TMI Blog2022 (12) TMI 699X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent conclusion on facts. These appeals are therefore liable to be dismissed . Impugned order is set aside and the case is remitted back to the AO, i.e. Deputy Commissioner of Income Tax, Central Circle-II, to pass a fresh order on merits in accordance with law in line with the direction of the Tribunal. Entire exercise shall be completed by the AO in the respective cases, within a period of three months from the date of receipt of a copy of this order. - T.C.A.Nos.768 of 2009 & 232 of 2011 And M.P.Nos.1 of 2009 & 1 of 2011 - - - Dated:- 2-12-2022 - Honourable Mr.Justice S.Vaidyanathan And Honourable Mr.Justice C.Saravanan For the Appellants in both T.C.As. : M/s.T.N.Seetharaman For the Respondent in both T.C.As. : Mrs.V.Pushpa Standing Counsel COMMON JUDGMENT S.VAIDYANATHAN, J. AND C.SARAVANAN, J. By this common Judgment, both Tax Case Appeals are being disposed of. 2. These appeals arise out of the proceedings initiated against the respective appellants for the Block Assessment Years 1991-1992 to 2000- 2001 and Assessment Year 2001-2002. 3. In these appeals, the respective appellants have challenged the following impugned orders pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied out on January 5, 2001? ii. Whether the proviso inserted in Section 113 by the Finance Act, 2002 is classificatory in nature? 8. T.C.A.No.232 of 2011 was admitted on 20.06.2011 and the following questions were framed as substantial question of law to be answered:- i. Whether on the facts and circumstances of the case, the Appellate Tribunal was justified in law in reversing the order of the Commissioner (Appeals) partly on assumptions and estimate and restoring the addition of the value of gold jewellery of 585.95 gms and 2.05 carats of diamond jewellery as unexplained? ii. Whether on the facts and circumstances of the case, the Appellate Tribunal was right in law in not accepting the claim of the assessee regarding ancestral gold and diamond jewellery evidenced by Wealth Tax and Estate duty assessment orders of the assessee s ancestors and holding that probable disposal of the ancestor s jewellery could not be ruled out? 9. The appellant in T.C.A.No.768 of 2009 and the deceased first appellant in T.C.A.No.232 of 2011 herein are brothers. They had suffered similar adverse assessment orders along with their mother Mrs.S.P.Geetha, the impleaded fifth appellant i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r accepted the fact that there were evidences for possession of jewellery by these persons but did not give any credit for ancestral jewellery on the ground that there was no clinching evidence for receipt of jewellery from the above persons. He further held that if the appellant had received ancestral jewellery he would have admitted the same in the wealth tax return for assessment year 1992 to 1993. Admittedly, the appellant and his brother Shri S.P.Sanjai are the legal heirs and there is no necessity for any clinching evidence for accepting the jewellery from the forefathers. As wealth tax is not applicable after 01.04.1992 and the taxable wealth was below the exemption limit, the appellant did not file any wealth tax return after assessment year 1992-1993. As contended by the representative, the appellant s father Shri.S.R.Prem Mohan was alive as on 31.03.1992 and therefore, the jewellery left by him would have devolved on the appellant only after his death on 16.09.1992. Similarly, when the appellant s grandfather expired on 20.12.1998, the appellant would have received some share of ancestral jewellery. In the circumstances, the ancestral jewellery claimed by the appellant ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders of the first appellate authority on this issue in dispute deserve to be cancelled and we cancel the same and we are decide this issue in favour of the Revenue and against the assessees. 15. The last issue involved in the present appeal is regarding the levy of surcharge which was deleted by the learned first appeallate authority. 16. At the time of hearing, both the parties agreed that this issue has been decided against the assessees by the Honble Supreme Court of India in the case of CIT Vs. Suresh N.Gupta reported in 297 ITR 322 (SC). Keeping in view statement of both the parties on the issue of levy of surcharge, we decide this issue against the assessees by respectfully following the decision of the Hon ble Supreme Court of India in the case of CIT Vs. Suresh N.Gupta (2008) (supra) . Accordingly, the Revenue succeeds on this ground. 17. In the result, the appeals of the Revenue are partly allowed. 12. Mrs.S.P.Geetha, the impleaded fifth appellant in T.C.A.No.768 of 2009, the mother of appellant in T.C.A.No.768 of 2009 and the deceased first appellant in T.C.A.No.232 of 2011 had filed an appeal in T.C.A.No.240 of 2011 before this Court. T.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .S.P.Geetha (w/o Prem Mohan) ? Sons-Shri S.P.Sanjai and Shri S.P.Karthik . Claim of the assessee was that 2432.46 grams of gold jewellery and 40.75 carets of diamond jewellery were received from the above persons Ld.CIT(A) accepted 600 gms. of gold jewellery and 15 ct. of diamond jewellery therefrom. The question is whether Estate Duty assessment of M.K.Rajagopaliar and Wealth-tax assessment of S.R.Thangamani Ammal were sufficient to come to a conclusion that jewellery owned by them were all received by the assessee. Gold jewellery of 2432.46 gms diamond jewellery of 40.75 carets were reflected in the Estate Duty and Wealth-tax assessments of the mentioned persons, which position is mentioned by the CIT(A) at page 24 of his order and not rebutted by the Revenue. However, in our opinion, just because the forefathers of the assessee were having jewellery in their custody, it could not mean that all such jewellery would have been received by the assessee and his brother. Assessee along with his brother could have in all probability received some part thereof, but to presume that the whole of it would have come to them is fallacious. Even, if we presume that the forefathers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011 viz. S.P.Karthik and S.P.Sanjai. 17. The appellant in T.C.A.No.768 of 2009 and the deceased first appellant in T.C.A.No.232 of 2011 appeared to have sold an extent of 1.077 acres (46,915 sq.ft) of land in 160A, Kamarajar Salai, Madurai to the said Mrs.Manjula. w/o. Mr.R..Deshmuk and one Mr.K.S.Shanmugam from Madurai. 18. As per the recital of the Sale Agreement, a sum of Rs.50,00,000/- was said to have been paid to the appellant in T.C.A.No.768 of 2009 and the deceased first appellant in T.C.A.No.232 of 2011, out of which, a sum of Rs.4,50,000/- was received as advance. There is no dispute as far as receipt of the aforesaid amounts. 19. It was found that the appellant in T.C.A.No.768 of 2009 and the deceased first appellant in T.C.A.No.232 of 2011 along with their mother Mrs.S.P.Geetha the fifth impleaded appellant had undisclosed income in the form of unaccounted jewelries with them. The details of the jewellery seized on the date of seizure are as under:- Appellant Date of seizure Gold (in Grams) Diamond (in caret) SP.Sanjai 05.01.2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6/2005- 06 and I.T.A.No.201/2005-06. The Revenue's appeals were partly allowed as mentioned above. 23. The mother of appellant in T.C.A.No.768 of 2009 and the deceased first appellant in T.C.A.No.232 of 2011, i.e. Mrs.S.P.Geetha also filed I.T.A.No.199/2005-06 before the Appellate Commissioner. The said appeal was partly allowed by the Appellate Commissioner vide order dated 15.11.2006. Aggrieved by the same, the Income Tax Department filed an appeal before the Appellate Tribunal as detailed above. 24. The total jewelry recovered from the respective appellants and the quantum of unexplained jewels of the respective appellants which are subject matter of the present appeals are as under:- TCA. No 768 of 2009 (S.P Karthick) TCA No 232 of 2009 (S.P Sanajai) Gold Seized on 05.01.2001 1686 grams 3139 grams Total (Questioned) Explained Unexplained Total (Questioned) Explained Unexplained As per Assessment Order 1686 grams ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rected to make additions based on the observation in impugned order dated 03.01.2011 I.T. (SS) A.No.43/Mds/2007 challenged in T.C.A.No.232 of 2011, we are inclined to set aside the order dated 13.02.2009 in I.T. (SS) A.No.0044/Mds/2007 challenged in T.C.A.No.768 of 2009 and remit the case back to the Assessing Officer to do a similar exercise afresh following the reasoning adopted by the Appellate Tribunal in I.T. (SS) A.No.43/Mds/2007 vide order dated 13.01.2011. 28. In the result, i. Impugned order dated 13.02.2009 in T.C.A.No.768 of 2009 is set aside and the case is remitted back to the Assessing Officer, i.e. Deputy Commissioner of Income Tax, Central Circle-II, to pass a fresh order on merits in accordance with law in line with the direction of the Tribunal in I.T. (SS) A.No.43/Mds/2007 vide order dated 13.01.2011. ii. Entire exercise shall be completed by the Assessing Officer in the respective cases, within a period of three months from the date of receipt of a copy of this order. iii. T.C.A.No.768 of 2009 stands disposed of by way of remand. iv. T.C.A.No.232 of 2011 stands dismissed. v. No Cost. Consequently, connected Miscellaneous Petitions are closed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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