TMI Blog1997 (6) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... und from the business premises of Amratlal Bhagwandas Soni, in which the assessee is one of the two partners, the other being his father Shri Bhagwandas Soni. From the business premises of assessee's son i.e. Sonal Jewellers, 128 gms. of gold ornaments were found by the Asstt. Collector (Preventive). All the above ornaments were seized by the Asstt. Collector (Preventive). The subject-matter of appeal before us is the value of 469 gms. of "Kucha" gold amounting to Rs. 91,455 and the value of 128 gms. of gold ornaments amounting to Rs. 29,230 found at the business premises of the Sonal Jewellers belonging to the son of the assessee. 2. During the course of search on 12th Nov., 1985 a statement of the assessee was recorded by the Asstt. Collector as also the Panchnamas were drawn. During the course of this statement, the assessee admitted that the pieces of gold with the sign of 'Shree' belonged to him; these were Tejabi gold pieces which were being given to him by one person named Shri Baburao who is Maharashtrian and has refinery in Sonini Khadki, Manek Chowk, Ahmedabad in the name of Maharashtrian refinery. He admitted that these Tejebi gold pieces were not entered by him in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r: "As regards 469 gms. (117.500 + 117.500 + 117.000 + 117.000) from the assessee's business premises, it has been argued that it represented the assessee's own ornaments but melted and made into pieces. Except this there is no proof regarding the possession of the same gold. A question was put to the assessee as to why this was not recorded in the register, the reply has been that this being the ornaments belonging to the members of the family, no entry was made in the register. In this connection, it may be noted that there is no proof that the ornaments alleged to have been melted and put into the shape of raw gold, belonged to the assessee's family. The argument cannot be accepted as no one is permitted to keep raw gold without the permission of the Central Excise Department. The assessee has no other arguments for the possession of the gold. It may be mentioned that once the gold is found in the business premises of the assessee, it is required to be noted in the register even though the same belongs to the members of the merchant's family. However, according to the assessee this is not required to be recorded. This argument is not correct. As stated earlier the gold bars w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e statements of these two ladies recorded by the Inspector (Prevention) Gold, Hq., Ahmedabad on 12th April, 1986 in which the ladies stated that the two gold pieces each belonged to them. She further noted that both the ladies are assessed to wealth-tax and she drew our attention to the following note appended to the statement of wealth shown for the asst. yr. 1986-87 by Smt. Jiviben: "During the year, Nakor gold Kadas Nos. 2 weighing totally 236.000 gms. were melted and formed into two gold pieces weighing totally 234.500 gms. marked each with emblem of "Shree" thereon (Shortage 1.500 gms.)" A similar note was appended by Smt. Nirmalaben in her statement of wealth for the asst. yr. 1986-87. The learned counsel for the assessee submitted that since the ownership of four pieces of gold did not vest with the assessee the same could not be assessed in the hands of the assessee. In support of her contentions she relied upon the following decisions: 1. Addl. CIT vs. S. Pitchaimanickam Chettiar (1983) 34 CTR (Mad) 139; 2. Smt. Sant Kaur vs. ITO (1981) 12 TTJ (Del) 155; and 3. J.S. Parkar vs. V.B. Palekar (1974) 94 ITR 616 (Bom). The learned counsel for the assessee furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though not conclusive, is decisive of the mater unless successfully withdrawn or proved erroneous. What is admitted by a party to be true must be presumed to be true unless a contrary is shown. Here during the course of search the assessee in his statement spontaneously admitted the ownership of the four gold pieces but later on after a lapse of three months he retracted from the same. Such a retraction is not permissible under the law and it was rightly rejected by the Collector of Customs who confiscated the gold and slapped the assessee with fine and penalty. It is also noteworthy that in the Panchnama which was drawn at the time of search which was signed by the Punchas the assessee and his wife there was no mention that these four gold pieces belonged to the two ladies of the family. It was later on that these two ladies were produced before the Inspector (Prevention) Gold, Ahmedabad who recorded their statements on 12th April, 1986 during the course of which they submitted that two pieces each belonged to them. Since these statements were not corroborated by any other evidence the same were rightly rejected by the Collector of Customs and Central Excise. Reliance placed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kumar was major, he was running independent business in the name and style of Sonal Jewellers and if at all any addition was called for the same ought to have been made in the hands of Shri Maheshkumar and not in the hands of the assessee. She further submitted that Shri Maheshkumar is independently assessed to tax and in this regard she drew our attention to the assessment order of Shri Maheshkumar. 11. The learned Departmental Representative relied upon the orders of the authorities below and submitted that since Shri Maheshkumar had no independent status, gold ornaments weighing 128 gms. belonged to the assessee and accordingly addition of Rs. 29,320 was justified. 12. We have considered the rival submissions and perused the facts on record. It is admitted by the AO in his order that at the relevant time Shri Maheshkumar was major; that he was running business under the name and style of Sonal Jewellers; though he had no licence for gold ornaments, he was dealing in silver jewellery but the shop in which he was running the business was rented in the name of assessee. In our opinion there is no doubt that Shri Maheshkumar was running business in his own right and simply the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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