TMI Blog1997 (11) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... can be made in the year under appeal inasmuch as the jewellery was admittedly declared in her wealth-tax returns for the assessment years 1981-82 to 1986-87 which was accepted as such. 5. That the ld. CIT(A) has further erred in upholding the addition of Rs. 1,000 on account of the value of Gold - Tax telephone which was explained to have been received as a gift and as such, no such addition is warranted and the same ought to have been deleted in full. 6. That the ld. CIT(A) has further erred in not allowing the ground of disallowance of part of the generator expenses for the alleged personal use of the same for the appellant's residence which is again arbitrary and unjustified. 2. With regard to ground No. 1, the ld. counsel for the assessee submitted that the assessee as well as her husband both are practising doctors. There was a search in their premises on 16-10-1986 when consumable stores and medicines were found valuing at Rs. 8,500. The explanation of the assessee was that she as well as her husband have not been showing any stocks of consumable stores/medicines either as an opening stock or closing stock and these were debited in the books as and when these were purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 6,718 and the Assessing Officer disallowed a sum of Rs. 1,344 at 1/5th for personal use. On appeal, the ld. CIT(A) reduced the disallowance to Rs. 1,000. After hearing the parties to the dispute, we are of the opinion that the order of the CIT(A) requires no interference as the personal use cannot be denied and disallowance cannot be called excessive. This ground is dismissed. 5. Ground Nos. 3 and 4 relate to the action of the Assessing Officer which has been upheld by the CIT(A) in making an addition of Rs. 51,600 on account of alleged unexplained investment in the acquisition of jewellery. At the time of search, 582 gms. of jewellery was found details of which are as under:— jewellery found at the residence 296 gms. jewellery found in locker 286 gms. ----------- 582 gms. The assessee has explained that 485 gms. of jewellery belongs to her which she received at the time of her marriage either from her parents or in-laws. It was stated that the jewellery has been shown in the wealth-tax return for the assessment year 1980-81 and subsequent years which has been filed under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for accepting only a part of the jewellery belonging to the assessee as having been received at the time of marriage and making the addition of Rs. 51,600 which should be deleted. 7. Smt. Parneet Mehal, the ld. D.R., supported the order of the CIT(A) and further submitted that since the factum of assessee having jewellery was found only at the time of search, i.e. on 16-10-86, the presumption is that it was acquired in the assessment year under consideration and since the assessee has no satisfactory explanation, the departmental authorities were more than reasonable in allowing benefit of 300 gms. to the assessee and have rightly added the value of 286 gms. as unexplained investment by the assessee in the assessment year under consideration. 8. We have considered the rival submissions. It is undisputed that the wealth-tax returns were filed by the assessee on 30-9-1986 which date is prior to the date of search. The total jewellery found was 585 gms. out of which 15 gms. were stated to be belonging to her husband and 72 gms. to assessee's children and 485 gms. are stated to be belonging to the assessee. The value of 485 gms. has been duly declared by the assessee in the wea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t no evidence has been furnished by the assessee to support the contention that she has received this telephone as a gift. She accordingly submitted that the departmental authorities were justified in taxing the same as assessee's income. 10. We have considered the rival submissions and gone through the orders passed by the Assessing Officer as well as the CIT(A). The assessee has not brought any evidence on record to support the contention that the digital telephone gold-tax was received by her as a gift and as such we are of the opinion that the departmental authorities were justified in making the disputed addition. Even assuming that it was actually received from a patient even then it will be as a payment in kind for professional services rendered by the assessee and its value ought to have been included in the professional receipts which was not done. Accordingly, we will uphold the addition of Rs. 1,000 made by departmental authorities. 11. Ground of appeal No. 6 was not pressed by the ld. counsel for the assessee which is dismissed as such. 12. In the result, appeal filed by the assessee is partly allowed. Per Bedi - I have gone through the order proposed by my le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e manner she has, she is herself to blame for the extra wealth-tax which she may have paid for assessment years 1981-82 to 1986-87 in respect of the jewellery, the source of which has been held to be unexplained by ld. Assessing Officer. Regarding the quantum of jewellery which the appellant could have received at the time of her marriage, I agree with the estimate made by ld. Assessing Officer. The order of ld. Assessing Officer on this issue is accordingly confirmed." 4. In my opinion, the authorities below have dealt with the issue at length and have properly passed a valid and well-reasoned order on the issue. As no new material or evidence has been brought before us, in order to take a different view, the order of ld. first appellate authority deserves to be confirmed. It is confirmed and ground Nos. 3 and 4 fail. 5. In regard to other issues in the appeal, I do concur with the findings arrived at by my learned brother. ORDER UNDER SECTION 255(4) OF THE INCOME-TAX ACT, 1961 On a difference of opinion between the Members who heard this appeal, the following point of difference is referred to the Hon'ble President for the opinion of the Third Member:— "Whether, on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee, i.e. Dr. Datta, and the rest i.e., 72 gms. belonged to the assessee's children and which they had received on various ceremonial occasions as gifts from relatives. 3. The aforesaid submissions found favour with the Assessing Officer only in part as he accepted jewellery to the extent of 300 gms. as explained and the balance of 282 gms. was treated as having been acquired by the assessee out of her income from undisclosed sources leading to an addition of Rs. 51,600. On further appeal, the CIT(Appeals) upheld the action of the Assessing Officer. 4. Being aggrieved, the assessee came up in appeal before the Tribunal and insofar as the addition of Rs. 51,600 was concerned, the case of the assessee was to the effect that returns of wealth for assessment year 1981-82 onwards had been filed on 30th Sept., 1986, that being a date prior to the date of search and these had been accepted by the Assessing Officer under section 16(3). It was reiterated that 495 gms. of jewellery belonged to the assessee as having been acquired at the time of her marriage and the balance 15 gms. belonged to her husband and 72 gms. to the children, the same having been received as gifts from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... untant Member deleted the addition of Rs. 51,600. 7. The ld. Judicial Member passed a separate order insofar as the addition of Rs. 51,600 was concerned and vide para 3 of the dissenting order, he confirmed the view of the CIT (Appeals) from whose order he has reproduced relevant paras, i.e., 5.2 and 5.3. According to the ld. Judicial Member, the authorities below had, dealt with the issue at length and had passed valid and well-reasoned orders. According to him, no new material or evidence had been placed on record before the Tribunal in order to take a different view. He, therefore, confirmed the addition of Rs. 51,600. 8. Before me, the ld. counsel for the appellant vehemently supported the order of the ld. Accountant Member reiterating the various arguments advanced earlier before the Tribunal and which have been already summarised by me in the earlier part of my order. On a specific query from the Bench, the ld. counsel stated that the two orders of assessment under the Wealth-tax Act, i.e. for assessment years 1981-82 and 1982-83, wherein the jewellery to the extent of 495 gms. had been accepted in the case of the assessee, had become final as till date no action had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment was concerned. There can be no two opinions on this line of argument but if that be so, then the relevant assessment year in which the addition should have been made would have been the assessment year 1981-82 and not 1987-88 as has been done in the present case. The department has also blown hot and cold since even after expressing such a view at the level of the Assessing Officer and the CWT (Appeals), 300 gms. of jewellery has been accepted and it is only the balance which has been added. Even the CWT (Appeals) in his order, which has been confirmed by the ld. Judicial Member, has laid undue stress on the Amnesty Scheme observing that the assessee should have also declared corresponding amounts by filing returns under the Income-tax Act overlooking the fact that in case the returns were not accepted as having been filed under the Amnesty Scheme, then these would become returns filed otherwise and required to be processed by the WTO in accordance with law and which has been so done. 11. The ld. Accountant Member has taken due note of the system prevailing in our society where it is customary for lady-assessees to have received jewellery at the time of their marriage fro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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