2012 (11) TMI 618 - AT - Income Tax

Addition on account of difference in stock Retraction of statement - Due to theft and unaccounted sales Assessee stated u/s 132(4) that investment made in land and its development by cash generated from such unaccounted sales Subsequently assessee rectifies such statement u/s 132(4) that only gross profit has been used to purchase & develop the land - AO assessed the undisclosed income being the sale value of gold jewellery found short Held that - The assessee has tried to explain his mistake in the statement recorded on behalf of it. The assessee has accounted for the suppressed sales by way of declaration of gross profit on account of the suppressed sales. Assessee tried to clarify his stand immediately after the receipt of the statement recorded u/s.132( 4) on 20-05-02 and after realizing that there has been mistake in the statement. Such factual retraction should not be brushed aside without verifying the facts and circumstances of same. The addition in question is not justified while assessee has already declared gross proceeds on unaccounted sales as discussed above. The Assessing Officer is directed accordingly. Addition deleted. Issue in favour of assessee

Summary

Issues involved:
1. Addition of Rs. 50,00,000/- as undisclosed income due to shortage of stock of gold.
2. Consideration of the valuation report.
3. Enhancement of assessment without giving an opportunity to the appellant as per section 251(2) of the I.T. Act.

Issue-wise detailed analysis:

1. Addition of Rs. 50,00,000/- as undisclosed income due to shortage of stock of gold:
The case revolves around the discrepancy found during a search and seizure action under section 132 of the Income Tax Act, 1961, at the business premises of the assessee. The physical inventory of gold ornaments was 95,056 grams, whereas the books of accounts showed 1,10,870 grams, indicating a deficit of 13,514 grams. The Director of the assessee company admitted to unrecorded sales and declared an unaccounted income of Rs. 50,00,000/-, stating the proceeds were invested in agricultural land. However, the assessee later retracted this statement, claiming it was made under a mistaken belief of law and fact. The Assessing Officer initially accepted the retraction but later, under the direction of CIT (Central), Pune, reassessed the income, refusing the retraction and treating the Rs. 50,00,000/- as undisclosed income. The Tribunal upheld the CIT's direction for reassessment but emphasized the need for verification of the issues raised.

2. Consideration of the valuation report:
The assessee argued that the valuation report was not properly considered. The valuation report by an approved valuer indicated the fair market value of the agricultural land at Rs. 34,46,667/-. The assessee contended that the investment in agricultural land was reflected in the books of various family members and not as undisclosed income. The CIT(A) and the Assessing Officer dismissed the valuation report, maintaining the addition of Rs. 50,00,000/-. The Tribunal found that the valuation report and details of the purchase were not given due consideration, which amounted to a violation of natural justice.

3. Enhancement of assessment without giving an opportunity to the appellant as per section 251(2) of the I.T. Act:
The CIT(A) directed the Assessing Officer to add gross profit of Rs. 4,73,262/- separately, which the assessee argued amounted to an enhancement of assessment without giving an opportunity to be heard, thus exceeding jurisdiction. The Tribunal noted that the addition of the entire unrecorded sales as undisclosed income was not justified and only the gross profit from such sales should be considered. The Tribunal emphasized that the statement made during the search should be corroborated with material evidence, and any retraction should be examined in light of the factual and legal context.

Conclusion:
The Tribunal found that the addition of Rs. 50,00,000/- as undisclosed income was not justified solely based on the statement made during the search, especially when retracted and clarified by the assessee. The valuation report and other corroborative evidence should have been duly considered. The Tribunal directed the Assessing Officer to reassess the income by considering only the gross profit from the unrecorded sales and not the entire sale proceeds. The appeal was allowed, and the addition was deleted.