TMI Blog2012 (10) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... ax, it is not a genuine claim. - Order of ITAT sustained. The evidence which had been produced was of recent origin in the form of sale invoice or report of valuer. Initially, the onus which was placed upon the assessee was required to be discharged by providing unimpeachable evidence which could not have been created i.e. in the form of some document of past nature. The assessee had failed to produce any such material. The view which has been taken by the Tribunal is a plausible view. - Decided against the assessee. - ITA No.83 of 2012(O&M) - - - Dated:- 13-9-2012 - MR. AJAY KUMAR MITTAL AND MR. GURMEET SINGH SANDHAWALIA JJ. Present:- Mr. S.K.Gulati, Advocate for the appellant. Mr. Tejinder Joshi, Advocate for the revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts as narrated in the appeal may be noticed. The appellant is legal heir of the assessee Shri Walaya Ram Sachdeva who died on 24.2.2004 at the age of 89 years. Return for the assessment year 2004-05 was filed on 24.2.2005 declaring income at Rs. 89,790/- including capital loss of Rs. 6,81,859/- on account of sale of jewellery for Rs. 14.3 lacs. In the financial years 2001-02 and 2002-03, the assessee sold jewellery amounting to Rs. 7.2 lacs and Rs. 25.8 lacs respectively. During the assessment proceedings, the Assessing officer asked the assessee to establish the genuineness of the sale of jewellery worth Rs.14.3 lacs. The appellant produced sale invoices and submitted that sale consideration had been received through account payee ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, the Tribunal in para 8 had recorded as under:- 8. We have duly considered the rival contentions and gone through the record carefully. The first essential condition required to be proved by the assessee in order to claim long term capital loss is that Walaya Ram was possessing alleged diamond jewellery which was alleged to have been sold on 24.7.2003. There is no direct evidence available with the assessee in this connection. He relied upon circumstantial evidence. The first evidence referred by the assessee is the valuation report of Shri Surinder Kumar Gupta who valued the jewellery on 15.7.2003. According to the assessee, he is a registered valuer. He has valued the jewellery, therefore, he has seen the jewellery. When this va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen from where these documents had come to the possession of the assessee. What was the occasion, the deponent had given this affidavit. This affidavit does not lead the case of the assessee anywhere. It only disclosed that M/s Shubham Gems had operated at the given address. Thus, either assessee has anticipated the situation that existence of Shubham Gem would be inquired at some stage. The notice under section 143(2) was issued by the Assessing Officer on 27.2.2006. The affidavit was sworn on prior to that date. Prima facie, these documents appear to us as a concocted affairs which have been created by some entry provider. Shri Kothari was a young man of 23 years as alleged in this affidavit. According to the assessee, the diamonds were s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the view that it is an attempt to create capital without paying any tax, it is not a genuine claim. Learned CIT (Appeals) failed to appreciate the facts in right perspective. He was not justified in deleting the addition. We allow the appeal of the revenue set aside the order of learned CIT(Appeals) and restore that of the Assessing Officer. 7. Learned counsel for the appellant made a feeble attempt to dislodge the findings recorded by the Tribunal but was unable to substantiate his pleas. An effort was made to show that the aforesaid finding was perverse. Nothing was disclosed in the wealth tax returns. Further, the evidence which had been produced was of recent origin in the form of sale invoice or report of valuer. Initially, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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