SHRI ALOKE KUMAR DUTTA.,KOLKATA vs. I.T.O WD - 53(2)/KOLKATA., KOLKATA

The assessee in the present case is an individual, who is engaged in the business of manufacturing and sale of jewellery under the name and style his proprietary concern M/s. Manasa Gunie Mansion. A survey under section 133A was carried out in the business premises of the assessee on 16.04.2008, during the course of which, jewellery of 3,937.04 grams was ./2013 Assessment year: 2008-2009 Page 2 of 3 found. Thereafter, a notice under section 148 was issued by the Assessing Officer, in response to which, the return of income for the year under consideration was filed by the assessee declaring total income of Rs.8,63,110/-. During the course of assessment proceedings, gold found during the course of survey was explained by the assessee by pointing out that the same was partly belonging to him and his family members and partly belonging to the karigors, who had kept the same with the assessee as security deposit. This explanation of the assessee was found to be partly acceptable by the Assessing Officer and treating the gold to the extent of 518.73 grams as unexplained, the value thereof Rs.5,79,940/- was added by him to the total income of the assessee. On appeal, ld. CIT(Appeals) restricted the addition made by the Assessing Officer on this issue to Rs.3,00,440/- after having found that the explanation offered by the assessee as regards the gold found during the course of survey was acceptable to the extent of 268.73 grams. Aggrieved by the order of ld. CIT(Appeals), the assessee has preferred this appeal before the Tribunal.

We have heard the arguments of both the sides and also perused the material available on record. The preliminary issue that is raised by the ld. Counsel for the assessee at the time of hearing before us is that the gold treated as unexplained having been found during the course of survey carried out on 16.04.2008, the addition, if any, on account of such unexplained gold can be made only in assessment year 2009-10 and not in the year under consideration, i.e. A.Y. 2008-09. In this regard, it is observed that as per the provisions of section 69A and 69B, when the assessee is found to be the owner of any jewellery in any financial year and he offers no explanation about the nature and source of acquisition of such gold or the explanation offered by him is not found to be satisfactory by the Assessing Officer, the value of such gold may be deemed to be the income of the assessee for such financial year. In the present case, the assessee was found to be the owner of the gold during the course of survey carried out on 16.04.2008, i.e. in the financial year 2008-09 and, therefore, the addition, if any, on account of such gold by ./2013 Assessment year: 2008-2009 Page 3 of 3 treating the same as unexplained, can be made only in the assessment year 2009-10 and not in the year under consideration, i.e. 2008-09. We find that the preliminary contention raised by the ld. Counsel for the assessee in support of the assessee’s case on the issue under consideration is fully supported by the relevant provisions of section 69A and 69B of the Act and the ld. D.R. having failed to rebut or controvert this position, we delete the addition made by the Assessing Officer and sustained by the ld. CIT(Appeals) on account of the alleged unexplained gold as the assessee was found to be the owner of the said gold in the financial year relevant to assessment year 2009-10 and not in the year under consideration.