JHONY SHAIK,NALGONDA vs. ITO WARD-1, NALGONDA

It could be seen from the record that there is a delay of 22 days in preferring this appeal and the reason stated by the assessee is that the fact of disposal of appeal by the Learned CIT(A) was informed to one Mr. M. Sudhir, Income Tax Practitioner, but due to his pre-occupation, the delay occurred in communicating the information to the assessee. Since no motives are attributed to the conduct of the assessee in delaying the filing of appeal, and assessee does not stand to gain by afflux of time, I take a lenient view and condone the delay in filing the appeal.

Brief facts of the case as culled out from the submissions of learned AR that assessee has been dealing in conversion of jewellery from gold, receiving orders from the customers, buying gold from outside which happens to be one M/s. Mahalaspathy Bullion Merchant, then preparing ornaments and delivering them to the customers. During the financial year 2016-17 it was found that the assessee made certain cash deposits to the tune of Rs. 12.25 lakhs in his bank accounts. When called upon to explain by the learned Assessing Officer, assessee failed to produce any evidence in support of such deposits. Learned Assessing Officer, therefore, added the amount of Rs. 12.25 lakhs to the income of the assessee under section 69A of the Income Tax Act, 1961 (for short “the Act”).

Assessee preferred appeal before the learned CIT(A) and had taken up both the legal and factual grounds. Insofar as the legal ground is concerned, assessee pleaded before the learned CIT(A) that in as much as the amendment by way of which Section 115BBE of the Act was amended, received the ascent of the President of India on 15/12/2016 and, therefore, the rates prescribed under that section cannot be made applicable to the transactions done earlier to 15/12/2016. Insofar as the factual ground is concerned, the plea taken by the assessee was that he has been in the conversion of gold into ornaments, in that transaction, he received orders from the customers to the tune of Rs. 6 lakhs on 11/11/2016 and Rs. 6.2 lakhs on 15/11/2016 which he immediately transferred to M/s. Mahalaspathy Bullion Merchant and, therefore, the same cannot be treated as ‘un-explained deposits’ in his account.

Learned CIT(A) turned down both the pleas taken by the assessee holding that the impugned amendment to section 115BBE of the Act was carried out in Taxation laws (Second amendment) Act, 2016 could have the effect from 01/04/2017 and, therefore, it will have the effect from the assessment year 2017-18. Insofar as the facts are concerned, learned CIT(A) observed that absolutely there is no evidence produced by the assessee to show that the assessee has been in the business of conversion of gold to ornaments either earlier or subsequently and in the absence of such evidence, it is difficult to believe the plea taken by the assessee.

Learned AR submits that in order to ascertain whether or not the assessee has been dealing in the business of conversion of gold into ornaments, the authorities below could have called for the evidence from the assessee and appreciated the same but without raising any eyebrow, they have recorded their findings and, therefore, the assessee suffered want of proper hearing. He submits that if an opportunity is granted to the assessee, assessee is prepared to produce the relevant record showing that has been in the business of conversion of gold into ornaments either by filing the license or the VAT/Sales Tax or the invoices so on and so forth. 7. Learned DR vehemently relied on the orders of the authorities below and submits that in the absence of any evidenced produced by the assessee, authorities are justified in making the addition and sustaining the same. 8. I have gone through the record in the light of the submissions made on either side. Assessee produced the bank statement and the invoices said to have been issued by M/s. Mahalaspathy Bullion Merchant. The credentials of M/s. Mahalaspathy Bullion Merchant are also required to be verified. However, in view of the fact that the assessee is prepared to produce relevant record before the learned Assessing Officer, if an opportunity is granted, I deem it just and proper to grant such an opportunity to the assessee. With this view of the matter, I set aside the impugned order and restore the issue to the file of learned Assessing Officer for considering the material, if any, to be filed by the assessee and to take a view according to law. In view of this, the technical ground becomes academic. Grounds are accordingly treated as allowed for statistical purposes.

In the result, appeal of the assessee is treated as allowed for statistical purposes.