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2023 (1) TMI 531 - AT - Income TaxAddition on protective basis u/s 69A - genuineness and ownership of fine gold - whether the impugned gold seized by the Revenue belongs to the assessee and sent to assessee on account of purchases or for job work? - HELD THAT:- Admittedly, the facts brought on record by the AO are crucial but we note that such mismatch was never confronted to the assessee for his rebuttal. Thus, it appears to us that some details has been used by the AO against the assessee behind his back which is not desirable under the provisions of law. There were various documents which have been furnished by the assessee during the proceedings before the respective authorities as elaborated in the preceding paragraph. With respect to the same, no iota of doubt was raised by the revenue. In fact, the assessee has shown payments against the purchases which were duly recorded in the books of accounts and reported in GST return by both the parties’ i.e assessee and seller M/s Brij Mohan Jewellers. In the absence of any infirmity in all these details, it seems to us that the assessee is being faced certain difficulties. On one hand, the assessee has made the payment against the purchases but failed to take the delivery of the gold which was purchased by him. One of the party being Seller has denied to have made sales to the assessee whereas in the case on hand both the buyer and the seller have admitted to have carried out the transaction of purchase and sales. Thus, what appears is this that the case on hand is stronger than the case cited above. It is for the reason that the transaction on hand for the purchase and sale is duly supported based on the documentary evidence which have not been disputed or doubted by the authorities below. It is the settled law for the additions made under the provisions of section 69A of the Act, the onus lies upon the Revenue to establish that the assessee is found owner of money, bullion, jewellery or other valuable article which is not recorded in the books of accounts. Assessee failed to offer an explanation about the nature and source of acquisition of such money, bullion, jewellery or other valuable article. In the case on hand no cogent material brought on record suggesting that impugned gold is unaccounted and assessee failed to offer an explanation. As such both the assessee and the seller duly recorded the transaction of sale and purchase of fine gold weighing 949.18 gram. The seller confirmed to have made sale to the assessee vide tax invoice dated 26 October 2017 and received payment against such sale. Therefore, merely for the reason that the seller behind the back of the assessee stated that he physically handed over the gold to the assessee instead of making courier, the documentary evidences in the form of tax invoice, proof of payment, and recording of transactions in books of account cannot be brushed aside. n view of the above and after considering the facts in totality and in the light of the principles laid down in RAKESHKUMAR BABULAL AGARWAL [2022 (3) TMI 527 - GUJARAT HIGH COURT] we are inclined to hold that the assessee is the owner of the gold. Hence, the ground of appeal of the assessee is allowed.
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