TaxTMI 
TaxTMI 
2018 (3) TMI 1314
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....1961 (hereinafter referred to as the 'Act'), dated 18.03.2014. 2. The grounds of appeal raised by the Revenue reads as under: "1.That the ld. CIT(A), Burdwan was not justified in deleting the addition of Rs. 42,39,945/- made u/s 69 of the Income Tax Act, 1961 being the excess weight of gold ornaments as undisclosed investment in the facts of the case. M/s Ram Chandra Das & Son Jewelers Pvt. Ltd. 2. That on the facts and circumstances of the case, the ld. CIT(A) erred in deleting the addition made by the Assessing Officer of Rs. 42,39,945/- u/s 69 being the excess weight of gold ornaments measuring 2166 gms found at the business premises of the assessee during the course of survey u/s 133A of the Act. 3. That the ld. CIT(A) erred in....
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....ade in future. In this process, sufficient time is required. When the survey started, karigar could not enter the business premises of the assessee, and waited outside for long time. Thereafter, karigars left the place as the stock had already been physically received from karigars and entries in stock register had not been done. So, out of the total difference of 3822.36 gms, 2166 gms can be explained as stock received from karigar. Since all the books of accounts have been impounded by the I.T Department, therefore, assessee made the receipts entry in new GS-12 on the next day i.e. on 21.01.2011. In the impounded GS-12 register on the last page, the I.T. Department had put a remark that 'it is before 20.01.2011'. The newGS-12 register aga....
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....means that this gold was in process and therefore, must be a part of stock reflected in the books on the date of survey but as revealed by survey team, the stock was not reflected in the books and hence the gold ornaments found were out of books investment. Therefore, AO noted that the balance of 2,166 gram of gold remains to be accounted for. Hence, the value of this balance gold ornaments amounting to Rs. 42,39,945/- (2166 gms x 1957.50/-), value on the date of survey proceedings was considered by the AO as undisclosed investment u/s 69 of the Act and added to the total income of the assessee. 4. On appeal, the ld CIT(A), deleted the addition made by assessing officer. The ld CIT(A) observed that it was admittedly a fact that the gold of....
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....ed on oath which does not have any evidentiary value because the said statement has not been corroborated by any tangible evidence. The ld. counsel for the assessee also submitted that there is no requirement under the law specially u/s 133A to take the statement on oath. However, what is recorded in the statement on oath has not been corroborated by any evidence. Therefore, the statement taken during survey does not have any evidentiary value. 6.We have given a careful consideration to the rival submissions and perused the materials available on record, we note that assessee has explained the difference in stock of 2166 gms in gold stating that the stock was issued to karigars on 13.01.2011 and the survey was conducted after 7 days i.e on....
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.... stock register about the gold issued to the karigars and therefore we are of the view that when the entry in GS-11 stock register, is accepted by assessing officer, then the entry made on 21.01.2011, GS-12 stock registerought not to have been summarily rejected because the very same gold issued to the karigars on 13.01.2011 came back to the assessee on 20.01.2011 which was recorded on 21.01.2011. We note that the assessing officer did not find any mistake in GS-11 register about the gold issued to karigars which was admittedly impounded by the I.T. Department during the survey. We note that survey team had taken the stock value at the market price whereas the assessee has shown stock valued in his books of accounts at cost price because th....
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....rned back by the Karighars, which will get recorded in newGS-12 register, as the old GS-12 register was impounded by the Department`s survey team. 6.3 We also find that during the survey, the survey team took the statement of the assessee on oath which is in violation of the provisions of section 133A of the Act. We note that there is no requirement to take the statement on oath, only the requirement is as per section 133A(3)(iii), is that the during the survey, the Income Tax Authority may record the statement of any person which may be useful for or relevant to, any proceedings under the Act. Therefore, the statement taken on oath by the survey team, in the assessee's case under consideration does not, on its own, have any evidentiary va....