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Shri Mukund Bankatlal Bhattad Versus ACIT, Central Circle-2 (1) , Pune

2016 (5) TMI 919 - ITAT PUNE

Rectification of mistake - there being no retraction of the declaration of ₹ 28 Lakhs the decision of the Hon'ble Tribunal with the assumption that applicant has retracted the declaration and sustaining the addition of ₹ 17,23,824/- is not correct on facts - Held that:- We do not find any merit in the Miscellaneous Application filed by the assessee. The main thrust of the assessee in the Miscellaneous Application is that assessee has not retracted the declaration made that the amount .....

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quest of the assessee to rectify the order u/s.254 of the I.T. Act, in our opinion, amounts to review of its own order by the Tribunal, which is not permissible in law. The Tribunal has passed an elaborate and speaking order after considering the entire facts on record, the declaration made during the course of search/survey and the return filed in response to notice u/s.153A and has given reasons as to how & why the amount of ₹ 17,23,824/- has to be sustained. In our opinion, there is no .....

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Tribunal to rectify certain mistakes that have crept in the order of the Tribunal. 2. Facts of the case, in brief, are that the assessee is an individual and in response to notice u/s.153A dated 30-11-2007 had filed his return of income on 28-12-2007 declaring total income of ₹ 99,25,712/-. In this case a search u/s.132 of the I.T. Act was carried during which cash amounting to ₹ 45,92,723/- was found. The assessee in his answer to Question Nos. 25 and 29 had accepted the total undi .....

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er, in the return filed in response to notice u/s.153A the assessee has not offered the amount of ₹ 28 lakhs which was declared during the search as peak investment in the unaccounted business. The assessee however had included an amount of ₹ 18,11,873/- in the taxable income on account of sundry debtors. 2.1 The AO completed the assessment determining the total income at ₹ 1,14,66,740/- wherein an amount of ₹ 45,05,779/- on account of undisclosed income on account of cas .....

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guments made by both the sides, perused the orders of the Assessing Officer and the CIT(A) and the Paper Book filed on behalf of the assessee. We have also considered the various decisions cited before us. There is no dispute to the fact that during the course of search excess cash of ₹ 45,05,779/- was found out of which the assessee accepted ₹ 45,00,484/-. Similarly, during the course of search the assessee had also admitted additional income of ₹ 28 lakhs as undisclosed incom .....

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in the return of income. We find the CIT(A) confirmed the addition of ₹ 28 lakhs made by the AO on the ground that the assessee could not substantiate with concrete evidence to show that the statement given during the course of search was based on wrong facts. According to the CIT(A) the admission by the assessee during the course of search is a good piece of evidence and by making such statement the assessee prevented the AO from making further investigation on this issue. It is the subm .....

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will amount to double taxation. We do not find any force in the above argument of the Ld. Counsel for the assessee. The assessee was engaged in both accounted and unaccounted business. The assessee during the course of search has himself admitted additional income of ₹ 28 lakhs being the peak investment in the unrecorded purchases and sales. The above amount was over and above the amount of cash found during the course of search amounting to ₹ 45,05,779/-. The assessee by making a s .....

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ire amount of ₹ 28 lakhs cannot be added to the total income of the assessee. We find the assessee during the course of search has admitted unrecorded credit sales made by Shri Satnarayanan and Shri Raja Koli amounting to ₹ 10,08,141/- and ₹ 8,03,732/- respectively both totaling to ₹ 18,11,873/-. The above amount of ₹ 18,11,873/- relates to the unrecorded credit sales made by the two salesman of the assessee, i.e. Shri Satnarayanan and Shri Raja Koli. We find the AO .....

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e therefore are of the considered opinion that out of the addition made by the AO at ₹ 28 lakhs which has been upheld by the CIT(A) only an amount of ₹ 17,23,824/- only can be sustained. 16. It is an admitted fact that after declaring the amount of ₹ 28 lakhs the assessee has not retracted the statement immediately or thereafter. Only in the return filed in response to notice u/s.153A the assessee has not included the same in his total income although he had accepted the cash o .....

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e lower authorities as well as before us that the statement given during the course of search was on wrong assumption of facts or that the statement given during the course of search is untrue or false, therefore, we do not find any merit in the arguments of the Ld. Counsel for the assessee that addition of the same will amount to double taxation. However, as already mentioned earlier, the AO himself has noted in para 4.8 of his order that debtors to extent of ₹ 10,76,176/- relates to the .....

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and not applicable to the facts of the present case. In that case, the assessee was engaged in share transactions alleged to be penny stock companies where fraudulent transactions have taken place in connivance with some brokers. However, here the issue is addition of peak investment in unaccounted transactions which is based on the admission by the assessee during the course of search. We accordingly hold that the case decision relied on by the Ld. Counsel for the assessee is not applicable to .....

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ted 26.08.2015 is received 0n 15.09.2015. 2. On going through the said order the applicant believes that there is a mistake occurred in appreciating the facts relating to Ground No.1 raised in the appeal. In order to explain the mistake the relevant facts are briefly narrated herebelow: - i. The Assessing Officer made an addition of Rs, 28 lakhs on account of peak investment used in the circulation of unaccounted purchases and sales. The applicant has made the declaration for this addition of &# .....

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f ₹ 45,00,484/- for excess cash found and another amount of ₹ 28 Lakhs utilised in effecting the unaccounted sales and purchases, Appellant submitted that the amount of ₹ 28 Lakhs that has been utilised in effecting unaccounted sales and purchases obviously was out of the same excess cash found of ₹ 45,00,484/-. Therefore this addition of ₹ 28 lakhs gets covered in the amount of ₹ 45,00,484/- and consequently its separate offering was not warranted. iv. It was .....

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unt of ₹ 28 Lakhs may be considered as invested in purchases. Submission was made that in that case in the course of search there should have been the difference in stock of ₹ 28 Lakhs, while the stock difference found by the Assessing Officer was only ₹ 1,44,663/- and that too has been deleted by CIT(A). viii. Thus the addition declared of ₹ 28 Lakhs stands accepted in the form of debtors of ₹ 10,76,176/- arising out of unaccounted sales and purchases effected and .....

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bunal. The Hon'ble Tribunal however has only relied on the understanding that appellant ,has retracted the declaration and sustained the partial amount of ₹ 17,23,824/- by allowing the reduction of ₹ 10,76,176/- for debtors emerging out of unaccounted sales and purchases already included in ₹ 28 Lakhs. Thus as stated above and with utmost due respect, the Hon'ble Tribunal has erred in holding that applicant has retracted the declaration made of ₹ 28 Lakhs while th .....

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tribunal to the effect that "it is an admitted fact that after declaring the amount of ₹ 28 Lakhs the assessee has not retracted the statement immediately thereafter" . Submitted that at the outset there is no retraction at all. Therefore this observation is not correct. In the return filed in response to notice u/s. 153A this declaration of ₹ 28 Lakhs is offered for debtors at ₹ 10,76,176/- and for cash ₹ 17,23,824/- which is already included in the cash of  .....

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ransactions and that peak investment of ₹ 28 Lakhs does get covered in cash of ₹ 45,00,484/- to the extent of ₹ 17,23,824/- and debtors of ₹ 10,76,176/- offered. x. The applicant therefore submits that there being no retraction of the declaration of ₹ 28 Lakhs the decision of the Hon'ble Tribunal with the assumption that applicant has retracted the declaration and sustaining the addition of ₹ 17,23,824/- is not correct on facts. This in the humble and cons .....

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