9911796707
TMI Blog2018 (4) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... wan Kumar. Similarly in the case of debtors, once the assessee has retracted then it was the duty of the Assessing Officer to examine these debtors to establish the truthfulness of the debt. - Decided in favour of assessee Invoking the provisions of Section 145(3) - estimating the turnover and G.P. - Held that:- The assessee himself admitted that part of the sales/purchases are being made in unaccounted manner. As regards estimation of profit, after invoking the provisions of sec. 145(3) of IT Act, it may be stated that it is a settled law that even after invoking the provisions of sec. 145(3), the AO is not empowered to assess the income at whatever figures he wants and the AO is supposed to make an honest estimation either based on the past history of the appellant’s own case or on the basis of any comparable case - in the immediate preceding year the appellant has shown G.P. rate of 13.24%. Therefore it will be fair and reasonable to apply G.P. rate of 13.24% on estimated sales of ₹ 1800000/- and accordingly the gross profit is arrived at 2383200/- as against G.P. rate shown by the assessee for ₹ 2240422/-. Accordingly trading addition of ₹ 142778/- is mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conciliation submitted, thus the addition of ₹ 8,04,155/- confirmed by Ld. CIT(A) deserves to be deleted. 1.1 That the Ld. CIT(A) has further erred in ignoring the fact that the assessee had submitted vital evidences during the course of assessment proceedings wherein cash as per books of accounts and that found during the course of survey is in parity. Hence the addition of ₹ 8,04,155/- so confirmed deserves to be deleted. 1.2 That the Ld. CIT(A) has further erred in ignoring the statements recorded during the course of survey wherein the assessee has categorically stated that the books of accounts as on date of survey were not complete and various entries were to be made to arrive at the figure of cash in hand. Hence the addition of ₹ 8,04,155/- so confirmed deserves to be deleted. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) has grossly erred in j upholding the addition of ₹ 10,00,000/- made on account of unaccounted advance arbitrarily without considering the submission made and evidences adduced. Hence the addition of ₹ 10,00,000/- so confirmed deserves to be deleted. 3. On the facts and in the circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epted. 6.2 That the Ld. CIT(A) has further erred in confirming the addition of ₹ 1,42,778/- by applying the G.P. rate at 13.24% instead of 13.17% declared by the assessee. Hence addition of ₹ 1,42,778/- so made deserves to be deleted. 7. Without prejudice to grounds of appeal No. 1 to 6.2 above and in the alternative, the benefit of telescoping and set off of the addition made into each other ought to have been allowed on the additions/ disallowances finally upheld by the appellate order. 8. That the appellant craves the right to add, delete, amend or abandon any of the grounds of this appeal at the time or before the actual hearing of the case. 5. While pleading on behalf of the assessee regarding grounds No. 1 to 5 of the appeal, the ld AR has submitted that the survey team recorded the statement on oath which is not as per law as no statement can be recorded on oath U/s 133A of the Act on oath. Further he also submitted that this statement was not voluntarily but obtained by the survey team officials. He has submitted that once the assessee has reconciled the issues on which the survey team obtained the admission then no addition can be made o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 263 ITR 101 (Ker) and he pleaded to delete the addition in all these grounds. 6. On the other hand, the ld DR has vehemently supported the orders of the authorities below. The ld DR has relied on the decision of Hon ble Bombay High Court in the case of Dr. Dinesh Jain Vs ITO 45 taxmann.com 442 (Bom) and the decision of Hon ble Rajasthan High Court in the case of Rameshwar Lal Mali Vs CIT 132 Taxman 629 (Raj). 7. The Bench have heard both the sides on these issues. We have also gone through the case laws relied upon. The Hon'ble Supreme Court in the case of CIT Vs. S. Khader Khan Son cited (supra) has held that an admission is an extremely important piece of evidence but it cannot be said that it is conclusive and it is open to the person who made the admission to show that it is incorrect and that the assessee should be given a proper opportunity to show that the books of account do not correctly disclose the correct state of facts. In this case, the assessee made statement during the survey and surrendered ₹ 60,09,418/- on account of excess cash, ₹ 8,04,155/- unaccounted debtors, ₹ 13,62,000/- excess stock, ₹ 28,43,409/- and on account of advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses and we find that the facts are at variation from these cases, therefore, the ratio laid down in these cases are not applicable to the assessee s case. Considering all these aspects, we find no merit in sustaining the addition only based on the statement recorded during the course of survey. Hence grounds No. 1 to 5 of the appeal are allowed. 8. In the grounds No. 6, 6.1 and 6.2 the issue is regarding sustain the part addition by invoking the provisions of Section 145(3) of the Act and estimating the turnover and G.P.. The ld. CIT(A) has dealt the issue by holding as under: 9.3 I have carefully considered the findings of the A.O. as also the submission of the appellant. It may be noted that the A.O. has rejected the books of accounts by applying provisions of sec. 145(3) of IT Act and after rejection of books of accounts estimated the sales for ₹ 180 lacs as against declared sale of ₹ 17005305/-. The A.O. applied G.P. rate of 15% as against G.P. rate of 13.17% shown by the appellant and accordingly trading addition of ₹ 459578/- was made. The A.O. applied provisions of sec. 145(3) because of the reasons that the assessee was involved in sales/purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
