2017 (9) TMI 1708 - HC - Income Tax

Addition on account of excess stock and unexplained investment in shop - said amount was specifically surrendered by the assessee during the course of search in statements recorded u/s 132 (4) - tribunal deleted the addition - Held that - Tribunal has appreciated the fact and also considered the stock register and other material produced on record which has been produced today also before us, we are of the considered opinion the Tribunal being a fact finding authority has given its final finding and it will not be appropriate to disturb the same. In that view of the matter, counsel for the appellant has also relied upon order of CIT(A) but Tribunal while considering the matter has appreciated the evidence and we are of the considered opinion that it has not committed any error in deleting the income. More particularly the AO himself has observed that in the previous year the assessee has himself shown his income as reproduced above. The surrender income of ₹ 17,9500/- and assessee stock of ₹ 91,44,118/- is explained by the Tribunal. Thus the view taken by the Tribunal is required to be confirmed. The issue is answered in favour of assessee against the Department.

Issues Involved:
1. Whether the ITAT's order is perverse in deleting the addition of ?1,03,44,198/- on account of excess stock and unexplained investment in the shop.
2. Whether the ITAT is right in holding that interest under sections 234A and 234B of the IT Act should be counted from the date when the last copies of the documents seized during the course of the search were available to the assessee.

Detailed Analysis:

Issue 1: Deletion of Addition on Account of Excess Stock and Unexplained Investment
The appellant challenged the deletion of the addition of ?1,03,44,198/- by the ITAT. The Tribunal had partly allowed the appeal of the assessee by modifying the order of the CIT(A) and the AO. The AO had initially assessed the income based on the unexplained stock and immovable property, considering the statement recorded during the search operation and the surrender made by the assessee.

The AO had added an additional income of ?1,02,25,168/- based on the figures informed by the department during the search. The CIT(A) upheld this addition, noting the discrepancies in the stock details submitted by the assessee and the physical inventory prepared by the Income Tax Department. The CIT(A) emphasized that the appellant had not filed the return of income within the prescribed time and had avoided complying with the AO's notices.

The Tribunal, however, found that the confessional statements made during the search could not be considered free and independent. It cited precedents where admissions made under duress or ignorance of legal rights were not binding. The Tribunal noted that the assessee had retracted the statements by providing sufficient corroborating evidence and detailed reconciliation of the stock. It held that no addition could be made solely based on such admissions, especially when the reconciliation offered by the assessee was not found to be false.

The Tribunal further observed that the books of accounts tendered by the assessee were not doubted, and no adverse material was brought on record to hold the details submitted by the assessee as incorrect. It concluded that the discrepancy in stock was not real and directed the deletion of the sustained addition of ?91,44,118/-.

Regarding the unexplained investment in the Axis Mall property, the Tribunal noted that the assessee had already declared additional income of ?17,95,000/- in different assessment years, which was accepted by the AO. The Tribunal directed the deletion of the addition of ?28,76,050/- made separately over and above the declared amount, as there was no occasion to make any further addition.

Issue 2: Interest Calculation under Sections 234A and 234B
The Tribunal held that interest under sections 234A and 234B should be counted from the date when the last copies of the documents seized during the search were available to the assessee. This decision was based on the premise that the assessee could not file the return of income until the seized documents were made available, impacting the calculation of interest.

Conclusion:
The Tribunal's findings were based on a thorough examination of the evidence and reconciliation provided by the assessee. It concluded that the additions made by the AO were not sustainable solely based on the confessional statements recorded during the search. The Tribunal's decision to delete the additions was upheld, and the appeal was dismissed. The issue was answered in favor of the assessee and against the Department.

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