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TMI Blog2021 (10) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... vant time was staying elsewhere and not at her parental property. Under these circumstances, the affidavit of Shikha David stating that jewellery weighing 468.260gms which was kept by her in locker of her sister-in- law for safe custody cannot be brushed aside, especially when the entire family doesn t have any other locker. Affidavit of the husband and sister-in-law of the assessee stating that jewellery weighing 442.344gms belonging to their late mother Mrs. Sobha David i.e. mother-in-law of the assessee was rejected by the learned CIT(A) on the ground that there is no credible or reliable documentary evidence - there cannot be any credible or reliable evidence except the affidavit of the children of the deceased person in such cases. Although, it may not be accepted in toto however the same also cannot be rejected in toto . Therefore, considering the CBDT instruction/circular 1916 dated 11.05.1996 if the benefit of 500gms of every married woman, 250gms for unmarried woman and 100gms jewellery for every male member of the family is allowed then entire jewellery found from the locker stands explained. - Decided in favour of assessee. - ITA No.9098/DEL/2019 - - - Dated:- 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee and her family members namely, Sh. Shail Anand, husband of the assessee, Tarush Anand minor son, Ms. Sikha David, sister-in-law and late Sobha David, mother-in-law. Referring to the CBDT Circular No.1916 dated 11.05.1994 which states that 500 gm jewellery for every married lady and 100 gms for every male member may not be seized, it was argued that the total jewellery found from the locker is 1302.698 gms which is less than the prescribed limit of 1700 gms allowable in the instant case as per CBDT instruction should be treated as explained. It was argued that jewellery of 442.344gms belong to Late Shobha David, motherin- law of the assessee who had kept the said jewellery in the safe custody of the assessee. However, she has died prior to the date of search. It was also submitted that jewellery of 468.260 gms of Smt. Sikha David, who is unmarried sister-in-law of the assessee, was also kept in the locker for safe custody since the whole family has only one locker. Affidavit of Ms. Sikha David was already filed before the AO regarding the ownership of the said jewellery. It was argued that remaining jewellery belongs to the assessee, her husband and minor son. So far as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e locker operation. In response to these queries the appellant replied *No' when she was asked whether she wanted to say anything in this regard. No claim of jewellery belonging to her sister-in-law Ms. Shikha David was made in the statement recorded of the appellant on 29.11.2016 during the locker operation. In the absence of any such claim made by the appellant during the locker operation, subsequent claim of 468.26 gms. of jewellery belonging to her sister-in-law Ms. Shikha David is held to be unacceptable as the claim has been ostensibly made to explain the source of sei/ed jew ellery by including one more member in the family to get benefit of CBDT Instruction No. 1916. Further claim of 442.344 gms. of jewellery belonging to Late Smt. Shobha David, mother-in-law of the appellant is also not acceptable as such claim is not supported by creditable and reliable documentary evidences. Although in response to Question No. 9 in statement recorded on 29.11.2016 during locker operation the appellant explained source of jewellery to be from wedding, gifts received from relatives for her son and some jewellery received from mother-in-law. However, at that time, the appellant in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestment in jewellery. iv. That the Ld. CIT(A) and the Ld. AO has erred in law as well as on facts by ignoring the CBDT Instruction No.1916 dated 11.05.1994 and treating jewellery as unexplained investment. v. That the Ld. CIT(A) and the Ld. AO has erred in law as well as on facts by ignoring that the jewellery found belonged to all the members of the family and not solely to the appellant. vi. That the Ld. CIT(A) and the Ld. AO has erred in law as well as on facts by initiating the penalty proceeding u/s 271AAB(1)(c) of the Income Tax Act, 1961. vii. That the CIT(a) has erred in law as well as on facts by confirming the charging of interest u/s 234A/B/C/D of the Income Tax Act, 1961 . 7. The learned counsel for the assessee strongly challenged the order of the learned CIT(A) in sustaining the addition made by the Assessing Officer. The learned Counsel for the assessee filed the following details:- Name Relation Limit as per instruction Quantity of Jewellery found pertaining to family members Shail Anand Husband 100gms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble High Court has accepted the explanation of the assessee that the gold jewellery acquired through gifts made by relatives and other family members over a long period of time, is in keeping with prevailing customs and habits. 8.2. Referring to the decision of the Hon ble Delhi High Court in the case of Ashok Chadha vs ITO, in ITA No.274/2011, order dated 05/07/2011, he submitted that Hon ble High Court in the said decision has held that it is a normal custom of woman to receive jewellery in the form of stree dhan or on other occasions such as birth of child etc. It was held that when the value of the jewellery was not substantial, the addition made by the Assessing Officer and upheld by the learned CIT(A) as well as by the Tribunal is not justified. 8.3. Referring to the decision of the Co-ordinate Bench of the Tribunal in the case of Suneela Soni vs DCIT vide ITA No.5259/Del/2017, order dated 16.03.2018 for A.Y. 2011-12, he drew the attention of the Bench to the finding of the Tribunal and submitted that after considering the above decision and various other decisions, the Tribunal has deleted the addition made by the Assessing Officer on account of unexplained jeweller ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the address of Ms. Shikha David, the unmarried sister-in-law of the assessee is the same as that of the assessee has not been controverted. Merely because the husband of the assessee did not mention the name of Ms. Shikha David in his statement recorded u/s 132(4) in my opinion cannot be a ground to disregard the contention of the assessee that Ms. Shikha David was staying with her in the house belonging to her mother Shikha David who is the mother-in-law of the assessee. There is no evidence on record brought by the Revenue that Ms. Shikha David who is unmarried at the relevant time was staying elsewhere and not at her parental property. Under these circumstances, the affidavit of Shikha David stating that jewellery weighing 468.260gms which was kept by her in locker of her sister-in- law for safe custody cannot be brushed aside, especially when the entire family doesn t have any other locker. 12. Similarly, I find the affidavit of the husband and sister-in-law of the assessee stating that jewellery weighing 442.344gms belonging to their late mother Mrs. Sobha David i.e. mother-in-law of the assessee was rejected by the learned CIT(A) on the ground that there is no credi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found but not seized; report of valuation of jewellery. I find that AO has made the addition of ₹ 10,65,312.00 on account of purported unexplained jewelery claimed by the assessee without appreciating the fact that the jewelery found during the course of search and seizure operations was from the locker held by the father in law and husband of the assessee and hence the addition in the hands of the assessee is uncalled for. It was noted that jewellery found from the joint lockers was explained to be belonging to Late mother in law of the assessee Smt. Sarita Soni, however, the AO has rejected this contention. It is further noted that assessee s belongs to joint family and it is undisputed position that marriages of mother in law had taken place 53 years prior to the search and marriage of the assessee had taken place 20 years. I further note that the Hon ble High Court of Delhi in the case of Ashok Chadha vs. ITO reported in 14 taxmann.com 57 (Delhi.)/202 Taxmann 395 has accepted the jewellery of 906.60 grams in the case of married lady even without documentary evidence as the denying the explanation would tantamount to overlooking the realities of life by holding as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at she had given the jewellery in question to her daughter. She argued that it is a normal custom for a woman to receive jewellery in the form of marriage and other occasions such as birth of a child. The assessee had been married more than 25-30 years and acquisition of the jewellery of 906.900 grams could not be treated as excessive. 3. Learned Counsel for the respondent on the other hand relied upon the reasoning given by the authorities below. After considering the aforesaid submissions we are of the view that addition made is totally arbitrary and is not founded on any cogent basis or evidence. We have to keep in mind that the assessee was married for more than 25-30 years. The jewellery in question is not very substantial. 'The learned counsel for the appellant/assessee is correct in her submission that it is a normal custom for woman to receive jewellery in the form of streedhan or on other occasions such as birth of a child etc. Collecting jewellery of 906.900 grams by a woman in a married life of 25-30 years is not abnormal. Furthermore, there was no valid and/or proper yardstick adopted by the Assessing Officer to treat only 400 grams as reasonable allowance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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