TMI Blog2020 (4) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... ural corollary to this provision is that if there is no possibility of recording any conviction as in the case of death of the person affected and abatement of the criminal trial against him, a confiscation cannot be made as there is no possibility of the person affected being convicted for the offence under the P.C.Act. We are of the opinion that the addition made on account of possession of gold of 590 gms. worth of ₹ 2,17,350/- is not sustainable. Addition on account of possession of silver of 13 kgs. worth of ₹ 3,21,870/-, we have gone through the paper book at page 220 and found that the assessee was having 100 kgs. of silver since the year 1965. Therefore, it can safely be presumed that in the relevant assessment year the assessee must have 13 kgs. silver which he has already shown in the wealth tax return. Before us, ld. DR did not bring any cogent material on record to controvert the above facts. Accordingly, we direct the AO to delete the addition made on account of investment in gold and silver totaling to ₹ 3,21,870/-. Ground No.4 in the appeal of the assessee is allowed. Purchase of vehicles - Assessee explained that for purchase of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the year 1986 and when the income from the same property is offered to tax by all of them since then till today duly accepted by the department and addition of the house property in the hands of the assessee for the year under consideration tantamount to double addition. 3. For that, the addition of ₹ 1,88,990/- added towards interest income deserves to be deleted on the ground that, not only it is unjustified on the facts and in the circumstances of the case but also, unwarranted as per the statutory provisions as the interest income belongs to Premananda Panda(HUF), Smt Birajini Panda, Manoranjan Panda, Chittaranjan Panda Brajaranjan Panda, all are independent assesses on their own accord having own source of income and when the income from the interest income is offered to tax by all of them since then till today duly accepted by the department and addition of the interest income in the hands of the assessee for the year under consideration tantamount to double addition. 4. For that, the addition of ₹ 3,21,870/- added towards unexplained investment in gold and silver deserves to be deleted on the ground that the forum below erred in law and fact in ign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajini Panda, Manoranjan Panda Brajaranjan Panda, all are independent assesses on their own accord having own source of income and when the income from the deposits is offered to tax by all of them since then till today duly accepted by the department. 9. For that, non acceptance of the so called additional evidence by the CIT(A) that goes to the roots of the matter filed by the assessee before the CIT(A) even after sending the same for remand report is out and out illegal, unjustified unsustainable being devoid of merit deserves to be accepted and considered in view of natural justice fair play. 10. For that, the appellant craves leave to add/alter/amend further grounds, if any, at the time of hearing of appeal. 3. The assessee for A.Y.1993-1994 has raised the following grounds:- 1. For that, the order of the forum below is arbitrary, illegal, unjustified and erroneous and has been passed on improper application of mind, being devoid of merit as such deserves to be quashed in limine. 2. For that, the addition of ₹ 44,400/- added towards income from house property deserves to be deleted on the ground that, not only it is unjustified on the facts an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and report is out and out illegal, unjustified unsustainable being devoid of merit deserves to be accepted and considered in view of natural justice fair play. 6. For that, the appellant craves leave to add/alter/amend further grounds, if any, at the time of hearing of appeal. 4. The assessee for A.Y.1994-1995 has raised the following grounds:- 1. For that, the order of the forum below is arbitrary, illegal, unjustified and erroneous and has been passed on improper application of mind, being devoid of merit as such deserves to be quashed in limine. 2. For that, the addition of ₹ 45,600/- added towards income from house property deserves to be deleted on the ground that, not only it is unjustified on the facts and in the circumstances of the case but also, unwarranted as per the statutory provisions as the house property income belongs to Premananda Panda(HUF), Smt Birajini Panda, Manoranjan Panda, Chittaranjan Panda Brajaranjan Panda, all are independent assesses on their own accord having own source of income from house property etc., acquired in the year 1986 and when the income from the same property is offered to tax by all of them since then till ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir play. 7. For that, the appellant craves leave to add/alter/amend further grounds, if any, at the time of hearing of appeal. 5. The assessee for A.Y.1995-1996 has raised the following grounds:- 1. For that, the order of the forum below is arbitrary, illegal, unjustified and erroneous and has been passed on improper application of mind, being devoid of merit as such deserves to be quashed in limine. 2. For that, the addition of ₹ 57,600/- added towards income from house property deserves to be deleted on the ground that, not only it is unjustified on the facts and in the circumstances of the case but also, unwarranted as per the statutory provisions as the house property income belongs to Premananda Panda(HUF), Smt Birajini Panda, Manoranjan Panda, Chittaranjan Panda Brajaranjan Panda, all are independent assesses on their own accord having own source of income from house property etc., acquired in the year 1986 and when the income from the same property is offered to tax by all of them since then till today duly accepted by the department and addition of the house property in the hands of the assessee for the year under consideration tantamount to double ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tural justice fair play. 8. For that, the appellant craves leave to add/alter/amend further grounds, if any, at the time of hearing of appeal. 6. From the above grounds of appeal, we observe that there are some common grounds in all the assessment years under consideration, therefore, for the sake of brevity, we are deciding first to the appeal of the assessee in ITA No.426/CTK/2000 for the A.Y.1992-1993 and decision of the same will apply mutatis mutandis to the other appeals also. 7. Brief facts of the case are that during the assessment proceedings for the assessment year 1994-1995, the AO observed that the assessee had made huge investments. Accordingly, the case of the assessee was reopened u/s.147 of the Act and notice u/s.148 of the Act was issued. The assessee submitted that the original return filed by him may be treated as return filed in response to notice issued u/s.148 of the Act. Later on other statutory notices were issued to the assessee. The assessee was retired Government employee. The information was received from the State Vigilance Department that the assessee has made huge investment on acquisition of different assets and deposits during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... / b) Smt. Birajini Panda -₹ 67,924/ c) Monaranjan Panda -₹ 16,000/ d) Chittaranjan Panda -₹ 16,400/ e) Brajaranjan Panda -₹ 22,913/ iii) Investment in Gold and Silver: a) Gold -₹ 2,17,350/ b) Silver -₹ 1,04,520/ iv) Investment in House Construction : ₹ 4,84,500/ v) Purchase of Car : ₹ 4,04,856/ vi) Unexplained Bank and Other deposits : ₹ 21,29,557/- 8. Feeling aggrieved from the assessment order, the assessee appealed before the CIT(A) and the CIT(A) dismissed the appeal of the assessee. 9. Feeling further aggrieved from the CIT(A) s order, the assessee is in appeal before the Income Tax Appellate Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of 500 gms. per married lady, 250 gms per unmarried lady and 100 gms per male member of the family is allowable. Both the authorities below have disputed that during the course of search, the assessee was in possession of 590 gms. gold and accordingly the value of the same at the relevant point of time has been added to the total income of the assessee after allowing 15% less towards alloy contents. In our opinion, though the CBDT Instruction was not available at the relevant point of time, however, there is no mention in the said instruction that the same will apply retrospectively or prospectively. However, the when the AO completed assessment for the year under consideration, it was very much available with the department as the AO has passed assessment order on 31.12.1998 and the CBDT Instruction No.1916 is dated 11.05.1994. It is also pertinent to mention here that in the case of the assessee the Hon ble Jurisdictional High Court in Criminal Appeal No.479 of 2013 vide judgment dated 21.03.2014 has directed to drop the proceeding initiated vide order dated 21.09.2013, passed by the Authorised Officer, Special Court, Bhubaneswar in Confiscation Case No.4/2009. Further the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tick adopted by the Assessing Officer to treat only 400 grams as reasonable allowance and treat the other as unexplained . Matter would have been different if the quantum and value of the jewellery found was substantial. 4. We are, therefore, of the opinion that the findings of the Tribunal are totally perverse and far from the realities of life. In the peculiar facts of this case we answer the question in favour of the assessee and against the revenue thereby deleting the aforesaid addition of ₹ 3,87,364/-.' 14. Further the Hon ble Delhi High Court in the case of Ashok Chaddha Vs. ITO, (2011) 202 TAXMAN 395, wherein the Hon ble High Court has held as under :- 3. Learned Counsel for the respondent on the other hand relied upon the reasoning given by the authorities below. After considering the aforesaid submissions we are of the view that addition made is totally arbitrary and is not founded on any cogent basis or evidence. We have to keep in mind that the assessee was married for more than 25-30 years. The jewellery in question is not very substantial. The learned counsel for the appellant/assessee is correct in her submission that it is a normal custom f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been collected from the bank on account of term deposits and savings bank, a certificate in this regard has been issued by the United Bank of India, copy of which is filed at page 6. In the assessment order, the AO has also accepted that the assessee has sufficient bank balance to meet out for purchase of car, however, did not accept the explanation of the assessee and added the same to the total income of the assessee. In our opinion, on perusal of the above documents placed before us in the form of paper book, we are satisfied that the assessee has accumulated money for purchase of car from his office as loan and from the bank after closing the term deposits and savings account. Therefore, the addition made by the AO on account of purchase of car and confirmed by the CIT(A) is directed to be deleted. Ground No.6 is allowed. 19. With regard to grounds Nos.2,3,5,7,8 9, ld. AR during the course of hearing has filed an application under rule 29 of ITAT Rules, for acceptance admission of additional evidences for just and proper adjudication of the matter, wherein the contents of the same are as under :- 1. That all the additions made in the assessment order by the Ld. A.O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with explanations in shape of W.S. and the same was forwarded to the Ld. AO for re-examination seeking a remand report but unfortunately the evidences thus filed were refused to be accepted by the Ld. AO as well as the Ld. CIT(A) on the ground that they constitute to be fresh evidence during appellate proceeding. 4. That the assessee was prevented by the Ld. AO at the time of assessment proceeding to submit further clarification documentary evidences in absence of notice seeking further clarification again by the Ld. CIT(A) who should have accepted the fresh or additional evidences even after seeking remand report on the same when he is empowered under section 250(4) or 46A(4) not keeping in mind the fact that, Procedures and technicalities are the handmade of Justice not the Mistress of Justice , When substantial Justice and Technicalities are Pitched against each other substantial Justice has to been given preference finally -Judiciary is not respected for legalising injustice on technical grounds but for being capable of removing injustice......[ COLLECTOR, LAND ACQUISITION vs. MST. KATIJI ORS (SC) 167 ITR 471]. 5. That in view of the above narrated f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rected to cooperate with the AO for early disposal of the case. Thus, the issues raised by the assessee in Nos.2,3,5,7,8 9 are allowed for statistical purposes. Thus, ITA No.426/CTK/2000 is partly allowed for statistical purposes. 22. Since the facts and circumstances involved in all the appeals are common and the issues involved are similar, therefore, relying on the observations made by us in the appeal of the assessee for A.Y.1992-1993 in ITA No.426/CTK/2000, we direct the AO to delete the additions made on account of investment in gold and silver and purchase of car in the other appeals i.e. ITA Nos.427 to 429/CTK/2000. However, other issues have been restored to the file of AO for proper adjudication after considering the additional evidence filed by the assessee, therefore, our observations made in the appeal of the assessee for A.Y.1992-1993 shall apply mutatis mutandis to the other appeals i.e. ITA Nos.427 to 429/CTK/2000 also. Accordingly, ITA Nos.427 to 429/CTK/2000 are partly allowed for statistical purposes. 23. In the result, all the four appeals of the assessee are partly allowed for statistical purposes. Order pronounced in the open court on 22/01/2020. ..... 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