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TMI Blog2020 (8) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... epared by the Departmental Valuer, is one of the document prepared under statutory rules and regulations and cannot be brushed aside. Total weight of the jewellery found and seized during the course of the search in calendar year 2007 is more than the jewellery found during the current search, and therefore respectfully following the decision of the Tribunal in the case of Rajkumar B Agarwal [ 2019 (1) TMI 687 - ITAT PUNE] no addition of unexplained jewellery under section 69A of the Act is warranted in the case of the assessee just due to minor mismatch in the items of the jewellery found in the current search and the jewellery found during the search on 18/02/2007.- Decided in favour of assessee. Deduction for maintenance charges paid in respect of flat let out - HELD THAT:- Since the assessee has already added back the maintenance expenses under the head profit and gains of the business and profession and this amount has not been claimed under that income from house property, the contention of the Assessing Officer that the assessee has claimed flat maintenance expenses in the profit and loss account is factually incorrect and thus no addition can be made on this grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs under section 132A of the Income-tax Act, 1961 (in short the Act ) on 12/04/2016. During the course of search proceedings, certain jewelry was found from the premises of the assessee and out of which part of the jewelry was seized by the Income-tax Department. For the year under consideration, the assessee filed return of income on 30/01/2018, declaring income of ₹8,62,030/-. The income declared include rental income from house property. Notice under section 143(2) of the Act was issued and complied with. During assessment proceeding, the Assessing Officer observed that building maintenance charges of ₹ 34,070/- was claimed by the assessee under the head profit and gain of the business and profession , which being not allowed under law, he thus made addition for the same. Further, he made addition of ₹17,49,941/-for unexplained jewelry in terms of section 69A of the Act read with section 115BBE of the Act. Aggrieved, the assessee filed appeal before the Ld. CIT(A), who partly allowed the appeal. 2.1 Aggrieved with the additions sustained by the Learned CIT(A), the assessee is in appeal before the Tribunal raising the grounds as reproduced above. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee also filed locker opening record, which were obtained from the bank, and submitted that the locker was lastly operated on 29/10/2015 (assessment year 2016-17) and therefore jewellery existed in the locker as on 29/10/2015. The assessee, before the learned CIT(A) submitted that in view of the locker opening record, the jewelry cannot be examined in assessment year 2017-18 and it is for this reason the addition in dispute needed to be quashed. According to Learned CIT(A), the locker opening record was not submitted before the Assessing Officer and it was submitted before him for the first time, therefore it was in the nature of the additional evidence and the assessee was required to make a request for admitting additional evidences in terms of rule 46A of the Income-tax Rules,1962. The Learned CIT(A) observed that the assessee had not filed any application for admitting additional evidence. In view of the observations made in the impugned order and the CBDT Instruction No. 1961 dated 11/05/1994, the learned CIT(A) allowed credit of total jewellery of 500 gms in the hands of the assessee as explained and balance jewellery (447.074 gms) worth ₹ 12,53,121/- was upheld as un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -wishers on various occasions. In support of the claim the Learned Counsel of assessee relied on the decision in the case of Ashok Chaddha Vs ITO (2012) 69 DTR (DEL) 82. With regard to this contention of the Learned Counsel of the assessee, the learned DR submitted that credit of 500 gms has already been allowed to the assessee in view of the CBDT Circular (supra) to cover the jewellery received on account of the gifts from relatives friends etc. 4.7 The third contention which has been taken by the Learned Counsel of the assessee in respect of the addition is that the bank locker was last operated on 29/10/2015 (which falls in assessment year 2016-17) and therefore under no circumstances the said jewelry can be considered and assessed in assessment year 2017-18. The assessee has filed locker operation history before us, which is available on page 19 and 20 of the paperbook. 4.8 The learned Counsel of the assessee also raised the issue that section 115BBE of the Act cannot be applied in the case of the assessee. He submitted that by way of the amendment dated 15/12/2016 in the section 115BBE of the Act, the rate of the tax on the income assessed under section 69A of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the jewelry articles, should not be allowed just because the jewellery weight found during search of 2007 is not supported by wealth tax returns. In the case of the assessee, the wealth of the assessee was less than the threshold amount of wealth liable to wealth tax and therefore the assessee did not file the wealth tax return. So if the wealth tax return is not filed by the assessee, then in our opinion the inventory of the jewelry found and seized during the course of the search in calendar year 2007 and valuation report of the same prepared by the Departmental Valuer, is one of the document prepared under statutory rules and regulations and cannot be brushed aside. It is undisputed that the total weight of the jewelry found and seized during the course of the search in calendar year 2007 is more than the jewelry found during the current search, and therefore respectfully following the decision of the Tribunal in the case of Rajkumar B Agarwal (supra), we hold that no addition of unexplained jewellery under section 69A of the Act is warranted in the case of the assessee just due to minor mismatch in the items of the jewellery found in the current search and the jewellery foun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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