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TMI Blog2013 (9) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and what was the mode of travel is not of much relevance for this matter. The bill proves purchase of the biscuits. The non-recording of this purchase in the books on the date of survey also stands explained - The assessee has explained, through his elder brother [the manager] from the time of survey, the procurement of these ten biscuits. He has also given the source of purchase of these ten biscuits. He has also given the source of the purchase amount. Transactions Recorded in the 'Order Book' – Held that: -The A.O. has not properly dealt with these issues – all the issues were restored to the file of the A.O. for de novo consideration - This issue is the subject-matter of all the remaining grounds of assessee's appeal and the sole ground of revenue's appeal - Neither the A.O. nor the ld. CIT(A) had articulated the issues and have not given their clear-cut finding - The issues have been so jumbled and mixed up that it is impossible to cull out clearly full and final facts of the case. - ITA No. 407/JU/2002, ITA No. 411/JU/2002 - - - Dated:- 11-2-2013 - Shri Hari Om Maratha And Shri N. K. Saini,JJ. For the Appellant : Shri Amit Kothari For the Respondent : Shri G. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undisclosed investment in bullion business at Rs. 31.08 lakhs being the highest total of transactions on a single date, to Rs. 15,07,950/- holding that the peal should be the value of the single highest transaction to one party on a particular date, ignoring the facts of the case and the materials brought on record by the A.O." 4. Briefly stated, the facts leading to these appeals are that the assessee derives income from trading in bullion and gold/silver ornaments via his proprietary concern namely M/s Vardhman Abhushan. The assessee filed his return of income [ROI] for A.Y. 1999-2000 on 24.3.2000, declaring a loss of Rs. 28,475/-. Survey u/s 133A was conducted in the business premises of the assessee on 12.1.1999. During this survey certain discrepancies with regard to stock of gold/silver ornaments and opening cash balances were noticed. The affairs of the business of the assessee are stated to be managed by one Shri Pankaj Dagariya in his capacity as manager of M/s Vardhman Abhushan. He is elder brother of assessee and, in fact was managing day-to-day affairs of the assessee, and was present at the time of the survey. His statement was recorded in which he made a surrender ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he profit and loss account salary of Rs. 30000 is debited hence closing cash balance shown in balance sheet are 135046.50.90 the above financial statement submitted along with the return is computerized. In the trial balance prepared by the accountant in his own handwriting, it s shown salary debited at Rs. 6000 hence as per his handwritten trial balance, the cash balance was increased by Rs. 24,000/- [due to less debited Rs. 24,000/- in salary account] and the accountant took the opening balance in pencil as balance as shown in his hand written trial balance. The handwritten trial balance for the Financial year 1997-98 is available in the seized material and can be reconciled." If there is some recording mistakes and if this fact is found to be correct, the same has to be considered and adjusted. There is no absolute rule that the opening balance of a year only has to be taken as a gospel truth even when it is due to mistaken accountancy and is supported by the facts and figures recorded in the return of income for the Assessment year 1998-99 and in the profit and loss account salary paid is shows debited as Rs. 30,000/- which is prior to the date of survey. In our opinion, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nish any information about Shri Ashok Kumar and whether he would confirm his deposition. He, ultimately, admitted that though Shri Ashok Kumar had gone to Ahmedabad to purchase gold, he did not turn up till date and the gold was acquired four days back from an unknown person who delivered the gold biscuits at Udaipur. Neither Shri Dagariya could identify the person nor could he give his name. Resultantly, he surrendered the value of the gold biscuits [at Rs. 5,14,965/-]. The Assessing Officer noted that the biscuits were found packed and not opened which showed that the identity of the person was known to him. He further noted that the bill of purchase from M/s Gayatri Jewellers had been arranged to explain 10 gold biscuits. Accordingly, the Assessing Officer added the price of the biscuits at Rs. 5,14,965/- as undisclosed income of the assessee. Aggrieved, the assessee went before the ld. CIT(A), who has also confirmed this addition. 10. Before the ld. CIT(A), similar submissions were made. It was submitted that the purchase bill from Ahmedabad party was produced before the Assessing Officer and complete explanation about source and acquisition of the gold biscuits were given, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties/persons whose names are found mentioned in this note-book. He has stated that the transactions of speculation are made telephonically wherein only amount of the difference is received or paid. During assessment proceedings the assessee had prepared and filed a profit and loss account, by treating entries in this book as speculative transactions and by taking the date of the so called 'sauda' after 7 days from the date of booking. The rates of the particular dates were obtained from a website. In this way, the assessee has worked out a net loss at Rs. 37,345/- in the case of silver and of Rs. 50,213/- in the case of gold. The Assessing Officer was not satisfied and has rejected the above explanation of the assessee. Against the impugned addition so made, the assessee had filed appeal before the ld. CIT(A), who has also confirmed the action of the A.O. 14. We have heard rival submissions and have carefully perused the relevant material on record. We have noticed that the A.O. has not properly dealt with these issues. Therefore, all these issues are restored to the file of the A.O. for de novo consideration. 15. Further, on the basis of this very diary [note-book] the A.O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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