TMI Blog2011 (12) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... and confirmed on oath u/s.131 of the I.T. Act. II. The learned CIT (A) has erred on facts and in law and in the circumstances of the case in not appreciating the facts that the DEPB income has arising out of the export activity of the assessee and not from the manufacturing of production activity of the assessee and the said income is not derived from the Industrial Undertaking. Failed to appreciate the facts that the assessee in his statement on oath u/s.131 of the I.T. Act, accepted the inflation in expenses claimed and now reflected as liability on account of Sundry creditors for goods and expenses and offered additional income of ` 35 lakhs as per the provision of Sec.41(1) of the I.T. Act for the A.Y. 2002-03 and undertook to make ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respond to the various notices issued by the A.O. In the said assessment, the assessee s income was determined u/s.44AD as the assessee was engaged in the business of the civil construction. After calling the information from the bank where the assessee was maintaining his account. There was survey action against the assessee on 13.08.2002 u/s.133A of the Act and during the course of the survey the assessee had declared ` 35 lakhs as his additional income over and above the income for the A.Y. 2003-04. The Ld. CIT (A) Mumbai set aside the assessment order and directed the A.O. to reframe the assessment filed for the A.Y. 2003-04. As per the directions of the Ld. CIT (A) Mumbai the A.O. the A.O. proceeded to frame the fresh assessment in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting material was fond in the survey action to prove that the assessee has understated the income to the extent of ` 35 lakhs for the six assessment years and only on the estimate basis so called suppressed profit was determined. It was also pleaded that on the basis of the gross receipts of the preceding six years, the addition is made in the A.Y. 2003-04 and no where it is the case of the A.O. that to that extent the assessee has understated income for the A.Y. 2003-04. The Ld. CIT (A) accepted the plea of the assessee and deleted the entire addition and operative part of the order of the Ld. CIT (A) is as under:- 4.3 I have carefully considered the assessment order and the arguments and submissions of the AR as discussed above for de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1ed law that as per the scheme of the Income-tax Act, the income of an assessee for a particular pervious year relevant to the concerned assessment year is only to be assessed in the relevant assessment year. The income pertaining to one year cannot be clubbed or assessed in another assessment year. If the AO had valid reasons or evidence that the appellant has concealed or not disclosed income of a particular assessment year, the various provisions of the Act require that the concerned assessment year should have been reopened and the income so found and not disclosed in the relevant assessment should have been reassessed as pie law. However, from the facts as discussed above, the AO instead of following the required provisions of law, cho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s gross contract receipts credited in his bank account, in the absence of proper books of account maintained by the appellant. Therefore, based on these facts and aforesaid discussion, I am of the considered opinion that the AO is not justified in making such an addition of ` 35 lakhs in the ease of the appellant for the current assessment year. I also find that the declaration made by the appellant in the absence of supporting documentary evidences is of no use or help. If there is no evidence against the appellant to prove the above addition made, I am of the considered opinion that under the given circumstances, AO is not required to make the addition, just of the sake of making an addition. Nevertheless, even if it is construed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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