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TMI Blog2014 (5) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... se and prejudicial to the assessee. 02. On appreciation of the facts and circumstances of the case and law, the additions made are contrary to law and based on erroneous understanding of the facts of the case. 03. On appreciation of the facts and circumstances of the case and law, the Learned Commissioner of Income Tax (Appeals) has erred in confirming the action of the Learned assessing Officer treating of Rs. 32,70,000/- alleged to have been received in cash from sale of shops as undisclosed income earned by the appellant company. The action of the Learned Commissioner of Income Tax (Appeals) is contrary to the facts and law and deserves to be deleted. 04. the appellant craves to add, amend, modify or alter the above grounds of appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter considering the submissions of the assessee, partly allowed the appeal thereby the addition of Rs. 3,29,64,000/- was deleted and addition of Rs. 32,70,000/- was sustained. Against the confirmation of addition of Rs. 32,70,000/- by the ld.CIT(A), the assessee has filed the present appeal before us. 3. Ground Nos.1 & 2 are general in nature, therefore need no separate adjudication. The only effective ground is ground No.3 which is against the confirmation of addition of Rs. 32,70,000/-. 3.1. The ld.counsel for the assessee submitted that the addition has been made on the basis of the statement recorded during the course of survey. He submitted that the statement made by one of the Directors of the assessee-company was retracted vide le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a statement of one of the purchasers who has categorically stated that out of Rs. 4,75,000/-, only receipt of Rs. 1,80,000/- has been issued, meaning thereby that the assesseecompany ahs concealed the receipt of balance amount. He submitted that the statements of Shri Rashmin Mahendra Abhoti and Shri Jay Chandrakant Patel have to be read together. He strongly relied on the orders of the authorities below. 5. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. The submission of the ld.counsel for the assessee is of two folds. Firstly, that the statement made during the course of survey u/s.133A of the Act has no evidentiary value. Secondly, the Revenue has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aration made at the time of survey. In view of these facts we are of the view that no addition can be made only on the basis of admission during the course of survey. We thus direct the deletion of the addition made. Thus this ground of the assessee is allowed." 5.1. The ld.counsel for the assessee has also relied on the decision of Hon'ble Apex Court rendered in the case of CIT vs. S.Khader Khan Son in Civil Appeal Nos.13224 of 2008 & 6747 of 2012, dated 20th September-2012, whereby the appeal filed by the Revenue was dismissed. The ld.Sr.DR has relied on the order of the authorities below. The AO made the addition on the basis of a statement given during the course of survey. The ld.CIT(A) has upheld the action of the Assessing Officer b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that money was received in cash except that statement was made by one of the Directors of the company during the course of survey. The ld.CIT(A) has held that the retraction letter of the assessee is not valid without giving any reason. We also find that the ld.CIT(A) has not taken into account the decision of the Hon'ble Madras High Court rendered in the case of CIT vs. Khader Khan Son reported at (2008) 214 CTR 589 (Mad.) and the appeal filed by the Revenue before the Hon'ble Apex Court. Therefore, ld.CIT(A) was not justified in confirming the action of the AO and moreover the Revenue has not placed any independent material on record to substantiate the addition. Under these facts, the addition to the extent of Rs. 2,95,000/- only (Rs.4, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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