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TMI Blog2018 (11) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... belonging to the assessee. The issue, we may clarify, is not if the assessee owns any jewellery, which she admittedly does, but as to what extent? This is as, apart from other family members, there are two ladies in the house who could also have streedhan or otherwise own the jewellery found. The allowance of a part relief by the Revenue in quantum proceedings on that ground is, again, without any basis in facts, and merely a guess work. The primary onus on the Revenue being not discharged, while jewellery to some extent accepted as being the assessee’s streedhan, no case for levy of penalty is, under the circumstances, made out. - Decided in favour of assessee. - I. T. A. No. 458/(Asr)/2017 - - - Dated:- 28-8-2018 - Sh. Sanjay Arora, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herwise), sustaining an addition of ₹ 5 lacs, which was not challenged further by the assessee. In penalty proceedings, initiated at the conclusion of the assessment proceedings, the assessee relied on the Board Instruction No. 1916 dated 11.05.1994, allowing 500 gm. (of gold jewellery) for each married lady. The same did not find favour with the AO as the said instruction was only for the purpose of regulating the seizure during search, and could not be interpreted to imply that jewellery to that extent is to be considered as explained. Penalty at 100% of the tax sought to be evaded working to ₹ 60,293, penalty was levied at ₹ 61,000/- which stood confirmed in first appeal, further adding that Explanation 5 to section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. The same could also include jewellery received as gift on the occasion of her marriage or other family festivals, on which again there is no information and, likewise, exclude that gifted by her. In other words, the assessee s explanation, without any supporting material and, in fact, without any contention to that effect, is no more than a bald claim/statement. The Revenue therefore has been, as stated in the penalty order itself, liberal in allowing credit for streedhan at ₹ 6 lacs. At the same time, without doubt, there is nothing to show that the jewellery found was from the assessee s room, i.e., her possession, for which we have also perused the material on record. There are two more ladies in the house to whom therefore j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee, even without specifying any particular jewellery, contending that found (and ascribed to her) as also including that belonging to the other two other ladies of the house. Further, in this regard, we may clarify; the ld. counsel during hearing contending that Explanation 5 to section 271(1)(c), alluded to by the ld. CIT(A), is not applicable as the search was after 31.05.2007, and even as observed during hearing, that would be wholly inconsequential as Explanation 5A , a pari materia provision, applicable to searches after 31.05.2007, would stand attracted, which in fact is more stringent than Explanation 5 . Being a part of the provision, it need not be specifically invoked, as clarified in K.P. Mathusudhanan v. CIT [2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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