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TMI Blog2014 (9) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal is correct in law in not considering the validity of the search assessment framed even after the repeated submission of lack of seized materials indicating as well as justifying the quantification of the excess jewellery by the search party as well as by the respondent in the assessment framed in consequence to the said search? 2.Whether the Tribunal is correct in law in sustaining the addition of the value of excess jewellery quantified as unexplained investment presumably in terms of Section 69 of the Act even though there was no indication in the assessment order passed by the respondent on the method of such quantification for making the assessment? 3.Whether the Tribunal is correct in law in not considering the binding nature o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly after accounting for all jewellery for which explanation has been offered by the assessees and accepted by the Department and, therefore, the assessment orders warrant no interference. 2.3. Challenging the orders passed by the Commissioner of Income Tax (Appeals), the assessees appealed to the Tribunal, which confirmed the orders passed by the Commissioner of Income Tax (Appeals). 2.4. Aggrieved by the said order, the present appeals are filed raising the substantial questions of law, referred supra. 3. The short question that arises for consideration is whether the assessees in both the cases are entitled to plead that the quantum of excess gold jewellery seized does not warrant inclusion in the income of the assessees as unexplained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other circumstances of the case, decide to exclude a larger quantity of jewellery and ornaments from seizure. This should be reported to the Director of Income-Tax/Commissioner authorising the search at the time of furnishing the search report. (iv)In all cases, a detailed inventory of the jewellery and ornaments found must be prepared to be used for assessment purposes." 6. The plea of the assessees is that considering the number of family members [{T.C.(A) No.387 of 2014 - 2 Sons, 1 Daughter and his spouse} and {T.C.(A) No.388 of 2014 - Spouse and children}], the social status of the assesses and the custom and practices of the community to which the family belongs, the jewellery ought not to have been seized by the Department. 7. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other circumstances of the case, decide to exclude a larger quantity of jewellery and ornaments from seizure. We find that this is only an enabling provision and will be applicable if there are circumstances to come to the conclusion that the status of the family and custom and practices of the community require holding of such jewellery. In this case, the assssees have not given any such explanation either before the Original Authority or the First Appellate Authority or the Tribunal. We find the Board Instruction is of no avail to the assesses, except to the extent that the assessees families consist of large number of members and, therefore, there is an element of justification for the excess jewellery in hand. 10. The Board Instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and circumstances of the case, no substantial question of law arises for consideration in these appeals. 12. However, considering the earnest plea made by Mr.S.Sridhar, learned counsel for the assesses that in view of the penalty proceedings there is a likelihood of initiation of prosecution, we observe that in case the assessees claim that in view of the the status of the family; the custom and practices of the community to which the family belongs; and the family size there is excess jewellery, the holding of such excess jewellery could be treated as bona fide holding by the family. If such a plea is made the assessees, the Department shall consider the same before initiation of prosecution proceedings, if any, and grant benefit to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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