9911796707
TMI Blog1992 (11) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... 015 (gold jewellery Rs. 4,65,598, diamond jewellery Rs. 1,52,417) were found. When asked to explain as to the ownership of the jewellery found in the business premises, assessee claimed that it belonged to customers, who gave their old ornaments for repairs or/and redesigning. Assessee further explained that he was doing job works through two certified goldsmiths, namely, Shri Bishamber Dayal and Shri Ramesh Chand. It was claimed that the registers GS 13 prescribed by Central Excise and Gold Control, Rules, had been maintained and the stock found was duly recorded in the said registers. Assessing Officer rejected the explanation of the assessee for the following reasons (i) No order book indicating the nature of orders was maintained. (ii) The registers in name of two goldsmiths in prescribed form GS 13 were written in the handwriting of the assessee himself and did not contain full addresses of the persons from whom the ornaments were alleged to have been received. (iii) No identification tags were attached to the ornaments. (iv) Some of the so called customers had not bothered to collect these ornaments even for more than 5-6 months which is extremely unlikely. (v) Insp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of certificate for any violation of Gold Control Act, 1968. That another certificate issued by the Superintendent, Central Excise (Technical) establishes the fact that assessee had been subsequently issued a gold dealers' licence and that he had never been convicted under the Customs Act, 1962 or under Gold Control Act for committing any offence nor was any case pending against him under the said Act. That till the licence was issued by the Addl. Collector, Central Excise on6th July, 1982the assessee had no option but to work through licenced goldsmiths as it was his traditional family business. 3. The CIT(A) has further laid stress on the fact that on 13th June, 1982, jewellery and papers had been seized from a different address, namely, Namak-ki-Mandi, Agra, Shop 29/86 which actually belongs to Shri V.K. Bansal. Assessee had been allotted a new shop at 14/69,Hospital Road,Agra, which had opened w.e.f.1st July, 1982. 4. Assessee, according to the CIT(A), had maintained GS-13 registers and delivery vouchers in the normal course of business. CIT(A) has further recorded a finding that the delivery vouchers contained the name and address of the customers, description of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee had not started the business in his own premises, according to Shri Sinha, does not carry any weight as at no stage assessee claimed that ornaments/ jewellery to belong to the actual owner of the shop. Assessee's case has always been that the jewellery and ornaments found at the premises belonged to his customers and not to the customers of the actual owner of the shop. Assessee had not produced any customer though required by the Assessing Officer, at any stage. In fact the learned Departmental Representative pointed out that assessee had refused to produce the customers and to give complete address though he had agreed to supply the same at the time the survey was made. 6. Shri Sinha strongly contested the finding of the CIT(A) that the tags were attached to each item of jewellery/ornaments. It was pointed out by the learned Departmental Representative that the learned CIT(A) has overlooked a very important fact that the survey had been undertaken on 30th June, 1982 and on 3rd July, 1982 assessee had made a request either to return the books of accounts or inspection be allowed to the assessee. The inspection had been allowed on6th July, 1982which fact is confirmed from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y had allowed the assessee to misuse the licence. That apart the statement of these goldsmiths establishes only one fact i.e. these two persons were carrying the job work for the assessee and not necessarily for the customers of the assessee. Assessee had been in business with his brother as a registered dealer and not as a registered goldsmith. A registered gold dealer is allowed to deal in gold ornaments and jewellery whereas a registered goldsmith allowed to do the job work for others. Whether the assessee was doing the business as a dealer or as a goldsmith is a question which cannot be answered either in favour or against the assessee on the basis of evidence furnished by the two registered goldsmiths. Therefore, in our view, the evidence of the goldsmiths does not establish the case of the assessee. 9. Another aspect considered by the CIT(A) is with regard to non violation of provisions of Gold Control Act by the assessee or by the registered goldsmiths. In this connection, CIT(A) has placed reliance on the certificates issued by the Gold Control Authorities. We would like to point out that assessee had contravened the provisions of Gold Control Act in any case in so far as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this section shall apply to the acceptance, purchase or other receipt by way of petty transactions, in the course of a day, of gold upto a quantity of one hundred grammes by a licensed dealer or refiner or certified goldsmith, as the case may be." The above quoted section as well as the prescribed form of the register require giving complete address of the customers. Assessee not having given any address not to speak of complete address, of the so called customers, in GS 13 register cannot be said to have maintained the registers in accordance with the gold Control Act, 1968 and the Rules. The mere fact that the licenced goldsmiths had not been penalised for violation of any Gold Control Act is not decisive in this case in view of the fact that the registers had never been inspected by the Customs Authorities. (We are referring to the registers which were found from the premises of the assessee). 10. With regard to the finding of the CIT(A) that the ornaments contained the tags giving details of the customers and the items, is also not well founded. The CIT(A) has ignored the fact that assessee had inspected the records on6th July, 1982i.e. immediately after the seizure of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jewellery and other valuables. With regard to the second condition we find that assessee has never been asked to explain the source of acquisition of the jewellery/valuable article. It could be argued on behalf of the Revenue that assessee having explained the source of ornaments as belonging to the customers not having been proved, both the conditions under s. 69A could be said to be satisfied simultaneously. We are afraid that this contention cannot be accepted. Principles of natural, justice demand that assessee is given an opportunity to explain the source of acquisition of the jewellery after being confronted that he is held to be the owner of the jewellery/other valuable articles. Assessing Officer having proceeded without requiring the assessee to explain the source of acquisition of jewellery/ornaments, in our view, it would be reasonable to remit back the issue to his file so that proper opportunity is allowed to the assessee to explain the source of acquisition of the jewellery. We may point out that assessee had retired from a firm in which he was a partner. It is on record that assets nearly Rs. 1 lakh had been withdrawn by him from that firm. In addition to that as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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