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2022 (6) TMI 798 - ITAT VISAKHAPATNAMAdmission of income pursuant to survey operation u/s 133A - Assessee voluntarily agreed to admit towards unaccounted sales - purchases of 10.3 Kgs of bullion from SVBV Gold and RK Gold -Double addition - HELD THAT:- We note from the records available before us that there is no material evidence for the unaccounted purchases for effecting the sales of Rs. 3 Crores that was found during the time of survey. Further, the survey team has found a deficit stock of 696.787 grams at the time of survey which includes the unaccounted sales admitted by the assessee for 8786.872 grams. The assessee also admitted that this cash sales amount was deposited into the bank account and alongwith the balance available in the bank account, the assessee has utilized for the purchases of 10.3 Kgs of bullion from SVBV Gold and RK Gold. The explanation of the Ld. AR that the payments were made through bank account and the purchases were disclosed and included in the stock, in the books of account, cannot be denied. We also observe that these purchases were made before the date of survey i.e on 25.11.2016. Therefore, we are of the view that the purchases are already recorded in the books of account and also accounted for in the stock of gold at the time of survey, and we note that only the sale of 8786.872 grams amounting to Rs. 3,10,69,393/- remains unaccounted in the books of account at the time of survey. We disagree with the contention of the Ld. AO that there are unaccounted purchases for making these unaccounted sales based on the fact that if unaccounted purchases are included in the stock at the time of survey the deficit stock would have been far more higher than 696.787 grams at the time of survey. In view of the above findings, we are of the considered view that a separate addition of unaccounted sales is not required. If the assessee did not adhere to the surrender made during the survey, it was for the AO to bring on record cogent material or other evidence to support the additions rather than rely on the statements simpliciter. We do not find any cogent material or other evidence brought in by AO to support the admissions made during survey. In view of the above, we find that there is no infirmity in the order of the Ld. CIT(A) and no interference is required on this ground. Revised return u/s 139(5) - Admission of additional ground by the Ld. CIT(A) - AR submitted that since the due date of filing the revised return was time barred, the assessee could not file the revised return and hence raised the additional ground raised before the Ld. CIT(A) - DR submitted that the additional ground admitted by the Ld. CIT(A) is not in accordance with law - HELD THAT:- We find from the arguments of Ld.AR, that the assessee on the inability to file the revised returns u/s 139(5) of the Act could not revise the original return where the income was wrongly admitted. We have heard the rival contentions and we find merit in the arguments of the Ld. AR that since the due date of filing the revised return of income U/s. 139(5) was time barred, the assessee has raised the additional ground before the Ld. CIT(A). The Ld.CIT(A) considering the merits has rightly allowed this additional ground of the assessee, and hence the ground raised by the Revenue is dismissed. Addition as per the income returned by the assessee at the time survey u/s. 133A - AR argued that this amounts to double taxation ie., once on the basis of unaccounted sales and again taxing the same amount based on the admission by the assessee during the survey proceedings is not valid in law - HELD THAT:- We have considered the rival contentions and we disagree with the contention of the Ld. DR that there are unaccounted purchases for making these unaccounted sales. If unaccounted purchases are included in the stock at the time of survey the deficit stock would have been far more higher than 696.787 grams at the time of survey. Therefore we are of the considered view that this these grounds raised by the Revenue is not sustainable and since the issue have already been adjudicated in earlier para, needs no further adjudication.
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