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2021 (1) TMI 461 - AT - Income TaxAssessment u/s 153A - Unaccounted income on account of under invoicing of sales - HELD THAT:- No evidence is found with regard to under invoicing of sales or unaccounted purchases either in the premises of the residence or the business premises of the assessee. From the assessment order, it is also seen that no excess stock was found and there was no stock difference. AO verified the books of accounts, no defects were found during the course of assessment. As stated earlier, search was continuously conducted in the business premises of the assessee and recorded the statements u/s 132(4) in multiple premises regularly without giving sufficient intervals to the assessee to apply the mind on the issues raised by the department. Thus there is a possibility of building up pressure on the assessee which resulted in confusion in his mind. The entire addition was made on the statement recorded from the assessee on 02.09.2016 on the basis of invoice No.2135 dated 30.07.2016 related to the sale invoice of Lakshmi Agencies which was billed for ₹ 361.53 per case which was accounted in the books of the assessee. The year wise unaccounted income was computed on sales declared by assessee on the presumption of cash received back @8% of actual sales which is incorrect since the distributors told that they paid the cash ranging from ₹ 50,000/- to ₹ 60,000/- per load. Admissions made under such circumstances without the corroborative evidence cannot be made basis for making the additions. Neither evidence was found nor the AO made out a case with the date wise, party wise cash of receipt from each distributor which was said to be unaccounted. In the instant case there was no evidence found in the premises of the assessee to show that the assessee is under invoicing the sales. No other material was found and seized from the premises of the assessee with regard to receipt of cash from the distributors. No evidence was found in the premises of the distributors also to establish that that the assessee was paid unaccounted cash by the distributors. The AO could not rebut the submissions of the assessee with regard to sale price and under invoicing with relevant facts and evidences. Therefore we, hold that the additions made solely on the basis of statement u/s 132(4) without having corroborating evidence is unsustainable and accordingly we uphold the order of the Ld.CIT(A) and dismiss the appeals of the revenue for the A.Ys 2013-14 to 2016-17 on this issue. Validity of making additions u/sec. 153A without having seized material - CIT(A) deleted the addition holding that the AO is not permitted to make the addition without having seized material. - HELD THAT:- There is no dispute that the entire addition was made on the statement recorded u/s 132(4) without having any incriminating material. The Ld.CIT(A) followed the order of this Tribunal and the decision A.P. High court in the case of A.M.R. India Pvt. Ltd. [2014 (6) TMI 964 - ANDHRA PRADESH HIGH COURT] Therefore respectfully following it we hold that in completed assessments the AO is not permitted to make additions without having the seized material / incriminating material. Accordingly, we uphold the orders of the Ld.CIT(A) and dismiss the appeals of the revenue on this issue. Cash deposit made during demonetization period - HELD THAT:- In the instant case, the assessee had explained the source and furnished the confirmation letter and also explained the source of source. The creditor of Arunachalam Manickavel is having credit worthiness and there is no dispute. The department also conducted the search against the creditors, thus there is no dispute with regard to identification and credit worthiness of the creditor. Therefore, there is no case for making addition in the hands of the assessee. If at all the AO disbelieved the source of source, the same required to be made addition in the hands of the creditor, but not in the hands of the assessee. Therefore, we uphold the order of the Ld.CIT(A) and dismiss the appeal of the revenue.
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