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TMI Blog2016 (4) TMI 1446X X X X Extracts X X X X X X X X Extracts X X X X ..... sessees, not otherwise. The Authority cannot withhold such legal requirement from the assessee prejudicially and then, on the contrary, hold the assessee liable for not making good such legal requirement. Even the DBCT, in its Circular no.l4(XI-35) of 1995, dated 11.4.55, has directed that: Officers of the department must not take advantage of ignorance of an assessee as to his rights. It is one of their duties to assist a taxpayer in every reasonable way, particularly in the matter of claiming and securing relief and in this regard the officers should take the initiative in guiding a tax payer where the proceedings or other particulars before them indicate that some refund or relief is due to them. CIT(A) has remained oblivious of the above extant provisions of law and has, therefore, erroneously put the shoe on the wrong foot. CIT(A) has illegally rest the burden on the assessee by observing that it was the assessee who did not provide the requisite facility of weighment under the Standards of Weights and Measures Act, 1976 to the surveying Authority, whereas, as discussed hereinabove, the position is quite diametrically opposite. So, it was the surveying Authority who arbitraril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... standardized scale and did not keep the facility of scale at business premises without seeing the audit report. 4. That on the facts and in the circumstances of the case and in law, the learned CIT(A) has given the less relief at ₹ 1,00000/-out of ₹ 15,000/- disallowed by the AO out of various expenses." 2. Apropos Ground Nos. 1 to 3, the facts are that the assessce, during the year, was running a cotton factory. A survey was conducted at the premises of the, assessee. Excess stock of Narma was found. The AO made addition for an amount of ₹ 6,85,270/- on account of this excess stock of Narma. The excess stock of Narma was to the extent of 155.39 Qtls. The survey party drew inventory of the said excess stock, on the basis of weighment of the Narma. The grievance of the assessce is that such weighment was not done in accordance with the provisions of the Standards of Weights and Measures Act, 1976, by any standardized scale using standard weights and measures, but by adhoc weighing of the Narma by using cartons. Such method of weighment, pertinently, was objected to on behalf of the assessee at the very time of survey and also during the assessment proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on this ground to ₹ 50,000/-. It is ordered accordingly." 4. From the above, it is seen that the reason for the ld. CIT(A) to have confirmed the addition made is that it was the assessee who, as per the provisions of section 133A of the Income-tax Act, 1961, was enjoined and mandated to afford to the survey team, the necessary facility to check the stock found in the surveyed premises. According to the Id. CIT(A), however, there is no evidence that the assessee provided to the survey team the necessary facility of weighment by a standardized scale. The ld. CIT(A) further goes on to say that it is not a case where the assessee provided to the survey team the necessary facility of weighment of the Narma found in the survey, by a standardized scale, but it was the survey team, which refused to take inventory of the stock by the standardized scale so provided. The assessee's objection has been dismissed by concluding that the said requisite necessary facility of weighment by a standardized scale was not provided by the assessee to the survey team and that the AO had been fair and reasonable in allowing a discount of 10% in the value of the excess stock of Narma rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the above section 133A(1) succeeding sub-section (c) and preceding clause (i) shows that on entering the premises being surveyed, it is for the Income Tax Authority so entering to require the person attending to, or helping in the carrying on of any business or profession at the premises to be surveyed, to afford to him the necessary facility to check or verify the stock which may be found at the place surveyed, as is the requirement of section 133(1)(ii) of the Act. The operative word here is 'require'. Thus, the mandate of the section is that it is the surveying Authority who is to 'require' the person attending to or helping in the business carried on at the premises under survey to be afforded the necessary facility to check or verify the stock found during the survey. It follows that it is only on such requirement having been expressed by the surveying Authority, that the said authority shall essentially be afforded such facility for checking or verification of the stock found in the survey. 9. The above view, arisen from to the plain language employed by the legislature by use of the word 'require' in the section, as discussed above, is clearly ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stock found and such person refuses or evades to do so, the Authority shall have the powers vested in a court under the Code of Civil Procedure, 1908, when trying a suit, for enforcing compliance with the requirement made. The 'required' in the opening portion of the section is explained by the concluding words ' requirement made'. 12. Thus, it becomes amply clear that it is first for the surveying Authority to require the person attending to, or helping in the carrying on of any business or profession at the surveyed premises to afford the necessary facility to check or verify the stock found during the survey. Only then can the person afford such facility to the Authority. 13. Section 133A(6), thus, vests the surveying Authority with the powers under section 131 for enforcing compliance with the requirement arisen during the survey. This is also the view of the CBDT under Circular No.20D, dated 07.07.1964, qua inspection of books of account and other documents: "The section casts an obligation on any proprietor, employee or other person who may be attending to or helping in carrying on the business or profession to afford the Income-tax Officer or the aut ..... 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