LALCHAND JEWELLERS PVT. LTD.,BHUBANESWAR vs. DCIT, CORPORATE CIRCLE-1(1), BHUBANESWAR

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK

BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND LAXMI PRASAD SAHU, ACCOUNTANT MEMBER

ITA No.131/CTK/2017 Assessment Year : 2012-2013

Lalchand Jewellers Pvt. Ltd., Plot Vs. DCIT, Corporate Circle 1(1), No.1, 4th floor, Lalchand Market Bhubaneswar. Complex, Station Square Unit- III, Bhubaneswar. PAN/GIR No.AAACL 2556 P (Appellant) .. ( Respondent)

Assessee by : Shri A.K.Sabat/B.K.Mohapatra, AR Revenue by : Shri S.M.Keshkamat, DR

Date of Hearing : 27 /09/ 2019 Date of Pronouncement : 14 /10/ 2019

O R D E R Per C.M.Garg,JM This is an appeal filed by the assessee against the order of the

CIT(A),1, Bhubaneswar dated 22.12.2016 for the assessment year 2012-13.

“ 1. That the order of the learned Commissioner of Income Tax (Appeals)-1, Bhubaneswar dated 22.12.2016 in partly allowing the appeal is against principles of natural justice, contrary to facts, arbitrary and erroneous, bad, both in the eye of law and on facts.

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a. That on the facts and in the circumstances of the case, the learned CIT(Appeals) upholding the addition of Rs.42,09,900/- under 'difference between physical & book stock's against the principles of natural justice, contrary to facts, arbitrary, excessive, unjustified, non-application of judicial mind, erroneous, bad, both in the eye of law and on facts and legally untenable.

b. That the learned lower authorities have failed to appreciate / misconstrued the facts, have ignored/brushed aside the full reconciliation between the physical inventory taken on the date of survey and the book balance on the said date and on suspicion, irrelevant considerations, presumptions, conjectures and surmises, without any material evidence on record and is contrary to weight of evidence on record treating as "sale out of books", and the upholding of the addition of Rs.42,09,900/- under 'difference between physical & book stock', by the learned CIT(Appeals) is arbitrary, unjustified, erroneous and bad, both in the eye of law and on facts.

c. That the physical inventory taken on the date of survey and the book balance on the said date being fully explained and the minor difference of 2.990 gms is genuine and common in the nature of trade of the assessee, the upholding of the addition of Rs.42,09,900/- under 'difference between physical & book stock by the learned CIT(Appeals)is arbitrary, unjustified, erroneous and bad in law and ought to be fully deleted.

d. That although errors including errors in calculations and that certain stock lying in the business premises had been omitted to be inventorised were pointed out to the learned AO after the survey, the learned CIT(Appeals) holding that the omission was not pointed out by the assessee either at the time of surveyor immediately after the survey, is contrary to facts, arbitrary, wrong, erroneous and bad. both in the eye of law and on facts. e. That on the facts and in the circumstances of the case, the learned CIT(Appeals) not accepting the claim of the assessee and sustaining the addition of Rs.42,09,900/- under 'difference between physical & book stock by applying principles of preponderance of probability is contrary to facts, arbitrary, erroneous, bad, both in the eye of law and on facts and legally untenable.

f. That on the facts and in the circumstances of the case, the addition of Rs.42,09,900/- under 'difference between physical & book stock ought to be fully deleted.

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g. That without prejudice to Grounds (a) to (f) above, the learned CIT(Appeals) rejecting the alternative submission of the assessee that the entire value cannot be taken as undisclosed income and the purchase cost ought to be reduced from the same is arbitrary, unjustified erroneous, bad, both in the eye of law and on facts and legally untenable.

in jewellery business. In this case, a survey u/s.133A of the Act was

conducted on 16.3.2012 at 11.30 AM in the show room cum office

premises, wherein, the physical stock of the gold/ornaments/jewellery were

undertaken by the survey team. During the course of survey proceedings,

difference between the book stocks of gold ornament as on the date of

search and physical stock of that day was found. When this fact was

confronted to the Managing Director of the assessee, he accepted the

difference and disclosed the same as unaccounted stock of gold ornaments

on which tax was paid. As per inventory, physical stock of gold ornaments

of 1,27,455.705 gms as against book stock of 1,02,377.282 gms , hence,

there was difference of 25,078.423 gms. However, subsequently, the

Assessing Officer found certain mistakes in the calculation of the excess

stock done at the time of survey and, therefore, rectifying the errors from

the inventory prepared, noticed the following discrepancy between the

physical stock and the books stock:

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“Gold qnty. As per physical verification as on the day of survey: Total gold ornaments as per inventory : 113186.826 gms

Qnty. Of gold jewellery where only MRP was Recorded. : 963.769 gms ` Total: 114150.595 gms

Gold qnty as per books as on the day of survey:

Stock -Ledger of diamonds ornaments 15993.631 gms

Stock -Ledger of 22 k ornaments 99792.726 gms Total: 115723.357 gms

survey was found to be less than the book stock, causing difference of

1572,762 gms. Hence, the Assessing Officer considered the difference

stock as sold outside the books and value thereof of Rs.42,09,900/- was

added to the total income of the assessee.

“(1) Addition of 1572.762 gms. being alleged difference between physical stock (taken by the I.T.Dept. during survey) and Book Stock valued @ Rs.42,09,900/- and considered as sales out of books in the Assessment:

1.1 2 items of Book Stocks not considered by AO at all are:

18 K gold ornaments 1231.556 gms 24 K gold coins 130.000 gms. Total: 1361.556 gms ((Rs.) 1.2 Closing stock value as per Audited Accounts: 38,36,07,418(Enclosure-l

Details of closing stocks itewise/'quantitative/ 38,36,07,418(Enclsoure-2

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Average rate considered & value thereof

Note: Sir, it can be observed that 18 KT gold ornaments and 24 KT Gold coins are part of such inventory and considered for Audited Accounts 1.3 18 KT ornaments reconciliation starting from 16.3.12 to 31.3.12

Opening Balance as on 16.03 : 1231.556 gms Add: Purchased during 16.3 to 31.3 : 380.280 gms Total: 1611.836 gms

Sold during 16.3 to 31.3 : 17.880gms(Enc;3) Add: Stone weight 1593.956 gms

Closing stock on 31.03.2012 0.860 gms (Encl;3 1593.956 gms(Enc:3) per Audited Books of Account

1.4 24 KT Gold coins reconciliation starting from 16.03.2012 to 31.03.2012

Opening balance as on 16.3 : 130..000 gms Add: Purchased during 16.3 to 31.03.2012 : 353.100 gms (Enc:4) Total: 453.100 gms

Less: Sold during 16.3 to 31.03.2012 : 316.120 gms (Encl4)

Closing stock on 31.03.2012 as per Audited Books of Account:166.980gm( Encl:4)

1.5 Sir, 18 KT gold ornaments have been considered in the physically verified stocks by the Department and included in the total of 115723.357 gms. If the Book Stock as per records are not considered while considering the stocks physically, automatically it will throw "difference" in the reconciliation. 1.6. 24 KT. Gold coins being there in the Books not physically verified/lying in Locker but not shown will be one of the reasons of "difference".

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1.7 Further difference will be due to shortage/stealing during course of business as part of Jewellery trade normally on cumulative basis and may be treated as normal loss. 1.8. When purchases are accounted and sales are accounted with closing stocks considered as part of valuation of closing stocks for Audited Accounts the difference cannot be considered as "SALES" again.

Keeping in view above the addition of Rs.42,09,900 may please be deleted." 6. After considering the detailed submissions regarding the difference in

the physical stock and book stock by the assessee, the CIT(A) confirmed

the addition made by the Assessing officer, observing as under:

“I have perused the materials on record, the assessment 4oder and the written submissions of the assessee. The claim of the assessee that certain items of stock were omitted to be inventorized at the time of survey is not at all acceptable for the simple reason that the alleged omission was not pointed out by the assessee either at the time of survey or immediately after the survey. It is a fact that after the\ survey certain errors including errors in calculations were pointed out to the AO and the AO has taken the same into account as a result of which the excess stock apparently found at the time of survey has turned into short fall in stock. At that point of time, the assessee did not bring to the notice of the AO that certain stock lying in the business premises had been omitted to be inventorized. Going by the principle of preponderance of probability, the claim of the assessee is found to be totally unacceptable. The AO is, therefore, completely justified to reject the claim. Another argument advanced by the assessee is that the entire sale value cannot be taken as undisclosed income and the purchase cost has to be reduced from the same. This argument of the assessee is also not tenable. The assessee has already debited the entire cost of purchase to its P&L account and there cannot be a separate cost requiring deduction from the sale value because the short fall is arrived at with reference to the book stock. On the facts of the assessee's case, the addition of Rs.42,09,900/- appears to be correct and justified, and hence confirmed.”

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No.36, ld A.R. of the assessee submitted that full reconciliation between the

physical inventory taken on the date of survey and the book balance on the

said date was furnished before the lower authorities without any material

evidence on record. He submitted that the physical inventory taken on the

date of survey and the book balance on the said date being fully explained

and the minor difference of 2.990 gms is genuine and common in the

nature of trade of the assessee, therefore, the upholding of the addition of

Rs.42,09,900/- under 'difference between physical & book stock by the

learned CIT(Appeals)is arbitrary, unjustified, erroneous and bad in law and

ought to be fully deleted.

assessee is quoted by the AO on page 5 and 5 of his order. In the

reconciliation statement, 14311.230 gms of bangles and bronze bangles

and 963.769 gms of diamond embedded jewellery errors committed by the

department have been acknowledged and deducted from the total physical

stock determined by the survey team. However, other issues stated by the

assessee have been ignored. The AR stated that about 18 k gold

ornaments 1231.556 gms and 24 k gold coins 130.000 gms, which were

part of books of account were ignored by the Assessing Officer. He also

submitted that certain shortages of 175.800 gms have also been ignored by

the department alongwith other items mentioned in the reconciliation.

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authorities and further submitted that at the time of search, the stock

physically found was only of 1,27,455.705 gms as against book stock of

1,02,377.282 gms and, therefore, there was a difference of 25078.423 gms

on this account. It was submitted that the contention of the assessee that

during survey stock were omitted to be inventorised is not correct. He

submitted that the mistakes as pointed out by the assessee has also been

taken care of and after rectifying the same, the Assessing Officer finally

took 1572.762 gms as difference between the physical stock and book

stock. He, therefore, urged to confirm the findings of the lower authorities.

orders passed by the lower authorities. There is no dispute that there was

excess stock of 25,078.423 gms of jewellery found during the course of

survey, which was the difference between the physical stock and book

stock, which was admitted by the assessee during the course of search and

agreed to pay tax thereon. Later on, the contention of the assessee was

that certain mistakes were in the calculation of the sexcess stock done at

the time of survey, which was also rectified by the Assessing Officer and

finally excess stock of 1572.762 gms was considered to be out of books

and, value thereof of Rs.42,09,900/- was added to the total income of the

assessee.

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furnished by the assessee as quoted by the AO on page 4 and 5 of his

order, wherein, 14311.230 gms and 963.769 gms errors committed by the

department have been acknowledged and deducted from the total physical

stock determined by the survey team. However, other issues stated by the

assessee have been ignored by the Assessing Officer. The AR stated that

about 18 k gold ornaments 1231.556 gms and 24 k gold coins of 130,.000

gms, forming part of books of account were ignored while rectifying the

errors by the Assessing Officer. Also certain shortages of 175.800 gms of

jewellery have also been ignored by the department alongwith other items

in the reconciliation. The ld CIT(A) observed that certain stock lying in the

business premises had been omitted to be inventorized and going by the

principle of preponderance of probability, the claim of the assessee is found

to be totally unacceptable. In this regard, we are of the view that when the

assessee in the reconciliation statement has stated that some errors

committed by the department have already been acknowledged, as is

evident from the assessment order, the view taken by the CIT(A) is not

correct. Keeping in view of the above submissions of ld A.R. that about 18

k gold ornaments 1231.556 gms and 24 k gold coins of 130,.000 gms,

forming part of books of account were ignored while rectifying the errors by

the Assessing Officer and also certain shortages of 175.800 gms of jewellery

have also been ignored by the department alongwith other items in the

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reconciliation, we, in the interest of justice, set aside the order of the

CIT(A) on this issue and restore the matter back to the file of the Assessing

Officer to consider the reconciliation statement filed by the assessee, as

stated above, and readjudicate the same after allowing reasonable

opportunity of being heard to the assessee.

purposes.

Order pronounced on 14 /10/2019. Sd/- sd/- (Laxmi Prasad Sahu) (Chandra Mohan Garg) ACCOUNTANT MEMBER JUDICIAL MEMBER

Cuttack; Dated 14 /10/2019 B.K.Parida, SPS Copy of the Order forwarded to : 1. The Appellant : Lalchand Jewellers Pvt. Ltd., Plot No.1, 4th floor, Lalchand Market Complex, Station Square Unit-III, Bhubaneswar

Sr.Pvt.secretary ITAT, Cuttack

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