Taxmann's Gold & Taxation

Preface

Once, Lord Yama came to earth, sporting all his splendid gold ornaments, shining and sparkling. But, when he saw the jewellery here, he wanted to purchase and purchase. Chitragupta warned him: “Sire, you will lose your….” but Lord Yama was in no mood to listen. Suddenly, the income tax people came and taxed Lord Yama on all his purchases. The amount was so high, that the Lord ran out of money. Chitragupta said: “There’s only one way, to pay income tax on earth, in Bharat Desh. Sell all your very expensive original ornaments and pay tax. I warned you, Sire, you would lose your old ornaments. But, you did not pay attention.”

India was once known as “sone ki chidiya” for she could buy the gold of the entire world. Today, also India is the biggest consumer of gold in the international arena. “Money is gold, and nothing else” said world-famous financier J.P. Morgan. This shows the importance of the glittering metal. “Gold will be around. Gold will be money when the dollar and the Euro and the Yuan and the Ringgit are mere memories” said financial analyst Richard Russell.

This book is about how to save taxes, on gold. Whether you are a buyer, seller, investor, you would not like

to face heavy tax burden, while fondly handling the shining, yellow gold. The book encompasses all aspects of gold and income-tax. The “baby” GST has also been covered.

I wish to offer my thanks to TAXMANN, who has given me the opportunity to write a book for the largest tax publishing house in the country. I thank my parents, who encouraged me by saying “Well done” when each success came in life. I thank my elder brother, who was also in civil services, for encouragement.

This is the first book on Gold and Taxes, which has been written, in the country. It’s simple, full of examples, cases and tables. The book would bring shine to your bookshelf. My fond hope is that India becomes jeweller to the world !

MEENAKSHI SUBRAMANIAM

STRIDHAN

GOLD & SILVER UTENSILS

How Much Gold Can You Hold 1

1.1 INTRODUCTION

Once, a fairy noticed a 50-year old man and his wife and asked both to make one wish each. The wife said, ‘I want lots of gold.’ She got her wish. The man said, ‘I want a wife, 25 years younger than me.’ Now, the man is saying, ‘I should also have asked for gold and lived happily.’ The fairy had made the man, older by 25 years, so that he was a senior citizen, of 75 years.

How much gold can a person have? Many people believe that CBDT Instruction No. 1916, dated 11-5-1994 which specifies how much can be seized during a raid lays down limits to how much jewellery an individual can possess.

The Finance Ministry has clarified on December 1, 2018 “There is no limit on holding of gold jewellery or ornaments by anybody provided it is acquired from explained sources of income including inheritance.”

However, with apprehensions continuing to persist in the absence of clarity on limit of holding, the ministry came out with another statement hours later saying there is no limit on gold holding from explained sources of income.

This means that Legitimate holding of jewellery up to any extent is fully protected.

1.2 CBDT INSTRUCTION NO. 1916, DATED 11-5-1994

The CBDT Instruction No. 1916 (F. No. 286/63/93-IT(INV. II), dated 11-5-1994 is reproduced herein under:—

Guidelines for seizure of jewellery and ornaments in course of search

Instances of seizure of jewellery of small quantity in course of operations under section 132 have come to the notice of the Board. The question of a common approach to situations where search parties come across items of jewellery, has been examined by the Board and following guidelines are issued for strict compliance:

(i) In the case of a wealth-tax assessee, gold jewellery and ornaments found in excess of the gross weight declared in the wealth-tax return only need be seized.

(ii) In the case of a person not assessed to wealth-tax gold jewellery and ornaments to the extent of 500 gms. per married lady, 250 gms. per unmarried lady and 100 gms. per male member of the family need not be seized.

(iii) The authorised officer may, having regard to the status of the family, and the custom and practices of the community to which the family belongs and other circumstances of the case, decide to exclude a larger quantity of jewellery and ornaments from seizure. This should be reported to the Director of Income-tax/ Commissioner authorising the search at the time of furnishing the search report.

(iv) In all cases, a detailed inventory of the jewellery and ornaments found must be prepared to be used for assessment purposes. These guidelines may please be brought to the notice of the officers in your region.

It was also clarified that no seizure should be made by the Search Party of the Jewellery and Ornaments found during the course of search proceedings under section 132, where the same have been duly declared in the wealth-tax returns filed by the taxpayer or where such ornaments are within the prescribed limits of 100, 250 or 500 grams as stated in the said instruction.

The CBDT directed that in the case of a person not assessed to wealth-tax, gold jewellery and ornaments to the extent of 500 gms. per married lady, 250 gms. per unmarried lady and 100 gms. per male member of the family, need not be seized.

1.3 APPLICATION OF INSTRUCTION NO. 1916 TO ASSESSMENT ?

The divergent view of the Chennai High Court, in paragraphs 8 and 10 in the case of V.G.P. Ravidas v. Asstt. CIT [2014] 51 taxmann.com 16/[2015] 228 Taxman 93 (Mad.) (Mag.), suggest that the Instruction No. 1916 has a limited application and should be applied by the search authorities in deciding whether the jewellery and ornaments found during the search to the extent of the specified quantities be seized or not. Such divergent view of the judiciary appears to be suggesting that the scope of the instructions is not extended to the assessment of income and an assessee therefore cannot simply rely on the said instructions to plead that the possession of the jewellery to the extent of the specified quantity be treated as explained. An outcome of the observations of the High Court, is that an assessee is required to explain the possession of the jewellery in assessment of the income to the satisfaction of the AO independent of the fact that the jewellery was not seized and has to lead evidences in support of its possession though for the purposes of seizure, its possession was found to be reasonable by the search authorities.

1.4 SOME CASE STUDIES

1.4-1 Gold found in limit to be treated as explained

The issue had come up for the consideration of the Rajasthan High Court in the case of CIT v. Satya Narain Patni [2014] 46 taxmann. com 440/224 Taxman 312 (Raj.).

A search u/s 132 was carried out at the business and residential premises of the assessee on 30-6-2004. During the course of search, gold jewellery weighing 2,202.464 gms. valued at ` 10,53,520 and silver items valued at ` 93,678 were found. Looking to the status of the assessee and the statement given during the course of the search operation by various family members and considering the fact that there were four married ladies in the house, including the wife of the assessee, no jewellery was seized by the authorised officer. In assessment of the income, however, the jewellery to the extent of 1,600 gms. was treated as reasonable by the AO. The balance jewellery weighing 602.464 gms. was treated as unexplained in the absence of any satisfactory explanation from the assessee and the value of the same which was determined at ` 2,88,176, was added

back to the income of the assessee, treating the same as purchased out of Income from undisclosed sources of the assessee. In an appeal by the assessee, the Commissioner (Appeals), deleted the additions made by the AO of the value of the jewellery to the tune of ` 2,88,176. The Tribunal, on appreciation of facts and evidence available on record, also confirmed the order of CIT(A).

The Revenue, in the appeal before the Rajasthan High Court, contended that the AO had given due credit for the jewellery belonging to the various family members; that almost 75% of the jewellery found was treated as explained by the AO himself; only where the assessee or family members were not in a position to explain the balance jewellery, the addition was made; that the assessee or/and other family members were not in a position to adequately explain the source of receipt of aforesaid jewellery and it was the duty of the assessee to lead proper evidence, but since no evidence was led, the AO after giving due credit for 1,600 gms. of jewellery, and being not satisfied with the balance, made the addition which was correct and justified; that the circular of the Board referred to by the Tribunal dated 11-5-1994, simply laid down that in case a person was not assessed to wealth-tax, then in that case, jewellery and ornaments to the extent of 500 gms. per married lady, 250 gms. per unmarried lady and 100 gms. per male member of the family need not be seized, but that did not mean that the AO was debarred from questioning the possession of the items found; that the circular emphasised only that jewellery would not be seized. However, the AO was duty bound to seek explanation of owning and possessing of such jewellery. The Rajasthan High Court, on due consideration of the facts of the case, and importantly, relying on the Instruction No. 1916 of the CBDT, dismissed the appeal of the Income-tax Department by holding as under:

“12. It is true that the circular of the CBDT, referred to supra dated 11-5-1994 only refers to the jewellery to the extent of 500 gms. per married lady, 250 gms. per unmarried lady and 100 gms. per male member of the family, need not be seized and it does not speak about the questioning of the said jewellery from the person who has been found with possession of the said jewellery. However, the Board, looking to the Indian customs and traditions, has fairly expressed that jewellery to the said extent will not be seized and once the Board is

also of the express opinion that the said jewellery cannot be seized, it should normally mean that any jewellery, found in possession of a married lady to the extent of 500 gms., 250 gms. per unmarried lady and 100 gms. per male member of the family will also not be questioned about its source and acquisition. We can take notice of the fact that at the time of wedding, the daughter/daughter-in-law receives gold ornaments jewellery and other goods not only from parental side but in-laws side as well at the time of ‘Vidai’ (farewell) or/and at the time when the daughter-in-law enters the house of her husband. We can also take notice of the fact that thereafter also, she continues to receive some small items by various other close friends and relatives of both the sides as well as on the auspicious occasion of birth of a child whether male or female and the CBDT, looking to such customs prevailing throughout India, in one way or the another, came out with this Circular and we accordingly are of the firm opinion that it should also mean that to the extent of the aforesaid jewellery, found in possession of the various persons, even source cannot be questioned. It is certainly ‘Stridhan’ of the woman and normally no question at least to the said extent can be made. However, if the authorized officers or/and the Assessing Officers, find jewellery beyond the said weight, then certainly they can question the source of acquisition of the jewellery and also in appropriate cases, if no proper explanation has been offered, can treat the jewellery beyond the said limit as unexplained investment of the person with whom the said jewellery has been found.”

The High Court noted that, looking to the status of the family and the jewellery found in possession of four ladies, the quantum of jewellery was held to be reasonable and therefore, the authorised officers, in the first instance, did not seize the said jewellery as the same was within the tolerable limit or the limits prescribed by the Board. Thus, in the view of the court, subsequent addition was held to be not justified and was thus rightly deleted by both the two appellate authorities, namely, Commissioner (Appeals) as well as the tribunal.

The High Courts, relying on the instructions of the CBDT, have consistently held that the possession of the jewellery and ornaments to the extent of the quantities specified in the instruction is to be treated as reasonable and therefore explained and should not be the subject matter of additions in assessment of the total income of a person.

The Gujarat High Court in CIT v. Ratanlal Vyaparilal Jain [2010] 2 taxmann.com 997 (Guj.), the Allahabad High Court in CIT v. Ghanshyam Das Johri [2014] 41 taxmann.com 295 (All.) and the Rajasthan High Court in yet another case, CIT v. Kailash Chand Sharma [2005] 146 Taxman 376 (Raj.) have consistently held that the possession of the jewellery of the quantities specified in the instruction issued by the CBDT is reasonable and therefore should be held to be explained in the hands of assessee and should not be the subject matter of addition by the AO on the ground that the assessee was unable to explain the possession thereof to his satisfaction.

The Courts have time and again held that the basis of Instruction 1916 is recognition of the customs prevailing in Hindu Society. It has been so held by Hon’ble Gujarat High Court in the case of Ratanlal Vyaparilal Jain (supra). It has been observed as under:“Thus, although Circular has been issued for the purpose of non-seizure of jewellery during the course of search, the basis for the same recognizes customs prevailing in Hindu Society.”

In the case of CIT v. Ghanshyam Das Johri [2014] 41 taxmann. com 295 (All.), the Allahabad High Court held that if one goes with CBDT’s Instruction No. 1916, dated 11-5-1994 then a married lady of reputed family is expected to own 500 gms. of ornaments. Therefore, jewellery found in possession to that extent could not be treated as undisclosed investment.

In Kailash Chand Sharma case (supra), learned counsel for the respondent contended that the circular to which reference has been made above, has nothing to do with the assessment of undisclosed investment found at the time of search. The circular only relates to exemption from seizure to some extent but does not exclude the jewellery found during the search of assessee from assessment, if otherwise the explanation about acquisition by the assessee is not found to be satisfactory. Learned counsel for the Revenue relied on Part IV of the Circular, dated 11th May, 1994.

1.4-2 Relaxation to be allowed from seizure and not from treating them unexplained

The Chennai High Court in the case of V.G.P. Ravidas v. Asstt. CIT [2014] 51 taxmann.com 16/[2015] 228 Taxman 93 (Mag.) (Mad.) offered certain observations that are found to be inconsistent with

the near unanimous view of the High Courts that the possession of the jewellery and ornaments, to the extent of the quantities specified by the CBDT, should be held to be explained.

In this case, the assessees filed the original return of income for the assessment year 2009-2010 on 30-9-2009. The Assessing Officer, pursuant to a search u/s 132, reopened the assessment and a reassessment was completed by him on 29-12-2010. The AO in so assessing the income, treated excess gold jewellery found and seized, of 242.200 gms. and 331.700 gms. respectively, as the unexplained income.

The assessees appeals before the Commissioner (Appeals), were dismissed. The Tribunal confirmed the order passed by the Commissioner (Appeals). In the appeal before the High Court, the short question that arose for consideration was whether the assessees in both the cases were entitled to plead that the quantum of excess gold jewellery seized did not warrant inclusion in the income of the assessees as unexplained investment in the light of the Board Instruction No.1916 [F.No.286/63/93-IT (INV.II)], dated 11-5-1994.

The Chennai High Court while dismissing the appeals, on the facts of the case before it, inter alia observed in paragraph 10 of its order as under:

“The Board Instruction dated 11-5-1994 stipulates the circumstances under which excess gold jewellery or ornaments could be seized and where it need not be seized. It does not state that it should not be treated as unexplained investment in jewellery. In this case, .....”

The High Court also approved the observations of the Commissioner (Appeals) in paragraph 8 of its order as follows:

“The Commissioner of Income-tax (Appeals) as well as the Tribunal came to hold that since there was no explanation offered by the assessees before the Assessing Officer or Commissioner of Income Tax (Appeals) or Tribunal, their mere placing reliance on the Board Instruction No. 1916 [F. No. 286/63/93-IT(INV. II)], dated 11-5-1994 will be no avail. In fact, the Commissioner of Income-tax (Appeals) has correctly held that the Board Instruction does not make allowance in calculation of unexplained jewellery and it only states that in the case of a person not assessed to wealth-tax, gold jewellery and ornaments to the extent of 500 gms., per married lady, 250 gms. per unmarried lady and 100 gms per male member of the family, need not be seized. Whereas, ....”

The Instructions only relates to exemption from seizure to some extent but does not exclude the jewellery found during the search of assessee from assessment, if otherwise the explanation about acquisition by the assessee is not found to be satisfactory.

The Rajasthan High Court in Patni’s case and the other High Courts before it, rightly noted that considering the practices and the customs prevailing in India of gifting and acquisition of jewellery and ornaments since birth and even before birth, it is not only common but is reasonable for an Indian to possess the jewellery of the specified quantity. The question of applying another yardstick for determining the reasonability in assessment does not arise at all.

The CBDT in fact a goes a step further in its humane approach to the issue under consideration, in paragraph (iii) of the said instructions, when it permits the search party to not seize even such jewellery that has been found to be excess of the specified quantities and in paragraph (ii) where the search authorities are satisfied that depending upon the status of the family and community customs and practices, the possession of such jewellery was reasonable. The said paragraph reproduced here clearly settles the issue in favour of accepting what has not been seized as duly explained for the purposes of assessment as well :

“(iii) The authorized officer may, having regard to the status of the family, and the custom and practices of the community to which the family belongs and other circumstances of the case, decide to exclude a larger quantity of jewellery and ornaments from seizure. This should be reported to the Director of Income-tax/Commissioner authorising the search at the time of furnishing the search report.”

The search authorities are not permitted to make an on-the-spot assessment. The assessing authority, is not really justified in taking a different view from search officer.

A number of other cases have also accepted the CBDT instruction in an open manner:

Kirti Singh v. Asstt. CIT [2023]

157 taxmann.com

298/[2024]

204 ITD 487 (Delhi - Trib.)

During a search at the assessee’s (Kirti Singh) premises, 2479.10 grams of jewellery were found. The Assessing Offi-

cer (AO) accepted that 1300 grams were owned by different family members, as explained.

However, the remaining jewellery was treated as unexplained on the ground that it belonged to the assessee’s sister-in-laws and section 69A was brought into force.

The Income Tax Appellate Tribunal (ITAT) ruled in favour of the assessee, holding that the possession of such a large amount of jewellery was not abnormal considering their high net worth status (HNI). Since assessee and her family members were high net worth individuals and considering their high status, holding such jewellery found in custody of members of their families could not be seen to be abnormal and consequently unexplained.

The ITAT recognized the CBDT instruction which allows for holding higher quantities of jewellery explained by individuals in high income tax brackets. The assessee’s HNI status and high social standing were taken into account while evaluating the reasonableness of the jewellery possession.

Jewellery found during search can’t be considered abnormal if assessee and her family members are HNIs.

The ITAT emphasized that unexplained additions under section 69A should not be made automatically without considering the specific context and circumstances of the case.

Neeti Rastogi v. ACIT (ITA No. 2696/Del/2016)

Jewellery worth ` 14,97,838 was discovered, in a raid. AO considered ` 10,00,000 of this jewellery as unexplained. The assessee said that total allowable jewellery for her family, comprising herself, her husband, and her two unmarried daughters, comes to ` 11,31,900 and, hence, no addition should be made. The Tribunal upheld the appellant’s viewpoint.

In the case of CIT v. Divya Devi [ITA No. 6397 (Delhi) of 2012], it was held that though it is true that the CBDT Instruction No. 1916, dated 11th May, 1996 lays down guidelines for seizure of jewellery and ornaments, the same, during search, takes into account the quantity of jewellery which would generally be held by family members of an assessee belonging to an ordinary Hindu household.

Gold & Taxation

AUTHOR : MEENAKSHI SUBRAMANIAM

PUBLISHER : TAXMANN

DATE OF PUBLICATION : APRIL 2024

EDITION : 3RD EDITION

ISBN NO : 9789357787291

NO. OF PAGES : 260

BINDING TYPE : PAPERBACK

Description

The first-of-its-kind book on Gold & Taxes is the first book in this domain, written in simple & lucid language, with plenty of examples, case studies & tables. This book analyses the intricate relationship between gold and the tax system, particularly within the Indian context. It aims to provide complete guidance on how to save taxes on gold.

Any person, whether a buyer, seller, or investor, would not like to face a heavy tax burden while fondly handling the shining, yellow gold. This book will be helpful for all tax practitioners, advocates, trade associations, jewellers, investors, and the common man & woman.

The Present Publication is the 3rd Edition, amended up to April 2024. This book is authored by Meenakshi Subramaniam, with the following noteworthy features:

u [New Additions] include the following:

 New Cases

 Updated Tables

 Amended Laws are written in an easy-to-understand format

u [Complete Coverage] of all aspects of Gold & Taxation

u [Relevant GST Principles] such as composition scheme and input tax credit, have also been incorporated in the discussions

u [Examples, Cases and Tables] are included for easy understanding

u [Tips to Save Taxes] at the end of various chapters have also been incorporated ORDER