SANT KUMAR, Jaipur v. ITO, Sawai Madhopur

ITA 949/JPR/2010 | 2003-2004
Pronouncement Date: 30-09-2011 | Result: Partly Allowed

Appeal Details

RSA Number 94923114 RSA 2010
Bench Jaipur
Appeal Number ITA 949/JPR/2010
Duration Of Justice 1 year(s) 2 month(s) 9 day(s)
Appellant SANT KUMAR, Jaipur
Respondent ITO, Sawai Madhopur
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 30-09-2011
Assessment Year 2003-2004
Appeal Filed On 21-07-2010
Judgment Text
1 ITA 949-10 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH B JAIPUR BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ITA NO. 949/JP/2010 ASSTT. YEAR : 2003-04. SHRI SANT KUMAR VS. THE INCOME-TAX OFFICER PROP. M/S. RAMBILAS SANT KUMAR WARD 3 BAZAZA BAZAR KARAULI. SAWAI MADHOPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MANISH AGARWAL RESPONDENT BY : SHRI D.K. MEENA DATE OF HEARING : 16.9.2011. DATE OF PRONOUNCEMENT : 30.9.2011 ORDER DATE OF ORDER : 30/09/2011. PER R.K. GUPTA J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2003-04. 2. IN CASE OF ASSESSEE A SURVEY UNDER SECTION 133A OF THE ACT WAS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSESSEE ON 02.07.2003. RE TURN OF INCOME WAS FILED BY ASSESSEE DECLARING TOTAL LOSS OF RS. 34 658/- AND THEREAFTER THE ASSESSMENT WAS COMPLETED UNDER SECTION 144 ON AN INCOME OF RS. 15 27 133/- BY MAKI NG VARIOUS ADDITIONS. THE LD. CIT (A) PARTLY ALLOWED THE APPEAL OF THE ASSESSEE AND A GAINST PARTLY SUSTAINING VARIOUS ADDITIONS THE ASSESSEE IS IN APPEAL HERE BEFORE TH E TRIBUNAL. 3. NOW THE APPEAL OF THE ASSESSEE IS DISPOSED OFF I N THE FOLLOWING MANNER. 2 4. GROUND NO. 1 AGAINST COMPLETING THE ASSESSMENT U NDER SECTION 144 WAS NOT PRESSED THEREFORE THE SAME IS DISMISSED AS NOT PR ESSED. 5. GROUND NOS. 2 3 & 7 RELATE TO CONFIRMING ADDITI ON OF RS. 5 43 500/- ON ACCOUNT OF UNDISCLOSED INVESTMENT IN PROPERTY AT KATLA CON FIRMING THE ADDITION OF RS. 1 62 500/- ON ACCOUNT OF PROFIT ON SALE OF SHOPS AND CONFIRMIN G THE ADDITION OF RS. 2 31 700/- ON ACCOUNT OF INVESTMENT IN SHOPS AND PROFIT THEREFROM . 6. IN THIS RESPECT THE LD. COUNSEL OF THE ASSESSEE STATED THAT THE ASSESSEE IS A 50% OWNER AS 50% WAS OF SHRI BAIJNATH GUPTA. THE APPEA L IN CASE OF SHRI BAIJNATH GUPTA HAS ALREADY BEEN HEARD ON THESE ISSUES AND THE TRIBUNAL HAS SET ASIDE THE ISSUE TO THE FILE OF THE AO WHILE DECIDING THE APPEAL IN ITA NO. 161/JP/ 2011 DATED 24.06.2011. THEREFORE IT WAS REQUESTED THAT THESE ISSUES MAY BE SET ASIDE TO THE FILE OF AO TO PASS THE ORDER IN VIEW OF DIRECTIONS OF THE TRIBUNAL GIVEN IN CASE OF SHRI BAIJNATH GUPTA. 7. THE LD. D/R ALSO DOES NOT OBJECT THE CONTENTION OF LD. A/R. 8. IN VIEW OF THESE FACTS AND CIRCUMSTANCES WE SET ASIDE THE ISSUE TO THE FILE OF AO TO DECIDE THE SAME AFRESH IN VIEW OF THE DIRECTIONS GIVEN BY TRIBUNAL WHILE DECIDING THE APPEAL IN CASE OF SHRI BAIJNATH GUPTA. 9. GROUND NO. 4 IS AGAINST UPHOLDING THE ADDITION O F RS. 1 21 000/- MADE ON ACCOUNT OF ALLEGED UNDISCLOSED INVESTMENT IN AGRICULTURAL L AND. 10. DURING THE COURSE OF SURVEY STATEMENT OF THE A SSESSEE WAS RECORDED AND IN REPLY TO QUESTION NO. 13 ASSESSEE ADMITTED TO HAVE PURCH ASED A PLOT OF LAND FROM SHRI RADHEY SHYAM SHARMA FOR RS. 1 21 011/-. INVESTMENT OF THE SAME WAS ALSO ADMITTED AS UNEXPLAINED BY ASSESSEE AND THE AMOUNT WAS OFFERED FOR TAXATION DURING SURVEY. HOWEVER NO SUCH INCOME WAS SHOWN IN THE RETURN OF INCOME. DURING THE COURSE OF 3 ASSESSMENT PROCEEDINGS ASSESSEE RETRACTED FROM THE STATEMENT RECORDED DURING THE COURSE OF SURVEY. HOWEVER AO WAS NOT SATISFIED WITH THE E XPLANATION OF THE ASSESSEE. ACCORDINGLY HE MADE AN ADDITION OF RS. 1 21 011/- O N THE BASIS OF STATEMENT GIVEN BY ASSESSEE DURING THE SURVEY PROCEEDINGS. THE LD. CIT (A) WAS ALSO IN AGREEMENT WITH THE FINDING OF AO. ACCORDINGLY HE CONFIRMED THE ADDITIO N. 11. THE LD. COUNSEL OF THE ASSESSEE PLACED RELIANCE ON THE WRITTEN SUBMISSIONS PLACED ON RECORD. ATTENTION OF THE BENCH WAS DRAWN ON PAG ES 120 TO 122 AND 141. 12. ON THE OTHER HAND LD. D/R PLACED RELIANCE ON T HE ORDERS OF THE AO AND LD. CIT (A). 13. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD WE FIND THAT ASSESSEE DESERVES TO SUCCEED IN THIS CASE. TH E STATEMENT RECORDED DURING THE COURSE OF SURVEY UNDER SECTION 133A CANNOT BE GIVEN MUCH W EIGHT AS HELD BY HONBLE KERALA HIGH COURT IN CASE OF PAUL MATHEWS & SONS 263 ITR 101 (KER.). THE HONBLE KERALA HIGH COURT HAS HELD AS UNDER :- THE PROVISION ALSO ENABLES THE INCOME-TAX AUTHORIT Y TO IMPOUND AND RETAIN IN HIS CUSTODY FOR SUCH PERIOD AS HE TH INKS FIT ANY BOOKS OF ACCOUNT OR OTHER DOCUMENTS INSPECTED BY HIM PR OVIDED THE AUTHORITY RECORDS HIS REASONS FOR DOING SO AND ALS O SHALL NOT RETAIN THE BOOKS OF ACCOUNT FOR A PERIOD NOT EXCEED- ING 1 5 DAYS. SECTION 133A(3)(III) ENABLES THE AUTHORITY TO RECORD THE ST ATEMENT OF ANY PERSON WHICH MAY BE USEFUL FOR OR RELEVANT TO ANY PROCEEDING UNDER THE ACT. SECTION 133A HOWEVER ENABLES THE INCOME-TAX AUTHORITY ONLY TO RECORD ANY STATEMENT OF ANY PERS ON WHICH MAY BE USEFUL BUT DOES NOT AUTHO- RIZE TAKING ANY SWOR N STATEMENT. ON THE OTHER HAND WE FIND THAT SUCH A POWER TO EXAMI NE A PERSON ON OATH IS SPECIFICALLY CONFERRED ON THE AUTHORISED OF FICER ONLY UNDER 4 SECTION 132(4) OF THE INCOME-TAX ACT IN THE COURSE OF ANY SEARCH OR SEIZURE. THUS THE INCOME-TAX ACT WHENEVER IT THOU GHT FIT AND NECESSARY TO CONFER SUCH POWER TO EXAMINE A PERSON ON OATH THE SAME HAS BEEN EXPRESSLY PROVIDED WHEREAS SECTION 1 33A DOES NOT EMPOWER ANY INCOME-TAX OFFICER TO EXAMINE ANY PERS ON ON OATH. THUS IN CONTRADISTINCTION TO THE POWER UNDER SECT ION 133A SECTION 132(4) OF THE INCOME-TAX ACT ENABLES THE AU THORISED OFFICER TO EXAMINE A PERSON ON OATH AND ANY STATEME NT MADE BY SUCH PERSON DURING SUCH EXAMINATION CAN ALSO BE US ED IN EVIDENCE UNDER THE INCOME-TAX ACT. ON THE OTHER HAND WHATE VER STATEMENT IS RECORDED UNDER SECTION 133A OF THE INCOME-TAX A CT IT IS NOT GIVEN ANY EVIDENTIARY VALUE OBVIOUSLY FOR THE REAS ON THAT THE OFFICER IS NOT AUTHORISED TO ADMINISTER OATH AND TO TAKE ANY SWORN STATEMENT WHICH ALONE HAS EVIDENTIARY VALUE AS CONT EMPLATED UNDER LAW. THEREFORE THERE IS MUCH FORCE IN THE ARGUMENT OF LEARNED COUNSEL FOR THE APPELLANT THAT THE STATEMENT ELICI TED DURING THE SURVEY OPERATION HAS NO EVIDENTIARY VALUE AND THE INCOME-TAX OFFICER WAS WELL AWARE OF THIS. SIMILAR VIEW HAS BEEN EXPRESSED BY VARIOUS OTHER C OURTS. IN CASE OF ASHOK KUMAR SONI 291 ITR 172 (RAJ.) THE HONBLE RAJASTHAN HIGH COUR T HAS HELD EVEN STATEMENT DURING SEARCH IS NOT A CONCLUSIVE PROOF OF FACT AND CAN AL WAYS BE EXPLAINED. THEREFORE ASSESSEE HAS RIGHT TO RETRACT THE SAME. IT HAS BEEN FURTHER OBSERVED THAT SECOND STATEMENT TO BE READ TOGETHER TO EVALUATE WEIGHT OF ADMISSION FOR APPREC IATING EVIDENCE. EVEN IN CIRCULAR NO. 286/2/2002-IT(INV.) DATED 110.03.2003 IT HAS BEEN C LARIFIED AS UNDER :- INSTANCES HAVE COME TO THE NOTICE OF THE BOARD WH ERE ASSESSEE HAVE CLAIMED THAT THEY HAVE BEEN FORCED TO CONFESS UNDISCLOSED INCOME DURING THE COURSE OF THE SEARCH AND SEIZURE AND SURVEY OPERATION. SUCH CONFESSION IF NOT BASED ON CREDIBL E EVIDENCE ARE 5 TAKEN/RETRACTED BY THE CONCERNED ASSESSEES WHILE FI LLING RETURN INCOME. IN THESE CIRCUMSTANCES CONFESSION DURING T HE SEARCH AND SEIZURE AND SURVEY OPERATION DO NOT SERVE ANY USEFU L PURPOSE. IT IS THEREFORE ADVISED THAT THERE SHOULD BE FOCUS AND C ONCENTRATION ON COLLECTION OF EVIDENCE OF INCOME WHICH LEADS TO INF ORMATION ON WHAT HAS NOT BEEN DISCLOSED OR IS NOT LIKELY TO BE DISCLOSED BEFORE THE INCOME TAX DEPARTMENT. SIMILARLY WHILE RECORDI NG STATEMENT DURING THE COURSE OF SEARCH AND SEIZURE OPERATION NO ATTEMPT SHOULD BE MADE TO OBTAIN CONFESSION AS TO THE UNDIS CLOSED INCOME. 14. THE HONBLE SUPREME COURT IN CASE OF TANNA AND MODI VS. CIT 292 ITR 209 (SC) HAS HELD THAT A FORTIORI CLARIFICATORY CIRCUL ARS ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES MAY ALSO BE TAKEN INTO CONSIDERATION FOR THE PURPOSE OF CONSTRUCTION OF THE STATUTE. THE HONBLE SUPREME COURT IN CASE OF KERALA STATE I NDUSTRIAL DEV. CORPORATION LTD. 259 ITR 51 (SC) HAS ALSO HELD THAT FINANCE MINISTERS S PEECH BEFORE PARLIAMENT WHILE INTRODUCING BILL CAN BE RELIED ON TO THROW LIGHT O N OBJECT AND PURPOSE OF PROVISIONS. 15. IN CASE OF DURGESH OIL MILLS 273 ITR 305 (ALL. ) THE HONBLE ALLAHABAD HIGH COURT HAS HELD THAT IT IS WELL SETTLED THAT THE CIR CULAR ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES IS BINDING ON AUTHORITIES. 16. KEEPING IN VIEW ALL THESE DECISIONS OF HONBLE SUPREME COURT AS WELL AS OF VARIOUS HIGH COURTS INCLUDING THE HONBLE JURISDICT IONAL HIGH COURT WE ARE OF THE VIEW THAT STATEMENT RECORDED UNDER SECTION 133A CANNOT B E RELIED UPON AS THERE MUST BE A CORROBORATORY EVIDENCE. THE ASSESSEE HAS FILED COR ROBORATORY EVIDENCE DURING THE ASSESSMENT PROCEEDINGS. HOWEVER THE AO DID NOT ACC EPT THE EXPLANATION AND MADE THE ADDITION ON THE BASIS OF STATEMENT RECORDED. THE A SSESSEE HAS GIVEN EXPLANATION THAT 6 ASSESSEE HAS ENTERED INTO AGREEMENT DATED 28.5.2002 FOR PURCHASE OF AGRICULTURAL LAND IN VILLAGE KALYANI FROM ONE SHRI RADHEY SHYAM SHARMA F OR A TOTAL CONSIDERATION OF RS. 1 21 011/-. A COPY OF THIS AGREEMENT IS PLACED AT P AGE 141-142. IT WAS EXPLAINED DURING THE ASSESSMENT PROCEEDINGS THAT SINCE THE DEAL COUL D NOT BE MATERIALIZED AND THE DEAL ULTIMATELY WAS CANCELLED DUE TO THE FACT THAT THERE WAS NO LAND IN THE NAME OF SHRI RADHEY SHYAM SHARMA THE SELLER. IN SUPPORT OF THE SAME A CERTIFICATE FROM THE PATWARI WAS FILED WHICH WAS COUNTER SIGNED BY THE TEHSILDAR ALSO. COPY OF THE SAME IS ALSO PLACED AT PAGES 120-121. A CLARIFICATION WAS ALSO SOUGHT FROM SHRI RADHEY SHYAM SHARMA THROUGH HIS DECLARATION DATED 3.6.2002 WHERE IN HE CLEARLY STATED THAT HE HAD REFUNDED THE ADVANCE OF RS. 21 011/- WHICH WAS TAKE N AT THE TIME OF AGREEMENT. THIS EXPLANATION WAS NOT CONSIDERED BY THE AO OR BY LD. CIT (A). THE EXPLANATION OFFERED BY ASSESSEE IS A CRYSTAL CLEAR AS THERE WAS NO PURCHAS E OF ANY LAND FROM SHRI RADHEY SHYAM SHARMA BECAUSE HE WAS NOT OWNING ANY LAND. THE ADVA NCE GIVEN AT THE TIME OF AGREEMENT WAS REFUNDED. THEREFORE IN OUR VIEW THIS IS NOT TH E CASE OF THE DEPARTMENT THAT ASSESSEE HAS MADE ANY UNDISCLOSED INVESTMENT IN THE PLOT. AC CORDINGLY WE HOLD THAT LOWER AUTHORITIES WERE NOT JUSTIFIED IN MAKING AND CONFIR MING THIS ADDITION. THE SAME IS THEREFORE DELETED. 17. GROUND NO. 5 RELATES TO UPHOLDING THE ADDITION OF RS. 28 247/- ON ACCOUNT OF PURCHASE OF LAND. 18. THE FACTS IN THIS REGARD ARE THAT DURING THE CO URSE OF SURLVEY A REGISTERED DEED DATED 18.07.2002 WAS FOUND IN RESPECT OF PURCHASE O F PROPERTY FROM SHRI RAM DHAN JATAV. FOR THE SAID LAND AN AGREEMENT WAS MADE ON 3 .4.1998 WHEN THE TOTAL CONSIDERATION OF RS. 24 300/- WAS PAID AND REGISTERED DOCUMENT WA S MADE ON 18.07.2002 I.E. DURING THE 7 YEAR UNDER CONSIDERATION AND ONLY REGISTERING CHARG ES OF RS. 3953/- WERE PAID DURING THE YEAR UNDER CONSIDERATION. THESE FACTS WERE ALSO STA TED BY THE ASSESSEE IN THE STATEMENTS RECORDED DURING THE COURSE OF SURVEY. 18.1. DURING THE COURSE OF ASSESSMENT PROCEEDINGS A S WELL AS IN APPELLATE PROCEEDINGS IT WAS SUBMITTED THAT INVESTMENT WAS MADE OUT OF THE F UNDS OF THE HUF WHICH IS PROVED SOURCES OF FUNDS BASED ON DOCUMENTARY EVIDENCE THU S WHEN THE ASSESSEE HAS DULY EXPLAINED THE SOURCE OF INVESTMENT NO ADDITION SHOU LD BE CALLED FOR. 18.2. HOWEVER AO WAS NOT SATISFIED WITH THE EXPLAN ATION THEREFORE HE MADE THE IMPUGNED ADDITION. THE LD. CIT (A) ALSO CONFIRMED THE SAME. 19. THE CONTENTION RAISED BEFORE THE LOWER AUTHORIT IES ARE REITERATED HERE BEFORE THE TRIBUNAL THROUGH WRITTEN SUBMISSIONS. 20. ON THE OTHER HAND THE LD. D/R PLACED RELIANCE ON THE ORDERS OF THE AO AND LD. CIT (A). 21. AFTER CONSIDERING THE ORDERS OF THE AO AND LD. CIT (A) AND THE CONTENTION OF THE ASSESSEE WE FIND THAT THERE IS NO INFIRMITY IN THE FINDING OF LD. CIT (A) IN THIS REGARD. THOUGH ASSESSEE HAS TRIED TO MAKE HIS CASE THAT A P ART PAYMENT OF RS. 24 300/- WAS MADE AT THE TIME OF AGREEMENT ENTERED ON 3.4.1998 HOWEV ER NO EVIDENCE TO THIS ASPECT HAS BEEN FILED EITHER BEFORE LD. CIT (A) OR HERE BEFORE US. THOUGH IT IS WELL SETTLED THAT STATEMENT RECORDED DURING THE SURVEY PROCEEDINGS UN DER SECTION 133A CANNOT BE GIVEN MUCH CREDENCE IF THERE IS A CORROBORATIVE EVIDENCE. HOWEVER IN RESPECT TO THE PRESENT ISSUE THERE IS NO POSITIVE EVIDENCE IN FAVOUR OF T HE ASSESSEE. THE EVIDENCE WHICH IS AVAILABLE IS SALE DEED AND IN THE SALE DEED IT HAS BEEN MENTIONED THAT ASSESSEE HAS PAID 8 FULL AMOUNT AT THE TIME OF REGISTRATION. THEREFORE THIS GOES AGAINST THE ASSESSEE AND ACCORDINGLY ADDITION MADE AND SUSTAINED BY LOWER AU THORITIES IS CONFIRMED. 22. GROUND NO. 6 IS AGAINST SUSTAINING THE ADDITION OF RS. 3 00 000/- ON ACCOUNT OF ALLEGED EXCESS STOCK FOUND DURING THE SURVEY. 23. BRIEF FACTS IN THIS REGARD ARE THAT DURING THE COURSE OF SURVEY EXCESS STOCK OF RS. 3 00 000/- WAS FOUND WHICH WAS OFFERED FOR TAXATION BY THE ASSESSEE WHILE MAKING STATEMENT DURING THE COURSE OF SURVEY. A RETRACTION WAS FILED BEFORE THE AO ON 27.8.2005. HOWEVER RETRACTION WAS NOT ACCEPTED BY THE AO BY O BSERVING THAT ASSESSEE HIMSELF HAS ADMITTED TO OFFER THE SAME FOR TAXATION DURING THE SURVEY PROCEEDINGS. ACCORDINGLY HE MADE ADDITION OF RS. 3 00 000/-. THE LD. CIT (A) A LSO CONFIRMED THE ACTION OF THE AO. 24. THE LD. COUNSEL OF THE ASSESSEE PLACED RELIANCE ON THE WRITTEN SUBMISSIONS FILED BEFORE THE TRIBUNAL. 25. ON THE OTHER HAND THE LD. D/R PLACED RELIANCE ON THE ORDERS OF AO AND LD. CIT (A) AND ALSO PLACED RELIANCE IN THE CASE OF HARISH CHAND HUF 334 (RAJ.). 26. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD WE FIND THAT ASSESSEE DESERVES TO SUCCEED IN THIS GROUND AL SO. IT IS SEEN THAT THE BOOKS OF ACCOUNT WERE INCOMPLETE AT THE TIME OF SURVEY. AS ON THE BA SIS OF INCOMPLETE BOOKS OF ACCOUNT THE STOCK WAS FOUND EXCESS BY RS. 3 00 000/- WHICH WAS OFFERED FOR TAXATION. HOWEVER ON A LATER STAGE THE BOOKS WERE COMPLETED AND AS PE R COMPLETED BOOKS OF ACCOUNT THERE WAS NO DIFFERENCE IN THE STOCK. IN FACT THE SURVE Y PARTY VALUED THE STOCK AT RS. 6.22 LACS AND AS PER INCOMPLETE BOOKS OF ACCOUNT THE STOCK WA S OF RS. 6 LACS AND AFTER REDUCING THE SALE THE EXCESS STOCK WAS COMPUTED AT RS. 3 LACS. HOWEVER IF THE COMPLETED BOOKS OF ACCOUNT ARE TAKEN INTO CONSIDERATION WHERE CERTAIN PURCHASES WHICH WERE LEFT TO BE 9 ENTERED AND CERTAIN SALES WHICH WERE ALSO LEFT TO B E ENTERED IN THE BOOKS OF ACCOUNT WERE ENTERED AND AFTER TAKING INTO CONSIDERATION ALL THE PURCHASES AND SALES WHICH COULD NOT BE ENTERED AT THE TIME OF SURVEY AND AFTER SURVEY THEY WERE ENTERED THEN THERE WAS NO EXCESS STOCK. THIS EXPLANATION WAS NOT ACCEPTED BY THE AO AND LD. CIT (A) AS BOTH THE AUTHORITIES WERE OF THE VIEW THAT ASSESSEE HIMSELF HAS OFFERED FOR TAXATION THE EXCESS STOCK FOUND DURING THE COURSE OF SURVEY. AS ALREADY EXPLAINED EARLIER THAT STATEMENT RECORDED DURING THE SURVEY CANNOT BE GIVEN MUCH CRE DENCE IF THERE IS CORROBORATIVE EVIDENCE. THE CORROBORATIVE EVIDENCE IS IN FAVOUR OF THE ASSESSEE. AFTER COMPLETING THE BOOKS OF ACCOUNT AND AFTER ENTERING THE PURCHASES A ND SALES IN THE BOOKS OF ACCOUNT THERE WAS NO EXCESS STOCK. THEREFORE IN OUR VIEW NO ADD ITION SHOULD HAVE BEEN MADE BY THE AO. 27. THE LD. D/R PLACED RELIANCE ON THE DECISION OF HARISH CHAND HUF. HOWEVER WE HAVE GONE THROUGH 334 ITR AND NO CASE IS THERE IN T HE NAME OF HARISH CHAND HUF DECIDED BY HONBLE RAJASTHAN HIGH COURT. HOWEVER T HERE IS A DECISION IN CASE OF HUKUM CHAND JAIN 334 ITR 197. IN THAT CASE THE H ONBLE RAJASTHAN HIGH COURT HAS HELD DISMISSING THE APPEAL THAT ADMISSION DESPIT E BEING AN IMPORTANT PIECE OF EVIDENCE WAS NOT CONCLUSIVE AND IT WAS OPEN TO THE ASSESSEE TO SHOW THAT IT WAS NOT CORRECT. BUT IN THIS CASE NO SUCH EFFORT WAS MADE BY THE ASSESSEE AND NO SUCH MATERIAL WAS PRODUCED BY HIM. THE ASSESSEE COULD NOT PRODUCE ANY OTHER EVID ENCE TO THE CONTRARY TO SHOW THAT INVESTMENTS WERE ACTUALLY MADE IN DIFFERENT YEARS T HAN THIS. ACCORDINGLY IT WAS HELD THAT THE ASSESSMENT WAS VALID. THE RATIO OF THIS D ECISION OF HONBLE RAJASTHAN HIGH COURT IS NOT IN FAVOUR OF THE DEPARTMENT BUT SUPPOR TS THE CASE OF THE ASSESSEE AS ASSESSEE HAS FILED DETAILS IN RESPECT OF PURCHASES AND SALES EFFECTED BEFORE THE DATE OF SURVEY WHICH 10 COULD NOT BE ENTERED IN THE BOOKS OF ACCOUNT SINCE THE BOOKS OF ACCOUNT WERE INCOMPLETE. AFTER THE DATE OF SURVEY THE BOOKS OF ACCOUNT WERE COMPLETED AND RETRACTION WAS FILED BEFORE THE AO AND LD. CIT (A). HOWEVER BOTH THE L OWER AUTHORITIES HAVE NOT ACCEPTED THE RETRACTION FOR THE SIMPLE REASON THAT ASSESSEE HIMSELF HAS ADMITTED TO OFFER THE EXCESS STOCK FOUND FOR TAXATION DURING THE COURSE OF SURVE Y. AS STATED/EXPLAINED ABOVE NO ADDITION CAN BE MADE IN VIEW OF THE STATEMENT RECOR DED DURING THE COURSE OF SURVEY UNLESS THERE IS A CORROBORATIVE EVIDENCE. THE CORR OBORATIVE EVIDENCE IS IN FAVOUR OF THE ASSESSEE. AN EXPLANATION WAS FILED THEREFORE NO ADDITION CAN BE MADE SOLELY ON THE BASIS OF ADMISSION MADE DURING THE COURSE OF SURVEY . ACCORDINGLY WE DELETE THE ADDITION OF RS. 3 00 000/-. 28. GROUND NO. 8 IS AGAINST CONFIRMING THE ADDITION OF RS. 25 000/- ON ACCOUNT OF DIFFERENCE IN BANK ACCOUNT. 29. AGAIN THIS ADDITION OF RS. 25 000/- WAS MADE ON ACCOUNT OF EXCESS DEPOSIT IN THE BANK WHICH COULD NOT BE EXPLAINED BY ASSESSEE AT TH E TIME OF SURVEY AND ASSESSEE OFFERED FOR TAXATION. THEREFORE THE ADDITION WAS MADE. TH E LD. CIT (A) HAS ALSO CONFIRMED THE SAME. 30. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD WE FIND THAT ASSESSEE DESERVES TO SUCCEED IN THIS GROUND AL SO. IN FACT A SUM OF RS. 25 000/- WAS GIVEN BY THE ASSESSEE TO HIS EMPLOYEE FOR DEPOSITIN G IN THE BANK WHO DID NOT DEPOSIT THE AMOUNT. THEREAFTER ASSESSEE DEBITED THE ACCOUNT OF THE SAID EMPLOYEE WHEN THE BOOKS OF ACCOUNT WERE COMPLETED AND IT WAS EXPLAINED THAT TH IS WAS THE REASON IN DIFFERENCE IN THE BANK ACCOUNT. HOWEVER AS STATED ABOVE THE AO AND LD. CIT (A) DID NOT ACCEPT THE EXPLANATION. IT IS ALSO SEEN THAT ASSESSEE HAS DEB ITED THE AMOUNT OF RS. 25 000/- IN THE 11 ACCOUNT OF THE EMPLOYEE AND HAS PURSUED TO CLAIM TH E SAME. THEREFORE WE ARE OF THE VIEW THAT THE ASSESSEE HAS EXPLAINED THE REASON FOR DIFFERENCE IN BOOKS OF ACCOUNT IN RESPECT TO BANK ACCOUNT. IN OUR VIEW EXPLANATION O F THE ASSESSEE SEEMS TO BE REASONABLE AND SHOULD BE ACCEPTED. THEREFORE WE HOLD THAT AD DITION MADE AND CONFIRMED BY THE LOWER AUTHORITIES WAS NOT JUSTIFIED. ACCORDINGLY TH E SAME IS DELETED. 31. REMAINING GROUND I.E. GROUND NO. 9 IS AGAINST N OT ACCEPTING THE RETRACTION MADE BY ASSESSEE AND MAKING THE ADDITION ON THE BASIS OF SURVEY. 32. THIS ISSUE WE HAVE ALREADY DISPOSED OFF WHILE D ISPOSING GROUND NO. 4 OF THE ASSESSEE WHERE WE HAVE HELD THAT NO ADDITION CAN BE MADE SOLELY ON THE BASIS OF STATEMENT RECORDED DURING THE COURSE OF SURVEY. THE REFORE NO FINDING ARE REQUIRED TO BE GIVEN. 33. THERE IS AN ADDITIONAL GROUND I.E. GROUND NO. 1 0 BY WHICH IT HAS BEEN STATED THAT ADDITION OF RS. 60 000/- WAS MADE BY THE AO ON ACCO UNT OF MARRIAGE EXPENSES. 34. IT WAS SUBMITTED THAT ADDITIONAL GROUND WAS TAK EN BEFORE LD. CIT (A) WHICH HAS NOT BEEN DISPOSED OFF BY THE LD. CIT (A). THEREFORE MATER SHOULD BE SENT BACK TO THE FILE OF LD. CIT (A). 35. THE LD. D/R STATED THAT THIS GROUND MAY BE DISP OSED OFF ON MERIT. 36. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD WE RESTORE THIS ISSUE TO THE FILE OF LD. CIT (A) AS ADDITIONAL GROUND WAS TAKEN BEFORE HIM AGAINST SUSTAINING ADDITION OF RS. 60 000/- ON ACCOUNT OF M ARRIAGE EXPENSES WHICH HAS NOT BEEN DISPOSED OFF BY LD. CIT (A). THEREFORE WE RESTORE THIS ISSUE TO THE FILE OF LD. CIT (A) TO DISPOSE OFF GROUND TAKEN BEFORE HIM. THIS GROUND OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 12 37. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWE D IN PART. 38. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30 .9.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR D/- COPY FORWARDED TO :- SHRI SANT KUMAR KARAULI. THE ITO WARD-3 SAWAI MADHOPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 949/JP/2010) BY ORDER AR ITAT JAIPUR.