TMI Blog2016 (3) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... find any reason to intervene in the order of the ld CIT(A). - Decided against assessee Addition out of car insurance, conveyance and telephone expenses - Held that:- Assessing Officer has not specifically pointed out any personal use but estimated disallowance has been made, which is also appears to be higher side. Accordingly, we restrict this disallowance @ 10%. The Assessing Officer suitably modified the addition. - Decided partly in favour of assessee - ITA No. 557/JP/2013 - - - Dated:- 22-1-2016 - SHRI R.P. TOLANI, JM SHRI T.R. MEENA, AM For The Assessee : Sri P.C. Parwal (CA) For The Revenue : Sri S.M. Meena (CIT) ORDER PER: T.R. MEENA, A.M. This is an appeal filed by the assessee against the order dated 01/3/2013 passed by the learned CIT(A) (Central), Jaipur for A.Y. 2008- 09. The effective grounds of appeal are reproduced as under:- 1. The ld CIT(A) has erred in facts and in law in confirming the addition of ₹ 15,28,384/- out of the additions of ₹ 19,41,200/- made by A.O. on account of alleged unexplained expenditure U/s 69C pm daughter s marriage. He has further erred in: (a) Taking the expenditure on marriage of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een reproduced by the Assessing Officer on page 6 of the assessment order. The ld Assessing Officer finally observed after considering the assessee s reply as under:- (a) The assessee in his statement on oath on the date of search assessee has not pointed out that ₹ 10.00 Lacs was given by Shri Anand Prakash Agarwal for marriage expenses. This is an afterthought and devoid of merits. (b) As Cash Extract seized during the course of search on 14.03.2008, contain date wise sources of fund and description of various expenses incurred for daughter Ruby's marriage on 06.07.2007 does not find ₹ 10.00 lacs receipt from Shri Anand Prakash Agarwal as per the page- 13 extract reproduced earlier in this order, which mentions the sources of funds for expenditure in the marriage as under: From Sh. Kamal Ji (assessee) ₹ 5.00 lacs Sh. Shankar Lai ₹ 0.50 lacs ..do .. ₹ 0.50 lacs Sh. Sunil ₹ 2.35 lacs ..do .. ₹ 1.00 lacs From Inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9C deemed to income for the financial year 2007-08 relevant for the A.Y. 2008-09. 3. Being aggrieved by the order of the learned Assessing Officer, the assessee carried the matter before the learned CIT(A), who had partly allowed the appeal by observing as under:- 5.4 I have carefully considered the submissions of the appellant as also the findings of the AO. It may be noted that during the course of search proceedings, documents were found and seized indicating details of various expenses incurred on the marriage of daughter of assessee organized on 6.7.2007. During the course of search, statement of the appellant was recorded on 14.3.2008 and in his statement when he was confronted regarding expenses incurred on the marriage of his daughter, the appellant stated that in this marriage expenditure of ₹ 3 -3.5 lacs approximately incurred by the assessee except certain expense incurred by other family members i.e. grandfather, father-in-law etc. The assessee was confronted regarding seized documents as per Annex. A exhibit-1 page 8, 9 10 and in question no. 23 the appellant admitted that the page 8 9 contained detail of expenses incurred on the marriage of his dau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Sunil Gattani for which the assessee also filed an affidavit stating that Sh. Sunil Gattani has given close envelope containing cash of ₹ 7.85 lacs without knowing what was inside the envelop. As per AO the AO such an explanation is unbelievable that such huge amount has been taken without the knowledge of other party. The AO accordingly treated expenses to the extent of ₹ 205800 (190800+15000), the amount received from assessee s brother for engagement function and ₹ 15000/- of personal withdrawal by the assessee and the rest amount for ₹ 1941200/- was treating as unexplained expenditure u/s 69C of IT Act. On the other hand appellant s case is that the marriage expenditure taken by the AO at ₹ 21.47 lacs on the ba.sis of page 13 of Annex. A-l is incorrect in as much as the paper record the amount lying with various persons for incurring the expenditure and total available fund as per this paper for ₹ 16.47 lacs. It is further stated that the amount of ₹ 5 lacs received from the in-laws of the daughter of the assessee and utilized for their purpose is evident from this paper itself. It is accordingly stated that the total expenditur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncurred on the marriage of his daughter at the time of search, at the time assessment proceeding and at the time of appellate proceedings. It may be noted that at the time of search total expenditure was stated to be incurred for ₹ 3-3.50 lacs except some expenditure incurred by other family members, though the seized documents reflected expenditure for ₹ 21.47 lacs. During assessment proceedings, total expenditure was stated to be ₹ 882097/- and during appellate proceeding such expenditure was stated to be for ₹ 1614398/-. During assessment proceedings availability of fund/ receipt of money was also shown from one Sh. Sunil Gattani that too for ₹ 12.85 lacs including cash of ₹ 7.85 lacs but no such source was stated during appellate proceedings. These facts indicated that the appellant s explanation in respect of source of marriage expenses was always of differing and contradictory nature. With this background the other issues and objections raised by the appellant during the appellate proceedings are to be examined. The first objection of the appellant is that the AO has wrongly taken marriage expenditure at ₹ 21.47 lacs based on page 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso the bank statements filed by Sh. Manak Chand Gattani it is noted that Sh. Manak Chand Gattani is pensioner getting pension of ₹ 6500-7000 approximately and having his bank account with SBBJ, Makrana and perusal of such account indicate that the appellant was having very nominal balances in such account. In fact the available balance in such account has rarely exceeded ₹ 50000/- or more and prima facie such account does not reflect healthy finance status of Sh. Manak Chand Gattani. Moreover it is also noted that Sh. Manak Chand Gattani has shown most of such withdrawn either in the period before the date of marriage or subsequent to the period of marriage. In fact substantial amount is withdrawn from month of May 2006 where as the marriage Of daughter was solemnized on 6.7.2007. The details of such withdrawals made by Sh. Manak Chand Gattani are as under: Date Particulars Amount 14.5.06 6002061011300037309 15000 15.5.06 6002061011300037309 15000 20.5.06 6002061011300037309 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of marriage expenses of the daughter of appellant. In fact nature of expenses recorded on page 8, 9, 10 and 13 very clearly indicate that such expenses were not of common nature and these expenses were of very specific nature pertaining to the appellant only. In this background even if ₹ 10 lac has been withdrawn by Sh. Anand Prakash Agarwal, it cannot be said and believed that such amount of ₹ 10 lacs was incurred against such expenditure of ₹ 21.47 lacs. Therefore such availability of fund amounting to ₹ 10 lacs cannot be accepted. As regards another availability of ₹ 1 lac by way of gifts it is stated that as a social custom all persons attending a marriage gives gifts either in the form of any items or an envelope containing cash and that the assessee has received approximately one lac from various persons. This fact is also stated to be evident from the recording in the seized paper. On careful consideration of relevant fact including the seized document it is noted that there is mention of reception for 1500 members and it is also accepted fact that on such social customs certain gifts are given. If the function was arranged for appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year, it may stated that such submission and explanation is also without any documentary evidence in as much as if the daughter of appellant was having income of ₹ 1 lac every year, the accumulation of funds by way of savings should have been reflected by way of bank balance etc. The appellant also did not submit any such explanation for availability of ₹ 1 lac when statement was recorded u/s 132(4). Therefore such submission is also prima facie an afterthought. Keeping in view facts and circumstances discussed above, the source of funds amounting to ₹ 618616(190800+15000+100000+312816) can only be considered to be of explained nature. Accordingly out of total addition of ₹ 1941200/- addition of ₹ 412816/- (312816+100000) is deleted and addition of ₹ 1528384/- is confirmed. The ground of appeal is partly allowed. 4. Now the assessee is in appeal before us. The ld AR of the assessee has submitted as under:- 1. The AO on the basis of Pg. 13 of annexure A-1 took total expenditure on marriage is ₹ 21.47 lacs. This is confirmed by CIT(A). This is incorrect as this paper records the amount lying with various persons for incurring t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/- and as per Pg 13 of Annexure A-1 , it is noted at ₹ 16,47,000/-. The AO/CIT(A) have accepted the source to the extent of ₹ 6,18,616/-. (1,90,800+15,000+1,00,000+3,12,816). The explanation of the assessee in respect of the remaining expenditure of ₹ 10,28,384/- (1647000-618616), the observation of the CIT(A) and the further explanation of the assessee is tabulated as under:- S. No Contribution made by and amount Explanation of the assessee Observation of CIT(A) Contention of the assessee 1. Manak Chand Gattani ₹ 1,63,600/- He is father in law of the assessee. As per the custom he contributed this amount for the marriage. In support of this, his confirmation and the bank account was filed. This confirmation and affidavit was not controverted by the AO. Sh. Manak Chand Gattani is pensioner getting pension of ₹ 6500-7000 approx. The perusal of his bank account shows that he is having very nominal balances in his account. Further, most of the withdrawn was made either before the date of marriage or subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavit confirming this fact. Therefore, reasonable credit out of the amount received from Anand Prakash Agarwal should be allowed against the marriage expenditure incurred by the assessee. 3. Rukmani Gattani ₹ 3,78,000/ Smt. Rukma Gattani, grand mother-in-law of assessee, has set apart certain jewellery as per her will dt.5-4- 2000 to be utilized on occasion of marriage of Ruby. Smt. Rukma Gattani expired in June 2005 accordingly as per her will Sh. Manak Chand Gattani handed over the jewellery to assessee on the occasion of marriage having present value of ₹ 378000/-. Copy of will, letter and affidavit by Sh. Manak Chand Gattani confirming handing over the jewellery was filed to the AO. No such facts were stated during the course of search in the statement by the appellant. The submission appears to be an afterthought. Even if such jewellery was there the evidence of selling the same and getting ₹ 3,78,000/- should be available. However, no such documents have been filed. Further Smt. Rukmani Gattani is stated to have expired in June, 2005 and it is not known as to when the said jewellery ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alculated these expenditures at ₹ 21.47 lacs whereas as per assessee s submissions, it was ₹ 16.47 lacs. The assessee s claimed that ₹ 5 lacs received by the assessee from Byaiji (father in law of the daughter of the assessee) but the assessee has not submitted any confirmation from the father in law of the daughter of the assessee before the lower authorities as well as before us. When father in law has withdrawn these sums from his regular books of account. The credit of ₹ 1 lac, which was met out of the gift received has been given by the ld CIT(A). As per assessee, finally expenditure remains to be explained at ₹ 15.47 lacs. The assessee further explained that he has received ₹ 1,63,600/- from Sh. Manak Chand Gattani, father in law of the assessee, but there is no evidence furnished by the assessee that Shri Gattani has capacity to contribute such amount as he is pensioner and getting pension of ₹ 6500-7000 approximately per month. Further the assessee claimed that there was a common marriage ceremony on that date i.e. marriage of both sons of Sh. L.N. Mundra was also solemnized on 06/7/2007 and common expenses were shared equally by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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