SHRI ARIHANT CHOUDHARY, KISHANGARH V. DEPUTY COMMISSIONER OF INCOME TAX, AJMER

ITA 864/JPR/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2030 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 22-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR A D HOSMANI JCIT DHK
• Assessee Lawyers: S L PODDAR; ISHA KANUNGO
• Keywords: Business income; Depreciation; Bonafide belief; Cost of acquisition; Valuation report; Retraction; Revised return; Unabsorbed depreciation
• Section: 143(3); 133A; 132

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M VK;DJ VIHY LA-@ ITA NO. 867/JP/2017 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2014-15 M/S ASMI STONEX, CHOUDHARY SADAN, HAMIR COLONY, MADANGANJ, KISHANGARH. CUKE VS. INCOME TAX OFFICER, WARD-1, KISHANGARH. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AARFA 6255 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 864/JP/2017 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2014-15 ARIHANT CHOUDHARY, CHOUDHARY SADAN, HAMIR COLONY, MADANGANJ, KISHANGARH. CUKE VS. D.C.I.T., CIRCLE-1, AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AGVPC 3155 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ ITA NO. 865/JP/2017 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2014-15 TILAK CHOUDHARY, CHOUDHARY SADAN, HAMIR COLONY, MADANGANJ, KISHANGARH. CUKE VS. INCOME TAX OFFICER, WARD-1, KISHANGARH. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ADPPC 6470 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR & MS. ISHA KANUNGO (ADV) JKTLO DH VKSJ LS@ REVENUE BY : SMT. DR. A.D. HOSMANI (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 13/02/2018 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 05/03/2018 ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 2 VKNS'K@ ORDER PER: BENCH THESE ARE THE APPEALS FILED BY THE DIFFERENT ASSESS EES EMANATE FROM THE SEPARATE ORDERS OF THE LD. CIT(A), AJMER AL L DATED 09/10/2017 FOR THE A.Y. 2014-15. IN ALL THESE APPEALS, A COMMO N ISSUE IS INVOLVED, WHICH IS AGAINST CONFIRMING THE ADDITION ON ACCOUNT OF EXCESS STOCK FOUND AT THE TIME OF SURVEY. 2. SINCE, IN ALL THESE APPEALS, THERE IS A COMMON I SSUE TO DISCUSS, THEREFORE, ALL THE APPEALS WERE HEARD TOGETHER AND F OR THE SAKE OF CONVENIENCE AND BREVITY, A COMMON ORDER IS BEING PA SSED. 3. ITA NO. 867/JP/2017 THE ASSESSEE IS A PARTNERSHIP FIRM AND IS ENGAGED I N THE BUSINESS OF MANUFACTURING AND TRADING OF MARBLE/GRANITE SLAB S AND TILES. A SURVEY U/S 133A OF THE INCOME TAX ACT, 1961 (IN SHORT THE A CT) WAS CARRIED OUT ON 12/09/2013 AND 13/09/2013 ALONGWITH OTHER GROUP C ONCERNS OF THE PARTNERS NAMELY SHRI ARIHANT CHOUDHARY, SHRI TILAK C HOUDHARY, KUSUM CHOUDHARY AND SMT. SHWETA CHOUDHARY. THE RETURN OF IN COME WAS FILED DECLARING NIL INCOME IN THE CASE OF M/S ASMI STONEX AFTER ADJUSTING UNABSORBED DEPRECIATION ON 30/09/2014, RETURN OF IN COME DECLARING TOTAL INCOME OF RS. 5,90,940/- WAS FILED IN THE CASE OF AR IHANT CHOUDHARY AND ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 3 RETURN OF INCOME DECLARING TOTAL INCOME OF RS. 5,25 ,530/- WAS FILED IN THE CASE OF TILAK CHOUDHARY. THE ASSESSING OFFICER MADE A DDITION ON ACCOUNT OF EXCESS STOCK AND SHORT CASH NOTED DURING THE SUR VEY PROCEEDINGS. 4. A COMMON ISSUE INVOLVED IN ALL THESE APPEALS, IS SUSTAINING THE ADDITION OF RS. 1,99,37,946/- IN THE CASE OF M/S AS MI STONEX, RS. 37,73,000/- IN THE CASE OF ARIHANT CHOUDHARY AND R S. 31,43,000/- IN THE CASE OF TILAK CHOUDHARY ON ACCOUNT OF EXCESS STOCK. 5. THE ASSESSEE CLAIMED THAT THE LD. CIT(A) HAS NOT CONSIDERED THE SUBMISSIONS OF THE ASSESSEE AND CONFIRMED THE ADDIT ION WITHOUT ANY BASIS. THE BRIEF FACTS IN THIS REGARD ARE THAT DURIN G THE SURVEY OPERATION, THE SURVEY TEAM WORKED OUT EXCESS STOCK OF RS. 4,73, 04,940/- OUT OF WHICH ON THE BASIS OF STATEMENT OF SHRI PRADEEP CHOU DHARY, STOCK TO THE EXTENT OF RS. 3,20,73,946/- WAS HELD TO BE BELONGING TO THE ASSESSEE FIRM. THE LD. AR OF THE ASSESSEE CLAIMED THAT THIS WA S WITHOUT ANY GROUND OR BASIS. THE STOCK WORKED OUT BY SURVEY TEAM AS PER BOOKS VALUED AT RS. 1,21,36,000/- WAS ALSO WITHOUT ANY BASI S, THEREFORE, ADDITION OF RS. 1,99,37,946/- FOR EXCESS STOCK IS WI THOUT ANY SUBSTANCE AND BASIS. IT WAS COMPLETELY ARBITRARINESS OF THE SU RVEY TEAM TO VALUE THE STOCK AS WELL AS BIFURCATE THE SAME AMOUNT TO VARIOU S GROUP CONCERNS ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 4 WITHOUT ANY BASIS. THE LOWER AUTHORITIES COMPLETELY F AILED TO CONSIDER THE SUBMISSIONS MADE BEFORE THEM. SIMILAR IDENTICAL FACTS HAVE ALSO BEEN TAKEN IN TWO OTHER APPEALS. 6. THE LD. AR OF THE ASSESSEE HAS SUBMITTED ON THIS ISSUE AS UNDER: THE MAIN ISSUES RAISED BEFORE THE LEARNED CIT(A) IN THE SUBMISSIONS MADE BY THE ASSESSEE ARE AS UNDER WHICH HAVE REMAIN ED UNCONTROVERTED BOTH IN THE REMAND REPORT SUBMITTED BY THE LEARNED ASSESSING OFFICER AS WELL AS IN THE ORDER OF THE LE ARNED CIT(A): - (I) THE LEARNED ASSESSING OFFICER AS WELL AS THE LEARNE D CIT(A) HAVE ACTED EXCLUSIVELY ON THE BASIS OF STATEMENT OF SHRI PRADEEP KUMAR CHOUDHARY WHICH WAS RECORDED UNDER DURESS AND FORCE DURING THE COURSE OF SURVEY U/S 133A. BOTH THE LEAR NED ASSESSING OFFICER AS WELL AS THE LEARNED CIT(A) HAV E IGNORED THE DOCUMENTARY EVIDENCES IN THE SHAPE OF BOOKS OF ACCO UNTS, PURCHASE VOUCHERS AND VOUCHERS OF SALE. IT IS SETTL ED POSITION OF LAW THAT RELIANCE HAS TO BE PLACED MORE ON DOCUMENT ARY EVIDENCES THAN ON ORAL EVIDENCE. PARAMJEET SINGH VS . INCOME TAX OFFICER (2010) 323 ITR 588 (P&H) (II) IN THIS CASE DURING THE COURSE OF SURVEY THE MAIN S TOCK OF THE GROUP WAS OF MARBLE LOFFERS OF RS. 4,21,68,000/-. T HE VALUATION REPORT IS SCANNED BELOW: - ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 5 IT WAS SUBMITTED BEFORE THE LEARNED CIT(A) IN VIEW OF THE AFORESAID VALUATION THAT VALUATION OF MARBLES BLOCK (LAFERS) HAS BEEN DONE IN A VERY CAUSAL MANNER. THE SAME WAS REQ UIRED TO BE DONE WITH REFERENCE TO WEIGHT WHEREAS IT HAS BEEN D ONE ON PIECE BASIS. NO WEIGHT WAS TAKEN OF ANY MARBLE BLOCK AND HENCE THE VALUATION HAS RESULTED IN NULLITY. THE ASSESSEE HAS FURNISHED COPY OF VOUCHERS OF PURCHASE WHICH ARE AVAILABLE ON PAPE R BOOK PAGE NO. 13 TO 124 WHICH DISCLOSED THAT THE BLOCKS WERE PURCHASED WEIGHT WISE. THIS SUBMISSION OF THE ASSESSEE HAS RE MAINED ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 6 UNTROVERTED WHICH POINTS OUT TO A SERIOUS BLUNDER I N THE VALUATION OF MARBLE BLOCKS. IT WAS ALSO POINTED OUT THAT THE STOCK OF MARBLE BL OCKS OF RS. 4,21,68,000/- IS 90% OF THE TOTAL STOCK FOUND DURIN G THE COURSE OF SURVEY OF RS. 4,73,04,946/-. THE MAJOR DISCREPAN CY IN THE VALUATION OF MARBLE BLOCKS HAS RENDERED THE ENTIRE VALUATION OF STOCK AS A FARCE. THEREFORE NO ADDITION COULD HAVE BEEN MADE ON THE BASIS OF SUCH VALUATION. THIS SUBMISSION OF THE ASSESSEE HAS REMAINED UNCONTROVERTED BY THE LEARNED CIT(A). THEY HAVE SIMPLY REITERATED AGAIN AND AGAIN STATEMENT OF SHRI PRADEEP CHOUDHARY ON THE BASIS OF WHICH VALUATION WAS DONE. THE SUBMISSION OF THE ASSESSEE IS THAT IN THE FACE OF D OCUMENTARY EVIDENCE ORAL STATEMENT CANNOT PREVAIL. (III) IT WAS SUBMITTED BEFORE THE LEARNED CIT(A) THAT AS PER BOOKS OF ACCOUNTS OF THE ASSESSEE THE STOCK IN HAND AS ON TH E DATE OF SURVEY 12.09.2013 WAS OF RS. 1,88,820 OF MARBLE BLO CKS AND OF RS. 18,79,542/- OF MARBLE SLABS AND TILES. IN SUPPO RT OF THIS BOOK POSITION OF STOCK NECESSARY PAPERS ARE AVAILABLE ON PAPER BOOK PAGE NUMBER ON PAGE NO. 13 TO 124. THIS FACT HAS RE MAIN UNCONTROVERTED. (IV) THE STOCK OF RS. 3,20,73,946/- BELONGING TO THE ASS ESSEE WAS TAKEN SIMPLY AND SIMPLY ON THE BASIS OF STATEMENT O F SHRI PRADEEP CHOUDHARY WHICH IS SCANNED BELOW: - ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 7 ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 8 THERE IS NOTHING ON RECORD THAT AT ON WHAT BASIS ST OCK OF RS. 3,20,73,946/- WAS TAKEN INTO CONSIDERATION AS BELON GING TO THE ASSESSEE. THIS IS TOTALLY WRONG. IT WAS SUBMITTED T HAT STOCK IN THE HAND OF THE ASSESSEE WAS ONLY OF RS. 20,68,362/- OF MARBLE SLABS AND TILES. THE FACTS HAVE REMAINED UNCONTROVERTED. (V) IT IS FURTHER SUBMITTED THAT IN THE AFORESAID STATE MENT BOOK POSITION WAS TAKEN AT RS. 1,21,36,000/-. THE BASIS OF WHICH HAS NOT BEEN DISCLOSED EITHER BY THE LEARNED ASSESSING OFFICER OR BY THE LEARNED CIT(A). THE SUBMISSION HAS REMAINED UNC HALLENGED. (VI) IT IS FURTHER SUBMITTED THAT OUT OF THE TOTAL STOCK OF RS. 4,73,04,946/- STOCK TO THE EXTENT OF RS. 24,80,170/ - BELONGED TO GRANITE. WHILE MAKING ALLOCATION OF STOCK PERTAININ G TO ASSESSEE WHICH IS OF RS. 3,20,73,946/- THE STOCK OF GRANITE WAS TAKEN INTO CONSIDERATION. THE SUBMISSION OF THE ASSESSEE ISTHA T THE GRANITE BLOCKS AVERAGE COST IN THE HANDS OF THE ASSESSEE WO RKS OUT TO RS. 7295/- PER BLOCK WHEREAS THE SAME WAS WRONGLY VALUE D AT RS. 26000/- PER BLOCK IN THE VALUATION MADE BY THE SURV EY TEAM. THE BLOCKS WERE REQUIRED TO BE VALUED WITH REFERENCE TO WEIGHT BUT THIS WAS NOT DONE. THE SUBMISSION OF THE ASSESSEE H AS REMAINED UNCONTROVERTED. IT IS SUBMITTED THAT THE ASSESSEE HAS PURCHASED TOTAL 61 GRANITE BLOCKS WEIGHING 625.25 TONS FOR A COST OF RS. 4,45,000/- WHICH WORKS OUT TO RS. 700/- PER TON AND AVERAGE WEIGHT OF A BLOCK OF GRANITE WORKS OUT ALMOST TO 10 TONS AND THUS THE VALUE PER BLOCK IN THE HANDS OF THE ASSESSEE W AS OF RS. 7295/-. THIS HAS REMAIN UNCONTROVERTED. THE SURVEY TEAM WAS WRONG IN VALUING GRANITE BLOCKS @ 26000/- PER BLOCK . (VII) IT IS FURTHER SUBMITTED THAT OUT OF THE TOTAL STOCK OF RS. 4,73,04,946/- STOCK TO THE EXTENT OF RS.26,56,770/- PERTAINED TO MARBLE SLABS. THE ASSESSEE SUBMITTED THAT THE ENTIR E SLABS WERE ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 9 VALUED AT A FLAT RATE OF RS. 30/- PER SQ.FT. WHEREA S THE COST IN THE HANDS OF THE ASSESSEE WAS ONLY OF RS. 12.21/- PER S Q.FT. APPARENTLY THE MARBLE SLABS HAVE BEEN VALUED ALMOST DOUBLE OF THE COST PRICE. THE ABOVE MAJOR DISCREPANCIES IN THE VALUATION OF S TOCK WERE POINTED IN THE DETAILED SUBMISSION MADE BEFORE THE LEARNED ASSESSING OFFICER BUT THE SAME WERE IGNORED AND NOT TAKEN INTO CONSIDERATION. THE DISCREPANCIES RAISED BY THE ASSE SSEE HAVE ALSO REMAINED UNCONTROVERTED. IT IS THE SUBMISSION OF TH E ASSESSEE THAT THE ENTIRE SURVEY WAS A FARCE. THE FIGURES OF STOCK VALUATION ARE FAKE AND IT WAS JUST TO OBTAIN FORCED SURRENDER FROM THE ASSESSEE. IT IS SETTLED PRINCIPLE OF ACCOUNTANCY T HAT VALUATION OF STOCK CANNOT BE MADE ON THE BASIS OF STATEMENT OF T HE ASSESSEE. THE SAME HAS TO BE WORKED WITH REFERENCE TO PURCHAS E AND SALE VOUCHERS. BUT IN THIS CASE THE SURVEY TEAM DID NOT CARRY OUT ANY VERIFICATION WITH REFERENCE TO PURCHASE AND SALE VO UCHERS BUT TRIED ITS BEST TO FORCE SHRI PRADEEP CHOUDHARY TO MAKE SURRENDER. THUS THE THRUST OF THE SURVEY TEAM WAS N OT ON CARRYING OUT A GENUINE SURVEY BUT WAS IN RECORDING STATEMENT OF THE ASSESSEE UNDER DURESS. IT IS SUBMITTED THAT MER E STATEMENT CANNOT BE BASIS OF ANY ADDITION UNLESS THE SAME IS SUBSTANTIATED. IN THE REMAND REPORT AS WELL AS IN THE APPELLATE OR DER THE LEARNED ASSESSING OFFICER AND THE LEARNED CIT(A) HA VE TAKEN SHELTER OF THE STATEMENT OF SHRI PRADEEP CHOUDHARY FOR MAKING AND SUSTAINING THE ADDITION. IN FACT THE REVENUE HA S USED THE STATEMENT OF SHRI PRADEEP CHOUDHARY AS AN UMBRELLA TO COVER ALL THE DISCREPANCIES COMMITTED IN THE VALUATION OF STO CK. THE ENTIRE VALUATION OF STOCK BEING A FARCE DESERVED TO BE IGN ORED AND NO ADDITION COULD BE MADE ON THE BASIS OF SUCH VALUATI ON. ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 10 IT IS FURTHER SUBMITTED THAT NOT A SINGLE VOUCHER O F UNACCOUNTED PURCHASE AND SALE WAS FOUND WHICH SPEAKS VOLUMES FO R THE BONAFIDES OF THE ASSESSEE. (VIII) CASE LAW CITED BY THE LEARNED ASSESSING OFFICER IS IN FAVOUR OF THE ASSESSEE: - ASSISTANT COMMISSIONER OF INCOME TAX VS. M/S. AL QU RESH EXPORT, ITA NO.6733/MUM/2008 (ASSESSMENT YEAR: 2005-06) DAT ED 15TH FEBRUARY 2011. COPY OF DECISION IS AVAILABLE ON PAP ER BOOK PAGE NUMBER 52 TO 60) IN THE REMAND REPORT BY THE LEARNED ASSESSING OFFIC ER SUBMITTED TO THE LEARNED CIT(A) THE ABOVE CASE LAWS HAS BEEN CITED. THE LEARNED CIT(A) HAS QUOTED THIS CASE LAW ON PAGE 26 OF THE APPELLATE ORDER. ALTHOUGH THE LEARNED ASSESSING OFF ICER QUOTED THE ABOVE CASE LAWS UNDER THE BONAFIDE BELIEF THAT IT WAS IN THE FAVOUR OF REVENUE. THE LEARNED ASSESSING OFFICER WA S UNDER AN ILLUSION. THE CASE LAW IS OUT AND OUT IN THE FAVOUR OF THE ASSESSEE AND THE RATIO IS FULLY APPLICABLE TO THE FACTS OF T HE CASE. IN THIS CASE LAW THE FACTS DISCLOSE THAT DURING THE SURVEY CONDUCTED ON 02.02.2005 SURRENDER OF RS. 1,91,00,000/- WAS OBTAI NED IN STATEMENT OF THE ASSESSEE AND ADDITION WAS MADE. IT WAS AFTER ALMOST THREE YEARS ON 12.11.2007 THAT THE ASSESSEE PROTESTED AGAINST THE ADDITION. THE LEARNED CIT(A) DELETED TH E ENTIRE ADDITION OBSERVING THAT ADDITION COULD NOT BE MADE PURELY ON THE BASIS OF STATEMENT OF THE ASSESSEE WHICH WAS NOT SU PPORTED BY ANY DOCUMENTARY EVIDENCE. THE LEARNED CIT(A) OBSERV ED THAT THE STATEMENT OF THE ASSESSEE IS NOT THE END OF THE MATTER. IT WAS INCUMBENT UPON THE LEARNED ASSESSING OFFICER TO DIG OUT FRESH FACTS AND BRING ON RECORD CORROBORATING EVIDENCES. ADDITIONS CAN ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 11 BE MADE ONLY IF THE STATEMENT IS LINKED TO EVIDENCE S. THUS THE ENTIRE ADDITION OF 1.91 CRORE WAS DELETED. IT IS SUBMITTED THAT THE FACTS OF THE CASE OF THE A SSESSEES ARE SIMILAR TO THE FACTS OF THE CASE LAW. IN THE CASE O F THE ASSESSEE ALSO SURRENDER WAS OBTAINED IN THE STATEMENT WITHOU T ANY DOCUMENTARY EVIDENCES RATHER CONTRARY TO THE POSITI ON OF BOOKS OF ACCOUNTS. THE SURRENDER SO OBTAINED, VALUATION OF S TOCK AND ADDITIONS MADE IN THE ASSESSMENT ORDER DISCLOSED TO TAL DISREGARD TO DOCUMENTARY EVIDENCES AND ARBITRARY ATTITUDE OF THE LEARNED ASSESSING OFFICER. THE LEARNED CIT(A) HAS ALSO IGNO RED TO CONSIDER THE SUBMISSIONS MADE BY THE ASSESSEE. THE ASSESSEE CONSIDERS IT RELEVANT TO QUOTE THE FOLLOWING PARA F ROM THE ABOVE CASE LAW:- ASSISTANT COMMISSIONER OF INCOME TAX VS. M/S. AL QU RESH EXPORT, ITA NO.6733/MUM/2008 (ASSESSMENT YEAR: 2005-06) DAT ED 15TH FEBRUARY 2011. THUS IT IS OBVIOUS THAT THE ADDITIONAL INCOME DISCL OSED BY THE APPELLANT WAS NOT BASED ON ANY DOCUMENTARY EVIDENCE . NO MATERIAL IS FOUND OR IMPOUNDED IN THE SURVEY TO COR ROBORATE THE CONFESSION OF CONCEALED INCOME NOR INVESTIGATED AND DECLARED LATER IN POST SURVEY OR ASSESSMENT PROCEEDING WHICH FOLLOWED. A STATEMENT SO MADE CANNOT BE THE END OF THE MATTER A ND THE AO WAS EXPECTED TO DIG OUT FRESH FACTS AND CORROBORATE ITS FINDINGS. A STATEMENT RECORDED DURING THE COURSE OF SURVEY CAN BE MADE THE BASIS OF ASSESSMENT U/S.143(3) ONLY IT IF IT IS LIN KED TO EVIDENCES. THE REPLY TO Q. NO.11 IN WHICH THE SO CALLED DECLAR ATION HAS BEEN MADE IS PREMATURE AND APPEARS DUMB TO SAY THE LEAST . THE TRANSACTION OR MANNER IN WHICH SUCH ADDITIONAL INCO ME WAS EARNED AND THE DOCUMENTS ON THE BASIS OF WHICH SUCH INCOME ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 12 WAS OFFERED TO TAX WAS NEVER ESTABLISHED AT THE TIM E OF SURVEY OR THEREAFTER IN ANY PROCEEDINGS UNDER THE ACT SURVEY IS ESSENTIALLY AN EVIDENCE GATHERING EXERCIS E. A STATEMENT OF FACTS FOUND DURING THE SURVEY CAN BE RECORDED. A SURVEYED PARTY CAN MAKE VOLUNTARY CONFESSION BASED ON RELIAB LE EVIDENCES OF THE FACTS FOUND DURING THE SURVEY. IN THE PRESEN T CASE THE DECLARATION IS DEVOID OF ANY CREDIBLE / RELIABLE EV IDENCE OR MATERIAL. IT IS AN ESTABLISHED POSITION OF LAW THAT IF A DISC LOSURE IS MADE BY THE ASSESSEE THE ASSESSEE EITHER UNDER MISTAKEN BEL IEF OF FACTS AND LAW DUE TO MENTAL PRESSURE FROM THE SURVEY PART Y OR UNDER COERCION HE CAN RETRACT THE STATEMENT AND THE ADMIS SION SO MADE. IN THE PRESENT CASE WHEN THE APPELLANT HAS PR ODUCED ALL THE SUPPORTING DOCUMENTS LATER IN RESPECT OF PURCHA SES WHICH WERE ALLEGED TO BE BOGUS ON THE DATE OF SURVEY THE CASE OF MISTAKEN BELIEF OF FACTS IS ALSO MADE OUT. THERE AP PEARS NO REASON FOR ANY NORMAL ADULT MALE PERSON TO MAKE SUC H DISCLOSURE IF HIS TRANSACTIONS ARE GENUINE AS IS THE CIRCUMSTA NCES IN THE PRESENT CASE. THIS ASPECT ALSO CASTS SERIOUS DOUBTS ABOUT THE RECORDING OF STATEMENT IN AN OPEN AND FAIR MANNER W ITHOUT ANY COERCION AND PRESSURE. THE VERY FACT THE COMMITMENT TO OBTAIN TWO CHEQUES HAS ALSO BEEN OBTAINED BETRAYS A LACK O F TRUST OR CONFIDENCE OF THE SURVEYING AUTHORITY. IF A PERSON MAKES A VOLUNTARY CONFESSION BASED ON SOLID EVIDENCE AND FA CTS THEN HE WILL VOLUNTARILY FOLLOW IT UP WITH PAYMENT OF TAXES AND THERE WILL BE NO NEED FOR MAKING HIM COMMIT TO PAY TAXES BY TH E INCOME TAX AUTHORITY. BOTH IN THE POST SURVEY PROCEEDINGS AND SCRUTINY AS SESSMENT PROCEEDINGS DETAILED EXPLANATIONS WERE SUBMITTED BY THE APPELLANT WHICH WAS SUPPORTED BY PROPER EVIDENCES A ND ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 13 DOCUMENTS TO ESTABLISH WHY THE STATEMENT MADE AT TH E TIME OF 9 ITA 6733/M/2008 M/S. AL QURESH EXPORT SURVEY IS NOT BEING ADHERED TO OR RETRACTED. THE APPELLANT IN THE POST SURVEY PROCEEDINGS AS WELL AS ASSESSMENT PROCEEDINGS INTIM ATED TO THE A.O WHAT ARE THE CORRECT FACTS AND FILED EVIDENCES THAT SUPPORTED HIS CLAIM. THE AO WAS UNABLE TO BRING ANY MATERIAL OR EVIDENCE TO THE CONTRARY. THE SUPREME COURT IN PULLAN GODE RUBBER PRODUCE CO. LTD VS. STATE OF KERALA (1973)(91 ITR 18) HAS HELD THAT AN ADMISSION IS AN EXTREMELY IMPORTANT PIECE OF EVIDENCE BUT IT CAN NOT BE SAID THAT IT IS CONCLUSIVE. IT IS OPEN TO THE PERSON WHO MADE THE ADMISSION TO SHOW THAT IT IS INCORRECT. IN THE PRESENT CASE APART FROM ANSWER GIVEN BY THE PARTNER SHAKIR QURESHI TO QUESTION AT S. NO.11 ON SURVEY DA Y THAT SINCE 'I AM NOT ABLE TO RECONCILE THE DISCREPANCY ON PURCHAS E FOR WHICH BILLS WERE YET TO BE RECEIVED, AS SUCH I OFFER AN I NCOME OF RS 1.91 CRORES', NO CLINCHING EVIDENCE OR MATERIAL BASED ON VALID INQUIRY IS PLACED ON RECORD BY THE AO WHICH COULD PERSUADE THE APPELLATE AUTHORITY TO CONFIRM THE ADDITION SO MADE. IN CIT VS. RAMDAS MOTOR TRANSPORT {(1994)(238 ITR 1 77) (183) (A)} AND JAIKISAN R. AGARWAL VS. ACIT {(2000) 66 TT J 704} IT HAS BEEN HELD THAT IF THE ADMISSION IN THE STATEMENT IS NOT SUPPORTED BY ANY ASSET OR DOCUMENT, THE RETRACTION MAY BE GEN UINE. THE ALLAHABAD HIGH COURT IN THE CASE OF ABDUL QAYINNE V S. CIT {(1990) 184 ITR 404 (ALL.)} MADE THE CATEGORICAL OB SERVATION TO THE EFFECT THAT AN ADMISSION OR AN ACQUIESCENCE CAN NOT BE FOUNDATION FOR AN ASSESSMENT WHEN THE INCOME IS RET URNED UNDER AN ERRONEOUS IMPRESSION OR MISCONCEPTION OF LAW. IT WAS ALWAYS ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 14 OPEN TO ITA 6733/M/2008 M/S. AL QURESH EXPORT ASSESS EE TO DEMONSTRATE ANY SATISFY THE AUTHORITY CONCERNED THA T A PARTICULAR INCOME WAS NOT TAXABLE IN HIS HANDS AND THAT IT WAS RETURNED UNDER AN ERRONEOUS IMPRESSION OF FACTS AND LAW. IN THE PRESENT CASE THE APPELLANT IN THE POST SURVEY PROCEEDINGS A S WELL AS CONSEQUENT PROCEEDINGS HAS AMPLY DEMONSTRATED THROU GH CREDIBLE EVIDENCE THAT ITS PURCHASES WERE GENUINE A ND SO THE STATEMENT LOSES ITS BOTTOM. TO SUM UP, THERE WAS A SURVEY IN THE APPELLANT'S CA SE ON 01.02.2005. SURVEYING AUTHORITY NOTICED THAT IN RES PECT OF CERTAIN PAYMENTS (MADE BY CHEQUE) RECORDED IN THE BOOKS TOW ARDS PURCHASES, THE CORRESPONDING BILLS WERE NOT READILY AVAILABLE. AS SUCH AO CAME TO THE CONCLUSION THAT PURCHASES TO TH E EXTENT OF RS 1,86,60,238/- TO DIFFERENT PARTIES WERE BOGUS. I N THE STATEMENT RECORDED OF PARTNER SHAKIR QURESHI HE ADM ITTED THAT SINCE HE IS UNABLE TO RECONCILE THE DISCREPANCY AS SUCH HE IS OFFERING RS 1.91 CRORES AS ADDITIONAL INCOME ON THA T ACCOUNT. HOWEVER IN THE IMMEDIATE POST SURVEY PROCEEDINGS IT WAS ABLE TO PRODUCE ALL THE RELATED DOCUMENTS BEFORE THE ASSESS ING AUTHORITY. AT THE ASSESSMENT STAGE TOO IT WAS DEMONSTRATED THA T THE SAID TRANSACTIONS ARE GENUINE. THE AO HAS NOT BEEN ABLE TO CORROBORATE THE DECLARATION, WITH ANY DOCUMENT, EVI DENCE OR ASSET. AS SUCH ON THE FACTS AND CIRCUMSTANCES AS WE LL AS ESTABLISHED POSITION OF LAW AS HIGHLIGHTED AFORESAI D THE ADDITION OF RS 1.91 CRORES MADE ON UNCORROBORATED STATEMENT, WH ICH WAS LATER RETRACTED, IS DELETED.' THE HON'BLE ITAT CONFIRMED THE ACTION OF THE LEARNE D CIT(A) AND DISMISSED THE APPEAL OF THE REVENUE. THE FACTS BEIN G SIMILAR THE ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 15 HON'BLE ITAT IS REQUESTED TO DELETE THE ADDITION MA DE BY THE LEARNED ASSESSING OFFICER AND CONFIRMED BY THE LEAR NED CIT(A). SUBMISSIONS MADE BEFORE THE LEARNED CIT(A) THE ASSESSEE MADE THE FOLLOWING DETAILED SUBMISSION CONTAINING THE ISSUES RAISED IN THE FORGOING PARAS. THE LEARNED CI T(A) DID NOT CONSIDER THE SAME IN THE CORRECT PERSPECTIVE, OTHERWISE THER E WOULD HAVE BEEN NO OCCASION FOR CONFIRMING THE ADDITION. THE LEARNE D CIT(A) BASICALLY ERRED IN MAKING TOTAL RELIANCE ON THE CONFESSIONAL STATEMENT OF THE ASSESSEE IGNORING THE DOCUMENTARY EVIDENCES BROUGHT ON RECORD BY THE ASSESSEE. A COPY OF SUBMISSION MADE BEFORE THE LEAR NED CIT(A) IS AVAILABLE ON PAPER BOOK PAGE NUMBER 129 TO146. '2. STOCK AT THE PREMISES OF THE ASSESSEE IT IS SUBMITTED THAT ENTIRE EXERCISE OF SURVEY U/S 133A WAS A FARCE. THE SURVEY TEAM ON PAPER WORKED OUT STOCK OF RS. 4,73,0 4,946/- ALLEGEDLY FOUND AT THE BUSINESS PREMISES OF THE ASSESSEE WHER EAS VIRTUALLY THERE WAS NO SUCH STOCK AT THE BUSINESS PREMISES OF THE A SSESSEE. THE SURVEY TEAM ON THE PAPER FIRST ALLEGEDLY WORKED OUT THE ST OCK AT RS. 4,73,04,946/- AND LATER-ON ON PRESUMPTION AND ASSU MPTION DIVIDED THE SAME IN ALL THE FIVE SISTER CONCERNS AND A SUM OF R S. 3,20,73,946/- WAS HELD AS BELONGING TO THE ASSESSEE. THERE ARE NO DET AILS AS HOW THIS STOCK WAS HELD TO BELONG TO THE ASSESSEE. THE ENTIR E EXERCISE OF SURVEY DOES NOT GIVE ANY DETAILS OF THE MANNER IN WHICH TH E WORKING WAS DONE EITHER OF THE STOCK AS PER BOOKS OR OF THE STOCK FO UND PHYSICALLY. THERE ARE NO DETAILS OF PURCHASES AND SALES BEFORE WORKIN G OUT THE STOCK AS PER BOOKS. THERE IS NO REFERENCE TO THE COST OF PUR CHASES BEFORE VALUING THE STOCK FOUND PHYSICALLY. THE STOCK AS PER BOOKS AS WELL AS THE STOCK FOUND PHYSICALLY HAS BEEN WORKED OUT AND VALUED ON THE BASIS OF ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 16 STATEMENT OF SHRI PRADEEP KUMAR CHOUDHARY WHICH WAS RECORDED UNDER THREAT, DURESS AND STRESS. SUCH STATEMENT RECORDED U/S 133A DOES NOT CARRY ANY EVIDENTIARY VALUE. IT IS ONLY ON PRESUMPTION THAT THE STOCK FOUND AT T HE PREMISES OF M/S ASMI STONEX WAS BIFURCATED IN THE HANDS OF THE FIVE SISTER CONCERNS PURELY ON ESTIMATE BASIS AND WITHOUT REFERENCE TO A NY DOCUMENT OR BOOKS OF ACCOUNTS. THE ADDITION MADE IS THEREFORE U NCALLED FOR AND DESERVES TO BE DELETED. AS PER THE BOOKS OF ACCOUNT S OF THE ASSESSEE THE STOCK IN HAND AS ON 12.09.2013 IS AS UNDER: - (A) MARBLE BLOCKS RS. 188820 (B) MARBLE SLABS & TILES RS. 1879542 THE STOCK IS FULLY SUPPORTED WITH REFERENCE TO PURC HASE VOUCHERS AND BOOKS OF ACCOUNTS. COPIES OF THE STATEMENT WORKING OUT THE ABOVE STOCK AND SUPPORTING VOUCHERS ARE AVAILABLE ON PAPER BOOK PAGE NUMBER 13 TO 124. IT IS SUBMITTED THAT THE VALUATION OF PHYSICAL STOC K ALLEGEDLY FOUND AT THE TIME OF SURVEY HAS BEEN WORKED OUT AT RS. 4,73,04,9 46/-. THE MAJOR PART OF THE STOCK CONSISTED OF MARBLE AND GRANITE B LOCKS WHICH HAVE BEEN VALUED AT RS. 4,21,68,000/-. IT IS OUT OF THIS TOTAL STOCK OF RS. 4,73,04,946/- THAT STOCK TO THE EXTENT OF RS. 32073 946/- HAS BEEN APPORTIONED AS BELONGING TO THE ASSESSEE. IT IS SUB MITTED THAT SO FAR AS THE ASSESSEE IS CONCERNED AS ON THE DATE OF SURVEY IT HAD PURCHASED 61 GRANITE BLOCKS WEIGHTING 625.25 TONS OF THE VALUE O F 4,45,000/-. THE AVERAGE COST OF PER BLOCKS WORKS OUT OF RS. 7295/- WHEREAS IN THE VALUATION REPORT THE GRANITE BLOCKS HAVE BEEN VALUE D BIGGER SIZE @ 26000/- PER BLOCK AND SMALLER SIZE AT RS. 26000/- P ER BLOCK. THE VALUATION MADE BY THE SURVEY TEAM IS TOTALLY WRONG. THE ASSESSEE HAD ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 17 PURCHASED GRANITE BLOCKS WITH REFERENCE TO WEIGHT. THE AVERAGE PRICE PER TON OF GRANITE BLOCKS WORKS OUT TO RS. 700/- PE R TON. THE SURVEY TEAM WAS REQUIRED TO WORK OUT THE VALUATION WITH RE FERENCE TO WEIGHT AND ALSO WITH REFERENCE TO PURCHASE VOUCHERS. BUT T HIS HAS NOT BEEN DONE. THEREFORE THE VALUATION OF GRANITE BLOCKS IS TOTALLY FICTIONAL AND NOT ACCEPTABLE. THEREFORE APPORTIONMENT OF STOCK TO THE EXTENT OF 3,20,73,946/-AS BELONGING TO THE ASSESSEE WAS ABSOL UTELY ILLEGAL, UNLAWFUL AND ILLOGICAL. NO EFFORT WAS MADE TO ASCER TAIN THE BOOK POSITION OF STOCK WHICH HAS BEEN TAKEN AT RS. 1,21,36,000/-. NO DETAILS ARE PROVIDED AS HOW AND IN WHAT MANNER THE BOOK POSITIO N OF STOCK WAS ASCERTAINED AT RS. 1,21,36,000/- IN VIEW OF THIS TH E ENTIRE EXERCISE OF APPORTIONMENT OF STOCK AMONGST VARIOUS CONCERNS WAS TOTALLY BASED ON CONJECTURE AND GUESS WORK AND WAS NOT BASED ON GROU ND REALITIES. THE SURVEY TEAM IN FACT CONDUCTED THE SURVEY IN A HYPOT HETICAL MANNER WITHOUT TAKING INTO CONSIDERATION THE ACTUAL FACTS. IT WAS CONCERNED MAINLY OBTAINING SURRENDER OF INCOME. THEREFORE ALL MANIPULATIONS WERE DONE IN MAKING A FALSE VALUATION REPORT WHEREAS NO SUCH STOCK WAS ACTUALLY EXISTED. FURTHER APPORTIONMENT OF STOCK WA S MADE IN THE HANDS OF VARIOUS CONCERNS JUST TO GIVE IT A COLOR OF GENU INENESS. IN THESE CIRCUMSTANCES IT IS SUBMITTED THAT ADDITION MADE BY THE LEARNED ASSESSING OFFICER HAS NO LEGS AND DESERVES TO BE DE LETED. IT IS FURTHER SUBMITTED THAT AS PER TRADING ACCOUNT THE TOTAL SALES DISCLOSED BY THE ASSESSEE ARE ONLY OF RS. 1,37,45,9 32/- OF MARBLE SLABS AND TILES. FOR CONDUCT OF SUCH SALES EXISTENCE OF S TOCK TO THE EXTENT OF RS. 3,20,73,946/- IS A DISTANT CRY. THE LEARNED ASS ESSING OFFICER HAS NOT DISTURBED THE SALE OF THE ASSESSEE. THE SALES AS PE R BOOKS OF ACCOUNTS STAND ACCEPTED. HENCE IT IS ESTABLISHED THAT THE ST OCK VALUATION REPORT IS FALSE AND FLIMSY. NO ADDITIONS CAN BE MADE ON THE B ASIS OF SUCH AN UNREALISTIC REPORT. THE FIGURE OF STOCK OF RS. 3,2 0,73,946/- INDICATE THAT ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 18 SOME EXACT WORKING WOULD HAVE BEEN UNDER TAKEN OTHE RWISE HOW COULD ONE REACH TO A FIGURE SO EXACT UPTO 00003946. BUT NO DETAILS ARE AVAILABLE OF ANY SUCH WORKING. IT HAS BEEN DONE SIM PLY ON THE BASIS OF STATEMENT OF SHRI PRADEEP CHAUDHRY. THUS THE VALUAT ION OF STOCK IS TOTALLY WRONG. NO ADDITION SHOULD HAVE BEEN MADE ON THE BASIS OF SUCH VALUATION. 3. STOCK VALUED IN A SLIPSHOD METHOD: - IT IS SUBMITTED THAT THE SURVEY TEAM CONDUCTED THE SURVEY ONLY ON 13.09.2013 IN ALL THE FIVE SISTER CONCERNS OF THE A SSESSEE. THE SURVEY WAS STARTED ON 13.09.2013 AND ALSO CONCLUDED ON 13. 09.2013. STATEMENT OF SHRI PRADEEP CHOUDHARY ALSO RECORDED R UNNING INTO 8 PAGES ON THE SAME DATE. BESIDES STATEMENT OF SHRI A RIHANT CHOUDHARY WAS ALSO RECORDED THE SUBMISSION OF THE ASSESSEE IS THAT MAJOR PORTION OF THE TIME OF THE SURVEY TEAM WAS CONSUMED IN SEAR CHING THE PREMISES AND RECORDING THE STATEMENT. ALMOST NO TIME WAS LEF T FOR CARRYING OUT ANY PHYSICAL VERIFICATION OF STOCK. THE STOCK LIST HAS BEEN PREPARED IN A VERY FICTIONAL MANNER WITHOUT TAKING INTO CONSIDERA TION THE GROUND REALITY. THE VALUATION REPORT RUNS INTO 11 PAGES AN D CONTAINS DETAILS OF MARBLE BLOCKS OF RS. 4,21,68,000/-, GRANITE OF RS. 24,80,170/- AND MARBLE SLABS OF RS. 26,56,770/-. THE SAME HAS BEEN VALUED ON A SINGLE DAY I.E. ON 13.09.2013 WHICH IS HUMANLY IMPOSSIBLE. THE SUBMISSION OF THE ASSESSEE IS THAT IN FACT NO PHYSICAL VERIFICATI ON WAS CARRIED OUT BY THE SURVEY TEAM AND ONLY PAPER FORMALITIES WERE DON E AFTER THREATENING THE ASSESSEE CORNERING HIM TO SURRENDER INCOME. THE STOCK OF RS. 4,21,68,000/- HAS BEEN WORKED OUT IN FIVE LINES. IF THERE HAD BEEN A PHYSICAL VERIFICATION OF STOCK THE SURVEY TEAM WAS REQUIRED NOT ONLY TO COUNT THE MARBLE AND GRANITE BLOCKS BUT TAKE INTO C ONSIDERATION THEIR WEIGHT AND WORK OUT THE COST WITH REFERENCE TO PURC HASE VOUCHERS. BUT NOTHING OF THIS SORT HAS BEEN DONE AND THIS COULD N OT BE DONE IN A SINGLE ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 19 DAY, IT REQUIRED MORE TIME. SO THE SURVEY CONDUCTED IS NOTHING BUT A PAPER FORMALITY. NO PHYSICAL VERIFICATION OF STOCK WAS DONE, HENCE NO ADDITION COULD BE MADE ON THE BASIS OF SUCH SURVEY REPORT OF STOCK VALUATION. 4. VALUATION OF STOCK OF MARBLE BLOCKS IS INVALID N OT BEING WITH REFERENCE TO WEIGHT : - THE STOCK OF RS. 4,21,68,000/- OF MARBLE BLOCKS HAS BEEN COMPLETED IN FIVE LINES (FIRST PAGE OF THE VALUATION REPORT). TH E STOCK HAS BEEN BIFURCATED IN BIG SIZE, SMALL SIZE WHEREAS THE BLOC KS ARE REQUIRED TO BE VALUED WITH RESPECT TO THEIR WEIGHT. THEREFORE THE ENTIRE VALUATION OF MARBLE BLOCKS IS NOT ONLY DEFECTIVE BUT INVALID. IT APPEARS THAT DURING THE SURVEY THE AUTHORIZED OFFICERS WERE IN A HURRY TO OBTAIN SURRENDER OF INCOME BY HOOK OR BY CROOK. THE DEFECT OF VALUING M ARBLE BLOCKS WITHOUT QUANTIFYING THEIR WEIGHT IS A MAJOR DEFECT. THIS INVALIDATES THE ENTIRE VALUATION. THE ASSESSEE HAS PURCHASED MARBLE BLOCKS WITH REFERENCE TO WEIGHT. COPIES OF VOUCHERS OF PURCHASE S OF MARBLE BLOCKS FROM R.K. MARBLES PVT LTD ARE AVAILABLE ON PAPER BO OK PAGE NUMBER CITED SUPRA. IT IS SUBMITTED THAT OUT OF THE TOTAL STOCK VALUED BY THE SURVEY TEAM AT RS. 4,73,04,940/-, MORE THAN 90% OF IT PERTAIN TO MARBLE BLOCKS AND GRANITE BLOCKS WHICH HAS BEEN VAL UED PURELY ON ESTIMATE BASIS. THE MARBLE BLOCKS WERE PURCHASED WEIGHT VISE BUT TH E VALUATION HAS BEEN DONE BY COUNTING THE MARBLE BLOCKS AS BIG AND SMALL WHICH IS NOT CORRECT. DURING THE YEAR UNDER CONSIDERATION UPTO T HE DATE OF SURVEY THE ASSESSEE PURCHASED 43 MARBLE BLOCKS WEIGHING 436.64 TONS FOR A SUM OF RS. 7,39,513/- WHICH GIVES AVERAGE COST OF 1 BLOCK AT RS.17,198/- TONS WHEREAS IN THE SURVEY VALUATION REPORT THE MARBLE B LOCKS HAVE BEEN VALUED BIGGER SIZE AT RS. 40,000/- PER BLOCK AND SM ALLER SIZE AT RS. 26,000/- PER BLOCK. IN ANY CASE BOTH THE SIZES STAN D OVERVALUED. FURTHER ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 20 IT IS NOT KNOWN AS WHAT WAS THE CRITERIA OF TREATIN G A MARBLE BLOCK BIG OR SMALL. SO FAR AS THE ASSESSEE IS CONCERN THE BLOCKS HAVE RANGED AROUND 10 TONS EACH. THERE IS NO BIG DIFFERENCE IN THE WEI GHT OF MARBLE BLOCKS SO AS TO TREAT THEM BIG OR SMALL. DETAILS OF PURCHA SES OF MARBLE BLOCKS ALONG WITH RELEVANT PURCHASE VOUCHERS, LEDGER ACCOU NT ARE AVAILABLE ON PAPER BOOK CITED SUPRA. THE FACTS OF PURCHASES OF M ARBLE BLOCKS ESTABLISH THAT THE VALUATION DONE OF THE STOCK FOUN D BY THE SURVEY PARTY IS TOTALLY WRONG AND VERY HIGH. THE SAME IS TOTALLY UNRELIABLE AND NOT ACTIONABLE. THE LEARNED ASSESSING OFFICER HAS ERRED IN MAKING ADDITION ON THE BASIS OF SUCH A DEFECTIVE AND INCORRECT VALU ATION. IT IS FURTHER SUBMITTED THAT OF THE TOTAL STOCK FOUND OF RS. 4,73 ,04,940/- THE STOCK OF MARBLE BLOCKS AND GRANITE BLOCKS IS OF RS. 4,21,68, 000/- I.E. MORE THAN 90%. THE SUBMISSION OF THE ASSESSEE IS THAT WHEN 90 % OF THE STOCK VALUATION IS INCORRECT, THEN THERE WAS NO CASE FOR MAKING ANY ADDITION. FURTHER AS PER BOOKS OF ACCOUNTS THE ASSESSEE HAD N O STOCK OF MARBLE BLOCKS AS ON THE DATE OF SURVEY. HENCE SUCH STOCK O F MARBLE BLOCKS AS CALCUCTED BY THE SURVEY TEAM COULD NOT BE CONSIDERE D IN THE HANDS OF THE ASSESSEE. 5. VALUATION OF STOCK OF MARBLE BLOCKS IS INVALID N OT BEING WITH REFERENCE TO COST : - THE ENTIRE STOCK OF MARBLE BLOCKS HAS BEEN VALUED W ITH REFERENCE TO BIG SIZE AND SMALL SIZE WITHOUT TAKING INTO CONSIDERATI ON THE QUALITY OF THE BLOCK AND ITS POTENTIALITY IN YIELDING SLABS. NO EF FORT WAS MADE TO FIND OUT THE PURCHASE VALUE OF THESE BLOCKS WHICH WAS TH E ONLY CORRECT WAY FOR VALUATION OF THE STOCK. IN VIEW OF THIS ALSO TH E VALUATION OF THE STOCK FOUND IS INVALID AND DESERVES TO BE IGNORED. IT IS SUBMITTED THAT IN THE CASE OF THE ASSESSEE DURING THE YEAR UNDER CONSIDER ATION THE ASSESSEE PURCHASED 43 MARBLE BLOCKS WEIGHING 436.64 TONS FOR A SUM OF RS. 7,39,513/- WHICH GIVES AVERAGE COST OF 1 BLOCK AT R S. 17,198/- WHEREAS ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 21 IN THE SURVEY VALUATION REPORT THE MARBLE BLOCKS HA VE BEEN VALUED BIGGER SIZE AT RS. 40,000/- PER BLOCK AND SMALLER S IZE AT RS. 26,000/- PER BLOCK. IN ANY CASE BOTH THE SIZES STAND OVERVALUED. FURTHER IT IS NOT KNOWN AS WHAT WAS THE CRITERIA OF TREATING A MARBLE BLOCK BIG OR SMALL. SO FAR AS THE ASSESSEE IS CONCERN THE BLOCKS HAVE R ANGED AROUND 10 TONS EACH. THERE IS NO BIG DIFFERENCE IN THE WEIGHT OF MARBLE BLOCKS SO AS TO TREAT THEM BIG OR SMALL. DETAILS OF PURCHASES OF MARBLE BLOCKS ALONG WITH RELEVANT PURCHASE VOUCHERS, LEDGER ACCOU NT ARE AVAILABLE ON PAPER BOOK CITED SUPRA. IT IS ITERATED THAT ASSESSE E HAS NO STOCK OF MARBLE BLOCKS AS ON THE DATE OF SURVEY AND HENCE IT WAS WRONG ON THE PART OF THE LEARNED ASSESSING OFFICER TO HAVE CONSI DERED THE STOCK OF RS. 3,20,73,946/- IN THE HANDS OF THE ASSESSEE WITH OUT ANY BASE AND WITHOUT ANY GROUND. 6. STOCK OF GRANITE WRONGLY CONSIDERED IN THE HANDS OF THE ASSESSEE: - THE VALUATION OF GRANITE HAS ALSO BEEN DONE IN VERY ROUTINE AND SLIPSHOD MANNER WITHOUT TAKING INTO CONSIDERATION THE SIZE, THE QUALITY AND THE COLOR. THE SAME HAS BEEN VALUED AT RS. 24,80,170/-. IT IS SUBMITTED THAT SO FAR AS THE ASSESSEE IS CONC ERNED AS ON THE DATE OF SURVEY IT HAD PURCHASED 61 GRANITE BLOCKS WEIGHT ING 625.25 TONS OF THE VALUE OF 4,45,000/-. THE AVERAGE COST OF PER BL OCKS WORKS OUT OF RS. 7295/- WHEREAS IN THE VALUATION REPORT THE GRANITE BLOCKS HAVE BEEN VALUED BIGGER SIZE @ 26000/- PER BLOCK AND SMALLER SIZE AT RS. 26000/- PER BLOCK. THE VALUATION MADE BY THE SURVEY TEAM IS TOTALLY WRONG. THE ASSESSEE HAD PURCHASED GRANITE BLOCKS WITH REFERENC E TO WEIGHT. THE AVERAGE PRICE PER TON OF GRANITE BLOCKS WORKS OUT T O RS. 700/- PER TON. THE SURVEY TEAM WAS REQUIRED TO WORK OUT THE VALUAT ION WITH REFERENCE TO WEIGHT AND ALSO WITH REFERENCE TO PURCHASE VOUCH ERS. BUT THIS HAS NOT ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 22 BEEN DONE. THEREFORE THE VALUATION OF GRANITE BLOCK S IS TOTALLY FICTIONAL AND NOT ACCEPTABLE. THEREFORE IT WAS WRONG ON THE PART OF THE LEARNED A SSESSING OFFICER TO HAVE TAKEN INTO CONSIDERATION THE STOCK OF GRANITE IN BIFURCATING THE SHARE OF THE ASSESSEE. THE TOTAL STOCK OF MARBLE BL OCKS, GRANITE AND MARBLE SLABS HAS BEEN WORKED OUT OF RS. 4,73,04,940 /- AND AGAINST THIS STOCK TO THE EXTENT OF RS. 3,20,73,946/- HAS BEEN T AKEN TO BE OF THE ASSESSEE. THE SUBMISSION OF THE ASSESSEE IS THAT WH EN THE ASSESSEE DOES NOT DEAL IN GRANITE THEN HOW CAN THE STOCK OF GRANITE CAN BE CONSIDERED IN THE ASSESSEE'S HANDS. 7. VALUATION OF MARBLE SLABS IS ABNORMALLY HIGH - THE STOCK OF MARBLE SLABS HAS BEEN VALUED AT RS. 26 ,56,770/-. THE VALUATION REPORTS INDICATE THAT THE ENTIRE SLABS AL LEGEDLY OF 88559 SQUARE FEET HAVE BEEN VALUED AT A FLAT RATE OF RS. 30/- PE R SQUARE FEET. NO CONSIDERATION HAS BEEN GIVEN TO COLOR AND QUALITY. FURTHER NO EFFORT WAS MADE TO ASCERTAIN THE COST OF THE MARBLE SLABS. IT IS SUBMITTED THAT THE MARBLES SLABS IN THE CASE OF THE ASSESSEE HAVE COST ED AT RS. 12.21PER SQUARE FEET. APPARENTLY THE MARBLES SLABS HAVE BEEN VALUED ALMOST AT THE 250 PERCENT OF THE COST PRICE BY THE SURVEY TEA M. IN VIEW OF THIS ALSO THE VALUATION REPORT OF THE STOCKS FOUND DURIN G SURVEY IS INVALID AND DESERVES TO BE IGNORED. 8. NO ADDITION COULD BE MADE ON THE BASIS OF STATEM ENT ALONE : - IT IS SUBMITTED THAT THE LEARNED ASSESSING OFFICER HAS REFERRED AND REPRODUCED THE STATEMENT OF SHRI PRADEEP CHOUDHARY IN THE ASSESSMENT ORDER FOR SUPPORTING THE ADDITION. THE RELEVANT PAG ES OF THE STATEMENT OF SHRI PRADEEP CHOUDHARY RELATING TO THE ADDITION ON ACCOUNT OF STOCK ARE SCANNED BELOW: - ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 23 ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 24 ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 25 ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 26 THE PERUSAL OF THE ABOVE STATEMENT REVEALS THE FOLL OWING: - (A) THAT THE ENTIRE STOCK WAS FOUND AT THE BUSINESS PREMISES OF M/S ASMI STONES ALLEGEDLY BELONGING TO THE FIVE SISTER CONCERNS INCLUDING THE ASSESSEE. (ANSWER TO QUESTION NO. 6). (B) THE STOCK WAS INVENTORIED AND VALUED AT THE INS TANCE OF SHRI ARIHANT CHOUDHARY S/O SHRI PRADEEP CHOUDHARY WHO IS THE HEAD OF THE FAMILY AND ALSO AT THE INSTANCE OF EMPLOYEE SHRI KAMLESH RATHORE. (ANSWER TO QUESTION NO. 7). THUS THE ASSES SEE HAD NO SAY IN THE VALUATION OF THE STOCK FOUND. THE STOCKS REQUIRED TO BE VALUED WITH REFERENCE TO VOUCHERS OF PURCHASE AND N OT ON THE BASIS OF STATEMENT. THEREFORE THE ENTIRE VALUATION STOCK IS DEFECTIVE, WRONG, INCORRECT AND OVERVALUED AND THER EFORE DESERVES TO BE DISREGARDED. (C) THE STOCK WAS BIFURCATED IN THE HANDS OF FIVE C ONCERNS AT THE INSTANCE OF SHRI PRADEEP CHOUDHARY AT HIS ORAL INST RUCTION. THE STATEMENT DOES NOT GIVE ANY BASIS OF BIFURCATING OF STOCK IN THE HANDS OF FIVE SISTER CONCERNS. (ANSWER TO QUESTION NO. 8) THIS HAS BEEN DONE PURELY ON GUESS WORK. SUCH BIFURCATION IS NOT ACCEPTABLE AND NOT RELIABLE BEING NOT CORRECT. (D) THE STOCK AS PER BOOKS OF ALL THE FIVE CONCERNS HAVE BEEN TAKEN AT RS. 1,42,17,000/- ON THE BASIS OF ALLEGED COMPUT ER SHEETS WHEREAS STOCK AS PER BOOKS SHOULD HAVE BEEN WORKED OUT WITH REFERENCE TO INDIVIDUAL BOOKS OF ACCOUNTS OF EACH O F THE FIVE CONCERNS. THERE IS NO REFERENCE OF ANY STOCK REGIST ER, TRADING A/C ETC. WHILE WORKING OUT THE STOCK AS PER BOOKS ON TH E DATE OF SURVEY. THUS THE STOCK AS PER BOOKS TAKEN BY THE RE VENUE IS INVALID AND DESERVES TO BE IGNORED. (ANSWER TO QUES TION NO. 8) ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 27 IN VIEW OF THE AFORESAID FACTS IT IS CLEAR THAT ASS ESSEE HAD NO SAY EITHER IN WORKING OUT THE STOCK AS PER BOOKS OR IN WORKING OUT THE STOCK FOUND PHYSICALLY BELONGING TO THE ASSESSEE. THE ENTIRE EX ERCISE OF WORKING OUT THE STOCK BOTH AS PER BOOKS AS WELL AS PHYSICALLY H AS BEEN DONE IN A VERY FICTIONAL UNREALISTIC MANNER WITHOUT TAKING IN TO CONSIDERATION THE GROUND REALITIES. NO DETAILS HAVE BEEN MENTIONED AS HOW THE STOCK AS PER BOOKS HAS BEEN WORKED OUT. SIMILARLY NO METHOD HAS BEEN GIVEN AS ON WHAT BASIS STOCK FOUND WAS BIFURCATED IN THE HAN DS OF FIVE CONCERNS. IN VIEW OF THIS THE ENTIRE EXERCISE OF SURVEY IS IN FUTILITY MORE SO CLUBBED WITH THE FACT THAT VALUATION OF MARBLE BLOCKS HAS N OT BEEN DONE WITH REFERENCE TO WEIGHT AND VALUATION OF MARBLES SLABS HAS NOT BEEN DONE WITH REFERENCE TO PURCHASE COST. ALL THESE FACTS L EAD TO ONE AND ONE CONCLUSION THAT THE EXERCISE OF SURVEY WAS AN EXERC ISE IN FUTILITY. 9. SURRENDER IN VIOLATION OF BOARD CIRCULARS: - IT IS SUBMITTED THAT TIME AND AGAIN BOARD HAS ISSUE D INSTRUCTION TO THE OFFICER OF THE DEPARTMENT NOT TO INDULGE IN SURREND ER OF INCOME BY WAY OF OBTAINING CONFESSIONAL STATEMENTS. HOWEVER IN TH E CASE OF THE ASSESSEE IN CLEAR CUT VIOLATION OF THE CIRCULARS/IN STRUCTIONS THE INCOME TAX AUTHORITIES EXERTED PRESSURE AND OBTAINED SURRE NDER OF INCOME IN STATEMENT RECORDED DURING THE COURSE OF SURVEY. THE SAME IS THEREFORE UNLAWFUL AND ILLEGAL AND ADDITION MADE ON SUCH CONF ESSIONAL STATEMENT AUTOMATICALLY BECOMES UNLAWFUL AND DESERVES TO BE D ELETED. IN THE CASE OF CWT VS. SANWARMAL SHIVKUMAR 171 ITR 337 THE JURI SDICTIONAL HIGH COURT OF RAJASTHAN HELD THAT THE OFFICERS OF THE DE PARTMENT ARE BOUND BY THE CIRCULARS OF THE BOARD. FURTHER IN THE FOLLO WING CASES THE COURTS HAVE HELD THAT CIRCULARS ISSUED BY THE BOARD ARE BI NDING: - (I) NAVNITLAL C JAVERI VS. SEN (1965) 56 ITR 198 ( SC) ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 28 (II) K.P. VARGHESE VS. ITO (1981) 131 ITR 597 (SC) (III) UCO BANK VS. CIT (1999) 237 ITR 889 (SC) (IV) UNION OF INDIA VS. AZADI BACHOO ANDOLAN (2003) 263 ITR 706(SC) IN THE ABOVE DECISIONS THE APEX COURT OF THE COUNT RY HAS REITERATED THAT WHEREVER CBDT HAS ISSUED INSTRUCTIONS/CIRCULARS TO RELIEVE HARDSHIPS THE SAME ARE OF BINDING NATURE. IN VIEW OF THIS IT IS S UBMITTED THAT THE SURRENDER OF INCOME OBTAINED IN CONFESSIONAL STATEM ENT GOES AGAINST THE SPIRIT OF THE CIRCULARS ISSUED BY THE BOARD QUOTED BELOW. THE ADDITION MADE ON THE BASIS OF SUCH CONFESSIONAL STATEMENT DE SERVES TO BE DELETED. BOARD CIRCULARS DATED 10.03.2003 AND 18.12 .2014 ARE QUOTED BELOW- (I) F. NO. 286/2/2003-IT (INV) DATED 10.03.2003 NO CONFESSIONAL STATEMENT IN THE COURSE OF SEARCH, SEIZURE AND SURVEY. MARCH 10 TH , 2003 CONFESSION OF ADDITIONAL INCOME DURING THE COURSE O F SEARCH &SEIZURE AND SURVEY OPERATION GOVERNMENT OF INDIA MINISTRY OF FINANCE &COMPANY AFFAIRS DEPARTMENT OF REVENUE CENTRAL BOARD O F DIRECT TAXES ROOM NO. 254/NORTH BLOCK, NEW DELHI, THE 10TH MARCH, 2003 TO ALL CHIEF COMMISSIONERS OF INCOME TAX, (CADRE CONTR A) & ALL DIRECTORS GENERAL OF INCOME TAX INV. SIR SUBJECT : CONFESSION OF ADDITIONAL INCOME DURING TH E COURSE OF SEARCH &SEIZURE AND SURVEY OPERATION -REGARDING INSTANCES HAVE COME TO THE NOTICE OF THE BOARD WHER E ASSESSEES HAVE CLAIMED THAT THEY HAVE BEEN FORCED TO CONFESS THE U NDISCLOSED INCOME DURING THE COURSE OF THE SEARCH &SEIZURE AND SURVEY OPERATIONS. SUCH ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 29 CONFESSIONS, IF NOT BASED UPON CREDIBLE EVIDENCE, A RE LATER RETRACTED BY THE CONCERNED ASSESSEES WHILE FILING RETURNS OF INC OME. IN THESE CIRCUMSTANCES, ON CONFESSIONS DURING THE COURSE OF SEARCH &SEIZURE AND SURVEY OPERATIONS DO NOT SERVE ANY USEFUL PURPOSE. IT IS, THEREFORE, ADVISED THAT THERE SHOULD BE FOCUS AND CONCENTRATIO N ON COLLECTION OF EVIDENCE OF INCOME WHICH LEADS TO INFORMATION ON WH AT HAS NOT BEEN DISCLOSED OR IS NOT LIKELY TO BE DISCLOSED BEFORE T HE INCOME TAX DEPARTMENTS. SIMILARLY, WHILE RECORDING STATEMENT D URING THE COURSE OF SEARCH IT SEIZURES AND SURVEY OPERATIONS NO ATTEMPT SHOULD BE MADE TO OBTAIN CONFESSION AS TO THE UNDISCLOSED INCOME. ANY ACTION ON THE CONTRARY SHALL BE VIEWED ADVERSELY. FURTHER, IN RESPECT OF PENDING ASSESSMENT PROCEEDIN GS ALSO, ASSESSING OFFICERS SHOULD RELY UPON THE EVIDENCES/MATERIALS G ATHERED DURING THE COURSE OF SEARCH/SURVEY OPERATIONS OR THEREAFTER WH ILE FRAMING THE RELEVANT ASSESSMENT ORDERS YOURS FAITHFULLY, SD/- (S. R. MAHAPATRA] UNDER SECRETARY (INV. II) (II) F.NO. 286/98/2013-IT (INV.II) DATED 18.12.2014 ADMISSIONS OF UNDISCLOSED INCOME UNDER COERCION/PRE SSURE DURING SEARCH/SURVEY GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE CENTRAL BOARD OF DIRECT TAXES DATED- 18TH DECEMBER, 2014 TO 1. ALL PRINCIPAL CHIEF COMMISSIONERS OF INCOME TAX 2. ALL CHIEF COM MISSIONERS OF INCOME TAX 3. ALL DIRECTORS GENERAL OF INCOM E TAX (INV.) 4. DIRECTOR GENERAL OF INCOME TAX (I & CI), NEW DELHI SUBJECT: ADMISSIONS OF UNDISCLOSED INCOME UNDER COE RCION/PRESSURE DURING SEARCH/SURVEY REG. REF: 1) CBDT LETTER F.N O. 286/57/2002- IT(INV.II) DT. 03-07-2002 2) CBDT LETTER F.NO. 286/ 2/2003-IT(INV.11) DT. ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 30 10-03-2003 3) CBDT LETTER F.NO. 286/98/2013-IT(INV. 11) DT. 09-01-2014 SIR/MADAM, INSTANCES/COMPLAINTS OF UNDUE INFLUENCE/ COERCION HAVE COME TO NOTICE OF THE CBDT THAT SOME ASSESSEES WERE COERCED TO ADMIT UNDISCLOSED INCOME DURING SEARCHES/SURVEYS CONDUCTE D BY THE DEPARTMENT. IT IS ALSO SEEN THAT MANY SUCH ADMISSIO NS ARE RETRACTED IN THE SUBSEQUENT PROCEEDINGS SINCE THE SAME ARE NOT B ACKED BY CREDIBLE EVIDENCE. SUCH ACTIONS DEFEAT THE VERY PURPOSE OF S EARCH/SURVEY OPERATIONS AS THEY FAIL TO BRING THE UNDISCLOSED IN COME TO TAX IN A SUSTAINABLE MANNER LEAVE ALONE LEVY OF PENALTY OR L AUNCHING OF PROSECUTION. FURTHER, SUCH ACTIONS SHOW THE DEPARTM ENT AS A WHOLE AND OFFICERS CONCERNED IN POOR LIGHT. 2. I AM FURTHER D IRECTED TO INVITE YOUR ATTENTION TO THE INSTRUCTIONS/GUIDELINES ISSUED BY CBDT FROM TIME TO TIME, AS REFERRED ABOVE, THROUGH WHICH THE BOARD HA S EMPHASIZED UPON THE NEED TO FOCUS ON GATHERING EVIDENCES DURING SEA RCH/SURVEY AND TO STRICTLY AVOID OBTAINING ADMISSION OF UNDISCLOSED I NCOME UNDER COERCION/UNDUE INFLUENCE. 3. IN VIEW OF THE ABOVE, WHILE REITERATING THE AFORESAID GUIDELINES OF THE BOARD, I AM DIRECTED TO CONVEY THAT ANY INSTANCE OF UNDUE INFLUENCE/COERCION IN THE RECORDI NG OF THE STATEMENT DURING SEARCH/SURVEY/OTHER PROCEEDING UNDER THE I.T .ACT,1961 AND/OR RECORDING A DISCLOSURE OF UNDISCLOSED INCOME UNDER UNDUE PRESSURE/ COERCION SHALL BE VIEWED BY THE BOARD ADVERSELY. 4. THESE GUIDELINES MAY BE BROUGHT TO THE NOTICE OF ALL CONCERNED IN YO UR REGION FOR STRICT COMPLIANCE. 5. I HAVE BEEN FURTHER DIRECTED TO REQU EST YOU TO CLOSELY OBSERVE/OVERSEE THE ACTIONS OF THE OFFICERS FUNCTIO NING UNDER YOU IN THIS REGARD. 6. THIS ISSUES WITH APPROVAL OF THE CHAIRPE RSON, CBDT (K. RAVI RAMCHANDRAN) DIRECTOR (INV.)-II, CBDT IT IS SUBMITTED THAT THE ACTION OF THE I.E. AUTHORI TIES IN OBTAINING SURRENDER OF INCOME THAT TOO UNDER DURESS IS AGAINS T THE CIRCULARS OF THE CBDT WHICH ARE BINDING UPON THEM. HENCE THE SURREND ER OBTAINED FROM ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 31 THE ASSESSEE WAS ILLEGAL AND ADDITION MADE ON THE B ASIS OF SUCH SURRENDER IS UNLAWFUL AND DESERVES TO BE DELETED. 10. CONDUCT OF SURVEY IS UNLAWFUL AND ILLEGAL THE ADMITTED FACTS OF SURVEY ARE THAT IT WAS CONDUC TED ON 13.09.2013. AS PER STOCK LIST PREPARED WHICH IS AVAILABLE ON PA PER BOOK CITED SUPRA THE PHYSICAL VERIFICATION OF STOCK WAS COMPLETED ON THE SAME DAY ITSELF. THE SURVEY WAS COMPLETED IN THE ODD HOURS BY RECORD ING THE STATEMENT OF THE ASSESSEE. IT IS SUBMITTED THAT PRESSURE WAS BUILT ON THE ASSESSEE FOR SURRENDERING OF INCOME ON THE BASIS OF THE ALLE GED EXCESS STOCK. IT IS SETTLED POSITION OF LAW THAT STATEMENT RECORDED DUR ING ODD HOURS OF NIGHT OR IN THE WEE HOURS CANNOT BE CONSIDERED AS S TATEMENT HAVING BEEN RECORDED IN THE NORMAL COURSE. THUS NOT MUCH R ELIANCE CAN BE PLACED ON THE STATEMENT OF THE ASSESSEE WHICH WAS R ECORDED DURING NIGHT. THE PERUSAL OF THE STATEMENT OF SHRI PRADEEP CHAODHARY MAKES IT CLEAR THAT IT WAS A DOCTRINE D STATEMENT RECORDE D UNDER THE DICTATES OF THE SURVEY OFFICERS. SHRI PRADEEP CHOUDHARY TOTALLY SURRENDERED BEFORE THE I.T, AUTHORITIES AND PUT HIS SIGNATURES WHERE E VER DEMANDED. NO RELIANCE CAN BE PLACED ON SUCH STATEMENT. THIS IS T OTALLY FARCE AND NOT REAL. 11. VALUATION OF STOCK PURELY ON GUESS WORK IN THE ASSESSMENT ORDER THE LEARNED ASSESSING OFFIC ER HAS OBSERVED THAT VALUATION WAS DONE WITH THE HELP OF THE SHRI P RADEEP CHOUDHARY AND HIS SON SHRI ARIHANT CHOUDHARY AND EMPLOYEE SHR I KAMLESH RATHORE. (RELEVANT QUESTION NO. 7 IN THE STATEMENT) IN PARA 3.1 ON PAGE 3 OF THE ASSESSMENT ORDER. HOWEVER IT IS SUBMITTED THAT DURING THE COURSE OF SURVEY THE SHRI PRADEEP CHOUDHARY AND HIS SON SHRI ARIHANT CHOUDHARY WERE SURROUNDED BY THE SURVEY TEAM CONSIS TING OF SEVERAL PERSONS. IN THESE CIRCUMSTANCES SHRI PRADEEP CHOUDH ARY AND HIS SON ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 32 WERE OUT OF THEIR WITS AND IT COULD NOT BE EXPECTED FROM THEM TO STATE ON THE SPOT THE PURCHASE PRICE OF THE STOCK NEITHER THEY WERE ASKED TO STATE THE COST OF THE STOCK FOUND. NO TIME WAS GIVE N FOR MAKING VERIFICATION WITH REFERENCE TO PURCHASE VOUCHERS. I T IS NOT THE CASE OF THE LEARNED ASSESSING OFFICER THAT STOCK WAS VALUED WITH REFERENCE TO PURCHASE VOUCHERS. THE LEARNED ASSESSING OFFICER HA S NOT GIVEN REFERENCE OF ANY PURCHASE VOUCHERS OR THE BASIS ON WHICH VALUATION HAS BEEN MADE. IN VIEW OF THIS THE VALUE OF STOCK HAS B EEN TAKEN PURELY ON GUESS WORK. FURTHER NOT ONLY THAT THE COST OF STOCK WAS NOT WOR KED OUT WITH REFERENCE TO PURCHASE VOUCHERS BUT A BLUNDER HAS AL SO BEEN COMMITTED IN WORKING OUT THE COST OF MARBLE BLOCKS. THE MARBL E BLOCK WAS PURCHASED WEIGHT VISE BUT THE VALUATION HAS BEEN DO NE BY COUNTING THE MARBLE BLOCKS AS BIG AND SMALL WHICH IS NOT CORRECT . DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE PURCHASED 43 MARBL E BLOCKS WEIGHING 436.64 TONS FOR A SUM OF RS. 7,39,513/- WHICH GIVES AVERAGE COST OF 1 BLOCK AT RS. 17,198/- WHEREAS IN THE SURVEY VALUATI ON REPORT THE MARBLE BLOCKS HAVE BEEN VALUED BIGGER SIZE AT RS. 40,000/- PER BLOCK AND SMALLER SIZE AT RS. 26,000/- PER BLOCK. IN ANY CASE BOTH THE SIZES STAND OVERVALUED. FURTHER IT IS NOT KNOWN AS WHAT WAS THE CRITERIA OF TREATING A MARBLE BLOCK BIG OR SMALL. SO FAR AS THE ASSESSEE I S CONCERN THE BLOCKS HAVE RANGED AROUND 10 TONS EACH. THERE IS NO BIG DI FFERENCE IN THE WEIGHT OF MARBLE BLOCKS SO AS TO TREAT THEM BIG OR SMALL. DETAILS OF PURCHASES OF MARBLE BLOCKS ALONG WITH RELEVANT PURC HASE VOUCHERS, LEDGER ACCOUNT ARE AVAILABLE ON PAPER BOOK PAGE NUM BER CITED SUPRA. THE FACTS OF PURCHASES OF MARBLE BLOCKS ESTABLISH T HAT THE VALUATION DONE OF THE STOCK FOUND BY THE SURVEY PARTY IS TOTA LLY WRONG AND VERY HIGH. THE SAME IS TOTALLY UNRELIABLE AND NOT ACTION ABLE. THE LEARNED ASSESSING OFFICER HAS ERRED IN MAKING ADDITION ON T HE BASIS OF SUCH A ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 33 DEFECTIVE AND INCORRECT VALUATION. IT IS FURTHER SU BMITTED THAT OF THE TOTAL STOCK FOUND OF RS. 4,73,04,940/- THE STOCK OF MARBL E BLOCKS AND GRANITE BLOCKS IS OF RS. 4,21,68,000/- I.E. MORE THAN 90%. THE SUBMISSION OF THE ASSESSEE IS THAT WHEN 90% OF THE STOCK VALUATIO N IS INCORRECT, THEN THERE WAS NO CASE FOR MAKING ANY ADDITION. 12. MERE REJECTION OF BOOKS OF ACCOUNT NOT THE BASI S OF MAKING ADDITION - POSITION OF BOOKS OF ACCOUNTS IT IS SUBMITTED THAT DURING THE COURSE OF ASSESSMEN T PROCEEDINGS BOOKS OF ACCOUNTS AND SUPPORTING BILLS AND VOUCHERS AND R EGISTERS WERE PRODUCED AND THESE WERE EXAMINED ON TEST CHECK BASI S (PARA6 OF THE ASSESSMENT ORDER). NO DEFECT WAS NOTICED BY THE LEA RNED ASSESSING OFFICER IN THE BOOKS OF ACCOUNTS. THESE HAVE BEEN R EJECTED U/S 145(3) OF THE INCOME TAX ACT, 1961 SIMPLY WITH REFERENCE T O THE STOCK FOUND AT THE BUSINESS PREMISES OF THE ASSESSEE FIRM. THEREFO RE THERE WAS NO GROUND FOR REJECTING THE BOOKS OF ACCOUNTS. THE SAL ES AND PURCHASES HAVE NOT BEEN DISTURBED. IT IS ALSO NOT THE CASE OF THE LEARNED ASSESSING OFFICER THAT THERE WAS ANY UNACCOUNTED PU RCHASE OR SALE. IT IS SUBMITTED THAT NO ADDITION ON ACCOUNT OF EXCESS STO CK COULD HAVE BEEN MADE BY THE LEARNED ASSESSING OFFICER IN THESE CIRC UMSTANCES. IT IS FURTHER SUBMITTED THAT DURING THE COURSE OF S URVEY NOT A SINGLE UNACCOUNTED VOUCHER OF PURCHASE OR OF SALE WAS FOUN D. IT IS ALSO NOT THE CASE OF THE LEARNED ASSESSING OFFICER THAT THERE WA S UNACCOUNTED CASH. NO DEFECT HAS BEEN POINTED OUT EVEN IN THE MAINTENA NCE OF REGULAR BOOKS OF ACCOUNTS. IN THESE CIRCUMSTANCES WHEN NO P URCHASE OR SALES ARE UNACCOUNTED HOW COULD THERE BE ANY UNACCOUNTED STOCK. THUS THIS ALSO ESTABLISHES THAT THE CONDUCT OF SURVEY WAS NOT BEYOND DOUBT. THE RESULTS OF SURVEY ARE ALSO NOT BEYOND DOUBT. FURTHE R THE LEARNED ASSESSING OFFICER HAS NOT CHALLENGED THE SALES OF T HE ASSESSEE. DURING THE YEAR UNDER CONSIDERATION THE SALES OF THE ASSES SEE ARE ONLY OF RS. ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 34 1,37,45,932/-. FOR SUCH A TURNOVER PHYSICAL STOCK I S NOT REQUIRED OF RS. 3,20,730946/- AS WORKED OUT BY THE SURVEY TEAM. THE EXCESS STOCK HAS BEEN ALSO WORKED OUT AT RS. 1,99,37,946/- WHICH IS MORE THAN DOUBLE TO THE TOTAL SALES OF THE YEAR. THUS APPARENTLY THE ST OCK DETERMINED BY THE SURVEY TEAM/THE EXCESS STOCK WORKED OUT DO NOT MATC H THE SALES OF THE ASSESSEE WHICH STAND ACCEPTED BY THE LEARNED ASSESS ING OFFICER. NOT ONLY THIS EVEN DURING THE COURSE OF SURVEY NOT A SI NGLE PAPER WAS FOUND SHOWING UNACCOUNTED PURCHASE OR SALE. IN THESE CIRC UMSTANCES THE ADDITION MADE BY THE LEARNED ASSESSING OFFICER WAS TOTALLY UNJUSTIFIED ON THE BASIS OF ALLEGED EXCESS STOCK. THE ADDITION MADE BY THE LEARNED ASSESSING OFFICER DESERVES TO BE DELETED. THE FOLLO WING CASE IS QUOTED IN SUPPORT: - SHEKHAWATI ART PALACE VS. CIT (2008) 116 TTJ (JP) 5 52 MERE REJECTION OF ACCOUNT WOULD NOT MEAN THAT IT MU ST LEAD TO ADDITION. 13. SURRENDER U/S 133A WAS UNDER DURESS FROM THE AFORESAID FACTS IT IS CLEAR THAT THE SURVE Y AUTHORITIES HAD NOT WORKED OUT THE VALUATION OF STOCK IN A TRUTHFUL MAN NER. THE POSITION OF PHYSICAL STOCK HAS BEEN TAKEN PURELY ON ESTIMATE BA SIS AND IT HAS NO RELATION WITH THE GROUND REALITY. THE SURVEY TEAM W AS OBSESSED FOR OBTAINING SURRENDER. HENCE CONFESSIONAL STATEMENT H AS BEEN RECORDED WHICH IS IN CLEAR CUT VIOLATION OF THE CIRCULARS OF THE BOARD. THE STATEMENT WAS RECORDED AT ODD HOURS UNDER TREAT AND DURESS. IT IS A CASE WHERE STATEMENT WAS RECORDED UNDER DURESS, STR ESS AND THREAT. THEREFORE THE SURRENDER SO OBTAINED IN THE STATEMEN T IS INVALID AND DESERVES TO BE IGNORED. NO ADDITION CAN BE MADE ON THE BASIS OF SUCH STATEMENT RECORDED U/S 133A OF THE INCOME TAX ACT, 1961. NO ADDITION CAN BE MADE ON THE BASIS OF STATEMENT RECORDED DURI NG ABNORMAL HOURS. ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 35 THE STATEMENT RECORDED U/S 133A IS NOT ON OATH AND CARRIES NO LEGAL WEIGHT. THE ASSESSEE WAS WELL WITH HER IN RIGHTS IN RETRACTING THE SURRENDER OF INCOME MADE DURING SURVEY. THE LEARNED ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDITION. THE FOLLOWING CASE LAWS ARE QUOTED IN SUPPORT (A) KAILASH BEN MOHANLAL CHOKSI V/S CIT (2008) 14 DTR (GUJ) 257 IT IS TOO MUCH TO GIVE CREDIT TO A STATEMENT RECORD ED AT MIDNIGHT WHERE A PERSON MAY NOT BE IN A POSITION TO MAKE ANY CORRECT AND CONSCIOUS DISCLOSES DISCLOSURE STATEMENT RECORDED AT ODD HOURS CANNOT BE CONSIDERED TO BE A VOLUNTARY STATEMENT. (B) CONTECH TRANSPORT SERVICE (P) LTD ORS V/S ACIT (2009) 19 DTR 191 (MUMBAI) 28-11-08 NO ADDITION CAN BE MADE ONLY ON THE BASIS OF ADMISS ION IN STATEMENT U/S 132 (4) (C) CHITRA DEVI V/S ACIT (JODHPUR BRANCH) (2002) 77 TTJ (JD) 640 STATEMENTS RECORDED DURING SEARCH ARE NOT EVIDENCES FOUND DURING SEARCH. ADDITION CANNOT BE MADE ON THE BASIS OF STATEMENT ALONE. (D) AJIT CHINTAMAN KARVE V/S I.T.O. (2009) 311 ITR (AT) 66 (PUNA) ITAT BENCH THAT MERELY BECAUSE AN OFFER WAS MADE HAVING NO COG ENT BASIS OR APPROVAL OF LAW THAT SHOULD NOT STOP A TAXPAYER FROM CORRECTING HIS MISTAKE. IT WAS THE DUTY OF THE A.O. TO TAX ONL Y THE LEGITIMATE AMOUNT FROM A TAXPAYER. (E) CIT VS. BHASKAR MITTAL 73 TAXMAN 437 (CAL) THE LAW EMPOWERS THE ITO TO ASSESS THE INCOME OF AN ASSESSEE ACCORDING TO LAW AND DETERMINE THE TAX PAYABLE THER EON. IN DOING ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 36 SO HE CANNOT ASSESS AN ASSESSEE ON AN AMOUNT, WHICH IS NOT TAXABLE IN LAW, EVEN IF THE SAME IS SHOWN BY AN ASS ESSEE. THERE IS NO ESTOPPEL BY CONDUCT AGAINST LAW NOR IS THERE ANY WAIVER OF THE LEGAL RIGHT AS MUCH AS THE LEGAL LIABILITY TO B E ASSESSED OTHERWISE THAN ACCORDING TO THE MANDATE OF THE LAW (SIC) . IT IS ALWAYS OPEN TO AN ASSESSEE TO TAKE THE PLEA THAT TH E FIGURE, THOUGH SHOWN IN HIS RETURN OF TOTAL INCOME, IS NOT TAXABLE IN LAW (F) KAILASHHEN MANHARLAL CHOKSHI VS CIT (2008) 14 DTR 257 (GUJ) IT IS ALSO TO BE SEEN AS TO WHETHER AN ADDITION MAD E IS MERELY BASED ON THE STATEMENT RECORDED BY THE AO UNDER S. 132(4) AND WHETHER ANY COGNIZANCE MAY BE TAKEN OF THE RETRACTE D STATEMENT. SO FAR AS CASE ON HAND IS CONCERNED, THE GLARING FA CT REQUIRED TO BE NOTED IS THAT THE STATEMENT OF THE ASSESSEE WAS RECORDED UNDER S. 132(4) AT MIDNIGHT. IN NORMAL CIRCUMSTANCE S, IT IS TOO MUCH TO GIVE ANY CREDIT TO THE STATEMENT RECORDED A T SUCH ODD HOURS. THE PERSON MAY NOT BE IN A POSITION TO MAKE ANY CORRECT OR CONSCIOUS DISCLOSURE IN STATEMENT IF SUCH STATEM ENT IS RECORDED AT SUCH ODD HOURS. MOREOVER, THIS STATEMENT WAS RET RACTED AFTER TWO MONTHS. THE MAIN GRIEVANCE OF THE AO WAS THAT T HE STATEMENT WAS NOT RETRACTED IMMEDIATELY AND IT WAS DONE AFTER TWO MONTHS. IT WAS AN AFTERTHOUGHT AND MADE UNDER L EGAL ADVISE. HOWEVER, IF SUCH RETRACTION IS TO BE VIEWED IN LIGH T OF THE EVIDENCE FURNISHED ALONG WITH THE AFFIDAVIT, IT WOU LD IMMEDIATELY BE CLEAR THAT THE ASSESSEE HAS GIVEN PROPER EXPLANA TION FOR ALL THE ITEMS UNDER WHICH DISCLOSURE WAS SOUGHT TO BE OBTAI NED FROM THE ASSESSEE. (G) PULLANGUEGODE RUBBER & PRODUCE CO. LTD. VS. STA TE OF KERALA 91 ITR 18 (SUPREME COURT) ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 37 AN ADMISSION IS EXTREMELY AN IMPORTANT PIECE OF EVI DENCE BUT IT CANNOT BE SAID THAT IT IS CONCLUSIVE AND IT IS OPEN TO THE PERSON WHO MADE THE ADMISSION TO SHOW THAT IT IS INCORRECT . (H) JAIN TRADING CO. V/S ITO (2007) 17 SOT 574 (MUM ) ADDITION ON THE BASIS OF ADMISSION MADE DURING SURV EY RETRACTED DURING ASSESSMENT. AN ASSESSEE OFFERING ADDITIONAL INCOME DURING THE COURSE OF SURVEY IS NOT BOUND BY THE SAID OFFER FOR ALL TIMES TO COME ---- DURING SURVEY ASSESSES OFFERED AN ADDITIO NAL INCOME OF RS/- 25 LAC ON BEING POINTED BY THE SURVEY PARTY TH AT THERE WAS UNDER STATEMENT OF STOCK. ASSESSES DID NOT DECLARE SUCH INCOME IN THE IT RETURN A.O. MADE ADDITION OF RS. 25 LAC. NOT JUSTIFIED. 14. STATEMENT RECORDED DURING SURVEY IS NO EVIDENCE IT IS FURTHER SUBMITTED THAT THE LEARNED ASSESSING OFFICER HAS MADE ADDITION OF THE UNACCOUNTED STOCK WHICH IS TOTALLY BASED ON THE STATEMENT OF SHRI PRADEEP CHOUDHARY. IN THIS REGARD IT IS SUFFICIENT TO STATE THAT STATEMENT RECORDED U/S 133A IS NOT STATE MENT ON OATH AND IT HAS NO EVIDENTIARY VALUE. THEREFORE THE LEARNED ASS ESSING OFFICER WAS NOT JUSTIFIED IN MAKING ADDITION. THE FOLLOWING CAS E LAWS QUOTED IN SUPPORT (I) CIT VS. KADER KHAN SON 300 ITR 157 (MAD) SECTION 133A DOES NOT EMPOWER ANY ITO TO EXAMINE AN Y PERSON ON OATH. IN CONTRADISTINCTION TO THE POWER UNDER SE CTION 133A, SECTION 132(4) ENABLES THE AUTHORIZED OFFICER TO EX AMINE A PERSON ON OATH AND ANY STATEMENT MADE BY SUCH PERSON DURIN G SUCH EXAMINATION CAN ALSO BE USED IN EVIDENCE UNDER THE INCOME TAX ACT, 1961. ON THE OTHER HAND, WHATEVER STATEMENT IS RECORDED U/S ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 38 133A IS NOT GIVEN AN EVIDENTIARY VALUE. THE STATEME NT OBTAINED U/S 133A WOULD NOT AUTOMATICALLY BIND UPON THE ASSE SSEE. THEREFORE ADMISSION MADE DURING SUCH STATEMENT CANN OT BE MADE THE BASIS OF ANY ADDITION. (II) PAUL MATHEWS 263 ITR 101 (KER) WHATEVER STATEMENT RECORDED U/S 133A IS NOT GIVEN A NY EVIDENTIARY VALUE OBVIOUSLY FOR THE REASON THAT THE OFFICER IS NOT AUTHORIZED TO ADMINISTER OATH AND TO TAKE ANY SWORN IS STATEMENT WHICH ALONE HAS THE EVIDENTIARY VALUE AS CONTEMPLAT ED UNDER LAW. THEREFORE, THERE IS MUCH FORCE IN THE ARGUMENT THAT THE STATEMENT ELICITED DURING THE SURVEY OPERATION HAS NO EVIDENTIARY VALUE. 15. PRAYER: - IT IS SUBMITTED THAT THE AFORESAID FACTS AND DISCUS SION CLEARLY ESTABLISH THAT IT IS A CASE WHERE SURRENDER OF INCOME WAS OBT AINED UNDER THE GARB OF SURVEY. IN FACT NO GENUINE SURVEY WAS CONDUCTED VERIFYING THE BOOKS OF ACCOUNTS OR THE POSITION OF STOCK. IT IS BECAUSE OF THIS THAT THE MARBLE BLOCKS HAVE BEEN VALUED WITHOUT TAKING INTO CONSIDE RATION THERE WEIGHT AND THE PURCHASE COST. THE STOCK OF FIVE CONCERNS H AS BEEN INVENTORIZED AT ONE PLACE AND THEN FICTIONALLY BIFURCATED IN THE RESPECTED HANDS OF THE FIVE CONCERNS WITHOUT ANY BASIS. THE ASSESSEE DOES NOT KNOW ON WHAT BASIS THE STOCK ALLEGEDLY HELD BELONGING TO IT HAS BEEN APPORTIONED AT RS. 3,20,73,946/- PARTICULARLY THE MARBLE SLABS AND TILES COSTEDRS. 12.21 PER SQUARE FEET AS AGAINST RS. 30/- ADOPTED BY THE SURVEY TEAM WHILE VALUING THE STOCK. IN FACT THE ENTIRE EXERCISE OF V ALUATION OF STOCK IS FULL OF BLUNDERS AND IS NOT ACTIONABLE. NO ADDITION COUL D BE MADE ON THE BASIS OF SUCH VALUATION REPORT. THEREFORE IT IS PRA YED AND REQUESTED TO ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 39 DELETE THE ADDITION MADE BY THE LEARNED ASSESSING O FFICER AND ALLOW THE APPEAL OF THE ASSESSEE ON THIS ISSUE.' SIMILAR IDENTICAL SUBMISSIONS HAVE ALSO BEEN TAKEN BY THE LD AR OF THE ASSESSEES IN TWO OTHER APPEALS. 7. ON THE OTHER HAND, THE LD DR HAS VEHEMENTLY SUPP ORTED THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE APPE ALS HAVE NO MERIT AND MAY BE DISMISSED. 8. THE BENCH HAVE HEARD BOTH THE SIDES ON THIS ISSUE . A SURVEY U/S 133A WAS CONDUCTED ON THE ASSESSEE ALONGWITH OTHER CO NCERNS OF GROUP PARTNERS. THE EXCESS STOCK WORKED OUT BY THE SURVEY TEAM AND THE STOCK ADOPTED BY THE SURVEY TEAM AS PER BOOKS OF ACCOUNT ARE DISPUTED BY ASSESSEE. THE ASSESSEE CLAIMED THAT THE SURVEY TEAM ACTED IN AN ARBITRARY MANNER IN QUANTIFICATION AND VALUING THE STOCK AS ON THE DATE OF SURVEY AS WELL AS BIFURCATING THE SAME STOCKS TO VAR IOUS CONCERNS OF THE GROUP. THE ASSESSING OFFICER HAS ADOPTED THE SURVEY TEAMS REPORT AS THUMB RULE AND HAD NOT CONSIDERED THE DETAILED SUBM ISSIONS ON THE DEFECTIVENESS OF THE SURVEY TEAM REPORT WITH REGARD TO WORKING OUT OF THE STOCK ON THE DATE OF SURVEY. THE ASSESSING OFFIC ER AS WELL AS THE LD. CIT(A) ACTED ONLY ON THE BASIS OF STATEMENT OF SHRI PRADEEP CHOUDHARY, WHICH WAS RECORDED UNDER DURESS AND FORCE DURING THE SURVEY ACTION. ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 40 THE ASSESSEE SUBMITTED DOCUMENTARY EVIDENCE IN THE S HAPE OF BOOKS OF ACCOUNT, PURCHASE AND SALE VOUCHERS BUT THE AUTHORI TIES BELOW HAVE GIVEN MORE WEIGHTAGE TO THE STATEMENT OF SHRI PRADEE P CHOUDHARY RECORDED DURING SURVEY INSTEAD OF RELYING ON THE VA RIOUS DOCUMENTS IN THE SHAPE OF BOOKS OF ACCOUNT SUBMITTED BY THE ASSE SSEE. IN THE CASE OF PARAMJEET SINGH VS ITO (2010) 323 ITR 588 (P&H), THE HON'BLE HIGH COURT HAS RULED THAT NO ORAL EVIDENCE IS ADMISSIBLE ONCE THE DOCUMENTS CONTAIN ALL THE TERMS AND CONDITIONS. SECTIONS 91 A ND 92 OF THE INDIAN EVIDENCE ACT, 1872 INCORPORATE THE PRINCIPLE. THE IN VENTORY PREPARED BY THE SURVEY TEAM ALSO SHOWS THAT THE SIZE OF THE MARB LE BLOCKS (LAFERS) HAS BEEN ADOPTED ONLY ON AD HOC BASIS IN TWO SIZES A S BIG AND SMALL AND THE RATE HAS ALSO BEEN TAKEN ON AD HOC BASIS AT RS. 40,000/- AND RS. 26,000/- FOR BIG AND SMALL RESPECTIVELY. THE BLOCKS ARE PURCHASED IN WEIGHT NOT ON SIZE. SIMILARLY IN THE CASE OF GRANITE , THE BLOCKS HAVE BEEN CATEGORIZED AS BIG AND SMALL THE RATE HAS ALSO BEEN TAKEN ON AD HOC BASIS AT RS. 26,000/- AND RS. 20,000/- FOR BIG AND SMALL RESPECTIVELY. THUS, THE VALUATION OF THE MARBLE AND GRANITE BLOCKS HAVE BEEN DONE IN A VERY CASUAL AND AD HOC BASIS, THE SAME SHOULD HAVE BEEN DONE IN WEIGHTWISE FOR EACH BLOCKS OF BOTH MARBLE AND GRANITE AND ALSO TO CONSIDER THE QUALITY OF MARBLE AND GRANITE OF EACH BLOCK AS THERE IS WIDE VARIATION IN PRICE DUE TO VARIOUS REASONS LIKE COLO UR, DESIGN, PATTERNS ETC.. ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 41 IT IS A WELL KNOWN FACT THAT ALL THE BLOCKS CANNOT BE CATEGORIZED OF THE SAME QUALITY AND CANNOT BE VALUED AT THE SAME RATE. THUS, THE VALUATION PREPARED BY THE SURVEY TEAM DOES NOT CARRY WEIGHT AN D QUANTIFICATION OF THE VALUE OF THE STOCK ON THE DATE OF SURVEY. THUS, SUCH MAJOR DISCREPANCIES IN THE VALUATION OF MARBLE AND GRANIT E BLOCKS HAS RENDERED THE ENTIRE VALUATION DONE BY SURVEY TEAM AS A FARCE . NO ADDITION CAN BE SUSTAINED ON THE BASIS OF SUCH CASUAL VALUATION OF STOCK. AS PER BOOKS OF ACCOUNT, THE STOCK INVENTORY WAS FILED, WHICH IS PLA CED AT PAGE NO. 13 TO 124 OF THE PAPER BOOK AND THIS FACT HAS NOT BEEN CO NTROVERTED BY THE REVENUE. FURTHER THE BIFURCATION OF THE STOCK AMONG VARIOUS ENTITIES IS ALSO NOT BASED ON ANY CONCRETE EVIDENCE. THE STOCK S TATEMENT AS PER BOOKS TAKEN BY THE SURVEY TEAM IS ALSO NOT BASED ON ANY POSITIVE EVIDENCE. IT IS ALSO A FACT THAT THE COST OF THE GR ANITE BLOCK IN THE HANDS OF THE ASSESSEE WAS RS. 7295/- WHILE THE SURVEY HAS A DOPTED AT RS. 26,000/- PER BOOK WHICH ITSELF ESTABLISHES THAT THE SURVEY TEAM HAS WORKED OUT THE VALUATION STOCK COMPLETELY ON ARBITRA RILY BASIS. FURTHER WE ALSO HOLD THAT THE CASE LAWS RELIED UPON BY THE LD A R OF THE ASSESSEE I.E. THE HON'BLE SUPREME COURT IN THE CASE OF PULLAN GOD E RUBBER PRODUCE CO. LTD VS. STATE OF KERALA (1973)(91 ITR 18) HAS HE LD THAT AN ADMISSION IS AN EXTREMELY IMPORTANT PIECE OF EVIDENCE BUT IT CANNOT BE SAID THAT IT IS CONCLUSIVE. IT IS OPEN TO THE PERSON WHO MADE TH E ADMISSION TO SHOW ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 42 THAT IT IS INCORRECT. A STATEMENT SO MADE CANNOT BE THE END OF THE MATTER AND THE ASSESSING OFFICER WAS EXPECTED TO DIG OUT FR ESH FACTS AND CORROBORATE ITS FINDINGS. A STATEMENT RECORDED DURI NG THE COURSE OF SURVEY OPERATION CAN BE MADE THE BASIS OF ASSESSMEN T U/S 143(3) OF THE ACT ONLY IF IT IS LINKED TO POSITIVE EVIDENCES. SUR VEY IS ESSENTIALLY AN EVIDENCE GATHERING EXERCISE. A STATEMENT OF FACTS F OUND DURING THE SURVEY CAN BE RECORDED. A SURVEY PARTY CAN MAKE VOL UNTARY CONFESSION BASED ON RELIABLE EVIDENCES OF THE FACTS FOUND DURI NG THE SURVEY. IN THE PRESENT CASE, THE DECLARATION IS DEVOID OF ANY CRED IBLE/RELIABLE EVIDENCE OR MATERIAL AS THE INVENTORY PREPARED OF THE STOCK WAS ITSELF BASED ON PURE GUESS WORK WITH REGARD TO QUALITY, QUANTITY AND VALUE.. FOR CONSIDERING THE STATEMENT OF THE ASSESSEE AND THE R ATIO LAID DOWN BY THE VARIOUS COURTS IN VARIOUS CASE LAWS, WE FIND THAT NO ADDITION CAN BE SUSTAINED ONLY ON THE BASIS OF STATEMENT, WHICH IS N OT SUPPORTED BY ANY DOCUMENTARY OR CREDIBLE EVIDENCE. THE BOARD CIRCULA R REGARDING THE SURRENDER OF INCOME DURING THE SURVEY OPERATION ALS O SUPPORT THE CASE OF THE ASSESSEE, WHICH CLEARLY ADVISES THE OFFICIALS O F THE DEPARTMENT THAT THERE SHOULD BE FOCUS AND CONCENTRATION ON COLLECTI ON OF EVIDENCE OF INCOME, WHICH LEADS TO INFORMATION ON WHAT HAS NOT BE EN DISCLOSED OR IS NOT LIKELY TO BE DISCLOSED BEFORE THE INCOME TAX DEP ARTMENT. SIMILARLY, WHILE RECORDING STATEMENT DURING THE COURSE OF SEARC H AND SEIZURE AND ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 43 SURVEY OPERATIONS, NO ATTEMPT SHOULD BE MADE TO OBT AIN CONFESSION AS TO THE UNDISCLOSED INCOME. THE CBDT HAS ALSO REITERATED IN ITS LETTER TO ALL PRINCIPAL CHIEF COMMISSIONERS OF INCOME TAX, ALL CH IEF COMMISSIONERS OF INCOME TAX, ALL DIRECTORS GENERAL OF INCOME TAX, DI RECTOR GENERAL OF INCOME TAX (I&CI) REGARDING THE ADMISSIONS OF UNDIS CLOSED INCOME UNDER COERCION/PRESSURE DURING SEARCH/SURVEY IN ITS LETTE R DATED 09/01/2014 WHEREIN IT HAS BEEN CLEARLY STATED THAT INSTANCES/CO MPLAINTS OF UNDUE INFLUENCE/COERCION HAVE COME TO NOTICE OF THE CBDT T HAT SOME ASSESSEES WERE COERCED TO ADMIT UNDISCLOSED INCOME DURING THE SEARCHES/SURVEYS CONDUCTED BY THE DEPARTMENT. THE CBDT IS ALSO AWARE A BOUT THE FACT THAT SUCH ADMISSIONS ARE RETRACTED IN THE SUBSEQUEN T PROCEEDINGS SINCE THE SAME ARE NOT BACKED BY CREDIBLE EVIDENCE. THE CB DT IS ALSO AWARE ABOUT THE FACT THAT SUCH ACTIONS DEFEAT THE PURPOSE OF SEARCH/SURVEY OPERATIONS AS THEY FAIL TO BRING THE UNDISCLOSED IN COME TO TAX IS A SUSTAINABLE MANNER LEAVE ALONE LEVY OF PENALTY OR L AUNCHING OF PROSECUTION. THUS, SUCH CONFESSIONAL STATEMENTS NOT SUPPORTED BY CREDIBLE EVIDENCE CANNOT BE MADE BASIS TO MAKE AND SUSTAIN THE ADDITION. SUCH VIEW ALSO GETS SUPPORT FROM THE FOLLO WING CASE LAWS: (A) JAIN TRADING CO. VS ITO (2007) 17 SOT 574 (MUM) AN ASSESSEE WHO MAKES AN OFFER OF ADDITIONAL INCOME DURING COURSE OF AN ENQUIRY BY INCOME-TAX AUTHORITIES IS NOT BOUND BY H IS OFFER OF ADDITIONAL ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 44 INCOME FOR ALL TIME TO COME. BUT AT THE SAME TIME, THE BURDEN CAST UPON AN ASSESSEE, WHO CHOOSES TO RETRACT HIS EARLIER STATEM ENT, IS VERY HEAVY. IN THE INSTANT CASE, DURING THE COURSE OF ASSESSMENT PROCE EDINGS, THE ASSESSEE HAD COMPLETELY EXPLAINED ENTIRE BUSINESS TRANSACTIONS L EADING UP TO THE DATE OF SURVEY AND HAD GIVEN THE DETAILS OF ITS TRADING ACT IVITY. THUS, THE ASSESSEE HAD DEMONSTRATED THAT THE RATE OF GROSS PROFIT VARIED F ROM ITEM TO ITEM AND TRANSACTION TO TRANSACTION AND BY NO MEANS ANY PART ICULAR RATE OF GROSS PROFIT COULD BE CORRECTLY APPLIED SO AS TO WORK OUT THE VA LUE OF CLOSING STOCK AT ANY GIVEN DATE. FURTHER, IN THE ACCOUNT STATEMENTS, THE ASSESSEE HAD COLLATED EACH ITEM OF PURCHASE WITH CORRESPONDING ITEM OF SALE. O NCE EVERY PURCHASE WAS COLLATED WITH THE SALE THEREOF IN TERMS OF QUANTUM AS WELL AS VALUE, NO FURTHER BURDEN REMAINED TO BE DISCHARGED BY THE ASSESSEE, U NLESS ANY DISCREPANCY OR FALSITY WAS POINTED OUT IN SUCH COLLATION. THE ASSE SSING OFFICER HAD NOT RAISED EVEN A FINGER OF DOUBT AT THE ACCOUNT STATEMENT FUR NISHED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THAT B EING SO, THE ONLY COURSE OPEN TO THE ASSESSING OFFICER WAS TO ACCEPT THE DIS CLOSED TRADING RESULTS. THEREFORE, THE ASSESSEE HAD BEEN ABLE TO DISCHARGE THE HEAVY BURDEN THAT RESTED UPON HIM WHILE RETRACTING FROM OFFER OF ADDI TIONAL INCOME AT THE TIME OF SURVEY. EVEN AT THAT STAGE, THE CASE OF THE ASSESSE E WAS THAT THE OFFER WAS MADE TO BUY PEACE AND NOT BECAUSE OF ANY CONCEALMEN T OF INCOME OR DISCREPANCY IN ACCOUNTS DETECTED BY SURVEY PARTY. [ PARA 8] THEREFORE, THE ADDITION IN QUESTION MADE TO THE INC OME OF THE ASSESSEE WAS NOT JUSTIFIED AND WAS TO BE DELETED. [PARA 9] (B) CIT VS. KADER KHAN & SON 300 ITR 157 (MAD) AN ADMISSION IS EXTREMELY AN IMPORTANT PIECE OF EVI DENCE BUT IT CANNOT BE SAID THAT IT IS CONCLUSIVE; AND IT IS OPEN TO THE PERSON WHO MADE THE ADMISSION TO SHOW THAT IT IS INCORRECT. THE WORD 'MAY' USED IN SECTION 133A(3)(III ), VIZ., 'RECORD THE STATEMENT OF ANY PERSON WHICH MAY BE USEFUL FOR, OR RELEVANT TO, ANY PROCEEDING UNDER THIS ACT', MAKES IT CLEAR THAT THE MATERIALS COLLECTED AND THE STATEMENT RECORDED DURING THE SURVEY UNDER SECTION 133A ARE NOT CONCLUSIVE PI ECE OF EVIDENCE BY THEMSELVES. THE STATEMENT OBTAINED UNDER SECTION 13 3A WOULD NOT AUTOMATICALLY BIND UPON THE ASSESSEE. SECTION 133A DOES NOT EMPOWER ANY ITO TO EXAMINE AN Y PERSON ON OATH. IN CONTRADISTINCTION TO THE POWER UNDER SECTION 133A, SECTION 132(4) ENABLES THE AUTHORIZED OFFICER TO EXAMINE A PERSON ON OATH AND ANY STATEMENT MADE BY SUCH PERSON DURING SUCH EXAMINATION CAN ALSO BE USE D IN EVIDENCE UNDER THE INCOME-TAX ACT. ON THE OTHER HAND, WHATEVER STATEME NT IS RECORDED UNDER SECTION 133A IS NOT GIVEN AN EVIDENTIARY VALUE. THE STATEMENT OBTAINED UNDER SECTION 133A WOULD NOT AUTOMATICALLY BIND UPON THE ASSESSEE. ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 45 THEREFORE, ADMISSION MADE DURING SUCH STATEMENT CAN NOT BE MADE THE BASIS OF ANY ADMISSION. (C) PAUL MATHEWS & SONS VS CIT 263 ITR 101 (KER) SECTION 133A ENABLES THE INCOME-TAX AUTHORITY ONLY TO RECORD ANY STATEMENT OF ANY PERSON WHICH MAY BE USEFUL BUT DOES NOT AUTHORI SE FOR TAKING ANY SWORN IN STATEMENT. ON THE OTHER HAND, SUCH POWER TO EXAMINE A PERSON ON OATH IS SPECIFICALLY CONFERRED ON THE AUTHORISED OFFICER ON LY UNDER SECTION 132(4) IN THE COURSE OF ANY SEARCH OR SEIZURE. THUS, THE ACT WHEN EVER IT THOUGHT FIT AND NECESSARY TO CONFER SUCH POWER TO EXAMINE A PERSON ON OATH, THE SAME HAS BEEN EXPRESSLY PROVIDED WHEREAS SECTION 133A DOES N OT EMPOWER ANY ITO TO EXAMINE ANY PERSON ON OATH. IN CONTRADISTINCTION TO THE POWER UNDER SECTION 133A, SECTION 132(4) ENABLES THE AUTHORISED OFFICER TO EXAMINE A PERSON ON OATH AND ANY STATEMENT MADE BY SUCH PERSON DURING S UCH EXAMINATION CAN ALSO BE USED IN EVIDENCE UNDER THE ACT. ON THE OTHE R HAND, WHATEVER STATEMENT RECORDED UNDER SECTION 133A IS NOT GIVEN ANY EVIDENTIARY VALUE OBVIOUSLY FOR THE REASON THAT THE OFFICER IS AUTHOR ISED TO ADMINISTER OATH AND TO TAKE ANY SWORN IN STATEMENT WHICH ALONE HAS THE EVIDENTIARY VALUE AS CONTEMPLATED IN THE LAW. [PARA 11] IN THE INSTANT CASE, THE ITO HAD REFERRED TO THE FA CT THAT CONSEQUENT UPON THE SURVEY, THE ASSESSEE HAD FILED A REVISED RETURN OFF ERING 8 PER CENT OF THE CONTRACT RECEIPTS AS NET PROFIT BEFORE ALLOWING DED UCTION OF SALARY PAYMENT MADE TO PARTNERS. IT WAS ALSO FOUND THAT THE 8 PER CENT PROFIT DISCLOSED WAS DEEMED TO HAVE BEEN ARRIVED AT AFTER ALLOWING DEPRE CIATION AND INTEREST ON CAPITAL PAID TO THE PARTNERS. IT WAS FURTHER FOUND THAT THE ASSESSEE HAD NOT PAID THE AMOUNT OF ESI ON DUE DATE AND, ACCORDINGLY , THAT AMOUNT AND AMOUNT OF P.F. WERE DISALLOWED AND ADDED TO THE TOTAL INCO ME OF THE ASSESSEE. [PARA 17] IT COULD, THUS, BE SEEN THAT THE ITO HAD NOT ACCEPT ED THE INCOME DECLARED BY THE ASSESSEE IN A MECHANICAL WAY BUT APPLIED HIS MI ND TO THE VARIOUS ASPECTS OF THE MATTER BEFORE COMPLETING THE ASSESSMENT. IN THE STATEMENT IN THE COURSE OF SURVEY, THE MANAG ING PARTNER ONLY STATED THAT AN AMOUNT OF RS. 19 LAKHS WAS INTRODUCED TOWAR DS ADVANCE FOR SALE OF LAND BUT CONFIRMED ONLY SIX LAKHS. IT WAS ON THAT B ASIS THAT THE BALANCE OF RS. 13 LAKHS WAS OFFERED FOR THE ASSESSMENT YEAR 1998-9 9. THAT WAS CONFIRMED BY THE CREDITORS. THE INCOME-TAX OFFICER ALSO VERIFIED THE ABOVE ASPECTS. THEREFORE, THE ASSUMPTION THAT WHAT WAS OFFERED IN THE STATEMENT AS RS. 43 LAKHS WAS IN ADDITION TO WHAT HAD BEEN ASSESSED AND ON THAT BASIS, THAT STATEMENT HAD GOT EVIDENTIARY VALUE, WAS ERRONEOUS AND MATERIALS COLLECTED DURING THE COURSE OF SURVEY HAD BEEN BORNE IN MIND BY THE ASSESSING OFFICER ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 46 WHO WAS WELL AWARE OF THE EVIDENTIARY VALUE OF THE STATEMENT. AT THE SAME TIME, SUCH SURVEY CONDUCTED UNEARTHED CERTAIN INCOM E AND THE ITO ON THE BASIS OF ACCOUNTS AND OFFER MADE AND ADMISSION MADE BEFORE HIM, CAME TO THE CONCLUSION THAT WHAT WAS OFFERED IN THE WRITTEN OFF ER MADE BY THE ASSESSEE WAS REASONABLE. THE ALLEGED ADMISSION CONTAINED IN THE STATEMENT OF THE MANAGING PARTNER OF THE ASSESSEE OBTAINED UNDER SEC TION 133A WAS ONLY A QUALIFIED ONE AND THE ASSESSEE HAD CLEARLY EXPLAINE D THE SAME BEFORE THE ASSESSING OFFICER BY COGENT MATERIALS AND THE SAME WAS ACCEPTED BY THE SAID OFFICER. [PARA 18] THE VIEW TAKEN BY THE ITO COULD NOT BE SAID TO BE U NSUSTAINABLE IN LAW, SO AS TO CALL IT AN ORDER PASSED ERRONEOUSLY. THE ITO HAD SEIZED BOOKS OF ACCOUNT AND ELICITED CERTAIN ANSWERS WHICH HAD NO EVIDENTIARY V ALUE. THERE WERE CERTAIN OMISSIONS AND COMMISSIONS ON THE PART OF THE ASSESS EE AND THE ASSESSEE HAD VOLUNTARILY OFFERED CERTAIN AMOUNTS TO BE TREATED A S ADDITIONAL INCOME FOR THE ASSESSMENT YEAR IN QUESTION. BUT THE SAME HAD BEEN EXPLAINED BY THE ASSESSEE, WHICH EXPLANATION WAS ACCEPTED AFTER REFE RRING TO THE RECORDS AND THE ASSESSMENT ORDER PASSED. THE ITO WAS SATISFIED ABOUT THE ACTUAL AMOUNT RECEIVED TOWARDS ADVANCES AND ONLY AN AMOUNT OF RS. 6 LAKHS OUT OF THE BALANCE WAS TO BE FURTHER EXPLAINED AND THEY WERE T ELESCOPED. THE ENTIRE SUM OF RS. 19 LAKHS WAS CONSIDERED FOR THE BLOCK ASSESS MENT COMPLETED IN THE CASE OF THE CREDITOR MUCH BEFORE THE SURVEY. IN THOSE CI RCUMSTANCES, THE STATEMENT OF THE ASSESSEE THAT THE AMOUNT OF RS. 13 LAKHS OFF ERED BY HIM IN THE STATEMENT DURING THE COURSE OF SURVEY WAS ONLY A MI STAKE OF FACT, COULD NOT BE BRUSHED ASIDE. FURTHER, IN THE LIGHT OF THE VOLUNTA RY DISCLOSURE IN THE LETTER GIVEN IN WRITING BY THE ASSESSEE, THE FACTS GIVEN B Y HIM HAD BEEN VERIFIED WITH THE BOOKS OF ACCOUNT AND IT WAS ONLY AFTER CONSIDER ATION OF THE VARIOUS ASPECTS OF THE MATTER AND RELATED FACTS, THAT THE ASSESSING OFFICER ACCEPTED THE OFFER MADE BY THE ASSESSEE. IN SUCH CIRCUMSTANCES, THE VI EW TAKEN BY THE ITO COULD NOT BE SAID TO BE PREJUDICIAL TO THE REVENUE NOR CO ULD IT BE SAID TO BE ERRONEOUS. NOTHING WAS FOUND IN THE ORDER OF THE IT O TO WARRANT A FINDING THAT IT WAS UNSUSTAINABLE IN LAW. THE COMMISSIONER WAS N OT JUSTIFIED IN LAW IN INVOKING THE POWER UNDER SECTION 263 AS THE TWIN CO NDITIONS PRECEDENT TO EXERCISE THE POWER HAD NOT BEEN SATISFIED IN THE IN STANT CASE. BESIDES THE DECISION WAS ALSO ERRONEOUS. HENCE, THE ORDERS OF T HE TRIBUNAL AND THE COMMISSIONER WERE SET ASIDE AND THE ORDER OF THE IT O WAS CONFIRMED. [PARA 20] IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE ALLO W THE APPEAL OF THE ASSESSEE. ITA 867, 864 & 865/JP/2017_ M/S ASMI STONEX & ORS VS ITO & DCIT 47 9. ITA NO. 864/JP/2017 & 865/JP/2017 SINCE THE GROUNDS, FACTS AND SUBMISSIONS OF THESE APPEALS OF THE ASSESSEE ARE IDENTICAL TO THE FACTS, GROUNDS AND SU BMISSIONS OF ITA NO. 867/JP/2017, THEREFORE, SIMILAR IDENTICAL FINDINGS SHALL ALSO APPLY MUTATIS MUTANDIS IN THESE CASES ALSO AS GIVEN IN ITA NO. 87 6/JP/2017. 10. IN THE RESULT, ALL THE THREE APPEALS OF THE ASS ESSEES ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 05/03/2018. SD/- SD/- FOT; IKY JKO HKKXPAN (VIJAY PAL RAO) (BHAGCHAND) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 05 TH MARCH, 2018 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- (I) M/S ASMI STONEX, KISHANGARH. (II) SHRI ARIHANT CHOUDHARY, KISHANGARH. (III) SHRI TILAK CHOUDHARY, KISHANGARH. 2. IZR;FKHZ @ THE RESPONDENT- (I) THE ITO, WARD-1, KISHANGARH. (II) THE D.C.I.T., CIRCLE-1, AJMER. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 867, 864 & 865/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR