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The Assistant Commissioner of Income-tax, Central Circle-1 (4) , Ahmedabad Versus Shri Rasik Gopaldas Patel and Vica-Versa

2015 (9) TMI 1356 - ITAT AHMEDABAD

Addition made on account of unaccounted jewellery - CIT(A) deleted the addition - Held that:- No infirmity in the above order of the CIT(A). He treated gold ornament as explained considering the CBDT Instruction No. 1916 dated 11th May, 1994. He has also referred to various decisions of ITAT wherein a view has been taken that such circular is to be considered even during the assessment proceedings. We find that before the Assessing Officer also this circular was referred by the assessee’s counse .....

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unaccounted sarafi business - CIT(A) allowed part relief - Held that:- No infirmity in the order of CIT(A). He has recorded the finding that the assessee has made another disclosure of ₹ 5 lacs in respect of unaccounted payment to brokers. Those payments are also recorded in the same seized pages and were part of the total payments made by the assessee at ₹ 76,30,540/-. Therefore, he reduced the addition to the extent of ₹ 5 lacs. This factual finding recorded by CIT(A) has not .....

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e details, the payment of only ₹ 5 lacs to the brokers was mentioned and not ₹ 7,50,000/-. Therefore, the addition made by the Assessing Officer was only on the basis of statement of some brokers which was found to be contrary to the facts on record by the CIT(A). This finding of the CIT(A) has not been controverted at the time of hearing before us. We, therefore, uphold his order - Decided against revenue.

Computation of interest u/s.234A, 234B & 234C - Held that:- As sub .....

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hout direction of the ITAT, the Assessing Officer is supposed to dispose of the application filed u/s. 154 by any assessee. In view of above, we direct the Assessing Officer to dispose of the assessee’s application, if any, filed u/s. 154 in accordance with law at an early date. - Decided in favour of assessee as directed - IT(SS)A. No. 617/Ahd/2011, C.O. No. 8/Ahd/2012 - Dated:- 4-9-2015 - SHRI G. D. AGRAWAL, VICE PRESIDENT AND SHRI S. S. GODARA, JUDICIAL MEMBER For The Revenue : Shri R. I. Pat .....

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y. 3. The facts of the case are that during the course of search of the assessee s premises total jewellery weighing 4444.25 gms. and was found. Assessing Officer treated 2000 gms. of the gold ornament i.e. 400 gms. per married lady to be explained and treated remaining 2444.25 gms. as unexplained. Consequently, the addition of ₹ 30,55,132/- was made. 4. On appeal, the CIT(A) deleted the addition with the following findings: 6.3 I have carefully considered the Assessment Order, findings of .....

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amnagar Co Operative Housing Society wherein appellant along with his family members are living. It is further found that gold jewellery found during the course of search for 4,444.25 gms. includes gold found from residential premises of appellant's family as well as locker No. 466,76, 77, 78 and 641 with Mehsana Urban Co-operative Bank Limited which are in the name of family members of appellant. It is observed from the panchnamas prepared both at the time of opening of the bank locker and .....

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addition of gold to this extent is deleted. With regard to balance gold of 3,863.30 gms belonging to family members for which AO has allowed credit of 2,000 gms as stated herein and denied credit of other family members, it is found from the records of appellant that 14 family members being appellant, his wife, his two children along with their wives and sons/daughter, brother's wife being widow and her two sons along with their respective families are living together and such facts were st .....

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ephews which supports the appellant's contention that all the 14 family members are living together. From the panchnamas prepared on the date of search for gold jewellery of 762.400 gms found from Bungalow No. 28, it is found that not only the name of. appellant is mentioned but against the gold jewellery found, names of appellant's wife, brother's wife, daughter-inlaw, and wives of nephews are mentioned. It is further observed that bank lockers from which gold is found and considere .....

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d ornaments to the extent of 500 gm for married lady member, 250 gms for unmarried lady and 100 gms for male members is required to be considered as explained jewellery. This circular is explained by Hon'ble Ahmedabad I.T.A.T. in case of Kishorbhai V Sakaria , Rameshchandra R Patel 89 ITD 203 and Manila! S Dave 117 Taxman 23 referred supra wherein it has been explicitly held that though board circular is a guideline for not effecting seizure during the course of search, extended meaning of s .....

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the assessing officer is not justified in treating only 400 gms gold per married lady as explained gold but he ought to have treated 500 gms gold per married lady, 250 gms for unmarried lady and 100 gms for male members as explained gold. In view of same, appellant is entitled to credit of 3950 gms of gold as against which gold jewellery of 3863.30 gms excluding gold jewellery belonging to non-family members as stated in preceding para are found during the course of search, hence same cannot be .....

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the above order of the CIT(A). He treated gold ornament as explained considering the CBDT Instruction No. 1916 dated 11th May, 1994. He has also referred to various decisions of ITAT wherein a view has been taken that such circular is to be considered even during the assessment proceedings. We find that before the Assessing Officer also this circular was referred by the assessee s counsel. However, Assessing Officer allowed credit only in respect of five married ladies that to 400 gms each as a .....

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ve relief of ₹ 5 lacs out of total addition of ₹ 6,30,240/- made on account of unaccounted sarafi business. 8. The only ground in assessee s Cross Objection is against addition of ₹ 1,30,240/- sustained by the CIT(A) in respect of unaccounted investment in sarafi business. Since both the grounds are inter-related, they are being considered and decided together. 9. The facts of the case are that during course of search of the assessee s premises, certain papers were found and se .....

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The assessing officer has made addition of ₹ 6,30,240 mainly on the ground that seized data found during the course of search shows total credit given to various parties not accounted in books of account as ₹ 76,30,240 whereas appellant has disclosed only ₹ 70 lacs in return of income. The appellant has explained that seized data contain both receipt and payment hence entire payment cannot be taxed. It was also explained by appellant that as he is engaged in sarafi business whi .....

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ich is being circulated is required to be taxed which comes to ₹ 40.10 lacs and no further addition is called for. it was also argued ,by appellant that it has also made another disclosure of ₹ 5 lacs being unaccounted payment to broker separately from same seized pages 1 to 4 which is part of total of ₹ 76,30,540 hence in any case addition to that extent is required to be reduced. It is undisputed fact that page no 1 to 4 pertain to unaccounted sarafi business carried out by a .....

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rejected. However, I find force in the argument of appellant that apart from disclosure of ₹ 70 lacs, he has made separate disclosure of ₹ 5 lacs for payment to broker which is also stated in para 7 of assessment order and such payment is part of total payment of ₹ 76,30,540 of seized pages 1 to 4 of Annexure A-1 hence when AO has considered entire payment while making impugned addition, he ought to have given credit of ₹ 5 lacs disclosed by appellant. Considering the sa .....

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ect of unaccounted payment to brokers. Those payments are also recorded in the same seized pages and were part of the total payments made by the assessee at ₹ 76,30,540/-. Therefore, he reduced the addition to the extent of ₹ 5 lacs. This factual finding recorded by CIT(A) has not been controverted before us. We, therefore, find no justification with the finding of the CIT(A) in this regard. Accordingly, ground no.2 of the Revenue s appeal and the only ground of assessee s Cross Obje .....

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ct of commodity trading. However, assessee made surrender of only ₹ 5 lacs in this regard. Therefore, the Assessing Officer made addition of ₹ 2,50,000/-. CIT(A) deleted the addition with the following finding: 5.3 I have carefully considered the Assessment Order, findings of Assessing Officer and the submission of the Appellant. The appellant during the course of search has stated that he has carried out trading in commodity and from the details obtained from appellant, statement u/ .....

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rt from above 5 lacs, another payment of ₹ 2.50 lacs has been made by appellant. The burden is on assessing officer to prove that such payment has been made by appellant and such burden cannot be proved merely on the basis of third party statement more particularly when during the course of search, details of payment of ₹ 5 lacs have been found but details regarding payment of ₹ 2.50 lacs has not been found. The case of appellant is covered by decision of ITO v. Dr. R.L. Narang .....

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