M/s. Shrinath Gum & Chemicals, JODHPUR V. ITO, JODHPUR

ITA 527/JODH/2009

• Counselvise Citation: 52723314 RSA 2009
• Duration Of Justice: 2 year(s) 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-11-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 11-09-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Assessee Lawyers: RAJENDER JAIN
• Keywords: Unexplained investment; Depreciation; Corroborative evidences
• Section: 133A; 131; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR (BEFORE SHRI R.K. GUPTA AND SHRI .N.L. KALR A ) ITA NO.527/JU/2009 ASSESSMENT YEAR : 2006-07 PAN: AANFS 0577 P M/S. SHRINATH GUM & CHEMICALS VS. THE ITO E-278, MIA BASNI-II WARD- 1(4) JODHPUR JODHPUR (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAJENDER JAIN DEPARTMENT BY: SHRI G.R. KOKANI DATE OF HEARING: 29-11-2011 DATE OF PRONOUNCEMENT: 09-12-2011 ORDER PER N.L. KALRA, AM:- THE ASSESSEE HAS FILED AN APPEAL AGAINST THE ORDER OF THE LD.CIT(A), JODHPUR DATED 15-07-2009 FOR THE ASSESSMENT YEAR 2006-07. 2.1 THE FIRST GRIEVANCE OF THE ASSESSEE IS THAT TH E LD.CIT(A) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF DEPRECIATION OF RS. 17,26,411/- OUT OF TOTAL DEPRECIATION OF RS. 62,27,545/-. 2.2 THE AO IN HIS ORDER AT PAGE 5 HAS MENTIONED TH AT THE ASSESSEE HAS CLAIMED DEPRECIATION @ 80% AMOUNTING TO RS. 61,87,545/- ON TOTAL INVESTMENT OF RS. 1,55,68,862/- AND SUCH INVESTMENT IS ON 09 ITEMS ME NTIONED AT PAGES 5 AND 6 OF THE ASSESSMENT ORDER. IN RESPECT OF THESE 09 ITEMS, TH E AO HAS NOT ALLOWED DEPRECIATION @ 80% ON THE FOLLOWING ITEMS. 2 ITEMS AMOUNT OF INVESTMENT / BILL PRESCRIBED RATE ALLOWABLE DEPRECIATION CLOSING WDV POWER EVACUATION CHARGE @ RS. 17 LAC PER MW (FOR 1 WTG OF 0.35 MW 350 KW 595000 15% (BEING P&M) 44625 550375 CIVIL WORK CONSISTING OF CONSTRUCTION OF WINDMILL FOUNDATION, TRANSFORMER PLINTH, CONTROL ROOM, ELECTRICAL YARD FENCING, ROAD, CRANE PLATFORM 1705540 10% (BEING CIVIL CONSTRUCTION 85277 1620263 SUPPLY AND INSTALLATION OF HT ELECTRICAL YARD AND TRANSMISSION LINE FROM WINDMILL TO GRID INTERCONNECTION POINT 1757222 15% (BEING P&M) 131792 1625430 TOWARDS CONTRIBUTION FOR POWER EVACUATION INFRASTRUCTURE FACILITIES 1000000 15% (BEING P&M) 75000 925000 DEBIT NOTE IN RESPECT OF SUB- LEASE / STAMP DUTY REGISTRATION CHARGES, CHARGES LEGAL AND ADMINISTRATIVE CHARGE 100000 0% (BEING LAND) 0 100000 2.3 THE LD.CIT(A) HAS CONFIRMED THE FINDINGS OF THE AO FOLLOWING THE DECISION OF ITAT PUNE BENCH IN THE CASE OF POONAWALA FINVEST & AGRO (P) LTD. 118 TTJ 68. 2.4 WE HAVE HEARD BOTH THE PARTIES. THE ISSUE OF DE PRECIATION OF WINDMILL HAS BEEN CONSIDERED BY JODHPUR BENCH IN THE CASE OF DCIT VS DELHI RAJASTHAN TRANSPORT CO. LTD. (ITA NO. 195/JU/2010 DATED 11-02-2011). T WILL BE U SEFUL TO REPRODUCE THE FOLLOWING PARAGRAPH FROM THAT ORDER. 12. THE ASSESSEE HAS CLAIMED DEPRECIATION @ 80% O N FOUNDATION AS WELL AS OTHER CIVIL WORKS. BOTH THE A O AND THE LD.CIT(A) DENIED THE CLAIM OF THE ASSESSEE ON THE GROUND THA T THEY ARE NOT INTEGRAL 3 PART OF THE WIND MILL. THE DEPRECIATION IN RESPECT OF FOUNDATION IS CONCERNED THE FOUNDATION FOR THE PURPOSE OF THE WIN D MILL IS DIFFERENT FROM THE OTHER CIVIL WORKS. WIND MILL IS A HEAVY MA CHINE AND A SPECIALLY DESIGNED FOUNDATION IS REQUIRED, THEREFORE, THE AO HAS NOT JUSTIFIED IN COMPARING THE FOUNDATION OF THE WIND MILL FROM OTHE R CIVIL WORKS IN THE CASE OF CIT VS HERDILLIA CHEMICALS LTD. 216 ITR 742 (BOM) WHEREIN THE HON'BLE HIGH COURT OF MUMBAI HAS HELD THE EXPENDITU RE INCURRED ON FOUNDATION FIXING THE PLANT AND MACHINERY WOULD FOR M PART OF THE COST OF PLANT AND MACHINERY AND THE ASSESSEE WOULD BE ENTI TLED TO DEPRECIATION AT THE SAME RATE AS APPLICABLE TO THAT PLANT AND MACHI NERY. IN THE CASE OF ACIT VS MADRAS CEMENTS LTD. , 110 IT 281 (MAD.), HA S HELD THAT THE FOUNDATION WORK DONE FOR FIXING MACHINERY IS TO BE TREATED AS PART OF THE PLANT AND MACHINERY. IN THE CASE OF CIT VS R.G. ISP AT LTD. 123 CTR (RAJ.) WHERE THE JURISDICTIONAL HIGH COURT CATEGORICALLY HELD THAT THE MASSIVE REINFORCED CONCRETE STRUCTURE, ESPECIALLY DESIGNED TO TAKE UP LOADS, CONSTITUTED PLANT WITHIN THE MEANING OF SECTION 4 3(3) OF THE INCOME TAX ACT, 1961 13. WE THEREFORE, TAKING INTO CONSIDERATION THE FAC TS AND CIRCUMSTANCES OF THE CASE AND ALSO FOLLOWING THE A BOVE CASE LAWS, WE CAME TO CONCLUSION THAT THE FOUNDATION OF THE WINDM ILL IS AMOUNTING TO PART AND PARCEL OF THE WIND MILL AND IT IS PLANT AN D MACHINERY AND ACCORDINGLY THE ASSESSEE IS ELIGIBLE FOR HIGHER RAT E OF DEPRECIATION WHICH WAS CLAIMED. AS FAR AS CIVIL WORK IS CONCERNED, WE FIND THAT IT IS NOT AN INTEGRAL PART OF THE WINDMILL AND HE IS NOT ELIGIBL E FOR HIGHER DEPRECIATION. 14. IN VIEW OF THE ABOVE OBSERVATIONS, WE SET ASIDE THE ORDER PASSED BY THE LD.CIT(A) AND REMIT THE ISSUE MATTER BACK TO THE FILE OF THE AO AND DIRECT THE AO TO ALLOW HIGHER DEPRECIATION C LAIM OF THE ASSESSEE IN RESPECT OF FOUNDATION OF THE WINDMILL. IN SO FAR A S OTHER ALLIED WORKS ARE CONCERNED NORMAL RATE HAS TO BE APPLIED AND THIS GR OUND OF APPEAL RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE S. 4 2.5 THE JAIPUR BENCH VIDE ITS ORDER IN ITA NO. 745/ JP/07 AND 731/JP/07 DATED 18-07- 2008 IN THE CASE OF M/S. VIJAY INDUSTRIES VS ITO HE LD THAT DEPRECIATION IS TO BE ALLOWED O THE ROOM ALSO. IT WILL BE USEFUL TO REPRODUCE PARA 6 OF ITAT JAIPUR ORDER AS UNDER:- 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE FACTS OF THE CASE. THE PROVISIONS OF ALLOWING DEPRECIATION ON TH E WIND MILL IS GOVERNED BY APPENDIX I PARA (XIII) (1) WHICH READS AS UNDER: - (XIII) RENEWABLE ENERGY DEVICES BEING (A) TO (K) .. (L) WIND MILLS AND ANY SPECIALLY DESIGNED DEVICES WHICH RUN ON WIND MILLS 80% IT IS EVIDENT FROM THE AFOREMENTIONED PROVISIONS TH AT THE DEPRECIATION @ 80% HAS TO BE CHARGED ON THE COMPLET E WIND MILL. THEREFORE, THE LD. CIT(A) IS NOT JUSTIFIED IN SEGRE GATING THE COST OF THE CONSTRUCTION OF THE ROOM FROM THE SAID WIND MILL. T HE SAID CONSTRUCTION OF THE ROOM , AS ARGUED HAS BEEN SPECIALLY DESIGNED FO R THE PURPOSE OF THE WIND MILL AND THEREFORE, THE LD. CIT(A) IS DIRECTED TO ALLOW THE DEPRECIATION AS PER THE RULES APPLICABLE ON THE WIN D MILLS. THUS GROUND NO. 6 OF THE ASSESSEE IS ALLOWED. SO FAR AS THE CIVIL WORK CONSISTING OF CONSTRUCTION OF WINDMILL, FOUNDATION, TRANSFORMER, PLINTH, CONTROL ROOM ETC. WILL BE ELIGIBLE FOR DEPR ECIATION @ 80% IN VIEW OF THE DECISION OF JODHPUR AND JAIPUR BENCHES. THE SUPPLY AND INSTA LLATION OF HT ELECTRICAL YARDS AND TRANSMISSION LINE FROM WINDMILL TO GRID INTERCONNEC TION POINT IS TO BE CONSIDERED AS PART OF THE WINDMILL. THE ACCESSORIES LIKE UPS, PRINTER ETC. HAVE BEEN HELD TO BE CONSIDERED AS PART OF THE COMPUTER FOR DEPRECIATION. FOLLOWING T HAT ANALOGY, WE HOLD THAT DEPRECIATION @ 80% WILL BE ALLOWABLE ON SUPPLY AND INSTALLATION OF ELECTRICAL HT YARDS. 2.6 THE ISSUE OF DEPRECIATION ON POWER EVACUATION C HARGES AND EXPENSES TOWARDS CONTRIBUTION FOR POWER EVACUATION INFRASTRUCTURE F ACILITIES ARE TO BE CONSIDERED AFRESH 5 AFTER PROVIDING OPPORTUNITY TO THE ASSESSEE AS TO W HETHER THESE CAN BE CONSIDERED AS PART OF THE ACCESSORIES OF WINDMILL WITHOUT WHICH WINDMI LL CANNOT FUNCTION. 2.7 A SUM OF RS. 10,000/- HAS BEEN DEBITED IN RESPE CT OF SUBS-LEASE STAMP DUTY REGISTRATION CHARGES. THE AO HAS NOT ALLOWED DEPREC IATION RELATING TO LAND. BEFORE US, NO DETAILS HAVE BEEN FILED. HOWEVER, IF THE EXPENDITUR E RELATES TO THE LAND THEN DEPRECIATION IS NOT ADMISSIBLE. THE ISSUE OF DEPRECIATION ON THI S ISSUE IS RESTORED BACK ON THE FILE OF THE AO. 3.1 THE SECOND GROUND OF ASSESSEE IS THAT THE LD. C IT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 2,91,581/- ON ACCOUNT OF ALLEGED EX CESS STOCK FOUND AT THE TIME OF SURVEY BY RELYING ON THE ALLEGED SURRENDER MADE ON THE BAS IS OF WRONG FACTS AT HE TIME OF SURVEY WHEN THE SAME STOOD EXPLAINED BY THE ASSESSEE DURIN G THE ASSESSMENT PROCEEDINGS. 3.2 A SURVEY U/S 133A OF THE ACT WAS CONDUCTED ON 2 6-12-2005 AND THE STATEMENT OF THE PARTNER SHRI CHATURBHUJ RATHI WAS RECORDED. DUR ING THE COURSE OF SURVEY, EXCESS STOCK WAS FOUND TO THE EXTENT OF RS. 28,06,404/-. H OWEVER, IN THE RETURN OF INCOME, THE ASSESSEE SHOWED VALUE OF SUCH STOCK AT RS. 25,14,82 3/-. IT WAS EXPLAINED THAT THE STOCK OF GWAR GUM SPLIT WAS PURCHASED ON THE DATE OF SURVEY FROM M/S. VIMAL GWAR GUM MILLS AND THEREFORE, THE SAME HAS NOT BEEN TAKEN INTO ACC OUNT WHILE COMPUTING EXCESS STOCK. THE AO NOTICED FROM THE STATEMENT OF SHRI CHATURBH UJ RATHI WHEREIN HE STATED THAT THERE WAS NO STOCK AVAILABLE AND THE BILL IN RESPECT OF WHICH IS STILL TO BE RECEIVED AND THERE IS NO STOCK WHICH HAS BEEN SOLD BUT GOODS NOT DISPATCH ED. THE AO WAS OF THE OPINION THAT THE BILL NOW BEING PRODUCED DURING THE COURSE OF AS SESSMENT PROCEEDINGS IS AN AFTER THOUGHT. ACCORDINGLY THE AO MADE THE ADDITION OF RS . 2,91,581/-. 3.3 THE LD.CIT(A) HAS CONFIRMED HE ACTION OF THE AO AFTER OBSERVING AS UNDER:- 6 FROM THE ABOVE JUDICIAL PRONOUNCEMENTS, THE PRINC IPLE THAT EMERGES IS THAT WHERE IN ANY PROCEEDING, A CER TAIN ISSUE HAS BEEN DETERMINED ON THE BASIS OF ANY LAWFUL CONSENT, EITHER EXPRESSLY OR IMPLIEDLY BY THE PARTIES OR EVEN BY CO NDUCT OF THE PARTIES, A BAR ON APPEAL AGAINST SUCH DETERMINATION BECOMES OPERATIVE UNLESS THE FACTUM OF CONSENT IS DISPUTED. THE OBVIOUS REASON FOR OPERATION OF SUCH ESTOPPEL IS THAT THE A UTHORITY CONCERNED OR THE OTHER PARTY IS INDUCED BY SUCH CON SENT TO REFRAIN FROM MAKING FURTHER INQUIRY TO ASCERTAIN THE RELEVA NT FACTS. IN THE INSTANT CASE ALSO, BY EXPRESSING A CONSENT TO SURRE NDER THE EXCESS STOCK FOR TAXATION, SH CHATURBHUJ RATHI, THE PARTNE R OF THE FIRM INDUCED THE AUTHORITY CONCERNED TO STOP FROM PROCEE DING FURTHER TO VERIFY THE FACTS SUBSEQUENTLY DISCLOSED BY THE ASSE SSEE. HAD THE A DISCLOSED THE FACT RELATING TO PURCHASE OF CERTAIN STOCK ON THE DATE OF SURVEY, WHICH WAS NOT RECORDED IN THE BOOKS OF A CCOUNT OF THE ASSESSEE, THE OFFICERS CONDUCTING SURVEY COULD HAVE MADE ENQUIRING TO ASCERTAIN THE VERACITY OF SUCH CONTENT ION, INCLUDING MAKING ENQUIRY WITH THE PARTY FROM WHOM THE ASSESSE E CLAIMED TO HAVE MADE THE PURCHASE. ANY ENQUIRY IN THIS REPORT AFTER LAPSE OF SUBSTANTIAL TIME GAP MAY NOT REVEAL THE REAL STATE OF AFFAIRS. IT IS ALSO SEEN THE ASSESSEE DID NOT FILE ANY AFFIDAVIT O R PETITION REGARDING HIS CLAIM, IMMEDIATELY AFTER SURVEY. UNDE R THESE CIRCUMSTANCES, THE ASSESSEE CANNOT BE ALLOWED TO RA ISE NEW PLEA BASED ON FACTS NOT DISCLOSED DURING THE COURSE OF T HE PHYSICAL VERIFICATION OF THE STOCK. THE PLEA OF THE APPELLAN T ASSESSEE THAT CERTAIN STOCK PURCHASED ON THE DATE OF THE SURVEY W AS NOT RECORDED IN THE BOOKS OF ACCOUNT AND THAT THERE COULD NO BE EXCESS STOCK OF CHURI, KORMA, BHUSHI, CASIO TORA, FIREWOOD ETC. IS REQUIRED TO BE REJECTED AS UNTRUE. 7 3.4 WE HAVE HEARD BOTH THE PARTIES. THE ISSUE OF MA KING ADDITION ON THE BASIS OF STATEMENT RECORDED DURING THE COURSE OF SURVEY HAS BEEN CONSIDERED BY THE JAIPUR BENCH N THE CASE OF ITO VS SMT. PRATBIHA GOYAL, 136 TTJ 597 . IT WILL BE USEFUL TO REPRODUCE THE PARAGRAPHS FROM 7 TO 11 OF THE AT ORDER AS UNDER:- 7. WE HAVE GONE THROUGH THE COPY OF STATEMENT REC ORDED AT THE TIME OF SURVEY. IN STATEMENT TO QUESTION NO. 13 THE ASSESSEE HAS STATED THAT SHE IS HOUSEWIFE AND SPENDING HER TIME FOR HOUSEHOL D ACTIVITIES. THE AO AGAIN ASKED A QUESTION NO. 15AND IN REPLY THE ASSES SEE AGAIN STATED THAT SHE IS HOUSEWIFE. HENCE FROM THE STATEMENT IT IS CL EAR THAT THE ASSESSEE IS ONLY A HOUSEWIFE AND THE TRANSACTIONS ARE BEING DON E BY HER HUSBAND IN HER NAME. SHE IS NOT AWARE OF ANY UNDISCLOSED INCO ME AS SHE IS NOT AWARE OF THE TRANSACTIONS BEING DONE. NOW WE WILL CONSIDE R ASTO WHETHER THE STATEMENT RECORDED DURING THE COURSE OF SURVEY CAN BE USED AS CONCLUSIVE EVIDENCE FOR MAKING ADDITION. SEC. 133A(3)(III) ALL OWS AN IT AUTHORITY TO RECORD THE STATEMENT OF ANY PERSON WHICH MAY BE USE FUL FOR OR RELEVANT TO ANY ROCEEDINGS UNDER THE IT ACT. IT DOES NOT AUTHO RIZE THE IT AUTHORITIES TO RECORD THE STATEMENT ON OATH. SEC. 131 AND S. 13 2(4) PROVIDE THE IT AUTHORITIES TO RECORD THE STATEMENT ON OATH. THE HO NBLE KERALA HIGH COURT IN THE CASE OF PAUL MATHEWS &SONS VS. CIT (20 03) 181 CTR (KER) 207 : (2003) 263 ITR 101 (KER) HELD THAT THESTATEME NT ELICITED DURING THE SURVEY OPERATION HAS NO EVIDENTIARY VALUE AND ON TH E BASIS OF SUCH STATEMENT THE MATTER CANNOT BE DECIDED UNLESS THER E IS SOMECONCLUSIVE EVIDENCE. 8. THE HONBLE MADRAS HIGH COURT IN THE CASE OF C IT VS. S. KHADER KHAN SON (2008) 214 CTR (MAD) 589 : (2008) 3 00 ITR 157 (MAD), HELD THAT AN UNDISCLOSED INCOME CANNOT BE AS SESSABLE IN THE HANDS OF THE ASSESSEE SOLELY ON THE BASIS OF AN STATEMENT GIVEN BY ONE OF THE PARTNERS OF THE ASSESSEE FIRM AT THE TIME OF SURVEY . THE HONBLE MADRAS 8 HIGH COURT HELD THAT THE MATERIAL COLLECTED AND TH E STATEMENT RECORDED DURING THE SURVEY UNDER S. 133A ARE NOT CONCLUSIVE EVIDENCE. 9. THE TRIBUNAL AGRA BENCH IN THE CASE OF ASSTT. CI T VS. RAVI AGRICULTURAL INDUSTRIES(2009) 121 TTJ (AGRA)(TM) 90 3 : (2009) 20 DTR (AGRA)(TM)(TRIB) 379 : (2009) 117ITD 338 (AGRA)(TM) HAD AN OCCASION TO CONSIDER THE ALLOWABILITY OF RELIEF BY LEARNED C IT(A) ON THE GROUND THAT THE ADDITION COULD NOT HAVE BEEN MADE IN THE HANDS OF THE FIRM ON ACCOUNT OF STATEMENT OF ONE OF THE PARTNERS RECORDED DURING THE COURSE OF SURVEY IN CASE THERE IS NO SUPPORTING EVIDENCE. IT WILL BE US EFUL TO REPRODUCE THE RELEVANT PARA FROM THE DECISION OF THIRD MEMBER AS UNDER : - '11. I HAVE CAREFULLY CONSIDERED THE RIVAL CONTENT IONS AND GONE THROUGH THE IMPUGNED ORDERS. THE HONBLE SUPRE ME COURT IN THE CASE OF PULLANGODE RUBBER PRODUCE CO. LTD. (SUP RA) HAS CLEARLY HELD THAT AN ADMISSION BY THE ASSESSEE IS NOT CONCL USIVE EVIDENCE AND IT IS ALWAYS OPEN TO THE ASSESSEE WHO MADE THE SUBMISSION TO SHOW THAT IT IS INCORRECT. THE ASSESSEE, IN THIS C ASE, HAS EXPLAINED THAT NOTING ON THE PIECE OF PAPER HAS NOTHING TO DO WITH THE UNEXPLAINED INVESTMENT MADE BY THE ASSESSEE. IT HAS ALSO BEEN HELD IN THE CASE OF CIT VS. MRS. DORIS S.LUIZ (1974) 96 ITR 646 (KER) THAT EVEN WHEN THERE IS ADMISSION, IT IS INCUMBENT UPON THE DEPARTMENT TO ESTABLISH BY RELEVANT MATERIAL THAT THE AMOUNT IN QUESTION WAS INCOME IN THE HANDS OF THE ASSESSEE. H ERE, THE DEPARTMENT IS RELYING UPON THE SURRENDER OF THE AMO UNT IN THE COURSE OF SURVEY AND THE PIECE OF PAPERS FOUND IN T HE COURSE OF SURVEY AS BASIS FOR MAKING THE ADDITION. THE ADMISS ION MADE BY ONE OF THE PARTNERS HAS ALREADY BEEN RETRACTED WITH IN FIVE DAYS FROM THE DATE OF SEARCH. THE CIT(A) IN FACT HAS REF ERRED THOSE LETTERS TO THE AO IN THE REMAND PROCEEDINGS. WHEN T HE ASSESSEE HAS RETRACTED THE STATEMENT, AN ADDITION SHOULD BE SUPP ORTED BY ENOUGH MATERIAL IN THE POSSESSION OF THE DEPARTMENT. NOW L OOKING AT THE PAPER, IT HAS SOME NUMERICAL FIGURES BUT DOES NOT, IN ANY WAY, SHOW THAT IT HAS SOME RELATIONSHIP WITH SOME BUSINE SS TRANSACTIONS OF THE ASSESSEE. THE PAPER THAT WAS TAKEN AS A MATE RIAL FOR MAKING THE ADDITION DOES NOT CONCLUSIVELY ESTABLISH THAT I T PERTAINS TO THE BUSINESS TRANSACTION OF THE FIRM. NOW, THE DEPARTME NT IS MAKING THE ADDITION AS A PART OF UNEXPLAINED INVESTMENT. W HAT SORT OF INVESTMENT THE DEPARTMENT HAS FOUND IS ALSO NOT CLE AR FROM THE ASSESSMENT ORDER. THE ADDITION, IN SUM AND SUBSTANC E, MADE BY THE DEPARTMENT IS CLEARLY NOT SUPPORTED BY ANY MATERIAL , WHICH CAN 9 POINT OUT TO UNEXPLAINED INVESTMENT OUTSIDE THE BOO KS OF THE ASSESSEE. ACCORDING TO ME, THE ADDITION HAS BEEN CO RRECTLY DELETED BY THE CIT(A) IN THE LIGHT OF THE PRINCIPLE LAID DO WN BY THE SUPREME COURT IN THE CASE OF PULLANGODE RUBBER PROD UCE CO. LTD. (SUPRA). THE LEARNED JM HAS CORRECTLY AFFIRMED THE FINDING OF THE CIT(A) AND IN MY VIEW, THERE WAS NO NEED FOR THE MA TTER AGAIN BEING SET ASIDE TO THE CIT(A) FOR RECONCILIATION O F ENTRIES CONTAINED IN THE DOCUMENT INVENTORISED AS 64/107 OF ANNEX. A-9 OF THE SURVEY MATERIAL. I AGREE WITH THE FINDINGS O F THE LEARNED JM ON THE SECOND ISSUE.' 10. THE HONBLE DELHI BENCH IN ITA NO. 1069/DEL/200 7 VIDE ORDER DT. 3RD OCT., 2008 IN THE CASE OF TDT MARKETI NG (P) LTD. VS. ASSTT. CIT HELD THAT S. 133A DOES NOT COMPEL AN ASSESSEE T O GIVE STATEMENT ON OATH. IF THE ASSESSEE DENIES TO HAVE MADE INVESTMEN T AND THERE IS NO OTHER MATERIAL EXCEPT THE STATEMENT, THEN NO ADDITION CAN BE MADE. 11. THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF UNIVERSAL IMPEX VS. ITO 2009-TIOL-514-ITAT-MUMBAI HELD THAT A DDITION MADE ON THE BASIS OF STATEMENT OF ONE OF THE PARTNERS AND E NTRIES RECORDED IN THE DIARY CANNOT BE UPHELD SOLELY ON THE STRENGTH OF TH E STATEMENT WITHOUT ANY SUPPORTING MATERIAL. THE ONUS WAS ON THE AO TO COLL ECT SUPPORTING MATERIAL AND SINCE THE AO HAS NOT DISCHARGED HIS O NUS, THEREFORE, THE ADDITION WAS DELETED. HENCE WE HOLD THAT THE LEARN ED CIT(A) WAS JUSTIFIED IN DELETING THE ADDITION BECAUSE THE ADDITION IS MA DE SOLELY ON THE BASIS OF THE STATEMENT MADE DURING THE COURSE OF SURVEY. MO REOVER, THE RETURN WAS FILED BEFORE THE SURVEY WAS CONDUCTED AND THE REVEN UE HAS NOT OBTAINED FRESH RETURN AND, THEREFORE, IT CANNOT BE SAID THAT THE INVESTMENT SHOWN IN THE RETURN WAS WRONG. IN CASE THE REVENUE WAS OF TH E VIEW THAT THE ASSESSEE HAS PAID ON-MONEY THEN THE REVENUE COULD H AVE TAKEN ACTION UNDER S. 148 OF THE IT ACT. 10 3.5 THE ITAT HYDERABAD BENCH IN THE CASE OF B. RAMA KRISHNAIAH VS ITO , 134 TTJ 600 HAS ALSO HELD THAT ADDITION ON THE BASIS OF ADM ISSION DURING SURVEY WITHOUT ANY SUPPORTING MATERIAL IS NOT SUSTAINABLE. 3.6 IN THE INSTANT CASE, THE ASSESSEE HAS FILED THE COPY OF THE BILL AND THE BILL SHOWED THAT THE GOODS HAVE BEEN TRANSPORTED THROUGH TRUCK. THE AO HAS NOT BEEN ABLE TO REBUT THE CONTENTION OF THE ASSESSEE THAT THE GOODS WERE RECEIVED BUT THE BILL WAS OBTAINED SUBSEQUENTLY. WITHOUT COLLECTING ANY ADVERSE MATERI AL, THE AO COULD NOT HAVE MADE THE ADDITION SIMPLY ON THE BASIS OF THE ADMISSION. THE ASSESSEE HAS PLACED THE SUPPORTING THE MATERIAL. WE THEREFORE, HOLD THAT THE AO WAS NOT JU STIFIED IN MAKING THE ADDITION OF RS. 291,581/-. 4.1 DURING THE COURSE OF HEARING, THE OTHER GROUNDS WERE NOT PRESSED BY THE LD. AR OF THE ASSESSEE. HENCE, THE SAME ARE DISMISSED BEING N OT PRESSED 5.0 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 09-12-2011 SD/- SD/- (R.K. GUPTA) (N.L. KALRA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR DATED: 09/12/2011 MISHRA COPY TO: 1. M/S. SHRINATH GUM & CHEMICALS, JODHPUR 2. THE ITO , WARD- 1 (4) JODHPUR 3.THE LD. CIT (A) BY ORDER 4.THE CIT 5.THE D/R 6.THE GUARD FILE (ITA NO. 527/JU/09) A.R.. ITAT: JAIPUR 11