2023 (2) TMI 1076

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....8 has been admitted to consider following question of law: 1. Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in recording a perverse finding in allowing loss claimed by the assessee of 99.055 Kgs of gold valued at Rs. 19,39,23,044/- holding the same to be only 0.047% of total transaction and by not appreciating the fact that the assessee failed to substantiate the said loss with no credible evidences before assessing officer or any appellate authorities thereby failing to discharge primary onus lies on him to do so in respect of expenditure claimed by him in the return of income? 2. Heard Shri. M. Dilip, learned Standing Counsel for the Revenue and Shri. Raghu Hulikal, learned Advoca....

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....tantiate the loss of 99.055 Kgs of gold nor produced any proof to show that there was loss; • the ITAT has allowed assessee's appeal on this aspect on the premise that the loss of gold accounts for only 0.047% of the total gold transactions without any rationale. 6. Opposing the appeal, Shri. Raghu Hulikal, for the assessee submitted that the inventory of 99.055 Kgs of gold was untraceable and the loss of gold was only 0.047% of the total gold transactions during the year 2011-12 which is accepted in the manufacture of ornaments. 7. We have carefully considered rival contentions and perused the records. 8. Assessee's case before the AO is that 99.055 kgs of gold had been misappropriated by the employees. The AO has rec....

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....the loss of gold could not be substantiated by bringing evidence on record, in our considered opinion, if the assessee is having any evidence in respect of loss of gold, the assessee will not allow such loss to happen. In our considered opinion, in the facts of present case, this loss of 0.047% of the loss of gold in only one year should be allowed in the facts and circumstances of the present case. We order accordingly. This issue on merit is decided in favour of the assessee." (Emphasis supplied) 11. A careful perusal of the above passage shows that the ITAT has allowed appeal on two counts. Firstly, that the loss of gold is only 0.047% of the total transaction. Secondly that during the search the Revenue could not find any ma....