TMI Blog2016 (5) TMI 1328X X X X Extracts X X X X X X X X Extracts X X X X ..... , as against the "real reasons" which were referred to in the assessment year 2000-01. Suffice to say that the issue before us is exactly the same as before Their Lordships, and that, in our considered view, there is no material change in facts and circumstances of the case, nor is there any material and additional evidence which affects binding nature of this judicial precedent. The facts of the other assessment years, i.e. assessment years 1991-92 to 1994-95, are similar, and, as learned representatives fairly agree, outcome of all the assessment years will be the same. - Decided against assessee - I.T.A. Nos. 2414 to 2418/Ahd/2011 - - - Dated:- 31-5-2016 - S. S. Godara (Judicial Member) And Pramod Kumar (Accountant Member) For the Appellant : J. P. Shah with M. G. Patel For the Respondent : S. L. Chandel ORDER Pramod Kumar (Accountant Member) 1. These five appeals are directed against a consolidated order dated 29th August 2011, passed by the learned CIT(A), in the matter of assessment under section 143(3) r.w.s. 254 of the Income Tax Act, 1961 ( the Act hereinafter) for the assessment years 1990-91 to 1994-95. 2. Grievance of the assesses is as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turing of ornaments of 22 carat purity, the actual fineness is 91.66% in the final product as per the export bills and certificate of custom authorities. He worked out excess consumption of gold which according to him had been actually sold in the local market. This addition of the ITO was upheld by Id. CIT(A) Hon'ble ITAT except a minor relief was allowed to assessee on working of purity of standard gold. The minor relief was given on the point that the A O had taken the purity of standard gold bar at 100% whereas the purity of standard gold bar is generally of 99.53% only and therefore, the working of 22 carat gold ornament will give a percentage of 92.93% against 93.37% taken by the AO. The A.R. has furnished the revised working of excess consumption as per the appellate order of the CIT(A) which is examined and reproduced herein below:- Revised Calculation of Excess Consumption, as per Appeal Order Sr. No. Carat Wt. in grams % of excess consumption as per appeal order of 89-90 Excess consumption quantity in grams Rate of standard gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. CIT(A) but without any success. Learned CIT(A) upheld the impugned addition, and, while doing so observed, as follows :- 2.3 I have considered the facts of the case; assessment orders and appellant s submissions. Honourable ITAT set aside these appeals to the file of the AO since appellant s appeal in high court for aassessment year 198990 is pending. The direction to the AO was to decide these assessments on the basis of findings of High Court in assessment year 1989-90 if available till the limitation period of assessment. 1TAT also directed the AO to keep in mind the order of tribunal in the appellant's own case in assessment year 1989-90 while passing the set-aside assessments in these years. Since appellant's appeal for assessment year 89-90 is still pending in High Court, assessing officer is bound by the order of honorable tribunal in the appellant's case for assessment year 89-90. The relevant extract of the tribunal's order is quoted below- On carefully going through the assessment order and the order of the CIT(A), we find that the revenue has not disputed this fact regarding the mixing of the alloys to standard gold as given by the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown as 91.67 % (0.9167). The assessee has miserably failed to explain the difference between 93.37% as shown in its books of account and the above mentioned figure of 91.67% shown in the export document. The onus is on the assessee to show how the excess consumption of gold has taken place. The difference is so substantial that it cannot be claimed as wastage in the manufacturing process. In view of the fact that the assessee has received the gold ornaments of the prescribed quality from the karigars and such final product has been exported as per the expert documents. We are of the view that the cast on the assessee by the finding of the assessing officer has not been discharged. The only inference is that the excess gold shown as consumed in the manufacturing has been sold locally by the assessee outside its books of account. This is because as far as the exports sales are concerned, the quality and purity of the gold ornaments exported have been certified by the custom authorities and subjudicated to the Hallmarking in the imported countries. The only dispute here centers around the discrepancy in the purity shown in the books of accounts of the assessee and the finances are ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t dated 4th March, 2014. Their Lordships have thus in assessee's own case for the assessment year 1989-90, held as follows :- 8. Having thus heard learned counsel for the parties and having perused the documents on record, it emerges that the revenue authorities as well as the Tribunal came to conclusion that there was considerable discrepancy in the quantity of gold recorded in the assessee's books at the time when the ornaments were manufactured and received from the artisans, as compared to the gold actually exported by the assessee to its foreign importers. 8.1 This is not even seriously disputed by the assessee. If we take as sample of such discrepancy that emerges in the category of 22 Carat gold ornaments, after supplying raw gold to the artisans and the artisans preparing gold ornaments after adding alloy in the specified quantity, the assessee received gold ornaments, according to the assessee's records having purity of 93.37%. The very same ornaments when were exported, the assessee recorded its purity as 91.66%. Some of these ornaments also were subject to actual test by the Customs authorities. The result also matches the assessee's claim of go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghly accurate results. In the present case, however, assessee itself declared certain purity of gold which also co-insided with the random testing carried out by the Customs authorities. 10. The difference between the two sets of declarations was not minor or insignificant. It could not have been passed off as mixing of impurity or error in measuring standards. It was simply a case where the assessee utterly failed to explain the considerable difference in the gold quantity in two sets of documents maintained by itself. 10.1 It can therefore not be stated that the finding of the authorities below, as confirmed by the Tribunal, are per verse. It is also not true that in coming to such conclusions, the Revenue authorities ignored the presence of the certificate of the Gems Jewellery Export Promotion Council. The contention that in absence of proof of local sale, it must be presumed to have been exported, in our opinion, is fallacious. It is not even the case of the assessee, barring his explanation about the higher purity of gold being exported when lower purity gold is declared in the export documents, that such gold was in some form or the other, separately or independe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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