Radha Kishan Soni vs Commissioner Of Income Tax And … on 12 May, 2005

Rajasthan High Court
Radha Kishan Soni vs Commissioner Of Income Tax And … on 12 May, 2005
Equivalent citations: (2005) 197 CTR Raj 34, 2005 277 ITR 56 Raj
Bench: Y Meena, J Goyal


JUDGMENT

1. The appeal was admitted in terms of the following question :

“Whether, on the facts and in the circumstances of the case, the Tribunal was justified in reversing order passed by the CIT(A) on account of addition made by the AO regarding seized gold ornaments in absence of Panchnama or valuation report, irrespective of the fact that Panchnama was prepared at the time of search on 7th Sept., 1989 ?”

2. A search was conducted in this case on 7th Sept., 1989, inter alia, jewellery weighing 382.5 gms. was found at the time of search. Before AO, the case of the assessee was that there are three ladies in the family and this jewellery belongs to them. The explanation was rejected and addition of Rs. 1,00,000 was made on account of unexplained investment in jewellery and precious stones.

3. In appeal before the CIT(A), the CIT(A) considering the status of the assessee found that the gold jewellery belonged to three ladies and addition on account of unexplained investment in gold jewellery was deleted. However, the CIT(A) has remitted the matter back for reconsideration of addition on account of precious stones found worth Rs. 53,500.

4. In appeal before the Tribunal, the Tribunal has reversed the finding of CIT(A) on the ground that no Panchnama of valuation report was brought on record, therefore, the deletion of addition by CIT(A) in this regard is bad and the Tribunal restored the addition made by the AO.

5. Heard learned counsel for the parties.

6. Whether the addition on account of unexplained investment in the gold jewellery and precious stones found is justified or not, the CIT(A) has considered this aspect in paras 3.6 and 3.7 of its order. For ready reference, it reads as under:

“3.6 The total gold ornaments and jewellery found is 382.5 grams which works out to 32.80 tolas. It needs to be mentioned that neither during the search operations nor during the assessment proceedings the statement of any of the ladies in regard to the jewellery belonging to them and source thereof was recorded. As already stated that after the assessee filed his explanation vide his letter dt. 3rd Sept., 1.992, the learned AO did not raise any further query and the assessment was completed thereafter. It has been held by the AO, while estimating the household expenses of the assessee that assessee had a decent standard of living. In other words, the assessee was from a good background. Moreover, to have a jewellery or ornaments weighing nearly 33 tolas between 3 ladies is not a substantial quantity as it works out to nearly 11 tolas per married lady. No material or evidence has been placed on record to show that the part or whole of gold ornaments/jewellery found are unaccounted. Besides, the learned AO has himself taken the value of unexplained investment at Rs. 1 lakh. Therefore, in my opinion, no addition was called for as well as the jewellery and gold ornaments found were concerned because, as already stated, the quantity of the jewellery or ornaments held by each lady had not been determined during the proceedings and secondly, no material or evidence has been placed on record to show that the said ornaments or jewellery were unexplained. The AO has not even specified in his impugned assessment order, the quantity of the gold jewellery/ornaments which is held to be unexplained and value thereof. The AO has made addition purely on ad hoc basis on surmise and conjecture which cannot be sustained in law. The value of the seized jewellery works out to Rs. 46,500, which would stand deleted from the addition made at Rs. 1 lakh.

3.7 The fact that the value of the seized gold ornaments works out to Rs. 46,500, it implies that the value of the stones weighing 100 grams had been taken at Rs. 53,500. The AO has not specified and clarified in his order as to at what rate the stones had been valued and what were the stones in question. It is noted from the letter dt. 3rd Sept., 1992 of the assessee, placed in the assessment record, that the assessee had stated that the value of stones was only of Rs. 3,000. It was further submitted, ‘these items are still lying with the Department and in case of any dispute as to its valuation, the same may be got valued by the Departmental valuer’. It was further submitted that the stones found were the assessee’s stock-in-trade. It has not been specified by the learned AO as to on what basis the value of the stones was determined at Rs. 53,500. There is merit and rationale in the submissions of the learned counsel of the assessee that in case the AO did not agree with the value of the stones asserted by the assessee, the AO should have exercised the option given by the assessee, i.e., to get the stones valued by an approved valuer. The action of the AO in taking the value at Rs. 53,500 without any basis is definitely arbitrary which cannot be sustained in law. In the circumstances, I have no other alternative but to restore the question of value of stones found to the file of the AO with the direction that the stones seized may be got valued through an approved valuer and thereafter, the value of the stones should be determined. Secondly, the AO should also pass a speaking order on the plea of the assessee that the stones found were part of his stock-in-trade or why the AO did not agree with the said submission/explanation of the assessee. Consequently, the addition of Rs. 53,50.0 is restored to the file of the AO with above directions for fresh consideration.”

7. Considering the status of the family of the assessee which has been discussed by the CIT(A), we see no justification in the order of the Tribunal and we are of the view that no addition should be made on account of gold jewellery, therefore, the addition of Rs. 46,500 has rightly been deleted by the CIT(A).

8. In view of these facts, we allow the appeal of the appellant holding that there is no justification for addition of Rs. 46,500 on account of unexplained investment in gold jewellery which was found during the course of search.

The appeal stands allowed.

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