TMI Blog2016 (1) TMI 529X X X X Extracts X X X X X X X X Extracts X X X X ..... he time of survey, which has been explained by the ld AR. The ld DR has not controverted the finding given by the ld CIT(A), therefore, we uphold the order of the ld CIT(A). - Decided against revenue - ITA No. 127/JP/2014 - - - Dated:- 21-10-2015 - SHRI T.R.MEENA, AM SHRI LALIET KUMAR, JM For The Revenue : Shri Rajendra Singh (JCIT) For The Assessee : Shri P.C. Parwal (CA) ORDER PER T.R. MEENA, A.M. This is an appeal filed by the revenue against the order dated 13/12/2013 of the learned C.I.T.(A)-IIl, Jaipur for A.Y. 2010-11. The sole ground of appeal is reproduced as under:- On the facts and in the circumstances of the case, the ld CIT(A) has erred in deleting the addition of ₹ 80,99,430/- made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee s reply, the ld Assessing Officer held that in the statement of Sh. Dilip Kalra, Director the assessee company recorded on 12/3/2010 had admitted that the total income of the company in the current year was liable to be about 5.62 crores including surrendered amount of ₹ 1,62,81,065/-. For further clarification, statement of Shri Dilip Kalra is reproduced as under:- Image No. 1 It is clear that the assessee admitted that additional income of ₹ 5.62 crores during the survey proceedings whereas the assessee filed declared income of ₹ 1,81,00,570/-. The assessee s contention that the regular income estimated by the assessee was not based on the books of account, had not found convincing to the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and same was found to be correct recorded. The statement was given by the Director is also clear and without any confusion. The statement recorded U/s 133A has evidentiary value. He further relied on the decision in the case of Surjeet Singh Chharba Vs. Union of India 1997 (89) E.L.T. 646 wherein confessional statement given by the assessee before the custom officials though retracted within 60 days, the admission is binding on the assessee. He further relied on the decision in the case of Hiralal Maganlal Co. Vs. DCIT 96 ITD 113 and Dhunjibhoy Stud Agricultural Farm Vs. DCIT 82 ITD 18 and the Hon ble Bombay High Court decision in the case of Meghraj jain Vs. UOI (2009) on FERA admission. Therefore, the ld Assessing Officer added ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regular income. It was not confirmed regular income since there were 20 days left before the end of accounting year. Appellant submitted that while giving statement in respect of the estimation of regular income, claim of depreciation as per IT Act, interest to directors and other provision and expenses to be provided at the year end were not considered. If all these are considered then the regular income for the year would be around ₹ 4 crores. Therefore appellant submitted that statement was not retracted although it was only about likely regular income which need not be same on finalization of accounts and audit. Appellant also submitted that as per the latest Hon'ble Supreme Court decision, statement recorded during survey has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant regarding regular income, there is no retraction since depreciation, director s interest and other provisions are year-end adjustments permitted under Income Tax Act. The decision of Hon'ble Supreme Court in the case of Kadarkhan reported in 352 ITR 480 will not allow Assessing Officer to make addition solely on the basis of statement recorded during survey. Considering all these facts and judicial decisions, I do not find any basis for making addition to the regular income without finding any mistake just of the basis of statement of likely income. Accordingly, addition made by the A.O. is deleted. 4. Now the revenue is in appeal before us. The ld DR has vehemently supported the order of the Assessing Officer. At t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was also not considered while stating the probable regular income at the time of survey. (iii) After considering the above two amounts, of ₹ 68,43,068/- (3893445 + 2949623) the difference between the probable regular income as stated in course of survey and that actually worked out remains at ₹ 12,56,362/- (8099430 - 6843068). This difference is for the reason that at the year-end various expenditures like audit fees, director's remuneration, provisions for outstanding liabilities, claims etc. are provided. (iv) In the statement assessee has only stated the probable regular income as per books at ₹ 4 crores. This can't be considered as sacrosanct. After finalization of the accounts, the regular income as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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