Judgment Chandramauli Kr.Pd. and J.N.Singh JJ. 1. The Patna Bench of the Income Tax Appellate Tribunal after drawing the statements of case has referred the following question for our opinion: "Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the total income of the assessee as being unexplained investment in the jewellery recovered at the time of search from the assessees house during the relevant accounting year? 2. A search was conducted in the residential premises of the assessee during which jewellery worth Rs. 1,56,518/-was recovered. In a proceeding under section 132(5) of the Income Tax Act the assessee sought to explain that the jewellery belonged to his wife and daughters-in-law and covered by their disclosure made before the Commissioner of Income Tax under Voluntary Disclosure Scheme, 1975. The Income Tax Officer asked the assessee to identify and tally various items of jewellery with those of the disclosures made. It was not done at the time of search and accordingly jewellery were seized. 3. The assessee then filed a petition under section 132(11) of the Income Tax Act. The Commissioner of Income Tax by its order dated 25th February, 1983 directed for release of the jewellery and while doing so it, inter alia, held as follows: "I have carefully considered the rival submissions. The total net weight of the jewellery disclosed is 3398 grams and the total jewellery seized amounted to 2198 grams and found in the locker which was not seized was 736 grams. As such, the total jewellery found in the possession of the family members of the appellant was 2934 grams which is less than the jewellery disclosed under the Voluntary Disclosure Scheme. There was, therefore, no justification in treating the jewellery which is already disclosed under the Voluntary Disclosure Scheme, as belonging to the appellant and his undisclosed income. It may be pointed out here that the appellant has not been able to co-relate all the items of jewellery disclosed and seized on the ground that the valuation report prepared by the registered valuer was completely in a different manner than the list of the jewellery enclosed alongwith the Disclosure Petition submitted under the Voluntary Disclosure of Income & Wealth Ordinance, 1975." It further observed as follows: "....... However, since I have held that the jewellery belong to the family members of the appellant and are covered by the Disclosure Petition, the jewellery seized should be released and reasonable opportunity should be allowed to the ladies of the family to get it re-valued to re-relate it with the Disclosure Petition filed by them before the Commissioner of Income-tax and in case some jewellery is not co-related with the list filed alongwith the Disclosure Petition, the Income-tax Officer will be at liberty to consider them in the hands of the respective family members of the appellant." 4. In a regular assessment proceeding of the year 1981-82 the Income Tax Officer proposed addition of Rs.1,56,518/-i.e. value of the jewellery and forwarded the draft assessment to the Inspecting Assistant Commissioner under section 144B of the Income Tax -Act. The Inspecting Assistant Commissioner agreed with the proposal of the Income Tax Officer and added the value of the jewellery in the income of the assessee under section 69A of the Act. On appeal the Commissioner of Income Tax (Appeals) was of the opinion that the Commissioner in a proceeding under section 132(11) of the Income Tax Act had written a very detailed and well reasoned order and accordingly directed that the amount in question should be deleted from the total income of the assessee. 5. The revenue preferred appeal before the Patna Bench of the Income Tax Appellate Tribunal, hereinafter referred to as the Tribunal, which reversed the order of the Commissioner of Income Tax (Appeals) and held that it wrongly deleted the addition. While doing so, it observed as follows: "We have heard both the sides and we have gone through the orders of the authorities below for our consideration. We have gone through other connected papers placed before us also. We agree with the ITO that the order passed u/s 132(5) is a summary order which has to be passed within a limited period before the items are retained or released. It may be mentioned here that only those amounts or items which were found to have not been explained or assessed to tax can be seized and can be set off against income-tax liabilities which are in arrear or which are likely to be raised during that year. Certain amounts were seized. It may be mentioned here that only those amounts or items which were found to have not been explained or assessed to tax can be seized and can be set off against income-tax liabilities which are in arrear or which are likely to be raised during that year. Certain amounts were seized. The assessee was entitled to file an application before the Commissioner of Income-tax who passed the order u/s 132(11). The Commissioner of Income-tax in his turn would also pass a summary order directing to release or not to release any specific items. But this order of the Commissioner of Income-tax also is for a limited purpose and is not conclusive either way. The same items seized would have to be considered entirely afresh in the course of assessment proceedings. Even assuming that the Commissioner of Income-tax had directed the ITO not to release the articles u/s 132(11), but if in the course of proceedings u/s 143(2) the assessee still can explain the matter that such articles or cash cannot be included in the regular assessment which is to be done on a regular proceeding by the ITO. In fact, a declaration under the Voluntary Disclosure Scheme would not bind the Department to enquire regarding the correctness or genuineness of those items in the hands of the third party. According to the assessee the wife and the daughter-in-law have made disclosure under the Voluntary Disclosure Scheme. Thus, we are of the opinion that the ITO was justified in calling the assessee to explain the source of these articles in his residence during the search. The ITO has given the reason as to why he did not accept the stand taken by the assessee. It may be mentioned that before the Commissioner of Income-tax the assessee contended that sufficient time was not given to the assessee to co-relate or identify those items with the items listed in the Disclosure Scheme. But when the ITO gave the assessee sufficient time in the course of assessment proceedings the assessee has failed to discharge the burden which lay on him. It is seen that the action of the ITO was valid and justified on the facts and circumstances of the case. But when the ITO gave the assessee sufficient time in the course of assessment proceedings the assessee has failed to discharge the burden which lay on him. It is seen that the action of the ITO was valid and justified on the facts and circumstances of the case. The CIT (Appeals), on the other hand, has only relied on the order of the Commissioner of Income-tax rendered u/s 132(11) which, in our opinion, as mentioned above is not conclusive or final. Thus, in this view of the matter, the addition of Rs. 1,56,518/- was wrongly deleted by the CIT (Appeals). His order on this point is reversed and that of the ITO is restored." 6. On these facts the Tribunal has referred the aforesaid question for our answer. 7. In fairness to Mr. Rastogi, he submits that an order passed under section 132(5) or 132(11) of the Act are orders in summary proceeding which are neither conclusive nor final or binding while making final assessment. However, he contends that the jewellery said to have been seized at the time of search being covered under the Voluntary Disclosure Scheme addition ought not to have been made. He points out that the assessee was not given opportunity to tally jewellery with those disclosed under the Voluntary Disclosure Scheme. He points out that in the valuation report of the jewellery seized in the case several items of jewellery have been valued together and as such it is practically impossible to co-relate different items of jewellery from those of the list. He emphasizes that the quantity of jewellery seized is less than what has been disclosed in the Voluntary Disclosure Scheme. 8. Mr. Prakash Sahay, learned Standing Counsel appearing on behalf of the Revenue, however, contends that the assessee was given sufficient opportunity at the time of regular assessment and he failed to co-relate the jewellery seized with those disclosed in the Voluntary Disclosure Scheme. He submits that in the absence thereof the Income Tax Officer while making assessment was justified in adding the value thereof and the Tribunal rightly upheld that addition. 9. Having appreciated the rival submissions, we do not find any substance in the submission of Mr. Rastogi. May be the assessee was not given opportunity to co-relate the jewellery at the time of seizure but he was given opportunity at the time of regular assessment. 9. Having appreciated the rival submissions, we do not find any substance in the submission of Mr. Rastogi. May be the assessee was not given opportunity to co-relate the jewellery at the time of seizure but he was given opportunity at the time of regular assessment. In our opinion, mere valuation of many items of the jewellery in the valuation report will not make it difficult for the assessee to co-relate the different items of jewellery from those given in the Voluntary Disclosure Scheme. In our opinion, merely the fact that more quantity of jewellery have been disclosed in the Voluntary Disclosure Scheme itself shall not mean that the jewellery seized in fact formed part of the Voluntary Disclosure. It is not a case of the assessee that the jewellery seized was in fact made after altering the jewellery disclosed in the Voluntary Disclosure Scheme. In that view of the matter, we are of the opinion that the value of the jewellery was rightly added in the income of the assessee. 10. Accordingly, we answer the question in the affirmative, in favour of the Revenue and against the assessee. There shall be no order as to costs.