TMI Blog2019 (4) TMI 1997X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness income for the year under consideration then the addition made by the AO based on the statement of the assessee recorded U/s 133A of the Act would be regarded as without any valid evidence disclosing undisclosed income of the assessee. Therefore, the said addition though accepted by the assessee would not ipso facto lead to the conclusion that the assessee has concealed particulars of income or furnishing inaccurate particulars of income. Assessing Officer has not substantiated the addition by making reference to any incriminating material or other information to indicate such undisclosed income. Therefore, in the facts and circumstances of the case where the addition made by the AO is purely on the basis of the statement record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rming penalty of ₹ 114525/- imposed by the Assessing Officer U/s 271(1)(c) of the I.T. Act, 1961. 2. The assessee is an individual and carrying on business of purchase and sale of utensils in the name and style of M/s Gaurav s Jain Steel Centre. The assessee did not filed any return of income U/s 139 of the Act for the year under consideration. A Survey U/s 133A of the I.T. Act was carried out on 13.02.2008 at the shop of the assessee. In the course of survey certain incriminating material was found and impounded disclosing purchase/ sale as well as other vouchers for the financial year 2002-03 onwards. The stock of utensils at the shop on the date of survey was also inventory and value by the survey team at ₹ 12,78,794/-. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee has submitted that even the AO has not considered the income disclosed by the assessee in the return of income while making the said addition but the addition was made over and above the income disclosed by the assessee in the return of income. Though the assessee has not challenged the addition made by the AO but the same would not automatically attracts the penalty/s 271(1)(c) of the Act when the said addition is not based on any incriminating material. In support of his contentions, he has relied upon the various decisions including the decision of Hon ble Supreme Court in case of CIT vs. S. Khader Khan Son 352 ITR 480 whereby the Hon ble Supreme Court has upheld the decision of Hon ble Madras High Court reported 300 ITR 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e year under consideration prior to the survey conducted on 13.02.2008. Even for the other subsequent assessment years the assessee did not file any return of income. On the basis of the incriminating material found during the survey as well as the stock at the shop of the assessee inventoried by the survey party the assessee disclosed and surrendered income for various assessment years from 2003-04 to 2008-09. The assessee surrendered the income of ₹ 3,00,000/- for the assessment year under consideration. Since, the assessee has not disclosed income in the return of income, therefore, the AO has made the addition of the said amount. He has relied upon the orders of the authorities below. 5. We have considered the rival submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration is only ₹ 92,300/- which was duly disclosed by the assessee in the return of income. The Assessing Officer has made the addition of ₹ 3,00,000/- solely on the basis of the statement recorded U/s 133A of the Act. We find that the said addition is not based on any incriminating material found or impounded during the survey but it was only surrendered made by the assessee U/s 133A of the Act. Even otherwise once the assessee has declared the income of ₹ 1,14,913/- then the surrendered made by the assessee included the business income as well as unaccounted stock for the year under consideration. In any case the addition could not be made to exceed surrendered made by the assessee. The addition made by the AO over and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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