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TMI Blog2025 (3) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... as unexplained money u/s 69A of the Act. The addition so made and confirmed being completely contrary to the provisions of law and facts deserves to be deleted in full. 2.2 The Id. CIT(A) seriously erred in law as well as in facts of the case in confirming the invoking of S.69A of the Act which is contrary to the provision of law and facts in the present case and hence the same deserves to be quashed. Consequently, the impugned addition of Rs. 22,49,500/- deserves to be deleted in full. 3. Rs. 1,34,212/-: The Id. CIT(A) further erred in law as well as in the facts of the case confirming the addition being made on account of alleged excess stock found during the course of survey. The addition so made and confirmed being completely contrary to the provision of laws and facts deserves to be deleted in full. 4. The Id. CIT(A) further erred in law as well as on the facts of the case in imposing tax, surcharge, cess etc. as per provision of S. 115BBE of the Act. The invoking of S. 115BBE is contrary to the provisions of law, on facts and without jurisdiction. The appellant totally denies its liability. The tax liability so created, kindly be deleted in full. 5. The Ld. AO/ NFAC s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wara which is engaged in trading of TMT bars, Angle plates etc and the above firm has sold TMT bars, angle plates etc, to some of the parties and the cash found from his possession was sourced from the outstanding debtors of the above firm M/s Babji Stell Traders. In the meanwhile, survey u/s 133A of the Act was also carried out in the case of M/s Babji Steel Traders by the DDIT(Inv.), Ajmer on 31.10.2018 to verify the sources of above cash of Rs. 22,49,500/-. Statement of Shri Turab Ali Bohra was also recorded u/s 131 of the I.T. Act, 1961 on oath, wherein he had confirmed the statement given by Shri Shyam Singh Rathore by stating that the cash amount found from the custody of Shri Shyarn Singh Rathore belongs to his Prop. Concern M/s Babji Steels Traders and Shri Shyam Singh had collected cash from the debtors of the firm. Shri Turab Ali Bohra had also confirmed that he had sold iron goods to above parties and Shri Shyam Singh, an employee of M/s Babji Steel Traders, Bhilwara had collected cash amounts from parties wherein amount was receivable from the various parties. During post survey proceedings, the assessee was asked to furnish documentary evidence in support of statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances of the case and also the retraction made by the assessee from his earlier statement recorded u/s 131 of the I.T. Act, 1961, the version of the assessee was not found acceptable and therefore, it is considered that the amount of Rs. 22,49,500/- found from the possession of Shri Shyam Singh Rathore and belongs to Shri Turab Ali Bohra was considered as unexplained money of Shri Turab Ali Bohra for which he has not been able to satisfactorily prove the sources thereof. Accordingly, an addition of Rs. 22,49,500/- was made to the total income of the assessee on substantive basis by considering the same as his unexplained money u/s 69A r.w.s. 115BBE of the I.T. Act, 1961 and brought to tax accordingly. During the course of survey proceedings, physical verification of stock was made and it was found that the physical availability of stock on the date of survey was at Rs. 4,28,09,129/-, where as per the books of account the stock as on date of survey was at Rs. 4,26,74,917/-. Therefore, the stock was found excess by an amount of Rs. 1,34,212/-. The assessee has accepted the above difference of stock of Rs. 1,34,212/- and offered the same during the course of survey proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f appeal 1 is hereby rejected. 5.2 I have considered the facts of the case and written submissions of the appellant as against the observations/findings of the AO in the assessment order for the year under consideration. The contentions/submissions of the appellant are being discussed and decided as under:- The stock was physically taken in the presence of the assessee during the course of survey proceedings u/s 133A of the I.T.Act. 1961 and difference of Rs. 1,34,212/- was found and during the course of assessment proceedings, the appellant was unable to substantiate his claim with supporting evidences and reconciliation statement. Further during the time of survey proceeding, the appellant had surrendered this as his income. I do not find any merit in the submission of the appellant and confirm the addition made by the AO of Rs. 1,34,212/- as undisclosed income of the assessee on account of excess stock found during the survey proceedings. Thus, grounds of appeal 2 is hereby rejected." 5. As the assessee did not find any favour, from the appeal so filed before the ld. CIT(A), the assessee has preferred the present appeal before this Tribunal on the ground as reproduced herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals. GOA 2: Addition of Rs. 22,49,500/- on account of unexplained money u/s 69A: (AO Pg. 7/CIT(A) Pg. 10, Pr. 4.2.6) Facts: The finding of the AO at pg.7 of order is as under: "The above submission of the assesses has been carefully gone through and the same has not been found acceptable due to the reasons that the asseesse has already got the amount of Rs. 12. 43,240/- verified during the course of Survey Fest Survey proceedings to the DDIT (Inv.), Ajmer and has also accepted the same in his statement recorded u/s 131 of the I.T. Act, 1961 on the basis of which, it was accepted that the amount of Rs. 12,43,240/ was receipts from his outstanding debtors which he could not entered in his books of accounts on the date of survey and therefore, protective addition of Rs. 10,04,580/- was only made in the hands of Shri Shyam Singh Rathore. Now, during the assessment proceedings, the assessee has changed the entire story, being the reason that the above debtors from whom the cash was stated to be received by Shri Shyam Singh Rathore, had subsequently made the payments through DD/Account Payee Cheques/NEFT/RTGS etc. to the assessee. So now this has become at Unmanageable task for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found acceptable and therefore, it is considered that the amount of Rs. 22,49,500/- found from the possession of Shri Shyam Singh Rathore and belongs to Shri Turab Ali Bohra is the unexplained money of Shri Turab Ali Bohra for which he has not been able to satisfactorily prove the sources thereof. Accordingly, an addition of Rs. 22,49,500/- is being made to the total income of the assessee on substantive basis by considering the same as his unexplained money u/s 69A r.w.s. 115BBE of the I.T. Act, 1961 and brought to tax accordingly. Penalty proceedings u/s 271AAC of the I. T. Act, 1961, are also being initiated separately on the above discussed issue". In the first appeal, the ld. CIT(A) firstly repeated all the facts of the case and commenced his discussion from Para 4.2, page 8 onward. However, upto pr. 4.4 again he repeated all those facts which he had already narrated in Para 2, Para 3 to 3.7 at pages 3 to 6 of his order. Further after reproducing all the ledger accounts, starting from page 11-20, his findings starts. From, a careful reading of the orders of the authorities below, the crux of the observations and the conclusions are that during the course of investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trusted buyers by him. All above post survey ledger entries clearly gives idea that contentions put forth by appellant are mere afterthought to cover up discrepancy of cash seized by the Police. Further by submitting such ledger account cannot establish that the cash seized was actually related to such cash sale. Is such things were true then the same should come out during the course of cash seizure by the police or during the course of survey. But no such evidences were produced at that time. The appellant had completely changed their version as what suited to them. The contention put forth by the appellant is misleading and not justifiable. 4.2.8 On the basis of above discussion and the facts of the case, I confirm the addition made by the AO as the appellant has failed to substantiate his claim with documentary evidences as the evidences produced during the course of appellate proceeding has no relevance with the facts of the case and fabricated documents. Hence the same cannot be relied upon. The addition of Rs 22,49,500/- is hereby confirmed. Thus, grounds of appeal 1 is hereby rejected." The only moot question involved was whether the source of Rs. 22,47,820/- found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make various efforts and it was under this background, sales were made to small traders by attracting them by providing incentives, supply at competitive price, etc. Further to provide them easy facility to make payment also, collection points were established. For this purpose, the existing nine parties, who were the regular buyers, were requested, who, in view of the long-standing trade relations, accepted the cash received by them from these small traders and after sometime was handed over to the employee like Shyam Sunder Rathore. Thus, there was nothing abnormal, which is a usual trade practice. 2.3 Accordingly, in the books of accounts, the appellant maintained ledger accounts of those nine parties towards regular sales made to them. In addition, separate ledger accounts (PB 25-182) were also made of these nine parties (but their title started with "CP- Name of the Party") wherein the cash collected by them on behalf of the appellant was debited, showing balance outstanding of Rs. 10,522/- also. Kindly refer enclosed chart. Since, such amount was seized and requisitioned by the Department, before it could reach to the hands of the appellant, hence the same was considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... know the complete details, which is evident from repeated questions raised vide Q. 8 and 9 to reply after re collection. Further, the assessee also stated that such cash was out of sales made (AO pg.2 & 3). Similarly, the assessee simply confirmed the statement of Shri Shyam Sundar Rathod, vide answer to Q. 19 and 20 (PB 18-19 also at AO pg. 11-12), that this was the recovery of cash relating to his proprietary. He also asserted that all transactions are duly entered in the accounts, and are supported by bills and vouchers. Even copies of ledger a/c, GST invoices and ID Proof of all the 9 buyers i.r.t regular sale were submitted. On the other hand, Shri Asif Ansari, his accountant, was on leave to attend a wedding at that point of time, which is also stated in the statements of assessee. Thus, till the stage of inquiry by the DDIT (Inv.), both, employee and the assessee, merely stated that it was recovery made towards the sales made related to the proprietary. There was no occasion for a bifurcation of recoveries towards sales made to those parties and amount collected from those Cash Collection Centers. Later on, during the course of the assessment proceedings, the assessee, aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts and then he came out with all the correct facts after discussion with the accountant starting from afresh. One has to appreciate as to why the assessee should have reversed the stand taken by the Department in its favour. This speaks of bona fides of assessee's explanation. 3.5 The retraction means when a factual statement (normally against the assessee) is made initially and thereafter, the assessee takes a U-turn by denying that what was stated earlier was not correct. Here the case was altogether different in as much as the substantive fact of there being cash realization towards the sale made, was the same and it was only a clarification given to avoid any possible confusion. 3.6 Even assuming the employee and assessee could state something wrong, yet we cannot lose sight, and even the Hon'ble Courts have also time to time recognized this unavoidable fact of the existence of tension and surcharged atmosphere. Kindly refer Jagdish Narayan Ratan Kumar 22 TW 209 (JP), since approved by Hon'ble Rajasthan High Court. The authorities below did not appreciate that the Survey & Search creates tension in the mind of the person being searched and a layman normally used to lose c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be deprecated. 4.2. Sales declared before GST Department: Admittedly sales so made suffered GST and it is not the case of the Department that GST authorities have disbelieved the claimed sales. Interestingly, the AO itself happily taxed the profit arising from such sale offered through the net profit in the ROI. Once the sales has been declared, stands duly and fully established, assessed by the GST department and even accepted and taxed by the Income Tax Department, the cash realization therefrom, could not have been denied in any manner whatsoever. There is absolutely no convincing reason provided by the authorities below as why not to accept the sales so made. Very pertinently, there is absolutely not a single word whispered doubting the claim of the sales made. What to talk of establishing otherwise. 4.3 Kindly refer Smt. Harshila Chordiya vs. ITO (2008) 208 CTR 208 / 298 ITR 349 (Raj) (DC 1-8) wherein it was held that the Tribunal has found as a fact that the assessee was receiving money from the customers against which delivery of vehicles was made - such cash deposits are self - explanatory and would not attract S. 68/69A - Therefore, no addition could be made. The rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cash deposits, the best and valid evidence normally, is the regularly maintained books of accounts. It is submitted that undisputedly & admittedly the assessee has maintained all the books of account consisting of cash book, ledgers and stock register etc. The entire sales, purchases and expenses are fully vouched. The accounts are audited u/s 44AB of the Act (PB 199-214). The cash book was maintained on day-to-day basis showing all the receipts/incoming and expenses/outgoings. Further all the required details from books of account were duly submitted before the AO during the subjected assessment proceedings. Hence, there was no reason as to why the AO should have doubted. 7.2 It is now well settled that where assessee has regularly maintained books of accounts is an admissible evidence u/s 34 of the Indian Evidence Act, 1872. This holds good more particularly, when the ld. AO did not disbelieve or did not doubt or even did not reject the same u/s 145 of the Act. 8. Regular sale treated as unexplained cash credit- Double Taxation: 8.1 Once the sale is declared as income by the assessee, the question of treating the same amount as unexplained money u/s 69A of the Act results ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of cash sales and cash realizations from debtors was a normal feature of assessee's business and that cash deposit figures of October and November were a little higher due to cyclic variations, mainly on account of festivals and marriage season in Northern India during that time - It was also noted that cash deposits in November mainly came from opening cash in hand which was duly supported by fact that assessee throughout year maintained corresponding cash in hand balances on every first day of preceding months of financial year - Whether, on facts, impugned addition made under section 68 would not be sustainable - Held, yes [Paras 8.2, 8.3, 14.4 and 14.5] [In favour of assessee]." 8.2.3 The Hon'ble High Court of Delhi in the case of Principal Commissioner of Income-tax v. Agson Global (P.) Ltd.* [2022] 134 taxmann.com 256 (Delhi) has held that: "Section 68 of the Income-tax Act, 1961 - Cash credit (Bank deposits) - Assessment year 2017-18 - Assessee-company was engaged in business of selling dry fruits - Post-demonetization, assessee deposited cash amounting to Rs. 180.53 crore in its bank accounts - Assessing Officer held that cash deposits made by assessee repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... akeshwari Cotton Mills v/s CIT (supra). 10. Availability of funds-not denied: The Hon'ble High Courts and the Tribunals in different factual situations have considered the availability of the cash when the Dept. failed to establish that such cash (which was available on account of withdrawal from the banks or sale proceeds of the goods traded, the jewellery and so on) stood utilized elsewhere and have held that no addition can be made. 10.1 In the instant case, in view of the undisputed fact of sufficient cash availability from the sales, immediately prior to the subjected bank deposits, the AO was not supposed to doubt the explanation of the assessee, more particularly, in view of the following cases, which is a settled law now: 10.2.1 Kindly refer CIT v/s P.V. Bhoopathy (2006) 205 CTR 495 (Mad) held: "Appeal (High Court)-Substantial question of law-Income from undisclosed sources- AO did not accept various sources of income explained by the assessee and made additions under ss. 68 and 69 in respect of difference between the investments and the sources accepted by him-Tribunal accepted the explanation of the assessee vis-a-vis availability of funds with the assessee from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and such money, bullion, jewellery or valuable article is not recorded in the books of account, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of acquisition of the money, bullion, jewellery or other valuable article, or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the money and the value of the bullion, jewellery or other valuable article may be deemed to be the income of the assessee for such financial year." 11.2 From the analysis of the above S.69A reveal that addition of amount can be called for when the said sum is found not recorded in the books of accounts maintained by the assessee and the assessee offers no explanation about the nature and source of such amount. But undisputedly in the case of appellant there are numerous evidences produced before lower authorities and proper explanation has been accorded, as discussed in great details in this submission earlier, hence, there appears no reason to invoke S. 69A of the Act. Hence the entire impugned addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntions/submissions of the appellant are being discussed and decided as under:- The stock was physically taken in the presence of the assessee during the course of survey proceedings u/s 133A of the I.T.Act,1961 and difference of Rs. 1,34,212/- was found and during the course of assessment proceedings, the appellant was unable to substantiate his claim with supporting evidences and reconciliation statement. Further during the time of survey proceeding, the appellant had surrendered this as his income. I do not find any merit in the submission of the appellant and confirm the addition made by the AO of Rs. 1,34,212/- as undisclosed income of the assessee on account of excess stock found during the survey proceedings. Thus, grounds of appeal 2 is hereby rejected." Hence, this ground. Submission 1. At the outset, there is no hesitation to say that the ld. AO has proceeded on mere suspicion, surmise and conjecture. His approach was based on misconception of law and fact and his own way of reading the facts which is not at all in accordance with the settled accounting practices and provisions of law. Even the facts have been twisted and misread to suite his own purpose. This is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.2018 in Q.21 Pg. 10-11) (PB 19-20) for arriving at the figures of Rs. 1,34,212/- is completely wrong on facts and in law both. The conclusion of the AO based thereon that there was excess stock of Rs. 1.32 lakhs is completely erroneous for the reason that rate adopted by Survey team is without any justification. Kindly refer the table here under: 1 2 3 4 5 Sr. No. Particulars As per Physical verification As per Books of accounts of assessee Variations (4-3) a Weight (in kg) 9,93,029 9,92,115 914 b Amount (in Rs) 4,28,09,129 4,26,74,917 1,34,212 c Rate per Kg (b/a) 43.11 43.01 0.10 From the above table it can be seen that the rate of Rs. 43.11/Kg for valuation is totally without any justification nor does AO has discussed or justified in the order. Alternatively However, if the rate of Rs. 43.01/Kg of assessee is made basis for computation the difference would be of meager amount of Rs. 39,311/- only which comes out to be 0.09% considering the total value of stock being Rs. 4.26 crores. In any case, the difference is only because of valuation, and very immaterial difference in the quantity being only 0.09% of total value of stock. The valuation does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell settled law that as per section 133A, there is nothing which suggests that a statement can be recorded on oath before the commencement of Survey or during Survey. However, if recourse is taken to section 131(1), during the survey, a statement can be recorded on oath, as the powers to record a statement on oath are vested in the authority u/s. 131(1) read with section 133(6) and in the circumstances specified u/s. 133(6) only. Section 133A does not empower any ITO to examine any person on oath, so statement recorded during Survey u/s 133A has no evidentiary value and any admission made during such statement cannot be made basis of addition. Reliance placed CIT v. Khader Khan Son (2008) 300 ITR 157 (Mad.) (HC). Affirmed by Apex Court in, CIT v. S. Khader Khan Son (2012) 210 Taxman 248(2013) 352 ITR 480 (SC) / (2012) 25 taxmann.com 413 (SC). Hence the impugned addition of Rs. 1,34,212/- being the alleged excess stock deserves to be deleted in full. GOA-4 S.115BBE wrongly invoked: Facts: The ld. AO at pg. 13 of the order noted as under: "Therefore, considering the facts and circumstances of the case and also the retraction made by the assessee from his earlier statement rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the income is not capable of being classified under any other head being income from salary, house property, capital gain, business or profession. 3.2 A combined reading of S. 14 with S. 56 of the Act makes is evidently clear that for the assessment of an income it must have to be classified under four heads of income as enumerated u/s 14 and if it doesn't fall under any specific head of income as per item A to E of S. 14, such income has to be assessed under the residuary head of income i.e. item F of S. 14. Therefore, income added u/s 68 or 69 etc. has to be given a specific head in terms of S. 14, 4.3 The Hon'ble Supreme Court in case of Karanpura Development Co Ltd vs. CIT [1962] 44 ITR 362 (SC) held that these heads are in a sense exclusive to one another and income which falls within one head cannot be brought to tax under another head. Further, the Hon'ble Supreme Court in case of Nalinikant Ambalal Mody v CIT [1966] 61 ITR 428, has held that whether an income falls under one head or another is to be decided according to the common notions of practical man because the Act does not provide any guidance in the matter. Of course, lot of judicial precedents ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stock of rice was not sold out. In addition to the purchase and the closing stock, the amount of Rs. 70,04,814/- also found credited in the profit and loss account as income from undisclosed sources. The net effect of this double entry accounting treatment is that firstly the unrecorded stock of rice has been brought on the books and now forms part of the recorded stock which can be subsequently sold out and the profit/loss therefrom would be subject to tax as any other normal business transaction. Secondly, the unrecorded investment which has gone in purchase of such unrecorded stock of rice has been recorded in the books of accounts and offered to tax by crediting the said amount in the profit and loss account. Had this investment been made out of known source, there was no necessity for assessee to credit the profit/loss account and offer the same to tax. Accordingly, we do not see any infirmity in assessee's bringing such transaction in its books of accounts and the accounting treatment thereof so as to regularize its books of accounts. In fact, the same provides a credible base for Revenue to bring to tax subsequent profit/loss on sale of such stock of rice in future. 2.11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the addition of Rs. 22.49 lakhs could not be subjected to S. 115BBE of the Act. GOA-6 Charging of Interest u/s 234A & 234B and also 244A: is consequential and kindly be decided accordingly. The above submissions have been made based on the instructions and the information provided of/by the client." 6. In addition to the above written submission, the ld. AR appearing on behalf of the assessee submitted that ; "GOA 2: Addition of Rs. 22,49,500/- on account of unexplained money u/s 69A: (AO Pg. 7/CIT(A) Pg. 10, Pr. 4.2.6) 12. During the course of hearing, the Hon'ble Bench directed to submit copies of GST returns, etc. of which papers were submitted, and also tabulated, by way of 3rd paper book at Pg. 235 to 260. When asked, it was submitted that GST returns for the month of June, 2018 was filed on 07.08.2018 as evident from 3rd PB-249, further GST-R 3rd for the month of June, 2018 also shows the date of filling of 03.08.2018. This was based on the various invoices issued for the month of June, 2018 for the total sale proceeds of Rs. 40,27,510.70/- and taxable value of Rs. 34,13,143.94/-. Duly reconciles with the summary of the complete invoices issued for this month 3rd PB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thore. The appellant entered all the sale proceeds in the regularly maintained books of account which included cash book also and there was sufficient cash in hand available on 28.10.2018, just prior to the day of seizure. Thus, this apparent state of affair was to be established as unreal, which the revenue has completely failed. 14. Further S. 69/ 69A requires an explanation from the assessee and once given, it has to be objectively tested. A good proof cannot be converted into no proof. Moreover, discretion conferred upon the AO has to be exercised judiciously as held in CIT vs Smt. P.K. Noorjahan (1999) 237 ITR 0570 (SC): "As pointed out by the Tribunal, in the corresponding clause in the Bill which was introduced in Parliament, the word "shall" had been used but during the course of consideration of the Bill and on the recommendation of the Select Committee, the said word was substituted by the word "may". This clearly indicates that the intention of Parliament in enacting s. 69 was to confer a discretion on the ITO in the matter of treating the source of investment which has not been satisfactorily explained by the assessee as the income of the assessee and the ITO is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee along with sale invoices issued to small traders, fabricators and their ID proof. 25-182 5 Copy of written submission filed before CIT(A) dt. 27.07.2023 in response to notice u/s 250 dt. 12.07.2023 183-184 6 Copy of acknowledgement of Reply dt. 20.09.2021 in response to notice u/s 142 dt. 16.09.2021 185-190 6 Copy of Audited Balance Sheet, Trading A/c and Profit & Loss statement for the F.Y 2018-19 (AY 2019-20) along with the accounts (Relevant extract only) 191-198 7 Copy of Tax Audit Report in Form 3CD for the F.Y 2018-19 (AY 2019-20) (Relevant extract only) 199-214 8 Copy of GST Return being details of outward supplies made (Form GSTR-1) for period June 2018 215-219 9 Copy of GST Return Summary of outward and inward supplies made (Form GSTR-3B) for period June 2018 220-222 10 Copy of GST Reconciliation statement (Form GSTR-9C) for FY 2018-19 223-234 Another volume S. No. Particulars Page No. 1 Copy of Invoices/Vouchers list B2C (Small) for the period of June-July 2018 235-248 2 Copy of GST Return being details of outward supplies made (Form GSTR-1) for period June 2018 249-258 3 Copy of GST Return Summary of outward and inward supplies ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9A of the Act is duplicated addition of the sales recorded in GST return for the month of June, July, August and September filed. During the course of hearing it was also contended that the proceeds of sales found in possession at the verification made by SHO is nothing but realization of that sales made by the assessee from those small parties and they have made the deposit to the collection center designated by the assessee. There is no dispute as to realization has been received but only dispute is that parties have acted on behalf of the assessee as cash collection centre. As regards the excess stock found, the ld. AR of the assessee submitted that it is the difference of 0.24% in terms of value of holding of the stock and it is practically impossible to weigh stock 2000 matric tone and that too with accuracy and the difference has alleged difference of Rs. 1,34,212/- is required to be ignored. As regards ground No.4, regarding chargeability of cash as per provisions of section 115BBE of the Act, the ld. AR of the assessee relied upon the decision of Rajasthan High Courts as referred to in the written submissions. 9. Per contra, the ld. DR relied upon the finding of recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here cannot be duplicate addition, one at the time of recording sales and other at the time of when the sales proceeds is realized to cash. The ld. AR of the assessee also submitted that in this case, the ld. AO made addition u/s 69A of the Act when the assessee proved that the cash which was found was out of the sales proceed recorded in the regular books of accounts and therefore, applicability in the present case of section 69A of the Act cannot be made and consequential the provisions of section 115BBE of the Act cannot be made apply in the case. As regards the excess stock found, the ld. AR of the assessee repeatedly argued that considering the 2000 matric tone and odd quantity of stock. It is practically impossible for the assessee to measure it accurately the stock taking process and difference being 0.25% be ignored. In terms of value be ignored the on account of error and omissions recorded while taking the physical stock. Therefore, he prayed that addition is required to be deleted. 11. We have heard the rival contentions and perused the material placed on record. Ground no. 2.1 & 2.2. raised by the assessee is in relation to the addition of Rs. 22,49,500/- made by ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee had produced copy of ledger in respect of only 7 parties out of 9 parties along with complete books of accounts. After examination, the DDIT(Inv.), Ajmer, gathered that parties namely M/s M.S. Traders, M/s Shiva Kripa Enterprises, M/s Patel Steel Traders have substantial debit balance. M/s Janta Steel now known as M/s Ajmer Industrial Corporation and M/s Malviya Agro Industries has debit balance Rs. 70,040/- and Rs. 1,930/- respectively only. Accordingly, on the basis of the above submission of the assessee, an amount of Rs. 12,43,240/- was considered as verifiable by the DDIT(Inv.), Ajmer being cash receipt against the realization of above referred debtors and the balance amount of Rs. 10,04,580/- was considered as unexplained. During assessment proceeding in the case of Shri Shaym Singh Rathore based on the submissions made by Shri Turab Ali Bohra before the DDIT(Inv.), Ajmer and also considering his statements given during the course of survey proceedings u/s 131 of the I.T. Act, 1961 on oath, an addition of Rs. 10,04,580/- was made on a protective basis vide assessment order dated 24.05.2021 in the hands of Shri Shyam Singh Rathore, as he was not responding to the notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as given the finding that the assessee is trying to justify the story of cash seized on 29.10.2018. Thus, as contended by the ld. AR of the assessee, ld. CIT(A) also did not discuss and deals with the merits of the records already placed on record. Whereas the ld. DR objected that since these records are not discussed or verified the relief cannot be granted to the assessee without being confronted to the assessee on the material placed on the record. In light of this set of facts before us, we deem it fit to restore the matter to verify the contention that has been made by the assessee with that of the statement recorded at the time of survey. Thus, ld. AO will verify the contentions of the cash sales made by the assessee and consequential collection of cash from that collection centre is requires in depth verification. Therefore, we deem it fit in the interest of justice to restore the matter to the file of ld. AO who will verify the contentions raised at the time of assessment which though contrary to the statement recorded at the time of survey. Based on these discussions, ground Nos. 2.1 & 2.2 raised by the assessee is allowed for statistical purposes. 12. Ground no. 3 relat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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