TMI Blog2005 (6) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... n the back of the assessee and not confronted to the assessee. 2. That the learned CIT(A) has wrongly confirmed the action of learned AO for reducing the long-term capital loss from Rs. 2,13,512 to Rs. 31,696." 2. We have heard the learned representatives of both the parties and gone through the observations of the authorities below. 3. Briefly the facts are that the assessee filed return of income and is stated to be in the business of trading in shoes. The GP rate was better as compared to the preceding assessment years. The AO on perusal of the computation of income filed by the assessee found that the assessee inter aha, is claiming a carry forward of capital loss of Rs. 2,13,512 on account of sale of jewellery claimed to have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und that the signature of Shri Bishan Chand on the vouchers and the confirmatory letter do not tally. The AO finding time limitation decided the issue on the basis of material on record. The AO held that the sale is bogus as the party is not traceable at Delhi even though confirmation has been received by him. The AO accordingly was of the view that the assessee has introduced his own money and made the addition of Rs. 7,66,519 in respect of gold coins and jewellery under s. 68 of the IT Act. The loss of Rs. 2,13,512 as claimed by the assessee was also reduced to Rs. 31,696 only on account of sale of silver. The addition was challenged before the CIT(A) and it was briefly submitted that the gold jewellery and gold coins were shown in the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t stage and has made enquiries directly from the concerned party by issuing letter and commission. The CIT(A) on the basis of material on record also found that the purchasers M/s Bishan Chand Mukesh Kumar is assessed to tax at Delhi with the ITO, Ward-10(2), New Delhi, and even perusal of Inspector's report reveals that the purchaser existed at the relevant premises and on the basis of enquiry conducted by the Inspector, the purchaser was still functioning from the premises where the letters were sent by the AO. The CIT(A) also observed that the letters issued by the AO did not return back undelivered to show that the purchaser was served with the letter issued by the AO. The CIT(A) on the basis of these material on record was of the consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT (1980) 19 CTR (SC) 360 : (1980) 125 ITR 713 (SC) (2) Sona Electric Co. vs. CIT (1984) 43 CTR (Del) 287: (1985) 152 ITR 507 (Del) (3) Chiranji Lal Steel Rolling Mills vs. CIT (1972) 84 ITR 222 (P H) (4) Jay Frozen Foods Ors. vs. ITO (1992) 196 ITR 724 (Mad). The learned counsel for the assessee further submitted that the CIT(A) has given a contradictory finding. 5. On the other hand, the learned Departmental Representative relied upon the orders of the authorities below and submitted that the authorities below were justified in making the addition against the assessee. 6. We have considered the rival submissions and material available on record. There is no dispute that the assessee owned and possessed gold coins and gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record clearly establish that the assessee has sold gold jewellery and coins to M/s Bishan Chand Mukesh Kumar, who has also confirmed this fact to the AO in the confirmatory letter. The assessee has, therefore, discharged the onus of proving that he has sold the gold jewellery and gold coins to the purchaser. On the other hand, the AO has not brought any evidence on record to contradict the evidence led by the assessee. The AO has made certain queries directly from the concerned party through issue of letters as well as through DDI, Delhi. The letters of the AO did not return unserved as (sic-which) indicated that the party existed at the given address. The purchaser also confirmed directly purchase of gold to the AO. Only the DDI, submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expert, the opinion of a handwriting expert cannot be taken with certainty." 10. Considering the above discussion and the case laws referred to above, we are of the view that there was sufficient material available on record to prove that the assessee sold the jewellery to M/s Bishan Chand Mukesh Kumar Saraf, Delhi. Whatever enquiry was conducted by the AO was conducted at the back of the assessee and even observation with regard to the handwriting of the assessee also done at the back of the assessee without giving any opportunity to the assessee to explain the point, therefore, such evidence is not legally admissible against the assessee. Even the AO has not made out a case that gold jewellery and silver were available with the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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