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TMI Blog2016 (2) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... e Officer during investigation is neither given 'on oath' nor it is tested by Cross Examination. According to the law of evidence, such statement is not evidence of the fact stated therein and therefore, it is not considered as 'substantive evidence'. Thus we are of the view Assessing Officer was not justified in re-opening the assessment under section 148 of the Act. The assessee has given list of persons who have given shagun at the time of marriage of daughter of the assessee. This list contained the complete names and addresses and in some of the cases, their telephone number as well. The Assessing Officer, without making any enquiry from any of these persons who have given shagun to the assessee in the marriage of his daughter, has accepted the claim of assessee of receipt of shaguns in a sum of ₹ 14,13,000/-. The ld. CIT(Appeals), without giving any notice to the assessee for taking any adverse view in this regard, has restricted the benefit of shaguns in a sum of ₹ 6 lacs only. The order of the ld. CIT(Appeals) is, therefore, unjustified and cannot be sustained in law. It may also be noted here that Assessing Officer without bringing any evidence on recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and addition of ₹ 24,30,000/- (originally made by Assessing Officer at ₹ 55 lacs) on account of assessee allegedly gifting jewellery to the daughter of assessee at the time of her marriage. 2(i) The revenue is in appeal against the order of ld. CIT(Appeals) in allowing part relief on the additions made on the above grounds relating to marriage expenses and jewellery gifted at the time of marriage. 3. Briefly the facts of the case are that assessee had admitted in his statement given to Police Authorities on 09.12.2009 that he had spent approximately ₹ 45.50 lacs on the marriage of his daughter. In the assessment proceedings, assessee submitted that he had spent a sum of ₹ 10 lacs only on the marriage of his daughter besides jewellery and silver ornaments, value of which was ₹ 29-30 lacs at that time. It was also contended that assessee had received shagun of ₹ 14.13 lacs and list of 144 persons who had given shagun was also filed before the Assessing Officer. The Assessing Officer noted that the explanation of the assessee was not in consonance with the statement given to the police authorities. The Assessing Officer asked for the details ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch benefit of estimated past savings of ₹ 6 lacs, was given and benefit of ₹ 6 lacs of shaguns was also given and accordingly, addition was maintained in a sum of ₹ 8 lacs as against made by Assessing Officer of ₹ 10,87,000/- 7. The assessee also challenged the addition of ₹ 55 lacs on account of gift of jewellery to the daughter of the assessee. The assessee has stated in the FIR that jewellery of approximately 55 lacs was given in the marriage of his daughter. The Assessing Officer asked for the source. The assessee submitted a reply explaining therein that jewellery and silver utensils were given as per 'Will' dated 04.07.2002 of mother of the assessee and value of the jewellery was ₹ 29.3 lacs at the time of marriage. The Assessing Officer was not satisfied with the explanation of the assessee and noted that 'Will' is unregistered and no Letter of Administration has been obtained from the Court. It was also found that the fact of gift of entire jewellery to the grand daughter is unbelievable. The Assessing Officer, therefore, made addition of ₹ 55 lacs on account of unexplained jewellery given in the marriage of daugh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n reasons to believe on the basis of the information, therefore, issue of notice under section 148 was valid. The approval of JCIT was also taken. The ld. CIT(Appeals) also noted that the reasons were recorded on the basis of subjective satisfaction of the Assessing Officer, therefore, re-opening of the assessment was held to be valid and accordingly, dismissed this ground of appeal of the assessee. The appeal of the assessee was thus, partly allowed. 11. We have heard ld. Representatives of both the parties and perused the material on record. The ld. counsel for the assessee reiterated the submissions made before authorities below and referred to PB-66 which is the reasons recorded for re-opening of the assessment. PB-23 is the statement of the assessee to the Police Authorities under section 161 of the CPC dated 09.12.2009. PB-106 is the judgment of the High Court dated 12.12.2014 through which the matrimonial disputes were settled between the daughter of the assessee Ms. Megha Garg and her husband Shri Dheeraj Garg. He has referred to PB-33 which is FIR lodged by daughter of assessee on 21.11.2009 in which it was explained that in the marriage of complainant, the parents of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The registration of 'Will' is not required as per law and there is no requirement to get Letter of Administration or Probate. He has relied upon decision of Hon'ble Supreme Court in the case of Ishwar Deo Narain Singh v Kanta Devi AIR 1954 SC 280 in which it was held that There is nothing in law which requires the registration of 'Will' and 'Wills' are in a majority of cases, are not registered at all. To draw any inference against the genuineness of the 'Will' on the ground of its non registration appears to us to be wholly unwarranted . He has submitted that valuation report of the jewellery at the time of marriage was filed which support value of the jewellery as per 'Will' was ₹ 29.30 lacs. Family jewellery benefit has been correctly given by the ld. CIT(Appeals) of ₹ 6 lacs. He submitted that assessee did not give gift any jewellery to his daughter. The 'Will' is genuine and after death of testator of 'Will' the jewellery was handed over to his wife who in-turn at the time of marriage of his daughter has given the entire jewellery to his daughter. Therefore, addition of jewellery in the hands of assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Police on 09.12.2009, the assessee, Sh. Subhash Goyal has stated that he had incurred approximately ₹ 45-50 lakh on the marriage of his daughter. Besides, it has come to notice that the assessee has gifted jewellery worth ₹ 55 lakh to his daughter at the time of marriage which is stated to be as per Will of assessee's mother. The sources of expenditure incurred on marriage including cost of jewellery gifted by the assessee to his daughter are required to be verified. 1 have, therefore, reasons to believe that approximate income of ₹ 65 lakh (Rs. 10 lakh on marriage ceremony + ₹ 55 lakh on jewellery) has escaped income. In view of above, 1 have reasons to believe that by reason of omission on the part of assessee to disclose fully truly all material facts in the return of income, income to the tune of approximately ₹ 65 lakh has escaped assessment. Sd/- (Vinod K. Sharma) Income-tax Officer Ward 1(3), Chandigarh Dated 13.03.2011 According to the above reasons, the marriage of daughter of assessee Ms. Megha was solemnized on 18.11.2005. It is also noted in the reasons that in the statement given to the police on 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therm (India) P.Ltd. V M. Gopalan, DCIY 356 ITR 481 also observed that There should be tangible material to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief . It was held as under : (ii) That in two out of the four reasons recorded by the Assessing Officer for reopening the assessment, he stated that he needed to verify the claims to bad debts and the admissibility of the bad debts written off. For mere verification of the claim, power for reopening of assessment could not be exercised. The Assessing Officer in the guise of power to reopen an assessment cannot seek to undertake a fishing or rowing inquiry and seek to verify the claims as if it were a scrutiny assessment. 15. The sole reliance on the statement recorded by the police under section 161 of CrPC on 09.12.2009 itself was wrong because Section 161 of CrPC deals with examination of witness by police. It requires that the Investigation Officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case. The statement recorded by the Police Officer under section 161 of the CrPC is not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usband have settled the matrimonial dispute and some of the conditions for compromise were that parties will move for quashing of the FIR No. 482/2009 under section 498A/406 IPC pending at Jaipur and assessee's daughter will not object in the Court. Another was that the family members of the husband of the assessee will not pursue the case of income tax against the father of Ms. Megha Garg i.e. the assessee. The assessee has also intimated that the case in question in which the assessee has made a statement under section 161 CrPC which is referred to in the reasons for re-opening of the assessment, the trial is pending at Jaipur. It would, therefore, show that statement of the assessee under section 161 CrPC was not signed by him and could not be treated as substantive evidence and it was merely part of the investigation. It could be used only for a limited purpose under the law, therefore, reliance placed by the Assessing Officer on such a statement was wholly misplaced for the purpose of recording the reasons for re-opening of the assessment. The Assessing Officer also referred to the 'will' of mother of the assessee through which jewellery was given after death of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. Considering facts and circumstances above and discussion, we are of the view Assessing Officer was not justified in re-opening the assessment under section 148 of the Act. We, therefore, quash the re-opening of the assessment under section 148 of the Income Tax Act. Resultantly, orders of the authorities below are set aside and quashed. This ground of appeal of assessee is accordingly allowed. 19. As far as the additions on merits are concerned, the Assessing Officer estimated the marriage expenses in a sum of ₹ 25 lacs and has given a benefit of shaguns received by assessee of ₹ 14,13,000/- and made addition of ₹ 10,87,000/-. The assessee has given list of persons who have given shagun at the time of marriage of daughter of the assessee. This list contained the complete names and addresses and in some of the cases, their telephone number as well. The Assessing Officer, without making any enquiry from any of these persons who have given shagun to the assessee in the marriage of his daughter, has accepted the claim of assessee of receipt of shaguns in a sum of ₹ 14,13,000/-. The ld. CIT(Appeals), without giving any notice to the assessee for taking any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om them of marriage expenses. No evidence has been brought on record to support the estimate of marriage expenses. No supporting evidences have been brought on record to prove to what extent marriage expenses were incurred by assessee in the marriage. Therefore, it is case where estimate of marriage expenses have been made without any basis or evidence or material on record. May be the assessee has not filed the complete details according to the Assessing Officer but it was the duty of the Assessing Officer to make a reasonable estimate on marriage expenses based on the evidence and material on record. In the absence of anything on record, ld. counsel for the assessee is justified in contending that marriage expenses have been estimated merely on surmises and conjectures. Thus, there is no basis to sustain the orders of authorities below for estimating marriage expenses in a sum of ₹ 20/25 lacs. The ld. CIT(Appeals) gave a benefit of estimated past savings and contributions made by the family members of ₹ 6 lacs for the purpose of restricting part addition. If the same amount is added to shagun received by assessee in a sum of ₹ 14,13,000/-, no addition of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar and Shri K.K.Gupta, Advocate. It was also attested before Notary Public. Copy of the 'Will' is filed at page 42 along with translated copy in which Smt. Sheela Devi has made 'will' of her entire jewellery and silver utensils in favour of Ms. Megha, daughter of the assessee. It is stated in the 'will' that she will remain owner of the ornaments and silver utensils and after her death, all the ornaments and silver utensils will be given to her granddaughter Ms. Megha. Upto the marriage of Ms. Megha, all the ornaments and silver utensils will remain with Smt. Anju and in the marriage of Ms. Megha, all these ornaments will be used by Smt. Anju according to her wish. The testator Smt. Sheela Devi expired on 15.05.2003. Thus, according to the 'will' of Smt. Sheela Devi, Ms. Megha became owner of all the jewellery and silver utensils. These ornaments thus, came in possession of Ms. Megha according to the 'Will' and would pertain to assessment year 2004-05. May be that her mother on account of custodian of the ornaments and silver utensils have given the physical custody to Ms. Megha at the time of her marriage on 18.11.2005 but she became rightfu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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