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2016 (1) TMI 677 - ITAT PUNE

2016 (1) TMI 677 - ITAT PUNE - TMI - Unexplained cash paid for acquiring the right to dredge sand - CIT(A) deleted the addition on the ground that the assessee had explained the source of funds which is from agricultural income of the Chumble family which was kept in common family pool and it was introduced in the business as and when required - Held that:-Considering the family holding of 93 Acres of agricultural land, where different crops such as Grapes, Khurasana, Tomato, Masur, Groundnuts a .....

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th the enclosures, during the course of assessment proceedings, we find the AO in a cryptic manner has merely mentioned that “moreover there appears to be a common source of fund”. Once the AO accepts that there appears to be a common source of fund and when the family of the assessee owns more than 93 acres of agricultural land on which various crops are grown, therefore, we find force in the submission of the Ld. Counsel for the assessee that the money available from such agricultural activity .....

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d in the return of income, the Ld.CIT(A), in our opinion, was not justified in deleting the same. We accordingly reverse the order of the CIT(A) on this issue and the addition of ₹ 2,10,000/- made by the AO is restored. - Decided against assessee

Disallowance of expenses - CIT(A) deleted the addition - Held that:- From the assessment order, we find when the AO asked the assessee to produce the details of expenses incurred for truck hiring charges, diesel and petrol expenses, rep .....

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is allowed. - Decided in favour of revenue

Estimation of income from truck hiring business - Held that:- We find admittedly the assessee had declared Nil income in the return filed in response to notice u/s.153A despite declaration of additional income of ₹ 10,00,000/- and another ₹ 4,53,000/- on account of error and omission. Therefore, since the assessee has not maintained proper books of account from truck plying business, the income of the assessee has to be estimated .....

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e profit and loss account the assessee has debited petrol and diesel expenses of ₹ 13,84,767/- and repair expenses of ₹ 4,68,000/- against the lorry hiring charges of ₹ 12,71,515/-. The ratio of expenditure as compared to the preceding assessment year was very high. The AO, therefore, held that the assessee cannot incur loss from the truck business. Further, since the assessee was unable to produce bills and vouchers etc., the AO applied the provisions of section 44AE. Since we .....

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red by the assessee during the course of search should have been taxed over and above the income determined by the AO? - Held that:- We find the assessee in the instant case has not filed his return of income for the impugned assessment year before the search. Although he had declared additional of ₹ 12,12,500/-, however, the assessee has not honoured the same while filing return of income and has declared NIL income by filing profit and loss account in which the additional income has been .....

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regarding sales and expenses of scrap business, the AO estimated the scrap sale and determined the profit on reasonable basis. Under these circumstances, we uphold the order of the AO in bringing to tax the amount of ₹ 1,65,559/- on account of suppressed sale of scrap. Ground raised by the Revenue is accordingly allowed. However, since we are holding that the income of the assessee cannot be below ₹ 12,12,500/-, therefore, no separate addition of ₹ 1,65,559/- is required.
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is called for as the same will take care of ₹ 71,313/-. - ITA Nos.1575, 1576/PN/2011 - Dated:- 6-11-2015 - SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM For The Assessee by : Shri Nikhil Pathak For The Department by : Shri B.C. Malakar ORDER PER R.K. PANDA, AM : The above 2 appeals filed by the assessee are directed against the separate orders dated 19-09-2011 of the CIT(A)-I, Nashik relating to Assessment Years 2005-06 & 2007-08 respectively. For the sake of convenience, both the app .....

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ble group of cases at Nashik. The residential and business premises of the assessee were also covered during the said search action. In response to notice u/s.153A which was served on the assessee on 04-08-2002, the assessee filed return of income declaring total income of ₹ 16,41,360/-. It may be pertinent to mention here that the assessee in the original return filed on 31- 10-2005 had declared income of ₹ 1,71,360/-. The additional income declared in the return filed in response t .....

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since 01-04-2002. From the replies obtained it was gathered that the Tahsildar, Malegaon had allotted a contract to Waman P. Chumble, brother of the assessee for mining/dredging of sand at Chinchwad site for ₹ 35 lakhs for the period 04-10-2004 to 31-07-2005. The amount has been paid in cash. On verification of records of Waman P. Chumble the AO noted that the said payment has not been accounted for. When it was confronted, the assessee vide letter dated NIL submitted in the office of the .....

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members. However, the source of funds is a common family pool managed by Shivaji Chumble and hence should be considered in his hands. 4. The AO noted that the assessee has not been able to furnish either the names or confirmation of any of the socalled partners and that the assessee himself has admitted that the business is carried out by him. The assessee merely stated that although the contract is in the name of Waman P. Chumble but the business is carried out by the assessee out of common po .....

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to the AO made it clear that cash was collected and deposited in the name of Waman Chumble but was accepted by Shivaji Chumble. Moreover, there appears to be a common source of fund. Thus, according to the AO the assessee is solely and completely responsible for the contract amount of ₹ 35 lakhs and any income generated out of the same. 4.1 The AO asked the assessee to explain the source of the cash payment of ₹ 35 lakhs for acquiring the right to dredge sand at Chinchwad/Aadhar. Rej .....

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6. Before CIT(A) it was submitted that while making the addition of ₹ 35 lakhs the AO completely ignored the common pool funds of members of Chumble family which has been sourced mainly out of agricultural income from the land admeasuring more than 93 acres owned by the members of the family. The observation of the AO at page 4 of the assessment order was brought to the notice of the CIT(A) where the AO has observed that there appears to be a common source of funds and that the assessee h .....

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come of ancestral lands is ₹ 39,55,937/-. The said income being mainly from ancestral lands of HUF have not been credited to capital account of individual members of Chumble family as the said land belongs to HUF. The details of land holding, 7/12 extracts, crop grown, quantity of agricultural produce, gross agricultural income and net agricultural income after expenses were filed before the AO during the course of assessment proceedings. In the details filed before the AO it was submitted .....

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te contention it was submitted before the CIT(A) that as per trade practice in respect of sand auction various parties come together and jointly contribute towards deposit for sand auction and accordingly in proportion of contribution made extract sand from the river. This practice is prevailing as the auction cannot be accepted jointly but in the name of a single person. This fact is also evident from the seized material in respect of other two auctions at Chinchwad and Aadhar wherein the share .....

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f 40.19% comes to ₹ 14,06,650/- and the source of the said payment has been explained out of agricultural income of the assessee, therefore, no addition on this account is justified. 8. Based on the arguments advanced by the assessee the Ld.CIT(A) deleted the addition by observing as under : 8. I have carefully considered the facts of the case, the assessment order and the rival submissions. On perusal of the same, It has been observed that the only dispute is regarding the source of the p .....

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16/9/2005 i.e. prior to the payment of deposit for sand contract. The appellant vide letter dated 15/12/2010 has filed details of agricultural income earned by the members of the Chumble family. The appellant has filed 7/12 extracts of the agricultural lands admeasuring 93.78 acres showing crops grown on the said land. The appellant has worked out quantum of agricultural produce of crops grown on the basis of established norms published by various institutions and authors including Rahuri Krishi .....

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es and vegetables. The net income worked out by the appellant of the members of Chumble family for F.Yrs. 2002-03 to 2008-09 and cumulative balance available in the common family fund as submitted by the appellant is as under: Net Agricultural Income earned, agricultural income introduced in the business, agricultural income used for household expenses and balance kept in common family pool fund considering opening balance of the pool at ₹ 7,25,000/- on 1/4/2002. Financial year Net Agri.in .....

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07-08 38,63,850 14,29,874 2,90,000 21,43,976 1,00,88,557 The appellant has claimed that the per acre agricultural income from grapes and other crops is very reasonable. In support of this claim, the appellant has filed tabular chart as under : A.Y. Net Agricultural income Area of land under cultivation Area under grape cultivation Net Agricultural income from grape Income per acre for grape Income per acre for other crops 2003-04 14,83,440 49.54 12.25 9,92,880 81,051 13,155 2004-05 12,49,284 27. .....

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Rahuri Krishi Vidyapith, sale rates of various crops for the years under appeal, certified by Krishi Utpanna Bazar Samiti, Nashik. The appellant has claimed the source of deposit of ₹ 35,00,000/- for the sand contract is out of common family pool fund sourced by agricultural income. From the tabular chart filed by the appellant, the cumulative balance in family pool fund as on 1/4/2004 and 31/3/2005 was ₹ 18,07,714/- and ₹ 35,72,132/-. The payment of deposit for sand contract h .....

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refore, the total balance claimed to be available upto the date of deposit is ₹ 26,57,714/-. Considering the totality of the facts and to meet ends of justice the amount available for deposit for sand contract is considered at ₹ 25,00,000/-. The addition made by the A.O. at ₹ 35,00,000/- is reduced to ₹ 10,00,000/-. The other claim of the appellant is that the sand contracts are obtained in partnership with various other persons as is evident from seized material, as per .....

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se of the contract under consideration, no such notings are found in the seized material. Further, the appellant has also not submitted to the A.O. names or confirmations of the parties who were claimed to be partners in the sand contract. In view of the above facts, the alternative contention of the appellant is rejected. In view of the above facts and discussion, the A.O. is directed to delete the addition on account of unexplained deposit paid for sand contract out of undisclosed income to th .....

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o tax. 10. Based on the arguments advanced by the assessee the Ld.CIT(A) deleted the addition of ₹ 2,10,000/- by observing as under : 9.1 I have carefully considered the facts of the case, the assessment order and the rival submissions. On perusal of statement of computation of income filed by the appellant, it has been noticed that the appellant has offered to tax sundry creditors of ₹ 14,39,000/- which are infact towards payment paid off by the appellant and offered to tax as paid .....

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T 51 ITR 457 3. CIT Vs. S. Millappan 66 ITR 722 4. CIT Vs. Vyankateshwara Timber Depot 222 ITR 768(AP) 5. CIT Vs. K.S.M. Guruswamy Nadar & Sons 149 ITR 127 (Mad) 6. ITO Vs. Republic Poultry Foods 45 ITD 359 (Chd.) The addition of ₹ 2,10,000/- is, therefore, deleted. This ground of appeal is allowed. 11. Aggrieved with such order of the CIT(A) the Revenue is in appeal before us with the following grounds : 1. On the fact and circumstances of the case the Ld. CIT(A) erred in deleting the .....

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en submitted during assessment proceeding. 4. On the fact and circumstances of the case the Ld. CIT(A) erred in admitting the evidence regarding availability of agricultural income belonging to HUF in contravention of Rule 46A of the Act. 5. On the fact and circumstances of the case the Ld. CIT(A) erred in accepting assessee's plea that the undisclosed income on account of sundry creditors are at par with sand dredging as no such activities were declared in returns for A.Y. 2005-06 & 200 .....

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that may be urged at the time of hearing. 12. The Ld. Departmental Representative strongly challenged the order of the CIT(A). He submitted that the assessee has not disclosed any agricultural income in the return filed. During the search it was found that Chumble group have shown agricultural income of HUF in individual returns of income. During the course of search although the assessee was asked to furnishe the details of agricultural income along with documentary evidence in support of the .....

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to his capital account as agricultural income from HUF. 13. However, the assessee has put forward claim of agricultural income only hypothetically. No bills for agricultural produce were submitted. Further evidences like books published by institutions and agricultural college, rates of Krishi Utpanna Bazar Samiti were accepted by the CIT(A) at the back of the AO in contravention of provisions of Rule 46A. No remand report was called from the AO. Referring to the decision of the Pune Bench of th .....

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₹ 2,10,000/- is concerned, the Ld. Departmental Representative submitted that such deletion is not at all correct because the assessee had declared the income on account of sundry creditors and not from any other income. The income from sand dredging business was not disclosed in his returns. The return for A.Y. 2005-06 onwards have been filed after the search. Since the assessee has not disclosed any income on account of sand business, therefore, the creditors arising on account of sand .....

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ter dated 15-12-2010 addressed to the AO had categorically mentioned that the Chumble family owns 93.78 acres of agricultural land where crops such as Grapes, Khurasana, Tomato, Masur, Groundnut and Vegetables are produced. The details of agricultural income of the family was also filed before the AO which was worked out by considering crops grown, production of agricultural produce from crop, sale price of the agricultural produce on the basis of the average market price of the agricultural inc .....

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e. The assessee himself has admitted that this business is carried out by him out of a pool of funds belonging to the family. He has further stated that this issue should be considered in his hands. The contention of the assessee is acceptable since page 13 of Annexure A-2/20 shows that on 15-07-2005 and 24-08-2005 ₹ 5.50 Lacs and ₹ 10 Lacs have been given to Shivaji Appa , i.e. Shivaji Chumble in respect of Chinchwad contract on behalf of Vaman Chumble. Again on 04-09-2005 and 16-09 .....

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of the same. 16. He submitted that the HUF does not own any bank account. Since the agricultural income of the family has been utilized by the members of the family for the auction purpose, therefore, the CIT(A) was fully justified in deleting the addition. Moreover, although number of persons have participated in the auction but the auction can be allotted in the name of only one person which in the instant case is the assessee. Therefore, the common pool of fund available in the family has bee .....

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alati showing that the crops were grown subsequent to 2007. Infact the inspector of the concerned ward had visited the spot and had reported that no agricultural activity was carried out on the said land and the land is a Jirayat land, i.e. barren land. Therefore, the said decision cannot be applied to the facts of the present case. 18. So far as addition of ₹ 2,10,000/- by the AO is concerned, he submitted that the CIT(A) was fully justified in deleting the addition. 19. We have considere .....

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ly which was kept in common family pool and it was introduced in the business as and when required. Considering the family holding of 93 Acres of agricultural land, where different crops such as Grapes, Khurasana, Tomato, Masur, Groundnuts and Vegetables are produced and considering the quantum of agricultural produce on the basis of established norms published by various institutions and authors and the rate for such agricultural produce certified by Nashik Krishi Utpanna Bazar Samiti, the Ld.C .....

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Proceeding for the Assessment Year 2003-04 to 2007-08. With reference to the above mentioned subject it is humbly submitted to your honour is as under : At the outset it is humbly submitted that Chumbale family, i.e. Shri Pandurang Chumbale and his forefathers owned agricultural land at village Gaulane Tal. and Dist. Nashik. The family is basically agriculturist family. Out of the agricultural income of the family the members of the family have acquired substantial agricultural land at various .....

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oundnut and Vegetable. The details of agricultural income of the family are enclosed. The said income has been worked out by considering crops grown, are under cultivation of each crop, production of agricultural produce per acre sale price of the agricultural produce on the basis of average market price of the agricultural income. The said income for the family has been used by members of the family as and when required. Thanking You Yours faithfully, Sd/- (Shivaji P. Chumbale) Enclosures : 1) .....

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ears to be a common source of fund and when the family of the assessee owns more than 93 acres of agricultural land on which various crops are grown, therefore, we find force in the submission of the Ld. Counsel for the assessee that the money available from such agricultural activity is sufficient to meet the auction money required for the sand business. 21. So far as ground by the Revenue regarding violation of Rule 46A is concerned we do not find much substance in the same in view of the lett .....

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). Admittedly, the assessee has not declared any income from sand business activity. The additional income so declared in the return filed in response to notice u/s.153A is on account of writing off of certain sundry creditors. Therefore, once the income from sand business was not specifically declared in the return of income, the Ld.CIT(A), in our opinion, was not justified in deleting the same. We accordingly reverse the order of the CIT(A) on this issue and the addition of ₹ 2,10,000/- .....

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mitted additional income of ₹ 10 lakhs for the year under consideration and ₹ 4,53,000/- on account of error and omission for 6 years in the hands of all family members. The AO noted that during the year under consideration the assessee has credited an amount of ₹ 2,12,500/- to the profit and loss account on account of error and omission. The assessee accordingly admitted and made total declaration of additional income of ₹ 12,12,500/- for A.Y. 2007-08. However, in the pr .....

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in the profit and loss account could not be substantiated along with bills and vouchers. Since the Authorised Representative of the assessee expressed his inability to furnish such details the AO applying the provisions of section 44AE determined the income from truck hire charges at ₹ 13,45,000/- the details of which are as under : 1. Income from truck applying estimated u/s. 40AE Rs.1,33,000 2. Additional income declared during the course of search Rs.10,00,000 3. Income on account of e .....

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om the sand auction, the auction amount of which was ₹ 45,55,555/- for the year. The AO also made addition of ₹ 71,313/- on account of brick business by estimating profit @10% on sale value of material of ₹ 7,13,133/-. 26. Before CIT(A) the assessee vehemently challenged the order of the AO in making the various additions. It was submitted that books of account were audited and duly supported by bills and vouchers which were produced before the AO. Therefore, the AO was not jus .....

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the auction should not have been added in the hands of the assessee. 28. The estimation of profit from sand business was also challenged stating that the profit estimated by the AO is covered by the income of ₹ 12,12,500/- credited to the profit and loss account towards undisclosed income and therefore no separate addition is required. Similar argument was advanced for addition of ₹ 71,313/- from the profit on sale of bricks. Non allowance of deduction u/s.80C at ₹ 1 lakh by t .....

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t without any basis. The Ld. CIT(A) also erred in not appreciating the fact that assessee was unable to produce evidence regarding expenditure vouchers and bills and that fact was admitted by the A. R. of the assessee during assessment proceeding which is on record. 2. On the fact and circumstances of the case the Ld. CIT(A) erred in deleting the addition of ₹ 1,33,000/- made towards estimation of truck hiring business. The Ld. CIT(A) erred in not appreciating the fact that in absence of e .....

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t and circumstances of the case the Ld. CIT(A) erred in deleting the addition of ₹ 12,12,500- which was found credited to profit & Loss account. The Ld CIT(A) erred in not appreciating that the income declared at ₹ 12,12,500 u/s. 132(4) of the Act is an additional income, which is district from business income, and should not have been credited to the Profit and Loss account. 5. On the fact and circumstances of the case the Ld. CIT(A) erred in deleting the addition of ₹ 1,6 .....

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not taking into cognizance the fact that the addition was made on the basis of seized documents. 7. On the fact and circumstances of the case the Ld. CIT(A) erred in accepting assessee's plea that payment for sand auction has been made out of common pool funds of the family generated out of agricultural activities. The Ld. CIT(A) erred in not appreciating the fact that no evidence of agricultural income was found at the time of search or has been submitted during assessment proceedings. 8. .....

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me from sand business is regular business income and cannot be treated as part of declaration of additional income of ₹ 12,12,500/- under section 132(4) of the Act. 10. On the fact and circumstances of the case the Ld. CIT(A) erred in deleting the addition of ₹ 71,313/- on account of profit on sale of bricks. The Ld. CIT(A) also erred in not appreciating the fact that addition is made to regular business income on the basis of seized documents and assessee's own admission, which .....

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order, we find when the AO asked the assessee to produce the details of expenses incurred for truck hiring charges, diesel and petrol expenses, repairs and maintenance expenses, scrap sales, sale of bricks etc. the Authorised Representative of the assessee expressed his inability to furnish the requisite information. The assessee had not provided the various details as called for by the AO during assessment proceedings. Under these circumstances, the CIT(A) in our opinion was not justified in a .....

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ion. Therefore, since the assessee has not maintained proper books of account from truck plying business, the income of the assessee has to be estimated as per provisions of section 44AE. Although the AO has computed such income at ₹ 1,33,000/-, however, the income declared by the assessee at ₹ 12,12,500/- which we are upholding in the subsequent paragraphs will take care of this issue. Therefore no separate addition is called for. Ground raised by the Revenue is accordingly dismisse .....

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es of ₹ 12,71,515/-. The ratio of expenditure as compared to the preceding assessment year was very high. The AO, therefore, held that the assessee cannot incur loss from the truck business. Further, since the assessee was unable to produce bills and vouchers etc., the AO applied the provisions of section 44AE. Since we have upheld the above action of the AO, therefore, we hold that the CIT(A) was not justified in giving set off of loss of ₹ 2,78,533/- from the income offered to tax .....

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this additional income to the profit and loss account and adjust various other expenses and declare Nil income. 36. After hearing both the sides, we find the assessee in the instant case has not filed his return of income for the impugned assessment year before the search. Although he had declared additional of ₹ 12,12,500/-, however, the assessee has not honoured the same while filing return of income and has declared NIL income by filing profit and loss account in which the additional i .....

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assessment proceedings the assessee was unable to produce the monthly details regarding sales and expenses of scrap business, the AO estimated the scrap sale and determined the profit on reasonable basis. Under these circumstances, we uphold the order of the AO in bringing to tax the amount of ₹ 1,65,559/- on account of suppressed sale of scrap. Ground raised by the Revenue is accordingly allowed. However, since we are holding that the income of the assessee cannot be below ₹ 12,12,5 .....

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