TaxTMI 
TaxTMI 
2016 (7) TMI 505
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.... 03. During the course of assessment proceedings it was noted by the AO that these assessees had credited the following sums as sale proceeds of gold/silver/bullion : Table No.2 Sl. No Name of the assessee Realisati on from sale of gold / bullion Rs. Realisat-ion from sale of silver Rs. Realisation from sale of diamond Rs. Total Rs. 1. Shri. Srinikraj V. Kataria 3,43,862 Nil Nil 3,43,682 2. Shri. S. B. Sankannavar 3,66,795 98,726 Nil 4,65,521 3. Shri. Chandrakant S. Sankannavar 2,71,174 2,84,130 4,40,000 9,95,304 4. Shri. Ashok S. Sankannavar 3,50,960 2,96,185 2,20,000 8,67,145 04. All these assessee had taken advantage of VDIS, 1997 (VDIS in short). Under this scheme assessees had declared jewellery valued as under: Table No.3 Sl. No Name of the assessee Gold jewellery Rs. Silver utensils Rs. Diamonds Rs. 1. M/s. Srinikraj V. Kataria 3,36,219 Nil - 2. Shri. S. B. Sankannavar 62,558 10,572 - 3. Shri. Chandrakant S. Sankannavar 1,69,980 18,519 45,000 4. Shri. Ashok S. Sankannavar 2,19,992 18,596 ....
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....or the assessee to contradict the finding of the Assessing Officer that landlord has stated that the premises were occupied only from 27/3/98. However, I cannot ignore the findings recorded by the Tribunal in the order cited above, especially in paragraph 6.4 of the order where certain facts have been referred to discredit the version of Mahalaxmi Jewellers. In this paragraph even the letter of the landlord dated 23.10.97 has been referred to and it has been remarked by the Tribunal that this letter does not . clearly say as to when Mahalaxmi Jewellers have also been adverted to in this paragraphs and it has been held that the transaction which Mahendra Kothari and others had with Mahalaxmi Jewellers have not been proved to be genuine. It is noteworthy that the Kothairs also had evidence to show that the jewellery was sold to Mahalaxmi Jewellery but despite this the Tribunal based its conclusion on the evidence brought before it to disprove the existence of Mahalaxmi Jewellers and the genuineness of the transaction which Mahendra Kothari had with it. In the light of this situation brought out in the Tribunal order, I am unable to accept the contention of the learned counsel for the....
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....jewellery which were declared by them in VDIS. He did not accept the source for the credits. Additions were made once again. 10. Aggrieved, assessees moved in appeal before the CIT (A) once more. CIT (A) noted that M/s. Balaji Refinery, Hubli through which assessees claimed to have melted the gold and silver articles to bullion, never existed in the address given by the assessees. As per the CIT (A), letters addressed to M/s. Balaji Refinery, Hubli were returned unserved. CIT (A) also noted that Gold and Silver Refinery Association, Hubli, had written to the AO that no such refinery called M/s. Balaji Refinery ever did any refinery work since 15 years. Further as per the CIT (A), the Inspector deputed by the AO had enquired near Jain Mandir, Keshavapur, Hubli, as well as Azad Colony, Hubli, where, as per assessees, M/s. Balaji Refinery functioned. As per the CIT (A), Inspector had also verified with the owners of various buildings in Keshavpur, who vouched that no such building named, Azad Complex, existed nor they new any Balaji Refinery. Thus according to CIT (A) assessees were unable to show that the gold and silver jewellery which were declared by them in their VDIS returns ....
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.... claims. As per the Ld. DR additions were rightly made by the AO and confirmed by the CIT (A). 13. We have perused the orders and heard the rival contentions. Evidence furnished by the assessees in support of their contention that what were sold by them was the same gold jewellery after converting it into bullion has been perused by us. Case of one of the assessees, namely Shri. Srinikraj V. Kataria(HUF), has been taken as an example. The valuation report dt.23.12.1997, bill from M/s. Balaji Refinery, dt.25.01.1998 and and the purchase invoice issued by MLJ dt.26.01.1998 are reproduced hereunder: 14. What we note is that all the items which were appearing in bill issued by M/s. Balaji Refinery was also mentioned in the valuation report filed in support of the VDIS declarations. Purchase invoice issued by MLJ also shows the same weight of bullion as mentioned in the bill of M/s. Balaji Refinery. Case of the Revenue is that M/s. Balaji Refinery and MLJ were not found in Keshavpur, Hubli. Assessees were repeatedly questioned about this during the course of second round of proceedings. Inspector's report relied on by the AO was based on an enquiry done more than 15 years after th....
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....ctions relied upon by the assessee are the same goods which had been declared under the application filed under Voluntary Declaration of Income Scheme 1997, which was accepted by the revenue? 12) What order? 129191nt bas not 9m62 94T -\08YAY ameThe above substantial questions of law have been answered in ITA No.186/2004 arising on identical facts and law decided on 22/09/2008 by a detailed order pronounced separately. For the reasons assigned in the said appeal ITA No.186/2004, which is applicable on all fours to the facts of the present case, we answer the substantial question Document 2 of law No.1 in affirmative and substantial question of law No.2 as per final order. The assessment is set aside and the matter is remitted to the Assessing Officer for passing bfresh orders in the light of the observations made in the body of the High Court made in the in order......slf It is clear from the perusal of the material on record that having regard to the peculiar facts and circumstances of the case and the above said material on record and the contentions of the respective parties, the fact that the assessee had filed an application cla....
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....led under the Scheme 1997. If the assessee is able to prove that the goods that are sold under the transaction declared in the regular returns are the good which were declared in the application filed under the scheme 1997 and accepted by the revenue, then the question of taxing the transaction declare in the regular return u/s 68 would not arise and tax has to be imposed u/s 45 of the I.T. Act. Since this material fact has not been considered by the Assessing Authority or the first Appellate Authority or the Appellate Tribunal, it is clear that the finding given by the Income Tax Appellate Tribunal confirming the order of the First appellate authority, who in turn had confirmed the order of the assessing authority imposing tax under section 68 cannot be sustained and the same are Document 3 liable to be set aside. As the authorities have not given a finding on the material fact, a finding has to be given by the assessing authority, as to the above said material fact as to whether the assessee is able to prove that the subject matter of the goods which are sold as per the sale transactions declared under the regular returns filed for the assessmen....