9911796707
TMI Blog2015 (9) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... of gold the taxpayer issued only estimate slip for Rs. 1,940. No sale bill was issued. This was further confirmed in the course of enquiry during the course of search operation. According to the ld.DR, the cashier, one Shri Joshi Abraham was examined, who stated that only estimate slip was issued for sale of jewellery and part of the sales were recorded through sale bills. The ld.DR further pointed out that while purchasing old gold ornaments, the taxpayer is not issuing any purchase bills. Therefore, there was an unaccounted sales and purchase of jewellery and old gold ornaments. The ld.representative further pointed out that one Shri Pintu Jacob was examined, who stated that he is issuing the estimate slip and it is not known whether sale bills were issued to the customers or not. The ld.DR further pointed out that in the course of search in the premises of Sunny Jacob Gold Hyper Market, Kollam three note books marked as MSP-1, MSP-2 & MSP-3 were found and seized. These note books contained accounts for purchase and issue of gold ornaments. When these note books were compared with regular register maintained by the taxpayer there was wide variation in the accounting of purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estimate basis. According to the ld.counsel issuing estimate slip is usual in this line of business; therefore, the taxpayers' cannot be found fault with. The ld.counsel further pointed out that the search was made on 21-08-2007. All the materials which were collected by the revenue relates to assessment year 2008-09. There was no other material or the assessment years 2002-03 to 2007-08. In the absence of any material for suppression of sale for the assessment years 2002-03 to 2007-08 the Commissioner of Income-tax(A) has rightly deleted the addition. However, for the assessment year 2008-09 the Commissioner of Income-tax(A) confirmed the addition without understanding the nature of business of the taxpayers. The ld.counsel further pointed out that even for assessment year 2008-09 though certain estimate slips are available with the department, these slips were issued to the customers at their requests on their purchase. The customer decides to purchase the jewellery after identifying the patent and model of jewellery after comparing the price in the estimate slip and sale bills will be issued. Therefore, the addition which was confirmed by the Commissioner of Income-tax(A) for as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bill for the old gold ornament received from Shri A Baby and for sale of jewellery. The Commissioner of Income-tax(A) found that there was no evidence for the assessment years 2002-03 to 2007-08 for suppression of sale, therefore, he deleted the entire addition. However, for the assessment year 2008-09 the Commissioner of Income-tax(A) confirmed the addition on the ground that the evidence collected by the revenue shows suppression of sales. The Commissioner of Income-tax(A) placed his reliance on the judgment of the Andhra Pradesh High Court in Rajnik & Co (supra). 6. We have carefully gone through the judgment of the Andhra Pradesh High Court in the case of Rajnik & Co (supra). In the case before the Andhra Pradesh High Court there was a search in the business premises of the taxpayer and it was found from the loose sheets suppression of sales for the financial years 1995-96 to 1996-97. Apart from the materials recovered at the time of search sworn statement was also recorded by the department wherein one of the partners admitted in his statement before the officers that the taxpayer's firm was practicing suppression of sales from day to day basis through out the assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity to the taxpayer. The taxpayer had no occasion to respond to the material collected by the sales-tax department during their inspection on 24-02-2006. It is also pertinent to note that the impugned assessment proceeding was initiated u/s 153A of the Act. In proceedings u/s 153A, the assessing officer can take into account all the evidences / materials including materials found during the course of search operation. Therefore, in all fairness, this Tribunal is of the considered opinion that one more opportunity shall be given to the taxpayer to present his case before the assessing officer. Accordingly, the orders of the lower authorities for the assessment years 2002-03 to 2007-08 are set aside and the entire issue with regard to addition of suppressed sales is remitted back to the file of the assessing officer. The assessing officer shall reconsider the issue afresh after reconsidering all the statements recorded and the material found during the course of inspection by the Commercial Tax Department, all the materials including the materials collected during the course of search operation and thereafter decide the same in accordance with law after giving a reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssential ingredients, which are essential for proving the credit. The ld.representative placed his reliance on the judgment of the Apex court in the case of Commissioner of Income-tax vs P Mohanakala 291 ITR 278 (SC). 11. We have considered the rival submissions and also perused the material available on record. During the course of assessment proceedings, the assessing officer found that there was a credit in the capital account. When the assessing officer asked the taxpayer to explain the source of investment in the capital account it was claimed that an amount of Rs. 3,47,580 was said to be received from Shri George Joseph. The taxpayer has not produced any confirmation letter. He produced only an entry from the bank account. No other material was produced before the lower authority. In view of the judgment of the Apex Court in the case of P Mohanakala (supra) merely because the money was transferred through banking channel it will not prove the genuineness of the transaction. It is for the taxpayer to prove the identity of the creditor, creditworthiness of the creditor to give the gift and the genuineness. Since no material was filed except the entries in the bank passbook the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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