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TMI Blog2013 (8) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... odh/2011 - - - Dated:- 13-5-2013 - Shri Hari Om Maratha And Shri N. K. Saini,JJ. For the Appellant : Shri Rajendra Jain For the Respondents : Shri Subash Chandra - DR ORDER Per Hari Om Maratha: J.M. All the above-captioned appeals pertaining to the same assessee were heard together and, therefore, they are being decided by a common order for the sake of convenience and brevity. ITA No. 299/JU/2011 [A.Y. 2007-08] 2. This appeal of the assessee is directed against the order of the ld. CIT(A), Jodhpur dated 06.05.2011 for A.Y. 2007-08. 3. Following grounds have been raised in this appeal: "1. That the order u/s 250 dated 6.5.2011 passed by the ld. CIT(A) in the case of the assessee for A.Y. 2007-08 is bad in law and on facts. "2. That the ld. CIT(A, on the facts and circumstances of the case erred in issuing direction to assess the alleged investment worth Rs. 3,00,00,000/- in purchase of beetel nuts u/s 69 of the Act on the basis of Exhibit 3 pages 33 and 43 to 47 seized from the premises of the assessee in the hands of DTI even if it was satisfactorily explained to him and the income comprised therein belongs to the assessee and has been surrendered in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermined by the DRI in the hands of DTI. The remaining payment worth Rs. 28,50,726/- was assessable in the A.Y. 2008-09 in the hands of DTI. The A.O. made protective assessment of Rs. 2.5 crores in the hands of Shri Nand Kishore Malani who had surrendered this income in his hands on the basis of actual payment. The A.O. also made protective assessment on this amount in the hands of Dinesh Pouches whose name was written on the fax message seized during search proceedings. This income was surrendered by Shri Nand Kishore Malani as business income but the A.O. chose to make protective assessment in his hands by assessing this income as income from other sources for A.Y. 2008-09 in this assessee's case and in A.Y. 2005-06 in the case of DTI, similar issues came up for adjudication. The ld. CIT(A) has confirmed the action of the A.O. and now the assessee is in appeal. He has also confirmed this addition in the hands of DTI but did not exclude it from the hands of Shri Nand Kishore Malani even on protective basis, but from the hands of Dinesh Pouches protective assessment has been deleted. 7. We have heard the rival submissions and have carefully perused the entire material on record. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 007-08. Accordingly, we order to delete the substantive addition made in the hands of the assessee firm in both the years and therefore, cannot allow the grounds raised by the Revenue in this regard. Accordingly, ground Nos. 1 to 3 of the Revenue's appeals stand dismissed in both the assessment years." 8. Accordingly, we allow this ground of appeal in favour of the assessee by holding that this income has to be assessed in the hands of Shri Nand Kishore Malani on substantive basis. Accordingly, this ground is partly allowed. ITA Nos. 182 183/JU/2009 9. These are cross-appeals directed against the order of the ld. CIT(A) dated 28.2.2011 pertaining to A.Y 2008-09. 10. Ground Nos. 1 and 2 of assessee's appeal relating to confirmation of addition of Rs. 10218.00 on account of alleged long term capital gains on sale of silver have not been pressed by the ld. A.R. at the time of hearing. Therefore, these grounds are dismissed as not pressed. 11. Ground Nos. 3 and 4 of the assessee's appeal pertain to surrendered income by Shri N.K. Malani whose facts are detailed while deciding the case for A.Y. 2007-08 as above. The revenue has raised Ground Nos. 1 and 2 which are correlated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar arguments were made but he has also confirmed this addition. 15. Before us, it was argued with the help of Board Instruction No. 1916 dated 11.5.1994, which, according to the Hon'ble Jurisdictional High Court has been explained as that the assessee and his family members are entitled for exempt of gold jewellery in view of this Instruction which permits exclusion of 100 gms qua each male member and 250 gms towards each unmarried lady which cannot be treated as undisclosed income and its value has to be reduced. 16. On the other hand, the ld. D.R. has stated that this Circular does not intend to exclude the mentioned amount of jewellery as explained if ipso facto but it refers only to seizure of that gold jewellery from the body of persons searched. We have examined this issue and have found that the courts are taking a different view and by and large, are treating the quantum of jewellery mentioned in this instruction as explained and in this regard, decision of Jurisdictional High Court in the case of CIT Vs. Kailash Chand Sharma [2005] 198 CTR [Raj] 201, copy of which has been filed on record, is relevant. We give the benefit of this Instruction in that manner and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT, DR is that the details filed before the ld. CIT(A) were not subject to verification by the A.O. 22. After examining the arguments from both the sides we have found that the ld. CIT(A) has given detailed finding on this issue. The assessee has not produced any fresh evidence before the ld. CIT(A) but has given only calculation to explain his contention only. Therefore, we do not find any infirmity in the finding of the ld. CIT(A) given in para 8.5 and 8.6 of his order at pages 20 to 53 for the sake fo ready reference and to understand the methodology leading as to how he has arrived at his decision it would be apt to extract para 8.5 to 8.6 of the ld. CIT(A)'s order. We extract the same as below:- "8.5 Coming back to the original issue discussed in para 8.3 and in view of the facts therein, it is clear that the A.O. was not justified in taking the closing balance of the cash of the group available at the business premises and ignoring the availability of the total unaccounted cash as per the cash sheet. However, on the other hand, the excess cash so shown by the ld. A.R. at Rs. 1,38,19,527/- is also not acceptable in view of the fact that the ld. A.R. of the appellant has d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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