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TMI Blog2023 (12) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the revisionary authority found the assessment in the instant case as infirm and, accordingly, directed for examination and adjudication afresh by the AO in accordance with law after providing the assessee due opportunity of presenting his case before him. 3. The background facts of the case in brief are that the assessee, Managing Director of Monsoon Foods (P.) Ltd., was subject to search at his residence and business premises u/s. 132 of the Act on 20.12.2019. Gold jewellery weighing 900.22 gms. (gross) and 802.29 gms. (net) was found. The same was, however, not subject to seizure following Board Instruction 1916 dated 11.05.1994 (BI 1916), which provides for, in view of the custom prevailing in several parts of India (including it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable, and in fact supported by several decisions by the Tribunal, some of which find mention in the assessee's paper-book. 3.2 The Revenue's case, on the other hand, was the same as of the revisionary authority. The AO himself, as a reading of his order shows, was, on the contrary, of the clear view that the gold jewellery is to be assessed as income as unexplained investment. It is only in view of BI 1916, which rather requires him to, despite non-seizure, consider the jewellery found in search for assessment purposes, that 'led' him not to do so. Further, if the assessee had indeed furnished the explanations and materials before the AO, explaining, as contended, the source of jewellery -though not brought on record by him, why should th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gms is treated as undisclosed investment. However, after providing for allowance for holding gold in individual's possession according to the CBDT Instruction No. 1916 dated 11/05/1994, a female member of a household is permitted to hold 500 gms. of gold jewellery, a male member 100 gms., unmarried girl 250 gms., and a boy 100 gms. Accordingly, the family is permitted to hold 1050 gms. of gold which is above the gold found in possession of the family. Hence, no assessment is made in this regard."(emphasis, supplied) 4.2 The AO's factual finding is, clearly, of the gold found during search being not satisfactorily explained and, accordingly, liable to be deemed as income for the relevant year. The BI, in his view, however, constrains hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch less prescribes, exclusion of unseized jewellery for assessment purposes; it, for the reasons stated, providing guidelines for the purpose of seizure by a search party qua gold jewellery. And, further, vide para (iv) thereof, specifically requires the assessing authority to consider the same for the purpose of assessment, i.e., from the stand-point of the investment being explained or otherwise. That is, he was obliged to, in terms of the Instruction itself, consider it, of course on merits, as per law. This is precisely what the revisionary authority has per the impugned order required the AO to do inasmuch as he has completely misread the same. There is, in purporting to adhere thereto, a complete disregard of BI 1916 by the AO in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in by the Hon'ble Apex Court, is not a judicial, but an administrative body, whose powers are clearly defined under the Act. It cannot, therefore, interfere in the exercise of judicial work by the Revenue authorities (CIT v. Greenworld Corporation [2009] 314 ITR 81 (SC); J.K. Synthetics Ltd. v. CBDT [1972] 83 ITR 335 (SC)). It is one thing to relax the rigor of the procedural law to mitigate 'genuine hardship' to any person or class of persons, and quite another to interpret the law. The interpretation being placed by the AO on the BI, besides being contrary thereto, is, with respect, outside the legal competence and mandate of the Board itself. Why, an interpretation whereby gold jewellery is to be under law treated differently from ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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