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TMI Blog2023 (7) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... ide order dated 30-03-2015 huge and arbitrary additions were made by the assessing officer and his action as partly confirmed by the Commissioner of Income Tax (Appeals), Allahabad is highly unjustified and incorrect in the facts and circumstances of the case. 2-That in any view of the matter addition of Rs 2,60,88,428/- made by the assessing officer as per para 2 of the assessment order by considering the purity in the silver ornament simply on the basis of departmental valuer's report who estimated the purity as per his own whims and likings. As a result addition was reduced by the Commissioner of Income Tax (Appeals) to the extent of Rs 79,17,668/- by reducing the purity from 65% to 52% on his imaginary/guess work without any supporting evidence by ignoring the submission. Hence, the addition of Rs 79,17,668/- as maintained by Commissioner of Income Tax (Appeals) is highly unjustified and called for. 3- That in any view of the matter the learned Commissioner of Income Tax (Appeal) at page 12 of his order has stated that he had called the departmental valuer and enquired from him as to on what basis he had valued purity of the silver ornaments but since the valuer failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justified in deleting the addition. 2. That in any view of the matter it is not correct to say that the learned Commissioner of income Tax (Appeal) has erred in calculating the undisclosed stock of silver at average rate of Rs 5,14,42,280/-, hence the action of learned Commissioner of Income Tax (Appeal) is correct. 3. That in any view of the matter it is not correct to say that learned Commissioner of Income Tax (Appeal) has erred in ignoring the fat that assessee has not agitated the purity of silver when the assessee repeatedly filed objection from the date of survey that purity rate was wrongly taken by the Department. 4. That in any view of the matter the learned Commissioner of Income Tax (Appeal) was perfectly justified in examining the valuer during the appellate proceeding, hence the purity rate as adopted by the learned Commissioner of Income Tax (Appeal) is perfectly correct. 5- That in any view of the matter the order passed by the learned Commissioner of income Tax (Appeal) is a well reasoned, Speaking and judicious order as the same was passed by considering correct facts of the case and therefore by considering the merit of the case the departmental appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red on behalf of assessee to represent his case. There is an application for seeking adjournment but large number of adjournments have been taken, last opportunity was granted and even cost was imposed on earlier occasions. In view of the above and considering the nature of dispute, we proceed to dispose the appeal ex-parte qua the assessee after hearing the learned DR and on the basis of material available on the record. 7. The ld. DR vehemently argued and submitted the documents related to the appeal which are kept in the record. 7.1 The ld. DR further argued and placed that the assessee disowned the selfstatement made during the survey related to the unexplained excess stock of silver amount to Rs.2,60,88,428/-. During survey, the department was accompanied by valuer who calculated the purity @ 65% on ornaments. The ld. CIT(A) in appeal order relied on local trader and ascertained the purity of silver jewellery from @ 40% to @62 % and without any basis ascertained the purity @ 52% on silver jewellery. The ld. DR argued that the re-calculation of purity of the silver just an imaginary and guess work by the ld. CIT(A) and had no basis. 7.2 The ld. DR invited our attention in p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to all the facts and circumstances of the case, I hereby estimate the purity of silver jewellery/ articles at 52%, which is what that had been estimated by the departmental valuer in another case (supra) and this estimate also fits within the range of 42% - 62%. It is also seen that the assessee has filed certain purity certificates of silver articles which had been sold after the date of search. Purity asper these certificates vary between 44% to 68%. This also substantiates my estimate @ 52%. Accordingly, the computation of undisclosed income on account of undisclosed silver found during the course of survey will be as under - 7.4 The ld. DR further argued related to deletion of the undeclared stock amount to Rs.38,05,621/-. As per the chart provided by the ld. DR it is clear that the same amount was not considered by the assessee during the filing of the return after accepting the said amount in the survey. In argument the ld. DR invited our attention in page no. 6 of the appeal order para 2.3.3 which is extracted as below: "2.3.3 It is obvious that there was mistaken belief of facts (on part of the assessee), since the total inventory of gold jewellery was estimated at Rs.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w arises. The applications are, accordingly, rejected." (Emphasis supplied) 7.6.2. Sanjeev Agrawal v. Income Tax Settlement Commissioner, [2015] 56 taxmann.com 214 (Allahabad) "11. No doubt, Sections 132(4) and 133A of the Act are distinct and different. Under Section 133A of the Act, there is no provision to administer oath and to take a sworn statement whereas under Section 132(4) of the Act there is no provision to examine a person on oath. But it does not mean that a statement under Section 133A of the Act can be retracted at the whim and fancy of the assessee. In the light of the aforesaid, the assertions made by the learned counsel for the petitioner cannot be accepted." 7.6.3. Bachittar Singh v. Commissioner of Income-tax, [2010] 328ITR400 (Punjab & Haryana) "7. As regards the judgments in Pullangode Rubber Produce Co.[1973] 91 ITR 18 (SC) and Ester Industries Limited[2009] 316 ITR 260 (Delhi) relied upon by the assessee, even though it may be open to show an earlier statement or an entry to be erroneous, in the present case, the Tribunal was justified in holding that the earlier statement was not proved to be incorrect. As regards the judgment of the Madras High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n perusal of the appeal order the basis of deletion of the amount to Rs.1,81,70,760/- is not proper. The basis applied by the ld. CIT(A) is unreasonable. The ld. AO had not got proper opportunity to ascertain the new fact related calculation of purity of silver ornaments. There is no proper comparative study made by the ld. CIT(A) to conclude the purity of silver ornaments @52%.In survey the Departmental Valuer prepared inventory by ascertaining the different rate of purity of silver ornaments. Finally, during determination of the purity, the average rate is ascertained @65%. Copy of inventory prepared by departmental valuer of gold and silver ornaments on the date of survey is annexed in paper book page 94-121. The assessee surrendered the value of silver stock of Rs. 4,73,30,233/-, out of total stock of silver items valued at Rs. 7,34,18,661/- found during survey. The asseesee has placed reliance on certificates considering the purity ranging 43%-45% which is on the basis of certificate issued by various valuers and those certificates are enclosed at page 160-185 of assessee's paper book, which is at a much later date post survey, and is merely to come out of clutches of tax liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d purity of each and every item of silver available with departmental valuer during the course of survey. Thus, this issue is restored to the file of the AO for fresh determination of value of stock of silver item based on the actual weight and purity of each item of inventory of silver items as prepared by departmental valuer on the date of survey. This exercise is to be done by AO with the aid and assistance of an expert being approved departmental valuer. The assessee be also given opportunity of being heard by the AO, to meet with principles of natural justice, the object being to compute correct income chargeable to tax in the hands of the assessee. 8.2. The dispute is raised related amount to Rs. 38,05,621/-which was deleted by the ld. CIT(A) for allowing the opening stock of silver (stock of silver ornaments claimed to be in the books of accounts on the date of survey on 20.10.2011). The ld.AO had not allowed the opening stock of silver (stock of silver claimed to be available in the books of accounts on the date of survey) which was already declared in the books of assessee. We are, therefore, of the opinion that interest of justice would be sub served if the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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