TMI Blog2011 (9) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... e husband, 100 grams in case of the son and 250 grams in case of unmarried daughter. Taking the circular into account and the composition of the family, jewellery up to 950 grams should not be seized in this case. This means that jewellery to this extent is taken as accounted jewellery even in absence of any evidence. According to the ld. CIT(Appeals), the jewellery valued at ₹ 8,87,998/- weighs about one kilogram. Therefore, we are of the view that no part of this jewellery was liable to be included in the total income of the assessee. Accordingly, his order is upheld on this ground also. - ITA No. 221(Del)/2011 - - - Dated:- 9-9-2011 - SHRI C.L. SETHI AND SHRI K.G. BANSAL For the Appellant: Smt. Pratima Kaushik, Sr. DR For the Respondent: Shri Kapil Goel, Advocate ORDER PER K.G. BANSAL: AM In this appeal, the revenue has taken two substantive grounds to the effect that the ld. CIT(Appeals) erred on facts and in law in deleting the addition of (i) ₹ 27,90,000/-, made by the AO u/s 69B of the Income-tax Act, 1961 (the Act), on account of unexplained investment in property, and (ii) ₹ 2,87,998/-, made by the AO on account of unexplained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lish that the assessee has made investment as it was denied on the date of search itself. Therefore, the provision contained in section 69B is not applicable on the facts and in the circumstances of the case. 3.1 Before us, the ld. DR m referred to page nos. 25 and 38 of the paper book filed by the assessee. In answer to question no. 13 of the statement recorded on oath on 14.5.2007 under the provision of section 132(4), it is deposed that the paper does not pertain to any immovable property belonging to him or his family member. He or the family has neither purchased nor sold any such immovable property. The transaction could be of the friend Shri P. Hanumant Rao, who stayed in his house at Hyderabad. This house was sold in financial year 2006-07. The papers must have come when we got the property sold. Mr. Hanumant Rao and his wife are now dead. Their relatives are in Hyderabad and we shall be furnishing their address on the next date. Referring to the statement, it is submitted that the assessee did not furnish full particulars of the papers found in his possession. He also did not furnish the address of the relatives of Shri Hanumant Rao resulting in frustration of enquir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lery or other valuable article, and ii) It is found that the amount expended on making such investment or in acquiring such bullion, jewellery or other valuable article exceeds the amount recorded in that behalf in the books of account maintained by the assessee, and iii) Either the assessee offers no explanation about such excess amount, or the explanation offered by him is not satisfactory. The above circumstances are cumulative. If all the circumstances exist, the excess amount may be deemed to be income of the assessee for the financial year in which such investment was made. It may be noted that the legal fiction enacted in section 69B comes into effect only where all the above circumstances do exist. The onus is on the Revenue to prove the existence of all the circumstances. There is no room or scope for making any presumption about the existence of any requisite circumstances. The facts in the present case are that assessee purchased land at different places at different intervals at different prices. These purchases were registered and the value shown in the purchase agreement is in conformity with valuation of stamp duty authorities. Assessee explained that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We agree with the above findings as there is nothing on record to indicate that assessee has invested more than what was recorded in the books of account. In fact the Assessing Officer s approach in making the addition originally at ₹ 60,57,27,667/- is also not correct and rectified by the order u/s 154 subsequently. There seems to be casual and pedantic approach in examining the issue and making the addition by the A.O. 3.3 We have considered the facts of the case and submissions made before us. The facts are that in the course of search of the residence of the assessee a computer print out was found, which shows receipts in respect of sale of some immovable property and payments made in respect of some immovable property. The receipts exceed the expenditure by an amount of ₹ 13,900/-. The paper does not contain any name, the dates of transaction, details of bank or the descriptions of the property. The AO has ignored the receipt portion but has brought to tax the amount of investment of ₹ 27,90,000/-. The assessee right from the beginning denied that the paper belongs to him or any of his family member. He gave some indication about the person to whom the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n acquired over a long period of 27 years by way of purchases and gifts. The claim was stated to be in consonance with the family status and withdrawals made by various members in various years. The AO considered the facts of the case and submissions made before him. It is mentioned that there is no evidence of any gift or purchase. There is also no co-relation with the withdrawals. However, looking to the status of the family and the year of marriage, i.e., 1982, it was estimated that the family could possess jewellery of the value of ₹ 6.00 lakh. The balance amount of ₹ 2,87,998/- was added to the total income. 4.1 The submissions of the assessee were the same before the ld. CIT(Appeals) as made before the AO. It was submitted that several occasions occurred, i.e., marriage ceremonies, birthday ceremonies, festivals etc. in the family in the period of last 27 years during which the spouse and children received gifts in the form of gold from various relatives and friends. The assessee had shown income of ₹ 56,91,280/- and his wife ₹ 23,84,176/- for assessment year 2007-08. Therefore, the status of the family justified that it could have gold weighing abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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