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TMI Blog2022 (12) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... t no such statements were given at the time of the search cannot have any meaning in the present case. Hence, the occasion for requiring the assessee to substantiate its case relying on the statement recorded during the search would arise only if a relevant question is put to the assessee. The questions put to the assessee cannot be dictated to by the assessee and if in the statement recorded, certain facts subsequently repeatedly pleaded on record are not discussed, then absence of any discussion in the statement recorded of those facts by itself cannot be allowed to be given advantage to the Revenue justifying the ignoring of the repeated submission on record. The submission has to be dealt with facts on record. No such effort has been done. Also seen that repeatedly the argument on facts that the assessee's husband was the only child of late Shri Santosh Kumar Aggarwal and late Smt. Janak Aggarwal. The assessee as per record had been married for almost 29 years and Mrs. Janak Aggarwal died on 31.03.2010 i.e. just before the search period and Shri Santosh Aggarwal died on 21.05.2015. Thus, for this specific period, the benefit of 500 grams of jewellery in the hands of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s advanced on behalf of the assessee which are more or less reiteration of facts as argued before the AO as well as the CIT(A), it is appropriate to address the facts on record. A search seizure operation u/s. 132(1) of the Income Tax Act, 1961 was carried out on 21.03.2017 on the business and residential premises of M/s. S.K. Jewellers Group of Cases which included the assessee who is shown to be the proprietor of M/s. S.K. Jewellers. The subject matter of dispute pertains to the jewellery found at the residence of the assessee i.e. 16, Cecil Hotel, Opposite GPO, Ambala Cantt. and bank locker No. 9 in Bank of India, Ambala Cantt. The break-up of the jewellery is tabulated by the AO in para 4 as under: Sr. No. Premises Jewellery found (Value in Rs.) Jewellery Seized(Value to. Rs.) 1. Sh. Sanjay Aggarwal Prop.S.K. Jewellers, 16, Cecil Hotel, Opp. GPO. Staff Road, Ambala Cantt.(Residence cum business premise) 12.07 lakhs 2. Locker no. 9 in Bank of India, Near Ambala Filling Station, Ambala C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d diamonds. The AO had devised a new formula unsustainable in law wherein actual gold found was enhanced by 341.374 grams of gold to compensate for the diamond weight. 5.1. Such an action as per record has been canvassed to be contrary to the decision of the ITAT, Delhi in the case of KumKum Kanodia V. DCIT, New Delhi in ITA 5260/Del/2014 dated 20.11.2018. 5.2. Reliance was also placed on the CBDT Instruction No. 1916 dated 11.04.1994 for the proposition that the permissible limits prescribed requires that only gold weight was to be considered. Relying on the decisions of the ITAT, the order was assailed. 5.3. The assessee also canvassed that locker No. 9 maintained with the Bank of India was in the name of Shri Santosh Kumar Aggarwal and the assessee. It was explained that Shri Santosh Kumar Aggarwal was the late father-in-law of the assessee. The specific period covered in the assessment u/s. 153A, it was stated, was starting from 01.04.2010 to 31.03.2016. It was submitted that the mother-in-law of the assessee Mrs. Janak Aggarwal died on 31.03.2010 and after her death, her jewellery was held by her husband Shri Santosh Kumar Aggarwal, father-in-law of the assessee which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of search, gold jewellery weighing 538.33 gm existed as per books of Shri Sanjay Aggarwal, Proprietor M/s. S.K. Jewellers, husband of the assessee. It has been argued that no credit for the same has been allowed to the assessee. Reliance was also placed upon CBDT Circular No. 14(XL-35) 5, dated 11.04.1955 to highlight that, 'Officers of the Department must not take advantage of ignorance of an assessee as to his rights. It is one of their duties to assist a taxpayer in every reasonable way, particularly in the matter of claiming and securing reliefs and in this regard the Officers should take the initiative in guiding a taxpayer where proceedings or other particulars before them indicate that some refund or relief is due to him. This attitude would, in the long run, benefit the Department for it would inspire confidence in him that he may be sure of getting a square deal from the department................... 5.9. The summary of the submissions advanced before the CIT(A) were tabulated as under: Particulars Gold Jewelry Total gold Jewelry Found 959.136 gms Jewe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TAT. 9. The Ld. AR carrying the Bench through the detailed submissions canvassed before the authorities below has reiterated the submissions. Attention was invited to the synopsis of the submissions advanced which are placed at pages 1 to 3 of the Paper Book. Copy of the surrender letter was also referred to. Carrying the Bench through the submissions recorded in the respective orders, it was highlighted that the grievance is three fold: (a) the manner in which weight of stone/diamonds was converted to gold; (b) how the credit for the jewellery held by the late father-in-law who passed away during the specific period and on record, jewellery held by him and also his late wife who also passed away just before the search period on facts be denied; (c) the denial of credit of gold in the books of the assessee recorded. Specific attention was invited to the observations of the Co-ordinate Bench of the ITAT in the case of Kumkum Kanodia V. DCIT (supra) wherein addition made by the AO was deleted by the ITAT and on challenge by the Revenue, the Revenue's appeal was dismissed holding as under: 11. We have considered the rival arguments made by both sides and perused the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lery of 47.18 carat treating the same as not covered by the CBDT Instruction No. 1916 dated 11th April, 1994. We, therefore, set aside the order of the CIT(A) and direct the Assessing Officer to delete the addition. The grounds raised by the assessee are, accordingly, allowed. 10. The Ld. DR relied upon the respective orders of the ITAT. Accordingly, it was his submission that on facts, the relief in terms of the Board's Circular has already been granted. Copies of 'Panchnama' were shown by the Ld. CIT-DR showing that search has been conducted on the business premises of the assessee and also the residence of the assessee and subsequently locker No. 9 maintained with the Bank of India in the name of Shri Santosh Aggarwal and Smt. Sudha Aggarwal. It was his vehement stand that in the statement recorded, the assessee has nowhere stated that this was the stock of the assessee. The relevant extracts from the statement recorded has been reproduced in the assessment order itself which has been relied upon by the AO also. It was his submission that the responses of the assessee are self-explicit. Accordingly, it was his submission that the addition may be sustained. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns: The jewellery belongs to my wife Mrs. Sudha Aggarwal which is lying at my residence as Stridhan of my wife. Statement of Smt. Sudha Aggarwal during course of search recorded u/s. 132(4) of the I.T. Act, 1961 on 26.05.2017 at the time of locker operation:- 'Q. During the physical operation of locker No. 9, Bank of India, Ambala Cantt. Gold jewellery weighing 791.648 gms value Rs. 25,19,942/- and diamond jewellery weighing 49.07 Karrat........Please explain the source of acquisition of the same. Ans. The above said jewellery found from the locker belongs to our parents, family members and are children. The above said jewellery is inherited and acquired over a period of time from the tax paid income. 12. It is also seen that repeatedly the argument on facts that the assessee's husband was the only child of late Shri Santosh Kumar Aggarwal and late Smt. Janak Aggarwal. The assessee as per record had been married for almost 29 years and Mrs. Janak Aggarwal died on 31.03.2010 i.e. just before the search period and Shri Santosh Aggarwal died on 21.05.2015. Thus, for this specific period, the benefit of 500 grams of jewellery in the hands of Shri Sant ..... 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