2021 (9) TMI 186 - AT - Income Tax

Excess stock of Gold and Silver Jewellery as found during the course of survey proceedings - Additions based on admission in the Statement by the appellant - CIT(A) set aside the demand without calling the remand report from AO - HELD THAT - The quantity of stock found during the survey was never disputed by the assessee though the assessee claimed a part of it as not undisclosed. Hence when the assessee has not quantity of the stock found during the survey then the said quantity of the stock itself would constitute incriminating material as it was not recorded in the books of accounts of the assessee. The subsequent bills / invoices produced by the assessee without making the payment of purchases to the extent of ₹ 3,94,50,903/- is always a subject matter of verification and enquiry. Therefore, this finding of the CIT(A) is not sustainable and the same is set aside. CIT(A) while passing the order decided the issue of the remaining Jewellery after reducing the amount of 18Kg.45 Gms Gold allegedly purchased from M/s Pushpa Enterprises, Agra. CIT(A) has not given a conclusive finding but the issue is set aside to the record of the Assessing Officer and that too with a direction to consider the various facts which were explained by the assessee during the appellate proceedings. CIT(A) has passed the impugned order by accepting the evidences as well as the explanation of the assessee without calling a remand report from AO. When the CIT(A) has passed the impugned order without calling a remand report from the Assessing Officer and even giving a finding that there is no incriminating material found during the course of survey which is contrary to the undisputed facts and material on record is not sustainable in law and liable to be set aside. We order accordingly. The Assessing Officer is directed to re-adjudicate these issues after proper verification and examination of record and particularly the genuineness of the transaction of the alleged purchases made by the assessee from M/s Pushpa Enterprises, Agra by considering the status of payment of the said amount by the assessee. Needless to say the assessee be given an appropriate opportunity of hearing before passing the fresh order.

Issues Involved:
1. Failure to produce genuine documents related to purchases.
2. Non-recording of purchases in books of accounts.
3. Inability to explain the source of excess stock.
4. Admission of undisclosed stock and commitment to pay taxes.
5. Deletion of additions without remand report or opportunity to AO.
6. Contention about the reliability of books of accounts.
7. Valuation of undisclosed stock by Government-approved valuer.
8. Consideration of family partition in undisclosed stock.

Detailed Analysis:

1. Failure to produce genuine documents related to purchases:
The Department argued that the assessee failed to produce genuine documents related to purchases from M/s Pushpa Enterprises during the survey proceedings. The CIT(A) accepted the explanation of the assessee based on four bills from M/s Pushpa Enterprises, Agra, which the Assessing Officer had rejected.

2. Non-recording of purchases in books of accounts:
The Department highlighted that the assessee did not record purchases amounting to ?3,94,50,903/- from M/s Pushpa Enterprises in the books of accounts. The CIT(A) deleted this addition, accepting the invoices presented by the assessee.

3. Inability to explain the source of excess stock:
During the survey, the assessee admitted to having excess stock of gold and silver, which was not recorded in the books. The assessee explained part of the excess stock through invoices from M/s Pushpa Enterprises. The CIT(A) accepted this explanation, which the Department contested.

4. Admission of undisclosed stock and commitment to pay taxes:
The Department pointed out that the assessee had admitted to the undisclosed stock and committed to paying taxes on it. The CIT(A) considered the explanation provided by the assessee regarding the source of the stock.

5. Deletion of additions without remand report or opportunity to AO:
The Department argued that the CIT(A) deleted the addition of ?3,94,50,903/- without calling for a remand report or giving the Assessing Officer an opportunity to respond, violating the principles of natural justice. The Tribunal found this approach unsustainable and set aside the CIT(A)'s order, directing the Assessing Officer to re-adjudicate the issue.

6. Contention about the reliability of books of accounts:
The Department contended that the assessee's books were unreliable, as evidenced by the undisclosed income of ?1,77,00,000/-. The CIT(A) did not conclusively address this issue, leading to the Tribunal's directive for re-examination by the Assessing Officer.

7. Valuation of undisclosed stock by Government-approved valuer:
The Department criticized the CIT(A) for ignoring the valuation by a Government-approved valuer without providing reasons. The Tribunal noted that the CIT(A) accepted the assessee's objections to the valuer's report without proper verification, necessitating a re-evaluation by the Assessing Officer.

8. Consideration of family partition in undisclosed stock:
The assessee claimed that part of the gold and silver items were received through family partition and should not be considered undisclosed stock. The CIT(A) directed the Assessing Officer to consider this claim while giving effect to the appellate order. The Tribunal found this directive beyond the CIT(A)'s jurisdiction and set aside the order for re-adjudication.

Conclusion:
The Tribunal set aside the CIT(A)'s order, directing the Assessing Officer to re-adjudicate the issues after proper verification and examination of the record, particularly the genuineness of the transactions with M/s Pushpa Enterprises. The cross objection by the assessee was dismissed as infructuous. The cross appeals were allowed for statistical purposes.

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