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TMI Blog2014 (9) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... he asset declared in the books of account against which surrender was made by the assessee. Upholding the order of the CIT (Appeals) we find no merit in the grounds of appeal raised by the assessee in this regard and the said are dismissed. - ITA No.781 /Chd/2009 , ITA No.128 /Chd/2010 - - - Dated:- 17-9-2014 - SHRI T.R.SOOD, ACCOUNTANT MEMBER AND Ms. SUSHMA CHOWLA, JUDICIAL MEMBER Appellant by : Shri Rakesh Jain Respondent by : Shri J.S.Nagar, DR O R D E R Per SUSHMA CHOWLA, J.M. : The appeal filed by the assessee M/s Gurudev Agro Engineers is against the order of the Commissioner of Income Tax(Appeals), Patiala dated 29.06.2009 relating to assessment year 2006-07 against the order passed under section 143(3) of Income Tax Act, 1961 (in short the Act ). Further the appeal filed by the assessee Daulat Ram Maghar Ram is against the order of the Commissioner of Income Tax(Appeals), Patiala dated 12.01.2010 relating to assessment year 2006-07 against the order passed under section 143(3) of Income Tax Act, 1961 (in short the Act ). 2. The assessee in ITA No.781/Chd/2009 has raised the following grounds of appeal: 1. Because the action of CTT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Even the order is perverse in it's nature. 2. Because the action of C1T(A) is under challenge on facts and law regarding addition of ₹ 1,37,34s/- (on sales of ₹ 10,81,48s/- @ 12.70%) gross profit which is behind the back of assessee after declining to appreciate the withholding of the records (for being provided) by the Assessing Officer. 3. Because the action of CIT(A) is under challenge on facts and law regarding addition of ₹ 3,677/- for payment treated outside books of account. 4. Because the action of CIT(A) is under challenge on facts and law regarding addition of ₹ 4,998/- for payment outside books of account. 5. Because the action is in violation of rules of natural justice and the settled principles of law. Even further the action is arbitrary and misutilisation of the powers. 4. Both these appeals relating to the different assessee on similar issue were heard together and are being disposed off by this consolidated order for the sake of convenience. 5. The learned A.R. for the assessee at the outset pointed out that similar issue has been raised in both the appeals and facts and circumstances in both the appeals are identi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.3 raised by the assessee for adjudication and the balance grounds of appeal have not been pressed by the learned A.R. for the assessee and the same are dismissed. In the written submissions, the learned A.R. for the assessee first agitates the addition made on account of surrender of stock of ₹ 5 lacs. The main plea raised by the learned A.R. for the assessee was that the said surrender was retracted by letter dated 6.1.2006 and consequently no addition could be made in the hands of the assessee. Further it was explained by the assessee that in case the trading account is drawn on 27.9.2005 then the stock available with the assessee matches with the stock found at the time of survey and there is no merit in the addition. The second plea raised by the learned A.R. for the assessee was that no defects were pointed out either in the books of account or the sales and hence, there is no merit in the said addition. In respect of the cash surrender of ₹ 15 lacs, similar pleas were raised by the assessee of retraction and no details being found. Another plea raised by the assessee was that no cash was found from the possession of the assessee and on the other hand, some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee vide surrender letter placed at pages 63 and 64 of the Paper Book. The perusal of the letter reflects the assessee to have admitted that during the course of survey some discrepancies in cash and stock were found and in order to avoid litigation with the Department and to buy peace of mind, stock of ₹ 5 lacs and cash of ₹ 15 lacs was being surrendered. The said surrender was in addition to the regular income for assessment year 2006-07 and it was also admitted that the taxes on the surrendered amount would be paid in due course. The assessee also placed on record the statement of Shri Gurdev Singh, partner of the assessee firm recorded on the date of survey i.e. 27.9.2005 in which he admitted that the books of account were written up to 5.9.2005 and the opening balance of cash in hand on 5.9.2005 was ₹ 2,37,793/-. The English transcriptions of the said statement are placed at pages 65 to 70 of the Paper Book. At pages 61 and 62 of the Paper Book, a hand written letter on letter head of assessee firm dated 27.9.2005 is also placed in which the assessee had admitted to have surrendered sum of ₹ 20 lacs i.e. stock of ₹ 5 lacs and cash of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt recorded in he books of account, then the admission made under section 133A of the Act can be used against the assessee to make addition on account of the aforesaid stock and the cash excess found from the possession of the assessee. The assessee had placed the reliance on the ratio laid down by the CIT Vs. S.Kadar Khan Sons reported in 352 ITR 480(SC) that the admission made under section 133A has no evidentiary value. We subscribe to the said proposition laid down by the Hon'ble Supreme Court. However, in case of the assessee, the stock was found excess, for which the assessee even before us has furnished no explanation and further the cash was also found from the possession of the assessee, which was not reflected in its books of account and for which the assessee had no explanation. The explanation of the assessee before us that if the trading account is reconstructed on 27..9.2005, then there is no discrepancy in the stock, cannot be accepted at such a late stage where the assessee had failed to furnish any information after the conclusion of survey order. Even the so-called retraction made on a later date i.e. 6.1.2006 cannot absolve the assessee from its liability and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as under : 10. A reading of the aforesaid findings clearly shows that it was recorded that during the course of survey, the assessee was not able to offer my plausible explanation for the sum of ₹ 30,40,000/- which was surrendered by the assessee. Further, during the course of survey, it as found that certain sale invoices were either not recorded in the books of account or were under invoiced. The assessee had also admitted certain notings in the diary and note books to be on account of sales which were unaccounted. In the light of the aforesaid findings, the contention of the assessee that the amount of ₹ 27,16,001/- could not be included as unaccounted cash and it was ₹ 3,23,999/- only does not carry any weight and the plea of the assessee has rightly been dispelled by the authorities below. In view of the concurrent findings recorded, no question of law arises in this appeal. Accordingly, the present appeal is dismissed. 13. In the facts of the present case before us also there was admittedly evidence found against the assessee which could not be explained by the assessee and the surrender was made by the assessee totaling ₹ 20 lacs. Once ..... X X X X Extracts X X X X X X X X Extracts X X X X
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