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TMI Blog2016 (3) TMI 1332X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal taken by assessee are reproduced below. (i) That the order of the Commissioner (Appeals) is contrary to law and facts of the appellant s case. (ii) That no incriminating material was found to show that assessee had any undisclosed income or any undisclosed assets having nexus with the extra amount of ₹ 45,71,382/- surrendered during survey barring statement given by the assessee while under state of confusion making addition simply on the basis of survey statement when nothing was found to support the disclosure is not justified. (iii) That learned CIT(A) has adopted imaginative approach to justify the reason for disclosure by the assessee to support the addition of ₹ 45,71,382/- made by the A.O. The CIT(A) observation are purely speculative and can not be a substitute for the material/evidence found during survey to support the disclosure. (iv) That stock of ₹ 1,94,28,618/- was surrendered on 17-03-2010. There is no reasons to presume that such stock inventory was available to the assessee during the entire year, so estimating the sale at ₹ 82,33,571/- for the period of only 14 days on stock inventory of ₹ 1,94,28,618/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roposed in the show cause notice and had requested only for consideration of opening stock of ₹ 10,80,000/-. The Assessing Officer further observed that assessee during survey proceedings himself had offered an amount of ₹ 2,40,00,000/- on other two occasions, one at the time of recording of statement and other in the surrender letter. He further observed that assessee had also given cheques of ₹ 36 lacs in order to pay the tax liability on surrender amount, therefore, he did not accept the contention of assessee and made the addition of ₹ 44,63,028/-. 4. Aggrieved the assessee filed appeal before learned CIT(A) and submitted various submissions and placed his reliance on various case laws, however learned CIT(A) did not agree with the contentions of the assessee and upheld the addition by holding as under: 6. The assessee has raised ground number 3 in appellate proceeding that AO has ignored the opening stock of ₹ 10.80,000/- and same was claimed by the assessee in the letter dated 23.03.2010, that it should be reduced from the total stock found at the time of survey ₹ 1,94,28,618/-. However, it is seen from the trading account filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon order of Hon,ble ITAT, Ahmedabad in case of Pramukh builder, where taxation of on money on basis of statement of partner was considered. Here in present case it has clearly been brought out that retraction of the assessee is not bonafide. Further other two cases are regarding evidentiary value of statement recorded during survey u/s 133A. In present case assessee is trying to suppress current year income as well by showing mere sale of ₹ 14,40,558/- during entire year, when it is having inventory of 1,94.28.618 in his show room. Even considering 6 month inventory as sales during the year, it will amount to unaccounted sale of ₹ 82,33,571/-( 97.14.309- 14,80,558) and on which it G.P. shown by assessee is applied, it will cover major portion of this addition disclosure. Under the circumstances the AO was justified in making addition of ₹ 44,63,028/- to the returned income. In view of above, ground of appeal number 1 2 are dismissed. 7. The ground number 3 regarding ignoring the opening stock of ₹ 10,80,000/- has already been discussed above and in view of above discussion, same is also dismissed. 5. Aggrieved the assessee is in appeal bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 2,40,00,000/-which included the physical stock at the time of survey and also the discrepancies if any in the documents. He submitted that there was no pressure on assessee as he himself had given cheques of ₹ 36 lacs for payment of tax liability. He submitted besides recording of statement the assessee again gave a surrender letter confirming the surrender and therefore, retraction is not valid. 8. We have heard the rival parties and have gone through the material placed on record. We find that assessee during survey proceedings had made a surrender of ₹ 2,40,00,000/- which represented unaccounted stock to the tune of ₹ 1,94,28,618/-. It is also a fact that assessee vide letter dated 22nd March,2010 received by Income Tax Officer on 23.03.2010 had reiterated from the surrender and had requested the authorities to make addition to the tune of ₹ 1,83,48,618/- only being value of physical stock opening stock. It is further a fact that the Revenue Authorities did not issue any notice to counter this retraction neither learned DR was able to demonstrate before us that the retraction was countered by the Assessing Officer. We further find that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ras High Court are reproduced below. The principal relating to section 133A of the Income Tax Act, 1961, are as follows: (i) 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; (ii) in contradistinction to the power under section 133A, section 132(4) enables the authorized officer to examine a person on oath and any statement made by such person during such examination can also be used in evidence under the Act. On the other hand, whatever statement is recorded under section 133A is not given any evidentiary value obviously for the reason that the officer is not authorized to administer oath and to take any sworn statement which alone has evidentiary value as contemplated under law; 9iii) The expression such other materials or information as are available with the Assessing Officer contained in section 158BB would include the materials gathered during the survey operation under section 133A; (iv) the m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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