TMI Blog2009 (8) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... SUDESH MAGU Versus COMMISSIONER OF INCOME TAX KUSUM MAGU Versus COMMISSIONER OF INCOME TAX AARTI MAGU Versus COMMISSIONER OF INCOME TAX KAMLESH MAGU Versus COMMISSIONER OF INCOME TAX SANTOSH MAGU Versus COMMISSIONER OF INCOME TAX Mr. Dr. Narayan Sr. Advocate with Mr. Rajiv K. Garg and Mr. Vineet Garg, Advocates, for the appellant. Mr. Subhash Bansal, Sr. Standing counsel for I.T., for the respondent. JUDGMENT A.K. SIKRI, J (ORAL) - In all these cases, only one question of law has arisen for consideration under the same factual back drop. 2. Admit. 3. Following substantial question of law arises for consideration in all these cases. "Whether on the facts and in the circumstances of the case the Tribunal was right in law in upholding the addition as an unexplained investment in jewellery of the assessee during the block period in spite of its finding that the disputed jewellery stood fully explained?" 4. Filing of paper book is dispensed with. 5. With the consent of the parties, we have heard the matters finally and proceed to decide the aforesaid question of law. For the sake of convenience, we shall take note of all the facts as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llery. The relevant discussion contained in the order of CIT(Appeals) in this behalf reads as under: "4.9 I have considered the reasoning given by the A.O and the submissions made by the A.R. A perusal of assessment order indicates the contradiction of the stand taken by the A.O. One of the reasons for rejecting the claim of the appellant is that she could not produce the total bills to substantiate that jewellery was acquired out of her disclosed income. In the same order, the A.O. confirms that bills of Rs.9,58,411/- were also not found from the premises of the appellant but were subsequently found on the basis of enquiries conducted by him from Jewellers. In other words, these bills were not provided by the appellant but were found by the A.O on the basis of names of jewelers provided by the appellant. As mentioned by the appellant she has told the names of four jewelers out of her memory. Often the sales made by jewelers are cash sales in which no name of the buyer is mentioned. I fail to understand how the absence of bills regarding purchase of jewellery can be made a basis for treating the jewellery as unexplained when the source of purchase of jewellery is duly explained. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t accepted by the A.O who decided to proceed with the matter on merits and passed the orders which compelled the assessee to file the appeal before the CIT(A). It was also submitted that once CIT(A) returned the finding that the source of entire jewellery was explained, merely because such an offer was made before the Assessing Officer, could not be held against the assessee. The ITAT, by dismissing the appeal of the revenue accepted the findings of the CIT(A) to the effect that the entire source of jewellery was duly and satisfactorily explained by the assessee. However, the Tribunal also proceeded to retain the addition of Rs.4,59,200/- on the ground that this was the amount offered by the assessee herself. At this stage, we may point out that in so far as revenue is concerned, it has not challenged the order of the Tribunal. In these circumstances, the only question of law which requires consideration, as framed above, is as to whether such addition of Rs.4,59,200/- could be made despite the fact that the source of entire jewellery has been satisfactorily explained, only on the ground that the assessee/appellant herself had offered this amount for taxation along with the return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation in respect of the entire jewellery valued at Rs.22,96,000/-. Once the assessee was able to duly explain the source of purchase of the entire disputed jewellery, we are of the opinion that the CIT(A) committed an error in falling back on the conditional offer given by the assessee before the A.O. along with the return in Form 2B. From the language of the offer given, it is clear that it was a without prejudice offer and was not in the nature of "admission on the basis of which she could be fastened with the liability which otherwise did not exceed". Provision of Section 23 of the Indian Evidence Act would clearly be applicable in such a case. This section reads as under:- "23. Admission in civil cases, when relevant- In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given." 13. That apart, it is trite law that the principle of estoppels has no application in the Income Tax Act. Exactly, this very issue came up for consideration before this court in Commissioner of Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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