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TMI Blog2023 (9) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... apers prepared by them, were torn and resultantly, the survey team had to leave the jewellery premise without completing their assigned task. HELD THAT:- As statement u/s 133A of the Act recorded on 06.01.2012 cannot be held to be voluntarily given; and the assessee s explanation shows that he made the statement on estimation which includes both pure impure silver. And since no physical inventory was prepared (due to disturbance) there is no other material in the hands of the AO/Ld. CIT(A) to make/confirm the allegation of excess stock of silver, therefore the addition made of Rs. 1,84,080/- was not warranted. As assessee has explained within 15 days the difference of stock as admitted during survey and reflected in books, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leave the jewellery premise without completing their assigned task. 4. During the assessment proceedings, the AO asked the assessee to file the books of account along with cash book, ledger account and stock register as well as bills/vouchers, and the sale and purchases etc, which assessee submitted and the AO acknowledges to have test-checked the same. According to the AO, the assessee/proprietor of jewellery shop during the survey operation on 06.01.2012 had admitted of stock of 200 Kg of silver jewellery in the shop worth Rs. 19 to 20 Lakhs. However, the AO notes that while recording assessee s statement on 23.01.2012 u/s 131 of the Act he stated that the stock of silver as on the date of survey was only at 113.928 Kgs; and thereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecords. The impugned addition was based on the difference of stock of silver as admitted by assessee during survey on 06.01.2012 vis a vis shown in the books of assessee as on 06.01.2012. According to the AO, on 06.01.2012, when the survey team confronted the assessee/proprietor of the jewellery shop [M/s. Rastogi Saraf Jewellers] he admitted to have silver stock of 200 Kgs as on that date. Based on the statement recorded on oath on 06.01.2012 u/s 133A of the Act, the AO concluded that the assessee had silver stock as on 06.01.2012 of 200 Kg, and since assessee s books of account reflected only stock of silver at 113.928 Kg as on that date of survey, he added the difference of 86.072 Kg (200 Kg. 113.928 Kg) as undisclosed stock of silver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot by itself be made the basis of drawing adverse inference and made the basis of addition. Per-contra, the Ld. DR pointed out that assessee had given the statement during survey voluntarily and he being the owner of jewellery shop is the best person to know the stock of silver as on that date (ie. 06.01.2012) and cited inter-alia the decision of the jurisdictional Hon ble High Court in the case of Dr. S. C. Gupta Vs. CIT [248 ITR 782 (All)] and Sanjeev Agrawal Vs. ITSC [(2015) 56 taxmann.com 214 (All)]. Further, according to Ld. DR, due to disruption of survey operation by local traders/mob, the survey team could not complete the physical inventory of stock. And therefore, the physical non-verification of the stock could not be used agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gain on 23.01.2012 u/s 131 of the Act and assessee had stated inter-alia that stock of silver as on 06.01.2012 was only 113.928 Kgs and not 200kgs. And the AO confronted him with the statement made during survey and assessee explained to him that during survey he was under mental pressure and his admission of stock was on the basis of estimation. It was added that his estimation of stock contained both pure impure material, and purity of silver was only to 60 to 70%. And thus it was clarified to AO that the stock of silver he stated contained both pure impure material. So according to assessee, no adverse inference could have been drawn by the AO/Ld. CIT(A) on the basis of statement even if made by assessee during survey without rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 15 days of survey ) has stated that during survey on 06.01.2012, he was under pressure; and clarified that that his admission of stock as 200 Kgs was based on estimation and also that stock includes both impure pure material and that it is common knowledge that purity of silver is 60-70%. It is noted that this explanation given by assessee [as noted in assessment order] has not been rejected by AO. And without assigning any reason to repel the clarification given by assessee regarding the stock, the action of AO to add the excess stock cannot be countenanced. The assessee s assertion u/s 131 of the Act that while he gave statement u/s 133A of the Act, he was under pressure has not been found to be false by the AO/Ld. CIT(A). In such a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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