9911796707
TMI Blog2010 (1) TMI 697X X X X Extracts X X X X X X X X Extracts X X X X ..... (through its partner, Shri R. Subramania Pillai) in its respect. The only explanation furnished was for jewellery to the tune of 500 gms., i.e., as having been received for repairs. Accordingly, the balance gold ornaments weighing 4504.330 gms. balance the same would work to 5075.48 gms.) stood seized vide Annexure AKV-J to the Panchnama. In the assessment proceedings, the assessee objected on being show-caused in respect of the unaccounted gold weighing 5575.48 gms. even as the revenue accepted the assessee's explanation toward 500 gms. of gold ornaments as received for repairs. However, it carried the objection - to the proposed addition for the balance 5075.480 grams of gold jewellery - only qua that, weighing 2105.2 gms., claiming it to have been purchased from one Shree Veer Jewellers, Nellore, stating that the said fact stood brought to the notice of the Authorized Officer at the time of search itself, though not taken any cognizance of by him. Further, in view thereof, it had highlighted the said state of affairs to the concerned officer, being ADI (Inv.)-I, Cochin, on the very next day (of search) itself, i.e., 10-11-2000, vide a letter of even date; averring thereby that, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee, with the amount lying to its credit being remitted by the assessee through bank demand draft(s). The Assessing Officer, in his view, ought to have conducted an enquiry on these evidences and not dismissed the assessee's case solely on the basis of the ADI's reply dated 30-11-2000. He, therefore, deleted the said addition of Rs. 8,12,607. Aggrieved, the revenue is in appeal before us. 4.1 Before us, like submissions stood raised by either side. The Ld. Departmental Representative (D.R.) placed emphasis on the ADI's letter dated 30-11-2000 written in reply to the assessee's letter dated 10-11-2000. The Department had not however stopped at that but made further enquiries which led to the discovery of the fact that the stated 'seller' had closed his shop since 26-10-2000, a fact that stood borne out by the assessee's immediate neighbour and, in any case, stands not disputed by the assessee. Further, the 'invoice' furnished does not carry any detail of the goods except for stating it to be for new ornaments, bearing gross weight of 2105.2 gms., including stones at 252.60 gms., which (weight) stood adjusted while applying the purchase rate of Rs. 410 per gram. 4.2 Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its investigation wing, and not through the field formation (as done)? These, and other such-like questions, arise, which should have been addressed as it would lead to the truth in the matter and, thus, a decision based on direct evidence, particularly as all these facts; the Department's procedure being only official, so that it would only be properly documented and authenticated, but stand left open by the authorities below. The ld. CIT(A) should have, therefore, caused further probe in the matter either through the Assessing Officer or by himself, his powers being co-terminus therewith, as there is clearly something more than meets the eye. 5.2 Nevertheless, that would not by itself prove the assessee's case whose conduct has not been above reproach. In fact, all that it had to do; the partner being only aware of the 'purchase transaction', was to specify the same, identify the jewellery purchased and support it with some material, as say, purchase order, goods received on approval note, etc., to conclude the matter in its favour. What prevented it to do so is the most natural question, and which remains unanswered? For all we know, there may not be any one (or more) p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nspection of the goods for their quality and passing the same. When enquired by the Bench if any receipt stood issued in respect of the said receipt of goods, the ld. AR answered in the negative, further stating that that was not the stand of the Revenue. We can hardly agree, and the said argument only needs to be stated to be rejected. The ADI (Inv.) emphatically maintains that the assessee made no mention of the purchase from Shree Veer Jewellers in the statement given on oath during Search nor any papers, vouchers or any other document in its respect were found thereat. Also, no photocopy of the bill stood given to the search party, and which is only axiomatic if one goes by his version of nothing having been found at the time of Search - so that its copy could not possibly be generated and given - and which if so would also have found mention in the statement itself. Even as we would like to strike a neutral stance between the two contrary claims, i.e., by the assessee and the ADI, the former's statement itself goes against its case; there being admittedly no mention of the same in its statement on oath. In fact, that is the first thing that the assessee would have stated, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d' goods with the buyer, getting them examined in his presence, and which only explains or justifies their transmission, the goods being otherwise valuable, through one. In any case his leaving' unaccepted goods with the assessee could not but be with a proper document evidencing the same, Also, as the goods were to be inspected and approved only the next morning, he could have come back the next day to collect the 'acceptance note' or for taking delivery of the part (or even total) goods, i.e., to the extent not accepted by the assessee, who has itself stated that the said process would have been completed by the next day, i.e., 9-11-2000, the day of search. In fact, the nature of the transaction itself so suggests. Why, therefore, we wonder, did the assessee not disclose the identity or the particulars of the person who delivered the goods ostensibly on the 8th day of November, 2000 to the Revenue? This is particularly so as there had arisen a controversy with regard to its source of supply, with the revenue, as claimed, not taking cognizance of its stated source, requiring it to highlight its concerns by way of a separate communication in the matter, which the said person could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possessing excess stock to the extent of 5075.480 gms., failing to give any explanation in its respect, save for the impugned 2105.2 gms. of gold ornaments. Further, it was also found to be in possession of loose papers indicating purchases and sales outside books for which separate additions stood made by the Assessing Officer, though telescoped by him against the principal addition for 5075.480 gms. of gold jewellery. The assessee is, thus, engaged in the unaccounted business along with the accounted one. In fact, the assessee's case is based totally on the bald statements and unsupported by any proof or corroborative material. Here we may also clarify that it is not necessary for the revenue, as contended by the ld. DR, to show that the transaction represented by the sale invoice dated 4-11-2000 is a sham one, but whether the same is in respect of the gold jewellery in possession with the assessee at the time of Search. It is qua this that the issue is limited to in the present case, and toward which we have given our finding in the Revenue's favour. We say so as it may well be that jewellery to that extent, stands delivered, along with the documents which would normally accompa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
