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TMI Blog2016 (5) TMI 1328X X X X Extracts X X X X X X X X Extracts X X X X ..... clined to even deal with learned counsel's analysis of "subsidiary reasons" which prevailed before their Lordships, as against the "real reasons" which were referred to in the assessment year 2000-01. Suffice to say that the issue before us is exactly the same as before Their Lordships, and that, in our considered view, there is no material change in facts and circumstances of the case, nor is there any material and additional evidence which affects binding nature of this judicial precedent. The facts of the other assessment years, i.e. assessment years 1991-92 to 1994-95, are similar, and, as learned representatives fairly agree, outcome of all the assessment years will be the same. - Decided against assessee X X X X Extracts X X X X X X X X Extracts X X X X ..... 93.37% of gold in manufacturing of ornaments of 22 carat purity, the actual fineness is 91.66% in the final product as per the export bills and certificate of custom authorities. He worked out excess consumption of gold which according to him had been actually sold in the local market. This addition of the ITO was upheld by Id. CIT(A) & Hon'ble ITAT except a minor relief was allowed to assessee on working of purity of standard gold. The minor relief was given on the point that the A O had taken the purity of standard gold bar at 100% whereas the purity of standard gold bar is generally of 99.53% only and therefore, the working of 22 carat gold ornament will give a percentage of 92.93% against 93.37% taken by the AO. The A.R. has furnished the revised working of excess consumption as per the appellate order of the CIT(A) which is examined and reproduced herein below:- Revised Calculation of Excess Consumption, as per Appeal Order Sr. No. Carat Wt. in grams % of excess consumption as per appeal order of 89-90 Excess consumption quantity in grams Rate of standard gold Amount 1. 22 675,758,790 1.23 8,311.833 3200 2,659.787 2. 20 30,309.200 0.69 209.133 3200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt's own case in assessment year 1989-90 while passing the set-aside assessments in these years. Since appellant's appeal for assessment year 89-90 is still pending in High Court, assessing officer is bound by the order of honorable tribunal in the appellant's case for assessment year 89-90. The relevant extract of the tribunal's order is quoted below- "On carefully going through the assessment order and the order of the CIT(A), we find that the revenue has not disputed this fact regarding the mixing of the alloys to standard gold as given by the assessee. There is no dispute also that the quality of the gold ornaments exported by the assessee has conformed to the international standard in accordance with Hallmarking method for assuring the necessary quality. The real dispute here is with regard to the fact that the assessee in its books of account has shown the purity of the gold ornaments at 93.37% whereas as per the export invoice and the customs certification it comes to 91,65% only. If the arguments of the id. Counsel is to be accepted, the touch stone method adopted by the Customs/Import Export Control Authorities is not a reliable method for ascertaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been exported as per the expert documents. We are of the view that the cast on the assessee by the finding of the assessing officer has not been discharged. The only inference is that the excess gold shown as consumed in the manufacturing has been sold locally by the assessee outside its books of account. This is because as far as the exports sales are concerned, the quality and purity of the gold ornaments exported have been certified by the custom authorities and subjudicated to the Hallmarking in the imported countries. The only dispute here centers around the discrepancy in the purity shown in the books of accounts of the assessee and the finances are certified in the export documents. In this connection, it is also pertinent to observe that the Id. CIT(A) has given partial relief to the assessee on account of the fact that the standard gold as manufactured by the Government of India and supplied by the State bank of India against export is of the purity of 99.53% as against 100% purity as assumed by the assessing officer. Thus assessee itself has given a revised working in Annexure-A of the paper book submitted before the CIT(A), copy of which is available at pg. 363 to 366 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee to its foreign importers. 8.1 This is not even seriously disputed by the assessee. If we take as sample of such discrepancy that emerges in the category of 22 Carat gold ornaments, after supplying raw gold to the artisans and the artisans preparing gold ornaments after adding alloy in the specified quantity, the assessee received gold ornaments, according to the assessee's records having purity of 93.37%. The very same ornaments when were exported, the assessee recorded its purity as 91.66%. Some of these ornaments also were subject to actual test by the Customs authorities. The result also matches the assessee's claim of gold purity of 91.66%. Thus, in fact, there was considerable discrepancy between the two sets of documents pertaining to the same set of gold ornaments is undeniable. The assessee owed an explanation and had a duty to reconcile this discrepancy. The authorities found that the assessee failed in doing so. This was on the premise that the assessee's explanation was found unacceptable and inadequate. The assessee's only explanation was that the ornaments actually carried purity of 93.37% but were reflected in the export documents having p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be stated that the finding of the authorities below, as confirmed by the Tribunal, are per verse. It is also not true that in coming to such conclusions, the Revenue authorities ignored the presence of the certificate of the Gems & Jewellery Export Promotion Council. The contention that in absence of proof of local sale, it must be presumed to have been exported, in our opinion, is fallacious. It is not even the case of the assessee, barring his explanation about the higher purity of gold being exported when lower purity gold is declared in the export documents, that such gold was in some form or the other, separately or independently exported. When the authorities did not accept the assessee's explanation it comes to a situation where such differential quantity of gold did not form part of the assessee's exports. The only conclusion, therefore, available to the authorities and therefore rightly reached at was that the gold was subjected to local sale. All in all, the issues considered by the Revenue authorities at a greater length, referring to and analyzing the evidence on record and once which were confirmed by the Tribunal by giving cogent and detailed reasons, in ou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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