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TMI Blog2016 (8) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... rect the A.O. accordingly because gold sold and declared under VDIS cannot be different and this is not the case of the revenue that gold sold is more that gold declared under VDIS 1997. Regarding Diamonds, mere Carat quantity alone cannot determine that the Diamond sold and declared under VDIS 1997 are same because the price of the price of Diamond mainly depends upon quality of the Diamonds being its cut and colour apart from its size. Regarding this sale of Diamonds for ₹ 375,000/-, do not know the size and the cut and colour of diamonds are also not known because the same is not mentioned in the VDIS declaration. Hence it is seen that the assessee has failed to establish that the diamonds sold in the present year and declare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act on the facts and circumstances of the case. 4 The learned CIT(A) was not justified in confirming the finding of the AO that the nomenclature as per the declaration differed from the sale invoice and hence the said sale was out of diamonds different from the one in the declaration made on the facts and circumstances of the case. 5.The learned CIT(A) was not justified in relying on the observations made in the earlier appellate orders to arrive at a finding that the declaration stood unproved and hence the diamonds sold were not out of the declaration made. 6 The learned CIT(A) was not justified on facts in not considering the gold on hand with the appellant as per the declaration, to be the same gold sold on the facts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclared in the application filed under the VDIS Scheme 1997 and accepted by the revenue then the question of taxing the transactions declared in the regular returns u/s 68 of the IT Act would not arise and tax has to be imposed u/s 45 of the IT Act, 1961. He submitted that in the present proceedings, the AO and the ld. CIT(A) has repeated the same addition and therefore, the addition made by the lower authorities is not justified and the same should be deleted. He also submitted copy of two Tribunal orders rendered in the case of Shri Shjyam B Habib Vs ITO in ITA No.819B)/2016 dated 30-06-2016 and in the case of Smt Umabai M Kothari Vs ITO in ITA No.86,106 268(B)/2016 and placed reliance on the same. 4. The ld. DR of the revenue suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under; Sl.No Carats Pieces Amount 1. 8.50 85 68,000 2. 7.00 70 42,000 3. Net Weight of Gold 578.160 Gms. 123,360 Total .. 2,33,360 7. On pages 7 8 of the paper book, sale bills are not available As per page No. 2 of the original assessment order available on page 8 of the paper book, out of ₹ 560,730/- being total sales consideration, sale of gold is for ₹ 185,730 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch finding that even in the absence of size, cut and colour of the diamonds, it can be accepted that the diamond sold and declared under VDIS are same merely on this basis that Carat quantity is tallying. Hence, this Tribunal order cited by the ld. AR of the assessee is not applicable in the present case in respect of diamonds sale. 11. As per the second judgment cited by the ld. AR of the assessee rendered in the case of Smt. Umabai M.Kothari (Supra), I find that in that case, there was no sale of Diamond and there was only sale of Gold and Silver, whereas in the present case, I have decided the issue about sale of gold in favour of the assessee and for the dispute regarding sale of Diamond, I have seen that the assessee could not esta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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