9911796707
TMI Blog2012 (10) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... ground of stock suppression and given partly relief of Rs.20,97,200 out of Rs.24,36,693 added by assessing officer. 3. The Learned Commissioner of Income Tax (Appeal) has erred in law and fact by confirming the addition of Rs.4,07,134 for disallowance of labour expenses without considering the fact on record. 4. The Learned Commissioner of Income Tax (Appeal) has erred in law and fact in regard to penalty initiated u/s. 271-B & 271(1)(c). 5. It is therefore prayed that a. Addition of Rs.8,54,286 for undisclosed sales confirmed by the Learned Commissioner of Income Tax (Appeal) may please be deleted. b. Addition on account of stock suppression of Rs.339493 confirmed by the Learned Commissioner of Income Tax (Appeal) may please be deleted. c. Addition of Rs.4,07,134 for disallowance of labour expenses confirmed by the Learned Commissioner of Income Tax (Appeal) may please be deleted. d. Initiation of Penalty proceeding u/s. 271-B & 271(1)(c) on which Learned Commissioner of Income Tax (Appeal) has may kindly be dropped." 3. The facts as borne out of record are that assessee is engaged in the business of purchase & sale of gold and silver ornaments and also job work of manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that alleged undisclosed sales represented the gross sales and gross sales can not be subjected to tax. In support of this contention, he relied upon the judgments of Hon'ble jurisdictional High Court in the case of CIT v. Gurubachhana Singh J Juneja v. CIT ((2008) 302 ITR 63 (Guj) and Hon'ble Punjab & Haryana High Court in the case of CIT v. Kartar Singh & Co. (2008) 302 ITR 66 (P&H). He further relied upon the judgment of Hon'ble Madras High Court in the case of CIT v. S Khader Khan Son (2008) 300 ITR 157 (Mad). In support of his contention, whatever statement is recorded u/s. 133A of the Act is not given in the evidentiary value obviously far the reasons that the officer is not authorized to administer oath and to take any sworn statement which alone has evidentiary value as contemplated d under the law. He submitted that the Hon'ble Madras High Court in the case of S Khader Khan Son (supra) that the word "may" used in section 133(3)(iii) of the Act, viz., record the statement of any person which may be useful for, as relevant to, any proceeding under this Act" makes it clear that the material called and statement recorded furring the survey u/s 133A of the Act are not conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of appeal is dismissed." From the order of Ld. CIT(A), it is evident that he has not considered the submission of the assessee that the statement recorded u/s. 133A of the Act has no evidentiary value and same cannot be sole basis of addition. The Ld. DR has not placed material on record suggesting that the amount of Rs.8,54,286/- was net profit from the undisclosed sale. In this view of the matter, the addition of Rs.8,54,286/- made by Assessing Officer and sustained by Ld. CIT(A) is hereby deleted. This ground of assessee's appeal is allowed. 8. Next ground is against the confirmation of addition of Rs.24,36,963/- on account of unexplained investment. Ld. Authorized Representative for the assessee submitted that the contention of the assessee was not appreciated by the authorities below. On the contrary, Ld. SR-DR relied upon the order passed by Assessing Officer. Ld. CIT(A) has decided this in para 8.4 of his order, which is reproduced hereinbelow:- "8.4 I have perused the facts of the case with regard to the addition of Rs.24,36,693/- made by the Assessing Officer on account of suppression of stock of gold ornaments as observed by the Assessing Officer in his asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opening stock of the trading accounts for the post survey period was to be taken at 14.103 kgs. The AO came to the conclusion that the quantity of 4.28 kg of gold ornament had been suppressed in the closing stock so we do not find any defect in the order passed by Ld. CIT(A) as he had considered the submissions of the assessee and accepted the claim of the assessee that the quantity of gold which was taken from M/s Shakti Export was as Jangad basis. The finding of Ld. CIT(A) is based upon the evidence and could not be controvertd by Ld. DR. In this view of the matter, we confirm the order passed by Ld. CIT(A). This ground of assessee's appeal is dismissed. 10. Next ground is against the confirmation of addition of Rs.4,07,134/- on account of disallowance of labour expenses without considering the fact on record. Ld. AR submitted that authorities below failed to appreciate the fact that the wage register was duly submitted before Assessing Officer and this material piece of evidence was not considered by the authorities below. He further submitted that AO insisted from placing on record and confirmation on the labour also furnished of their present addresses. It is submitted by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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