TMI Blog2012 (8) TMI 1197X X X X Extracts X X X X X X X X Extracts X X X X ..... ustified in confirming the addition made by AO under the head long term capital gain of sales of property and assessed ₹ 16,98,978 as against ₹ 14,86,650 shown by the assessee and declared by the assessee applying the provisions made under section 50C of the I.T.Act, 1961. 5. Facts in brief are that assessee in the computation of total income has shown Long Term Capital Gain of ₹ 14,86,650. During the course of assessment proceedings, the AO, on perusal of details of capital gain, found that sale consideration of flat is shown by the assessee at ₹ 25,70,000. However, the market value of the said flat was determined by the Stamp Valuation Officer at ₹ 27,82,118. During the course of assessment proceedings, AO vide order sheet noting dt.22.12.2009 asked the assessee to explain why the value determined by Stamp Valuation Officer should not be adopted for calculation of capital gain. The assessee did not file any reply. Therefore, AO as per provisions of sub-section(1) of Section 50C of the I.T.Act, 1961, considered the value of consideration of the flat sold at the value as determined by Stamp Valuation officer and, accordingly, computed the Long Term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004-05) confirmed the action of AO. Hence, assessee is in further appeal before the Tribunal. 12. At the time of hearing, ld A.R. referred page 49 of PB, which is a copy of ledger account of M/s. Global (India) Hospitality Services Pvt Ltd in the books of account of assessee and submitted that the said amount of ₹ 5 lakhs was taken by the assessee during the course of its business transaction. He submitted that as on 1.4.2005, there was a debit balance and only in the month of March, 2006, when no amount was due from M/s. Global (India) Hospitality Services Pvt Ltd, assessee received a sum of ₹ 5 lakhs and the same was paid later on. He submitted that there were no loans or advances taken by the assessee and it was only a surplus amount with the assessee during the course of business transaction. Ld A.R. relying on the decision of ITAT, Mumbai in the case of Pravin Bhimshi Chheda vs DCIT, 141 TTJ (Mumbai) 58 submitted that when there was trade advance, in that case the provisions of section 2(22)(e) of the Act will not apply. 13. On the other hand, ld D.R. merely relied on the orders of authorities below and did not controvert the submissions of ld A.R. 14. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I have considered the issue. The statement recorded u/s.131 of the Act has offered an amount of ₹ 3 lakhs as unexplained expenses including speed money of ₹ 2 lakhs. However, the additional amount offered for taxation as additional income was not offered to tax in the return of income filed by the appellant in the return of income filed by the appellant in A.Y. 2006-07 nor given any explanation. During the course of survey, some cash vouchers were confronted to the appellant, which were also impounded. The scrutiny of these papers proved that these vouchers are not supported by the bills and the appellant had also agreed that these expenses are not incurred wholly and exclusively for the purposes of business. Therefore, it is not only a case of statement but also corroborated with documentary evidences. Hence, the action of the AO is confirmed. This ground of appeal is dismissed. 18. Hence, assessee is in appeal before the Tribunal by disputing the addition of ₹ 2 lakhs in the ground of appeal. 19. At the time of hearing, ld A.R. could not furnish any details and merely stated that the addition is made on assumption and surmises. 20. Considering the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls are to be raised on the owners. Being sister concerns, we have not kept a full fledged records of the supply but going by the current rate of about USD 4.5 per crew per day the total amount of provision of supplies for the year comes to 20x4.5x365=32,850 US$. Therefore, a sum of ₹ 15,11,100 say ₹ 15 lakhs will be offered to tax on account of these sale for F.Y. 2005-06. Besides the provision, we have also supplied spare parts and stores, hardware items, etc for these two boats. Bases on the documents available and my personal experience a sum of ₹ 20 lakhs on account of sale of stores, spare and supplies, etc will be sufficient to cover these sales. Therefore, a further amount of ₹ 20 lakhs on account of sale of stores and supplies etc, will be offered to tax for F.Y. 2005-06. The total sum of under sales to the two vessels for F.Y. 2005-06 as discussed above and offered to tax comes to ₹ 35 lakhs. 24. However, the assessee did not declare the additional income in the return of income filed for A.Y. 2006-07. Assessee filed its reply as under: Please refer to question No.11 in the statement given by the director wherein it was declared that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sales because all sales were recorded in the books of account closed on 31st March as contended by the assessee. Therefore, ld CIT(A) has stated that only statement recorded without any cogent evidence cannot be relied upon. He has further stated that all the sales cannot be treated as income in view of decision of ITAT Mumbai in the case of Shahdilal Sons vs ACIT (IT(ss) A No.296/M/97 dt.25.9.08), wherein, it is held that no addition can be made merely on the basis of admission made in a statement recorded under section 132(4) without considering surrounding circumstances and evidence to have been uphold to the addition and the assessee cannot be bound by the original declaration made in the statement . Accordingly, ld CIT(A) held that 4% of net profit taken is income of the assessee. Therefore, ld CIT(A) has sustained a sum of ₹ 1,40,000 and deleted balance amount of ₹ 33,60,000. Hence, this appeal by the department. 27. During the course of hearing, ld D.R. supported the order of AO and submitted that there are unaccounted sales and, therefore, AO was justified to make the total addition of ₹ 35 lakhs. However, ld A.R. supported the order of ld CIT(A) and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods and supply of spare parts, etc. However, ld CIT(A) restricted the disallowance to 4% of the unaccounted sale which comes to ₹ 1,40,000 and deleted balance addition of ₹ 33,60,000. 32. Ld A.R submitted that this addition has already been made in the preceding assessment year and the addition in this year has been made for the same unaccounted sale which is not justified. However, ld D.R. did not dispute said facts but submitted that assessee has not filed any appeal against the order of ld CIT(A) and ld CIT(A) restricted the disallowance considering the net profit @ 4% of the unaccounted sale of ₹ 35 lakhs. Ld D.R. dutifully relied on the order of AO. 33. On consideration of submissions of ld representatives of parties and orders of authorities below, we agree with ld A.R. that AO in the assessment year 2007-08 has also made similar addition of ₹ 35 lakhs on account of unaccounted sale on the basis of survey carried u/s.133A of the Act. Since, we have already upheld the order of ld CIT(A) for A.Y. 2006-07 of confirming the net profit @ 4% of the unaccounted sale hereinabove, we, for the same reason, confirm the order of ld CIT(A) for A.Y.2007-08. Si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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