TMI Blog2023 (1) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But Shri Suresh Kumar failed to furnish the necessary details about the parties with respect to the ownership of the gold. Thereafter, the enquiry was consequently converted into the search under section 132 of the Act on Shri Suresh Kumar and subsequently, the gold was seized. 4. The search team during the course of post search proceedings found that one of the parcel bearing No. J-31 containing 949.18 grams of fine gold was sent by M/s Brij Mohan Jewellers for the purpose of the job work to the assessee, proprietor M/s J Ali Sons. Based on such information, the proceedings under section 153C of the Act were initiated against the assessee. 5. The assessee in the proceedings initiated under section 153C of the Act contended that he has purchased the gold from the party namely M/s Brij Mohan Jewellers. The assessee in support of his contention has filed the copy of the tax invoice dated 26 October 2017, ledger copies, bank statement to justify the payment, GST return of the supplier declaring the sale to the assessee and the stock registers in the books of the supplier. Likewise, the supplier namely M/s Brij Mohan Jewellers has also confirmed the fact of having supplied/sol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocumentary evidences. However, the AO only in the absence of form 402/430 of GST disbelieved the documentary evidence furnished and made addition under section 69A of the Act on protective basis. 9.2 The learned CIT-A after considering the facts in totality deleted the protective addition made by the AO by observing as under: 5.3.3 From the assessment order passed in the case Shri Sandeep Gupta, Prop. of M/s. Brij Mohan Jewellers, Hyderabad for Asst. Year 2018-19, it is seen that the Assessing Officer has categorically given the finding that the Fine Gold weighing 949.18 grams sent to the appellant actually belongs to Shri Sandeep Gupta, Prop. of M/s. Brij Mohan Jewellers, Hyderabad. Therefore, as the amount fo Gold seized has already been added in the hands of sender on substantive basis, the protective addition made in the hands of the appellant do not survive. Therefore, the addition of Rs.29,01,486/- is directed to be deleted. Ground of appeal no. 3 4 is allowed. 10. Being aggrieved by the finding of the learned CIT(A) the assessee is in appeal before us. 11. The learned AR before us filed a paper running from pages 1 to 291 and contended that the gold belongs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer had made additions in the hands of the assesses on protective basis (pg.115 of the paper book and para.6 of the assessment order). (7) That the Ld.CIT(A), upon consideration that the department has made substantive additions in the hands of Hyderabad based seller M/s.Brij Mohan Jewellers, on thesame item, has deleted the protective assessment (pg.8 of the paper book para.5.3,3). (8) That as such the assessee has no point of grievance against the department. As per facts available on record, he purchased gold on 26.10.2017 and received possession of such gold on the same date. He has presented bill dated 26.10.2017 before Income tax authorities. He has presented no evidence to suggest that the parcel, which was booked on 24.10.2017 and couriered on 25.10.2017 contained gold purchased by him on 26.10.2017, which was also received by him on 26-10.2017. As on date the protective assessment in his case has been deleted by Ld. CIT (A). By no stretch of imagination one can assume that gold purchased and handed over to the assessee on 26.10.2017 can be couriered on 24.10.2017 ( two days before such purchase) and despatched on 25.10.2017. (9) That the assessee has at no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... longs to the assessee and sent to assessee on account of purchases or for job work. Admittedly, the assessee in support of the genuineness of purchases has furnished the details as mentioned having below: Appellant also enclosing here with following supporting in this regard for your ready reference. M/s BrijJewellers Prop. Sandeep Gupta a) Copy of purchase invoice GST/189. b) Copy of ledger of M/s BrijJewellers for the F.Y. 2017-18 reflecting the transaction of Rs. 29,01,486/- c) Copy of GSTR-1 of brij jewelers reflecting the purchases of Rs. 29,01,486/- d) Copy of our stock register reflecting stock of Rs. 949.180/- e) Copy of stock register of brij jewelers. f) Copy of assessment order in case of brij jewelers wherein addition of Rs. 29,01,486/- is made. g) Copy of our bank statement reflecting part payment of Rs. 15,16,000/- h) Copy of Audited Financial Statements of BrijJewellers. i) Copy of bills of parties from where BrijJewellers has purchased gold. We therefore state that the said goods are duly accounted in the books and therefore no addition can be made on presumptive basis in our hands. It is further subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 15. At this juncture, it is also important to note that the persons namely Shri Suresh Kumar representing the courier agency Jay Mata Di Air Services , has submitted that the impugned gold was to be delivered to the assessee. This fact can be verified from the order disposing of objection raised in the proceedings under section 153C of the Act. The relevant finding of the AO stands as under: 3. As per the statement given by Sh. Suresh/jagdish the parcel no. J-31 has to be delivered to you. Therefore, as per the provision of Section 153C, being the person other than person referred u/s 153A as the information with regard to the gold seized in the case of pertains to, /, relates to you undersigned is being assessing officer is both the parties i.e. AO of the assessee covered u/s 154A an d also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eleased in favour of the writ applicant. 16. From the above, it is transpired that 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. 17. 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. Further, the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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