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TMI Blog2019 (6) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 1,00,000/- claimed by the appellant to have been received from friends and relatives on marriage and other occasion." 3. Briefly stated, the facts of the case are that a search and seizure action u/s 132 of the Act was carried out on the members of Sunny Group on 01.12.2011 of which the assessee is one of the members. During the course of search proceedings, certain jewellery valued at Rs. 51,08,301/- was found from the residence and bank locker of the assessee and his wife, however, there was no seizure by the Department/surrender by the assessee during the search proceedings. During the course of assessment proceedings, the assessee was asked by the Assessing officer to explain the source of investment in such jewellery. 4. In response, the assessee submitted that the said jewellery belongs to him and his family which has been received from both sides of relatives and friends at the time of marriage and thereafter on various other festivals and auspicious occasions. It is customary in Indian society that parents, friends & relatives present gold ornaments and silver items etc to their daughter and son in law at the time of marriage and other social functions/festivities. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contentions that some of the jewellery found during search belongs to assessee's married daughter, the AO stated that the same cannot be accepted since no proper evidence in this regard was furnished nor was any such evidence found or seized during the course of search. Regarding silver articles (3229 gms) valued at Rs. 1,52,222/- found during the course of search, the assessee's contentions were accepted to the extent of Rs. 52,222/- and the balance of Rs. 1,00,000/- represented by the silver articles is held to be acquired out of the undisclosed income and the same was also brought to the tax. Therefore, out of the total gold jewellery and silver articles found during search and valued at Rs. 51,08,301/-, jewellery and silver items worth Rs. 30,55,822/- were considered as explained and the balance amount of Rs. 20,52,479/- was brought to tax equally in the hands of the assessee and his wife u/s 69A of the Act. 6. Being aggrieved, the assessee carried the matter in appeal before the ld. CIT(A) who has since confirmed the addition and the relevant findings are contained at para 3.1.3 of his order which is reproduced as under:- "3.1.3 I have duly considered assessee's submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation has only allowed minimum gold jewellery, as per CBDT guidelines, to the extent of 500 gms per married lady, 250 gms per unmarried lady and 100 gms per male member. Thus ld. AO allowed in all 1200 gms of gold jewellery (value Rs. 30,03,600/-) to family of assessee as against 1979.92 gms (value Rs. 51,08,301/-) found in course of search. 8. The ld. AR drawn our reference to the CBDT Instruction No. 1916 dated 11/05/1994 wherein it has been held as under:- "Instances of seizure of jewellery of small quantity in course of operations under section 132 have come to the notice of the Board. The question of a common approach to situations where search parties come across items of jewellery, has been examined by the Board and following guidelines are issued for strict compliance. (i) In the case of a weath-tax assessee, gold jewellery and ornaments found in excess of the gross weight declared in the wealthtax return only need be seized. (ii) In the case of a person not assessed to wealth-tax gold jewellery and ornaments to the extent of 500 gms per married lady 250 gms. per unmarried lady and 100 gms per male member of the family need not be seized. (iii) The authorized o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 10,26,240/- (1/2 of Rs. 20,52,479/-) in the hands of assessee by treating the gold jewellery/silver articles as unexplained possession and subjecting the same to tax u/s 69A is wrong, unjust and bad in law. 10. Further, the ld. AR relied on the Co-ordinate Bench decision in case of Sh. Vibhu Aggarwal vs. DCIT, CC-06, New Delhi (ITA No. 1540/DEL/2015 dated 04/05/2018) which has followed the decision of the Hon'ble Delhi High Court in case of Ashok Chadha vs. ITO (14 taxmann.com 57) and decision of the Hon'ble Rajasthan High Court in case of CIT vs Satya Narain Patni (46 Taxmann.com 440). 11. The ld CIT DR is heard who has vehemently argued the matter and submitted that the AO has been reasonable in allowing the credit for jewellery possessed by the assessee and his family and the excess jewellery has rightly been brought to tax. He accordingly submitted that there is no infirmity in the order of the ld CIT(A) and the same should be confirmed. 12. We have heard the rival contentions and gone through the material available on record. The assessee is married for last 30 years and the family of the assessee consists of his wife, three daughters out of which two are unmarried and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d remaining is not acceptable. Where the Revenue disputes a part of the statement as not correct, the onus shifts on the Revenue to prove otherwise and not the assessee. Therefore, going strictly by clause (i) of the CBDT Circular dated 11.05.1994, the gold jewellery found in possession of the assessee is within the permissible limits as belonging to the assessee and other family members including married daughter and children. 14. Further, if we read clause (ii) of the said CBDT circular, even as per said clause, the search team has found the possession of the above jewellery by the assessee and other members of the family within the reasonable limits as per the status, customs and practices of the community to which the family belongs and has not carried any seizure of the aforesaid jewellery. The assessee belongs to a reputed old Jagirdar family and so enjoying high status in society, married about 30 years back and has three daughters and one son and possession of gold and silver jewellery is customary in the Indian society and also gifts on marriages and other social functions. The Courts have held that where the CBDT looking to such customs and practices prevailing throughou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came down with the said circular and one has to go with the weight and not with the value as the value may fluctuate over the years. The Tribunal has also appreciated the fact on record that the marriage of three sons were performed in the year 1996, 2000 and 2003 and all the marriages including the assessee and three sons were performed prior to 2003. It is also on record that the statement of various family members were recorded and none has stated that these are not personal wearing jewellery and same were received by the respective ladies/daughter-in-law on/or at the time of their marriages either from the parental side or in-laws side and even subsequently at the time of birth of their children. 11. On perusal of the circular of the Board, quoted supra, it is clear that in the case of wealth tax assessee, whatever gold jewellery and ornaments have been found and declared in the wealth tax return, need not be seized. However, sub-clause (ii) prescribes that in case of a person not assessed to wealth tax gold jewellery and ornaments to the extent of 500 gms per married lady, 250 gms per unmarried lady and 100 gms per male member of the family need not be seized. Sub-clause (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y beyond the said limit as unexplained investment of the person with whom the said jewellery has been found. 13. Admittedly, looking to the status of the family and the jewellery found in possesssion of four ladies, was held to be reasonable and therefore, the authorized officers, in the first instance, did not seize the said jewellery as the same being within the tolerable limit or the limits prescribed by the Board and thus, in our view, subsequent addition is also not justificable on the part of the Assessing Officer and rightly deleted by both the two appellate authorities namely' CIT(A) as well as the Tribunal. 14. It can also be observed here that prior to 1992, when the exemption limit under the Wealth Tax Act was about Rs. 1,00,000/- or Rs. 1,50,000/-, then in most of the cases, returns were filed under the Wealth Tax Act because even in case of possession of 500 gms per lady and the other assets namely; capital, investments in firms/shares, landed property etc. etc. being taxable return of wealth were invariably filed by the assessees. However, by the Finance Act, 1992 w.e.f. 01/04/1993 drastic change was introduced under the Wealth Tax Act where only some assets u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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