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TMI Blog2018 (11) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... bench of this tribunal in M/s Subarna Rice Mill vs. ITO [2015 (7) TMI 522 - ITAT KOLKATA] holding only the profit element liability to be added in such circumstances; stand upheld by hon'ble jurisdictional high court’s recent judgment [2018 (8) TMI 1475 - CALCUTTA HIGH COURT]. We therefore conclude that the impugned former addition of the entire discrepancy in stock deserves to be deleted. - ITA No.1550/Kol/2016 - - - Dated:- 31-8-2018 - Shri S.S.Godara, Judicial Member And Dr. A.L. Saini, Accountant Member For the Appellant : Shri Soumitra Choudhury, Advocate For the Respondent : Shri S. Dasgupta, Addl. CIT-DR ORDER PER S.S.GODARA, JUDICIAL MEMBER:- This assessee s appeal for assessment year 2011-12 arises from the Commissioner of Income Tax (Appeals)-7, Kolkata s order dated 29.02.2016, passed in case No.544/CIT(A)-7/Wd-25(3)/142-15, in proceedings u/s. 143(3) of the Income Tax Act, 1961; in short the Act . Heard both the parties. Case file perused. 2. The assessee has raised two substantive grounds in the instant appeal in challenging correctness of both the lower authorities making undisclosed investment addition of ₹77,89,600/- based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of stock taking and the correctness of stock inventory were not disputed by the appellant till completion of the survey. If the manner and method of stock was objectionable the appellant should have raised objection before the survey team left the premises so that the stock can be reinventorised physically. The objection made by the appellant regarding the manner in which the stock was taken after four days of completing the survey is not a bona fide objection and it is nothing but an afterthought. 2.2(1) The appellant stated in his argument that the survey was carried out by Income-tax Officer Ward 2(2), Burdwan on 28.02.2011. Objection thereon was preferred on 04.03.2011 before ACIT, Circle-1, Burdwan and the Commissioner of Income-Tax, Burdwan. The faulty method of counting of stock was also brought to the attention of Income-Tax Officer, Ward 52(3), Kolkata on 21.02.2014 i.e. before completing the assessment. The reason for filling the objections with ACIT, Circle-1, Budwan who was neither the AO nor the ITO conducted the survey was better known to the appellant but not explained and made any argument. The appellant s territorial jurisdiction vets with the Burdwan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bjection regarding the stock taking only after the four days of completing the survey that too before the officer who did have the jurisdiction. The method of stock taking and if any dispute in the physical stock, should be pointed out before the survey team leaves the premises so that the stock inventory can be reinventorised physically. But in this case the appellant filed the letter after the four days of completing the survey which is not tenable. Therefore, I hold that the physical stock available as on the date of survey was correctly taken and there is no reason to doubt the physical stock available as on the date of survey. 2.3(ii) The Second contention of the appellant was that the survey team has taken the statement on coercion. The survey was conducted with an intention to collect the evidences useful for the assessment and there is no reason to coerce the appellant. The appellant has certified in the statement recorded u/s. 133A that the statement was given voluntarily without any coercion. Therefore, the argument of the app that the statement recorded under coercion has no basis and accordingly rejected. 2.3(iiii) The appellant has also objected the stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring survey proceedings under Section.133A of the Act. This was on the ground that statement was made on oath. Besides the sole evidence against the assessee in that case was the statement made on oath during the survey proceedings which is not the case in the present facts. Further, in this case the appellantassessee has not been able to show that the statement made is not correct and/or unbelievable. Therefore, the case law relied upon by the appellant-assessee is completely distinguishable and not applicable to the present facts. Further Hon'ble Allahabad High Court in the case of Sanjeev Agrawal v. Income Tax Settlement Commissioner, Allahabad [2015] 56 taxmann.com 214 held that the statement given during the survey is a valid piece of evidence and cannot be retracted at the whims and fancies of the assessee. I reproduce hereunder the relevant paragraph of the judgement of the Hon' High court. 10. In Pullangode Rubber Produce Co Ltd. v. State of Kerala the Supreme Court held that an admission is a piece of evidence though it is not conclusive. Consequently a statement made voluntary under Section 133A of the Act cannot be retracted unless the assessee fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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