TaxTMI 
TaxTMI 
2017 (11) TMI 176
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....erial on record even though such material was not found during the course of search operation. 4. Reliance is placed on the following judicial pronouncements: a. Vishnu Agarwal Vs. Asstt.CIT (2011)37(11) ITCL 85 (ITAT, Hyderabad) b. Shivnath Rao Harnarain (India) Ltd. Vs. DCIT (ITAT, Delhi) 304 ITR (AT) 271; 117 ITD 74. c. ShyamLata Kaushik Vs ACIT (ITAT, Del) 114 lTD 305 5. The Ld. CIT(A) ought to have considered that as per the provisions of section 153A of the IT. Act, once a search operation is conducted, the A.D. shall bound to call for the returns and assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted. 6. The Ld. CIT(A) erred in deleting the addition of Rs. 84,24,000/- towards variation in closing stock as the variation was quantified basing on the quantitative details of the stock traded during the financial year 2007-08 gathered from the seized material i.e. sale invoice books seized during the course of search. 7. The Ld. CIT(A) erred in not considering the facts brought on by the A.O. in the asses....
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....nd facts. iii. The learned Assessing Officer failed to apply his mind to the evidences and material filed along with the submission Dt. 25- 11-11 and passed the assessment order u/s 143 (3) r w 5 153A Dt. 29.12.11 basing entirely on the appraisal report of the authorized officer iv. The learned Assessing Officer has failed to apply his mind to the facts, evidences and material filed along with submissions Dt 25-l1-11 and 28-11-11 regarding 52 bars of gold bullion sold to VAT dealers, issued Tax Invoices and received the sale consideration through banks and declared in the VAT returns filed before the Commercial Tax Officer. The Entire Sale considerations of 52 gold bars are reflected in the bank statements and books of account seized by the department Assumptions as to fabrication of Tax Invoice book/s is not bonafide. 52 bars of gold bullion relates to the FY2007-08 whereas the rate of Ps 1,62,000/- per bar as on 24.09.09 is adopted Relief prayed for - Rs. 84,24,000/- v. The learned Assessing Officer failed to consider the facts of purchases/sales in original / revised VAT returns, copies of which were submitted on 25.11.11 regarding th....
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....of Rs. 7,31,878/- relating to suppression of sales and Rs. 10,84,161/- relating to unexplained investment and purchases made. The Ld AR further argued that the Ld.CIT(A) while considering the incriminating material, held that the assessing officer has drawn the wrong conclusion on the basis of seized material as well as regular books of accounts. Therefore, Ld.AR vehemently opposed to remit the matter back to the file of the CIT(A) and argued that since the facts establish that the CIT(A) has considered the grounds of appeal as well as the submissions of the assessee which were purely on merits, it is incorrect to hold that CIT(A) has not considered the merits and there is no case to remit the matter back to the file of the CIT(A). 5. We have heard both the parties and perused the material placed on record. The assessing officer made the addition on the basis of invoices seized during the course of search relating to non tax invoices issued without collection of VAT to the dealers of Gold / Bullion. According to the Ld.AR, the invoices raised on sales made to dealers (Tax invoices) were not seized by the department, hence there was a difference. During the appeal hearing, the as....
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.... the course of search and the assessee even failed to produce during the post search enquiries. Therefore, the assessing officer held that the tax invoice book No.1 was fabricated evidence to tally stock at nil. According to the assessing officer, there should have been stock of 52 gold bars with the assessee which were not declared by the assessee. Accordingly, the assessing officer valued the gold bars at Rs. 1,62,000/- per bar and brought to tax a sum of Rs. 84,20,000/- as unexplained investment. 7. Aggrieved by the order of the assessing officer, the assessee went on appeal before the CIT(A) and the Ld.CIT(A) deleted the addition made by the assessing officer holding that the addition was not based on any incriminating material found. 8. Aggrieved by the order of the Ld.CIT (A), the revenue is in appeal before this Tribunal. During the appeal hearing the Ld.DR argued that during the assessment proceedings and the search proceedings, the Income Tax authorities asked to explain the closing stock difference found as per the books and the invoices but the assessee did not explain or furnish the quantitative details of the stock traded during the financial year 2007-08. The as....
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....hich needs to be deleted. 9.1 The Ld. AR further argued that a search u/s 132 was conducted in the assessee's case by the Income Tax Department. The department has seized some books and papers and did not seize some books. The assessee was in confused state of affairs and he could not make out whether the books were seized or not and he could not locate the tax invoices / books immediately, hence, the tax invoice book could not be produced before the DDIT. However, the assessee has furnished the entire details and the tax invoices before the AO which was brushed aside by the AO. 10. We have heard the rival submissions and perused the material placed on record. We have gone through the paper book filed by the assessee. A search u/s 132 was carried out in this case on 25.09.2009. There is no evidence / discussion in the assessment order with regard to incriminating material found by the department evidencing the unaccounted purchases or unaccounted sales. There was no indication of excess stock or excess cash found during the course of search. Only the difference was stocks difference compared to the purchase and sales invoices and the stock book. The assessee explained the dif....