Itxa/995/2016 Of Pr. Commissioner Of Income Tax Central-2 v. Sunjyot Gems

Priya Soparkar 127 itxa 994-16 and 28 itxa 995-16-o IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.994 OF 2016WITH INCOME TAX APPEAL NO.995 OF 2016 Pr.Commissioner of Income Tax, Central-2. … Appellant V/s. M/s Sunjyot Gems… Respondent --- Mr.Ashok Kotangle with Ms.Padma Divakar for the Appellant.Mr.Madhur Agrawal i/by M/s MINT & CONFRERES for theRespondent. --- CORAM : AKIL KURESHI AND B.P.COLABAWALLA, JJ. DATE : JANUARY 08, 2019. P.C.:- 1.Facts being similar, we may record from Income Tax Appeal No.994 of 2016. 2.The revenue has filed this appeal against the judgment of Income Tax Appellate Tribunal (“Tribunal” for short) dated 30[th] September, 2015 raising following question for ourconsideration:- “Whether on the facts and in the circumstances of Priya Soparkar the case and in Law, the Tribunal was justified indirecting the Assessing Officer to delete the additionmade by the Assessing Officer u/s 69 of theIncome Tax Act, 1961, without appreciating thefact that the assessee has failed to establish theentries in the seized papers pertained to otherpersons and thus failed to rebut the presumptionsof section 132 (4A) of the Income Tax Act, 1961?” 3. Issue pertains to the additions made by the Assessing Officerunder section 69 of the Income Tax Act, 1961 which theCommissioner confirmed by the Tribunal by the impugnedjudgment deleted thereby allowing the assessee's appeal. TheTribunal held and observed as under : “10.3. Considering the entire factual matrix inthe light of three remand reports of the AOmentioned elsewhere, the undeniable factsemerged out of this is that the diamonds werebelonging to various exporters and from theremand reports submitted by the AO, it can beseen that the various exporters have exportedtheir diamonds through the assessee and havepaid commission to the assessee. It is furtherseen that the exporters have admitted that theyhad sent their diamonds to the assessee forapproval. It is worthwhile to mention here thatthe date mentioned in the seized document isprior to the date of export by the exporterswhich conclusively prove that the date of exportis subsequent to the date mentioned in the seizedmaterials. For the sake of repetition from theenquiries conducted by the AO during the remand proceedings, it can be seen that theexporters have confirmed that they have giventhe diamonds for approval. Once again for thesake of repetition, the physical stock found atthe time of search have been duly explainedand accepted by the AO. 10.4. In the light of the discussion madehereinabove, in our understanding of the facts ofthe case in hand, we are of the consideredopinion that the impugned addition is uncalledfor as the diamonds do not belong to theassessee. We, therefore, do not find any merit inthe additions made by the AO u/s 69 of the Actand simultaneously we also do not find anylogic in the additions sustained by the Ld. CIT(A). We, accordingly direct the AO to delete theentire addition made u/s. 69 of the Act. GroundNo. 3 is accordingly allowed.” 4.Perusal of the judgment of the Tribunal and otherdocuments on record would show that the issue purely factualone. The Tribunal on the basis of evidence on record and multiple remand reports brought on record during the appellateproceedings accepted the assessee's version that the diamondsbelonging to various exporters were sent to the assessee forapproval for which the assessee was being paid commissionregularly. No question of law arises. Tax Appeals are dismissed. (B.P.COLABAWALLA,J.) (AKIL KURESHI,J.)