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TMI Blog2025 (1) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the order dated 07.05.2024, impugned herein, passed by the Ld. Commissioner of Income Tax (Appeals) (in short Ld. Commissioner) under section 250 of the Income Tax Act, 1961 (in short the Act ) for the A.Y. 2018-19. 2. At the outset, it is observed that there is a delay of 5 days in filing the instant appeal, on which the Assessee has claimed that the Accountant responsible for the preparation of documents and finalization of the appeal was unwell and on medical leave from 01.07.2024 to 09.07.2024, and therefore the appeal was filed before the Tribunal on 12.07.2024 with a delay of 6 days. The delay was neither intentional nor malafide but because of the aforesaid reason. The Assessee in support of condonation of delay, has also filed duly sworn affidavit dated 06.11.2024. On the contrary, the Ld. D.R. refuted the claim of the Assessee. Considering the delay as miniscule and the reason stated for causing the delay as bonafide and genuine, the delay of 5 days is condoned. 3. Coming to the merit of the case, it is observed that a survey action u/s 133A of the Act was conducted in the case of the Assessee on 22.01.2018, wherein the statement of Shri Chandrakanth Ramanna Shetty, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of survey. There were certain expenditures in the form of electricity bills, government taxes like VAT, GST, ESIC, PF challans, municipal taxes etc. which remain to be taken into account while estimating the profit disclosed at the time of survey action. These expenditures have reduced the profits and brought it to the level disclosed in ITR of Rs. 12,32,100/- from the estimated profit at the survey action of Rs. 22,51,948/- We enclose herewith copies of these expenses viz. electricity bills, government taxes like VAT, GST, ESICPF challans, municipal taxes etc. to support of our claim of reduction in profit figure of Rs. 12,32,100/- declared by us in our IT return. With this we have substantiated the claim of reduction in profit amount of Rs. 10,19,848/- and hope that your honours will consider the above facts positively and do the needful. Further, we would also like to inform your honours that no deduction on account of interest and remuneration of partners is being claimed by us separately while declaring taxable income of our firm. 6. The AO though considered the reply of the Assessee, however, not found the same acceptable mainly on the following reasons: Reasons/Facts (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and after claiming deductions on account of ESIC, provident fund and salary, GST, interest, SGST (compensation), CGST (compensation) and MVAT and other depreciation and electricity expenses, ultimately had shown the net profit at Rs. 12,32,101/-. The Assessee further submitted that in the Assessee s own case for the A.Y. 2017-18 (ITA No.1887/M/2022) the Co-ordinate Bench of the Tribunal has also considered the identical facts and circumstances and the disclosure made by Shri Chandrakanth Ramanna Shetty and ultimately justified the Assessee s declaration of income u/s 44AD of the Act by observing and holding as under: 5. The brief facts are that the assessee firm is engaged in the restaurant business. Pursuant to the survey action u/s. 133A of the Act conducted in the business premises of the assessee dated 22.01.2018, the partner of the assessee firm Shri Chandrakant Ramanna Shetty made a voluntary declaration of Rs. 26,27,872/- on the total sales of Rs. 1,30,15,820/-. The assessee filed its return of income dated 30.03.2018, declaring total income of Rs. 19,52,370/-. Subsequent to that, the assessment order dated 29.11.2019 was passed u/s. 143(3) of the Act determining the total ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the total expenses of Rs. 1,03,87,948/- during the survey operation. The ld. CIT(A) on the other hand, relied on the decision of M/s. Pebble Investment and Finance Ltd. vs. ITO (2017- TIOL-238-SC-IT), wherein the Hon'ble Bombay High Court has upheld the evidentiary value of the statement recorded u/s. 133A of the Act. The ld. CIT(A) also relied on the decision of the Hon ble Delhi High Court in the case of Raj Hans Towers P. Ltd. vs. CIT 373 ITR 9 (Del-HC) for the same proposition. The ld. CIT(A) further held that the addition made by the A.O. was not merely based upon the statement of the partner but also was corroborated from the seized diary found during the survey operation which contained the details pertaining to sale and expenses incurred by the assessee firm. 10. From the above observation, we are of the considered view that ground no. 2 raised by the assessee challenging the impugned addition as only on the basis of the statement recorded u/s. 133A of the Act does not hold good in our opinion. It is pertinent to point out that the A.O. has considered the statement made by the partner of the assessee firm which was further corroborated by the diary found at the premi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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