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TMI Blog2013 (10) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 29,50,102/- under section 69B of the Act? (ii) Whether in the facts and circumstances of the case, the Income Tax Appellate Tribunal was right in law in not appreciating that there was no excess stock as alleged more so when complete stock reconciliation was given to the Respondent? (iii) Whether, in the facts and circumstances of the case, the order of the Income Tax Appellate Tribunal was perverse in as much as (i) the very basis of the impugned order viz. the letter disputing the computation of the excess stock placed at Page No.16 of the paper book filed before the Tribunal, was held not to have been filed before the lower authorities, was very much found on the record (ii) it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department. 3. A the centre of the controversy is a disputed undated letter written by the assessee to the Assessing Officer in which he stated that the stock submitted as per the books during the course of survey was without the opening stock. Since the computer programme had some problem at the time of survey, it had given wrong figure. This is the crux of the assessee's stand emerging from such letter. In addition to relying on such letter, assessee also before the Assessing Officer placed additional documents such as a working out of the statement of purchases and stock for financial year 2003-2004 relevant to assessment year 2004-2005 and contended that substantial portion of the difference between the stock reflected in the accounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be relied upon. Apart from tying to explain the discrepancy being on account of computer fallibility the appellant has not submitted any evidence in support of his claim. The Assessing Officer was therefore, justified in bring to tax Rs. 29,50,102/- as appellant's deemed income u/s. 69B of the Income tax Act in the current year. Accordingly, addition of Rs. 29,50,102/- made by him is confirmed. 4.5 With regard to treating the income as deemed income under section 69B of the Income tax Act, there is merit in the submissions of the appellant. The basic fact is that survey was conducted on the business premises of the appellant. During the course of survey proceedings, stock of merchandise was found in which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents has been found at the business premises of the appellant, In view of the above, I hold the Assessing Officer was not justified in invoking the provisions of section 69B in the case of the appellant. Therefore, the amount declared as investment made in stock should be brought to tax as the business of income of the appellant and not as deemed income u/s. 69B of the Income Tax Act." 5. Aggrieved by such decisions of the Revenue authorities, the assessee approached the Tribunal. Tribunal by the impugned judgement refused to interfere observing that the valuation of the stock was done in the premises of the assessee which was not disputed at any point of time. The inventory was signed by him. Statement of the assessee was recorded on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also not raised any dispute about the actual stock reflected according to his accounts. It is true that his admission was somewhat qualified and had stated that if he found any error of airthematic nature, he would bring the same to the notice of the officers shortly. It may also be true that he did send the earlier noted communication to the Assessing Officer long before the assessment was over. We have no hesitation in agreeing with Shri Himani that such document also should have been taken into account. Merely because in his statement he stated that if any discrepancy is to pointed out, he would do in three or four days, would not make any subsequent communication redundant for the purpose of assessment. 9. However, the central questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee had not brought anything on record to establish the theory that the stock statement generated by the computer omitted to take into account the opening stock of the beginning of the year. We may record that even after taking into consideration such opening stock, admittedly, there was discrepancy in the physical stock found at the time of survey, even as per the assessee, to the tune of Rs. 11 lakhs. 11. This is therefore, not a case where assessment is confirmed on the basis of confessional statement which was later on retracted. This is a situation where Revenue had during the course of survey collected sufficient evidence. Assessee substantially agreed to such material on record. Though later on assessee tried to suggest that discrepa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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