2019 (4) TMI 2139 - AT - Income Tax

Addition u/s. 69A - unexplained jewellery - DR while relying upon the order of AO submitted before us that cut and polished diamonds were purchased on credit from M/s Raj International Ltd and were given for re-making of jewellery to Bani Kumar Mondal - HELD THAT - We find that as far as diamond jewellery of Rs.44,40,906/- is concerned, the assessee had adduced all the relevant evidences before the AO in the form of valuation report of the assessee and Mrs. Kalawati Kothari (wife of the assessee) and the purchase bills of diamonds, remaking bills for conversion of diamonds into jewellery and payment details in support of its acquisition at the time of post search proceedings and even in the assessment proceedings. Whereas the AO has not brought any cogent or convincing material to point out any discrepancies therein. However, it was mere presumption on the part of AO to the effect that as to why the purchases were made on credit just prior to search and paid after the date of search. According to us, the presumption howsoever strong may be cannot take place of proof. Thus, according to the facts of the present case, the assessee has not led any corroborative evidence in order to point out any discrepancies in the documents filed by the assessee. We are also of the view that Section 69A cannot be invoked, just on the basis of presumptions, conjectures and surmises. Even no new facts or contrary judgments have been brought on record before us in order to controvert or rebut the findings so recorded by Ld CIT (A). Therefore, there are no reasons for us to interfere into or deviate from the findings recorded by the Ld. CIT (A). Resultantly, this ground raised by the revenue stands dismissed. Addition u/s. 69A - unexplained money - assessee has accepted in his statement under oath u/s 132(4) that there was no evidence present at the time of search action - CIT(A) deleted addition - HELD THAT - As considered the entire facts, documents and affidavit filed by Rakesh Kothari that the noting made in his diaries were his personal dealings and none of the family members was involved in his transactions. Shri Rakesh Kothari has already considered all these alleged transactions in his Application filed before the Hon'ble Settlement Commission u/s. 245C(1) - as perused the report and the orders passed by the Settlement Commission, wherein the unaccounted transactions have already been owned up by the him and considered in the additions/offer made in his hands. Therefore in this way, the undisclosed transactions have already been brought to tax by the department. The decision of the Hon'ble Supreme Court in the case of Common Cause 2017 (1) TMI 1164 - SUPREME COURT relied upon by the assessee is squarely applicable to the present facts and therefore we are also of the view that mere noting in diaries of a third person cannot be taken as admissible evidence u/s. 34 of the Indian Evidence Act. No new facts or contrary judgments have been brought on record before us in order to controvert or rebut the findings so recorded by CIT (A). Therefore, there are no reasons for us to interfere into or deviate from the findings recorded by the Ld. CIT (A). Hence, we are of the considered view that the findings so recorded by the Ld. CIT (A) are judicious and are well reasoned. Resultantly, this ground raised by the revenue stands dismissed.

Summary

Issues Involved:
1. Deletion of addition of Rs. 44,40,906/- under Section 69A on account of unexplained jewellery.
2. Deletion of addition of Rs. 54,000/- under Section 69A on account of unexplained money.

Detailed Analysis:

Issue 1: Deletion of Addition of Rs. 44,40,906/- under Section 69A on Account of Unexplained Jewellery

Facts and Arguments:
- The revenue challenged the order of the Commissioner of Income Tax (Appeals) [CIT(A)] deleting the addition of Rs. 44,40,906/- under Section 69A for unexplained jewellery.
- The Assessing Officer (AO) had made the addition based on the improbability of the assessee purchasing high-value jewellery just before a search and converting cut and polished diamonds into jewellery.
- The AO relied on the assessee's statement under oath under Section 132(4) and the Supreme Court decision in Sumati Dayal (2014) ITR 801 (SC).
- The assessee provided a complete reconciliation of the jewellery, including invoices from M/s Raj International Ltd and valuation reports of family members' wealth tax returns.
- The CIT(A) found that the assessee had furnished sufficient evidence, including purchase bills, remaking bills, and payment details, which the AO did not adequately disprove.

Judgment:
- The Tribunal upheld the CIT(A)'s decision, stating that the AO's presumptions could not replace concrete proof. The Tribunal emphasized that Section 69A could not be invoked based on mere presumptions and conjectures.
- The Tribunal found no new facts or contrary judgments to rebut the CIT(A)'s findings and concluded that the CIT(A)'s decision was judicious and well-reasoned.
- Resultantly, this ground raised by the revenue was dismissed.

Issue 2: Deletion of Addition of Rs. 54,000/- under Section 69A on Account of Unexplained Money

Facts and Arguments:
- The revenue contested the CIT(A)'s deletion of the addition of Rs. 54,000/- under Section 69A for unexplained money, arguing that the assessee had accepted under oath that there was no evidence present at the time of the search.
- The AO had linked the unexplained money to cash loan transactions noted in diaries belonging to Rakesh Kothari, which the AO presumed to be in lakhs.
- The assessee argued that the notings in the diaries were personal dealings of Rakesh Kothari, who had already included these transactions in his application before the Settlement Commission under Section 245C(1).
- The CIT(A) noted that the Settlement Commission had accepted these transactions as personal dealings of Rakesh Kothari and had already brought them to tax.

Judgment:
- The Tribunal agreed with the CIT(A) that the notings in the diaries could not be used as admissible evidence against the assessee under Section 34 of the Indian Evidence Act.
- The Tribunal found that the AO's presumptions were not supported by any corroborative evidence.
- The Tribunal upheld the CIT(A)'s findings, noting that the undisclosed transactions had already been taxed in the hands of Rakesh Kothari, and no new facts or judgments had been presented to challenge this.
- Consequently, this ground raised by the revenue was also dismissed.

Conclusion:
The Tribunal dismissed the appeal filed by the revenue, upholding the CIT(A)'s decisions on both issues. The Tribunal found the CIT(A)'s findings to be judicious and well-reasoned, with no new evidence or contrary judgments presented to warrant a deviation. The appeal was dismissed with no order as to cost.