9911796707
TMI Blog2022 (9) TMI 1589X X X X Extracts X X X X X X X X Extracts X X X X ..... 26.555 gms whereas the sales have been determined at 50101.66 to be the transfer to the Bhubaneswar branch head office is 8572 gms. Even these are the information relating to the assessment year 2011-2012. The impugned first year of appeal is assessment year 2012-2013. After this excel sheet shows wherein for the assessment year 2012-2013, the net closing stock has been determined at 29,799 gms and in respect of silver in the assessment year 2012-2013, a net negative stock of 11,456 gms has been determined. As against this, the excel chart at page 15 shows positive figures for the four branches of the assessee being, Cuttack, Bhubaneswar, Angul and Guragaon for both gold and silver. On what basis the appraisal report has been prepared showing negative figures are also not known. Thus, clearly the assessment made is unsupported by any of the seized materials. No stock statement of the inventory as on the date of search is also produced. The revenue has been unable to produce any of the seized material to substantiate any of the figures for any of the assessment years. The so-called working copy of the hard disk being BDJC-27 has also not been produced before the Tribunal nor before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olumn No. 8, it is mentioned as Trading in jewellery, precious semi precious stones . It was submitted that this was wrong and the assessee was also doing manufacture of gold jewellery. He further drew our attention to page 67 of the paper book which was part of the audit report, wherein at clause 28(a) the quantitative details has been mentioned as not available . He also drew our attention to column No. 28(b), which was in relation to manufacturing, wherein it is mentioned as not applicable . He then drew our attention to page 28 of the paper book which is a statement of Shri Nand Kishore Tibrewal, who is one of the partner of the assessee partnership firm. He drew our attention to page 29 of the paper book wherein in regard to question No. 6, the said partner has mentioned that the assessee is maintaining its accounts in a software namely, Jewel.xp, a software provided by Bidut Software Solutions P. Ltd. which was a hardware specific programme. It was submitted that the assessee has claimed before the ld. CIT(A) for the first time that the AO has not given copies of the seized materials of the copies extracted from the hard disk (BDJC-27) and the pen drive (CWJ12). The ld. CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion that BDJC-27 being the hard disk, contained data for all the years upto the date of search. It was further submitted by the ld. CIT-DR that the pen drive CWJ-12 contained the sales summary for the year 2010 to 2015. The ld. CITDR drew our attention to pages 3 4 of the assessment order to submit that the hard disk, identified as BDJC 27, contained all the details of purchase and sales for the assessment years 2010-2011 to 2015-2016. It was submitted that consequently the AO had taken the said data from the hard disk to an excel sheet. He drew our attention to pages 6 to 19 to show the various data entered in the excel file. The AO had then segregated the transactions in the different years. In respect of purchase of gold bars, bullion, old jewellery and new ornaments, it was submitted that as the gold bars were of purity of 99.5%, at pages 6 7 the AO had converted the same into 916 jewellery requirements. Consequently the weight of the bars was determined at 98,284.36 gms. Similarly, at page 9 of the assessment order the AO determined the purchase of old gold jewellery weight at 393.002 gms and in respect of new jewellery at 229.736 gms. It was also noticed that the assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 19,07,42,154/-. It was further submitted that in page 18 of the assessment order the AO determined the undisclosed investment in the stock at 21,28,56,716/- and as such the stock was not found during the course of search, treated the same as undisclosed sales and applying the same rate of sale as shown by the assessee in its books determined the income for undisclosed sale at Rs. 22,72,83,221/-. Similarly, in respect of silver, the AO at page 19 of the assessment order determined undisclosed investment in purchase at Rs. 10,21,68,279/-. It was the submission that subsequently, the AO at page 22 of his order issued a show cause notice to the assessee vide a letter dated 08.12.2017 to which at para 6 page 26 the AO has recorded the reply given by the assessee on 26.12.2017 and has rejected the same on the ground that the said explanation is vague and evasive. Consequently, the AO made addition of Rs. 47,81,47,015/- rejecting undisclosed investment in silver stock to an extent of Rs. 8,73,07,384/-, undisclosed investment in gold to an extent of Rs. 19,07,42,154/- and undisclosed sales of Rs. 20,00,97,477/-. 4. It was further submitted by the ld. CIT-DR that before the AO the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings, nor even in the remand proceedings, the seized materials have been confronted to the assessee and that the additions have been made in complete disregard to the principles of natural justice. It was the submission that the order of the ld. CIT(A) is a cryptic and unsustainable and the same is liable to be reversed. Ld. CIT-DR also filed his written submissions as follows:- The findings of the ld. CIT (Appeals) are erroneous for the following reasons: a) The CIT (Appeals) is silent about the provisions of section 292C of the Act. Section 292C reads as under: Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing are or is found in the possession or control of any person in the course of a search under section 132 [or survey under section 133A], it may, in any proceeding under this Act, be presumed (i) that such books of account, other documents, money, bullion, jewellery or other valuable article or thing belong or belongs to such person; (ii) that the contents of such books of account and other documents are true; and (iii) that the signature and every other part of such books of account and other documents which purport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Hon'ble Bench. v.) It may please be noted that this contention was for the first time raised before the CIT(Appeals) who did not examine the issue in proper perspective. vi.) The CIT (Appeals) was aware of the fact that seized documents BDJC-21 and BDJC-25 contained the voluminous data in respect of unexplained investment in the stock of gold/silver and undisclosed sales for AY 2016-17 and AY 2015-16 respectively (page-37 of the paper book filed by the assessee on 17.02.2020). However he himself took a contradictory stand in para-9.2 on page-14 of the appellate order to hold that there was no data or details whatsoever in respect of AY 2012-13, AY 2015-16 and AY 2016-17. It is clear that he did not bother to see the contents of Hard Disc BDJC-27 which were reproduced by the A.O. on page-3 of the assessment order. There is no doubt that it contained the details of purchases from FY 2010-11 to FY 2015-16 and similarly details of sales of gold, silver diamond for the FY 2009-10 to FY 2015-16. The CIT (Appeals) also did not bother to see the contents of Pen Drive CWJ12 which were reproduced by the A.O. on page-4 of the assessment order. There is no doubt that it contained th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely because a statement is retracted, it cannot become invalid. For any retraction to be successful in the eyes of law, the assessee has to show as to how the recorded statement does not state the true facts or that there was coercion, inducement or threat while recording the statement. The burden of proof in on the assessee. The retraction has to be genuinely made within reasonable time and immediately after such a statement has been recorded either by filing a complaint to the superior authority of otherwise brought to the notice of the higher officials, duly sworn affidavit or statements supported by convincing evidence. Nothing has been done by the assessee in the present case. e) It is a settled law that for a valid and binding retraction, it is not enough that the assessee merely retracts it; the timing of the retraction and the explanation for the statement as well as retraction may be crucial and can be considered by the Assessing Authorities. Given the legislative object of getting at concealed income, which is secreted away in diverse and different ways, such statements or even documents, which may not be accurate or complete in themselves, have to be scrutinized in the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at no evidentiary value can be attributed to the statement under Section 132(4) of the Act especially in the context of there being a retraction and that for making additions, the Assessing Officer should necessarily unearth materials during the search. 7. The statement on oath given by the assessee is produced by the Revenue as Annexure-A. From a reading of the statement, it is evident that the assessee had voluntarily submitted before the Income Tax Officer that the amount shown in the document with respect to purchase of four properties were not the actual amounts and that he had paid more than that shown in the document. The assessee has also categorically stated the amounts actually paid with reference to the total extent of each of the properties. In fact it is the case of the assessee as is revealed from page 25 of the order of the Tribunal that the documents recovered during the search were put across to the assessee and it was looking into these documents that the assessee had stated the details of the various transactions. The statement given under oath has to be considered in the context of the long prevalent practice of not stating the actual consideration with respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to examine on oath any person who is found to be in possession or control of any books of account, documents, money or valuable articles or things etc. and record a statement made by such person which can be used in evidence in any proceedings under the Income Tax Act. The explanation appended to clause (4) also makes it clear that such examination can be in respect of any matters relevant for the purpose of any investigation and need not be confined to matters pertaining to the material found as a result of the search. A plain reading of Section 132(4) would clearly show that what was intended by empowering an officer conducting the search to take a statement on oath was to record evidence as contemplated in any adjudication especially since Section 131 confers on all officers empowered therein with the same powers as vested in a court under the Code of Criminal Procedure, for the purpose of the Income Tax Act . h) In the case of CIT vs. Ravi Mathur 2017 (1) WLC (Raj.) 387, the Hon'ble Rajasthan High Court held that the statements recorded under section 132(4) of the Income Tax Act have great evidentiary value and they cannot be discarded summarily and cryptic manner, by simpl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orded under section 132(4), such a statement can be used as a strong evidence against the assessee in assessing the income, the burden lies on the assessee to establish that the admission made in the statements are incorrect/wrong and that burden has to be discharged by an assessee at the earliest point of time and in the instant case, we notice that the Assessing Officer in the assessment order has observed :- Regarding the amount of Rs. 44.285 lakhs, it is now contended that the statement under section 132(4) was not correct and these amounts are in thousands, not lakhs i.e. it is now attempted to retract from the statements made at the time of Search Seizure operations . This decision was followed in the case of Bannalal Jat Constructions (P.) Ltd. (106 taxmann.com 127) and SLP filed by the assessee was dismissed by the Hon'ble Supreme Court (106 taxmann.com 128). i) In the case of Hiralal Maganlal Co. vs. DCIT (96 ITD 113), the Hon'ble Mumbai ITAT held that the retraction sought to be made by the assessee several months after making the declaration under section 132(4) was nothing but a well planned device to frustrate the efforts of the Department to unearth unaccounte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion and would bind the petitioner. In the case of T.S. Kumarasamy vs. ACIT (65 ITD 188) (Madras ITAT), the Tribunal held that ITOs are not police officers, they do not use unfair means or third degree methods in recording statement on oath. Therefore such statements and oaths cannot be retracted unless it is proved by legally acceptable evidence that such admission/confession or oath was not voluntarily tendered or was under coercion or duress. In the present case no such evidence has been produced or even shown to have existed. The Hon ble Punjab and Haryana High Court in the case of Rakesh Mahajan Vs. CIT (214 CTR 218) held that it is a well settled law that admissions constitute best piece of evidence because admission are self-harming statements made by the maker believing it to be based on truth. It is well known that no one will tell a lie especially harming one's own interest unless such a statement is true . k) As regards the contention of the CIT(Appeals) that no data was available in the Appraisal report for other years except AY 2010-11 and AY 2011-12 in respect of undisclosed sales or unexplained investment, it is submitted that he has blindly followed the submissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejecting the account books estimated the escaped turn over at Rs. 2,50,000/- under the MP General Sales Tax Act and Rs. 1,00,000/- under the Central Sales Tax Act, adopting the sale of Rs. 31,171/- as escaped turnover for a period of 19 days as the basis. The contention of the assessee in that case was that the action of the Sales Tax Officer was arbitrary inasmuch as he had no evidence of escaped turnover for the entire accounting period and he was not legally correct in estimating or inferring that the assessee would have indulged in sales outside the books of accounts for the entire accounting period. The Supreme Court rejected such a contention in the following words: - It is now proved as well as admitted that his dealings outside his accounts during a period of 19 days were of the value of Rs. 31,171/-. From this circumstance, it was open to the Sales Tax Officer to infer that the assessee had large-scale dealings outside his accounts. The assessee has neither pleaded nor established any justifiable reason for not entering in his accounts the dealings noted in the bill book seized. It is obvious that he was maintaining false accounts to evade payment of sales tax. In such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of anyone else. The High Court could not substitute its best judgment for that of the assessing authority. In the case of best judgment assessments, the courts will have to first see whether the accounts maintained by the assessee were rightly rejected as unreliable. If they come to the conclusion that they were rightly rejected, the next question that arises for consideration is whether the basis adopted in estimating the turnover has reasonable nexus with the estimate made. If the basis adopted is held to be a relevant basis even though the courts may think that it is not the most appropriate basis, the estimate made by the assessing authority cannot be disturbed. In the present case, there is no dispute that the assessee's accounts were rightly discarded. We do not agree with the High Court that it is the duty of the assessing authority to adduce proof in support of its estimate. The basis adopted by the Sales Tax Officer was a relevant one whether it was the most appropriate or not. Hence the High Court was not justified in interfering with the same. 13. Coming to the order of the Tribunal, we are of the view that the reasons given by it to distinguish the judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he loose papers, overlooking that the loose papers needed no further corroboration and the sale bills compared with the seized papers themselves corroborated the suppression of income. Fourthly, the Tribunal has relied on the observations of the CIT (Appeals) that no serious consideration can be given to the loose papers and has held that this shows that there is nothing more in Revenue's kitty apart from those said loose papers pertaining to November, 2005 (financial year 2005-06) to support suppression of sales receipts on the part of the assessee firm . The Tribunal, with respect, has misread the observations of the CIT (Appeals) and has relied on a single observation without reading the order of the CIT (Appeals) as a whole. Moreover, in such cases, it is expected of the Tribunal to also independently examine the decision of the CIT (Appeals) which is impugned before it. In such cases it would be more appropriate to find out or ascertain whether there is any positive material which is in support of the assessee's case or anything upon which the assessee can rely in order to discharge the burden placed upon him in the light of the judgment of the Supreme Court in H.M. Es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l assessment years during the block period. There is no material on record to show that the concealment of the sales out turn during any of the assessment year in the block period is lesser than the concealment detected under section 132 of the Income-tax Act. There is no whisper in the statement given by the partner of the respondent or any of the employees that there was any change of the rate of concealment in any year during the block period. No good reason was given to reject the above mentioned statement of the partner and employees recorded during search. Oral evidence was corroborated by the documentary evidence. So, it is just and appropriate to conclude that the concealment was same in all the years during the block period. Adding to that we find that when it is revealed in a search under section 132 of Income-tax Act that the assessee was following a particular method to conceal the income, it is just and reasonable to presume that the same practice was followed by the assessee throughout all the assessment years in the block period for the purpose of block assessment. Of course, the presumption is rebuttable. In such circumstances, it is for the assessee to establish th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quiry. The observations of the Hon'ble Delhi High Court in para-38 and 43 are reproduced as under: 38. The provision of appeal, before the CIT (Appeals) and then before the ITAT, is made more as a check on the abuse of power and authority by the AO. Whilst it is true that it is the obligation of the AO to conduct proper scrutiny of the material, given the fact that the two appellate authorities above are also forums for fact-finding, in the event of AO failing to discharge his functions properly, the obligation to conduct proper inquiry on facts would naturally shift to the door of the said appellate authority. For such purposes, we only need to point out one step in the procedure in appeal as prescribed in Section 250 of the Income Tax Act wherein, besides it being obligatory for the right of hearing to be afforded not only to the assessee but also the AO, the first appellate authority is given the liberty to make, or cause to be made, further inquiry , in terms of subsection (4) which reads as under: The Commissioner (Appeals) may, before disposing of any appeal, make such further inquiry as he thinks fit, or may direct the A.O. to make further inquiry and report the result o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference:- 7. It was the submission that the Mahazarnama which has been extracted above clearly shows that the copies of the seized material had been given to the representative of the assessee through Mr. Ketul Sheth. It was further submitted that on 15.12.2017, the ld. AR of the assessee Shri Ketul Sheth had come to the office with his own computer and software to take out the extracts. However, it must be mentioned here that the copy of the Mahazarnama, which has been submitted by the ld. CITDR does not show that said Shri Ketul Sheth has carried any computer to the office of the revenue for the purpose of opening the said hard disk identified as BDJC-27. This submission by the ld. CIT-DR is just a figment of his imagination. The ld. CIT-DR also made allegation that the copy of the seized material had been given to the ld. AR of the assesse on 15.12.2017. This also does not come out of the Mahazarnama. Ld. CITDR further drew our attention to the proforma for scrutiny report in the CIT(A) order which has been attached with the written submission of the ld. CIT-DR wherein page 5 of the said scrutiny report it was submitted that the document in BDJC-27 were copied from the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld CIT(A) on the ground that the additions are based on guess work, without any basis and not connected to seized materials and copies of the seized materials were not confronted to the assessee. 4. Ld. CIT(A) after considering the submissions of the assessee and assessment orders called for a remand report from the Ld A.O. 5. The Ld. A.O submitted a remand report (P.B Page-40-41). In the remand report Ld. A.O has admitted that data saved in the Hard Disk (BDJC-27) and Pen-drive CWJ-12 could not opened in spite of engaging computer expert. 6. During remand proceedings Ld. A.O could not justify the additions with reference to any seized materials. In the remand report there is no finding against the assessee's submission. 7. Ld. CIT(A) after examination of detailed submissions of the assessee and after going through the remand report, has passed detailed and exhaustive order and rightly held that additions made in violation of principles of natural justice, without providing seized materials to the assessee cannot be sustained. 8. In the statement recorded u/s-132(4) (PB Page 28-35), assessee never admitted that there is purchase and sale of Gold and Silver outside the books of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment and the same are liable for dismissal. 8. In response to the written submission filed by the ld. AR of the assessee, ld.CIT-DR submitted that the assessee claims that the additions are made on guess work but the additions are actually based on the seized material as has been done in the assessment order. In respect of the remand report relied upon by the assessee that the hard disk and pen drive could not be opened engaging a computer expert, it was submitted that the assessee s representative Shri Ketul Sheth has been given the copies and the assessee had not raised the said objections before the AO. It was further submitted that the assessee s partner had offered Rs. 10 crores to buy peace but he had retracted from the same and said retraction should not be permitted by the Tribunal. It was the submission that in the statement the assessee s partner himself has mentioned that there was no threat or coercion and now to claim the same in the written submission is a falsity. It was the submission that the assssee s claims that the addition cannot be made solely on the basis of the statement recorded u/s. 132(4) of the Act without corroboration with cogent material brought o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dger extracts. 6. Give details of the Bank Accounts including F.Ds in the following format Name address of the Bank with branch Account No/Type of Account Interest received/accrued and closing balance as on 31.03.2012 (1) (2) (3) 7. Furnish details of unsecured loans/deposits taken during the year including squared up loans in the following format: Name address of the person Opening balance Details of transactions Closing balance Rate of Interest Interest Paid/payable during the year Debit Credit Debit Credit Debit Credit (1) (2) (3) (4) (5) (6) Also submit in each case (i) Amount and date of loan/deposit taken, when it was first taken. (ii) Mode of transactions (cash/cheque/DD) (iii) Confirmation from the creditor/depositor (iv) PAN and assessment particular of the creditor including details regarding the A.O. having jurisdiction over him (v) Details/evidences regarding the identity of the creditor/depositor, his/her creditworthiness and the genuineness of the transaction. 8. Give details of the secured loans in the following format : Sr. No. Amount of loan taken Name and address of bank/financial institution Amount of security pledged/value of hypothecation of stock Details of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nish copies of their account from your ledger. Give complete and correct addresses of all such persons alongwith their PAN/A.O. particulars. 17. Furnish details of purchases above Rs. 50,000/- made during the year in the following format: Name address of the party from whom purchases are made Products purchases Quantity Amount of purchases during the year Amount paid Balance payable (1) (2) (3) (4) (5) (6) 18. Furnish details of sales above Rs. 50,000/- made during the year in the following format. Name address of the party from whom sales are made Products sold Quantity Amount of sales during the year Amount received Balance receivable (1] (2) (3) (4) [5) (6) 19. Details of the immovable properties acquired in your name or in the name of your family members, HUF etc during the F/Y 2011-12 in the following format Name Pan of the Person Description of the Property Address/location Amount invested in Rs/Your investment Date/Dates of Transaction Mode of Transaction (1) (2) (3) (4) (5) 20. Furnish month-wise details of opening stock, purchase, sales and closing stock of different materials - indicate quantity and value. 21. Whether any preliminary expenses have been claimed during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 20,00,000/- was seized from the business premises of the assessee at Naya sarak Cuttack. Please explain the sources of the same and please explain why the same should not be treated as unaccounted cash of the assessee as the cash book was not upto date on the day of search. During the course of search conducted at your business premises, several documents, registers and digital! equipments (especially BDJC-27 and CWJ-12) Were seized. These include retail sale invoices, sales return details, stock as per digital books, tax audit report and audited accounts. In addition to the above you had furnished certain statements and stock details during the post search investigation. From such details as well as from other enquiries made and statements recorded on oath, it is seen that although you have dealt in sale of gold and I silver ornaments and articles and other articles but the stock statement maintained by you consist of gold bars bf 99.5% purity and ornaments. There is no mention of manufacture of gold ornaments from gold bars as to how much of ornaments were manufactured out of gold bars. The statements also reveal that while converting gold bar info gold ornaments, you have take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rate per gm is also calculated; FY Sales-Sales return Rate per gm (Rs) Net sales in gm Net sales in Rs 2009-10 48720.946 91584622.57 1879.78 2010-11 46989.97 101805790 2166.54 2011-12 38575.3 110848495.9 2873.56 2012-13 39370.928 135755591.6 3448.12 2013-14 47615.76 157864007.7 3315.37 2014-15 59128.489 195512487.8 3306.57 2015-16 34367.982 111567131.8 3246.25 Applying that rate undisclosed income out of sale of undisclosed stock as mentioned above is calculated as under. FY Undisclosed stock in gm Avr Rate per gm Income on sale of undisclosed stock (Rs.) 2011-12 69634 2873.56 20,00,97,477 2014-15 1588 3306.57 52,50,833 2015-16 6757 3246.25 2,19,34,911 TOTAL 22,72,83,221 The above sales to the extent of Rs. 22,72,83,221/- has not been disclosed by the assessee in respective AYs. Please explain why the same should not be added to the respective asstt. Year. Regarding silver stock at Cuttack and Bhubaneswar similar to gold stock at those two shops is also computed as under : BBSR 19022.65 108997 -89974.35 NET 116801.012 566912.98 (E) 14-15// CTC 757439 5024.64 83266.363 383473.88 467256.123 MM 168 94.19 120454.06 -103559.87 NET 363696.253 (F) 645586.75 (G) 285022 (G-E-F) 40.00 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 x 2501.842). The figures in the table show booking of stock at a lower irate. The difference is nothing but making charges paid to the Karigar in kind. In this particular case, the differential weight applying rate of Rs. 2500/- per gram comes to Rs. 2,60.275/- (104.11 x 2500). The Karigars are regularly collecting raw material from the assessee firm and returning finished products to it. Payments are made to them regularly and the accounts are running ones as evidenced by entries in the Karigar' Register. The amount of payment as computed here clearly shows that the payments satisfy the financial limits referred to in Section 194C of the IT Act. Gold in bullion form which is purchased as such or extracted by the firm out of old gold purchased and melted is handed over to the Karigars. The Karigar creates saleable jewellery out of it and is paid in kind for this work. The payments in kind referred to above are not brought to books directly. These payments to Karigars are hidden expenditures which are adjusted in stock valuation. Deduction is booked in the financial statements but it does not appear as a deduction in profit loss account to skip TDS provisions. Please explain. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that it should be kept in mind that from the said alleged seized material in the appraisal report excel sheet has been prepared. Nothing has been provided to even corroborate that what has been extracted in the excel sheet are from the seized material or not. It was the prayer that as the additions have not made on the basis of any seized material, therefore, the additions made by the AO has rightly been deleted by the ld. CIT(A). It was the prayer that the order of the CIT(A) deserves to be upheld. 12. In respect of the cross objection filed by the assessee, it was submitted by the ld. AR that this was against the action of the ld. CIT(A) in confirming the addition of Rs. 23,28,690/- being the cash found at the time of search. It was submitted by the ld. AR that in the course of search cash was found and out of which Rs. 20 lakhs had been seized. It was the submission that the entire cash found at the Cuttack branch of the assessee of Rs. 23,28,690/- was treated as undisclosed income of the assessee. It was submitted by the ld. AR that the assessee is able to explain the cash found was part of the sales of the previous day. It was the submission that neither the AO nor the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice on the assessee. This makes it clear that the AO when completed the assessment, was not privy to the extracts of the seized materials, namely, BDJC-27 and CWJ-12. A perusal of the paper book filed by the assessee at page 27, which shows the pen drive as CWJ-12 and at page 4 which shows the hard disk with working copy as BDJC-27, admittedly has not been seen by the AO. In the written submission, ld. CIT-DR stated that the ld. AR of the assessee Shri Ketul Sheth went to the office of the AO with his own computer and software on 15.12.2017 to take out the extracts. For a moment, if we see the date of 15.12.2017 with para 5 of the assessment order, where the AO has mentioned the show cause notice, the show cause notice has been issued on 08.12.2017, much before opening of the hard disk or attempt to open the hard disk. Thus, clearly no data was available with the AO other than the appraisal report when he issued the show cause notice. Now, coming to this date of 15.12.2017 a perusal of the Mahazarnama, which has been prepared by the Assistant Commissioner of Income Tax, Central Circle, Cuttack in the presence of two witnesses and the assessee s authorized representative Shri Ket ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sal report, thus, determines the computation of purchases of Cuttack branch for the assessment year 2011-2012 at 126.555 gms whereas the sales have been determined at 50101.66 to be the transfer to the Bhubaneswar branch head office is 8572 gms. Even these are the information relating to the assessment year 2011-2012. The impugned first year of appeal is assessment year 2012-2013. After this excel sheet shows wherein for the assessment year 2012-2013, the net closing stock has been determined at 29,799 gms and in respect of silver in the assessment year 2012-2013, a net negative stock of 11,456 gms has been determined. As against this, the excel chart at page 15 shows positive figures for the four branches of the assessee being, Cuttack, Bhubaneswar, Angul and Guragaon for both gold and silver. On what basis the appraisal report has been prepared showing negative figures are also not known. Thus, clearly the assessment made is unsupported by any of the seized materials. No stock statement of the inventory as on the date of search is also produced. The revenue has been unable to produce any of the seized material to substantiate any of the figures for any of the assessment years. Th ..... 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