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2019 (5) TMI 406 - AT - Income TaxAssessment u/s 153A - Bogus LTCG - HELD THAT:- In absence of any incriminating material the addition cannot be made by the AO in the proceedings u/s 153A when the assessment for the year was not pending as on the date of search. Following the decision as relied upon the AR as well as the decision of this Tribunal in case of DCIT vs. M/s A.M. Exports [2019 (1) TMI 696 - ITAT JAIPUR] we deleted the addition made by the AO on account of long term capital gain. Since, we have deleted the addition on the legal ground therefore, we do not propose to go into the merits of the issue regarding the genuineness of the transactions as raised in ground. Unaccounted transaction detected during the course of search and seizure action as recorded in the loose papers and other incriminating material found and seized - HELD THAT:- Considering inflow as well as out flow of cash and cheques as recorded in the seized papers the CIT(A) took the peak of incoming cash at ₹ 7,14,920/- and sustained the addition to that extent. We find that in the statement recorded U/s 132(4) as well as Section 131 the assessee apart from specific amounts has also surrendered ₹ 93,00,000/- on account of sundry/ miscellaneous items of unaccounted expenses or irregularity in the books of accounts if any. The said amount of ₹ 93,00,000/- was surrendered by the assessee to cover any irregularity in the claim in the books of accounts. Disallowance made by the AO which are restricted by the CIT(A) is very well covered by the said amount of ₹ 93,00,000/- when the AO has not pointed out any other irregularity or discrepancy in respect of any other year cover under the search to consume or utilize the said sundry amount of ₹ 93,00,000/- surrendered by the assessee. Accordingly, the addition restricted by the CIT(A) is not sustainable when the assessee has already surrendered extra amount of ₹ 93,00,000/- to cover such irregularity. Addition on account of receipt recorded treating as unaccounted receipt of the assessee - addition restricted by the CIT(A) by applying N.P. rate of 13.28% on the said amount which comes - HELD THAT:- Though the assessee has explained that this amount of ₹ 2,00,000/- is nothing but representing the imprest account maintained by the employees of the assessee who keep these details for making day to day payment for various sites. Since the assessee has already surrendered on account of miscellaneous/ irregularity of ₹ 93,00,000/- then the amount of ₹ 26,650/- confirmed by the CIT(A) is already covered by the said disclosure made by the assessee accordingly, the same is deleted. Addition made on account of difference between the surrendered recorded restricted by CIT(A) by applying the NP rate at 13.28% - HELD THAT:- The assessee in the statement recorded U/s 132(4) of the Act has made surrendered of ₹ 1,67,00,000/- on account of unaccounted expenditure of the assessee. During the course of the assessment proceedings, the AO noted that the actual account of expenditure recorded in the seized material is ₹ 1,73,72,171/- and there is excess expenditure of ₹ 6,32,171/- which was added to the income of the assessee. CIT(A) restricted the addition by apply the NP @ 13.28% which comes to ₹ 83,952/-. We find that this amount of ₹ 83,952/- is also covered by the miscellaneous surrendered of ₹ 93,00,000/- by the assessee on account of the sundry/irregularity in the accounts of the assessee. Accordingly without going into the other contention raised by the AR when this amount is also covered by the said miscellaneous surrendered the addition is not justified and the same is deleted. Appeal filed by the assessee are allowed.
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