I.C. Sudhir, J.M. - (1.)THE assessee has questioned the first appellate order (sic) the learned Commissioner (Appeals) has erred in: (1) confirming the addition of Rs. 3,60,694 pertaining to gold ornaments belonging to various family members, (2) confirming the addition of Rs. 76,406 pertaining to silver utensils without appreciating the facts and materials placed on record and (3) confirming the additions of Rs. 10,008 and Rs. 4,540, respectively, being donation to Jain Diwakar Hospital and expenses on cloth/garments without considering the version of the assessee that the said amounts were paid out of the withdrawals for household expenses for family members.
(2.)The facts in brief are that search and seizure under section 132 was conducted at the premises of the assessee, a jeweller, during 11-8-1998 to 13-8-1998 and gold ornaments weighing 3,861 grams, silver utensils weighing 22.448 kgs. were found. The assessee explained the same during the course of assessment proceeding but the assessing officer accepted only 2,980 grams of gold ornaments and 13 kgs. of silver as explained and made addition on the remaining as undisclosed. The learned Commissioner (Appeals) has upheld the same against which the assessee is in appeal vide aforesaid grounds.
Ground No. 1: In support of this ground the learned authorised representative submits that the assessee was residing with his brother Shri Komalsingh in a joint family and refer family tree shown at page No. 1 of paper book.He submits further that the assessing officer did not accept the explanation of the assessee that gold ornaments weighing 76 grams and 73 grams, respectively, belonged to unmarried daughters of shri Komalsingh namely, Monika and Smita; 176 grams of gold ornaments to Master Vaibhav and Rahul (S/o Anilkumar) and Master Saurabhand Nihar (S/o,Sunaumar); out of 541 grams of gold ornaments accepted only 250 grams belonging to Smt. Sushme (W/o Anilkumar) married on 30-6-1982 and out of 505 grams, 250 grams G belonging to Smt. Lata (W/o Sunilkumar) married on 5-6-1987. The total addition in this regard thus made was Rs. 3,60,594 against the gold Weighing 871 grams as not accepted. The learned authorised representative submits that it is customary in Indian families to give gifts to minor children on festive occasions like birthdays, Diwali, Rakshabandhan, marriages, etc. of whic", people generally do not keep notes. And looking to the status of the family the explanation of the assessee furnished in this regard deserved to be accepted. He cites the decision of the Tribunal in the case of Santoshbala Santoshkumar Agarwal v. Asstt, CIT (1999) 27 ITC 519 (Nagpur), The authorities below ignored the instruction,of the Board that each lady could be allowed credit of 500 grams of gold, 250 grams to unmarried lady and 100 grams to per male member of family. In case of two ladies the excess of 500 grams ornaments is marginal i.e., only 41 grams and 3 grams, He cites the decision of the tribunal in the case of Assistant Commissioner v. Anita Milind (2002) 30 ITC 505. The lower authorities have ignored the affidavits of Smt, Tarabai W/o late Shri Kanakmalji Kothari (mother of Smt. Sushmakumari~ and of Shri Mitthulal S/o Fatehlal Maru (father of Smt. Latakumari) confirming the claim of two ladies without any sufficient reason (refer page Nos. 24 to 27 of paper book), The learned authorised representative submits , further that nothing incriminating nor the ornaments were found from the possession of Shri Anandflal and marriages of these two ladies were performed in June, 1081 a-6-1987, therefore, it cannot be said that the ornaments given to them by their in-laws or by their parents were within the block period. During the course of search also a statement was made by the assessee that the gold ornaments in question belonged to these ladies and minor children (refer page No. 21 of paper book). And furthermore that these ornaments have been valued assuming them as 100 per cent pure gold, The assessee had also furnished wealth-tax return (of) himself and of some family members which indicate the sound status of the family as evident from page No. 2 of. the paper book. The learned authorised representative refers the decisions given in the paper book in support.

(3.)1 The learned departmental Representative on the contrary justifies the orders of the lower authorities, and cites the decision of Hon'ble Supreme Court in the case of Chuharmal ys, CIT (1988) 70 CTR (SC) 88: (1988) 172 ITR 250 (SC) and submits that the gold was found in the possession of the assessee and, therefore, be will be responsible for the same. The learned authorised repres entative in rejoinder objects the submission that the gold was found from the possession of.the assessee and refers page Nos. 10 to 19 of the paper.book. in support. 4.2 Considering the arguments advanced by the parties in view of the materials available on the record and the judgments relied upon by the partie's as well as the status of the family, the explanations furnished by the assessee for the gold ornaments found, do not appear to be unreasonable keeping the size of the family and quantity of ornaments in view, The affidavits furnished by the parents of the two ladies explaining therein about the gold found from their possession unless rebutted cannot be disbelieved. It is customary to gift ornaments to the children on festive occasions in Hindus families of status. Besides these no document had been found during the search indicating the recent acquisition of these gold ornaments by the assessee nor the assessing officer has specified as to for which year addition in respect of gold ornaments has been made. We thus delete the addition made in this regard while allowing ground No. 1 in favour of the assessee.