ABDULKADER INAYATHUSEIN BOHARI,,DHULE vs. INCOME-TAX OFFICER,, DHULE

आदेश / ORDER

PER R.S.SYAL, VP :

This appeal by the assessee arises out of the order passed by the CIT(A)-1, Nashik on 06-03-2017 in relation to the assessment year 2013-14.

2 ITA No.1214/PUN/2017 Mr. Abdulkader Inayathusein Bohari

confirmation of addition of Rs.10.00 lakh.

engaged in the business of plywood and furniture goods on retail

basis. A survey action u/s.133A of the Income-tax Act, 1961

(hereinafter also called ‘the Act”) was carried out on 21-11-

2012. During the course of such survey, the assessee

surrendered an additional income of Rs.10.00 lakh on account of

unexplained expenditure on foreign trip to Iraq, Deposits in

Recurring deposit accounts, Investment in purchase of two plots,

Investment in purchase of Tavera and Tata Sumo vehicles and

certain amount spent on renovation of business premises etc.

However, at the time of filing of the return, the assessee did not

offer this income for taxation. The Assessing Officer (AO)

made the addition of Rs.10.00 lakh, which came to be echoed in

the first appeal. The assessee is aggrieved by the confirmation

of the addition.

material on record. The assessee was subjected to survey action

u/s 133A of the Act on 21.11.2012. His statement was recorded

3 ITA No.1214/PUN/2017 Mr. Abdulkader Inayathusein Bohari

during the course of survey, whose copy has been placed at

pages 1 to 11 of the paper book. The assessee in response to

question no.13 stated that no cash book etc. was maintained by

him. From question nos. 16 to 23, the assessee admitted that he

made trip to Mecca Madina and his wife and daughter also made

trip to Iraq in June, 2012. Expenditure was stated to be

Rs.25,000/- each totaling Rs.50,000/-. He further admitted to

have opened R.D. account in the name of his minor daughter,

Ms. Nafisa. Inventory of stock was prepared by the Officers of

the Department. The assessee admitted the value of inventory at

Rs.15,34,777/-. He also admitted that he purchased two vehicles, namely, Tavera and Tata Sumo and 1/4th of the price

was contributed by him.

CIT Vs. S. Khader Khan Son (2013) 352 ITR 480 (SC) has held

that statement u/s.133A has no evidentiary value because the

Authorised officer cannot administer oath but only record a

statement. The Hon’ble Supreme Court further held that no

admission made during such statement, by itself, be made the

basis for addition. On a pertinent query, the ld. AR candidly

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admitted that the plots referred to in the statement were, in fact,

purchased by him. He further admitted that two vehicles and

deposits in RD account etc. referred to in the statement were

assessee’s own transactions. Thus, it is manifest that the

surrender made by the assessee during the course of survey

action cannot be construed as de hors any cogent material or

based on a mere confession by the assessee unsupported by any

clinching material. The ld. AR fairly submitted that his

grievance was confined only to the extent of the addition and not

to the non-jurisdiction of the AO to make any addition based on

the surrender made by the assessee during the course of survey.

He put forth that the items of investments/expenses leading to

surrender of Rs.10.00 lakh made by the assessee were not fully

out of undisclosed sources and a part of the same was out of

disclosed sources, which should be examined by the AO before

making any addition. It is thus evident that the surrender made

by the assessee during the course of survey is not based on mere

statement, but also certain relevant evidence. However, the

explanation of the assessee in respect of such items needs to be

taken into consideration before making any addition.

Considering the totality of the facts and circumstances of the

5 ITA No.1214/PUN/2017 Mr. Abdulkader Inayathusein Bohari

case, I am of the considered opinion that the ends of justice

would meet adequately if the impugned order is set-aside and the

matter is restored to the file of AO. I order accordingly and

direct him to decide the amount includible in the assessee’s total

income, if any, pursuant to survey action after taking into

consideration the explanation to be offered by the assessee in

respect of foreign travels, investment in two plots, investment in

two vehicles, deposits made in RD account and stock inventory

etc. To the extent, the assessee satisfies the AO about the

availability of sources of such amounts, the addition should be

deleted. Needless to say, the assessee will be allowed an

opportunity of hearing in this regard before reaching any

conclusion.

confirmation of addition of Rs.1,20,000/- made by estimating the

household expenses.

the assessee did not file capital account and family details.

Considering the social status and standard of living etc., the AO

6 ITA No.1214/PUN/2017 Mr. Abdulkader Inayathusein Bohari

estimated household expenses at Rs.1,20,000/- and made

addition for the same. The ld. CIT(A) sustained the addition.

material on record, it is seen that the estimation of household

expenses made by the AO is premised on the foundation that the

assessee did not furnish his capital account which could

demonstrate the amount of drawings. Per contra, we find that the

assessee’s capital account has been placed at page 41 of the

paper book. From such Capital account, it can be seen that the

assessee has shown Household expenses at Rs.84,000/-;

Education Fee (Nafisa) – Rs.20,000/- and Light bill at

Rs.11,920/-. In this backdrop, it becomes apparent that the view

point of the AO that the assessee did not withdraw any amount

or, at least, the information in this regard was not available, is

not correct. The amount of such withdrawals actually effected

by the assessee during year towards household expenses stands

at Rs.1,15,920/-, which is in close proximity to the amount of

estimation made by the AO at Rs.1,20,000/-. Under these

circumstances, I am satisfied that no addition on this score could

7 ITA No.1214/PUN/2017 Mr. Abdulkader Inayathusein Bohari

have been made. I, therefore, order to delete the addition of

Rs.1,20,000/-.

Order pronounced in the Open Court on 30th April, 2019.

Sd/- (R.S.SYAL) उपा�य�/ VICE PRESIDENT उपा�य� उपा�य� उपा�य�

पुणे Pune; �दनांक Dated : 30th April, 2019 सतीश

आदेश क� क� �ितिलिप ितिलिप अ�ेिषत अ�ेिषत / Copy of the Order is forwarded to : आदेश क� क� अ�ेिषत अ�ेिषत आदेश आदेश ितिलिप ितिलिप अपीलाथ� / The Appellant; 1. ��यथ� / The Respondent; 2. आयकर आयु�(अपील) / 3. The CIT (Appeals)-1, Nashik 4. The Pr. CIT-1, Nashik िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, पुणे “SMC” / 5. DR ‘SMC’, ITAT, Pune; गाड� फाईल / Guard file. 6. // True copy // आदेशानुसार आदेशानुसार/ BY ORDER, आदेशानुसार आदेशानुसार

// True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune

ITA No.1214/PUN/2017 Mr. Abdulkader Inayathusein Bohari

Date 1. Draft dictated on 30-04-2019 Sr.PS 2. Draft placed before author 30-04-2019 Sr.PS 3. Draft proposed & placed JM before the second member 4. Draft discussed/approved JM by Second Member. 5. Approved Draft comes to Sr.PS the Sr.PS/PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *