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TMI Blog2022 (9) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... g on information received from the customs authority and treated the undervaluation of the imported goods as unaccounted investment and thereby making peak addition on account of the same. Assessing Officer also made addition of Gross Profit by taking such unaccounted purchase as sale made by the assessee in cash without making any independent inquiry. It was observed by both the authorities that the Assessing Officer has solely relied upon the information from the Customs authority and statement of Pragnesh Jariwala - Director of the assessee-company made before DRI which was retracted later on. Tribunal has also considered the fact of the appeal being allowed by the Custom, Excise Service Tax Appellate Tribunal, Mumbai Bench in ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenging the judgment and order dated 27.08.2019 passed by the Income Tax Appellate Tribunal, Surat Bench, Surat (For short the Tribunal ). 2. Following substantial questions of law are proposed by the Revenue : (1) Whether on the facts and in the circumstances of the case and in law, the Hon ble ITAT has erred in not appreciating the addition made by the AO on account of undisclosed profit and unaccounted investment in undervalued goods when Assessee admitted before DRI in statement having evidential value for under invoicing of imports, though later retracted, but ignored the Hon ble Supreme Cout in Surjeet Singh Chhabra Vs. Union of India [1997 (89) ELT 646(SC)] holding that confession, though retracted, is an admission and bind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siness of import of metalized polyester film/yarn and manufacturing of imitation Jari/Kasab and Badla. 4. The assessee company filed its return of income for the assessment year 2008-2009 on 30.08.2008 declaring total income at Rs. 13,50,531/-. The case of the assessee was taken for scrutiny assessment and the Assessing Officer vide order dated 29.10.2010 passed under section 143(3) of the Act, 1961 determined the total income of assessee at Rs. 24,30,282/- by making addition under the head of unaccounted investment (peak) at Rs. 3,97,485/- and Estimation of Gross Profit on account of unaccounted purchases at Rs. 6,82,266/-. 5. Being aggrieved, the assessee preferred appeal before the CIT(Appeals), Surat. CIT (Appeals) deleted the add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Authorities, without making any independent enquiries is not tenable in law. Hence, the Ld. CIT (A) has rightly deleted the same. We, further, note that the Ld.CIT(A) has also supported his view by placing reliance in the case of Vinod Solanki (Civil Appeal No. 7407 of 2008] wherein the Honourable Supreme Court held that evidence brought on record by way of admission statement or confessional must be substantially corroborated by the other independent and cogent evidences. The Honourable Gujarat High Court in the case of Narendra Chandulal alias Babubhai Badgai [Tax Appeal No.370 of 1999] also expressed the similar view. We further observe that Hon'ble Custom, Excise Service Tax Appellate Tribunal, Mumbai Bench [CESTAT] in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as undervalued the imported goods during the year under consideration and the Assessing Officer has made the additions on the basis of the information received from DRI and therefore, the assessee was rightly held to have paid for the imported goods outside the books of accounts. It was further submitted that the Assessing Officer has rightly held that the assessee has carried on sales on cash over and above sums as disclosed in the books of accounts. It was submitted that the Tribunal failed to consider that in the present case, a survey action under section 133A of the Act, 1961 was carried out on 10.3.2008 wherein the assessee company had disclosed an amount of Rs. 10,00,000/- as unaccounted income for the assessment year 2008-2009. Lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the information from the Customs authority and statement of Pragnesh Jariwala - Director of the assessee-company made before DRI which was retracted later on. 9. The Tribunal has also considered the fact of the appeal being allowed by the Custom, Excise Service Tax Appellate Tribunal, Mumbai Bench in case of assessee holding that the allegation of undervaluation of imported goods was not established and therefore, directed the Customs Authority to grant the refund of customs duty collected by them. It was observed by the Tribunal that when the very basis on which the addition was made by the Assessing Officer stands deleted by the CESTAT in appeal preferred by the assessee, the addition based on their information does not survive ..... X X X X Extracts X X X X X X X X Extracts X X X X
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