M/s. Subodhchandra & Co., Mumbai V. The Dy. CIT, Ahmedabad

ITA 2417/AHD/2011

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1477 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 09-03-2016
• Assessment Year: 1993-1994
• Appeal Filed On: 26-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S L CHANDEL
• Assessee Lawyers: J P SHAH WITH M G PATE L
• Keywords: Period of limitation; Additional evidence; Time period of passing order
• Section: 143(3); 54

Judgement Text

I.T.A. NO. 2414 TO 2418 /AHD/201 1 ASSESSMENT Y EAR S : 1990 - 91 TO 1994 - 95 PAGE 1 OF 9 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD C BENCH, AHMEDABAD [CORAM : PRAMOD KUMAR AM AND S S GODARA JM ] I.T.A. NO S . 2414 TO 2418 /AHD/ 20 1 1 ASSESSMENT Y EAR S : 1990 - 91 TO 1994 - 95 SUBODHCHANDRA & CO. .. .......... .APPELLANT 709, 7 TH FLOO R, TRADE CENTRE, OPP. MTNL EXCHANGE, BANDRA KURLA COMPLEX, BANDR A (EAST) MUMBAI . [PAN: AA KFS 5832 Q ] VS. DY. COMMISSIONER OF INCOME TAX, CIRCLE - 2, AHMEDABAD. ............. . RESPONDENT APPEARANCES BY: J.P. SHAH WITH M.G. PATE L , FOR THE APPELLANT S.L. CHANDEL , FOR THE RESPONDENT D ATE OF CONCLUDING THE HEARING : MARCH 9 TH , 201 6 DATE OF PRONOUNCING THE ORDER : MAY 31 ST , 201 6 O R D E R PER PRAMOD KUMAR AM : 1. THESE FIVE APPEALS ARE DIRECTED AGAINST A CONSOL IDATED ORDER DATED 29TH AUGUST 2011 , PASSED BY THE L EARNED CIT(A) , IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) R.W.S. 254 OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR S 1990 - 91 TO 1994 - 95. 2. GRIEVANCE OF THE ASSESSES IS AS FOLLOWS : - THE LEARNED C IT(A) HAS ERRED IN LAW AND O N F ACTS OF THE CASE BY CONFIRMING ADDITION (OF RS.27,74,890/ - FOR A.Y. 1990 - 91, RS.60,05,723/ - FOR A.Y. 1991 - 92, RS.65,10,524/ - FOR A.Y. 1992 - 93, RS.48,70,916/ - FOR A.Y. 1993 - 94 AND RS.46,01,866/ - FO R A.Y. 1994 - 95), IN RESPECT OF SO CALLED UNACCOUNTED LOCAL SALES OF G OLD, MADE BY THE ASSESSING OFFICER. ' I.T.A. NO. 2414 TO 2418 /AHD/201 1 ASSESSMENT Y EAR S : 1990 - 91 TO 1994 - 95 PAGE 2 OF 9 3. THE ASSESSEE BEFORE US, A PARTNERSHIP FIRM, IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND EXPORT OF GOLD ORNAMENTS. WHILE F ACTS OF ALL THE ASSE SSMENT YEARS BEFORE US ARE MATERIALLY SIMILAR, BARRING VARIATIONS IN FIGURES, WE WILL TAKE UP THE FACTS OF THE ASSESSMENT YEAR 1990 - 91 AS T HAT OF THE LEAD CASE. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER MADE AN ADDITION OF RS.37,9 0,641/ - ON ACCOUNT OF , WHAT HE TERMED AS, EXCESS CONSUMPTION OF GOLD. T HE BACKGROUND IN WHICH THE EXCESS CONSUMPTION IS COMPUTED IS THAT THERE ARE DIFFERENCES IN GOLD CONSUMPTION VIS - A - VIS CLAIM OF THE ASSESSE E AND THE REQUIREMENT OF THE PURITY STANDARDS. WHILE, FOR EXAMPLE , THE ASSESSE E HAS SHOWN GOLD CONSUMPTION OF 93.37% IN ORNAMENTS OF 22 CARATS, THE PURITY LEVEL, AS PER THE NORMS AND EXPORT BILLS AND CUSTOM CERTIFICATIONS, IS 91.66%. I N THE IMPUGNED ASSESSMENT ORDER, WHICH WAS PASSED BY THE ASSESSIN G OFFICER ON THE ORIGINAL ASSESSMENT BEING REMANDED TO HIM, THE ASSESSING OFFICER HAS MADE THE ADDITION OF RS.27,74,890/ - BY OBSERVING AS FOLLOWS : - 3.1 AS DISCUSSED EARLIER IN THIS YEAR ALSO THE ASSESSEE HAS CONTINUED IN THE BUSINESS OF EXPORT OF JEWELL ERY OF DIFFERENT PURITIES. IN THE A. Y 89 - 90, THE THEN AO HAD PASSED AN ELABORATE ASSESSMENT ORDER BY MAKING FACTUAL ANALYSIS, ON CONSUMPTION OF STANDARD GOLD IN THE MANUFACTURE OF ORNAMENTS IN DIFFERENT PURITIES. HE HAD GIVEN A DETAILED DESCRIPTION OF MOD US OPERANDI OF THE BUSINESS OF THE ASSESSEE AND ALSO OF PROCEDURE OF EXPORT AND MANUFACTURING OF GOLD ORNAMENT AND JEWELLERY. COMPLETE DESCRIPTION OF CYCLE OF MANUFACTURING, EXPORT, AND REPLACEMENT OF GOLD HAD BEEN FURNISHED. HAVING DISCUSSED SUCH THEORETI CAL ASPECT OF THE BUSINESS AND HAVING REGARD TO THE FACTS OF THE CASE, THE THEN AO REACHED A CONCLUSION THAT WHILE AS PER BOOKS OF A/C S THE GOLD CONTENT IN THE FINAL PRODUCT IS 93.37%, AS PER THE APPRAISAL OF CUSTOMS AUTHORITY IS 91.7% ONLY: THUS WHEREAS THE ASSESSEE SHOWS CONSUMPTION OF 93.37% OF GOLD IN MANUFACTURING OF ORNAMENTS OF 22 CARAT PURITY, THE ACTUAL FINENESS IS 91.66% IN THE FINAL PRODUCT AS PER THE EXPORT BILLS AND CERTIFICATE OF CUSTOM AUTHORITIES. HE WORKED OUT EXCESS CONSUMPTION OF GOLD WH ICH ACCORDING TO HIM HAD BEEN ACTUALLY SOLD IN THE LOCAL MARKET. THIS ADDITION OF THE ITO WAS UPHELD BY ID. CIT(A) & HON'BLE ITAT EXCEPT A MINOR RELIEF WAS ALLOWED TO ASSESSEE ON WORKING OF PURITY OF STANDARD GOLD. THE MINOR RELIEF WAS GIVEN ON THE POINT T HAT THE A O HAD TAKEN THE PURITY OF STANDARD GOLD BAR AT 100% WHEREAS THE PURITY OF STANDARD GOLD BAR IS GENERALLY OF 99.53% ONLY AND THEREFORE, THE WORKING OF 22 CARAT GOLD ORNAMENT WILL GIVE A PERCENTAGE OF 92.93% AGAINST 93.37% TAKEN BY THE AO. THE A.R. I.T.A. NO. 2414 TO 2418 /AHD/201 1 ASSESSMENT Y EAR S : 1990 - 91 TO 1994 - 95 PAGE 3 OF 9 HAS FURNISHED THE REVISED WORKING OF EXCESS CONSUMPTION AS PER THE APPELLATE ORDER OF THE CIT(A) WHICH IS EXAMINED AND REPRODUCED HEREIN BELOW: - REVISED CALCULATION OF EXCESS CONSUMPTION, AS PER APPEAL ORDER SR . N O . CARAT WT. IN GRAMS % OF EXCESS CO NSUMPTION AS PER APPEAL ORDER OF 89 - 90 EXCESS CONSUMPTION QUANTITY IN GRAMS RATE OF STANDARD GOLD AMOUNT 1. 22 675,758,790 1.23 8,311.833 3200 2,659.787 2. 20 30,309.200 0.69 209.133 3200 66.923 3 18 3,258.900 4.62 150.561 3200 48.180 TOTAL: - 8,671.527 2,774.890 3.2 NOW, THE ITAT, A'BAD, HAS RESTORED THE MATTER BACK FOR BEING RE - ADJUDICATED WITH REFERENCE TO THE SUBMISSION, EVIDENCES, PAPER BOOK AND OTHER EVIDENCES ENLISTED BY THE HON'BLE ITAT, AHMEDABAD IN ITS ORDER DATED 10.2.200 6. ALL THE AFORESAID DOCUMENTS EVIDENCES AND MATERIALS PLACED ON RECORD AS PER THE PAPER BOOK FURNISHED AS PER REPLY DATED 29.9.2007 HAVE BEEN CONSIDERED CAREFULLY . 4. I FIND THAT THE ARGUMENTS PLACED BEFORE ME, DURING THE COURSE OF PROCEEDINGS, ARE IDEN TICAL TO THE ARGUMENTS THAT WERE PLACED BEFORE THE THEN ACIT, CIRCLE - 2, AHMEDABAD, WHO HAD COMPLETED THE RE - ASSESSMENT P ROCEEDINGS IN RESPECT OF ASSESSMENT YEAR 2000 - 2001, AS PER ORDER PA SSED U/ S L43{3) R/W SECT ION 2 5 4 OF THE ACT ON 23.2.2006 , IN VIEW OF T HE DIRECTIONS OF THE ITAT DATED 3.9.2004 IN ASSESSEE'S OWN CASE FOR THE SAID ASSESSMENT YEAR. ALL THE ISSUES ARISING FOR CONSIDERATION OUT OF THE SUBMISSIONS MADE BY THE LD. A.R. ON BEHALF OF THE ASSESSEE DURING THE HEARING OF THE CASE UNDER RE ASSESSMENT HAVING CONSIDERED AND DISCUSSED AT LENGTH BY THE SAID A.O. WHILE COMPLETING THE AFORESAID RE - ASSESSMENT PROCEEDINGS FOR A.Y. 2000 - 2001. HE HAS GIVEN DETAILED REASON IN THE SAID ORDER FOR REJECTING THE CONTENTIONS RAISED ON BEHALF OF THE ASSESSEE. I FIND T HAT IN THE COURSE OF RE - ASSESSMENT PROCEEDINGS RELATED TO ASSESSMENT YEAR UNDER THIS ORDER , SIMILAR EVIDENCE AND DOCUMENTS HAVE BEEN FILED, WHICH HAVE BEEN DULY CONSIDER E D IN THE AFORESAID ORDER FOR A SSESSMENT YEAR 2000 - 2001. THEREFORE, I DO NOT FIND A NY REASON TO DEVIATE FROM THE FINDIN G S GIVEN BY THE THEN ACIT, CIRLE - 2, AHME D ABAD, IN THE SAID ORDER FOR A.Y. 2000 - 2001. 4. AGGRIEVED , ASSESSEE CARRIED THE MA T TER IN APPEAL BEFORE THE LD . CIT ( A ) BUT WITHOUT ANY SUCCESS . LEARNED CIT ( A ) UPHELD THE IMPUGNED A DDITION, AND, WHILE DOING SO OBSERVED, AS FOLLOWS : - I.T.A. NO. 2414 TO 2418 /AHD/201 1 ASSESSMENT Y EAR S : 1990 - 91 TO 1994 - 95 PAGE 4 OF 9 2.3 I HAVE CONSIDERED THE FACTS OF THE CASE; ASSESSMENT ORDERS AND APPELLANT S SUBMISSIONS. HONOURABLE ITAT SET ASIDE THESE APPEALS TO THE FILE OF THE A O SINCE APPELLANT S APPEAL IN HIGH COURT FOR A ASS ESSMENT YEAR 1989 - 90 IS PENDING. THE DIRECTION TO THE AO WAS TO DECIDE THESE ASSESSMENTS ON THE BASIS OF FINDINGS OF HIGH COURT IN ASSESSMENT YEAR 1989 - 90 IF AVAILABLE TILL THE LIMITATION PERIOD OF ASSESSMENT. 1TAT ALSO DIRECTED THE AO TO KEEP IN MIND THE ORDER OF TRIBUNAL IN THE APPELLANT'S OWN CASE IN ASSESSMENT YEAR 1989 - 90 WHILE PASSING THE SET - ASIDE ASSESSMENTS IN THESE YEARS. SINCE APPELLANT'S APPEAL FOR ASSESSMENT YEAR 89 - 90 IS STILL PENDING IN HIGH COURT, ASSESSING OFFICER IS BOUND BY THE ORDER OF H ONORABLE TRIBUNAL IN THE APPELLANT'S CASE FOR ASSESSMENT YEAR 89 - 90. THE RELEVANT EXTRACT OF THE TRIBUNAL'S ORDER IS QUOTED BELOW - 'ON CAREFULLY GOING THROUGH THE ASSESSMENT ORDER AND THE ORDER OF THE C IT(A) , WE FIND THAT THE REVENUE HAS NOT DISPUTED THIS FACT REGARDING THE MIXING OF THE A LLOYS TO STANDARD GOLD AS GIVEN BY THE ASSESSEE. THERE IS NO DISPUTE ALSO THAT THE QUALITY OF THE GOLD ORNAMENTS EXPORTED BY THE ASSESSEE HAS CONFORMED TO THE INTERNATIONAL STANDARD IN ACCORDANCE WITH HALLMARKING METHOD FO R ASSURING THE NECESSARY QUALITY. THE REAL DISPUTE HERE IS WITH REGARD TO THE FACT THAT THE ASSESSEE IN ITS BOOKS OF ACCOUNT HAS SHOWN THE PURITY OF THE GOLD ORNAMENTS AT 93.37% WHEREAS AS PER THE EXPORT INVOICE AND THE CUSTOMS CERTIFICATION IT COMES TO 91 ,65% ONLY. IF THE ARGUMENTS OF THE ID. COUNSEL IS TO BE ACCEPTED, THE TOUCH STONE METHOD ADOPTED BY THE CUSTOMS/IMPORT EXPORT CONTROL AUTHORITIES IS NOT A RELIABLE METHOD FOR ASCERTAINING THE PURITY OF THE GOLD ORNAMENTS, WE ARE UNABLE TO ACCEDE TO THIS CO NTENTION MADE BY THE ID. COUNSEL. IT IS TO BELIEVE THAT WHAT IS SHOWN AS GOLD ORNAMENTS OF 93.37% PURITY IN THE ASSESSEE'S BOOKS BECOME GOLD ORNAMENTS OF 91.66% PURITY AS PER THE EXPORT DOCUMENTS AND CUSTOMS CERTIFICATION. DURING THE HEARING THE BENCH RESP ECTABLY ASKED THE ID. COUNSEL TO PROVE THE CONTENTION THAT WHAT IS RECORDED IN THE ASSESSEE'S BOOKS OF ACCOUNT AT 93.37 IS THE SAME AS WHAT IS SHOWN AT 9 1 .66% A S CERTIFIED BY THE CUSTOMS AUTHORITIES. ON THE ONE HAND THE ASSESSEE IS ASSERTING THE FACT THAT ITS BOOKS OF ACCOUNTS ARE CORRECT AND COMPLETE AND IN VIEW OF THE QUANTITATIVE DETAILS AVAILABLE IN THE VOUCHERS, BILLS, REGISTERS PERTAINING TO ISSUE AND RECEIPT OF GOLD TO AND FROM THE KARIGARS, THE PERCENTAGE OF 93.37% SHOWN BY IT IS CORRECT . ON THE OT HER HAND, THE ASSESSEE IS DISPUTING THE CERTIFICATION AS GIVEN BY THE CUSTOMS AUTHORITIES ON THE EXPORT INVOICE WHERE THE PURITY IS INDICATED AT 91.65%. WE MUST IN THIS CONNECTION POINT OUT THAT THE DISCREPANCY POINTED OUT BY THE ASSESSING OFFICER HAS MERG ED AFTER A VERY CAREFUL AND THOROUGH GOING ANALYSIS MADE BY THE ASSESSING OFFICER WITH REFERENCE TO THE DETAILS FURNISHED BY THE A S S ESSEE ITSELF. THE ASSESSING OFFICER HAS CONSIDERED THE MANUFACTURING CYCLE ADOPTED BY THE ASSESSEE WITH REGARD TO DIFFERENT ORNAMENTS OF 22 CARAT, 20 CARAT 18 CARAT AND 14 CARAT AND HAS RECORDED HIS CONCLUSIONS IN A SUMMARIZED FORM IN PARA - 16 OF THE ASSESSMENT ORDER WHICH READS AS UNDER. . WE A L SO FIND THAT IN PARAGRAPH - 2.14 OF THE ORDER OF THE CLT(A ) (WHICH WE H AVE QUOTED EARLIER ) HE HAS APPLIED HIS MIND TO THIS ISSUE AND FOUND THAT INVARIABLY IN EACH AND EVERY EXPORT DOCUMENTS PREPARED BY THE ASSESSEE THE I.T.A. NO. 2414 TO 2418 /AHD/201 1 ASSESSMENT Y EAR S : 1990 - 91 TO 1994 - 95 PAGE 5 OF 9 FINENESS IS SHOWN AS 91.67 % (0.9167). THE ASSESSEE HAS MISERABLY FAILED TO EXPLAIN THE DIFFERENCE BETWEEN 9 3.37% AS SHOWN IN ITS BOOKS OF ACCOUNT AND THE ABOVE MENTIONED FIGURE OF 91.67% SHOWN IN THE EXPORT DOCUMENT . THE ONUS IS ON THE ASSESSEE TO SHOW HOW THE EXCESS CONSUMPTION OF GOLD HAS TAKEN PLACE. THE DIFFERENCE IS SO SUBSTANTIAL THAT IT CANNOT BE CLAIME D AS WASTAGE IN THE MANUFACTURING PROCESS. IN VIEW OF THE FACT THAT THE ASSESSEE H AS RECEIVED THE GOLD ORNAMENTS OF THE PRESCRIBED QUALITY FROM THE KA RI GARS AND SUCH FINAL PRODUCT HAS BEEN EXPORTED AS PER THE EXPERT DOCUMENTS. WE ARE OF THE VIEW THAT THE C AST ON THE ASSESSEE BY THE FINDING OF THE ASSESSING OFFICER H A S NOT BEEN DISCHARGED. THE ONLY INFERENCE IS THAT THE EXCESS GOLD SHOWN AS CONSUMED IN THE MANUFACTURING HAS BEEN SOLD LOCALLY BY THE ASSESSEE OUTSIDE ITS BOOKS OF ACCOUNT. THIS IS BECAUSE AS FA R AS THE EXPORTS SALES ARE CONCERNED, THE QUALITY AND PURITY OF THE GOLD ORNAMENTS EXPORTED HAVE BEEN CERTIFIED BY THE CUSTOM AUTHORITIES AND SUBJUDICA T ED TO THE HALLMARKING IN THE IMPORTED COUNTRIES. THE ONLY DISPUTE HERE CENTERS AROUND THE DISCREPANCY IN THE PURITY SHOWN IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE AND THE FINANCES ARE CERTIFIED IN THE EXPORT DOCUMENTS. IN THIS CONNECTION, IT IS ALSO PERTINENT TO OBSERVE THAT THE ID. CIT(A) HAS GIVEN PARTIAL RELIEF TO THE ASSESSEE ON ACCOUNT OF THE FACT THAT THE STANDARD GOLD AS MANUFACTURED BY THE GOVERNMENT OF INDIA AND SUPPLIED BY THE STATE BANK OF INDIA AGAINST EXPORT IS OF THE PURITY OF 99.53% AS AGAINST 10 0% PURITY AS ASSUMED BY THE ASSESSING OFFICER. THUS A SSESSEE ITSELF HAS GIVEN A REVISED WORKING IN A NNEXURE - A OF THE PAPER BOOK SUBMITTE D BEFORE THE C I T (A) , COPY OF WHICH IS AVAILABLE AT PG. 363 TO 366 OF THE PAPER BOOK SUBMITTED BEFORE US. I F THE PURITY OF THE STANDARD GO LD GIVEN BY THE MINT THROUGH STATE BANK OF INDIA IS TOKEN OF 99.53 THE EXCESS GOLD UTILIZED FOR PRODUCING EXPORT QUALITY ORNAMENTS ACCORDING TO THE REVISED COMPUTATION MODE BY THE ASSESSEE WOULD COME TO 8974.581 GRAMS WHICH IS VALUED OF RS . 3155/ - PER 10 GRAMS WOULD COME TO RS. 28,31 , 480/ - AS A GAINST RS.12,190,180 GRAMS VALUED AT RS.38,4 5,004 / - BY THE ASSESSING OFFICER AT THE ABOVE RATE. IN THIS VIEW OF THE MATTER, THE ID. C I T(A) CONFIRMED THE ADDITION TO THE EXTENT OF RS.28,3 1,480/ - . A FTER CONSIDERATION OF THE ENTIRE EVIDENCE ON RECORD, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE OR DER OF THE C I T(A) AS IT IS BASED ON THE DATE FURNISHED BY THE ASSE S SEE ITSELF AND ALSO BASED ON THE INFERENCE DROWN FROM THE BOO KS OF ACCOUNT MAINTAINED BY THE A SSESSEE AND THE EXPORT DOCUMENTS. IN THIS VIEW OF THE MATTER, WE UPHOLD THE IMPUGNED ORDER OF THE C IT(A) . THE AFORESAID ORDER OF THE TRIBUNAL IS VERY EXHAUSTIVE AND COVERS ALL THE ARGUMENTS OF THE APPELLANT. ASSESSING OFFICER IN HIS ORDERS DEALT WITH THE SUBMISSIONS OF THE APPELLANT. THE NEW EVIDENCES SUBMITTED BY THE APPELLANT DO NOT PROVE ANYTHI NG IN THE LIGHT OF THE AFORESAID DISCUSSION IN THE ORDER OF TRIBUNAL. CONSIDERING THE FACTS OF THE CASES IN THE LIGHT OF AFORESAID TRIBUNAL'S DECISION, THE ADDITION MADE BY THE ASSESSING OFFICER IN ALL THE YEARS IS CONFIRMED. 5. T HE ASSESSEE IS AGGRIEVED AND IS IN APPEAL BEFORE US. I.T.A. NO. 2414 TO 2418 /AHD/201 1 ASSESSMENT Y EAR S : 1990 - 91 TO 1994 - 95 PAGE 6 OF 9 6. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LE G AL POSITION. 7. W E HAVE NOTED THAT THE TRIBUNAL'S ORDER FOR THE A.Y.1989 - 90, WHICH I S FOLLOWED BY THE LD. CIT(A) IN THE ORDER IMPUGNED BEFORE US, NOW STANDS APPROVED BY HON'BLE JURISDICTIONAL HIGH COURT VIDE JUDGMENT DATED 4 TH MARCH, 2014. THEIR LORDSHIPS HAVE THUS IN ASSESSEE'S OWN CASE FOR THE ASSESSMENT YEAR 1989 - 90, HELD AS FOLLOWS : - 8. HAVING THUS HEARD LEARNED COUNSEL FOR THE PARTIES AND HAVING PERUSED THE DOCUMENTS ON RECORD, IT EMERGES THAT THE REVENUE AUTHORITIES AS WELL AS THE TRIBUNAL CAME TO CONCLUSION THAT THERE WAS CONSIDERABLE DISCREPANCY IN THE QUANTITY OF GOLD RECORDED IN THE ASSESSEE'S BOOKS AT THE TIME WHEN THE ORNAMENTS WERE MANUFACTURED AND RECEIVED FROM THE ARTISANS, AS COMPARED TO THE GOLD ACTUALLY EXPORTED BY THE ASSESSEE TO ITS FOREIGN IMPORTERS. 8.1 THIS IS NOT EVEN SERIOUSLY DISPUTED BY THE ASSESSEE. IF WE TA KE AS SAMPLE OF SUCH DISCREPANCY THAT EMERGES IN THE CATEGORY OF 22 CARAT GOLD ORNAMENTS, AFTER SUPPLYING RAW GOLD TO THE ARTISANS AND THE ARTISANS PREPARING GOLD ORNAMENTS AFTER ADDING ALLOY IN THE SPECIFIED QUANTITY, THE ASSESSEE RECEIVED GOLD ORNAMENTS, ACCORDING TO THE ASSESSEE'S RECORDS HAVING PURITY OF 93.37%. THE VERY SAME ORNAMENTS WHEN WERE EXPORTED, THE ASSESSEE RECORDED ITS PURITY AS 91.66%. SOME OF THESE ORNAMENTS ALSO WERE SUBJECT TO ACTUAL TEST BY THE CUSTOMS AUTHORITIES. THE RESULT ALSO MATC HES THE ASSESSEE'S CLAIM OF GOLD PURITY OF 91.66%. THUS, IN FACT, THERE WAS CONSIDERABLE DISCREPANCY BETWEEN THE TWO SETS OF DOCUMENTS PERTAINING TO THE SAME SET OF GOLD ORNAMENTS IS UNDENIABLE. THE ASSESSEE OWED AN EXPLANATION AND HAD A DUTY TO RECONCILE THIS DISCREPANCY. THE AUTHORITIES FOUND THAT THE ASSESSEE FAILED IN DOING SO. THIS WAS ON THE PREMISE THAT THE ASSESSEE'S EXPLANATION WAS FOUND UNACCEPTABLE AND INADEQUATE. THE ASSESSEE'S ONLY EXPLANATION WAS THAT THE ORNAMENTS ACTUALLY CARRIED PURITY OF 9 3.37% BUT WERE REFLECTED IN THE EXPORT DOCUMENTS HAVING PURITY OF 91.66%. THIS ACCORDING TO THE ASSESSEE WAS DONE BECAUSE THE IMPORTERS HAD DESIRED SUCH LEVEL OF PURITY WHEREAS THE ASSESSEE TO ERR ON SAFER SIDE, USED MORE GOLD SO THAT THE STRINGENT INTERNA TIONAL STANDARDS WERE NOT EVEN UNINTENTIONALLY BREACHED, WHICH WOULD INCUR LIABILITY OF REJECTION OF THE CONSIGNMENT. 8.2 SUCH EXPLANATION OF THE ASSESSEE WAS REJECTED BY THE THREE AUTHORITIES BELOW. WE ARE ALSO UNABLE TO FATHUM WHY AN EXPORTER WOULD DEC LARE LESSER PURITY OF GOLD THAN WHAT WAS BEING ACTUALLY EXPORTED. AS RIGHTLY OBSERVED BY THE CIT [A], IF THE GOLD ORNAMENTS WERE CARRYING GREATER PURITY VALUE, AND THEREFORE, GREATER CONTENT OF GOLD, THE ASSESSEE HAD NO REASON TO MAKE A MIS - DECLARATION. I N EITHER CASE, ASSESSEE WAS MEETING WITH THE MINIMUM STANDARD OF 22 CARAT GOLD. WHAT THE ASSESSEE HAD TO CHARGE FROM ITS IMPORTERS HAD NOTHING TO DO WITH WHAT THE ASSESSEE MAY DECLARE IN THE EXPORT DOCUMENTS REGARDING THE PURITY OF GOLD . AS PER THE BY - LAT ERAL UNDERSTANDING, EVEN IF THE IMPORTERS WOULD HAVE PAID THE ASSESSEE FOR THE GOLD PURITY AT 91.66%, THERE WAS NO REASON WHY THE ASSESSEE SHOULD SHY AWAY FROM I.T.A. NO. 2414 TO 2418 /AHD/201 1 ASSESSMENT Y EAR S : 1990 - 91 TO 1994 - 95 PAGE 7 OF 9 DECLARING THAT THE CORRECT PURITY OF THE GOLD ORNAMENTS IS 93.37%, IF THAT WAS THE REAL CASE. TH E CIT [A] ALSO MADE A SIGNIFICANT POINT IN OBSERVING THAT THE ASSESSEE COULD IMPORT ONLY THAT MUCH QUANTITY OF GOLD THAT WAS EXPORTED. BY MAKING MIS - DECLARATION THEREFORE, THE ASSESSEE WAS SERIOUSLY REDUCING QUANTITY OF GOLD THAT WOULD BE AVAILABLE FOR IMP ORT AGAINST THE EXPORT UNDERTAKEN BY IT. THE ANALYSIS MADE BY THE CUSTOMS AUTHORITIES ALSO MATCHED WITH THAT OF TH E ASSESSEE'S OWN DECLARATION REGARDING PURITY OF GOLD. 9. HAD THE REVENUE RELIED SOLELY ON THE CUSTOMS ANALYSIS, WE WOULD HAVE FURTHER EXAMINED THE ASSESSEE'S CONTENTION THAT SUCH ANALYSIS WAS BASED ON THE TOUCH - ST O NE METHOD WHICH MAY NOT YIELD HIGHLY ACCURATE RESULTS. IN THE PRESENT CASE, HOWEVER, ASSESSEE ITSELF DECLARED CERTAIN PURITY OF GOLD WHICH ALSO CO - INSIDED WITH THE RANDOM TESTI NG CARRIED OUT BY THE CUSTOMS AUTHORITIES. 10. THE DIFFERENCE BETWEEN THE TWO SETS OF DECLARATIONS WAS NOT MINOR OR INSIGNIFICANT. IT COULD NOT HAVE BEEN PASSED OFF AS MIXING OF IMPURITY OR ERROR IN MEASURING STANDARDS. IT WAS SIMPLY A CASE WHERE TH E ASSESSEE UTTERLY FAILED TO EXPLAIN THE CONSIDERABLE DIFFERENCE IN THE GOLD QUANTITY IN TWO SETS OF DOCUMENTS MAINTAINED BY ITSELF. 10.1 IT CAN THEREFORE NOT BE STATED THAT THE FINDING OF THE AUTHORITIES BELOW , AS CONFIRMED BY THE TRIBUNAL, ARE PER VER SE. IT IS ALSO NOT TRUE THAT IN COMING TO SUCH CONCLUSIONS, THE REVENUE AUTHORITIES IGNORED THE PRESENCE OF THE CERTIFICATE OF THE GEMS & JEWELLERY EXPORT PROMOTION COUNCIL. THE CONTENTION THAT IN ABSENCE OF PROOF OF LOCAL SALE, IT MUST BE PRESUMED TO HAVE BEEN EXPORTED, IN OUR OPINION, IS FALLACIOUS. IT IS NOT EVEN THE CASE OF THE ASS E SSEE, BARRING HIS EXPLANATION ABOUT THE HIGHER PURITY OF GOLD BEING EXPORTED WHEN LOWER PURITY GOLD IS DECLARED IN THE EXPORT DOCUMENTS, THAT SUCH GOLD WAS IN SOME FORM OR T HE OTHER, SEPARATELY OR INDEPENDENTLY EXPORTED. WHEN THE AUTHORITIES DID NOT ACCEPT THE ASSESSEE'S EXPLANATION IT COMES TO A SITUATION WHERE SUCH DIFFERENTIAL QUANTITY OF GOLD DID NOT FORM PART OF THE ASSESSEE'S EXPORTS. THE ONLY CONCLUSION, THEREFORE, AVA ILABLE TO THE AUTHORITIES AND THEREFORE RIGHTLY REACHED AT WAS THAT THE GOLD WAS SUBJECTED TO LOCAL SALE. ALL IN ALL, THE ISSUES CONSIDERED BY THE REVENUE AUTHORITIES AT A GREATER LENGTH, REFERRING TO AND ANALYZING THE EVIDENCE ON RECORD AND ONCE WHICH WER E CONFIRMED BY THE TRIBUNAL BY GIVING COGENT AND DETAILED REASONS, IN OUR OPINION, DO NOT SUFFER FROM ANY PERVERSITY. IN THE RESULT, THE QUESTIONS ARE DECIDED IN NEGATIVE - AGAINST THE ASSESSEE. THE APPEAL IS, THEREFORE, DISMISSED. 8. L EARNED COUNSEL FOR THE ASSESSEE, HOWEVER, CONTENDS THAT THERE ARE NOW ADDITIONAL EVIDENCES WHICH SHOW THAT ACTUAL CONSUMPTION OF GOLD WAS AT 92.9% PURITY LEVEL AS AGAINST MINIMUM REQUIREMENT OF 91.6%. I T IS IN THIS LIGHT THAT HE SUBMITS THAT THE FINDINGS OF HON'BLE HIGH CO URT WILL NOT HOLD GOOD FOR THESE YEARS. WHEN ASKED WHETHER ANY OF THESE DOCUMENTS ARE CONTEMPORANEOUS EVIDENCES TO I.T.A. NO. 2414 TO 2418 /AHD/201 1 ASSESSMENT Y EAR S : 1990 - 91 TO 1994 - 95 PAGE 8 OF 9 SHOW ACTUAL CONSUMPTION OF GOLD, HE SUBMITTED THAT THESE EVIDENCES SHOW THE CIRCUMSTANCES UNDER WHICH THE ASSESSEE WAS UNDER COMPULSION TO G IVE HIGHER PURITY LEVEL THAN REQUIRED BY STANDARD NORMS. WE HAVE PERUSED THESE EVIDENCES , AND NONE OF THESE EVIDENCES ARE IN THE NATURE OF CONTEMPORANEOUS EVIDENCES OR EVIDENCES TO ESTABLISH ACTUAL CONSUMPTION OF GOLD AT HIGHER PURITY LEVEL. 9. W E FIND TH AT THE ISSUE IS SQUARELY COVERED BY HON'BLE JURISDICTIONAL HIGH COURT'S JUDGEMENT IN ASSESSEE'S OWN CASE FOR THE ASSESSMENT YEAR 1989 - 90, AGAINST THE ASSESSEE . AS FOR THE ARGUMENTS OF THE ASSESSEE REGARDING , WHAT HE PERCEIVES AS ER R ORS IN THE REASONING PR OCESS, WE CAN DO NO BETTER T HAN TO QUOTE THE WORDS OF HON'BLE SUPREME COURT, IN THE CASE OF AMBIKA PRASAD MISHRA VS. STATE OF U . P . (AIR 1980 SC 1762), THAT 'EVERY NEW DISCOVER Y NOR ARGUMENTATIVE NOVELTY CANNOT UNDO OR COMPEL RECONSIDERATION OF A BINDING PR ECEDENT.' WE HUMBLY BOW BEFORE THE HIGHER WISDOM OF HON'BLE COURTS ABOVE AND SIMPLY FOLLOW THEIR WORDS OF WISDOM. WE ARE, THEREFORE, NOT REALLY INCLINED TO EVEN DEAL WITH LEARNED COUNSEL'S ANALYSIS OF 'SUBSIDIARY REASONS' WHICH PREVAILED BEFORE THEIR LOR DSHIPS , AS AGAINST T HE 'REAL REASONS' WHICH WERE REFERRED TO IN THE ASSESSMENT YEAR 2000 - 01. SUFFICE TO SAY THAT THE ISSUE BEFORE US IS EXACTLY THE SAME AS BEFORE THEIR LORDSHIPS, AND T HAT, IN OUR CONSIDERED VIEW, THERE IS NO MATERIAL CHANGE IN FACTS AND CIRCUMSTANCES OF THE CASE, NOR IS THERE ANY MATERIAL AND ADDITIONAL EVIDENCE WHICH AFFECTS BINDING NATURE OF THIS JUDICIAL PRECEDENT. 10. T HE FACTS OF THE OTHER ASSESSMENT YEARS, I.E. ASSESSMENT YEARS 1991 - 92 TO 1994 - 95, ARE SIMILAR, AND, AS LEARNED R EPRES ENTATIVES FAIRLY AGREE, OUTCOME OF ALL THE ASSESSMENT YEARS WILL BE THE SAME. I.T.A. NO. 2414 TO 2418 /AHD/201 1 ASSESSMENT Y EAR S : 1990 - 91 TO 1994 - 95 PAGE 9 OF 9 11. F OR THE DETAILED REASONS SET OUT ABOVE, WE APPROVE THE CONCLUSIONS ARRIVE D AT BY THE LEARNED CIT(A), WHICH ARE IN CONFORMITY WITH HON'BLE JURISDICTIONAL HIGH COURT'S JUDGEME NT IN ASSESSEE'S OWN CASE FOR THE ASSESSMENT YEAR 1989 - 90, AND DECLINE TO INTERFERE IN THE MAT T ER. 12. I N THE RESULT, THE APPEALS ARE DISMISSED . P RONOUNCED IN THE OPEN COURT TODAY ON THE 31 ST DAY OF MAY , 2016. SD/ - SD/ - S S GODARA PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) DATED: THE 31 ST DAY OF MAY , 2016. COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSIS TANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD