents and records which are inculpatory
nature.
The substantial portion of the sworn statement relating to admission of gold ornaments has not been retracted by the assessee at any stage by any documentary evidence. In view of the above, we are of the opinion that the addition made by the AO on the basis of sworn statementn is valid. We find support from the order of the ITAT Ahmedabad Bench 'C' of the Tribunal in the case of ITO vs. Bipin Faraskhana reported in (2000) 73 ITD 334 wherein in the similar facts and circumstances of the case the addition
was
confirmed.
We accordingly confirm the finding of the CIT (A) sustaining the addition made by the AO amounting to Rs. 76065/- u/s 69B.” 5. In our view, in view of concurrent finding of all authority & no rebuttal by assessee & father- in-law not supported theory of gift. 6. In our considered opinion, the view taken by the tribunal is just. The issue as recorded is answered against the assessee and in favour of the revenue. 7. The appeal stands dismissed. (AJAY RASTOGI),J. (K.S.JHAVERI),J. A.Sharma/23