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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 ..... ing the findings of the A.O. 3. That the Ld. AO Udaipur as well as Ld. CIT (A) Udaipur erred in law & facts while applying the theory of peak investment on such nature of speculative transactions and further Id. CIT (A) Udaipur erred in law and facts while taking the peak investment at Rs. 15,07,5007-. 4. That the Ld. A.O. Udaipur erred in law & facts while estimating the G.P. involved in the sale transaction at 2% for both gold & silver bullion. Also erred estimating total sale at RS-20QQS2Z5/- (Rs.16378750 for gold +Rs.3628025 for silver). The total income estimated at Rs.400135/-. Further the CIT(A) also erred in law & facts while justifying the rate applied by the A.O. 5. That the A.O. Udaipur as well as Ld. CIT (A) Udaipur Range Udaipur Range Udaipur also erred in law & facts while not allowing the set off of the regular cash balance available i.e. Rs.797209/- from the peak undisclosed investment of Rs.1507500/- difference could have been taken peak investment. 6. That the A.O. Udaipur as well as Ld. CIT(A) Udaipur erred in law & facts while not allowing set off of the following from the computed peak investment. (i) Unexplained investment of gold ornaments found at at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt recorded during the course of survey. However, the same was not honoured and was not reflected in the computation of income filed alongwith return of income. When questioned about this surrender, the assessee replied that, in fact, there was no such cash difference because the opening cash balance was written in pencil and as per the profit and loss account for the preceding year i.e., 1998-99, the salary was debited at Rs. 30,000/- and the closing balance of cash was 11,35,046.90. However, in the trial balance prepared by the Accountant, the salary debited was wrongly taken at Rs. 6,000/- as a result of which the cash balance was increased by Rs. 24,000/-. The increased figure of cash balance was adopted by mistake as the opening balance for the Assessment year under consideration. Not satisfied with this explanation of the assessee, the Assessing Officer added the differential amount of Rs. 24,000/-. The ld. CIT(A) has also confirmed this addition. 7. We have heard rival submissions and have carefully perused the relevant material on record. We have found that this issue has not been properly dealt with by the A.O. and the ld. CIT(A). The submission of the assessee before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal verification, the stock was found as under: 1. 4 pieces of pure gold 47.900 gms 2. jewellery found in the shop 256.300 [net weight] 3. converted to pure gold 230.670 gms 4. with karigar 648.000 gms [net weight] 5. converted to pure gold 583.300 gms Total 861.870 gms The Assessing Officer noted in the assessment order that 10 gold biscuits weighing 1168 gms with foreign marking were found at assessee's business premises. The appellant surrendered the value of gold biscuits [of Rs. 5,14,965/-] during survey. However, he did not include this amount in the computation of income. It was explained that the gold biscuits were purchased from M/s Gayatri jewelers, Ahmedabad on 11.1.1999 and brought to Udaipur on 12.1.1999. It was admitted that the transaction was not recorded in the books of account as the same were written only upto 6.1.1999. Shri Pankaj Dagariya, elder brother of the assessee who managed the affairs of the assessee gave different versions on the nature of possession and source of acquisition of the gold biscuits. First he stated that he purchased these gold biscuits from Ahmedabad out of cash available with him but had forgotten to bring the bill and in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purchase of the biscuits. The non-recording of this purchase in the books on the date of survey also stands explained. The books were written upto 6.1.1999 but the biscuits were brought to Udaipur on 12.1.1999. The A.O. could not get this fact verified from the Ahmedabad party. In our opinion, this amount of Rs. 5,14,965 stands explained and hence this addition is ordered to be deleted. 12. Next issue is against the addition of Rs. 31,08,450/- and Rs. 4,00,135/- made by the Assessing Officer on the basis of transactions recorded in the 'order book' found at the time of survey. This issue is the subject-matter of all the remaining grounds of assessee's appeal and the sole ground of revenue's appeal. 13. Brief facts relating to this issue are that at the time of survey, an 'order book' was found in which the appellant had noted down the orders for supply of gold biscuits and silver bars during the period between 8.12.1998 to 11.1.1999, giving details like the names of the party, date of booking, weight, rate etc. This note- book was allegedly found written in the handwriting of Shri Pankaj Dagariya, the elder brother of the assessee. In his statement, Shri Pankaj Dagariya has stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - to be covered in the peak undisclosed income of Rs. 15,07,500/-. The ld. CIT(A) has reduced the peak to Rs. 15,07,500/- instead of Rs. 31,08,450/- computed by the A.O. But the gross profit rate of 2% applied by the A.O. has been upheld by the ld. CIT(A). 17. Before us, both the parties have maintained their original stands. 18. After hearing the parties and after perusing the records, we are of the considered opinion that neither the A.O. nor the ld. CIT(A) has 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. The Tribunal being the final fact finding body it becomes imperative to get them clearly spelt by the authorities. Therefore, we have to restore these issues to the file of the A.O. for de novo consideration and fresh computation of income. The A.O. ha to pass a speaking order on each of the above issues. Accordingly, we restore the appeal of the assessee, to that extent, and the entire appeal of the revenue to A.O's file with the above direction. Needless to mention that the A.O. shall accord opportunity of being heard to the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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