TMI Blog2020 (4) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... law and we direct the ld.AO to delete the additions. - Decided in favour of assessee. - ITA No. 882/Ahd/2017 - - - Dated:- 12-2-2020 - Shri Sandeep Gosain, Hon'ble Judicial Member And Shri O.P. Meena, Hon'ble Accountant Member For the Assessee : Shri Rajesh Upadhyay , A.R. For the Revenue : Shri Anupma Singla, Sr. D.R. ORDER PER : SANDEEP GOSAIN, JUDICIAL MEMBER:- The present appeal has been filed against the order of ld. CIT(A) on the ground mentioned herein below:- 1. On facts and circumstances of the case as well as on law, Ld. CIT(A) has erred in law and on facts to sustain addition for ₹ 3,28,300/- being difference in stock found during the course the survey dtd. 134-03-2008. 2. Brief facts of the case are that assessee is engaged in the business of selling on whole sale and retail basis. Therefore, survey action on 04-03- 1982 on the premises of the assessee and accordingly the case was taken under scrutiny and assessment was finalized determining the total income at ₹ 7,85,935/- as against return of income of ₹ 4,45,333/- 3. Aggrieved by the order of the assessing officer, the assessee has preferred appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax on the same. As such, the un-accounted investment in stock to tune of ₹ 3,28,300/- is the deemed income of the assessee within the meaning of section 69 of the I. T. Act, 1961. Therefore, the same is added to the total income of the assessee. Thus the AO has made addition only because of appellant's admission during survey or post survey statement recorded by the department under section 133A of the I. T. Act Honorable CBDTas well as Honorable Apex court has held that addition on the basis of assessee's admission during search or survey cannot be made unless such additions are supported by corroborative evidences. Reliance is placed on... (a) . CBDT Circular No.286/2/2003 dated-10-3-2003. (b) . Apex court decision in the case of CIT vs. KHADER KHAN SON (SC) reported in 254 CTR 228, in which it has been held as under: Addition on the basis of statement recorded during survey u/s 133A does not empower any IT authority to examine any person on oath and, therefore, any admission made in a statement recorded during survey cannot, by itself, be made the basis for addition. Copy of head note of judgment is enclosed. (c) . Jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a copy of auditor's report for your kind consideration and ready reference. In the said audit report details of quantity of wine and beer traded during the year is fully given by the auditors in Annexure - VIII is fully given. Further, in profit loss account following figures is appearing. Debit Side Credit Side Particulars Amount Particulars Amount Opening stock 60,02,144.12 Gross sale 73,74,506.25 Purchase 5,09,321.00 Closing stock 4,63,368.73 Godown expense License fees 45,725.00 Gross Profit 12..80,684.86 Total 78,37,874.98 Total 78,37,.874.98 Gross profit in % 17.37% In the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of difference in stock found during the course of search in the case of the assessee on 14-03-2008 and in this respect the assessing officer has categorically mentioned in his order that Shri Ganpatbabubhai Patel, the key person who was looking after affairs was confronted on various papers annexures BF-1 to BF-15 found during search, and on his statement the difference in stock was found and accordingly a sum of ₹ 3,28,300/- was treated as unexplained investment in stock and thus the said amount was treated deemed income of the assessee within the meaning of section 69 of the Income Tax Act. We also noticed that assessee at the first instance had replied that the purchase made during the year from time to time was amounting to ₹ 5,09,321/- which also included the alleged unaccounted purchase of ₹ 3,28,300/- explaining sales are also reflected in the total sales accounts. The assessee had also categorically mentioned that during search proceedings, physical inventory of stock was found at ₹ 10,86,444/- as against inventory prepared as per books at ₹ 7,27,114/- thus there was difference of stock arrived at ₹ 3,28,300/- which was added by the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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