ITO, UDAIPUR V. Shri Vinod Kumar Dagaria, UDAIPUR

ITA 411/JODH/2002

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1602 (ITAT-JODHPUR)
• Duration Of Justice: 10 year(s) 2 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-01-2013
• Assessment Year: 1999-2000
• Appeal Filed On: 25-11-2002
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Keywords: Unexplained investment; Opportunity of being heard; Speculative transactions
• Section: 133A; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NO. 407/JU/2002 ASSESSMENT YEAR: 1999-2000 SHRI VINOD KUMAR DAGRIYA VS. THE I.T.O P/O M/S VARDHMAN ABHUSHAN WARD 2 (2) UDAIPUR UDAIPUR PAN NO. AAZDD 7764 P ITA NO. 411/JU/2002 ASSESSMENT YEAR: 1999-2000 THE I.T.O VS. SHRI VINOD KUMAR DAGRIYA WARD 2 (2) P/O M/S VARDHMAN ABHUSHAN UDAIPUR UDAIPUR PAN NO. AAZDD 7764 P (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI AMIT KOTHARI DEPARTMENT BY : SHRI G.R. KOKANI DATE OF HEARING : 21.01.2013 DATE OF PRONOUNCEMENT : 11.02.2013 2 ORDER PER HARI OM MARATHA, J.M. ABOVE CROSS APPEALS, FOR ASSESSMENT YEAR 1999-2000, ARE DIRECTED AGAINST THE ORDER OF THE CIT(A), UDAIP UR, DATED 20.09.2002. THEREFORE, WE PROCEED TO DECIDE T HEM BY A COMMON ORDER. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT THE LD. A.O. WARD 2(2) UDAIPUR ERRED IN LAW & FACTS WHILE MAKING AN ADDITION OF SAID OPENING EXCESS CASH AMOU NTING TO RS.24000/- AND FURTHER THE LD. CIT(A) UDAIPUR RANGE UDAIPUR HAS ALSO ERRED IN LAW & FACTS WHILE UPHOLDING THE SAME ADDITION. 2. THAT THE A.O. UDAIPUR ERRED IN LAW & FACTS WHILE TREATING THE TRANSACTIONS RECORDED IN THE 'NOTE BOOK' ARE OF ACT UAL PURCHASE & SALE OF GOLD BISCUITS & SILVER INSTEAD OF TREATING THEM AS SPECULATIVE TRANSACTIONS WHEREIN NO ACTUAL PHYSICAL TRANSACTION TOOK PLACE AND FURTHER LD. CIT (A) UDAIPUR ALSO ERR ED IN LAW & FACTS WHILE UPHOLDING THE FINDINGS OF THE A.O. 3. THAT THE LD. AO UDAIPUR AS WELL AS LD. CIT (A) U DAIPUR ERRED IN LAW & FACTS WHILE APPLYING THE THEORY OF PEAK INVES TMENT ON SUCH NATURE OF SPECULATIVE TRANSACTIONS AND FURTHER ID. CIT (A) UDAIPUR ERRED IN LAW AND FACTS WHILE TAKING THE PEA K INVESTMENT AT RS. 15,07,5007-. 4. THAT THE LD. A.O. UDAIPUR ERRED IN LAW & FACTS W HILE ESTIMATING THE G.P. INVOLVED IN THE SALE TRANSACTION AT 2% FOR BOT H GOLD & SILVER BULLION. ALSO ERRED ESTIMATING TOTAL SALE AT RS-20Q QS2Z5/- (RS.16378750 FOR GOLD +RS.3628025 FOR SILVER). THE TOTAL INCOME ESTIMATED AT RS.400135/-. FURTHER THE CIT(A) ALSO E RRED IN LAW & FACTS WHILE JUSTIFYING THE RATE APPLIED BY THE A. O. 3 5. THAT THE A.O. UDAIPUR AS WELL AS LD. CIT (A) UDA IPUR RANGE UDAIPUR RANGE UDAIPUR ALSO ERRED IN LAW & FACTS WHI LE NOT ALLOWING THE SET OFF OF THE REGULAR CASH BALANCE AV AILABLE I.E. RS.797209/- FROM THE PEAK UNDISCLOSED INVESTMENT OF RS.1507500/- DIFFERENCE COULD HAVE BEEN TAKEN PEAK INVESTMENT. 6. THAT THE A.O. UDAIPUR AS WELL AS LD. CIT(A) UDAI PUR ERRED IN LAW & FACTS WHILE NOT ALLOWING SET OFF OF THE FOLLOWING FROM THE COMPUTED PEAK INVESTMENT. (I) UNEXPLAINED INVESTMENT OF GOLD ORNAMENTS FOUND AT AT THE TIME OF SURVEY RS.79450/- (II) UNEXPLAINED INVESTMENT IN EXCESS SILVER ORNAMENTS FOUND AT T HE TIME OF SURVEY RS.171278/- 3. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS GROSSLY ERRED IN REDUCING THE AD DITION MADE BY THE A.O. ON ACCOUNT OF UNDISCLOSED INVESTME NT IN BULLION BUSINESS AT RS. 31.08 LAKHS BEING THE HI GHEST TOTAL OF TRANSACTIONS ON A SINGLE DATE, TO RS. 15,0 7,950/- HOLDING THAT THE PEAL SHOULD BE THE VALUE OF THE SI NGLE HIGHEST TRANSACTION TO ONE PARTY ON A PARTICULAR DA TE, IGNORING THE FACTS OF THE CASE AND THE MATERIALS BR OUGHT ON RECORD BY THE A.O. 4. BRIEFLY STATED, THE FACTS LEADING TO THESE APPEA LS ARE THAT THE ASSESSEE DERIVES INCOME FROM TRADING IN BU LLION AND GOLD/SILVER ORNAMENTS VIA HIS PROPRIETARY CONCE RN 4 NAMELY M/S VARDHMAN ABHUSHAN. THE ASSESSEE FILED H IS RETURN OF INCOME [ROI] FOR A.Y. 1999-2000 ON 24.3.2 000, DECLARING A LOSS OF RS. 28,475/-. SURVEY U/S 133A WAS CONDUCTED IN THE BUSINESS PREMISES OF THE ASSESSEE ON 12.1.1999. DURING THIS SURVEY CERTAIN DISCREPANCIE S WITH REGARD TO STOCK OF GOLD/SILVER ORNAMENTS AND OPENIN G CASH BALANCES WERE NOTICED. THE AFFAIRS OF THE BUSINESS OF THE ASSESSEE ARE STATED TO BE MANAGED BY ONE SHRI PANKA J DAGARIYA IN HIS CAPACITY AS MANAGER OF M/S VARDHMAN ABHUSHAN. HE IS ELDER BROTHER OF ASSESSEE AND, IN F ACT WAS MANAGING DAY-TO-DAY AFFAIRS OF THE ASSESSEE, AND WA S PRESENT AT THE TIME OF THE SURVEY. HIS STATEMENT W AS RECORDED IN WHICH HE MADE A SURRENDER IN RESPECT OF DISCREPANCIES FOUND DURING SURVEY. BUT THE SURREND ER WAS NOT REFLECTED IN THE STATEMENT OF INCOME FILED ALON GWITH RETURN OF INCOME. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT ORDER BY MAKING VARIOUS ADDITIONS INCLUD ING THE SURRENDERED AMOUNT. THE LD. CIT(A) HAS GIVEN PART R ELIEF. BOTH THE PARTIES ARE AGGRIEVED. 5 5. IN ASSESSEES APPEAL, GROUND NO. 1 RELATES TO AD DITION RS. 24,000/- MADE BY THE ASSESSING OFFICER ON ACCOU NT OF EXCESS CASH FOUND WHICH HAS BEEN CONFIRMED BY LD. C IT(A). 6. BRIEFLY STATED, THE FACTS RELATING TO THIS ISSUE ARE THAT DURING SURVEY, A DIFFERENCE OF RS. 24,000/- IN THE OPENING CASH BALANCE, AS ON 1.4.1998 WAS FOUND. OPENING CAS H BALANCE AS PER THE CASH BOOK WAS RS. 11,59,046.90 W HEREAS THE CLOSING CASH BALANCE AS ON 31.3.1998 WAS RS. 11,35,046.90. THE DIFFERENCE AMOUNT OF RS. 24,000/ - WAS SURRENDERED BY THE MANAGER, IN HIS STATEMENT RECORD ED DURING THE COURSE OF SURVEY. HOWEVER, THE SAME WAS NOT HONOURED AND WAS NOT REFLECTED IN THE COMPUTATION O F INCOME FILED ALONGWITH RETURN OF INCOME. WHEN QUEST IONED ABOUT THIS SURRENDER, THE ASSESSEE REPLIED THAT, IN FACT, THERE WAS NO SUCH CASH DIFFERENCE BECAUSE THE OPENI NG CASH BALANCE WAS WRITTEN IN PENCIL AND AS PER THE P ROFIT AND LOSS ACCOUNT FOR THE PRECEDING YEAR I.E., 1998- 99, THE SALARY WAS DEBITED AT RS. 30,000/- AND THE CLOSING BALANCE OF CASH WAS 11,35,046.90. HOWEVER, IN THE TRIAL BA LANCE 6 PREPARED BY THE ACCOUNTANT, THE SALARY DEBITED WAS WRONGLY TAKEN AT RS. 6,000/- AS A RESULT OF WHICH T HE CASH BALANCE WAS INCREASED BY RS. 24,000/-. THE INCREAS ED FIGURE OF CASH BALANCE WAS ADOPTED BY MISTAKE AS TH E OPENING BALANCE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. NOT SATISFIED WITH THIS EXPLANATION OF THE ASSESSEE, THE ASSESSING OFFICER ADDED THE DIFFERENT IAL AMOUNT OF RS. 24,000/-. THE LD. CIT(A) HAS ALSO CO NFIRMED THIS ADDITION. 7. WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE CAREFUL LY PERUSED THE RELEVANT MATERIAL ON RECORD. WE HAVE FOUND THAT THIS ISSUE HAS NOT BEEN PROPERLY DEALT WITH BY THE A.O. AND THE LD. CIT(A). THE SUBMISSION OF THE ASS ESSEE BEFORE THE A.O. WAS AS UNDER: THE OPENING CASH BALANCE OF RS. 1159046.90 HAS BEEN WRITTEN IN PENCIL. THE DIFFERENCE IS DUE TO THE FACT.THE RETURN FOR ASSESSMENT YEAR 1998-99 WAS SUBMITTED ALONG WITH TRADING PROFIT AND LOSS ACCOUN T AND BALANCE SHEET ON 21.9.1998 WHICH IS MUCH PRIOR 7 TO THE DATE OF SURVEY CONDUCTED. IN THE PROFIT AND LOSS ACCOUNT SALARY OF RS. 30000 IS DEBITED HENCE CLOSING CASH BALANCE SHOWN IN BALANCE SHEET ARE 135046.50.90 THE ABOVE FINANCIAL STATEMENT SUBMITTED ALONG WITH THE RETURN IS COMPUTERIZED. I N THE TRIAL BALANCE PREPARED BY THE ACCOUNTANT IN HIS OWN HANDWRITING, IT S SHOWN SALARY DEBITED AT RS. 6000 HENCE AS PER HIS HANDWRITTEN TRIAL BALANCE, TH E CASH BALANCE WAS INCREASED BY RS. 24,000/- [DUE TO LESS DEBITED RS. 24,000/- IN SALARY ACCOUNT] AND TH E ACCOUNTANT TOOK THE OPENING BALANCE IN PENCIL AS BALANCE AS SHOWN IN HIS HAND WRITTEN TRIAL BALANCE. THE HANDWRITTEN TRIAL BALANCE FOR THE FINANCIAL YEA R 1997-98 IS AVAILABLE IN THE SEIZED MATERIAL AND CAN BE RECONCILED. IF THERE IS SOME RECORDING MISTAKES AND IF THIS FAC T IS FOUND TO BE CORRECT, THE SAME HAS TO BE CONSIDERED AND ADJUSTED. THERE IS NO ABSOLUTE RULE THAT THE OPENI NG BALANCE OF A YEAR ONLY HAS TO BE TAKEN AS A GOSPEL TRUTH EVEN WHEN IT IS DUE TO MISTAKEN ACCOUNTANCY AND IS SUPPORTED BY THE FACTS AND FIGURES RECORDED IN THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 1998-99 AND IN TH E PROFIT AND LOSS ACCOUNT SALARY PAID IS SHOWS DEBITE D AS RS. 8 30,000/- WHICH IS PRIOR TO THE DATE OF SURVEY. IN OUR OPINION, THIS ISSUE HAS NOT BEEN PROPERLY DEALT WIT H BY THE AUTHORITIES BELOW. THEREFORE, WE RESTORE THIS ISSU E TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION THAT HE SHALL PROPERLY CONSIDER THE ABOVE REPLY OF THE ASSESSEE A ND AFTER GIVING PLAUSIBLE REASONING DECIDE THIS ISSUE AFRESH. HE WILL NOT SUMMARILY REJECT THE SAME. IN CASE THE CONTENTION OF THE ASSESSEE IS FOUND TO BE CORRECT, THE SAME HAS TO BE CONSIDERED IN CORRECT PERSPECTIVE. NEEDLESS TO MENTION, THAT HE WILL GIVE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HENCE THIS GROUND IS ALLOWE D FOR STATISTICAL PURPOSES. 8. SECOND GROUND IS AGAINST THE TREATMENT OF TRANSACTIONS RECORDED IN A NOTE-BOOK FOUND DURING S URVEY REGARDING PURCHASE AND SALES OF GOLD/SILVER ORNAMEN TS AND GOLD BISCUITS. 9 9. THE FACTS OF THIS ISSUE ARE THAT AS PER THE BOOK S OF ACCOUNT OF THE ASSESSEE, STOCK OF GOLD SHOULD HAVE BEEN 582 GMS. HOWEVER, ON PHYSICAL VERIFICATION, THE ST OCK WAS FOUND AS UNDER: 1. 4 PIECES OF PURE GOLD 47.900 GMS 2. JEWELLERY FOUND IN THE SHOP 256.300 [NET WEIGHT] 3. CONVERTED TO PURE GOLD 230.670 GMS 4. WITH KARIGAR 648.000 GMS [NET WEIGHT] 5. CONVERTED TO PURE GOLD 583.300 GMS TOTAL 861.870 GMS THE ASSESSING OFFICER NOTED IN THE ASSESSMENT ORDER THAT 10 GOLD BISCUITS WEIGHING 1168 GMS WITH FOREIGN MAR KING WERE FOUND AT ASSESSEES BUSINESS PREMISES. THE APP ELLANT SURRENDERED THE VALUE OF GOLD BISCUITS [OF RS. 5,14 ,965/-] DURING SURVEY. HOWEVER, HE DID NOT INCLUDE THIS AM OUNT IN THE COMPUTATION OF INCOME. IT WAS EXPLAINED THAT THE GOLD BISCUITS WERE PURCHASED FROM M/S GAYATRI JEWEL ERS, AHMEDABAD ON 11.1.1999 AND BROUGHT TO UDAIPUR ON 10 12.1.1999. IT WAS ADMITTED THAT THE TRANSACTION WA S NOT RECORDED IN THE BOOKS OF ACCOUNT AS THE SAME WERE W RITTEN ONLY UPTO 6.1.1999. SHRI PANKAJ DAGARIYA, ELDER BR OTHER OF THE ASSESSEE WHO MANAGED THE AFFAIRS OF THE ASSESSE E GAVE DIFFERENT VERSIONS ON THE NATURE OF POSSESSION AND SOURCE OF ACQUISITION OF THE GOLD BISCUITS. FIRST HE STATE D THAT HE PURCHASED THESE GOLD BISCUITS FROM AHMEDABAD OUT OF CASH AVAILABLE WITH HIM BUT HAD FORGOTTEN TO BRING THE B ILL AND IN THIS REGARD HE PRODUCED A FAX COPY OF THIS BILL. ON FURTHER QUERY, HE STATED THAT HE WENT TO AHMEDABAD IN HIS OWN VEHICLE. SUBSEQUENTLY, HE STATED THAT ONE SHRI ASHOK KUMAR HAD BROUGHT THESE BISCUITS. HE COULD NOT FUR NISH ANY INFORMATION ABOUT SHRI ASHOK KUMAR AND WHETHER HE WOULD CONFIRM HIS DEPOSITION. HE, ULTIMATELY, ADMI TTED THAT THOUGH SHRI ASHOK KUMAR HAD GONE TO AHMEDABAD TO PURCHASE GOLD, HE DID NOT TURN UP TILL DATE AND THE GOLD WAS ACQUIRED FOUR DAYS BACK FROM AN UNKNOWN PERSON WHO DELIVERED THE GOLD BISCUITS AT UDAIPUR. NEITHER SH RI DAGARIYA COULD IDENTIFY THE PERSON NOR COULD HE GIV E HIS NAME. RESULTANTLY, HE SURRENDERED THE VALUE OF THE GOLD 11 BISCUITS [AT RS. 5,14,965/-]. THE ASSESSING OFFICE R NOTED THAT THE BISCUITS WERE FOUND PACKED AND NOT OPENED WHICH SHOWED THAT THE IDENTITY OF THE PERSON WAS KNOWN TO HIM. HE FURTHER NOTED THAT THE BILL OF PURCHASE FROM M/S GAYATRI JEWELLERS HAD BEEN ARRANGED TO EXPLAIN 10 G OLD BISCUITS. ACCORDINGLY, THE ASSESSING OFFICER ADDED THE PRICE OF THE BISCUITS AT RS. 5,14,965/- AS UNDISCLO SED INCOME OF THE ASSESSEE. AGGRIEVED, THE ASSESSEE WE NT BEFORE THE LD. CIT(A), WHO HAS ALSO CONFIRMED THIS ADDITION. 10. BEFORE THE LD. CIT(A), SIMILAR SUBMISSIONS WERE MADE. IT WAS SUBMITTED THAT THE PURCHASE BILL FROM AHMEDA BAD PARTY WAS PRODUCED BEFORE THE ASSESSING OFFICER AND COMPLETE EXPLANATION ABOUT SOURCE AND ACQUISITION O F THE GOLD BISCUITS WERE GIVEN, THEREFORE, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THIS ADDITION. HOWEVER, AGREEING WITH THE REASONING GIVEN BY THE ASSESSING OFFICER, THE LD. CIT(A) HAS CONFIRMED THIS ADDITION OF RS. 5,14,965/-. NOW THE ASSESSEE IS IN SECOND APPEAL. 12 11. WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE CAREFU LLY PERUSED THE RELEVANT MATERIAL ON RECORD. AFTER CIRCUMSPECTING THE ARGUMENTS OF BOTH THE SIDES VIS- -VIS THE EVIDENCE ON RECORD, WE ARE OF THE CONSIDERED OP INION THAT THIS ADDITION HAS TO BE DELETED. THE ASSESSEE HAS EXPLAINED, THROUGH HIS ELDER BROTHER [THE MANAGER] FROM THE TIME OF SURVEY, THE PROCUREMENT OF THESE TEN BI SCUITS. HE HAS ALSO GIVEN THE SOURCE OF PURCHASE OF THESE T EN BISCUITS. HE HAS ALSO GIVEN THE SOURCE OF THE PURC HASE AMOUNT. HE HAS PRODUCED BILL OF PURCHASE ALSO. IN OUR OPINION, THIS IS ENOUGH PROOF QUA THE POSSESSION OF BISCUITS. AS TO WHO BROUGHT THESE BISCUITS AND WHA T WAS THE MODE OF TRAVEL IS NOT OF MUCH RELEVANCE FOR THI S MATTER. THE BILL PROVES PURCHASE OF THE BISCUITS. THE NON-RECORDING OF THIS PURCHASE IN THE BOOKS ON THE DATE OF SURVEY ALSO STANDS EXPLAINED. THE BOOKS WERE WRITT EN UPTO 6.1.1999 BUT THE BISCUITS WERE BROUGHT TO UDAIPUR O N 12.1.1999. THE A.O. COULD NOT GET THIS FACT VERIFI ED FROM THE AHMEDABAD PARTY. IN OUR OPINION, THIS AMOUNT O F RS. 13 5,14,965 STANDS EXPLAINED AND HENCE THIS ADDITION I S ORDERED TO BE DELETED. 12. NEXT ISSUE IS AGAINST THE ADDITION OF RS. 31,08 ,450/- AND RS. 4,00,135/- MADE BY THE ASSESSING OFFICER ON THE BASIS OF TRANSACTIONS RECORDED IN THE ORDER BOOK FOUND AT THE TIME OF SURVEY. THIS ISSUE IS THE SUBJECT-MATTE R OF ALL THE REMAINING GROUNDS OF ASSESSEES APPEAL AND THE SOLE GROUND OF REVENUES APPEAL. 13. BRIEF FACTS RELATING TO THIS ISSUE ARE THAT AT THE TIME OF SURVEY, AN ORDER BOOK WAS FOUND IN WHICH THE APPELLANT HAD NOTED DOWN THE ORDERS FOR SUPPLY OF G OLD BISCUITS AND SILVER BARS DURING THE PERIOD BETWEEN 8.12.1998 TO 11.1.1999, GIVING DETAILS LIKE THE NAM ES OF THE PARTY, DATE OF BOOKING, WEIGHT, RATE ETC. THIS NOTE- BOOK WAS ALLEGEDLY FOUND WRITTEN IN THE HANDWRITING OF SHRI PANKAJ DAGARIYA, THE ELDER BROTHER OF THE ASSE SSEE. IN HIS STATEMENT, SHRI PANKAJ DAGARIYA HAS STATED THAT THIS NOTE-BOOK CONTAINED TRANSACTIONS OF SPECULATION OF GOLD 14 AND SILVER AND ARE NOT RELATED TO ACTUAL PURCHASE, SALE OR DELIVERY OF ANY GOLD OR SILVER AS HAS BEEN ALLEGED. HE HAS EVEN DENIED ANY KNOWLEDGE OF THE PARTIES/PERSONS WH OSE NAMES ARE FOUND MENTIONED IN THIS NOTE-BOOK. HE HA S STATED THAT THE TRANSACTIONS OF SPECULATION ARE MAD E TELEPHONICALLY WHEREIN ONLY AMOUNT OF THE DIFFERENC E IS RECEIVED OR PAID. DURING ASSESSMENT PROCEEDINGS THE ASSESSEE HAD PREPARED AND FILED A PROFIT AND LOSS A CCOUNT, BY TREATING ENTRIES IN THIS BOOK AS SPECULATIVE TRA NSACTIONS AND BY TAKING THE DATE OF THE SO CALLED SAUDA AFT ER 7 DAYS FROM THE DATE OF BOOKING. THE RATES OF THE PA RTICULAR DATES WERE OBTAINED FROM A WEBSITE. IN THIS WAY, T HE ASSESSEE HAS WORKED OUT A NET LOSS AT RS. 37,345/- IN THE CASE OF SILVER AND OF RS. 50,213/- IN THE CASE OF G OLD. THE ASSESSING OFFICER WAS NOT SATISFIED AND HAS REJECTE D THE ABOVE EXPLANATION OF THE ASSESSEE. AGAINST THE IMPU GNED ADDITION SO MADE, THE ASSESSEE HAD FILED APPEAL BEF ORE THE LD. CIT(A), WHO HAS ALSO CONFIRMED THE ACTION OF TH E A.O. 15 14. WE HAVE HEARD RIVAL SUBMISSIONS AND HAVE CAREFU LLY PERUSED THE RELEVANT MATERIAL ON RECORD. WE HAVE N OTICED THAT THE A.O. HAS NOT PROPERLY DEALT WITH THESE ISS UES. THEREFORE, ALL THESE ISSUES ARE RESTORED TO THE FIL E OF THE A.O. FOR DE NOVO CONSIDERATION. 15. FURTHER, ON THE BASIS OF THIS VERY DIARY [NOTE- BOOK] THE A.O. HAS MADE THE FOLLOWING ADDITIONS: 1. UNDISCLOSED INVESTMENT IN EXCESS GOLD ORNAMENTS RS. 79,415/- 2. UNACCOUNTED PURCHASED OF GOLD ORNAMENTS RS. 39,478/- 3. UNDISCLOSED INVESTMENT IN EXCESS SILVER ORNAMENTS RS. 1,71,275/- 4. PEAK INVESTMENT IN THE TRANSACTIONS OF BULLION RS. 31,08450/- 5. ADDITION ON ACCOUNT OF G.P. ON TRANSACTIONS OF BULLION RS. 4,00,135/- 6. UNDISCLOSED INVESTMENT IN 10 GOLD BISCUITS RS. 5,14,965/- 16 THE CASE OF THE ASSESSEE IS THAT AFTER ADOPTING THE PEAK OF THE TRANSACTIONS AS UNDISCLOSED INCOME, THERE IS NO NECESSITY TO MAKE SEPARATE ADDITIONS IN ITEMS (1), (3) AND (6) AS MENTIONED ABOVE. 16. ACCORDING TO THE ASSESSEE, HIS REGULAR BUSINESS CANNOT BE LINKED WITH THE UNDISCLOSED BUSINESS OF PURCHASE /SALE AS RECORDED IN THE ORDER-BOOK. THE LD. CIT(A) HAS ACCEPTED THE CONTENTION OF THE ASSESSEE THAT THE INVESTMENT IN 10 GOLD BISCUITS SHOULD BE ADJUSTED A GAINST THE PEAK COMPUTED AS ABOVE. HE HAS THUS DEEMED ADDITION OF RS. 5,14,965/- TO BE COVERED IN THE PEA K UNDISCLOSED INCOME OF RS. 15,07,500/-. THE LD. CIT (A) HAS REDUCED THE PEAK TO RS. 15,07,500/- INSTEAD OF RS. 31,08,450/- COMPUTED BY THE A.O. BUT THE GROSS PRO FIT RATE OF 2% APPLIED BY THE A.O. HAS BEEN UPHELD BY T HE LD. CIT(A). 17 17. BEFORE US, BOTH THE PARTIES HAVE MAINTAINED THE IR ORIGINAL STANDS. 18. AFTER HEARING THE PARTIES AND AFTER PERUSING TH E RECORDS, WE ARE OF THE CONSIDERED OPINION THAT NEIT HER THE A.O. NOR THE LD. CIT(A) HAS ARTICULATED THE ISSUES AND HAVE NOT GIVEN THEIR CLEAR-CUT FINDING. THE ISSUES HAVE BEEN SO JUMBLED AND MIXED UP THAT IT IS IMPOSSIBLE TO CULL OUT CLEARLY FULL AND FINAL FACTS OF THE CASE. THE TRIB UNAL BEING THE FINAL FACT FINDING BODY IT BECOMES IMPERATIVE T O GET THEM CLEARLY SPELT BY THE AUTHORITIES. THEREFORE, WE HAVE TO RESTORE THESE ISSUES TO THE FILE OF THE A.O. FOR DE NOVO CONSIDERATION AND FRESH COMPUTATION OF INCOME. THE A.O. HA TO PASS A SPEAKING ORDER ON EACH OF THE ABOVE IS SUES. ACCORDINGLY, WE RESTORE THE APPEAL OF THE ASSESSEE, TO THAT EXTENT, AND THE ENTIRE APPEAL OF THE REVENUE TO A.O S FILE WITH THE ABOVE DIRECTION. NEEDLESS TO MENTION THAT THE A.O. SHALL ACCORD OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AS PER LAW. 18 19. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED AND PARTLY ALLOWED STATISTICAL PURPOSES. TH E APPEAL OF THE DEPARTMENT IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 11 TH FEBRUARY, 2013. SD/- SD/- (N.K.SAINI) [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 11 TH FEBRUARY, 2013 VL/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR BY ORDER ASSISTANT REGISTRAR ITAT, JODHPUR