M/S. SHASHI WINES,,NANI DAMAN vs. THE INCOME TAX OFFICER, VAPI WARD-4,, DAMAN

PER : SANDEEP GOSAIN, JUDICIAL MEMBER:-

The present appeal has been filed against the order of ld. CIT(A) on the ground mentioned herein below:- “1. On facts and circumstances of the case as well as on law, Ld. CIT(A) has erred in law and on facts to sustain addition for Rs.3,28,300/- being difference in stock found during the course the survey dtd. 134-03-2008.”

I.T.A No. 882 /Ahd/2017 A.Y. 2008-09 Page No 2

I.T.A No. 882 /Ahd/2017 A.Y. 2008-09 Page No 3 Dineshbhai T. Jadav was seriously suffering from cancer and thus was hospitalized at Nanavati Hospital, Mumbai and therefore the C.A. of the applicant was busy in attending his nearest relative and had not been attending office till 05-04-2017. Therefore, because of this reason the appeal before the Tribunal could not be filed within the limitation prescribed under the Act. Apart from the application, assessee has also filed an affidavit of the C.A. and himself. After going through the application for seeking condonation of delay, we are convinced that assessee had “sufficient cause” for not filing appeal well within the period of limitation, therefore, considering the reasons as cited in the said application, we condone the delay and admit the appeal for hearing on merit.

I.T.A No. 882 /Ahd/2017 A.Y. 2008-09 Page No 4 The AO has stated in his assessment order for making addition under section 69 of the I. T. Act: "In light of the above, it is clearly seen that the assessee has admitted Rs.3,28,300/- as there unaccounted investment in stock and agreed to pay tax on the same. As such, the un-accounted investment in stock to tune of Rs.3,28,300/- is the deemed income of the assessee within the meaning of section 69 of the I. T. Act, 1961. Therefore, the same is added to the total income of the assessee. Thus the AO has made addition only because of appellant's admission during survey or post survey statement recorded by the department under section 133A of the I. T. Act Honorable CBDTas well as Honorable Apex court has held that addition on the basis of assessee's admission during search or survey cannot be made unless such additions are supported by corroborative evidences. Reliance is placed on... (a) . CBDT Circular No.286/2/2003 dated-10-3-2003. (b) . Apex court decision in the case of CIT vs. KHADER KHAN SON (SC) reported in 254 CTR 228, in which it has been held as under: "Addition on the basis of statement recorded during survey u/s 133A does not empower any IT authority to examine any person on oath and, therefore, any admission made in a statement recorded during survey cannot, by itself, be made the basis for addition." Copy of head note of judgment is enclosed. (c) . Juri ictional ITA T of Ahmadabad has also followed, Honorable CBDT instructions in several cases. One of the case decided is a case of Oshwal Machinery Ltd. Vs. Asstt. CIT:: ITA No.lll3/Ahd/2009 :: Assessment Year 2006-07 in which Honorable Court has held as under: "We have heard the Ld. Representative of the party, perused the records. We notice that the AO has heavily relied upon the statement given by the assessee at the time of survey without considering the assessee's submission that there was no shortage of stock at the time of survey as the survey team did not include certain stock lying in open yard. As regards the statement given by the assessee we would like to refer to the CBDT Circular No.286/2/2003 dated- 10-3-2003 wherein it is stated that while recording statement during the course of search and seizure and survey operations no attempt should be made to obtain confession as to the undisclosed income. Apart from above it has also been noticed that the AO has applied profit rate on shortage of the stock without examining the correct fact whether the assessee has sold raw material out of books or the assessee has sold manufactured items due to which shortage of a stock was there. Without examining such fact, merely on the basis of statement given at the time of survey which has been retracted by furnishing evidence and reconciliation we are of the consider^ view that under such circumstances the addition by applying profit rate on shortage of a stock cannot be made on presumption. We therefore, delete the addition of Rs.2,03,875/- made by the AO." Thus in light of above settled position of law, AO's addition need to be deleted only on legal ground. So far as factual matrix of the case is concerned it is to submit that in survey proceeding dated 04.03.2008, physical inventory of stock were found at Rs.9,33,624/- as against inventory prepared as per books at Rs. 7,57,114/-. A partner of the firm stated that besides stock of Rs.9,33,624/- there was further stock of Rs. 1,52,820/- lying with excise department in Bond. Therefore, total value of physical stock comes to Rs. 10,86,444/-. Thus

I.T.A No. 882 /Ahd/2017 A.Y. 2008-09 Page No 5 there is a difference of stock arrived at Rs.3,28,300/- that added by the AO under section 69 of the I. T. Act. The appellant has produced audited books of accounts in assessment proceedings. I am enclosing herewith a copy of auditor's report for your kind consideration and ready reference. In the said audit report details of quantity of wine and beer traded during the year is fully given by the auditors in Annexure - VIII is fully given. Further, in profit & loss account following figures is appearing. Debit Side Cred it Side Particulars Amount Particulars Amount Opening stock 60,02,144.12 Gross sale 73,74,506.25 Purchase 5,09,321.00 Closing stock 4,63,368.73 Godown expense & License fees 45,725.00 Gross Profit 12..80,684.86 Total 78,37,874.98 Total 78,37,.874.98 Gross profit in % 17.37%

In the above figure of purchases, alleged un-accounted purchase/so called stock difference of Rs.3,28,300/- is already included. Further, corresponding sales are also appearing either in turnover of sales origin closing stock. I am also enclosing herewith a copy of I.M.F.L. Purchase during FY. 2007-08. Thus, there is no unaccounted purchase either during the whole year all any stock difference as on the date of survey. The AO himself has reported in para 3.1 of his assessment order that during the course of survey papers were found which were inventorized as Annexure BF-1 to BF/15. It is further stated that total of this papers arrived at Rs.3,28,300/-. All these are the bills for cash purchases. The alleged stock difference was found because of the fact that the accountant of the firm has not recorded these purchases in the books of accounts till the date of survey. It is also a most important fact burnt out from para 2.1 of assessment order that there was a cash on hand of Rs.1434,466/- as per books found in course of survey. Therefore, even if above purchases of Rs.3,28,300/- is taken into consideration, then a/so there was positive cash balance remains in the hands of the appellant firm. All this facts speak truth that though there is an admission of one of the partners of the firm for un disclosed income to the tune of Rs.3,28,300/-, there is no corroborative evidence to support' his admission. On the contrary, evidences show that there is only a mistake on the part of an accountant to record purchase bills in the books of account. It is needless to say to your Honor that it is the duty of the survey party to ask the appellant to record such bills in the books and thereafter prepare inventory of stock as per books. The appellant has recorded such transactions in its books of account. Books are audited and produced in assessment proceeding. The AO has found such books are in order in the proceedings before him under section 143(3) of the Act and therefore, he avoided rejection of books.”

authorities.

I.T.A No. 882 /Ahd/2017 A.Y. 2008-09 Page No 6 As per facts of the present case, the additions were made by the assessing officer on account of difference in stock found during the course of search in the case of the assessee on 14-03-2008 and in this respect the assessing officer has categorically mentioned in his order that Shri Ganpatbabubhai Patel, the key person who was looking after affairs was confronted on various papers annexures BF-1 to BF-15 found during search, and on his statement the difference in stock was found and accordingly a sum of Rs.3,28,300/- was treated as unexplained investment in stock and thus the said amount was treated deemed income of the assessee within the meaning of section 69 of the Income Tax Act. We also noticed that assessee at the first instance had replied that the purchase made during the year from time to time was amounting to Rs. 5,09,321/- which also included the alleged unaccounted purchase of Rs. 3,28,300/- explaining sales are also reflected in the total sales accounts. The assessee had also categorically mentioned that during search proceedings, physical inventory of stock was found at Rs. 10,86,444/- as against inventory prepared as per books at Rs. 7,27,114/- thus there was difference of stock arrived at Rs. 3,28,300/- which was added by the assessing officer u/s. 69 of the Income Tax Act. However, in order to substantiate his arguments, the assessee has categorically stated that during

I.T.A No. 882 /Ahd/2017 A.Y. 2008-09 Page No 7 In the said audit report, detail of quantity of wine, and bear traded wear treated during the year was fully given by the auditors in annexure-8 which has also mentioned by the assessee in his written submissions as enumerated in para 3.4 of the order of ld. CIT(A). The ld. CIT(A) has also stressed that annexure BF-1 to BF-15 were purchase bills amounting to Rs. 3,28,300/- and all those bills were for cash purchases and the said difference of stock was found only because of the fact that the accountant of the firm had not recorded these cash purchases in the books of accounts till the date of survey. It is undisputed fact that there was a cash in hand of Rs. 14,34,466/- as per books of account found in the course of survey thus even if the above purchases of Rs. 3,28,300/- are taken into consideration, then, also there was positive cash balance remain in the hands of assessee’s firm. However, the said arguments were rejected by ld. CIT(A) only on the ground that during the statement of Shri Ganpat Babubhai Patel, the cash found at the premises was Rs.2,430/- and the remaining cash balance was not found at the premises. However, we are of the view that when once the assessee was already having cash in hand of Rs. 14,34,496/- as per the books of account in the course therefore the possibility of making purchases of Rs. 328300/- out of said cash cannot be ruled out and even otherwise from the records, we

I.T.A No. 882 /Ahd/2017 A.Y. 2008-09 Page No 8 noticed that the additions were made by relying upon the statement made by Shri Ganpat Babubhai Patel during the course of survey. However in our view no addition can be made only on the basis of admission recorded by the department u/s. 133A of the I.T. Act. In this respect, we find support from the CBDT Circular No. 286/2/2003 dated 10-03-2003 as well as the decision of Hon’ble Supreme Court in the case of CIT vs. Khader Khan Son reported in 254 CTR 2008 (SC) in which it has been categorically held that addition on the basis of statements recorded during the survey u/s.133A does not empower any IT authority to examine on oath and therefore any admission made in a statement recorded during the survey cannot by itself, be made the basis for addition and therefore considering the totality of the facts as narrated and discussed above, we are of the view that addition made by the assessing officer and upheld by the ld. CIT(A) are not sustainable in the eyes of law and we direct the ld.AO to delete the additions.

Order pronounced in the open court on 14-02-2020 (O.P. MEENA) (SANDEEP GOSAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad : Dated: 12/02/2020

I.T.A No. 882 /Ahd/2017 A.Y. 2008-09 Page No 9 आदेश क" ""त"ल"प अ"े"षत / Copy of Order Forwarded to:-

I.T.A No. 882 /Ahd/2017 A.Y. 2008-09 Page No 10 Strengthened preparation & delivery of orders in the ITAT 1) Date of dictation 05/02/2020 2) Date on which the typed draft is placed before the 06/02/2020 Dictating Member & Other Member 3) Date on which the approved draft comes to the Sr. /02/2020 P.S./P.S. 4) Date on which the fair order is placed before the /02/2020 Dictating Member for pronouncement 5) Date on which the fair order comes back to the Sr. /02/2020 P.S./P.S. 6) Date on which the file goes to the Bench Clerk /02/2020 7) Date on which the file goes the Head Clerk /02/2020 8) Date on which the file goes to the