TMI Blog2012 (9) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... during search – Held that:- In the absence of any evidence before us to controvert the findings given by the CIT(A), hold that no interference is called for in the order of the CIT(A) on this issue. Appeal decides in favour of assessee Addition on account of unexplained expenditure u/s 69C – Addition on the basis of some seized loose paper found during search - On which some petty cash advances written on different dates given to persons – Held that:- As the entries mentioned in the loose paper tallies with the regular books of accounts of the assessee, there remains no valid reason for making any addition under section 69C. Decision in favour of assessee - IT(SS)A No.06 to 12/Ahd/2010 - - - Dated:- 2-7-2012 - SHRI G.C. GUPTA AND TEJ RAM MEENA, JJ. Revenue by : Shri B.K.S. Pandya Assessee by : Shri S.N. L. Agarwal ORDER PER G.C. GUPTA, VICE-PRESIDENT: These seven appeals by the Revenue for the assessment years 2001-2002 to 2007-2008 are directed against the orders of the Commissioner of Income Tax (Appeals)-II, Ahmedabad. These are being disposed of with this consolidated order. 2. The grounds raised in all these appeals are similar except ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see submitted that the computer file seized by the department during the search action pertained to the assessment year 2004-2005 and out of 12 vehicles in the table reproduced by the AO in the assessment order, the assessee has sold 7 and acquired 4 during the financial year 2002-2003. He submitted that the sale proceeds from these vehicles were recorded in the bank account of the assessee. He submitted that the allegation of the AO that the assessee has held the sold vehicles in benami names was without any evidence and basis. He submitted that the AO has not examined the purchasers of these vehicles although copy of the sale deed in respect of the vehicles was filed before the Revenue authorities. The learned counsel for the assessee further submitted that even during the search proceedings or otherwise no evidence was found that the assessee has plied or incurred expenses on plying of any such sold vehicles or has received any transport receipts on them. He submitted that there is no evidence to show that the assessee has provided funds for investments to the persons who purchased the vehicles sold by the assessee. The learned counsel for the assessee further submitted that e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portation income and applying GP rate of 41.47% on the assumed turnover of the assessee. We find that where the income is estimated by taking GP on the turnover of the assessee, the deprecation has to be allowed to the assessee in order to arrive at the taxable income of the assessee. In this case, the CIT(A) has given a finding that when the AO has applied the GP rate, he has also to allow the depreciation thereafter and by doing so, the income becomes lower than the returned income of the assessee. We find that in reply to a specific question from the Bench, the learned CIT-DR admitted that in case the depreciation is allowed out of the income arrived at by applying the GP rate on the turnover of the assessee, the taxable income in the hands of the assessee will be lower than the returned income of the assessee and there will be no revenue gain. However, in view of our finding that the provisions of section 44AE of the Act is applicable to the case of the assessee, we find that there is no merit in the grounds of the appeals of the Revenue and accordingly, the grounds of appeal of the Revenue in all the appeals are dismissed. IT(SS)A No.10/Ahd/2010 (A.Y.2005-2006) 8. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of marble, ignoring that during the course of assessment proceedings, the assessee had taken different stand that the said payment was made to one Mr.Ravi Sharma, truck driver. 5) The Ld CIT(A) has erred in law and on facts in deleting the additions made on account of unexplained expenditure of Rs.5,51,000/- on account of entries in the loose paper file annexure A-3 on page no.72, (Enclosed as Annexure-B) seized during the course of search and survey on 31.05.2006, by the A.O, accepting the plea of the assessee that the said payment is made for purchase of marble, which was new plea before the CIT(A) and could not have been entertained by CIT(A) under rule 46A unless the AD was given an opportunity in respect of the same. 6) The ld.CIT(A) has erred in law and on facts in deleting the additions made on account of unexplained expenditure of Rs.5,51,000/- on account of entries in the loose paper file annexure A-3 on page no.72 (enclosed as Annexure-B) seized during the course of search and survey on 31.05.2006, by the AO accepting the plea of the assessee that the said payment is made for purchase of marble, even when the assessee neither furnished any bills to show that these wer ..... 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