Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “A” BENCH, PUNE
Before: SHRI INTURI RAMA RAO & SHRI S.S. VISWANETHRA RAVI
आदेश / ORDER
PER S.S. VISWANETHRA RAVI, JM :
This appeal by the Revenue against the order dated 30-12-2016 passed by the Commissioner of Income Tax (Appeals)-4, Pune [‘CIT(A)’] for assessment year 2011-12.
The appellant-revenue raised following grounds of appeal : “1. On the facts and in circumstances of the case and in law, whether the CIT(A) is correct in deleting the additions of Rs.39,32,67,652/- on account of difference in the closing stock of gold of 193.57kg (valued at Rs.20,360/- per 10 gram) found by the survey party in the course of survey action carried u/s 133A(1) of the IT Act, 1961 for which no explanation could be offered by the director of the company in his statement recorded on oath u/s 131 of the IT Act, 1961 in the course of survey action?
2. The CIT(A) erred in accepting assessee's explanation that 91,321 grams of gold was returned by local sarafs and 53,469 grams of gold were re-melted which is an afterthought, created to explain the difference, and submitted later on to escape the tax liability and other consequences.
3. On the facts and circumstances of the case and in law, whether the CIT(A) is correct in directing the Assessing Officer to accept the income of Rs.2,19,48,940/- voluntarily disclosed by the assessee as additional income during the year under consideration, without calling any remand report from the Assessing Officer on this issue?
4. For this and such other reasons as may be urged at the time of hearing, the order of the CIT(A) may be vacated and that of the Assessing Officer be restored.
5. The appellant craves leave to add, amend, alter or delete any of the above grounds of appeal during the course of appellate proceedings before the Hon'ble Tribunal.”
3. The brief facts relating to the issue on hand are that the assessee is a company engaged in the business of manufacturing and trading in gold, silver, diamond ornaments. The assessee conducts its business under the name and style as “Sonigara Jewellers Pvt. Ltd.”. The assessee filed return of income on 23-09-2010 for A.Y. 2011-12 declaring a total income of Rs.66,84,944/- which was accepted vide proceedings u/s. 143(1) of the Act. Thereafter, a survey u/s. 133A of the Act was conducted on 22-03- 2011 at the premises of the assessee. Notices u/s. 143(2) and 142(1) of the Act were issued. In response to the said notices, the authorized representative on behalf of the assessee appeared and filed various details before the AO. During the course of scrutiny proceedings, the assessee was asked to show cause why the difference in the quantity on the basis of impounded papers and the quantity worked out on the basis of tentative trading account should not be added to the total income of the assessee. The assessee replied vide its letter dated 21-10-2011 of which the AO reproduced at page 2 of his order. The AO held the submissions of assessee are totally baseless and made additions on account of difference in gold, silver and cash. The AO determined the total income of the assessee at Rs.40,98,58,740/- vide its order dated 07-03-2014. Aggrieved by the order of AO, the assessee preferred an appeal before the CIT(A). According to CIT(A), the assessee raised certain issues before him and found that were not reflected in the assessment order. Considering the said issues the CIT(A) sought remand report from the AO. The CIT(A) reproduced point wise remand report at pages 3 and 4 of the impugned order. Considering the submissions of assessee and remand report, the CIT(A) held the AO made assessment in a casual manner without any cogent reason or evidence to demonstrate that the assessee had sold the stock out of the books of accounts, thereby directed to accept the voluntary disclosure of Rs.2,19,48,940/- as additional income and deleted the addition made by the AO vide its impugned order. Not satisfied with the finding of CIT(A) in deleting the addition made by the AO, the appellant- revenue is before us by raising above mentioned grounds.
4. Representing the Revenue Shri Abhinay Kumbhar, the ld. DR submits that the AO has given reasons in the assessment order for not accepting the reconciliation regarding the difference in stock and without considering the same the CIT(A) accepted the submissions of the assessee and deleted the additions made by the AO, is not justified. He argued that the reasoning of the AO in not accepting the reconciliation may be considered. He submits that the various documents in three bundles of loose papers were impounded from the premises of the assessee during the course of survey action. He drew our attention to page 59 of the paper book and submits that the said impounded documents shows the total weight of production during the year is 485695.677 Grams. During the course of survey, the director of the assessee was asked to reconcile the difference of quantity on the basis of impounded papers and tentative trading account. The said director clearly stated that he is not in a position to explain, will explain it later and drew our attention to Q. No. 4 of the said statement. He argued that the AO has given many opportunities to the assessee to reconcile the said difference but no reconciliation was filed by the assessee. He finally submits that the AO issued a letter dated 28-09-2011 to explain the said difference. He argued that the assessee filed its reconciliation vide its letter dated 21-10-2011 and explained the difference arose on 5 major items. The AO has not accepted the said explanation and the CIT(A) accepted the same reconciliation and gave relief to the assessee, which is incorrect. The ld. DR submits that the assessee did not file any documentary evidence in support of reconciliation filed on 21-10-2011 and no proper explanation was offered with the support of evidences. The ld. DR further submits that the CIT(A) plainly accepted the claim of assessee without any independent verification or a remand report from the AO. The CIT(A) was not justified in accepting the submissions of assessee without there being no independent evidence substantiating the claim of assessee. The ld. DR vehemently argued that the order of CIT(A) may be set aside and restore the order of AO.
The ld. AR, Shri Sharad Shah submits that the arguments of ld. DR in respect of fresh evidences being filed before the CIT(A) is misconceived. He submits that there was no fresh evidences filed before the CIT(A). There was only supporting affidavits of parties who given written confirmations were filed before the CIT(A). He drew our attention to para 3.2 of the impugned order and argued that the CIT(A) sought remand report from the AO and the AO also filed remand report. He vehemently argued that the CIT(A) accepted the submissions of the assessee vide remand report by giving an opportunity for AO for verification. The assessee did not file any new evidences before the CIT(A) and referred to the same evidences in the paper book which were filed before the AO along with reconciliation statements. He argued that the CIT(A) is justified in holding the AO conducted the assessment proceedings in casual manner without examining any evidences, statements and reconciliations though available on record. The ld. AR further referred to order sheet entries made by the AO and argued that after the post survey proceedings the assessee provided all the details, computations and documents etc. to the AO and the AO very much satisfied with those evidences. The assessee sought copies of impounded documents vide letter dated 23-03-2011 and the AO provided the same on 02-08-2011 and immediately the assessee filed its first submissions on 21-10-2011. The assessee offered detailed explanation vide its first submissions with regard to difference in gold 193.157 Kgs. He submits that in the said detailed explanation the assessee given detailed reconciliation on 4 points i.e. having stock of pure gold and ornaments, wrong entry, return of gold and re-melting / reproduction of ornaments and referred to page 275 of the paper book. The assessee also given its submissions with regard to written questionnaire on 12-07-2013 and drew our attention to page 279 of the paper book. Further, the assessee explained the difference in gold, labour charges, reduction of 20 kgs pure gold on opening stock and copy of tentative trading account and referred to pages 282 to 285 of the paper book. The assessee after the survey explained the difference in stock in gold vide Q. No. 25 of the statement and drew our attention to pages 73 and 74 of the paper book. Further, he drew our attention to page 291 of the paper book and submits that the assessee submitted all the details of ornaments, address of PAN of customers who have given ornaments for labour jobs. The AO recorded the same in his order passed u/s. 143(3) of the Act and drew attention to the paper book at pages 275 to 285. He supported the order of CIT(A).
Heard both the parties and perused the material available on record. The main contention of the ld. DR is that the assessee did not explain regarding the difference in gold. We note that the assessee requested the AO to provide impounded material for giving proper explanation vide letter dated 23-03-2011 which is at page 14 of the paper book and there is no dispute with regard to furnishing of said copies of impounded material until 02-08-2011. Therefore, it is clear the appellant-revenue did not provide the copies of impounded material till 02-08-2011 from the date of survey i.e. 22-03-2011. It is also not disputed that the assessee tendered its first submissions on 21-10-2011. The note dated 01-05-2012 by the AO which is at page 93 of the Revenue’s paper book submitted to CCIT stating the details provided by the assessee and the stock of gold sent for the reproduction are not free from doubt, due verification will be done at the time of scrutiny proceedings. Therefore, post survey and during scrutiny proceedings, the assessee furnished all the details in respect of difference worked out by the survey team in gold to the AO and the AO acknowledging the same wrote a letter to CCIT.
Admittedly, under scrutiny proceedings the AO issued notice u/s. 143(2) dated 21-09-2012 and notice u/s. 142(1) dated 05-07-2013 with detailed questionnaire to the assessee. We find the details as sought by the AO through notice u/s. 142(1) was reproduced by the CIT(A) in para 5.2.2 in the impugned order. On perusal of the same, we note that the assessee furnished all the details as sought by the AO vide letters dated 12-07-2013, 13-01-2014, 30-01-2014 and 18-02-2014 which are at pages 279 to 283 of the paper book. According to the ld. AR, Shri Sharad Shah all the said details were submitted post survey and also during the course of scrutiny proceedings. We note that vide letter dated 13-01-2014 the assessee explained difference in gold and gold given on labour charge basis and reduction of 20 kg pure gold from the opening stock vide letter dated 18-02-2014, therefore, which clearly shows that the assessee furnished all the details before the AO during post survey and also during scrutiny proceedings and the note sent to CCIT which establishes that the AO was in possession of all the details furnished by the assessee. It is not the case that the AO had no reasonable time to complete the assessment, as the AO had ample time from 21-10-2011 (1st submission of assessee) till passing of assessment order on 07-03-2014 (almost 2 ½ years). Therefore, in our opinion, the allegation of that the assessee did not properly explain by documentary evidences as contended by the ld. DR is incorrect.
Coming to the issue on hand, we find the details of impounded loose papers in three bundles at para 5.2 of the impugned order which are reproduced hereunder for ready reference : Bundle Total No. of Pages Page Nos. on which marks of No. identification placed. 1 1-115 1 and 115 2 1-134 1 and 134 3 1-181 1 and 184
We note that the survey team basing on the details reflected in loose sheet at page 112 worked out the production at 485695 kgs. The said loose sheet is placed at page 59 of the Revenue’s paper book. Further, the details of item wise production/ornaments are reflected at page 111 of the impounded loose sheet. We note that the scanned copies of these loose sheets are reflected at pages 18 and 19 of the impugned order. On perusal of the loose sheet No. 112 shows that the figure of production from April, 2010 to March, 2011 but however the survey team worked out the figure of production up to 28-02-2011. We find the survey team worked out the difference in gold at 193.157 kgs in the goods/ornaments produced by taking into opening stock as on 01-04-2011 at 137.120 kgs and production at 485.695 kgs. Further, the survey team worked out the difference in stock at 193.157 kgs taking into consideration sales at 295.056 kgs – closing stock at 134.602 kgs. The CIT(A) discussed the same at para 5.2.8 of the impugned order. We note that according to the assessee the survey team committed error in pointing out the difference of 193.157 kgs without appreciating the figure of production is not the criteria for determination of difference in stock. The ld. AR contended that the production figures varies due to re-melting of the ornaments already produced for various reasons like change in fashion, defects in production, change in quality production of ornaments on job work. He argued that entire production cannot be treated as a trading item and stock in trade and vehemently disputed the difference in production figure is not as per accounting principles as followed by the assessee. We note that the working of survey team as disputed by the ld. AR contending that the survey team committed an error, is reproduced below for ready reference : (Kgs Wt.) (Kgs Wt.) Opening Stock 137.120 Sales 295.056 Production 485.695 Closing Stock 134.602 Difference in Stock 193.157 Total 622.815 Total 622.815
We note that the survey party while working out the difference in the goods/Ornaments produced has committed an error in adopting the production date and also the date of closing stock. The survey action was on 22.03.2011. The closing stock was taken as on 22.03.2011. The figure of production was however taken on 28.02.2011. Thus, it mixed two sets of figures on different dates. Therefore, the difference in goods/Ornaments produced worked out does not commensurate the principles of accounting as rightly pointed by the ld. AR. The correct position as on 22.03.2011 which is page 11 of the impugned order is reproduced below for ready reference :
Sche Details Kgs Net Sche Details Kgs Net dule Wt. dule Wt. I Opening Stock 117.120 V Sales 295.056 (Excluding Gold Bars Of 20 kgs) II Production up to 437.240 VI Return of Gold 91.321 28/02/2011 Received from Conversion from local saraffs III Production From 21.944 VII Production but 54.469 01/03/2011 to Remelted 22/03/2011 IV Finished Ornaments 0.914 VIII Wrong Entry in 2.740 Brought from Market Production Figure Closing Stock as on 134.602 22/03/2011 (As counted by survey party) Difference 0.030 TOTAL 577.218 TOTAL 577.218
We note that supporting the above as correct position on 22-03-2011 the assessee substantiated the same by filing proof of figures of various items production before the AO as well as the CIT(A). The CIT(A) examined every explanation regarding the above chart in the impugned order from page12. On perusal of the same the assessee contended that gold bars weighing 20 kgs were not considered as opening stock by the survey team. The CIT(A) examined the ledger extract of factory production from 01-04- 2010 to 31-03-2011 in 49 pages. We note that the gold bars weighing 11.900 kgs were in the head office and 8.100 kgs were held in factory for preparing ornaments. It was explained during the post survey vide submissions on 21-10-2011 thorugh Doc. No. KN-1,4,5 etc showing gold bars were issued to the factory for the purpose of making ornaments. Therefore, we find force in the arguments of ld. AR that the survey team considered only production of goods/ornaments and wrongly taken opening stock at 137.120 excluding gold bars weighing 20 kgs.
Further, the survey team adopted the figure of production at 485.696 kgs. We note that from the record it was contended that the same is gross weight and the assessee adopts at net weight in its business. In support of the same, we find a chart has been tabulated showing production from April, 2010 to March, 2011 of which the survey team has taken production. The said chart demonstrates month wise gross weight, net weight, and total net weight and also shows the correct net weight at 437.38 kgs as against the figure of production at gross weight adopted by the survey team at 485.695 kgs. This difference in working was furnished to the AO as per Q. No. 26 during the course of recording of statement on 02-08-2011. For better understanding the said chart showing gross weight, net weight and total net weight is reproduced here-in-below : Month Gross Wt. Net Wt. (In Total Net Wt. (In (In Grms) Grms) Grms) Progressive April 41729.57 37340.59 37340.59 May 53228.63 47623.17 84963.76 June 40611.39 36523.64 121487.41 July 22809.24 20418.18 141905.59 August 43772.02 39506.57 181412.17 September 42115.63 38146.67 219558.85 October 69245.17 62463.46 282022.32 November 53473.04 48396.75 330419.07 December 43751.19 39459.85 369878.92 January 35194.19 31615.95 401494.88 February 39934.29 35887.35 437382.23* March till 24346.19 21944.56 459326.79 22nd Mar 22nd – 31 3615.12 3392.64 462719.43 Mar
The above said chart further shows the gross weight production sales net weight and total net weight from 01-03-2011 to 31-03-2011. Therefore, it clearly shows that the AO did not consider the details in respect of ornaments of 92% purity, names, addresses and PAN Nos. of the parties who have given the gold ornaments for labour job, pure gold of 20 kgs in the opening stock and month wise quantity production up to the date of survey i.e. 22-03-2011 despite furnishing with documentary evidences on 08-02-2014. We note that the survey team asked the Directors by name Jitendra Dhanraj Sonigara for reconciliation the difference worked out at 193156.677 gms which is at page 73 of the Revenue’s paper book. The said director answered that the difference can be reconciled on the basis of records maintained by factory manager which have been impounded in loose paper No. 3 and sought time for segregation the details in respect of labour job work, reproduction etc. The survey team allowed time to the said director and resumed the said statements on 02-08-2011. Vide Q. No. 26 the assessee submitted the figures for production details and tentative trading account up to 22-03-2011. On the basis of impounded material and the details provided by the assessee the survey team formulated a chart and asked the assessee to confirm the same regarding production figure up to 22-03-2011 vide Q. No. 26. The said director confirmed the production figures on gross weight and net weight from 01-04-2010 to 28-02-2011 and 01-03-2011 to 22-03-2011 as 510190.777 gms and 459184.196 gms is at page 21 of the impugned order.
The assessee has furnished production from 01-03-2011 to 22-03- 2011 vide Exhibit A along with submissions dated 02-03-2016. The CIT(A) reproduced the item wise detailed gold smith register for the period between 01-03-2011 and 22-03-2011 in his order at pages 34, 35 and 36. On perusal of the same and we find the register clearly shows the production from 01-03-2011 to 22-03-2011 at gross weight 24346.19 and net weight at 21944.050. We note that no discussion whatsoever made by the AO in this regard. The assessee also furnished details of finished ornaments purchased from the market to an extent of 0.914. The CIT(A) discussed the same at page 36 of the impugned order showing Bill Numbers with date in respect of Swarn Mangal Jewels and Shailesh Jewellers. We find there is no dispute from the AO as it was there in the scrutiny assessment proceeding with regard to finished ornaments purchased from the market. Regarding sales to an extent of 295.056 Kgs there is no dispute with regard to sales to an extent of 295.056 Kgs found by the survey team as it is reflected as per the books of assessee.
The assessee furnished all the details during the course of assessment proceedings with regard to return of gold received for conversion from local saraffs to extent of 91.321 Kgs and also confirmations, ledger extracts etc. of such parties which gave the gold for making ornaments. According to the CIT(A) the said information has been examined by the AO and satisfied with explanation offered by the assessee vide order sheet noting dated 18-02-2014 by the AO. The CIT(A) reproduced the said details with regard to Ambika Jewellers, Swapan GoldSmith, Kantilal T. Soni and Ranka Jewellers from pages 38 to 52 of the impugned order. We find no adverse noting by the AO and no evidence contrary to the return of gold received for conversion from local safaffs was brought on record by the appellant-revenue.
We find the items wise details of gold smith register for the period between 01-04-2010 and 23-03-2011 in respect of factory production at pages 53 to 68 of the paper book. It was submitted by the ld. AR that the assessee is required to re-melt the ornaments already produced for various reasons i.e. defect in production, change in fashion, quality check, change in fineness etc. We find force in the arguments ld. AR that the re-melted ornaments are necessarily be deleted while arriving at the production ready for sale and following the same the assessee reduced the weight of production form re-melted ornaments to an extent of 54.469 kgs from the production figure. There is no dispute with regard to submissions of these details before the AO and the AO examined the same but did not consider in reducing from the production figure.
A contention was raised before the AO regarding the wrong entry in production figure to an extent of 2.740 Kgs which confirmed through the details vide Schedule VIII in the assessment proceedings. The details of which the CIT(A) reproduced at page 68 of the impugned order. The only contention of ld. DR is that it is an afterthought and no details were submitted before the AO. We note that the said details were submitted before the AO in post survey submissions vide explanation dated 21-10- 2011.
On perusal of tabular chart as projected by the assessee as on 22- 03-2011 which is reproduced at para 10 above and with our discussion made here-in-above the difference of net weight is comes to an extent of only 0.030 Kgs while taking into consideration the closing stock as noted by the survey team on 22-03-2011 at 134.602 Kgs. Therefore, we find no difference except to 0.030 Kgs which is meager from the details as furnished by the assessee vide Schedule I to III. Admittedly, the CIT(A) examined all the details from Schedule I to VIII and found the AO did not examine all the details furnished by the assessee during post survey and during the scrutiny proceedings despite having everything on record. Therefore, we conclude that the survey action was carried on 22-03-2011 and the survey team noted the closing stock as on that day i.e. 22-03- 2011, but however the figure of production was taken on 28-02-2011. Thus, it shows the survey team mixed two sets of figures on different dates and the difference noted by the survey team regarding goods/ornaments is not commensurate with the accounting principle and practice followed by the assessee. Thus, it appears that the assessee had discharged primary onus lying upon it by explaining the difference of stock as noted by the survey team and stock as per the books of account maintained by the assessee. The AO had not done anything to verify the veracity of explanation offered by the assessee. We note that the AO was of the opinion that the explanation offered by the assessee cannot be believed and proceeded to make addition the alleged difference worked out by the survey team. Further, it is not the case of AO that the assessee failed to discharge the primary onus lying upon it by filing full details in support of its claim, therefore, in our opinion, without making any enquiries involving explanation and documentary evidences filed by the assessee, the AO cannot make any addition based on conjectures and assumptions as well as without bringing any conclusive evidence on record. Therefore, we find the survey team committed an error in adopting the production date and also the closing stock date which was followed by the AO is contrary to the evidences brought on record by the assessee. Therefore, we find the reasons recorded by the CIT(A) in holding that the AO conducted the assessment proceedings in a casual manner, is justified and the order of CIT(A) is fair and reasonable based on appreciation of material facts concerning the case of the assessee.
Further, the assessee offered additional income voluntarily for taxation in respect of value of purchase of gold to an extent of 4210 gram, sale of gold to an extent of 4210 gram and excess stock of ornaments 917 gram totaling to Rs.2,19,48,940/- but we find no discussion whatsoever made by the AO regarding the said details offered by the assessee except proceeding to make addition on account of stock difference found by the survey team regarding gold an extent of 193.157 Kgs. Therefore, we find force in the arguments of ld. AR the addition made by the AO in respect of stock different at 193.157 Kgs is not justified irrespective of having every details along with the submissions with clear evidences vide Schedule I to VIII on record, the AO without considering the same added the same to the total income of the assessee. Therefore, we find no infirmity in the order of CIT(A) and we agree with the final conclusion arrived by the CIT(A) from paras 5.3.8 to 5.3.11 at pages 84 to 86 of the impugned order. In view of our observations here-in-above in the aforementioned paragraphs, the relevant details of evidences filed by the assessee in the form of paper book supporting the order of CIT(A), we agree with the conclusion arrived by the CIT(A) in deleting the addition of Rs.39,32,67,652/- and in directing the AO to confirm the additional income voluntarily offered by the assessee at Rs.2,19,48,940/-. Thus, ground Nos. 1 to 3 covering the issue raised by the appellant-revenue are dismissed.
Ground Nos. 4 and 5 raised by the appellant-revenue are general in nature, hence, require no adjudication.
In the result, the appeal of Revenue is dismissed.
Order pronounced in the open court on 14th September, 2022.