9911796707
TMI Blog2023 (7) TMI 1502X X X X Extracts X X X X X X X X Extracts X X X X ..... documents like income tax return, wealth tax return pertaining to late Smt. Devki Devi Agrawal, who had executed the Will could not be made available by the assessee, without establishing the document of Will as an ingenuine document, is devoid of merits, therefore, the same cannot be accepted. AO while rejecting the explanation of the assessee could not bring upon any finding or material that can dislodge the contention of the assessee, in such circumstances, the evidence produced in the form of certain documents by the assessee, cannot be considered as an afterthought only because while the statement u/s. 132 of the Act during the search proceedings recorded the assessee was unable to come up with a spontaneous explanation for the same. CIT(A) has very thoughtfully considered the facts of the case and has offered a very reasonable finding against the observations of the AO. We, therefore, do not see any reason to interfere with the findings of the CIT(A) in deleting the addition made by the AO. Thus, we dismiss the appeal of the revenue. - SHRI RAVISH SOOD, JM SHRI ARUN KHODPIA, AM For the Assessee: Shri Sunil Kumar Agrawal Smt. Laxmi Sharma, Cas Flor the Revenue: Smt. Illa M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal grounds raised in the form of additional ground is admitted and taken on record. 5. Brief facts of the case are that the assessee is a resident having income from salary as director of Suraj Rolling Pvt. Ltd., bank interest interest received from Suraj Rolling Pvt. Ltd. and income from trading of agricultural products shown u/s 44AD of the Act. A search was conducted on the business/resident/factory premises of the assessee on 22.11.2018. The case of the assessee was previously assessed by the ITO-1,Raigarh, which was latter after giving a proper opportunity of being heard has been centralized with ACIT (Central) Bilaspur vide order u/s.127 of the Act, dated 25.09.2019. The notices u/s.153A/142(1) of the Act dated 17.02.2020 was issued too the assessee. In response to the statutory notices, the assessee filed returns showing income of Rs. 23,93,130/- for the assessment year 2019-2020. Detailed questionnaire were issued on the assessee and in response the authorized representative of the assessee has furnished written submissions with supporting documents and the case was discussed by the ld. AO on various aspects. During the course of search and seizure a locker key was found f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. 6. Since the explanation of the assessee could not find favour before the ld. AO and the addition was made, the assessee preferred to challenge the observation of the AO before the ld.CIT(A), where in the ld.CIT(A) has accepted the contention of the assessee and has decided the issue in favour of the assessee by deleting the addition made by the ld. AO. 7. Now, the department is in appeal before us, assailing the issue that ld. CIT(A) was not justified in deleting the addition made by the AO u/s. 69B of the Act. 8. The sole controversy involved in the present appeal is with regard to the addition made by the AO for Rs. 80,99,676/- on account of gold, bullion found in the locker of the assessee for which the explanation given by the assessee along with supporting documents were not found convincing by the AO, however, the same was understood as reasonable and justified by the ld. CIT(A) and, therefore, the addition was deleted. 9. At the outset, ld. CIT-DR has reiterated the facts from the order of the ld. AO as well as from the order of the ld. CIT(A) and has submitted that the order of the ld. AO wherein the issue in hand was elaborately discussed and also has narrated with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. AO during the search proceedings wherein the assessee has explained about the jewellery and gold bullion found in his locker. It is further explained by the ld. AR that as per the distribution details mentioned in the Will, the gold bullion of 2.5 kg was to be distributed amongst four grand children namely, Saurabh Kumar Agrawal, Aman Agrawal, Subham Agrawal and the assessee himself were submitted before the ld. CIT(A) to substantiate that they were entitled to receive a share from the said gold bullion and were aware about the fact that the entire gold bullion of 2.5 kg was kept in the locker of the assessee Mr. Gaurav Agrawal because of non-availability of locker facilities with other beneficiaries. Copies of such affidavits are filed before us at paper book page Nos.37 to 40. Ld. AR further submitted that the gold so confiscated by the department during the search and seizure procedure was returned to the assessee on 25.05.2022 and the same was distributed amongst the beneficiaries according to the Will of Late Smt. Devki Devi Agrawal, to substantiate its contention, affidavit of all the three beneficiaries along with supurdginama by the assessee were placed before us at pag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground of appeal, the appellant has challenged the addition of Rs. 80,99,676/- on account of unexplained gold bullion u/s. 69B of the IT Act, 1961. During the course of search, in bank locker of the appellant, containing gold bullion 2499.90 gm and jewellery 33.00 gm was found. The gold bullion 2499.90 gms was valued at Rs. 80,99,676/-. Statement of Shri Gourav Agrawal was also recorded during the course of search which has been reproduced on page no 4 to 6 of the assessment order. Shri Gourav Agrawal, during search, failed to explain the acquisition of gold bullion found from bank locker. However, during post serach investigation Id AR of the appellant filed a copy of will dated 04.1 1.2013 and stated that the entire gold bullion was received by will of his grandmother. The AO during the course of assessment proceedings has stated that the Will is mere an after- thought and is misleading. The AO further stated that no document of Late Smt Devki Devi Agrawal viz. IT Return, Wealth Tax Return and purchase bills has been filed by the assessee. Thus, the AO after considering entire facts and submission of the assessee did not find any merit in the plea of the assessee and made z addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-13 and she was present before him at the time of notary. Thus, it is very clear that the AO has made enquiry from the alleged notary who notarized the alleged will of Smt. Devki Devi Agrawal on 4-11-13 and the alleged Notary has clearly stated before the AO that, he has notarized the alleged a will in-front of Smt. Devki Devi Agrawal along with 2 witnesses i.e., Shri Shital Sao s/o Shri Chain Singh Sao Shri Prithivi Pal Singh s/o Shri Radheshyam Singh. Hence, the sanctity and genuineness of the will has been fully established before the AO. Once, it was established that the will has been signed by Late Smt Devki Devi Agrawal and appellant has received gold bullion as per will , the AO has no locus to treat the same as bogus. As culled out from assessment order the sole reason for making addition was that the appellant was not able to explain the bullion at the time of search, however, the same was explained immediately withi n a week to the ADIT(inv), Raipur. The impunged addition has been made by the AO purely on presumption and assumption basis. The another allegation being made by the AO that no documents such and IT return and Wealth tax return of late Smt Devki Devi Agrawal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 4.3. Ld counsel for the assessee assails these findings and contends that: i. There is no law which prescribed registration of a will in India, it only requires that the testator should be in a state to depose a will, which should be in writing and attested by two witnesses. All these conditions are fulfilled, both the witnesses have been examined along with co beneficiaries, they all have confirmed the will. There is no obligation on witnesses advise that the Will registered more so in a village. Therefore, no adverse inference can be drawn from this observation or finding by AO. ii. If there was any issue about the signature of late Shri Rambharosey, AO could have referred to a hand writing expert. He can not assume the role of a handwriting expert and hold the signature to be forged merely on the assumption that he was marginally qualified. More so it has not been disputed that he was a leading citizen of area and freedom fighter. Therefore, no adverse inference can be drawn from this observation. iii. As per Indian law, any testator can make a will as per terms for distribution among heirs as agreeable to him. No adverse inference can not be drawn of the fact that more cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted dt.21-1-03 on these aspects. 9.2 Coming to the issue about genuineness of the Will , Id counsel for the assessee has countered the observations of AO as mentioned above. In our considered view the contention of Id counsel for the assessee has substance inasmuch as Indian law does not prescribe registration of the Will , it should be in writing, attested by 2 witness; there is no requirement of any registration or notarization thereof. In this case the Will is in writing and duly attested by 2 witnesses, therefore, no adverse inference can be drawn on the aspect that witness did not advice for registration of the same. 9.3 Apropos the issue of flow of signature of late Shri Ram Bharosey Lal Yadav, in our view, the AO is not an handwriting expert, therefore, the observation amounts to a surmise. Besides, late Shri Ram Bharosey Lal Yadav is not disputed to be a freedom fighter and an affluent landlord, he is held to be marginally qualified. In our view, flow of writing as pointed out by AO cannot be held to be determinative to discard the Will , in the absence of any opinion of the handwriting expert. vi. ADI has examined the witnesses Shri Nawab Singh Yadav, ex-Principal a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was not produced on the ground that the same was eastern away by ants. The AO held that acquisition of jewellery of estimated value of Rs. 1,08,000 and of silver articles and coins (value Rs. 5,66,556) was not explained. While rejecting the case of the assessee, the AO observed: Smt.Magan Devi, was never a WT assessee. She was not even IT asses-see. The assessee has taken, up this plea when the assets have been seized. Had it been so, the assets of the assessee such a big HUF would have been assessed to IT or Smt.Magan Devi, at least should have been a WT assessee. In the absence of original Will and the fact that Smt. Magan Devi is not the assessee of WT and IT, and that the assessee failed to prove authenticity of the Will at the time of proceedings u/s 143(3) and the plea taken by the assessee that ants have eaten away the original Will , all these facts reflects nothing except that it is a cooked up story of the assessee. But not filing the original Will and acceptance of the facts by Shri Rajender Kumar that the Will eaten away by the, ants, the assessee failed to prove his contention and has not filed any evidence in his contention. I, therefore, hold that the jewellery of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by her through the Will. The affidavits produced by different persons were self serving documents having no evidentiary value. In this connection, Id DR relied upon Sri Krishna (1983) (All HC). The statements recorded at the time of raid showed that none of the legaties under the Will was aware of the Will. This and above circumstances clearly showed that Will set up by the assessee was not a genuine document. 8. Shri Garg, Id counsel for the assessee supported the impugned order. I le explained that Smt. Magan Devi died in 1974 whereas her husband Shri Makhan Lal died on 23-12-80. The Will was got mutilated in hands of Shri Makhan Lal and, therefore, a necessity to prepare a notarised copy of the Will arose in the year 1981. Accordingly notarised copy was prepared. Certificate of Notary Public who had notarised the Will was filed with the authorities and copy thereof was available at page 117 of the PB. The notarised copy was seized by the Revenue on 24-12-86 from the lodker held by the assessee s son Shri Rakesh Kumar. As original Will could not be produced, secondary evidence relating to execution of Will was filed before C1T(A). The secondary evidence accepted by the CIT(A) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribe or the other witness. Although technical rules of Evidence Act are not applicable to proceedings under the IT Act, the que of execution of Will is required to be examined on the basis of valid testimony of the witnesses to the Will and other relevant circumstances. Unfortunately, in this case the relevant material was not collected and it is difficult to decide the que whether Smt. Magan Devi executed a valid Will, as claimed. The AO while holding that no Will was executed relied mainly upon the f act that original Will was not produced in proceedings before hint. He refused to accept notarised copy of the Will. The production of an original Will, no doubt, is important as otherwise Will is presumed to be revoked. But aforesaid questions relating to execution or revocation of the Will, in our opinion, are not very material for disposing of the controversy before us. We shall discuss this in the following paras. 12. The Will is a private document concerning legatees/ heirs of a testator and the Revenue can by no stretch of imagination raise any dispute relating to validity of a Will. In IT proceedings, a Will is mostly relied upon as a contemporaneous document to explain sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Will dt.25-11-73 is tailor made and contains complete description with slight variation of silver coins and silver articles seized in raid. Though the original Will was not produced, a copy of the Will notarised by Mohd.Illyas, Adv-cum- Notary Public on 3-6-81 was found and seized from locker No.709 with PNB. In the name of Smt.Shyam Kumari and Shri Rakesh Kumar in Dec, 1986. The said locker was under restrain since 4- 12-86. It was shown to have been earlier operated upon on 24-12- 85. Thus, this notarised document which clearly showed that it was made to cover and explain different articles, was in existence in 1985. The CIT(A) while deleting addition from the AY87-88, observed as under: 5.4(a) The typed papers containing a reference to these valuables (even if the said typed papers are not treated as Will 'for the sake of argument) had been found from the locker which had earlier been operated on 24-12-85 and prior to that on 3-1-84 and 30-11- 83 and attention is invited to page 18 of the PB. This shows that the valuables in question were in existence even in the earlier years. This submissions has got 2 aspects. First is that if we apply the test of human mind and pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on above account has to be upheld. 14. Shri Garg also supported impugned order of CIT(A) as in his view, the assessee cannot be held to be owner of coins and other silver articles not found to be in possession and control of the assessee. These were in control of different persons who were occupying the permises subjected to search. For the reasons given while dealing with seizer of cash and gold jewellery, we accept this submission of Shri Garg. In the above back ground, we uphold order of CIT(A) deleting addition of Rs. 5,66,556. 4.1.4 In view of the above discussion and judicial pronouncement cited the addition made by the AO amounting to Rs. 80,99,676/- is Deleted. Therefore, appeal on this ground is Allowed. 14. We have carefully perused the orders of the ld. AO and ld.CIT(A), copies of the supporting evidences relied on by the assessee. Undoubtedly, the document of Will furnished by the assessee was executed much prior to the date of search and assessment proceedings, the same was further substantiated as a genuine document when the statement of Notary Public was recorded and the Notary Public had also put an affirmative stamp on the claim of the assessee with regard to afore ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
