TMI Blog2015 (4) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case run by the assessee during the hearing of the appeal that the Commissioner of Income Tax held that if the case of the assessee in the appeal is true, then there should have been 25 Kgs of gold in the closing balance. Since the closing balance is nil there is suppression of sale of 25 Kgs Gold. Since the learned Tribunal was agreeing with the views of the CIT (Appeal), it was not incumbent upon them to write out an elaborate judgment or to reiterate what had already been indicated in the judgment of CIT (Appeal).The issue was whether the purchase was overstated. The assessee was given opportunities repeatedly to adduce evidence to rebut the proof adduced by the revenue in support of the aforesaid issue. The assessee failed to discharge its burden. It has not been shown to us that any question of fact essential to the right decision was left undetermined. The case sought to be built upon on the basis of the letter dated 7th June 2010 is a new case which the authorities below had no occasion to consider. The case run by the assessee before them has been falsified. We do not think for ends of justice a remand is permissible in the facts of the case. - Decided against as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ference as above is fully explainable. The above error was a typographical error which was done unintentionally and escaped the notice of the Ld.A/R the assessee. It was also stated by the A/R during the hearings that the assessee-company had received 20 kg gold bars on 30/12/2003 5 kg gold bars on 03/01/2004 from J.J.Gold House. These gold bars were claimed to be shown in the stock on the same date and lying as closing stock as on 31/03/2004. These gold bars were also shown as opening stock. Since rate was not fixed at the time of receipt of gold, the assessee did not show it in purchase for the F/Y 2003-04. After fixing the rate on 06/07/2004, the gold bars were shown as purchase for the F/Y 2004-05. The said gold bars were sold in the f/y 2004-05. The assessing officer did not accept the explanation and proceeded to hold that there was bogus purchase of a sum of ₹ 1,51,09,660/-. The assessee preferred an appeal. The Appellate Authority remanded the matter before the Assessing Officer. During the remand the contention of the assessee that 20 kilograms of gold received on 30th December, 2003 and 5 kilograms of gold received on 3rd January, 2004 from J.J. Gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferred by the assessee before the learned Tribunal has also failed on 20th January, 2012 which is under challenge in this appeal. The following questions of law were formulated at the time of admission of the appeal. (I) Whether on a correct interpretation of the provisions contained in section 147 read with section 148 of the Income Tax Act, 1961, the Tribunal misdirected itself in law in upholding the validity of the initiation of the impugned reassessment in the instant case of the appellant assessee company for the assessment year 2005-06 based on the impugned notice dated 15th September 2008 issued under section 148 of the said Act even when no fresh material whatsoever had come in the possession of the Assessing Officer after completion of the regular assessment vide order dated 13th November, 2007 passed under section 143(3) of the said Act ? (II) Whether the findings recorded by the Tribunal in upholding the addition of ₹ 1,51,09,660/- in paragraphs 6.2 and 6.3 of its impugned order dated 20th January 2012 are wholly erroneous in law against the facts and the evidence on record, wholly baseless, unreasonable and/or otherwise perverse ? The appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The explanation offered by the assessee did not explain the discrepancy pointed out and relied upon by the Assessing Officer during the reassessment proceeding. Even assuming the contention of the assessee to be correct, for a purchase of ₹ 1,43,06,255/-, the purchase account could not have been debited by a sum of ₹ 1,51,09,660/- as was admittedly done. The alleged credit to the P/L A/c by a sum of ₹ 8,03,405/- does not also match with the contention of the assessee which is as follows:- 7th July 2003 Fixed deposit of a sum of ₹ 1,50,00,000/- was created by the assessee for the purpose of pledging the same. (Page 196) 30th December, 2003 20 Kilograms of gold vide Challan No.2 was received by the assessee. (Page 196) 3rd January, 2004 5 Kilograms of gold vide Challan No.3 was received by the assessee. (Page 196) 6th July, 2004 M/s. J. J. Gold House issued bills for ₹ 1,14,42,680/- and for ₹ 28,63,575/- aggregating to a sum of ₹ 1,43,06,255/- (Page 197) 6th July, 2004 The fixed deposit of a sum of ₹ 1.5 crore was encashed at a sum of ₹ 1,57,15,924.72 paisa and directly credited to the account of seller M/s. J. J. G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 916310, 916312 to 916317, 916288, 916289, 916291, 916292, AC054151 to AC054153, AC 54154 to AC54158 sold to various parties, as per details given in List Y annexed hereto. The Identification Nos. of these Gold Bars, weighing about 25 Kgs., are those, which had been purchased from M/s. Jindal Dyechem Industries Pvt. Ltd. in the financial year ending 31st march, 2004; and which replaced the borrowed Gold Bars from M/s. J. J. Gold House already sold in the financial year ending 31st March, 2004. Nothing was shown to us to indicate that even this letter was brought to the notice of any of the authorities below. What has dealt a deadly blow to the case of the assessee is the fact that the assessee took a stand before the CIT (Appeal) that Gold purchased from JJ Gold House was not 58402.07 Gms, but it was, in fact, 83402 Gms. Naturally, the CIT (Appeal) asked the assessee to account for, in that case, the closing balance of 25Kgs of Gold. If the assessee had got 25 Kgs of Gold more than the declared weight for the same amount of purchase money, then the 25 Kgs of Gold should be in his closing stock, which was sought to be countered by the assessee by alleging that the purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchased 25 Kgs of gold in addition than what was shown originally from J. J. Gold House, then the total quantity purchased in the year has to be increased by 25 Kgs of Gold and that 25 Kgs of Gold should consequently be in the closing stock. Since the closing stock is nil a view could certainly be taken that the assessee had suppressed sale of 25 Kgs of Gold. But that does not change the original position. The original position remains the same. It transpired from the fact that the purchase account was inflated by a sum of ₹ 1,51,09,660/-. It is only on the basis of the case run by the assessee during the hearing of the appeal that the Commissioner of Income Tax held that if the case of the assessee in the appeal is true, then there should have been 25 Kgs of gold in the closing balance. Since the closing balance is nil there is suppression of sale of 25 Kgs Gold. Since the learned Tribunal was agreeing with the views of the CIT (Appeal), it was not incumbent upon them to write out an elaborate judgment or to reiterate what had already been indicated in the judgment of CIT (Appeal). For the aforesaid reasons, the contention that the view taken is perverse is altogethe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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