TaxTMI 
TaxTMI 
2024 (9) TMI 506
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..... Whether on facts and in circumstances of the case the CIT (A) is justified in deleting the addition of Rs 35,550/- appreciating the reply of the assessee which was only an after thought arrangement and not appreciating the overall facts and record of the case which should be taken all together ab initio from survey. 2.1 It may be noted that the present appeal is preferred by the Revenue against the order of CIT(A) dt. 29.01.2024. Since the ld. CIT(A) has already stated the relevant facts hence, the same are not being repeated here. During the course of hearing the parties were directed to file detailed written submissions in support of their oral arguments, if so desired. However, the ld.DR supported the order of the AO. To this effect, the ld. AR of the assessee has filed the following written submissions countering the grounds of appeal raised by the Revenue. '' Submission: 1. At the outset we strongly place reliance upon our detailed submissions made before AO as also before the CIT(A). 2. We also place strong reliance upon the order of the CIT(A) to the extent (Pg.36, Para. 5.6) his findings and observations are given in the favour of the assessee. ....
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.... of the Shri Naresh Jain recorded u/s 131) on dated 02.02.2017 by the Survey Team. However, the credibility of such statements is highly doubtful and not binding for various reasons, as enumerated below: 4.2.2 No addition permissible solely based on statements : Pertinently, the impugned additions have been made solely based on the statement of the assessee without any corroborative evidence, and that too ignoring the retraction. It is settled that an admission cannot be made the sole basis of assessment since it is a matter of common knowledge that during the course of Search/Survey, the Revenue Authorities normally do exert unwanted pressure and influence over the assessee's to get something surrendered to make their survey a success. To expect the assessee to furnish an infallible evidence of concrete nature in such a situation is totally beyond comprehension. 4.3 The authorities below even violated the binding CBDT Circular No. 286/2/2003 dt. 10.03.2003 and the Budget Speech, 2003 by the Finance Minister please be referred, which is reproduced hereinbelow : "Instances have come to the notice of the Board where assessee have claimed that they have been....
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....er any cognizance may be taken of the retracted statement. So far as case on hand is concerned, the glaring fact required to be noted is that the statement of the assessee was recorded under s. 132(4) of the Act at midnight. In normal circumstances, it is too much to give any credit to the statement recorded at such odd hours. The person may not be in a position to make any correct or conscious disclosure in a statement if such statement is recorded at such odd hours. Moreover, this statement was retracted after two months. 26. In view of what has been stated hereinabove we are of the view that this explanation seems to be more convincing, has not been considered by the authorities below and additions were made and/or confirmed merely on the basis of statement recorded under s. 132(4) of the Act. Despite the fact that the said statement was later on retracted no evidence has been led by the Revenue authority. We are, therefore, of the view that merely on the basis of admission the assessee could not have been subjected to such additions unless and until, some corroborative evidence is found in support of such admission. We are also of the view that the statement recorded a....
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.... our transaction with Allen Career Institute, they started looking into our personal affairs and pressurised me to give statement about my transactions/properties. 6. THAT I gave the statement as per my information and knowledge without any verification from the books of accounts. This statement continued from 2nd February, 2017 to 5th February, 2017 and my statement was recorded in more than 25 pages. The survey party impounded various documents, books and papers and asked me to sign each and every paper without providing me any opportunity to read what they have written in my statement and thus concluded the survey at around 3:30 AM on 5th February, 2017. I was so exhausted in this continuous survey that I signed the papers as required by the survey party. 7. THAT-on-7th February, 2017 from the media news on ETV News and Zee Marudhara, I came to know that the Income Tax Survey Party has sought a declaration of undisclosed income of around Rs. 9 ers from me, On hearing this news, I was shocked as I had not made any such declaration nor the survey party have stated about any such undisclosed income in course of survey. 1, therefore, immediately went to the Income ....
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....e out of ambiguity, under tension or was against the facts or misconception of law, can be validly retracted. It has been held by the Hon'ble Supreme Court in Pullangode Rubber Produce Co. Ltd. vs. State of Kerala & Others 91 ITR 18 (SC): "Such admission is an extremely important piece of evidence, but it cannot be said that it is conclusive. It is open to the assessee who made the admission to show that it is incorrect, and the assessee should be given a proper opportunity to show that the books of accounts do not disclose the correct state of facts". 4.4.2 The Hon'ble Apex Court in Nagubai Ammal v/s B. Sharma Rao AIR 1956 (SC)593: held as under "An admission is not conclusive as to be truth of the matters stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue". 4.4.3 In Rajesh Jain v/s DCIT (2006) 100 TTJ 929 (Del), held that computation of undisclosed income solely on the basis of confessional statement of the assessee was not justified, inter alia, where the conduct of affairs by the Revenue Authorities showed that go....
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....to the effect that material/document seized during the search does not belong to the PS i.e. 'SJSL', or belong to the assessee company. In this regard, there were no incriminating material against OP was found in the search. Further, section 153C emphasize that there should be material or document seized which belong to the OP. As such statement recorded during search is not a material or document found and seized. Therefore, the statement recorded under section 132(4) cannot be construed as material/document for invoking proceeding under section 153C specially, in the circumstances where no material of incriminating in nature found belonging to OP. [Para 8.4] The documents/any fact/evidence which could suggest that the documents/transactions claimed or submitted in any earlier proceedings were not genuine, being only a device/make belief based on non-existent facts or suppressed/misrepresented facts, fulfilling the ingredients of undisclosed income, would constitute the documents sufficient to make assessment for the purposes of the Act. The courts have referred such documents as an 'incriminating material'. While going through a large number of the decisi....
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....lity both: It appears that the revenue has proceeded on serious misconception of fact and law while repeatedly alleging that the ld. CIT(A) has ignored the basic fact that the assessee had already admitted income on oath u/s 131, which contention appears totally contrary to the factual and legal finding recorded by the CIT(A) at pg 38: "Applying the aforesaid legal proposition herein, I am of the opinion that admission is an extremely important piece of evidence though it is not conclusive.." Thus, the CIT(A) clearly held that the statement recorded on oath do have evidentiary value. However, thereafter the ld. CIT(A) also held that statement recorded during survey is not conclusive and also recorded categorical finding of fact that the corroborative material used by the AO wherein the assessee admitted, was fully explained and thereafter, in absence of any other corroborative evidence such admission alone could not be made a basis of the addition. Therefore, it is wrong to say that the CIT(A) completely ignored the admission made by the assessee. 5.2 Prayer u/r 27 of the ITAT Rules, 1963: Though, assessee is not in appeal or co. against such fin....
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....ng 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 under section 133A has no evidentiary value and any admission made during such statement cannot be made basis of addition. 6.2 Further, the statute has provided different provisions looking to the different factual situations as regard recording of the statement, somewhere on oath and somewhere without oath, u/s 132(4) (in such matters), u/s 133A(3)(iii) (in survey case) and u/s131 (for general inquiry). These provisions operate independently in their respective fields and cannot be used interchangeably. S.133A(3)(iii) is separate and independent from S. 131, as evident from the further fact that S. 133A (6), refers to use of the powers u/s 131 only in a given fact situation (as stated above), which manifests the....
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....er Section 133A of the Act and that made during the course of search under Section 132 (4) of the Act. Section 132(4) of the Act states that the authorized officer may, during the course of search and seizure, "examine on oath any person who is found to be in possession or control of any books of account, documents, monies, bullion, jewellery..."and that any statement made during such examination may be used thereafter in evidence in any proceeding under the Act. On the other hand, Section 133A does not talk of the recording of any statement on oath. Under Section 133A (3) (iii), the Income Tax Authority acting under the said provision could "record the statement of any person which may be useful for, or relevant to, any proceeding under this Act." Therefore, there is a considerable difference in the nature of the statement recorded under Section 132(4) and that recorded under Section 133A(3)(iii) of the Act. 41. This distinction was noticed by this Court in Dhingra Metal Works (supra). The Court there referred to the decision of the Kerala High Court in Paul Mathews & Sons v. CIT [2003] 263 ITR 101/129 Taxman 416 and of the Madras High Court in S. Khader Khan Son (supra) ....
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....be ascertained in the light of the facts of this case. The legal issue is decided in favour of the assessee" 7. Statement recorded u/s131 and not u/s 133A(3)(iii)-misinterpretation of law: 7.1 In this regard it is submitted that, such a contention, on a bare perusal of the related provision, is completely devoid of merit and rather a misreading and misinterpretation of the provision. During survey statements are recorded u/s 133A(3)(iii) of the Act only. However, recourse u/s131 (1) can be taken only if S.133A(6) is invoked. For ready reference S. 133A (6) is being reproduced hereunder: "(6) If a person under this section is required to afford facility to the income-tax authority to inspect books of account or other documents or to check or verify any cash, stock or other valuable article or thing or to furnish any information or to have his statement recorded either refuses or evades to do so, the income-tax authority shall have all the powers under [sub-section (1) of section 131] for enforcing compliance with the requirement made : [Provided that no action under sub-section (1) shall be taken by an Assistant Director or a Deputy Director or an....
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....sent case (04.02.2017) and affidavit towards retraction filed on 06.04.2017 (Pg.54 CIT(A) order). 7.4 It is pertinent to note that the CIT(A) has rejected the claim of filing retraction by the Assessee before him, at the same time, he considered the documentary evidences, furnished by the assessee, with a view to explain the impounded document and clarify the admission made, hence, it can't be said that the CIT(A) granted relief only and only on the legal aspect (that statement recorded during survey u/s 133A(3)(iii) and/or u/s 131, has no evidentary value and not being conclusive, no addition can be made merely on that basis). On the contrary, it is discernible from his findings in all the 4 cases, where he has granted relief, he has extensively dealt with the merits of each case for examining the impounded documents, explanation of assessee, remand report and rejoinder etc., independently. Thus, under totality of the facts and circumstances detailed above, the CIT(A) order rightly deleted the addition. Therefore, this ground taken by the revenue deserves to be dismissed here itself. 8. Source established being cash withdrawal - No scope for suspicio....
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....re had been total 52 transactions on different dates averaging 2-3 transactions each month of Cash Withdrawal aggregating to Rs. 1,49,40,000/- to meet the business requirements. 8.2.2 Detailed reply for Cash Deposits/withdrawals for the period 18/04/2016 to 13/11/2016, was submitted to AO (also reproduced at pg.11-13 of CIT(A) order). Thus, cash withdrawals were made out of business receipts. Further, as per books of accounts, physical Cash in hand as on 13.11.2016, was Rs 77,14,269/- (APB 217-219), assessee duly produced copy of Cash Book during Assessment, Remand and Appellate proceedings (copy enclosed with this submission also). Notably, there is no negative cash balance in the books of accounts on any date during the impugned year, much less prior to the 'demonetization period' which fact was not rebutted by lower authorities. Thus, allegation of an afterthought is absolutely without any basis and a mere suspicion. 8.3 Availability of funds cannot be 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 ....
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....Computation of undisclosed income-Cash found during search-Assessee is entitled to furnish cash flow statement to explain the transactions when no books of account are maintained-In such circumstances it becomes the duty of the AO to verify the balance sheet and cash flow statement with the necessary material including the details already filed along with the returns in the past-Assessee explained that the cash found at the time of search was withdrawn from the bank some time back which was partly used for purchasing gold and part of the amount was given by the assessee to his wife-There is nothing to suggest the utilization of the withdrawal amount elsewhere-Said withdrawal is duly reflected in the cash flow statement and closing cash balance is more than the amount found at the time of search-Thus, addition cannot be sustained" 9. Double Taxation Not Permissible: 9.1 It is submitted that the impugned addition, so made, has resulted into double addition in as much as the fact is not denied that the receipts from Advertising by the assessee were duly booked and the turnover was around Rs. 43 Cr. from news papers, hording and otherwise also during the impugned year....
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....m." 9.3.2 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) 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 find support of this contention from the decision of the jurisdictional high court in the case of Smt. Harshil Chordia Vs. ITO reported at 298 ITR 349 (Rajasthan-HC)(supra) we do not find any merits on the finding of the ld. AO and that of the ld. CIT(A) in disbelieving the sales recorded by the assessee as the sales is in course of business is duly supported by the invoice and delivery of the goods recorded in the books of the assessee. The cash is generated out of the stock already on record and thus the sales made by the assessee company is genuine sales recorded in the books of account. All the details required to p....
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....ng 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 more or less corresponded with cash sales, it could only be concluded that there was growth in assessee's business and impugned addition was to be deleted - Held, yes [Paras 16.9 and 17.6] [In favour of assessee]" Thus, the assessee has already offered the sales receipts for taxation hence the onus has been discharged by it and the same income cannot be taxed again. 9.3.5 In the case of PCIT vs. Dilip Kumar Swami [2019] 106 taxmann.com 59 (Raj) it was held that: "Assessee filed his return declaring certain taxable income - In course of assessment, Assessing Officer noted that assessee had deposite....
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....tries therein were not challenged. No further documents or vouchers in relation to those entries were called for, nor was the presence of the deponents of the three affidavits considered necessary by either party. The appellants took it that the affidavits of these parties were enough and neither the Appellate Assistant Commissioner, nor the Income-tax Officer, who was present at the hearing of the appeal before the Appellate Assistant Commissioner, considered it necessary to call for them in order to cross-examine them with reference to the statements made by them in their affidavits. Under these circumstances it was not open to the Revenue to challenge the correctness of the cash book entries or the statements made by those deponents in their affidavits. ---------xxxxxx--------xxxxxx------xxxxxx------- A mere calculation of the nature indulged in by the Income-tax Officer or the Appellate Assistant Commissioner was not enough, without any further scrutiny, to dislodge the position taken up by the appellants, supported as it was, by the entries in the cash book and the affidavits put in by the appellants before the Appellate Assistant Commissioner. ---------xxxxxx--....
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....quential expenses are fully vouched. The accounts are audited u/s 44AB of the Act (APB 22-40). The cash book was maintained on a day-today 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. 11.2.1 It is now well settled that where the 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, as in this case. In other words, he felt satisfied with the books of accounts maintained by assessee and duly audited and produced before him and therefore feeling satisfied, he did not reject the same. Once this is the admitted fact, there is no reason as to why the AO must have alleged that the regularly maintained cashbook as unreliable. 11.2.2 The ld. AO, no doubt, raised an objection at Pg.3 of order (also reproduced at pg 8 of CIT(A) order) that: "During ass....
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....he honestly declared whatever was the result i.e. the cash in hand on 08.11.2016. Therefore, it can't be said that the assessee did manipulate the books of account. 11.3 There is a consistent view of various High Courts and Tribunals to this effect. Kindly refer: 11.3.1 M/s Bansilal Abirchand Spg. & Wvg. Mills 75 ITR 260 (Bom) a. A finding has to be recorded as to the unacceptability of the method and irregularity of the method and irregularity of accounts kept. b. The mere fact that percentage of dead loss of cotton is high in a particular year cannot lead to the loan inference that thereby there has been a suppression of the production in a spinning mill. c. If it is not possible to keep such record (record of loss or wastage at subsequent stages) there was no other reason not to accept the book results of the records kept addition by way of estimate not permissible. d. Merely by comparison of the percentage of loss in a particular year, we do not think it is possible to say with any reasonable certainty that the increase in the percentage of loss must be attributable and must lead to a reasonable inference of suppressio....
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....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 held that the discretion had not been properly exercised by the ITO and the AAC in taking into account the circumstances in which the assessee was placed and the Tribunal has found that the sources of investments could not be treated as income of the assessee. The High Court has agreed with the said view of the Tribunal. There is no error in the said finding recorded by the Tribunal. There is thus no merit in these appeals and the same are accordingly dismissed.-CIT vs. Smt. P.K. Noorjehan (1980) 15 CTR (Ker) 138 : (1980) 123 ITR 3 (Ker) : 42R.1622, affirmed." 13. No addition permissible merely on suspicion: It is well settled that suspicion, however strong, cannot take the place of reality. Thus, the impugned additions have been made merely on suspicion, impugned addition deserves to be deleted here itself. Kindly refer Dhakeshwari Cotton Mills v/s CIT (1954) 26 ITR 775 (SC), wherein it is held as under: "Assessment-Va....
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.... CIT vs Bajargan Traders (Raj HC)in ITA No. 258/2017 dated 12.09.2017 * Shri Ram Narayan Birla (ITAT Jaipur) in ITA No. 482/JP/2015 dated 30.09.2016 * Chokshi Hiralal Maganlal vs DCIT (ITAT Ahmadabad) ITA No. 3281/Ahd/2009 AY 2004-05 dated 05.08.2011 In view of the facts & circumstances, judicial guidelines and the statutory provisions, the addition of Rs. 72 lakhs could not be subjected to S. 115BBE of the Act. Therefore, this ground of appeal taken by the revenue deserves to be dismissed. DGOA 2: Rs. 35,550/- alleged undisclosed income during Survey. Facts: The AO has dealt with this issue at Pg 2 Pr 2 and copied at page no.3 para 4 of CIT(A) order. The detailed written submissions dt.18.07.2023 filed before the CIT(A) are at page no.3 para 4.2, the remand report thereupon by the AO dt. 14.09.2023 is at page no.4 para 4.4, the rejoinder dt. 30.10.2023 at page no. 6 para 4.5 and finally the ld. CIT(A), after considering the detailed submissions, the remand report, rejoinder made before him, at Page 6, Para. 4.6 concluded in following words: "4.6 I have considered the submission of Ld. A/R and carefully gone through the....
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....hese circumstances, the addition made by the AO is not found to be based on some evidence and the addition made of Rs. 35,500/- is not found to be sustainable and the same is deleted. This ground of appeal is treated as allowed." Hence this ground. Submission: 1. At the outset we strongly place reliance upon our detailed submissions made before AO as also before the CIT(A). 2. We also place strong reliance upon the order of the CIT(A) to the extent (Pg. 6, Para 4.6) his findings and observations are given in the favour of assessee. 3. The ld. AO during the verification proceedings, noticed that the total of difference of expenses booked "as per audit report" and "as per Income and Expenditure" are wrongly written as Rs. 1,71,72,858/- due to arithmetical error, which should have been Rs. 1,81,18,746/-. Thus, while framing the assessment order u/s 143(3) r.w.s. 147 of the I.T.Act, 1961 on 31.12.2019, the then AO had wrongly made addition of Rs. 1,71,72,858/- due to arithmetical error instead of Rs. 1,81,18,746/-. 4. Further, during the survey proceedings, it was alleged that Shri Naresh Jain declared Rs. 2 Crore as undisclosed income....
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....submissions have been made based on the instructions and the information provided of/by the client.'' 3.1 In Ground No. 1, the Revenue in this ground has assailed the deletion of the addition of Rs. 72 lakh made by the AO, w.r.t. the cash deposits made by the assessee Smt. Nisha Jain in her bank accounts alleging that the ld. CIT(A) did not appreciate that there were incriminating material and information revealed during the course of survey and that Shri Naresh Jain, Husband of assessee, in his statement recorded on oath u/s 131 during survey had admitted such deposits as assessee's undisclosed income. Since the CIT(A) has already stated the relevant facts hence, the same are not being repeated here. During the course of hearing the parties were directed to file detailed written submissions in support of their oral arguments, if so desired. It is noted that the ld. DR relied upon the order of the AO and the ld. AR of the assessee has filed the written submission (supra) 3.2 We have carefully gone through the order of the first appellate authority and find that very elaborate discussion has been made considering each and every aspect raised by the AO in the assessment order a....
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....own that the cash book maintained by the assessee and submitted during the assessment proceedings are different than the cash book found during the survey action. Hence, it is considered that the assessee has manipulated the figures in the cash book, therefore the contents of the cash book are not reliable. In the assessment order the AO has noted that the assessee has manipulated the figures in the cash book, therefore the contents of the cash book are not reliable. The AO has also relied upon the statement recorded during the survey. 5.6.2 Both of these issues are examined. The AO has relied upon the statement recorded during the survey where it was admitted that Rs. 72,00,000/- deposited during demonetization was earned from un-disclosed sources and offered the same for taxation. The statement recorded under oath is an important piece of evidence. Relevancy and evidentiary value of statement obtained under oath during the search/survey proceedings are no longer res integra. In the decision of the Supreme Court in the case of BanalalJat Constructions (P.) Ltd. v. Asstt. CIT [2019] 106 taxmann.com 128/264 Taxman 5, after referring to the judgment of Pull....
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....uirements. It is further submitted that Cash in Hand as on (i) 01/04/2016 was Rs 3,11,451.91 (ii) as on 08/11/2016 was Rs. 77,66,449/- (iii) 31/03/2017 was Rs 3,18,640.28. It is argued that the appellant is engaged in the business of Advertising agency. During the impugned year total Turn Over of the appellant was Rs. 43,02,93,389/- from news papers, hording and others. During the impugned year and upto 12/11/2016 total business receipts is of Rs 30,76,17,041/-. It is submitted that most of the business transactions are routed through Banking channels. All the receipts from advertising are through cheques and deposited in Bank. It is argued that the cash deposited Rs. 72,00,000/- during the period of 'demonetization' was also declared in the Income Tax Return at S No. 13 of column No 7 It is submitted that difference in Rs. 1,57,62,376/- and Rs. 77,66,469/- (79,95,907/-) is due to the expenses like repair and maintenance, business promotion, design & graphics, computer, flex printing, Hording, misc expenses, printing & stationery, staff welfare, vehicle running, water, labour, construction of building and house construction at Sarovar Road. The a....
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....& cash deposited on 13.11.2016 is Rs. 72,00,000/-. Hence, as per the cash book produced during the reverification proceedings, it is found that there is a sufficient fund in the form of cash was available with the assessee to deposit in her respective bank account during the course of demonetization period. Considering the verification made by the AO, it is seen that the argument of the appellant is found to be acceptable that the cash of Rs. 72,00,000/- was deposited during demonetization period was out of cash withdrawn from bank accounts in F.Y. 2016-17. The AO has reiterated the findings of assessment order on the difference of cash as per seized documents of Rs. 1.57 Crore, and as per cash book of Rs. 77.66 Lakhs. However, the AO has also reported that book produced by the assessee are tallied with the bills/vouchers. Considering these facts, the main reason for making the addition is not found to be sustainable as the appellant is able to explain the source of cash deposited with the help of books of accounts. The issue now remains whether addition could have been made only on the basis of statement recorded under oath during the survey as the incriminating ....
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....found any fault with nor were rejected invoking S. 145 and therefore, as per mandate of that provision, they were binding upon the authorities below. There were aggregate cash withdrawals of Rs. 1.49 Crores made from the bank accounts to meet the dayto-day business requirement as also to make deposits in the bank accounts. The only point raised was that there was a difference of Rs. 79.95 lakhs between the cash balance of Rs. 1.58 Crores shown in the impounded cash book and Rs. 77,66,449/- shown in the regularly maintained cash book on 08.11.2016. The AO vaguely whispered of some manipulation but failed to establish as such. However, the alleged difference was also explained by the assessee stating that various expenses on account of repair & maintenance, business promotion, etc. were pending and could not be entered therein. We agree with the contention of the ld. AR Adv. Mahendra Gargieya that the survey was carried out mid of the year and it is not abnormal if various transactions remained to be recorded. The correct picture can be seen only after the completion of the accounts from all aspects, more particularly when they are audited. The ld. CIT(A) has already dealt with this ....
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.... & sons Vs CIT [2003] 263 ITR 101 : 181 CTR 207 (Kerala), S. Kadar Khan Sons [2008] 300 ITR 157 (Madaras) affirmed by Hon'ble Apex court in CIT Vs S. Kadar Khan [2013] 352 ITR 480 (SC) and PCIT Vs. Meeta Gutgutia [2017] 295 CTR 466 (Delhi). We have dealt with this issue in greater detail in the case Naresh Jain for A.Y. 16-17 vide para 3.2 of our order dt. 5-08-2024 in ITA No.349 (D) and 358 (A)/JPR/2024. In any case, such admission was not at all corroborated by any document found during the survey except the incomplete cash book which itself was not incriminating. Thus, we find no reason as to why the statement admitting the bank deposits as income (that too on behalf of the assessee but not even by the assessee) should be accepted. The alleged admission is claimed to have been retracted by filing affidavit dt. 14.02.2017 (APB 140-143) before the ADIT (INV) on 06.04.2017 i.e within a period around 2 months after the survey when admission was made. The ld. CIT(A) although rejected the claim of the assessee of filing retraction in absence of any evidence brought on record of approaching to the higher authorities. However, he appreciated the contents of the impounded documents and t....