TMI Blog2004 (7) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties on these questions. 3. The appeal is directed against the order of the Income-tax Appellate Tribunal, Jaipur dated 28-2-2001. 4. The subject-matter of the appeal relates to assessment of block years 1988-89 to 1998-99 which took place pursuant to search and seizure operations under section 132 of the Act which were carried out on 12-11-1997 at the residential premises of the assessee at Moti Doongri, Jaipur. 5. As the dispute in this appeal relates to the additions made by the Assessing Officer in respect of jewellery weighing 1435 gms. found at the time of search and in possession of the assessee and his family members at his residential premises as well as from the bank locker of Smt. Sarita Devi, wife and Smt. Tara Devi, mother of the assessee and on account of entries in certain loose papers found from the assessee, the Assessing Officer after allowing the credit of the jewellery declared by the ladies in their respective wealth-tax returns weighing 794.15 grams, has treated the remaining jewellery weighing 640.85 grams as unexplained jewellery in the hands of the assessee and added its value amounting to ₹ 2,68,600 as value of unexplained investment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up to 1985-86, the CIT(A) had given benefit of the circular by excluding 450 grams additionally in the hands of the assessee, his son and unmarried daughter. The Tribunal, however reached its finding on two-fold grounds. Firstly, it accepted the explanation submitted by the assessee about acquisition of possession of gold jewellery and silver in excess of what was declared in W.T. returns of two ladies. Secondly, it also referred to the circular issued by CBDT. It was found by the Tribunal that there is no dispute that assessee and his wife also in their statement at the time of search on 12-11-1997 told that the jewellery was received in the marriage and some jewellery was also received in other ceremonies from time to time. The Tribunal also found that the benefit of CBDT Instructions dated 11-5-1994 was not allowed to two ladies namely, Smt. Sarita Devi and Smt. Tara Devi, mother of the assessee on the ground that the said instructions is not applicable in the case of a person, who is being assessed to wealth-tax and therefore, the exemption was allowed only to the extent of gold ornaments and jewellery shown in the wealth-tax return. After considering the fact that both the lad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion has not been found merely on the basis of circular of CBDT, but it also accepted the explanation submitted by the assessee, which primarily relates to the facts of the case that two ladies were assessed for wealth-tax in 1995-96 (sic) and declaration of the wealth is only in respect of such jewellery which was in their possession which they acquired on certain ceremonies, occasion of marriage of the brother by the wife of the assessee. Looking to the status of the family, the Tribunal found explanation to be plausible for the income in the hands of the family. These jewellery have not been treated to be investment as undisclosed income of the assessee, therefore, it may not be the income received in the hands of the assessee. In the circumstances of the case, notwithstanding one of the reasons is not sustainable, the finding is not required to be disturbed. 12. Coming to the second question referred to above, the contention of the learned counsel for the Revenue is that the Tribunal has not interpreted and appreciated the evidence before it in arriving at its conclusion that the assessee has discharged his onus to explain that the amount suggested in the three loose papers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the three loose papers, it appears to us that the finding recorded by the Tribunal about the non-appearance of Chandra Kanta Pandit in the case of assessee is a finding based on appreciation of evidence which does not stand vitiated by perversity nor it can be said to be partly relevant or partly irrelevant consideration or not founded on the material on record. 16. Undoubtedly, non-appearance of Smt. Chandra Kanta Pandit may be one of the factors which has also relevance and can be taken into consideration but it is not possible to hold as a matter of law that every material on record must be discarded merely because of non-appearance of Smt. Chandra Kanta Pandit before the Assessing Officer and it would render all other materials unreliable and incredible and not relevant and on that basis, finding cannot be reached. In fact, in the letter submitted by the assessee, which has been quoted by the Assessing Officer in his order, gives a complete and comprehensive picture and explain the material which is placed in support of his explanation in this regard. If the status of Gopal Sharma who admits himself to be author of the three loose sheets prepared at the instance of the sell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pandit has sought adjournments and could not attend office on account of her illness but Shri Gopal Sharma has confirmed the contents of the transactions that the same are with regard to the sale transactions of agricultural lands, which belonged to Smt. Chandra Kanta Pandit and also that he is the author of this document. Under such circumstances, and the facts available, the Assessing Officer still did not pursue the matter with the lady for dislodging the claim of the appellant. The Assessing Officer has failed to discharge his onus. Accordingly, we hold that the transactions mentioned in the seized annexure A-6, pages 66, 67 and 69 do not belong to the appellant and hence the addition made by the Assessing Officer at ₹ 42,27,900 is directed to be deleted. 17. In the totality of the facts and circumstances of the case, the Tribunal accepted the submissions made by the assessee that the transaction does not belong to the assessee. It cannot be said that the finding is such to which no person of ordinary prudence will reach on the basis of material on record or that is founded on irrelevant consideration. The finding does not call for any interference under the domain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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