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TMI Blog2021 (9) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... 18Kg.45 Gms Gold allegedly purchased from M/s Pushpa Enterprises, Agra. CIT(A) has not given a conclusive finding but the issue is set aside to the record of the Assessing Officer and that too with a direction to consider the various facts which were explained by the assessee during the appellate proceedings. CIT(A) has passed the impugned order by accepting the evidences as well as the explanation of the assessee without calling a remand report from AO. When the CIT(A) has passed the impugned order without calling a remand report from the Assessing Officer and even giving a finding that there is no incriminating material found during the course of survey which is contrary to the undisputed facts and material on record is not sustainable in law and liable to be set aside. We order accordingly. The Assessing Officer is directed to re-adjudicate these issues after proper verification and examination of record and particularly the genuineness of the transaction of the alleged purchases made by the assessee from M/s Pushpa Enterprises, Agra by considering the status of payment of the said amount by the assessee. Needless to say the assessee be given an appropriate opportunity of hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 3,94,50,903/- without calling any remand report or giving the opportunity to the A.O. during appeal proceedings. 6. The Ld. CIT(A) has erred in law and on facts in deleting the addition of ₹ 3,94,50,903/- made by the A.O. on the grounds that purchase made from M/s. Pushpa Enterprises are an afterthought of the assessee to manage the undisclosed stock found during the survey proceedings. 7. The Ld. CIT (A) has erred in law and on facts that those shall himself has shown undisclosed income to the tune of Rs, 1,77,00,000/- as other income, therefore, his contention that his books are reliable is not correct. 8. The Ld. CIT(A) has erred in law and on fact in deleting the addition of ₹ 21,77,576/- which is based on valuation by Government approval Valuer without giving any opportunity to valuer as well as the A.O. 9. The Ld. CIT (A) has ignored the valuation of Govt. approved Valuer without mentioning any reason and has given relief against the admitted facts. 10. The Ld. CIT (A) has failed to appreciate the fact that the assessee himself accepted the fact that he is unable to explain the source of excess stock and never questioned i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct facts and purity report furnished by the assessee, which is wrong, illegal and injustice with the assessee. 7. That in the interest charged under different sections of the IT Act is highly unjustified and illegal in the facts and circumstances of the case. 8. That the appellant reserves his right to take any fresh ground before hearing of the appeal. 2. The assessee is an individual and is in the business of trading of Gold and Silver Jewellery. There was a survey under section 133A of the Income Tax Act on 20.02.2015 at the business premises of the assessee bearing no. 137/107, Meerganj, Allahabad. During the survey proceedings one Sri. Deepak Kumar Gupta, the brother of the assessee were present at the business premises and his statement was recorded. As per the physical verification of the stock at the time of survey, undisclosed stock of Gold and Silver was found which was admitted by Sri Deepak Kumar Gupta. Thereafter, the Assessing Officer also recorded the statement of the assessee under section 131 of the Income Tax Act during post survey enquiry wherein the assessee has explained the excess stock in part by producing certain purchase bills issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer. The CIT(DR) pleaded that the impugned order of the CIT(A) to the extent of deleting the addition may be set aside and the order of the Assessing Officer may be restored. As regards, the other additions since the assessee has failed to produce any supporting evidence and explanation to contradict the value of the undisclosed stock the same is liable to be sustained. She has relied upon the orders of the Assessing Officer. 4. We have considered the submissions of the learned DR as well as relevant material on record. During the survey under section 133A of the Act carried out on 20.02.2015 at the business premises of M/s Swarn Ganga Jewellers, 137, Meerganj, Allahabad undisclosed stock of Gold and Silver Jewellery was found. The Gold Jewellery of 28 Kg 7.57 gm and Silver Jewellery of 38Kg 874 Gms was found in excess of the books of accounts. These quantity of undisclosed stock was accepted by one Sh. Deepak Gupta, the brother of the assessee in his statement recorded during the survey. Thereafter the assessee in his statement recorded under section 131 of the Income Tax Act during the post survey enquiry accepted this quantity of Gold and Silver Jewellery found during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... number of year. He is maintaining regular books of accounts, which are duly audited for last number of years. It is a fact that no incriminating material was found during the course of survey. Initial statement of appellant was not recorded by the survey party as the appellant was not there. Valuation report prepared by the approved valuer M/s. Pankaj Jewel Art, creation of found silver and gold items, was objected by the appellant, about the value of purity being used for valuing all the items found. These protests and objections made by the appellant s brother were ignored by the AO and the valuer. No signatures of the appellant could be obtained on such valuation report and as submitted no copy of the valuation report was provided to the appellant by the surveying party. 6. In our view, this finding of the CIT(A) is contrary to the facts as detected during the course of survey. It is pertinent to note that when the excess stock of Gold and Silver Jewellery was found during the course of survey proceedings which was acknowledged and accepted by the assessee in the statement recorded under section 133a of the Act as well as under section 131 of the Income Tax Act in the pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount of undisclosed stock of gold jewellery weighing 10.517 kgs and silver ornaments weighing 139.724 kgs worked out on the basis of the valuation report of the registered valuer totaling to Rs, 3,33,55,348/- on the date of survey. AO is directed to consider these facts while giving effect to this appellate order and take any action as per law, if needed. 7. While giving the direction to Assessing Officer to verify and decide the issue as per law amounts to remand the matter to the record of the Assessing Officer which is beyond the jurisdiction of the CIT(A) as per the provisions of section 250 of the Income Tax Act. Accordingly, the impugned order of the CIT(A) is not sustainable and the same is liable to be set aside. 8. Hence, in the facts and circumstances of the case, when the CIT(A) has passed the impugned order without calling a remand report from the Assessing Officer and even giving a finding that there is no incriminating material found during the course of survey which is contrary to the undisputed facts and material on record is not sustainable in law and liable to be set aside. We order accordingly. The Assessing Officer is directed to re-adjudicate th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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