TaxTMI 
TaxTMI 
2016 (6) TMI 1368
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....75,791/- 03. During the course of assessment proceedings it was noted by the AO that these assessees had credited certain amounts in their accounts which were explained as coming out of the sale proceeds of gold / diamonds. These are listed hereunder : Table No.2 Sl. No Name of the assessee Realisation from sale of gold Rs. Realisation from sale of diamond Rs. Total 1. Smt. Majuladevi H. Jain 1,03,680 11,95,000 12,98,680 2. Smt. Leeladevi R. Jain 16,480 11,50,000 11,66,480 3. Smt. Sushiladevi G. Jain 9,05,365 11,00,000 20,05,365 4. Smt. Kamaladevi J. Jain 8,38,770 12,25,000 20,63,770 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. Diamonds Rs. 1. Smt. Majuladevi H. Jain 5,36,873 3,25,000 2. Smt. Leeladevi R. Jain 5,44,840 3,10,000 3. Smt. Sushiladevi G. Jain 5,78,507 2,90,000 4. Smt. Kamaladevi J. Jain 5,08,860 3,50,000 05. When queries were raised about the sou....
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....ith M/s. Balaji Refinery, Hubli, was the very same which was shown by them in VDIS declarations. Assessees again relied on the bills of the concerns to which sale of gold and silver were made. AO after considering the submissions of the assessee and the bills issued by M/s. Balaji Refinery, Hubli, found that weight of the jewellery declared by the assessees, in the valuation report supporting the VDIS declarations were different from the weight of gold / bullion that were sold. As per the AO assessees could not prove that what was sold by them were the same gold jewellery which were declared in the VDIS declarations. Further as per the AO neither of the concern to whom assessee claimed sales viz., M/s. Shri. Mahalaxmi Jewellers in the case of gold and M/s. Hunney Exports / M/s. B. Ashok Kumar & Co.,in the case of diamonds were traceable. AO also noted that some of the items of gold jewellery declared in VDIS comprised of antique items and assessees who were financially sound would not have sold such old gold jewellery. Further as per the AO, if at all the assessees wanted to sell the jewellery they would have sold it directly without melting and shaping it as bullion. Thus he reach....
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...., since if sold directly as jewellery, the items would have fetched much lesser amount. As per the Ld. AR if on an enquiry conducted after twelve years by the AO, M/s. Balaji Refinery was found not available at the premises mentioned, assessees could not be blamed. Thus according to him, assessees had done what all was necessary and possible to prove that the gold and diamond jewellery which were converted through M/s. Balaji Refinery, were the same which were sold to one or other concerns who were doing gold / bullion business. Ld. AR has also placed before us copies of assessment orders passed by the AO in the case of one Shri. Shailesh V. Patel and Shri. Vithalbhai N. Patel, for the assessment year 1998-99, where on similar set of facts the credits were accepted. 12. Per contra, Ld. DR strongly supporting the orders of authorities below submitted that AO had done detailed enquiries into the bills submitted by the assessees for melting the gold jewellery as well as for selling the gold and diamonds. As per the Ld. DR it was quite unusual that both the refinery who melted the gold and diamond jewellery and the shops which bought the gold and diamonds were non-existent at the ti....
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....e. In my opinion, these evidence do tilt the case in favour of the assessees. Assessees had done whatever possible, within their means to show that the gold and diamond sold by them were the same gold and diamond declared in VDIS, after conversion. Assessees had submitted copies of bills issued by M/s. Balaji Refinery which did show similar details of gold and diamond as returned in the VDIS. In such situation we are of the opinion that assessees had discharged their onus to show that the gold and diamond sold by them were the same which were declared by them in the VDIS declarations. Reasoning given by the AO that antique jewellery would not have been sold by the assessees is only a surmise and cannot dislodge the evidence filed by the assessee. Further there is nothing on record to show that the gold jewellery which were sold by the assessee were antique in nature. In such circumstances, I am of the opinion that the lower authorities fell in error in disbelieving the source for credits shown by the assessees concerned. I have no hesitation in deleting the additions made in the hands of the assessees. 15. In the result, appeals of all the assessees stand allowed. Order prono....
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....hough Mr. CR has filed an affidavit for having assisted in selling the jewellery no further details are furnished as to the parties whom the same were sold, etc. It was also stated by CR in his statement dt. 16.3.2001 in an answer to question No.41 that he has not done any transaction on behalf of MLJ. Whenever any person approached him for sale of gold jewellery Mr.CR directed them to MIJ to help him morally. Thus it cannot be said that Mr.CR has purchased the jewellery from assessee. It is also stated that in revised return of sales tax filed by MI.J, turnover of Rs.38 lacs is admitted. It is interesting to note that what MLJ is stated to have done is purchase of bullion from unregistered dealer like assessee. However neither in original return, nor in revised return any purchase turnover is admitted, and is shown as NIL for all the months. Lack of opportunity to cross examine Mr. Umachigi, the landlord of MLJ during assessment proceedings does not disprove the facts stated therein as such opportunity was never asked for nor availed even during appellate proceedings. We accordingly clearly accord our approval to submissions made by learne....
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....that the credit in bank account is not proved to be genuine and accordingly chargeable to tax. 7.5 The ratio laid down by Hon'ble Supreme Court in case of Durga Prasad More (supra) and Samuti Daval (supra) as relied by learned D.R. also support the case of revenue. In such case, as one before us, one or two factors may be against the assessee but not all. The paper evidence relied by assessee does not find support from any other source and hence rightly rejected. Document 4 08. Assessees thereafter challenged the order of the Tribunal before the Hon'ble jurisdictional High Court. Hon'ble jurisdictional High Court vide its judgments in ITA.2152 to 2154 and 2158/2008, dt.23.09.2008, held as under: "...The substantial questions of law arises for our determination in this appeal are, .oИ ATI ni 19bio di sbiv solsgr 11) Whether the finding of the Income tax Appellate Tribunal that the sale transaction as yb revealed in the regular returns filed are taxable under section 68 of the I.T. Act. is Id' perverse or arbitrary for non consideration of the material fact as to whether the goods to that are sold under the transactions relied upon....
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....to be accepted. However, if the assessee is not able to prove that the subject matter of transaction declared in the regular returns is the same goods which is declared under the application filed under scheme 1997 and accepted by the revenue, then it is clear that the assessee is bound to pay tax on the sale transactions, as what is sold is not the property which is the subject matter of application under the Scheme 1997 The proposition cannot be disputed by the Counsel for the parties. When the finding given by the assessing authority, which is confirmed by the first appellate authority and the Tribunal in appeal is considered, it is clear that there is no specific finding on this material ject, which would decide the contention of the assessee or the revenue. Depending upon the finding that may be given by the assessing authority, the assessee is bound to pay tax under section 68, if the assessee has not been able to prove that the goods that are sold under the transaction declared under the regular returns are the goods which were declared and accepted under the application filed under the Scheme 1997. If the assessee is able to prove that....
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....4-100 52.250 65 W 18.1Wi 186.140 84 ISD 112-60 48150 46.250 40.00 12x/str 12.000; 1·60x10 st 155.000 3.15 x 18 st . 80.000 : 109.156) 39200-600 19200=10 36200 200 faded my has too taalm Wal TOTAL VALUE OF EACH ITEM OF JEWELLARY 107 F.RING 108 09 10 11 12 BANGLES 13 TODE/ KANGAN G 98-150 90.150: 114 CHAIN 4 145 ISD 135·200 15 LONG CHAIN 2 195.100 190-252 16 BINDI 12 5.1501 4.200 17 BRACELATE 3 96.259 90·150 18 19 20 SHIRTBUTTON KANDOORA SAREE PIN 2 8.40 7.200 உ 281.4 265.200 121 WAIST BELT 122 LOCKET 302-44 281050 DAIMOND 80-20 55.000 120st 16eculs 11920x1200o 19.2004 NECLACE 2,30,400d 24 125 126 PHANSI I உ 9510 87250 BAJUBHAND 153087 HATPAN 4- 198 1601 195.100 #325.00 325.000-10 TOTAL 2089.000 S6187. I hereby declare that the information furnished above is true and correct to the best of Imoulege and belief 51234 Signature of the valuer. पà¥....