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TMI Blog2008 (9) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant. Mr Prakul Khurana for the Respondent. JUDGMENT RAJIV SHAKDHER, J.- This is an Appeal by the Revenue under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as the 'Act') preferred against the judgment of the Income Tax Appellate Tribunal (hereinafter referred to as the Tribunal) passed in IT(SS) No. 331/Del/2002 for the block period 1.4.88 to 15.10.98. 2. The only issue raised by the Revenue in the present Appeal is with regard to the deletion by the Tribunal of a sum of Rs.21,61,67,368/- which had been added by the Assessing Officer under Section 40A(3) of the Act on account of purported cash transaction in the sum of Rs.108,08,36,839/-. 3. In order to dispose of the Appeal, the following facts relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing Officer under Section 40A(3) of the Act. 3.4 Being aggrieved by the order of the CIT, the Assessee preferred an appeal to the Tribunal. In the appeal before the Tribunal, the Assessee had raised several grounds. However, the grounds pertaining to the issue under consideration were Ground Nos.2 and 8 which are extracted hereinbelow:- "2. Under the facts and circumstances of the case, the Ld CIT(A) has erred in confirming action of the AO in holding that the various loose papers found from the assessee belongs to him. He has further erred in confirming the action of the AO by holding that various transactions/jottings on these papers represent trading of the assessee.? "8. Under the facts and circumstances of the case, the Ld. CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a bailee of goods and, at no point of time, the property in the bullion passed to the Assessee. This conclusion, the Tribunal arrived at based on the fact that the Assessing Officer had not been able to bring any material on record to establish that the Assessee had received possession of the bullion as an actual buyer or that the property in the bullion had passed to the Assessee. The Tribunal noted that after the Assessing Officer had accepted the agency commission it was not permissible for the Assessing Officer to presume that such transactions were from purchase or sale made by the Assessee in his own right. In view of the above, the Tribunal concluded that the appellant herein could not bring on record any material to prove that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he findings returned in respect of Ground No.2 of the appeal that the seized documents, being Annexures A-2 to A-8, did not reflect purchases in which Assessee had proprietary rights and it being undisputed that, in respect of, such transactions Assessee had declared commission from agency business, which had been accepted as undisclosed income of the block period without any adverse comments thereon, there was no factual or legal justification in making disallowance under Section 40A(3) of the Act. The Tribunal categorically stated that it was unable to accept that the seized documents Annexures A-2 to A-8 represented purchases made by the Assessee in cash. 4. Having heard the learned counsel for the Revenue as well as the Assessee and pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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