9911796707
TMI Blog1989 (4) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... of Revenue. He, therefore initiated proceedings under s. 263 and asked the assessees as to why a remedial order should not be passed by him. In response thereto it was submitted on behalf of the assessee that during the course of search, silver articles including Mukat,. Necklace, Sinhason and other articles were recovered from the pooja room and some other rooms. The weight of these articles was only 11.500 grms. The residential property belonged to four persons, namely, the two <?xml:namespace prefix = st2 /> assessees-Bharatkumar I. Parekh and his mother Smt. Champaben Ishwarlal. and two other brothers of Shri Bharatkumar namely Shri Sumankumar Ishwarlal and Girishkumar Ishwarlal and each of them had 25 per cent share in the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first assessee. In relation to the pooja articles, the CIT set aside the order of the ITO with a direction to frame it de novo after giving proper opportunity of being heard to the assessees and decide the issue in accordance with law. The assessees have come up in appeals before the Tribunal. 2. I have heard the representatives of the parties at length in these appeals. The main arguments were addressed in the case of Shri Bharatkumar. It was contended that the nature of the articles themselves showed that they were articles meant for pooja. At page 11 of the paper book is the list of all articles in dispute and some of them certainly can be said to relate to pooja while others can be silver ornaments and utensils. In other words, the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not say that these utensils and ornaments were ancestral. He rather went on to say that they may have been acquired out of presents received on marriage occasions or may be old shape ornaments and silver belonging to his mother or may be the anklets of daughter-in-laws (Bhabhis) being of old shape. What I mean to say is that in the search proceedings the plea that these ornaments and utensils were only pooja ornaments belonging to all family members was not specifically set up by any of the persons whose statements were recorded at that time. The contention of the assessee's representative was that since these ornaments were not seized at the time of search by any order under s. 132 (5) it should be presumed that the ownership of these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how it was not alleged and proved that the ornaments and utensils were only meant for pooja and belonged to the entire family. Therefore, the ITO need not have straightway presumed that the ownership of these articles had been explained. He should have ordinarily gone through the statements recorded at the time of the search and then decided the question of ownership of the ornaments inasmuch as they were found in the possession of the two assessees or the other two brothers of the first and the sons of the second assessee. He did not do anything of this kind as his order would show. It is a well established principle of law that an ITO is not only empowered to pass orders but he can investigate the matter also. The Gujarat High Court is ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 263 have not been defined but they must mean that the orders of assessment challenged are such as are not in accordance with law, in consequence where of the lawful revenue due to the State has not been realised or cannot be realised. In the present case, it was obvious that the ITO had committed an error in not making enquiry into the details as regards both the deductions and also that want of such enquiry had resulted in prejudice to the interests of revenue. To this extent, the initiation of action under s. 263 by the Commissioner was quite proper." The decision of the Tribunal setting aside the order of the Addl. Commissioner was, therefore, not approved by their Lordships. What I mean to say is that before setting aside the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any proceedings under the IT Act in whose possession or control the jewellery or other valuable article or thing is found. It is not necessary that the warrant of search should have been issued against that particular person. I am, therefore, of the opinion that the additional ground taken in the case of Smt. Champaben has equally no substance. In the result both these appeals fail and are hereby dismissed. I may, however, point out that it will still be open to the ITO to make independent enquiries about the existence and the ownership of these ornaments and he shall not be embarrassed by the order of the CIT in which an opinion has been expressed about the ownership of the silver in question. He shall come to his own conclusions after giv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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