SHRI GOPAL SONI,MANDSAUR vs. ADDLL. CIT , RATLAM

PER MANISH BORAD, AM.

The above captioned three appeals are filed at the instance of

assessee pertaining to Assessment Year 2000-01 to 2002-03and are

directed against the orders of Ld. Commissioner of Income Tax (Appeals)

(in short ‘Ld.CIT(A)’], Ujjain dated 01.08.2017, which are arising out of

the order u/s 143(3)/148 of the Income Tax Act 1961(In short the ‘Act’)

Gopala Krishna Soni ITA No.712 to 714/Ind/2017 dated 21.02.2006, 27.02.2004 and 31.3.2005 framed by ACIT & Addl.

CIT, Ratlam respectively.

together and being disposed off by this common order for the sake of

convenience and brevity.

assessee is engaged in the jewellery business in the name of Poonam

Jewellers at Mandsaur. Survey u/s 133A of the Act was carried out at

the assessee’s business premises on 27.12.2001. Various incriminating

materials were found. Assessee offered undisclosed income of

Rs.5,00,000/- and Rs.15,00,000/- for Assessment Year 2001-02 and

2002-03. Return of income were filed and assessment proceedings were

carried out as per the provisions of law after serving the statutory notices

and various additions were made against which assessee preferred appeal

before Ld. CIT(A).

grounds against separate orders of Ld. CIT(A) confirming various

additions for the tree Assessment Years and the same are adjudicated in

the forthcoming paragraphs:- 2

Gopala Krishna Soni ITA No.712 to 714/Ind/2017 5. We will first take up ITA No.712/Ind/2017 for Assessment Year

2000-2001. Following appeals have been raised by the assessee.

Grounds of appeal set out below are without prejudice to each other:-

Ground No.1: The Ld. Commissioner of Income Tax (Appeals) (here in after referred as CIT(A) has erred in confirming alleged income of Rs.11,10,000/- in the hands of the assessee, which in fact does not belong to the assessee, on conjecture, surmises and suspicion. Ground No.2: The Ld. CIT(A)has erred in levy of charging interest u/s 234A at Rs.36,362/- u/s 234B at Rs. 2,94,591/- u/s 234C at Rs. 1,411/- and u/s 220(2) at Rs. 4,61,846/-. The appellant craves leave to add, alter and/or amend any grounds of appeal.

2000-01 are that during the course of survey u/s 133A of the Act, survey

team impounded a dairy namely “Neelgagan”at Mayur Nagar premises

from the almirah of the “Karigar” named Shekh Sultan. During the

course of assessment proceedings it was submitted that the alleged diary

belongs to the employee having some transaction of “Doda Choora” which

have no connection with the assessee. There is no mention of assessee’s

name, business transaction in this diary nor any date or signature are

mentioned. It was further contended that the alleged diary is merely a

dumb document for which no addition should have been made. Ld. A.O

Gopala Krishna Soni ITA No.712 to 714/Ind/2017 however was not satisfied and against the returned income of

Rs.2,36,842/- declared by the assessee made addition of Rs.11,10,000/-

for unexplained investments and addition of Rs.1,13,158/- was made for

non production of books accounts. Against these additions appeal was

preferred before Ld. CIT(A) and assessee partly succeeded in getting the

relief of deleting the addition of Rs.1,13,158/-, however CIT(A) confirmed

the addition of unexplained investment at Rs.11,10,000/-.

challenging the addition of Rs.11,10,000/- confirmed by Ld. CIT(A).

written submissions placed before us during the course of hearing.

“Ground No. 1: The Ld. Commissioner of Income Tax (Appeals) {here in after referred as CIT(A)} has erred in confirming alleged income of Rs.11,10,000/- in the hands of the assessee, which in fact does not belong to the assessee, on Conjecture, Surmises and Suspicion.

Brief facts of the case are that the assessee is engaged in jewelry business in the name of M/s Poonam Jewelers at Jeevaganj, Mandsaur. Assessee has filed his return on 28.03.2001 showing income at Rs.2,36,842/-, copy in Paper book at Page 1-8. There was a survey carried out u/s 133A on 27112/2001, copy of S.A. recorded under survey proceedings is in Paper book at page 9- 13. In S.A. assessee stated that there was a theft at his business premises on 20108/2001 in which jewelry and books were taken away by thief's for which a police FIR longed, copy of the FIR is at page 14 - 17. After that, shop was closed for 2 4

Gopala Krishna Soni ITA No.712 to 714/Ind/2017

months for making strong room. In SA, assessee also stated that some of the jewelry are also made at a house in mayur nagar colony by our karigars, those karigars resided also there, in survey proceedings a spiral diary named as Neelgagan found at Mayur Nagar premises from the almirah of karigar, Shekh Sultan in which their clothes are kept. Survey team seized the diary and got its pages signed from Shekh Sultan, kari :ar and recorded his SA, copy of SA at page 18-20.

Your honours kind attention is drawn that this diary has not been found from of the possession of the assessee, it has been found from the possession of Shekh Sultan, as also evident from his statement. AO made an alleged addition of Rs. 11,10,000/- as investment from undisclosed sources under presumptions and surmises and wrong notion, without any concrete correlated evidence narrating that some transactions relates to doda chura businessl\and there is an investment in the name of assessee, which is confirmed by CIT(A). It is also stated that this additions of Rs. 11,10,000/- is made on a dumb document, copy of same is in P. book at page 21 and no corroborative evidence was found to support the finding of A.O. and no person is examined : to prove the document. It does not carry any date as well as signature of the assessee, no transaction or specified details are there in the said paper, in that paper, it is only written as 'Gopalji' which is not having any date or signature of the assessee, no transaction is disclosed in the said paper. It is a document which has not been found from the possession of assessee, it is found from the Shekh Sultan which he has also confirmed the same in his S.A. recorded. Considering the above facts no addition could be made on such a document even if it is recovered from the office premises of the assessee. Diary neither belongs to assessee nor seized from the assessee and it has no connection with the assessee. It is a settled law that if the assessee denies the information collected by revenue., then the revenue has to satisfy himself by making independent enquiry from the sources considered reliable by it and decide whether information passed on to it is true

Gopala Krishna Soni ITA No.712 to 714/Ind/2017

or not? If he reaches to the conclusion that the information received by him is true, he has to provide reasonable opportunity of rebutting it before to act thereupon. He has no right to burden the assessee with an extra amount of tax on vague information without verifying its reliability. The same can not be foisted upon the other party in the absence of sufficient corroboratory material. Under the above narrated facts the alleged addition of Rs.11,1O,000/- are liable to be deleted.

Relied on :- (1) A.C.I.T. vs. Raj Homes Pvt. Ltd. - 13 ITJ 658 p.p. 704 Ind.

(2) A.C.I.T. vs. Shri Sharad Doshi - ITA no. 537/INDI 2015 dt. 23/12/16

Assessee has categorically stated at every stage that seized material does not belong to him. Revenue is not able to unearth any background with regard to the alleged business like Doda Churi etc. or any corroborative evidence thereof. Doda Churi license is in the name of some 'Govindram Gopilal Joshi', copy of the said licence is in PB at Page 22 - 24. Revenue has not traced and examined any of the person whose names were found in the seized material. Aforesaid notebook has unsigned documents. AO has not established any nexus between the notebook I loose documents and business of the assessee. There is no narration regarding the address of the assessee. No addition can be solely made on the basis of seized material in absence of any other corroborative material to prove that assessee has carried on such alleged business. Besides that assessee was not provided opportunity to cross examine the parties whose statement were relied upon by the AO while making the assessment. Assessee apprehends that somebody might have planned to harass the poor assessee with an intention to involve the assessee to look very suspicious. It is clear that entries made in the diary are imaginary, concocted and unrealistic transactions which not at all related to the assessee. Assessee affirm that diary does not belong to him, the presumption can be applied only against the person in whose

Gopala Krishna Soni ITA No.712 to 714/Ind/2017 possession the said diary was found. Additions made on the basis of jottings in the diary are neither legally sustainable nor factually maintainable. AO & CIT(A) had failed to consider legal aspects properly and making inanity about the names noted in the diary and failed to examine while considering evidentiary value of the diary. No such alleged addition can be made on the basis of surmises, conjecture & surmises.

Relied on :- (1) Dhakeshwari Cotton mills vs. CIT - 26 ITR 775 SC (2) Umacharan Shaw & Bros. vs. CIT - 37 ITR 271 SC (3) CBI vs. V. C. Shukla- 3 SCC 410 SC

Your honours further kind attention is also drawn towards the facts that assessee was gunshot in Year 2004 and due to the said incident he was paralyzed from 2004 and confined to bed and his jewelry business also closed and is surviving on God mercy only and on verge of so many non curable deceases and no one is there to succeed and help him at this juncture because of illness and also not able to pay any such demand alleged / artificially created against him. All these facts were also stated in remand report received along with S.A. of the assessee dated 23/02116 confirming his status. A certificate of 100 'Viklangta' is also attached with remand report to demonstrate the same. Copy of same at P book Page 32 - 36.

supporting the orders of both the lower authorities.

before us. The assessee has challenged the finding of Ld. CIT(A)

confirming the addition for unexplained investment of Rs. 11,10,000/-.

Gopala Krishna Soni ITA No.712 to 714/Ind/2017 We observe that the assessee is in the business of jewellery and is offering

profits from the business of sale of gold and silver jewellery from past

many years. Apart from running the shop assessee also carries

manufacturing process at his residential premises at Mayur Nagar where

“karigars” perform manufacturing process. During the course of survey

conducted u/s 133A of the Act spiral diary named “Neelgagan” was found

in the almirah which is normally used by employees for keeping clothes

as the “karigars” normally change their dress while working. This diary

was impounded from Shekh Sultan and his signature were taken by the

survey team. In the alleged diary various transactions relating to “doda

chura” business are mentioned. There was no details of any transaction

of gold and silvery jewellery business or any reference of assessee’s

proprietorship concern or assessee’s name or his signature. Further

investigation reveals that “doda chura” business licence is in the name of

one Govindram Gopilal Joshi which is placed at page 22 to 24 of the

paper book. We also find that no nexus have been established by the Ld.

A.O between the impounded note book and the books of accounts

maintained by the assessee. During the course of appellate proceedings

remand report was sought by Ld. CIT(A) about the current whereabouts

of Mr. Govindram Gopilal Joshi who is claimed to be owner of the 8

Gopala Krishna Soni ITA No.712 to 714/Ind/2017 impounded diary. Report of the Inspector was submitted mentioning that

Mr. Govindram Gopilal Joshi expired on 27.2.2005 and in support copy of

the death certificate was also placed.

“Neelgagan” found from the possession of assessee’s employee has no

corroboration with the business transactions of the assessee and for the

purpose of assessing the income in the hands of the assessee the alleged

dairy is to be categorised as dumb document.

ITR 597 held that mere seizure of note books of documents at the personal

residence of an employee would not conclude the issue against the

employer company that the “on money” has been received by the employer

company. In another judgment of Hon’ble Apex Court in the case of

Dhakeshwari Cotton Mill Pvt. Ltd v/s CIT (1954) 26 ITR 775 it was held

that “while making an assessment there must be something more than the

bare suspicion to support the assessment”.

above judgments are of the considered view that both the lower

Gopala Krishna Soni ITA No.712 to 714/Ind/2017 authorities were not justified in confirming the addition of Rs.11,10,000/-

for unexplained investment on the basis of impounded dairy which in our

view is merely a dumb document and such addition is made merely on

presumption and surmises without establishing any concrete correlation

with the regular business transaction carried out by the assessee. We

therefore delete the addition of Rs.11,10,000/- and allow the assessee’s

Ground No.1.

and 220(2) of the Act is consequential and general in nature.

Years 2001-02 & 2002-03 in which following grounds of appeal have been

raised;

Assessment Year 2001-02

Grounds of appeal set out below are without prejudice to each other:- Ground No.1: The Ld. Commissioner of Income Tax (Appeals) has erred in rejecting the books of accounts u/s 145, arbitrarily on presumption without pin pointing any specific discrepancy. Ground No.2: The Ld. CIT(A) (here in after referred as CIT(A) has erred in confirming alleged income from business of Rs.5,98,905/- as against actual 10

Gopala Krishna Soni ITA No.712 to 714/Ind/2017 income declared income at Rs. 1,095/- after considering the surrendered income of Rs.5,00,000/- during the survey carried u/s 133-A arbitrarily.

Ground No3: The Ld. CIT(A) has erred in levy of charging interest u/s 234B at Rs. 82,517/- and u/s 220(2) at Rs. 4,38,453/- The appellant craves leave to add, alter and/or amend any grounds of appeal. Assessment Year 2002-03

Grounds of appeal set out below are without prejudice to each other:- Ground No.1: The Ld. Commissioner of Income Tax (Appeals) has erred in rejecting the books of accounts u/s 145, arbitrarily on presumption without pin pointing any specific discrepancy. Ground No.2: The Ld. CIT(A) (here in after referred as CIT(A) has erred in confirming alleged income from business of Rs.17,71,151/- as against actual income declared income at Rs. 2,71,151/- after considering the surrendered income of Rs.15,00,000/- during the survey carried u/s 133-A arbitrarily.

Ground No3: The Ld. CIT(A) has erred in levy of charging interest u/s 234B at Rs. 1,63,598/-, u/s 234C at Rs.2,720/- and u/s 220(2) at Rs. 8,51,886/- The appellant craves leave to add, alter and/or amend any grounds of appeal.”

two appeals are that post survey u/s 133A of the Act, assessee filed

income tax returns for Assessment Year 2001-02 & 2002-03. The

undisclosed income surrendered during the course of survey u/s 133A of

the Act at Rs.5,00,000/- and Rs.15,00,000/- were duly offered to tax in

the computation of income but as the assessee claimed to have suffered 11

Gopala Krishna Soni ITA No.712 to 714/Ind/2017 loss in the business same and was set it off against the undisclosed

income, the resultant total income was disclosed at Rs. 1095/- and

Rs.2,71,151/- for Assessment Year 2001-02 and 2002-03 respectively.

Ld. A.O while conducting the assessment proceedings made reference to

various incriminating material found during the course of survey which

included the documents relating to payment for labour charges,

purchases and other slips and loose papers containing details of the

transactions which assessee was unable to correlate with the books of

accounts. Ld. A.O on observing that as the documents and loose papers

found during the course of survey did not find any nexus with books of

accounts maintained by the assessee, the same are liable to be rejected

u/s 145(2) of the Act and accordingly estimated the income for

Assessment Year 2001-02 at Rs.6,00,000/- inter alia including the

amount offered during the course of survey of Rs.5,00,000/- and for

Assessment Year 2002-03 at Rs.17,39,860/- inter alia including

Rs.15,00,000/- offered by the assessee as undisclosed income during the

course of survey.

Gopala Krishna Soni ITA No.712 to 714/Ind/2017 19. Now the assessee is in appeal before the Tribunal for both the

Assessment Years against the addition confirmed for Rs.5,97,000/- and

Rs.15,00,000/- for Assessment Year 2001-02 and 2002-03 respectively.

made before the lower authorities submitted that the income of

Rs.5,00,000/- and Rs.15,00,000/- surrendered during the course of

survey u/s 133A of the Act have been duly offered to tax in the

computation of income. Genuine loss suffered in the business have been

set off against the surrendered income. Regular books and accounts are

maintained for Assessment Year 2001-02 and 2002-03 and financial

statements are duly audited u/s 44AB of the Act. No major discrepancy

have been noticed by Ld. A.O in the books of accounts nor any

corroborative evidence have been brought on record confirming the

addition and prayed for deleting the addition confirmed by Ld. CIT(A).

supporting the orders of lower authorities and also submitted that the

assessee was earning normal business profits up to 2000-01 showing

Gross Profit @24.54% for gold jewellery turnover and 15.5% for silver

jewellery turnover but in the subsequent assessment years there has 13

Gopala Krishna Soni ITA No.712 to 714/Ind/2017 been sharp fall in the Gross Profit rate for which no reasons have been

provided by the assessee during the course of assessment proceedings,

therefore books have been rightly rejected and profits have been

estimated.

before us. Assessee in these appeals for Assessment Year 2001-02and

2002-03 has challenged the finding of Ld. CIT(A) confirming the addition

of Rs.5,97,000/- and Rs.15,00,000/- towards estimation of income from

business and undisclosed income surrendered during the course of

survey.

the Act various incriminating material were found which the assessee

could not explain during the course of survey proceedings. He therefore

admitted the undisclosed income of Rs.5,00,000/- and Rs.15,00,000/- for

Assessment Year 2001-02 and 2002-03 and agreed to offer it for tax in

the regular return of income to be filed subsequent to the survey

proceedings.

Gopala Krishna Soni ITA No.712 to 714/Ind/2017 24. Subsequently for Assessment Year 2001-02 return of income from

business was submitted on 31.03.2002 declaring total income of

Rs.1095/- and agriculture income of Rs.43,782/-. In the computation of

income under the head “business income” was also mentioned the

surrendered amount of Rs.5,00,000/- made during the survey u/s 133A

of the Act. For Assessment Year 2001-02 assessee has shown net loss of

Rs.4,63,554/- before claiming depreciation.

was declared. Loss from business before claiming depreciation has been

shown at Rs.11,71,113/-. This loss has been set off against surrendered

amount at Rs.15,00,000/-.

financial statement for Assessment Year 2001-02 and 2002-03 are that

assessee has shown loss from business and the surrendered income has

been set off against the business loss and after claiming depreciation at

fixed assets total income at Rs.1095/- and Rs.2,68,498/- has been

offered to tax for Assessment Year 2001-02 and 2002-03 respectively. Ld.

A.O while conducting the assessment proceedings made specific

observations that various incriminating material including loose papers 15

Gopala Krishna Soni ITA No.712 to 714/Ind/2017 and slips containing transactions of purchases, sale, expenses, detail of

creditors were found but assessee failed to corroborate them with the

regular books of accounts. These reasons were sufficient for the Ld. A.O

to reject the books of accounts u/s 145(2) of the Act and we find no

inconsistency in this view taken by Ld. A.O of rejecting books of accounts.

Now when the books and accounts are rejected, profit needs to be

estimated. Revenue authorities have not disputed gross turnover shown

by the assessee. Ld. A.O while examining the computation of income and

making other observations as mentioned above found that taxes have not

been paid on the surrendered amount rather the assessee has set of the

business loss against surrendered income. For this reason profits were

estimated along with making addition for the surrendered amount.

Rs.15,00,000/- are concerned there remains no dispute that these

amounts are shown in the computation of income and offered to tax. In

the balance sheet filed before us under head loans and advances an

amount of Rs.20,00,000/- has been shown as “amount declared at the

time of survey to be adjusted at the time of assessment”. The reason and

the explanation for showing this surrendered amount under the head

Gopala Krishna Soni ITA No.712 to 714/Ind/2017 loans and advances is best known to the assessee but certainly lacks the

display as per the prevailing accounting methods. Since we have already

held that the books of accounts of the assessee were rightly rejected u/s

145(2) of the Act then the income needs to be estimated for the year

under appeal.

account filed by the assessee, gross profit @ 24.54% is declared on the

gross turnover of gold jewellery at Rs.20,81,766/- and gross profit rate

@15.56% has been shown on the turn over of silver jewellery at

Rs.1,60,442/-. Ld. A.O has accepted these results. Now we move to

Assessment Year 2001-02. We find that the gross profit rate on sale of

gold jewellery has come down to 14.85% on the turnover of

Rs.30,79,211/- whereas the gross profit rate of silver jewellery remains

almost same at 15.72% on the turnover of Rs.3,51,177/-. The Gross turn

over for 2001-02 is totalling Rs.31,14,388/-. Assessee is in the retail

business and gross turnover is less than Rs.40 lakhs. Though tax audit

u/s 44AB of the Act has been conducted but since specific defects have

already been pointed out in the books of accounts, in these

circumstances we in view of the provisions of Section 44AF of the I.T. Act

Gopala Krishna Soni ITA No.712 to 714/Ind/2017 which provides for presumptive taxation on the retail trade business @

5% of gross turn over or the books profit whichever is higher, inclined to

hold that the net profit @5% of the total turnover of Rs.31,14,388/-

should be treated as the net profit of the year i.e. Rs.1,55,720/-. As the

assessee has shown the net loss of Rs.2,44,123/-. The net addition to be

confirmed will stands at Rs.3,99,843/- as against Rs.5,98,905/-

confirmed by Ld. CIT(A). Assessee gets part relief and accordingly

Ground No.1 of the assessee’s appeal stands dismissed and Ground No.2

is partly allowed. Ground No.3 is general and consequential in nature.

of Rs.15,00,000/- have been confirmed by the Ld. CIT(A), we find that

the Gross turnover of gold jewellery has increased to 49,24,657/-and sale

of silver jewellery at Rs.1,70,996/- but the gross profit of gold jewellery

has crashed down to 6.4% whereas in silver jewellery business loss has

been claimed. We applying the view as taken for Assessment Year 2001-

02 hold that the books of accounts were rightly rejected u/s 145(2) of the

Act for the discrepancies observed by the lower authorities in the books of

accounts as discussed in preceding paras and as regards estimation of

profit is concerned we find that the sales of gold jewellery business has

Gopala Krishna Soni ITA No.712 to 714/Ind/2017 increased from Rs.20,81,766/- in the Assessment Year 2000-01 to

Rs.49,24,657/- during Assessment Year 2002-03. Average gross profit

rate for Assessment Year 2000-01 to 2002-2003 will come to 15%, i.e. the

average of gross profit of 3 years i.e. 24.54%, 14.85% and 6.47%

respectively. So in the interest of justice and in the totality of facts 15%

gross profit rate if applied on the turnover of the gold jewellery items will

meet the ends of justice for estimation of profits on sale of gold jewellery

and same will works out to be Rs.7,38,699/- against which Rs.3,18,703/-

has been shown as gross profit by the assessee which will sustain the

addition of gross profit at Rs.4,19,996/-approx.

regularly declaring around 15% of gross profit rate but for Assessment

Year 2002-03 loss has been declared. The rate of silver per kg has not

increased or decreased drastically. From the information available on

internet the rate of silver per kg as on 31.03.2011 is Rs.7200 and on

31.03.2002 Rs.7875 per kg which means there is increase in the rate of

silver therefore the loss shown by the assessee cannot be attributed to the

fluctuation in prices. No other reason has been placed before us for this

decline. Therefore we are inclined to apply gross profit of 15% on the

Gopala Krishna Soni ITA No.712 to 714/Ind/2017 sale of silver jewellery at Rs.1,70,996/- i.e. Rs.25,650/-against the loss

shown at Rs.2,34,441/-.

disclosed by the assessee the addition in gross profit will be

Rs.6,80,087/- (Rs.4,19,996 + Rs. 2,60,091) and net loss shown by the

assessee in the profit and loss account at Rs.8,99,870/- will thus come

down to Rs.2,19,783/-. This will reduce the claim of loss by the assessee

by Rs.6,80,087/- and will increase the total income of the assessee by

this amount. Accordingly against the addition of Rs.15,00,000/-

confirmed by Ld. CIT(A), we sustain the addition to Rs.6,80,087/- and

delete the remaining amount of addition at Rs.8,19,913/- and partly

allow assessee’s Ground No.2. Ground No.1 of the appeal relating to the

rejection of books already stands dismissed and Ground No.3

consequential and general in nature.

allowed and appeal for Assessment Year 2001-02 & Assessment Year

2002-03 are partly allowed.

Gopala Krishna Soni ITA No.712 to 714/Ind/2017

The order pronounced in the open Court on 14.05.2019.

Sd/- Sd/-

( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER �दनांक /Dated : 14 May, 2019 /Dev Copy to: The Appellant/Respondent/CIT concerned/CIT(A) concerned/ DR, ITAT, Indore/Guard file.

By Order, Asstt.Registrar, I.T.A.T., Indore