TMI Blog2022 (6) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the date of survey i.e on 25.11.2016. Therefore, we are of the view that the purchases are already recorded in the books of account and also accounted for in the stock of gold at the time of survey, and we note that only the sale of 8786.872 grams amounting to Rs. 3,10,69,393/- remains unaccounted in the books of account at the time of survey. We disagree with the contention of the Ld. AO that there are unaccounted purchases for making these unaccounted sales based on the fact that if unaccounted purchases are included in the stock at the time of survey the deficit stock would have been far more higher than 696.787 grams at the time of survey. In view of the above findings, we are of the considered view that a separate addition of unaccounted sales is not required. If the assessee did not adhere to the surrender made during the survey, it was for the AO to bring on record cogent material or other evidence to support the additions rather than rely on the statements simpliciter. We do not find any cogent material or other evidence brought in by AO to support the admissions made during survey. In view of the above, we find that there is no infirmity in the order of the Ld. CIT( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng out of order passed U/s. 143(3) r.w.s 250(6) of the Act for the AY 2017-18. 2. Brief facts of the case are that the assessee is a partnership firm engaged in the business of running a jewellery shop. A survey operation U/s. 133A took place on 25/11/2016 at the business premises of the assessee and the assessee agreed to admit the following as additional incomes: 1. Unexplained purchase of 10.3 Kgs of Gold Bullion Rs. 3,18,00,830 2. Unaccounted sales Rs. 3,00,00,000 3. Gross Profit @ 12.5% on deficit stock Rs. 2.71,092 Rs. 6,20,71,442 The assessee filed its return of income for the AY 2017-18 on 30/10/2017 admitting a total income of Rs.3,19,46,630/-. 3. However, while filing the return of income the assessee admitted only Rs. 3,47,50,000/- as against the income admitted at the time of survey. The details of income admitted are as under: 1. Gross Profit admitted on deficit stock Rs. 37,50,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng on the same without remanding the matter to AO. 4. The CIT(A) erred in directing the AO to reduce the amount of Rs. 3.1 Crs from the income returned by the assessee without appreciating the fact that there was sufficient time after the survey ie around one year, to consider all its transactions including materials impounded during the course of survey, to file its true and correct return. 5. The Ld. CIT(A) has failed to appreciate the fact that if assessee found at a later stage that any income offered in its return of income was not correct then they could receive their returns of income within the time frame allowed under section 139(5) of the Act. But in the present case, the assessee neither filed any revised return nor raised any objection at the time of assessment proceedings with regard to its additional income admitted in its return of income filed U/s. 139(1) of the Act nor raised this ground before the Ld. CIT(A) in their original grounds of appeal, but raised additional ground before the Ld. CIT(A). 6. The Ld. CIT(A) has failed to appreciate the fact that after admitting the above income of Rs. 3.10 Crs they have arrived at net profit of Rs. 3.19 Cr and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9,693/- represents the amount of Rs. 3 Crores. The Ld. AR argued that since the amount of Rs. 3 Crores has been admitted by the assessee and accounted in books, the same sales was wrongly added oonce gain in the Assessment Order and it amounts to double taxation and pleaded that it may be deleted. The Ld. AR also relied on the case of the Hon ble Supreme Court in the case of CIT vs. Khader Khan Son 352 ITR 480 (SC) wherein it was held that section 133A does not empower Income Tax Authority or any person of them and the statement recorded under that section has no evidentiary value and cannot be made as a basis for the addition. On the other hand, Ld. DR argued that Rs. 3 Crores represents the unaccounted sales in addition to the admission made by the assessee for the sales made during the period 6/11/2016 to 8/11/2016. The Ld. DR forcibly contended that the assessee on its own will has admitted this amount at the time of survey u/s. 133A of the Act. The Ld. DR therefore pleaded that the addition to be sustained. 9. We have heard both the parties and perused the material available on record. The admitted facts are that the assessee admitted unaccounted sales of Rs. 3,10,69,693/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. With respect to ground nos. 3 and 5 regarding the admission of additional ground by the Ld. CIT(A), the Ld. AR submitted that since the due date of filing the revised return was time barred, the assessee could not file the revised return and hence raised the additional ground raised before the Ld. CIT(A). The Ld. DR submitted that the additional ground admitted by the Ld. CIT(A) is not in accordance with law. We find from the arguments of Ld.AR, that the assessee on the inability to file the revised returns u/s 139(5) of the Act could not revise the original return where the income was wrongly admitted. We have heard the rival contentions and we find merit in the arguments of the Ld. AR that since the due date of filing the revised return of income U/s. 139(5) was time barred, the assessee has raised the additional ground before the Ld. CIT(A). The Ld.CIT(A) considering the merits has rightly allowed this additional ground of the assessee, and hence the ground raised by the Revenue is dismissed. 11. Grounds No.4 and 6 raised by the Revenue are with respect to addition of Rs. 3,10,00,000/- as per the income returned by the assessee at the time survey u/s. 133A of the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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