9911796707
TMI Blog2025 (3) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... oyee of the assessee - 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. 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. Ground allowed for statistical purposes. Addition being the amount of excess stock found at the premises of the assessee, during survey proceedings - During hearing of the present appeal when the details of difference of stock and the inventory prepared at the time of survey was requested to be placed on record. But both the parties did not consider it fit to place on record that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 seriously erred in law as well as on the facts of the case in not adhering to the mandatory procedure statutorily prescribed u/s 144B of the Act hence the Impugned Order so passed deserves to be quashed being in violation thereof 6. Rs. 7,13,045/-: The ld. CIT(A) erred in law as well as in facts of the case in charging the levy of interest u/s 234A, 234B, 234C. The levy interest being charged, is contrary to the provisions of law and facts, kindly be deleted in full. 7. The appellant prays your honor indulgences to add, amend or alter of or any of the grounds of the appeal on or before the date of hearing." 3. Succinctly, the fact as culled out fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 statement given by him in respect of parties and to get verification from books of accounts. In compliance, the assessee 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5BBE 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 proceedings for taxation. Accordingly, he was also given a show cause during assessment proceedings that why an addition of Rs. 1,34,212/- should not be made. In response the assessee has made his submission. That submission was not found acceptable due to the reason that no supporting evidence / reconciliation statement has been furnished by the assessee during the course of assessment proceedings. Accordingly, an addition of Rs. 1,34,212/- was made to the total income of the assessee as his undisclosed income for the year under consideration. 4. Aggrieved from the order of the Assessing Officer, assessee preferred an appeal before the ld. CIT(A). Apropos to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 hereinabove. To support the various grounds so raised by the assessee, ld. AR of the assessee filed the written submissions in respect of the various grounds raised by the assessee. The written submission reads as follows ; "Brief General Facts: The appellant Shri Turab Ali Bohra is an individual engaged in the business of trading in Iron sheets, bars, rods, TMT bars, angles, plates, channels etc. on wholesale and retail basis in his Proprietary concern under name and style of "M/s Babji Steel Traders". The assessee e-filed its Return of Income u/s 139 of Income Tax Act, 1961 (for short "the Act") declaring total income of Rs. 32,44,560/- on 29.10.2019 (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 the assessee to get them verified during the course of assessment proceedings that the so called cash receipts were actually pertaining to those debtors as tabulated in the above para. Now in the assessment proceedings, the assessee has changed his version and has come up with new story that the entire amount of Rs. 22,49,500/- has received from different parties whose bills have been furnished and placed on records. These all are the cash sales of the assessee on different dates of the year and not pertains to a particular date or period. For instance, an amount of Rs 52,338/- has been claimed to be received from Shri Mubarik Khan, sales to whom were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 while statements of Shri Shyam Singh Rathore were being recorded u/s 131 on 29.10.2018 by the DDIT(Inv.)-II, Udaipur followed by Survey proceedings u/s 133A carried out on M/s Babji Steel Traders by the DDIT(Inv.), Ajmer on 31.10.2018 (where statements of Assessee Shri Turab Ali Bohra were recorded u/s 131), the stand taken during the course of the assessment proceeding, is alleged to be an afterthought and in contradiction; further, a fake story was allegedly created to justify the availability of cash of Rs. 22,47,820/- on the day of Survey and the appellant allegedly failed to bring any supporting evidence to show that the cash seized actually relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in the possession of Shri Shyam Singh Rathore, the employee on 29.10.2018 by SHO, Shambhupura, Chittorgarh duly explained by the appellant or not. Hence, this ground. Submission: 1.1 Modus operandi of appellant's business - misunderstood by authorities: At the outset, it is submitted that the immediate source of the cash found in possession, was explained to be out of the cash realization made from the sales affected to the small traders, which was (undisputedly) duly accounted for, duly declared and taxes were paid thereon. However, the authorities below and in particular the ld. CIT(A) failed to understand and appreciate the detailed submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant 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 as payment of Advance Tax and hence was shown as part of Advance Tax (as prepaid taxes) being Rs. 26,97,820/- (which included Rs. 22,49,500/- cash seized) and balance Rs. 10,522/- outstanding in the debtors in its Audited Balance Sheet as on 31.03.2019 (PB192). 2.4 Incomplete Accounts: Undisputedly, the appellant submitted the copies of such ledger accounts (which are reproduced by the CIT(A) from pages 11-20 of order in verbatim). It may be clarified that the cash found, was realization made from the sales already made to small traders. However, in the accounts, no entries could be made on the day of survey, i.e. 29.10.2018, in as much as the same w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri 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, after discussion with the accountant, realized to make the issue more clear and a clarification of fact must be tendered to the authorities below and in particular before the AO(DCIT, Central Circle), to clarify that the realization from the sales made to the buyers (as stated before the DDIT (Inv.) during the course of investigation/survey), was the cash realization from the small traders, fabricators, vendors etc. through the various collecting points as stated above, by the employee Shri Shyam Singh Rathore and it was not the cash realization towards sales made to those parties in regular course of business. Thus, the true and real facts are that, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 confidence. It can't be denied that such action creates an anxiety and medical problem to the person being searched. Pertinently, the Kelkar Committee has also taken note of this prevailing attitude of the search parties and consequently remarked very adversely. On the aspect of statement recorded during survey kindly refer submission GOA 3 3.7 Needless to say that 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 bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 relevant extract of the said judgement is reproduced hereunder: "23. So far as question No. 2 is concerned, apparently when the Tribunal has found as a fact that the assessee was receiving money from the customers in hands against the payment on delivery of the vehicles on receipt from the dealer the question of such amount standing in the books of account of the assessee would not attract Section 68 because the cash deposits becomes self-explanatory and such amounts were received by the assessee from the customers against which the delivery of the vehicle was made to the customers. The question of sustaining the addition of Rs. 6,98,000 would not arise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O 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 in double addition which is not permissible in the eyes of law. 8.2 Reliance is placed on: 8.2.1 Very recently Hon'ble Jurisdictional ITAT-Jaipur Bench in the matter of Rukmani Jewellers Private Limited Vs. DCIT, Circle-04, Jaipur (ITA. No. 539/JP/2023, Dated: 20/12/2023) (DC 9-21) held as under: "13. Thus, considering all the facets of the case the bench noted that the revenue did not pinpoint any defects in the books of accounts, quantitative records available with the assessee, cash book and invoice presented in the assessment proceedings. Merely the assessee unable to record the mobile number it does not make the sale as non-genuine and we fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 represented unaccounted income and accordingly, made additions - Tribunal analysed data pertaining to cash sales and cash deposits made in relevant assessment year as against two earlier assessment years and noted that in year of demonetization percentage increase in sales was less than earlier year - He, thus, held that growth in sales compared to earlier two years showed similar trend, and it could not be said that assessee had booked non-existing sales in its books post-demonetization - Furthermore, revenue made no allegation that assessee had backdated its entries - Whether since assessee placed material on record that cash deposits made with banks mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see, 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 the sale proceeds of jewellery belonging to his mother- in-law, receipt from a party and also the amount of opening balance and savings from earlier years and deleted all the additions-Findings recorded by the Tribunal are purely findings of fact-There is no reason to interfere with the same-No substantial question of law arises-CIT vs. Pradeep ShantaramPadgaonkar (1983) 143 ITR 785 (MP) relied on" 10.2.2 Also refer CIT vs Kulwant Rai (2007) 210 CTR 380 (Delhi) para 16-17 Held "Search and seizure-Block assessment-Computation of undisclosed income- Cash found during search-Assessee had withdrawn Rs. 2 lakh from bank some time back and there is no mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 addition based on misconception of Law, misreading of facts and merely based on suspicion, deserves to be deleted in full. GOA 3: Rs. 1,34,212/- being the alleged excess stock: Facts: This ground is related to addition of excess physical stock of Rs. 1,34,212/- alleged to found during the course of survey proceedings u/s 133A of the I.T. Act, 1961. On this aspect the ld. AO noted as under: "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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee 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 evident from the further submissions made herein after. 2. Submission before AO-ignored: The assessee vide its letter dt. 20.09.2021 (PB185-190) submitted as under: "During the survey proceedings stock was found excess to the tune of Rs. 1,34,212/-, as during that day survey was conducted on my firm as well as my sister concern M/s Fakhri Steel Traders whose stock was also lying along side of my stock, as you are aware I deal in heavy articles made of iron and steel, due to this almost 900 metric tons of my stock was lying there with equally big 1200 tons of stock of Fakhri steel traders, therefore there ought to be some clerical error in taking s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not bring any income, which is the law settled. 4. The AO has not rejected the books of accounts under S. 145 of the Act. He even did not point any adversity in the Tax Audit report. Therefore, he could not make any variation in the declared results or addition to the declared income. Given the above facts, there was no justification of assuming the sale of extra stock of 914 Kgs without the availability thereof which is nothing more than a suspicion. The AO has not even quoted the particular provision of law which has conferred the jurisdiction upon him to make the impugned addition of Rs. 1,34,212/-. Kindly refer judicial citations in support in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 recorded u/s 131 of the I.T. Act, 1961, the version of the assessee is 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 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, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 are available to a taxpayer to arrive at a conclusion about determination of appropriate head of income. 4.ON MERITS: It is further submitted that whatever, was assessed by AO was nothing but business income only and it cannot be termed as excess/undisclosed/unaccounted Income for the simple reason that cash of Rs. 22,49,500/- Seized by SHO, Shambhupura, Chittorgarh on 29.10.2018 during verification & interception found in the possession of Shri Shyam Singh Rathore, was the cash realization collection of the sales made Moreover, the assessee admittedly accounted for such sales in regularly maintained books of account and direct documentary evidences we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax 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. Having said that, the next issue that arises for consideration is whether the amount surrendered by way of investment in the unrecorded stock of rice has to be brought to tax under the head "business income" or "income from other sources". In the present case, the assessee is dealing in sale of foodgrains, rice and oil seeds, and the excess stock which has been found during the course of survey is stock of rice. Therefore, the investment in procurement of such stock of rice is clearly identifiable and related to the regular business stock of the assessee. The decision of the Co-ordinate Bench in case of Shri Ramnarayan Birla (supra) supports the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted, 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 - 235 to 241. For the month of July also, similar type of detailed ledger account of the various GST invoices was submitted. By these facts, it is established that the GST invoices were raised genuinely in the month of June & July, 2018, etc. and even the GST was paid/adjusted and the related GST-R 3B periodical returns were also filed in time, which was much before the survey/ requisition in October, 2019. The Ld. DR took support from the statement of the employee Shri Rathore and the assessee, reproduced in the assessment order and that both agreed that the sales consideration related to the sales made to these parties. For such contention, in fact, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 obliged to treat such source of investment as income in every case where the explanation offered by the assessee is found to be not satisfactory. The question whether the source of the investment should be treated as income or not under s. 69 has to be considered in the light of the facts of each case. In other words, a discretion has been conferred on the ITO under s. 69 to treat the source of investment as the income of the assessee if the explanation offered by the assessee is not found satisfactory and the said discretion has to be exercised keeping in view the facts and circumstances of the particular case. In the instant case, the Tribunal has h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm 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 made (Form GSTR-3B) for period June-July 2018 259A-260 Case laws relied upon: S. No. Particulars Pg. No. 1 Smt. Harshila Chordiya vs. ITO (2008) 208 CTR 208/298 ITR 349 (Raj.) 1-8 2 Rukmani Jewellers Pvt. Ltd. vs. DCIT, Circle-04, Jaipur (ITA No. 539/JP/2023) 9-21 3 PCIT vs. Bajargan Traders (2017) 86 taxmann.com 295 (Raj.) 22-25 4 Smt. Rekha Shekhawat vs. PCIT (2022) 219 TTJ 761 (JP) 26-30 8. The ld. AR of the assessee in addition to the written submissions so filed argued that SHO found the cash of Rs. 22,49,500/- with the employee of the assessee his statement was recorded and in that statement the employee of the assessee categoric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 recorded in the respective orders of lower authorities. He vehemently argued that the assessee came up with two stories both narrate to the difference on facts and consequence of each is different. The ld. DR submitted that when statement of employee of the assessee recorded, he has given the names of the parties who have given the money to the assessee. Thereafter the assessee in the assessment proceedings after considerable time has changed whole basis of the statement and submitted that those parties whose names written in the statement on 29.10.2018 are the cash collection center. There is no retraction to the disclosure made by the assessee at the time o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 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. AO and sustained by the ld. CIT(A). The brief facts of the disputed is that on 29.10.2018 SHO, Shambhupura, Chittorgarh during verification & interception found cash of Rs. 22,49,500/- in the possession of Shri Shyam Singh Rathore while intercepting a Hundai i10 Car bearing No.RJ-06-CC-6553. Upon receiving the above information, the DDIT(Inv.)-II, Udaipur recorded statement of Shri Shyam Singh Rathore u/s 131 on 29.10.2018 wherein he has stated that he works as an employee of M/s Babji Steel Traders, (Prop. Shri Turab Ali Bohra) and the above amount was received on behalf of M/s Babji Steels Traders, Bhilwara. However, Shri Shyam Singh Rathore failed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred 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 notices issued in his case. Whereas in the case of Shri Turab Ali Bohra in the assessment proceeding submission made was on different facts which were already placed on record and the assessee retracted from his statements given u/s 131 of the Act made during the course of survey proceedings and submitted that the cash of Rs. 12,43,240/- which was found verified by the DDIT(Inv.), Ajmer on the basis of submissions made by the assessee before him is actually not pertains to the parties/debtors listed in the statement record, instead they were the persons who were his regular buyers and they have clear their payments by A/c Payee Bank Cheques only, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 relates to the addition of Rs. 1,34,212/- being the amount of excess stock found at the premises of the assessee, during survey proceedings. At the time of survey 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/-, whereas 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 proceedings for taxation. Accordingly, he was also given a show cause duri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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