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TMI Blog2018 (7) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... cies from books of accounts of the assessee to support the disclosure made in the sum of ₹ 60 lacs at the time of survey. - Decided against revenue - I.T.A No. 733/Kol/2015 - - - Dated:- 4-7-2018 - Shri S. S. Godara, JM And Hon ble Shri M. Balaganesh, AM For the Appellant : Shri S. Dasgupta, Addl. CIT (DR) For the Respondent : Shri H.N. Dubey, Advocate Shri Rakesh Dubey, Advocate ORDER Per M.Balaganesh, AM 1. This appeal by the Revenue arises out of the order of the Learned Commissioner of Income Tax(Appeals)-11, Kolkata [in short the ld CIT(A)] in Appeal No.194/CIT(A)- 11/R-39/14-15/Kol dated 16.03.2015 against the order passed by JCIT, range-39, Kolkata [ in short the ld AO] under section 143(3) of the Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d net profit of ₹ 34.43 lacs. 5. During the survey proceedings, the statement of one Shri Ajay Kumar Jain was recorded by the survey team. Shri Ajay Kumar Jain happened to be the brother-in-law of one of the partners Shri Alok Kumar Jain and he stated that whenever the working partner i.e. Shri Alok Kumar Jain is out of station, he looks after day to day business of the firm. In reply to query no. 6 recorded in the statement, Shri Ajay Kumar Jain stated that the transportation expenses debited in the profit and loss account were not entirely genuine and he declared ₹ 60 lacs as bogus expenditure under that head and agreed to offer the same as additional income and also gave three cheques to the survey team as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act and accordingly, in his opinion has got evidentiary value. 6. Before the Ld. CIT(A) apart from reiterating the aforesaid facts, brought to the notice of the Ld. CIT(A) that no statement was recorded u/s 131 of the Act from Shri Ajay Kumar Jain. On the contrary, the statement was recorded from Shri Ajay Kumar Jain only u/s 133A of the Act which is quite evident from the statement thereon. It was pleaded that the said statement does not have any evidentiary value and in support of which he placed reliance on various judicial decisions. It was also brought to the notice of Ld. CIT(A) that the survey was conducted in the premises of 115, College Street, Ground Floor, Kolkata-700012 and the relevant papers were found there. While th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ically the above declaration should come from the person carrying on his business or profession otherwise the survey action can be held as bad in law. This has been held so in the case of U.K. Mohapatra Co. v. ITO (2009) 308 ITR 133 (Ori.) and it/has been affirmed by the Supreme Court in the case of ITO v. U.K. Mohapatra Co. (2010) 225 CTR 131 (S.C.). Further the result of the Survey at 47A, Park Street, Kolkata-16 revealed that there were no books of account or other document of the assessee Firm available at that premises. In such a situation even the reliability of the statement becomes presumptive. It is also seen that Sri Ajay Kumar Jain is not an employee or even a Partner of the Firm. His status is that of a friend wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of passing of the assessment order on 29.12.2012, the A.O. could not point out any deficiency in the assessee's books of account and no enquiries were got made indicating any concealment. The A.O. had verified the impounded documents obtained from 115 College Street, Kolkata and had not found any discrepancy in them. In view of the above, it is not possible to hold that the addition of ₹ 60,00,000/- was made as per law. The addition is, therefore deleted. All the grounds of appeal of the assessee are allowed. Aggrieved the revenue is in appeal before us. 7. The ld. DR relied on the order of the ld. AO. He stated that the statement was recorded u/s 131(1) of the act, whereas the case law relied upon by the Ld. C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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