TaxTMI 
TaxTMI 
2015 (1) TMI 735
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....basis of the information received from the DDIT (Inv), Jammu as per the requisition made u/s 132A of the Act. In compliance to the Notice u/s 153A dated 16.8.2010; the assessee had filed his return of income, admitting an identical income. During the course of assessment proceedings, it was observed by the AO that the Special Investigation Unit [SIU] of the Commercial Taxes Department of Jammu seized jewellery estimated at Rs. 1.20 crores u/s 67(5), 67 (10)(6) of the Jammu & Kashmir Vat Act, 2005 from the assessee as, according to SIU, the consignment was not accompanied by any document. A warrant u/s 132A of the Act was served on the Addl. Commissioner of commercial Taxes (Admn) Jammu on 7.8.2009 and, accordingly, the jewellery worth of Rs. 1,11,89,825/- was handed over to the Department on 3.5.2010 and jewellery worth Rs. 37,06,106/- was retained by the commercial Taxes Department as security u/s 67(1) of the J & K Vat Act. After verifying the details furnished by the assessee during the course of assessment proceedings and for the detailed reasons recorded therein, the AO had concluded the assessment u/s 143(3) of the Act dated 29.12.2011 on a total income of Rs. 1,42,39,309/- t....
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....ry worth Rs. 37,06,106/- was retained by the Commercial Taxes Dept. as amount of security u/s 67(1) of J & K Vat Act, 2005. 6.2. Subsequently, the appellant moved an application u/s 132 B(1)(i) proviso to s. 132B(1) regarding the release of jewellery to the ITO, Ward 11(1), New Delhi. Till date, the said jewellery seized handed over to the Dept. is not released and the matter is yet to be decided and is sub-judice before the Hon'ble High Court, J & K, Jammu. 6.3. From the above facts, it is evident that at the time the appellant was intercepted he was not in possession of any document like sale bill, vouchers, certificate of ownership, way bill etc., to substantiate the gold/diamond ornaments he was carrying with him. The seized jewellery was out of the books and the appellant failed to produce any documentary evidence at that time. The statement of Shri Rajesh Dhalla was recorded by the Income-tax Department on 30.l0.2009 and the appellant did not deny the ownership of jewellery which he subsequently stated that the seized jewellery belongs to the company. Vide dated 18.11.2009; the appellant filed an appeal before the Appellate authority u/s 72 of the J & K Value Added Tax Act ....
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....d from the file with a mala-fide intention to weaken my case. That I applied for certified copies of invoices a month back through registered post but I have not heard from the said officer nor have I received the certified copies.' 6.5.On a perusal of the above two affidavits which are on different dates and with a gap of few days, I find that all these were submitted after the seizure in order to give a credence as through the bills/invoices were available with the appellant on 31.7.2009 which in reality is a different version. There is no relation between the appellant and the said Dy. Commissioner of Commercial Taxes (Recy.) Jammu Sh. Pawar Kumar Parihar and why would anybody deny the fact of seizure of bills/invoices, unless the appellant's motive is mala-fide with an ulterior aim to get his goods released by all means. This act by the appellant is an afterthought which is not supported by any documentary evidence. On perusal of the details of documents furnished inter-ala application u/s 132B(1), it is seen that the appellant furnished various documents pertaining to him, but, he failed to file any conformation/evidence from those parties to whom he supposedly made sales in....
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....t Jammu. As per the warrant u/s 132A of the I.T. Act, jewellery worth of Rs. 1,11,89,825/- was handed over to the I.T. Department and jewellery worth of Rs. 37,06,106/- was retained by the STA under the J & K Vat Act, 2005. During the course of assessment proceedings, the assessee had, however, contended that the jewellery was not belonged to him, but, was belonged to M/s. D-Mines Trading Co. Pvt. Ltd in which admittedly he is a director. He had, further, contended that as the bills have been issued by the company and duly accounted for in its books of account, stock register, there was no reason to disbelieve the fact that the jewellery belonged to the company. However, the AO made the addition of Rs. 1,38,02,690/- u/s 69A of the Act on the ground that at the time of seizure of jewellery by the STA, Jammu, the assessee was not carrying any bills/invoices. The CIT (A) had also confirmed the addition made by the AO on the ground that that 'the onus was on the appellant to prove that he is not the owner of the gold/diamond ornaments that were seized by the Sales Tax Officer at Jammu. It is also a point to note that the appellant derived income from the partnership business which was ....
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....y the Hon'ble Court that 'The value of seized gold could not be assessed in the assessee's hands as its explanation that the seized gold belong to certain person who had admitted the ownership, had been accepted by CEGAT. A mere possession of gold would not lead to the presumption of ownership. If the assessee disclaimed the ownership, the onus to prove the ownership would lie with the Department.' (ii) In the case CIT v. Bal Kishan (supr), the Hon'ble Rajasthan High Court had held that 'No interference was required with the Tribunal's order as the CIT (A) and the Tribunal had concurrently found that the AO did not have evidence to arrive at his conclusion.....' (iii) The Hon'ble Madras High Court had, in the case of CIT v. Vignesh Kumar Jewellers (supra), held that'The AO made addition on account of unexplained jewellery etc., and unaccounted sales merely on the basis of the report of the Directorate of Revenue Intelligence. Those findings were revered by the Tribunal. No independent inquiries made by AO. No corroborative evidence was found. No addition to income as unexplained jewellery could be made." 5.4 In this case undisputed facts are that, assessee is a Director of a com....