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TMI Blog2015 (3) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. It is only on satisfaction of the aforesaid condition precedent would the benefit of ₹ 69,298/- be extended to the appellant resulting in reduction of total undisclosed income to the above extent. - Decided in favour of assessee for statistical purposes. Undisclosed jewelery - Unexplained investment under Section 69 - Held that:- Explanation offered by the respondentassessee to her possession of jewelery of ₹ 6.57 Lakhs was that the same was gifted to her on occasion of her marriage by her father and fatherinlaw. This explanation was not contested by the father and fatherinlaw. The authorities accepted the source of the jewelery in her possession. However, the Tribunal was not satisfied with the evidence produced by her father and father-in-law. This cannot be lead to be conclusion that the explanation offered by the respondent-assessee in respect of the jewelery in her possession is not satisfactory. In the normal course of human conduct, on occasions such as marriage the parents and parents-in-law of a bride do normally gift jewelery to the bride. On occasion such as this, it is not possible to expect the bride to ask for evidence of bills/invoices to suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Chapter XI-VB of the Act as undisclosed income of the assessee, when the sid sum represented jewelery that had been acquired by the assessee's father and father-in-law on the occasion of her marriage? 5. Whether on the facts and in the circumstances of the case, the Tribunal erred in upholding the assessment of ₹ 6,79,300/- in the hands of the assessee, when the said sum represented jewellery that had been acquired by the assessee's father and father-in-law, who both produced irrefutable material which admittedly showed that the same had been acquired by them from their disclosed income and wealth? 6. Whether on the facts and in the circumstances of the case, the Tribunal erred in upholding the assessment of ₹ 6,79,300/- in the hands of the assessee, without any material whatsoever and contrary to the material on record? 3. On 27th August 1996, a search was conducted upon the appellant. Consequent to the search, the respondent assessee was called upon to explain the jewelery of ₹ 12.69 Lakhs found in her possession and also unexplained personal expenditure. So far as the jewelery is concerned, the petitioner explained the source of its receipt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Mistry, learned Senior Counsel for the Appellant points out that Section 158BB of the Act has been amended by Finance Act, 2002 with retrospective effect from 1 July 1995 as relevant is as under: 158BB.(1) The undisclosed income of the block period shall be the aggregate of the total income of the previous years falling within the block period computed, [in accordance with the provisions of this Act, on the basis of evidence found as a result of search or requisition of books of account or other documents and such other materials or information as are available with the Assessing Officer and relatable to such evidence], as reduced by the aggregate of the total income, or as the case may be, as increased by the aggregate of the losses of such previous years, determined-, (a) .......... (b) .......... [(c) where the due date for filing a return of income has expired, but no return of income has been filed-, (A) on the basis of entries as recorded in the books of account and other documents maintained in the normal course on or before the date of the search or requision where such entries result in computation of loss for any previous year falling in the block per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod would interalia be reduced by aggregate of total income to the extent such income does not exceed the maximum amount not chargeable to tax for any previous year falling in the block period. However the same is subject to the condition that such income not chargeable to tax is determined on the basis of entries recorded in the books of account and other documents maintained in the normal course on or before the date of the search. It is only when the appellant is able to satisfy the condition precedent in Section 158BB(1)(c)(B) of the Act would such income be reduced in determining the aggregate of the total undisclosed income for the block period. In the absence of there being any such entries in the books and/or memorandum the appellant's case would fall under the substituted sub-section (ca) of Section 158BB(1) of the Act and no amount of income would be reduced on the above account to determine the aggregate of total undisclosed income. In the present facts, in view of the law as prevailing prior to the retrospective amendment of 2002 w.e.f. 1995, none of the authorities determined the issue whether the amount of ₹ 69,298/- was arrived at on the basis of entries i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he jewelery in her possession being gifts received on the occasion of her marriage from her father and father-in-law and the Assessing Officer does not dispute the same, it is then not open to him to disbelieve the explanation without any cogent reason. It is particularly emphasized that Section 69 of the Act gives discretion to the Assessing Officer to deem the same to be an income of assessee. However such discretion must be exercised taking into account the surrounding circumstances in support of the explanation offered by the respondentassessee. 13. As against the above, Mr. Suresh Kumar, learned Counsel for revenue submits that the Tribunal in impugned order has accepted the appellant-assessee's explanation resulting in the benefit of ₹ 4.59 Lakhs of jewelery to the appellant. However where there was no evidence to indicate that her father or father-in-law had purchased jewelery to be gifted to the appellant on the occasion of her marriage the benefit was not extended. Thus the Tribunal was justified in not accepting the explanation of the respondent-assessee. Therefore no interference is warranted. 14. We find that the explanation offered by the respondentasse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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