2018 (5) TMI 1629 - AT - Income Tax

Addition on unexplained cash and investment in stock - addition on basis of the statement recorded during the course of survey - non maintenance of books of accounts - Held that - The assessee is a kirana merchant and running a kirana shop at a small place, where he is carrying out the business of kirana in retail. As per the provisions of Section 44AA read with Section 44AF of the Act, the assessee was not required to maintain any books of account. The assessee had retracted from the statement as made before the assessing authorities. Thus we find merit in the contention of assessee that the AO ought to have considered the facts in right perspective. Allow grounds and direct the AO to delete the additions made in respect of unexplained cash, unexplained investment in stock, addition made by estimating the total sale and the addition which was solely made on the basis of the statement recorded during the course of survey Addition on account of cash advances and kirana debtors and addition made on account of undisclosed purchases of Mahua , also be deleted - Decided in favour of assessee.

Summary

Issues Involved:
1. Unexplained Cash Addition
2. Unexplained Investment in Stock
3. Estimation of Total Sales
4. Addition Based on Survey Statement
5. Additions on Account of Cash Advances and Kirana Debtors
6. Addition on Allegation of Undisclosed Purchases of Mahua

Issue-wise Detailed Analysis:

1. Unexplained Cash Addition:
The assessee contested the addition of ?77,845/- made by the AO on the grounds of unexplained cash, which was based solely on the statement recorded during the survey under Section 133A of the Income-tax Act. The assessee argued that the cash found during the survey was from sale proceeds, recovery of advances, and a withdrawal from a savings bank account. The Tribunal noted that the statement recorded during the survey has no evidentiary value as per the law, and the AO did not consider the documentary evidence provided by the assessee. Consequently, the Tribunal directed the AO to delete this addition.

2. Unexplained Investment in Stock:
The assessee challenged the addition of ?54,220/- for unexplained investment in stock, again based solely on the survey statement. The Tribunal observed that the assessee had been in business since 2001 and had accumulated stock from past savings and activities. It was noted that the AO did not consider the explanation and documentary evidence provided by the assessee. The Tribunal directed the AO to delete this addition as well.

3. Estimation of Total Sales:
The assessee did not press the ground related to the addition of ?5,066/- for estimating total sales at ?10,11,317/- against ?9,10,000/- shown by the assessee. However, the Tribunal acknowledged the smallness of the amount and did not adjudicate on this ground.

4. Addition Based on Survey Statement:
The assessee opposed the addition of ?5,53,501/- made solely on the basis of the survey statement. The Tribunal noted that the AO did not provide any independent findings or corroborative evidence for this addition. The Tribunal emphasized that statements recorded under Section 133A have no legal sanctity and cannot be the sole basis for addition. Therefore, the Tribunal directed the AO to delete this addition.

5. Additions on Account of Cash Advances and Kirana Debtors:
The assessee disputed the additions of ?32,484/- and ?81,950/- for cash advances and kirana debtors, respectively. The Tribunal noted that the AO made these additions without specifying any provision of the law and solely based on the survey statement. The Tribunal found that the assessee had already accounted for these amounts in the statement of affairs for the relevant assessment years. Consequently, the Tribunal directed the AO to delete these additions.

6. Addition on Allegation of Undisclosed Purchases of Mahua:
The assessee contested the addition of ?3,348/- for undisclosed purchases of Mahua, alleging it was based on surmises and conjectures. The Tribunal noted that the AO did not provide any opportunity to the assessee to explain this addition and the order was non-speaking. Therefore, the Tribunal directed the AO to delete this addition.

Conclusion:
The Tribunal found merit in the assessee's contentions and directed the AO to delete the various additions made on the basis of the survey statement and without considering the explanations and documentary evidence provided by the assessee. The appeal of the assessee was allowed in full.