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TMI Blog2013 (7) TMI 364X X X X Extracts X X X X X X X X Extracts X X X X ..... id jewellery was declared by them under VDIS or in wealth tax return before the date of survey/search - Tribunal is final fact finding authority - No reason to interfere with the impugned orders - Decided against Revenue. Surcharge u/s 113 - Tribunal deleted surcharge by holding that the insertion of proviso to Section 113 was not clarificatory in nature - Held that:- Surcharge under Section 113 of the Act is mandatory and is applicable with retrospective effect - Following decisions of CIT Vs. Rajveer Bhatia [2009 (2) TMI 12 - SUPREME COURT] and CIT Vs. Suresh Chandra Gupta [2008 (1) TMI 396 - SUPREME Court] - Decided in favour of Revenue. - Income Tax Appeal No.-82 of 2008 - - - Dated:- 9-7-2013 - Hon'ble Sibghat Ullah Khan And Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Ahuja, Lucknow in ITA No.121 of 2006. The brief facts of the case are that the assessee is a partnership firm dealing in manufacturing and sale of jewellery. From 13-15.January, 2001, an exhibition of jewellery was held in Taj Hotel in the name of "Swarn Sanbandh", where 16 jewellers, including the assessee have participated. On 15.01.2001, a survey was conducted against all the participants of the exhibition including the assessee. Regarding the assessee, the survey action was converted into the search and seizure operation. The said search and seizure operation was carried out at the residential and business premises of the assessee. On the basis of the material, finally, the A.O. has made an addition for Rs.47,00,190 on account of u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during VDIS. There was no description regarding VDIS that from where the said jewellery is said to have been acquired. According to the learned counsel, individual items of the jewellery declared under VIDS, 1997 in different names contain entirely different number of pieces of diamond than the number of pieces claimed to have been actually received for remaking. So, the jewellery found during the survey/ search was not a part of the jewellery declared under VDIS by the family members. He also submits that diamond jewellery set in gold received from Tribhuwan Dass Bhim Ji Zavery on the date of exhibition, was not the same jewellery as the said jewellery belonged to the partner and family members. It was not entered in the stock register. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nderstated the value of the assets disclosed and paid nominal income-tax. If the appellant has also taken advantage of the loopwhole in the VDIS' 1997 scheme, the department cannot make addition on this ground, when the quantum of diamond jewellery diamond tallied. For computing undisclosed income one has to look into the cost of investment and not the market price of the assets. The learned Assessing Officer was wrong in determining the market price for computing undisclosed income. As all the transactions were recorded books of account in the regular course of business, the question of computing any undisclosed income does not arise. Consequently, the addition of Rs.47,00,190 is deleted." He also submits that the appellate authorities h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y members and the said jewellery was declared by them under VDIS or in wealth tax return before the date of survey/search. Further, assessee's contention that diamond jewellery was remade after receiving the gold from M/s Tribhuwan Dass Bhim Ji Zavery, is substantiated by a bill for labour charge and the entries in regard thereto was also found recorded in the books of account maintained by the assessee before the date of survey/search as mentioned by the Tribunal. Needless to mention that the Tribunal is final fact finding authority as per the ratio laid down by the Hon'ble Apex Court in the case of Kamla Ganpati Vs. Controller Estate Duty 253 ITR 692 SC. When it is so, then we find no reason to interfere with the impugned orders passed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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