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TMI Blog2020 (5) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... come - Assessee has given a chart showing the amount of profit for the last 3 years along with detail of its sister concern namely Sanvira Infrastructure engaged in similar line of business and there average profit comes at 6.29% and 7.27% respectively. In our considered view average profit of sister concern will be justifiable as the same is showing profit in all 3 year where as the assessee is showing profit in current year only. We set aside the finding of the CIT (A) and direct the AO to tax the element of profit embedded in such business receipts at the rate of 7.21% by treating the same as net profit chargeable to tax. The ground of appeal of the assessee is partly allowed. - ITA No. 2351/AHD/2017, ITA No.2352/AHD/2017 - - - Dated:- 11-3-2020 - Shri Rajpal Yadav, Vice President And Shri Waseem Ahmed, Accountant Member For the Assessee : Shri Tushar Hemani, with Shri P.B. Parmar, A.Rs For the Revenue : Shri O.P. Sharma, CIT.D.R with Shri L.P. jain, Sr.D.R ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeals have been filed at the instance of the different Assessee against the separate order of the Learned Commissioner of Income Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Id. AO in levying interest u/s.234A/B/C of the Act. 8. The learned CIT(A) has erred in law and on facts of the case in confirming action of the Id. AO in initiating penalty u/s.271(l)(c) of the Act. 2. All the grounds of appeal are interlinked, hence we have clubbed all of them for the purpose of adjudication. The only issue raised by the assessee is that the learned CIT (A) erred in confirming the rejection of books viz a viz confirming the addition of ₹ 1,42,58,000/- based on statement recorded and diaries impounded during survey, without verifying the veracity of the same. 3. The fact in brief is that the assessee is a firm and engaged in the business of property development and construction of buildings. There was the survey for the year under consideration under section 133A dated 27/12/2013 at the business premises of the assessee. 3.1 During course of survey certain dairies were found containing the details of some transaction. When the same was confronted to one of the partner of the firm namely Shri Vikash Purohit at the time of recording statement, he admitted to disclose the unaccounted income of ₹ 2,05,00,000/- on the basis of transaction note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pected if the entire addition is made to the total income of the assessee. 6. On the other hand the learned DR submitted that there was a diary found during the course of survey having recorded the business receipts which were not disclosed in the books of accounts. This fact is undisputed. Accordingly the learned DR claimed that the question of estimating the profit on such receipts does not arise. As per the ld. DR there was no information available in the diary about the expenses incurred against such business receipts. The learned DR vehemently supported the order of the authorities below. 7. We have heard the rival contentions of both the parties and perused the materials available on record before us. Admittedly, a diary was found during the course of survey recording the transactions of receipts for ₹ 2,05.50,000/-. Undisputedly, part of the transactions amounting to ₹ 62,92,000/- were disclosed in the regular books of accounts as business receipts. There is no dispute about the fact that the diary found during the course of survey belongs to the assessee in pursuance to the provisions of section 292C of the Act. Similarly the contents of such diary are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he above, we are of the considered opinion that it is the only element of profit embedded in such business receipts which can be added to the total income of the assessee. In holding so, we also draw support and guidance from the judgment of Hon ble Jurisdictional High Court in the case of CIT vs. Samir Synthetics Mill reported in 326 ITR 410where it was held as under: As a result of search by the Excise Department in the business premises of the assessee, various discrepancies were noted in the production of the assessee. The assessee could not even be able to reconcile the production, sales and the closing stock although the specific opportunity was provided by the Assessing Officer. Accordingly addition to the assessee's income was made on account of suppression of sale consideration. Held that, the addition was justified on account of suppression of sale consideration but only to the extent of profit. 7.4 We further draw support and guidance from the order of the Jurisdictional High Court in the case of CIT vs. Gurubachhan Singh J Juneja reported in 302 ITR 63. The relevant extract of the judgment is reproduced as under: 6. Hence, in absence of any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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