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TMI Blog2017 (4) TMI 1185X X X X Extracts X X X X X X X X Extracts X X X X ..... n record any evidence to prove that assessee had made cash payment of ₹ 35 lacs instead of payment of payment by cheque as claimed by the assessee. - Decided against revenue Unexplained investment in silver articles - AO noted and accepted the assessee’s explanation that gifts of silver articles during social functions and occasions of birth of children etc are customary in Indian families - Held that:- It is not in dispute that these silver items especially given the nature of these items in terms of coin, trays, utencils, etc are generally given as gifts on various social and other family occasions/functions. However, in terms of reasonableness of such gifts which can be given or accepted, there cannot be any straight jacket formula. It all depends upon the facts and circumstances of each case. The onus is on the assessee to come out with the plausible explanation in this regard as the silver articles have been found in his possession. However, in absence of the same, the AO taking into consideration the social and financial standing of the family has arrived at 50% which we find just and proper. In light of above, the additions made by the AO is sustained and the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Project but as his share was only 10% in total cash investment of ₹ 71,13,000/- as noted on this paper, ₹ 7,13,000/- were retained and ₹ 23,26,667/- amount was refunded back in cash. He further stated that on back side of the same paper, there is noting of ₹ 73,10,000/- which is the amount invested by him and his family members by cheque in the project of Megha Realmart. 3.1 In course of assessment proceedings, assessee explained the individual figure noted on front side and back side of this paper. It was explained that the amount of ₹ 35 lacs noted on this paper was given by the assessee to M/s Megha Realmart Pvt. Ltd. by cheque but wrongly mentioned in the statement dated 21.12.2011 as cash investment. The relevant supporting papers were filed. It is further clarified that on this paper it is nowhere mentioned that ₹ 35 lacs is given in cash. The cash amount given was ₹ 23,26,667/- as noted on lower side of this paper out of which ₹ 7,13,000/- being 10% contribution in cash expenditure of ₹ 71,30,000/- is retained and balance amount of ₹ 16,13,667/- is received back. Therefore, simply on the basis of the statement b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 71.30 lacs in which assessee s share was ₹ 7.13 lacs. Against this, assessee has paid ₹ 23,26,667/- in cash. The source of this cash is explained to be out of ₹ 10.46 lacs withdrawal by Smt. Kanta Mehta, wife of assessee out of booking amount received in cash of ₹ 633 lacs in the project Rosewood Apartment of M/s Kiran Upasana Builders where she was a partner. M/s Kiran Upasana Builders have offered ₹ 633 lacs for tax in the settlement petition filed by it. Thus, the source of ₹ 23,26,667/- contributed by the assessee out of such amount is explained in support of which details of withdrawal made by the assessee/his wife from Kiran Upasana Builders and the ledger account of assessee in Megha Realmart Pvt. Ltd. where the amount of ₹ 23,26,667/- was deposited was filed. The AO has not taken any adverse view in respect of the cash contribution of ₹ 23,26,667/ noted on this paper. 3.4 It was further submitted that in statement dated 21-12-2011, the assessee was not confronted with all the figures noted on this paper but confronted with only some of the figures. This created a confusion in his mind and therefore assessee stated that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reby confirmed: On careful perusal of aforementioned seized documents, it is seen that against the figure of ₹ 35 lakhs, cheque amounts have been mentioned and so the break up amounts have also been mentioned on the back side of the seized documents which is also verifiable from the bank statements/books of accounts. On further perusal of ledger a/c submitted by the Ld AR it is also seen that the amount of ₹ 35 lacs was given by the assessee to M/s Megha Realmart Pvt Ltd. by cheque which is evident from the copy of ledger account of the assessee in the books of M/s Megha Realmart Pvt. Ltd. The Assessee has jgiven ₹ 35 lacs to M/s Megha Realmart Pvt Ltd. on 20.01.2011 by cheque out of which ₹ 25 lacs is transferred to his loan account and ₹ 10 lacs was adjusted against the share capital issued to the assessee. It is also a fact that for making this addition, AO has simply relied on the sworn statement only. To corroborate his findings, AO has also not brought on record any evidence to prove that assessee had made cash payment of ₹ 35 lacs instead of payment of payment by cheque as claimed by the assessee. In view of the facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted towards customary gifts. Further, there is no basis with the ld. CIT(A) to hold that silver articles of ₹ 1,50,000/- is unexplained. Hence, the lump sum addition confirmed by the Ld. CIT(A) without any basis deserves to the deleted. 4.4 The ld DR is heard who has relied on the order of the AO and submitted that 50% of silvery articles found during the course of search has already been allowed as reasonably attributed to customary gifts by the assessee. Therefore, there is no basis for any further relief provided by the ld CIT(A) and hence, the order of the AO be sustained. 4.5 We have heard the rival contentions and pursued the material available on record. Silver articles in terms of silver coins, silver grass and tray, and utencils weighing 8.620 kgs were found during the course of search operation. The AO noted and accepted the assessee s explanation that gifts of silver articles during social functions and occasions of birth of children etc are customary in Indian families. Regarding the quantum of such gifts, the AO noted that status and background in terms of social and financial parameters are to be taken into consideration and thereafter, held that 50% of si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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