D.b. Income Tax Appeal v. Commissioner Of Income Tax & Anr

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR D.B. Income Tax Appeal No. 6/2002 Smt. Shanta Devivs. Commissioner of Income Tax & Anr. Date of Order:31[st] August, 2016 HON'BLE MR. JUSTICE K.S. JHAVERIHON'BLE MR. JUSTICE AJAY RASTOGI Mr. P.K. Kasliwal for the appellant.Mr. Anuroop Singhi for the respondents. 1.By way of this appeal, the assessee has filedthe appeal against the order of the Income TaxAppellate Tribunal whereby the tribunal hasdismissed the appeal preferred by the assessee. 2.The Assessing Officer passed an order againstthe assessee. A search and seizure operation wascarried out under Section 132 and unexplainedornaments were added to the income of theassesseee under Section 69-B. The said order wascarried out in appeal before the CIT (Appeals).The appeal was dismissed. It was further carriedby him in appeal to Income Tax Appellate Tribunal.The ITAT also dismissed the appeal filed by theassesseee. 3.This court while admitting the matter framedfollowing substantial questions of law:- “Whether on the facts and in thecircumstances of the case, theTribunal was justified in treatinggold ornaments as explained foundduring the course of search andsustaining making an addition of 2 Rs. 76065/- under Section 69 ofthe Income Tax Act, 1961 asexplained investment in the handsof the appellant?” 4.Heard learned Counsel for appellant. 4.1. Taking note of the fact that the 132(5) at thesame time of search on 10.10.1990, the statementof the husband of the assessee was not recorded inview of the provision of Section 69-B. 4.2. The observations made by the Tribunal in para9 reads thus:- “We have carefully considered therival submissions of the parties andperused the records. We find that inthis case the addition was made bythe A.O. on the basis of statementrecorded at the time of opening of alocker on 6.12.90 whereas the searchwas commenced on 10.10.90. We havefurther noted that no rebuttal wasmade by the assessee while passingthe order under Section 132(5) andnot only this the assessee has alsodeposited the tax of Rs. 24,277/- inpursuance of the statement recordedat the time of search. We also notedthat there is no allegation at anystage of the proceedings before theIncome Tax authorities or before usthat the statement has been procuredby inducement, threat or promise bythe authorised officer at the time ofsearch operation. Even at theassessment stage the assessee hassurrendered 88 gms of jewellery andin the assessment of Shri Kajornal,father-in-law of the appellant, forthe A.Y. 1990-91 the findings of theAO disclosing the gift has not beenchallenged. In view of the clearadmission made by the appellant andher husband and payment of tax on thesurrendered amount and also norebuttal was made at any stage oforder made under Section 132 (5), weare of the opinion that theaffidavits in the form of gift deedsare of no help to the assessee.Admissions made by the assesseeduring search operation constitute asubstantial evidence in view of sections 17 & 21 of the Evidence Act.The admission is fully corroboratedby documents and records which areinculpatoryinnature.Thesubstantial portion of the swornstatement relating to admission ofgold ornaments has not been retractedby the assessee at any stage by anydocumentary evidence. In view of theabove, we are of the opinion that theaddition made by the AO on the basisof sworn statementn is valid. We findsupport from the order of the ITATAhmedabad Bench 'C' of the Tribunalin the case of ITO vs. BipinFaraskhana reported in (2000) 73 ITD334 wherein in the similar facts andcircumstances of the case theadditionwasconfirmed.Weaccordingly confirm the finding ofthe CIT (A) sustaining the additionmade by the AO amounting to Rs.76065/- u/s 69B.” sections 17 & 21 of the Evidence Act.The admission is fully corroboratedby documents and records which areinculpatoryinnature.Thesubstantial portion of the swornstatement relating to admission ofgold ornaments has not been retractedby the assessee at any stage by anydocumentary evidence. In view of theabove, we are of the opinion that theaddition made by the AO on the basisof sworn statementn is valid. We findsupport from the order of the ITATAhmedabad Bench 'C' of the Tribunalin the case of ITO vs. BipinFaraskhana reported in (2000) 73 ITD334 wherein in the similar facts andcircumstances of the case theadditionwasconfirmed.Weaccordingly confirm the finding ofthe CIT (A) sustaining the additionmade by the AO amounting to Rs.76065/- u/s 69B.” 5.In our view, in view of concurrent finding ofall authority & no rebuttal by assessee & father-in-law not supported theory of gift. 6.In our considered opinion, the view taken bythe tribunal is just. The issue as recorded isanswered against the assessee and in favour of therevenue. 7.The appeal stands dismissed. (AJAY RASTOGI),J. (K.S.JHAVERI),J. A.Sharma/23