SMT. JAMUNA DEVI, Jaipur V. ACIT, BHARATPUR

ITA 926/JPR/2013

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5618 (ITAT-JAIPUR)
• Duration Of Justice: 3 year(s) 2 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 29-11-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA SINGH ACIT
• Keywords: Unexplained investment; Loose papers
• Section: 40A(3); 143(3); 133A

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YA DAV, AM VK;DJ VIHY LA- @ ITA NO. 926/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 SMT. JAMUNA DEVI, PROP. M/S NARANG STONES, BHARATPUR ROAD, MURRKI, BAYANA DISTRICT, BHARATPUR. CUKE VS. THE A.C.I.T., CIRCLE, BHARATPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AFQPD 3798 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MANISH AGARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAJENDRA SINGH (ACIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 09/01/2017 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 08/02/2017 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A) DATED 02.09.2013 FOR A.Y. 2008-09. THE GROUN DS OF APPEAL TAKEN BY THE ASSESSEE ARE AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) HAS GROSSLY ERRED IN SUSTAINING THE ADDITION OF RS. 2,92,706/- U/S 40A(3) OF THE INCOME TAX ACT, 1961 FOR MAKING THE P AYMENT IN CASH EXCEEDING RS.20,000/- WITHOUT APPRECIATING THE SUBMISSION MADE AND EVIDENCE ADDUCED. ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 2 1.1 THAT THE LD. CIT(A) HAS FURTHER ERRED IN NOT AP PRECIATING THE FACT THAT THE AFORESAID AMOUNT WAS PAID BY THE ASSESSEE ON DIFFERENT DATES UNDER UNAVOIDABLE CIRCUMSTANCE, COVERED UNDER RULE 6DD OF I.T. RULES, THUS ADDITION SUSTAINED BY THE LD. CIT( A) OF RS.2,92,706/- DESERVES TO BE DELETED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS GROSSLY ERRED IN MAKING AN ADDITION OF RS.4,14, 652/- BY APPLYING G.P. RATE 31% BEING THE GROSS PROFIT ON AL LEGED UNACCOUNTED SALE OF RS.13,37,586/- ARBITRARILY. 2.1 THAT THE LD. CIT(A) HAS FURTHER ERRED IN IGNORI NG THE FACT THAT ENTRIES NOTED IN LOOSE PAPERS AND SLIPS IMPOUNDED D URING THE COURSE OF SURVEY WERE ROUGH WORKING AND MEASUREMENT S NOT RELATED TO THE ACTUAL SALE MADE BY THE ASSESSEE AND ALL THE SALE PERTAINING TO LOOSE PAPERS WERE DULY RECORDED BY TH E ASSESSEE IN THE BOOKS OF ACCOUNTS, THUS ADDITION OF RS.4,14,652 /- SUSTAINED BY THE CIT(A) DESERVES TO BE DELETED. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS GROSSLY ERRED IN SUSTAINING THE ADDITION OF RS. 1,25,105/- [THOUGH TELESCOPED FROM ADDITION SUSTAINED ON ACCOU NT OF PROFIT ON UNACCOUNTED SALES] ON ACCOUNT OF UNEXPLAINED INV ESTMENT IN UNACCOUNTED PURCHASES, ARBITRARILY. 3.1 THAT THE LD. CIT(A) HAS FURTHER ERRED IN IGNORI NG THE FACT THAT ENTRIES NOTED IN LOOSE PAPERS, SLIPS IMPOUNDED DURI NG THE COURSE OF SURVEY WERE ONLY ROUGH ESTIMATE AND MEASUREMENTS AND ACTUAL PURCHASES NOTED ON LOOSE PAPER WERE DULY RECORDED I N THE BOOKS OF ACCOUNTS, THEREFORE, ADDITION OF RS.1,25,105/- A S SUSTAINED BY THE LD. CIT(A) DESERVES TO BE DELETED. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS GROSSLY ERRED IN MAKING THE ADDITION OF RS.61,8 73/- [THOUGH TELESCOPED FROM ADDITION SUSTAINED ON ACCOUNT OF PR OFIT ON UNACCOUNTED SALES] ON ACCOUNT OF STOCK ALLEGED AS F OUND EXCESS ARBITRARILY, THUS THE RESULTANT ADDITION DESERVES T O BE DELETED. ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 3 4.2 THAT THE LD. CIT(A) HAS FURTHER ERRED IN IGNORI NG THE FACT THAT VALUATION OF STOCK DONE BY THE DEPARTMENT DURING TH E COURSE OF SURVEY WAS ON HIGHER SIDE ON ESTIMATE BASIS WITHOUT CONSIDERING THE STOCK OF RED BLOCKS AND PINK BLOCKS SEPARATELY, THEREFORE, ADDITION SO SUSTAINED OF RS.61,873/- DESERVES TO BE DELETED. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE IS AN INDIVIDUAL AND PROPRIETOR OF M/S NARANG STONE WHICH IS ENGAGED INTO THE BUSINESS OF MANUFACTURING AND TRADING OF PILLARS & SLABS OF SAND STONES. FOR THE YEAR UNDER APPEAL, THE ASSESSEE FURNISHED HER RETUR N OF INCOME DECLARING TOTAL INCOME AT RS.4,29,320/-. THEREAFTER , A SURVEY U/S 133A OF THE INCOME TAX ACT, 1961 WAS CONDUCTED ON 18.03.200 8 AT THE BUSINESS PREMISES OF THE ASSESSEE. SUBSEQUENTLY, ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT AT A TOTAL INCOME OF RS.12,43,400 /- BY MAKING ADDITIONS TO THE TUNE OF RS.8,14,080/- ON VARIOUS C OUNTS. 2.1. AGAINST THE SAID ASSESSMENT ORDER, THE ASSESSE E PREFERRED AN APPEAL BEFORE THE LD. CIT(A) WHO VIDE HIS APPELLATE ORDER DATED 02.09.2013 PASSED IN APPEAL NO.309/10-11, PARTLY AL LOWED THE APPEAL OF ASSESSEE. THE FINAL OUTCOME AFTER THE ORDER OF LD. CIT(A) IS AS UNDER:- S. NO. PARTICULARS ADDITION MADE BY AO ADDITION DELETED BY CIT(A) ADDITION SUSTAINED BY CIT(A) ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 4 1. DISALLOWANCE U/S 40A(3) RS.2,92,706.00 NIL RS.2,92,706.00 2. TRADING ADDITION BEING GROSS PROFIT ON ALLEGED UNACCOUNTED SALES RS.3,34,397.00 NIL RS.4,14,652.00 (ENHANCED BY RS.80,255.00) 3. INVESTMENT IN UNACCOUNTED PURCHASES RS.1,25,105.00 RS.1,25,105.00 NIL 4. EXCESS STOCK RS.61,873.00 RS.61,873.00 NIL TOTAL RS.8,14,080.00 RS.1,86,978.00 RS.7,07,358.00 2.2. AGAINST THE ADDITIONS SO SUSTAINED BY THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THIS BENCH. 2.3 IN RESPECT OF GROUNDS OF APPEAL NOS. 01 TO 1.1, THE ASSESSEE HAS CHALLENGED THE ACTION OF LD. CIT(A) IN SUSTAINING T HE ADDITION OF RS.2,92,706/- MADE BY WAY OF DISALLOWANCE U/S 40A(3 ) OF THE INCOME TAX ACT, 1961. THE IMPUGNED ORDER OF LD. CIT(A) HAS BEEN CHALLENGED ON THE GROUND THAT THE LD. CIT(A) AS WELL AS AO BOT H FAILED TO APPRECIATE THE FACT THAT THE CASE OF ASSESSEE FALLS WITHIN THE EXCEPTIONAL CIRCUMSTANCES ENVISAGED UNDER RULE 6DD(G) & (J) OF INCOME TAX RULES, 1962. 2.4 BRIEF FACTS PERTAINING TO THESE GROUNDS OF APPE AL ARE THAT DURING THE YEAR UNDER APPEAL, THE ASSESSEE HAD PAID AN AMO UNT TOTALLING TO ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 5 RS.2,92,706/- IN CASH IN RESPECT OF THE PURCHASES M ADE BY ASSESSEE FROM M/S MAHALAXMI STONE, SARMATHURA ON FOUR DIFFER ENT DATES. THE DETAILS REGARDING SUCH CASH PAYMENTS IS AS UNDER: DATE NAME OF THE PARTY AMOUNT 14.12.2007 MAHALAXMI STONE, SARMATHURA RS. 61,342.0 0 14.12.2007 MAHALAXMI STONE, SARMATHURA RS. 65,452.0 0 25.12.2007 MAHALAXMI STONE, SARMATHURA RS. 79,392.0 0 29.01.2008 MAHALAXMI STONE, SARMATHURA RS. 86,250.0 0 TOTAL RS. 2,92,706.00 THESE CASH PAYMENTS TOTALLING TO RS.2,92,706/- WERE DISALLOWED BY LD. AO U/S 40A(3) OF THE ACT. HOWEVER, WHILE DOING SO, THE AO FAILED TO CONSIDER THE SUBMISSION OF ASSESSEE THAT, THE CASE OF ASSESSEE FALLS WITHIN THE EXCEPTIONAL CIRCUMSTANCES AS PROVIDED FO R UNDER RULE 6DD OF THE INCOME TAX RULES, 1962. 2.5 IN THIS REGARD, THE LD AR SUBMITTED THAT IT WAS EXPLAINED BEFORE THE LD. AO THAT, OUT OF THESE PAYMENTS, THE PAYMENT OF RS.79,392/- WAS MADE ON 25.12.2007 WHICH IS A PUBLIC HOLIDAY (CHRIS TMAS), BANKS WERE CLOSED ON THE SAID DATE AND THEREFORE, THE PAYMENT THROUGH CHEQUE WAS NOT POSSIBLE. ACCORDINGLY, THE CASE OF ASSESSEE WIT H RESPECT TO THE PAYMENT OF THIS AMOUNT OF RS.79,392/- IS COVERED UN DER RULE 6DD(J) OF THE INCOME TAX RULES, 1962. UPON BEING CONFRONTED W ITH THIS SUBMISSION, THE LD. CIT(A) REMANDED THE MATTER BACK TO THE FILE OF AO FOR MAKING VERIFICATION IN THIS REGARD AND IN THE R EMAND REPORT DATED ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 6 11.06.2013, THE LD. AO HAS CLEARLY RECOMMENDED THAT , THIS PAYMENT OF RS.79,392/- CANNOT BE DISALLOWED U/S 40A(3) IN AS M UCH AS THE SAME IS COVERED BY RULE 6DD(J) OF THE INCOME TAX RULES, 196 2, RELEVANT PORTION OF THE REMAND REPORT HAS BEEN REPRODUCED AT PAGES 4 -5 OF THE APPELLATE ORDER OF LD. CIT(A) FROM A PERUSAL OF WHICH, IT WOU LD BE CLEAR THAT THERE REMAINED NO DISPUTE WITH REGARD TO THE PAYMENT OF R S.79,392/- AS THE LD. AO HIMSELF HAS RECOMMENDED IN THE REMAND REPORT THE RELIEF TO SUCH EXTENT MAY BE ALLOWED. NEVERTHELESS, IN SPITE OF BE ING SO, THE LD. CIT(A) HAS NOT ALLOWED ANY RELIEF EVEN ON THIS ACCOUNT AND HAS UPHELD THE ENTIRE ADDITION OF RS.2,92,706/- WITHOUT ANY BASIS. THEREFORE, THIS ACTION OF LD. CIT(A) DESERVES TO BE HELD BAD IN LAW AND TH E RESPECTIVE ADDITION TO THE EXTENT OF RS.79392/- DESERVES TO BE DELETED. 2.6 WITH REGARD TO THE REMAINING PAYMENTS TOTALLING TO RS.2,13,314/- (2,92,706 79,392), THE LD AR SUBMITTED THAT, THOS E PAYMENTS ARE COVERED UNDER CLAUSE (G) OF RULE 6DD OF THE INCOME TAX RULES, 1962 ACCORDING TO WHICH, IF THE CASH PAYMENT EXCEEDING R S.20,000/- IS MADE IN A VILLAGE OR TOWN, WHICH ON THE DATE OF SUCH PAY MENT IS NOT SERVED BY ANY BANK, TO ANY PERSON WHO ORDINARILY RESIDES OR C ARRIES ON ANY BUSINESS IN SUCH VILLAGE OR TOWN, THEN SUCH PAYMENT SHALL BE OUT OF THE PURVIEW OF SECTION 40A(3) AND CANNOT BE DISALLOWED UNDER THE SAID SECTION. 2.7 IN THIS REGARD IT WAS FURTHER SUBMITTED THAT TH E ASSESSEE HAD MADE THESE PAYMENTS IN CASH TO A DEALER NAMED M/S M AHALAXMI STONES IN AUCTION IN OPEN MARKET. AS PER USUAL PRACTICE, T HE AUCTION PROCESS IS COMPLETED IN THE EVENINGS, AND PARTICULARLY SO ON T HE DATES MENTIONED ABOVE, THE AUCTIONS WERE FINALIZED IN THE EVENINGS ONLY AND AS PER THE ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 7 TERMS OF THE CONTRACT, THE AMOUNT HAD TO BE PAID IN THE SAME DAY. IT IS SUBMITTED HERE THAT, AT THE RELEVANT TIME. I.E. THE DATE OF MAKING THESE PAYMENTS, THERE WAS NO EVENING BRANCH OF ANY BANK A T BAYANA SO THAT NO PAYMENT COULD BE DEPOSITED DIRECTLY IN THE BANK ACCOUNT OF THE PARTY AND IT HAS TO BE MADE IN CASH ONLY. IN SUPPORT OF T HIS STATEMENT, THE ASSESSEE HAD ALSO FURNISHED HER AFFIDAVIT DURING TH E COURSE OF APPELLATE PROCEEDINGS WHICH REMAINED UNCONTROVERTED. THEREFOR E, IT IS SUBMITTED THAT THE CASE OF ASSESSEE IS COMPLETELY COVERED BY RULE 6DD(G) OF THE INCOME TAX RULES, 1962. 2.8 IT WAS FURTHER SUBMITTED THAT DURING THE COURSE OF APPELLATE PROCEEDINGS, UPON SUBMISSION OF AFFIDAVIT OF ASSESS EE, THE MATTER WAS REFERRED TO THE AO FOR HIS COMMENTS THEREUPON WHO S UBMITTED HIS REPORT ON 11.06.2013 AND THE SOLE OBJECTION RAISED BY HIM THEREIN WAS THAT, THE CONTENTION REGARDING NO EVENING BRANCH OF BANK AT BAYANA IS NOT ACCEPTABLE BECAUSE IT IS STORY AFTER THOUGHT TO AVO ID TAX LIABILITY . APART FROM THIS, THE LD. AO HAS NOT RAISED ANY OTHER OBJE CTION. 2.9 IN THIS REGARD, IT WAS FURTHER SUBMITTED THAT, AT THE RELEVANT TIME IN THE YEAR 2007 WHEN THESE PAYMENTS WERE MADE, THE RE EXISTED NO EVENING BANK BRANCH AND IN VIEW OF THE URGENCY TO M AKE PAYMENT AT THE SPOT RIGHT THEN, THE ASSESSEE WAS GENUINELY PRECLUD ED FROM MAKING PAYMENT OTHERWISE THAN IN CASH. IT MUST BE NOTED TH AT, THE LD. AO HAS REFRAINED FROM BOTHERING TO MAKING THE NECESSARY IN QUIRY REGARDING THE FACT OF AVAILABILITY OF EVENING BANK BRANCHES IN BA YANA, BUT HAS STRAIGHTAWAY PROCEEDED TO DENY THIS FACT. THE LD. A O HAS DENIED THE SUBMISSION OF ASSESSEE AND AFFIDAVIT SUBMITTED BY H ER, HENCE THE ONUS WAS ON THE LD. AO TO MAKE THE NECESSARY ENQUIRY IN ORDER TO FIND OUT ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 8 WHETHER THERE WAS ANY EVENING BANK BRANCH AVAILABLE IN BAYANA OR NOT. HERE, IT MAY BE MENTIONED THAT, THE ONUS WAS NOT ON THE ASSESSEE BECAUSE A NEGATIVE FACT CANNOT BE PROVED BY POSITIV E EVIDENCE AND THERE EXISTS NO SUCH THING AS NEGATIVE EVIDENCE. HOWEVER, THE ASSESSEE HAS MADE AVERMENTS IN THE AFFIDAVITS REGARDING NON-AVAI LABILITY OF EVENING BANK BRANCH AT BAYANA. NOW, IT WAS THE DUTY OF THE LD. AO TO CONDUCT NECESSARY ENQUIRY SO AS TO SATISFY HIMSELF BEFORE R EACHING ANY CONCLUSION, WHICH THE LD. AO HAS REFRAINED FROM UND ERTAKING. THEREFORE, THE ACTION OF LD. AO IN DISCARDING THE E XPLANATION / SUBMISSION OF ASSESSEE MERELY ON THE BASIS OF ASSUM PTIONS AND PRESUMPTIONS AND WITHOUT CONDUCTING THE NECESSARY I NQUIRIES DESERVES TO BE HELD BAD IN LAW AND THE ADDITION OF RS.2,92,7 06/- DESERVES TO BE DELETED. 2.10 THE RELEVANT FINDING OF THE CIT(A) IS REPRODUC ED WHICH IS AS UNDER: 4.5 I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE AR AND THE REPORT SUBMITTED BY THE AO AND FIND THAT THE APPELLANT HAS MADE PAYMENTS OF RS.2,92,706/- TO M/S MAHA LAXMI STONE, SARMATHURA O N VARIOUS DATES DURING THE YEAR UNDER CONSIDERATION. THE APPELLANT HAS BEEN MAKING REGULAR PURCHASES FROM THIS PARTY DURING THE YEAR A S MAY BE SEEN FROM THE DETAILS GIVEN ABOVE. THIS SELLER IS ENGAGED IN A REGULAR BUSINESS AND IS ASSESSED TO TAX IN WARD-3, BHARATPUR, THEREFORE, THE ARGUMENT THAT CAS H PAYMENT WAS MADE TO A VILLAGER OR DURING AN AUCTION DOES NOT HO LD GOOD IN THE CASE OF A PERSON WITH WHOM THE APPELLANT HAS REGULAR BUSINE SS DEALINGS. FURTHER ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 9 BOTH ARE BUSINESS UNITS FUNCTIONAL IN AN AREA WHERE AMPLE BANKING FACILITIES ARE AVAILABLE. THE AO IN HIS REMAND REPO RT HAS STATED THAT ONLY ONE PAYMENT OF RS.79,392/- MADE ON 25 TH DECEMBER, 2007 MAY BE ALLOWED AS A DEDUCTION ON ACCOUNT OF BANKS BEING CL OSED DUE TO CHRISTMAS HOLIDAY. I DO NOT FIND FORCE IN THE SAID ARGUMENT, SINCE IT IS NOT A CASE, WHERE THERE HAD BEEN NO TRANSACTIONS WITH T HE SELLER IN THE PAST, NOR IT IS A CASE OF ANY COMPELLING CIRCUMSTANCE, WH ICH REQUIRED CASH PAYMENT. THE APPELLANT HAS FAILED TO BRING ON RECOR D ANY EVIDENCE TO JUSTIFY SUCH PAYMENTS MADE IN CASH. TO SUPPORT THIS , I RELY ON THE FOLLOWING JUDGMENTS OF THE HONBLE ALLAHABAD HIGH C OURT, IN THE CASE OF EVERSHINE PLATERES VS. CIT 295 ITR 349; AND OF THE HONBLE KERLA HIGH COURT IN THE CASE OF SILK FEB EXPORTS VS. CIT 295 I TR 0123; AND OF HONBLE KALKATTA HIGH COURT IN THE CASE OF CIT VS. HIMACHAL TEREPENE PRODUCTS PVT. LTD. 269 ITR 538; AND OF HONBLE HIMA CHAL PRADESH HIGH COURT IN CASE OF CIT VS. DALIP CHAND AND SONS 301 I TR 276 WHERE IT WAS HELD THAT PAYMENTS IN CASH WHERE BANKING FACILITY A RE AVAILABLE, DISALLOWANCE U/S 40A(3) IS JUSTIFIED. FURTHER, IT H AS BEEN HELD THAT THE ONUS IS ON ASSESSEE TO PROVE THE EXISTENCE OF EXCEP TIONAL CIRCUMSTANCES. 4.6 THUS, THE PAYMENTS MADE IN CASH BY THE APPELLA NT DURING THE YEAR ARE NOT JUSTIFIED AND HENCE THE ADDITION OF RS.2,92 ,706/- MADE BY THE AO U/S 40A(3) IS CONFIRMED. 3. IN GROUNDS OF APPEAL NOS. 02 & 2.1, THE ASSESSEE HAS CHALLENGED THE ENHANCED ADDITION OF RS.4,14,652/- SUSTAINED BY THE LD. CIT(A) ON ACCOUNT OF ALLEGED UNACCOUNTED SALES AS AGAINST THE ADDITION OF RS.3,34,397/- MADE BY THE AO. ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 10 3.1. BRIEF FACTS PERTAINING TO THESE GROUNDS OF APP EAL ARE THAT DURING THE COURSE OF SURVEY, CERTAIN LOOSE PAPERS WERE FOU ND AND WERE IMPOUNDED. THE AO REFERRED TO THESE PAPERS AND STAT ED THAT THE JOTTINGS ON THESE PAPERS REFLECT THE UNACCOUNTED SALES MADE BY THE ASSESSEE. THE DETAILS PERTAIN TO THESE PAPERS HAVE BEEN MENTI ONED AT PAGE 4 OF THE ASSESSMENT ORDER. BEFORE THE AO, IT WAS EXPLAIN ED BY ASSESSEE THAT NONE OF THESE PAPERS RECORDED ANY ACTUAL TRANSACTIO N AND THAT THEY CONTAIN MERE ROUGH WORKINGS AND ESTIMATIONS. HOWEVE R, THE CONTENTION OF THE ASSESSEE WAS REJECTED AND BASIS SUCH PAPERS, THE AO DETERMINED UNACCOUNTED SALES AND APPLIED A GP RATE OF 25% AND MADE THE ADDITION OF RS.3,34,397/-. 3.2 BEFORE THE LD. CIT(A), IT WAS SUBMITTED BY THE ASSESSEE THAT THE LOOSE PAPERS SO FOUND DURING THE COURSE OF SURVEY D ID NOT RECORD ANY ACTUAL TRANSACTION, BUT WERE MERE ROUGH WORKING AND CALCULATIONS. THE LD. CIT(A) THEN REFERRED THE MATTER TO THE AO FOR E XAMINATION OF THE CONTENTIONS OF ASSESSEE. ACCORDINGLY, THE AO SUBMIT TED HIS REMAND REPORT DATED 11.06.2013 (APB 15-20) WHICH WAS TAKEN INTO CONSIDERATION BY THE LD. CIT(A) AND ON THE BASIS OF FINDINGS MADE IN THE REMAND REPORT, THE LD. CIT(A) DECIDED THIS ISSUE AGAINST T HE ASSESSEE. 3.3. IN THIS REGARD, THE LD AR SUBMITTED THAT WITH REGARD TO THE ALLEGED UNACCOUNTED SALE OF RS.67,200/- [ANNEXURE 4, PAGE N O. 111] IT WAS SUBMITTED BEFORE THE LD. AO AS WELL AS LD. CIT(A) T HAT THE FIGURE OF RS.89,475/- WAS ONLY A ROUGH ESTIMATE AND THE ACTUA L SALE WAS MADE ONLY OF RS.22,275/- OUT OF THE ABOVE ROUGH ESTIMATI ON AGAINST WHICH, BILL NO. 556 DATED 15.03.2008 WAS ISSUED, COPY OF WHICH WAS ALREADY SUBMITTED BEFORE THE LD. AO DURING THE COURSE OF AS SESSMENT. THIS SALE ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 11 OF RS.22,275/- WAS DULY RECORDED BY ASSESSEE IN THE BOOKS OF ACCOUNT. NO SALE TO THE TUNE OF RS.89,475/- WAS EXECUTED BY THE ASSESSEE, HOWEVER, THE LD. AO HAS TREATED THE SAME AS UNACCOU NTED SALE WITHOUT ANY BASIS AND WITHOUT ESTABLISHING THE EXECUTION OF SALE, THE BURDEN OF PROVING WHICH WAS ON THE LD. AO. 3.4 WITH REGARD TO THE ALLEGED UNACCOUNTED SALE OF RS.2,85,114/-, THE LD AR SUBMITTED THAT THERE WAS A ROUGH ESTIMATE OF RS.10,62,420/- MENTIONED ON A PAPER, OUT OF WHICH THERE WAS JOB WO RK WORTH RS.7,79,306/- WHICH WAS DULY RECORDED BY ASSESSEE I N THE BOOKS OF ACCOUNT AS MENTIONED IN PARA 3 OF PAGE 8 OF THE ASS ESSMENT ORDER. HOWEVER, THE LD. AO TREATED THIS ENTIRE AMOUNT OF R S.10,64,420/- AS THE AMOUNT OF ACTUAL SALE / JOB WORK. WITH REGARD TO TH E DIFFERENCE AMOUNT OF RS.2,85,114/- IT WAS SUBMITTED BEFORE THE LD. AO AS WELL AS LD. CIT(A) THAT THE SAME IS MERE ROUGH CALCULATION AND CANNOT BE TREATED AS ACTUAL SALE. 3.5 WITH REGARD TO THE OTHER ALLEGED SALES OF RS.6, 54,802/-, RS.38,876/-, RS.1,03,669/-, IT WAS FURTHER SUBMITTE D THAT THESE WERE MERE ROUGH ESTIMATE, WHICH HAS BEEN TREATED BY THE LD. AO AS ACTUAL SALE WITHOUT ESTABLISHING THE SAME AND MERELY ON TH E BASIS OF ASSUMPTIONS AND PRESUMPTIONS. 3.6 IT WAS FURTHER SUBMITTED THAT THE BURDEN OF PRO VING THE FACT OF EXECUTION OF UNACCOUNTED SALES WAS ON THE LD. AO WH ICH HE HAS FAILED TO DISCHARGE AND WITHOUT PROVING WHICH, NO ADDITION ON ACCOUNT OF UNACCOUNTED SALES CAN BE MADE. IN THIS REGARD RELIA NCE IS PLACED ON ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 12 ORDER OF HONBLE ITAT IN THE CASE OF MAHAVIR PRASAD CHOUDHARY VS. ITO (ITAT JODHPUR) (XLII TW 98). THEREFORE, IN VIEW OF THE ABOVE IT IS HUMBLY PRAYED THAT THE ADDITION OF RS.4,14,652/- BEING G.P. RATE @ 31% ON THE ALLEGED UNDISCLOSED SALES OF RS.13,37,586/- SUSTAINED BY THE LD. CIT(A) MAY PLEA SE BE DIRECTED TO BE DELETED. 3.7 FURTHER, WITHOUT PREJUDICE TO ABOVE AND IN THE ALTERNATIVE, IT WAS FURTHER SUBMITTED THAT THE LD. CIT(A) HAS GROSSLY E RRED IN ENHANCING THE APPLICATION OF THE PROFIT RATE AT 31% IN PLACE OF 2 5% APPLIED BY THE LD. AO. IN THIS REGARD, IT IS SUBMITTED THAT THE LD. CI T(A) HAS UNILATERALLY AND ON HIS OWN APPLIED THIS PROFIT RATE WITHOUT APP RECIATING THE FACT THAT ASSESSEE HAS DISPUTED THE APPLICATION G.P. RATE AND REQUESTED FOR APPLICATION OF N.P. RATE AND NEVER CHALLENGED THE A PPLICATION OF AVERAGE GP RATE APPLIED BY THE LD. AO. IT IS SUBMITTED THAT THE LD. AO WAS QUITE JUSTIFIED IN APPLYING THE PROFIT RATE OF 25% BY TAK ING THE AVERAGE PROFIT RATE OF THE PAST THREE ASSESSMENT YEARS, HOWEVER TH E LD. CIT(A) HAS WRONGLY DISTURBED THIS RATE BY APPLYING THE PROFIT RATE @ 31%. THUS, IN THE ALTERNATIVE IT IS PRAYED THAT THE ACTI ON OF LD. CIT(A) IN APPLYING THE PROFIT RATE OF 31% MAY PLEASE BE DECLA RED BAD IN LAW AND THE PROFIT RATE AS APPLIED BY THE LD. AO @ 25% BE U PHELD. 3.8 THE RELEVANT FINDING OF THE CIT(A) IS REPRODUCE D WHICH IS AS UNDER: ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 13 5.5 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MA DE BY THE AR AND THE REMAND REPORT FURNISHED BY THE AO. IT IS SEEN T HAT AO HAD WORKED OUT THE TOTAL UNACCOUNTED SALES AT RS.21,58,227/- A ND AFTER VERIFICATION OF IMPOUNDED BOOKS OF ACCOUNTS, DIARY, LOOSE PAPERS ETC. WHICH WERE MARKED AS ANNEXURE A-4, A-13, A-19, A-24 & A-25, FO UND THAT ONLY SALES OF RS.41,335/- AND JOB WORK RECEIPTS OF RS.7,79,306 /- HAS BEEN RECORDED IN THE BOOKS OF ACCOUNTS. PAPER-WISE DETAILS OF COM PUTATION OF UNRECORDED SALES HAVE BEEN GIVEN IN THE REMAND REPO RT OF THE AO AND ALSO ELABORATELY DISCUSSED ON PAGES-4 TO 10, IN THE ASSESSMENT ORDER. THE AO HAS WORKED OUT THE UNACCOUNTED SALES AT RS.1 3,37,586/- IN THE REMAND REPORT AFTER GIVING A CREDIT OF RS.41,335/- AND RS.7,79,306/- TO THE APPELLANT. THE APPELLANT HAS NOT BEEN ABLE TO C ONTROVERT THE FINDINGS OF THE AO AND HAS MERELY STATED THAT THESE PAPERS R EFLECT THE ESTIMATE MADE AND DO NOT SHOW THE ACTUAL SALES. THERE IS NO SUBSTANCE IN THE ARGUMENTS GIVEN BY THE APPELLANT AS THE IMPOUNDED P APERS CLEARLY SHOW THE QUANTITY OF THE MATERIALS, RATE, DATE AND NAME OF THE PARTY. FURTHER, THE AO HAD ALSO GIVEN CREDIT FOR THE JOB WORK DONE BY THE APPELLANT AND WHICH WAS FOUND RECORDED IN THE REGULAR BOOKS OF AC COUNTS. THE ARGUMENTS GIVEN BY THE APPELLANT ARE REPETITIVE AND HAVE ALREADY BEEN CONSIDERED BY THE AO AT THE ASSESSMENT STAGE AS WEL L AS AT THE APPELLATE STAGE, WHILE FURNISHING THE REMAND REPORT. ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 14 5.6 THUS, I CONFIRM THE UNACCOUNTED SALES AT RS.13 ,37,586/- AS WORKED OUT BY THE AO IN HIS REMAND REPORT. HOWEVER, WHILE MAKING THE TRADING ADDITION THE AO APPLIED THE AVERAGE GP RATE FOR THE LAST 3 YEARS (FOR FY 2005-06 TO FY 2007-08 OF 25%). I DO NOT AGR EE WITH THE AVERAGE RATE ADOPTED BY THE AO, WHILE WORKING OUT THE PROFI T EARNED ON UNACCOUNTED SALES. THE RATE OF GP DECLARED BY THE A PPELLANT FOR THE PERIOD UNDER CONSIDERATION SHOULD BE ADOPTED, WHILE WORKING OUT THE PROFIT ON UNACCOUNTED SALES AND THIS FACT HAS ALSO BEEN POINTED OUT BY THE AO IN HIS REMAND REPORT. THE APPELLANT IN THE C OUNTER COMMENTS ON REMAND REPORT DID NOT OFFER ANY EXPLANATION ON THIS POINT. HOWEVER, THIS ISSUE WAS DISCUSSED WITH THE AR DURING THE APPELLAT E PROCEEDINGS AND IT WAS FAIRLY CONCEDED BY HIM. THE GP RATE DECLARED BY THE APPELLANT FOR FY 2007-08 IS 31% AND IF APPLIED ON SALES OF RS.13,37, 586/-, IT GIVES A PROFIT OF RS.4,14,652/-. ACCORDINGLY, I ENHANCE THE ADDITION MADE ON ACCOUNT OF PROFIT EARNED ON UNACCOUNTED SALES FROM RS.3,34,397/- TO RS.4,14,652/- UNDER THIS HEAD. 4. IN RESPECT OF GROUNDS OF APPEAL NOS. 03 & 3.1, T HE ASSESSEE HAS CHALLENGED THE ACTION OF LD. CIT(A) IN SUSTAINING T HE ADDITION OF RS.1,25,105/- MADE BY LD. AO ON ACCOUNT OF ALLEGED UNEXPLAINED INVESTMENT IN UNACCOUNTED PURCHASES, THOUGH TELESCO PED WITH THE ADDITION MADE ON ACCOUNT OF ALLEGED UNACCOUNTED SAL ES. ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 15 4.1. THE LD AR SUBMITTED THAT ON THE BASIS OF THE L OOSE PAPERS IN ANNEXURE A-19, THE AO ALLEGED THAT THE ASSESSEE HAS MADE PURCHASES OF RS.1,25,105/- WHICH HAVE NOT BEEN RECORDED IN THE BOOKS OF ACCOUNT. IN THIS REGARD, IT WAS SUBMITTED BY THE ASSESSEE BEFOR E THE LD. AO THAT THESE PAPERS ONLY CONTAINED THE RECORD OF SIZES AND ROUGH CALCULATIONS AND DID NOT REFLECT ANY PURCHASE OR SALE BY ASSESSE E. IT WAS FURTHER CONTENDED THAT SINCE ADDITION ON ACCOUNT OF UNACCOU NTED SALE HAS ALREADY BEEN MADE, NO FURTHER ADDITION ON ACCOUNT O F UNACCOUNTED PURCHASES CAN BE MADE AS THE SAME WOULD AMOUNT TO D OUBLE ADDITION. HOWEVER, THE AO DID NOT CONSIDER THE CONTENTION OF THE ASSESSEE AND TREATED THE ENTIRE AMOUNT OF RS.1,25,105/- AS UNACC OUNTED PURCHASES. BEFORE THE LD. CIT(A), THE ABOVE SAID CONTENTION WA S REITERATED, HOWEVER THE SAME WAS NOT CONSIDERED. HOWEVER, THE A LTERNATIVE SUBMISSION OF ASSESSEE FOR ALLOWING TELESCOPING OF THIS ADDITION WITH THE ADDITION MADE ON ACCOUNT OF ALLEGED UNACCOUNTED SAL ES WAS ACCEPTED BY THE LD. CIT(A) AND THE TELESCOPING WAS ALLOWED ACCO RDINGLY. THUS, IN VIEW OF THE ABOVE, IT IS SUBMITTED THAT SI NCE THE AMOUNT OF RS.1,25,105/- DID NOT CONTAIN ANY ACTUAL AMOUNT OF PURCHASE, BUT WAS MERE ESTIMATE AND ROUGH CALCULATIONS, THE ACTION OF LD. CIT(A) IN SUSTAINING THE ADDITION IS CLEARLY BAD IN LAW AND T HUS THE SAME DESERVES TO BE DELETED. 4.2 THE RELEVANT FINDING OF THE LD CIT(A) IS REPROD UCED AS UNDER: 6.7 I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE APPELLANT AND HAVE ALSO GONE THROUGH THE JUDGMENT OF THE HONBLE ITAT JAIPUR AND FIND THAT THERE IS FORCE IN THE CONTENTION RAISED B Y THE APPELLANT. ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 16 HOWEVER, AS REGARDS THE ISSUE OF GIVING CREDIT FOR THE SAME AGAINST THE ADDITION MADE ON ACCOUNT OF PROFIT ON UNACCOUNTED S ALES IS CONCERNED, THERE HAS TO BE CORRELATION BETWEEN THE QUANTUM OF ADDITION MADE ON ACCOUNT OF PROFIT EARNED ON UNACCOUNTED SALES AND T HE INVESTMENT IN UNACCOUNTED PURCHASES. THE HONBLE ITAT JAIPUR HAS HELD IN THE ABOVE MENTIONED CASE THAT NO SEPARATE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT OF RS.23,600/- IS REQUIRED TO BE MADE AN D THE BENEFIT OF TELESCOPING MAY BE GIVEN AGAINST THE ADDITION OF RS .54,789/- MADE ON ACCOUNT OF GROSS PROFIT ON UNACCOUNTED SALES. 6.8 FOLLOWING THE RATIO OF THE DECISION, I HOLD TH AT THE BENEFIT OF TELESCOPING MAY BE GIVEN TO THE APPELLANT IN THIS C ASE, AS REGARDS THE ADDITION OF RS.1,25,105/- ON ACCOUNT OF UNACCOUNTED PURCHASES IS CONCERNED AS A TRADING ADDITION OF RS.4,14,652/- ON ACCOUNT OF GROSS PROFIT EARNED ON UNACCOUNTED SALES HAS ALREADY BEEN CONFIRMED ABOVE. THUS, THERE WOULD BE NO SEPARATE ADDITION OF RS.1,2 5,105/- ON ACCOUNT OF UNACCOUNTED PURCHASES. 5. IN RESPECT OF GROUNDS OF APPEAL NOS. 4 AND 4.1, THE ASSESSEE HAS CHALLENGED THE ACTION OF LD. CIT(A) IN SUSTAINING T HE ADDITION OF RS.61,873/- MADE BY LD. AO ON ACCOUNT OF ALLEGED UN ACCOUNTED INVESTMENT IN EXCESS STOCK, THOUGH TELESCOPED WITH THE ADDITION MADE ON ACCOUNT OF ALLEGED UNACCOUNTED SALES. 5.1 THE LD AR SUBMITTED THAT AT THE TIME OF PHYSICA L VERIFICATION OF STOCK DURING THE COURSE OF SURVEY, IT WAS TAKEN AT RS.8,65,436/- AND AS PER BOOKS OF ACCOUNT, THE STOCK WAS SHOWN AT RS.8,0 3,563/-, THUS IT WAS ALLEGED THAT THERE WAS EXCESS STOCK OF RS.61,873/- , WHICH ADDITION WAS SUSTAINED BY THE LD. CIT(A), THOUGH TELESCOPING OF THE SAME WAS ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 17 ALLOWED WITH THE ADDITION MADE ON ACCOUNT OF ALLEGE D UNACCOUNTED SALES. 5.2 IN THIS REGARD, IT WAS SUBMITTED THAT THE REASO N FOR DIFFERENCE IN STOCK IS THAT SOME RED BLOCKS OF STONES HAD BEEN CO NSIDERED AS PINK STONE BLOCKS AND THE RATE OF PINK BLOCKS I.E. 140 P ER CFT WAS TAKEN INSTEAD OF 70 PER CFT FOR THE RED BLOCKS. THUS, THE RE WAS A HUGE DIFFERENCE IN THE RATES OF PINK BLOCKS OF STONE AND THE RED BLOCKS OF STONES. HOWEVER, WHILE TAKING STOCK AT THE TIME OF PHYSICAL SURVEY, THIS DIFFERENCE WAS NOT CONSIDERED AT ALL AND THIS RESUL TED IN DIFFERENCE IN STOCK. THUS, IN VIEW OF THE ABOVE IT IS SUBMITTED T HAT THE ADDITION OF RS.61,873/- DESERVES TO BE DELETED. 5.3 THE RELEVANT FINDING OF THE LD CIT(A) IS REPROD UCED AS UNDER: 7.5 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MA DE BY THE AR AND FIND THAT AO HAS WORKED OUT THE UNEXPLAINED INVESTM ENT IN THE EXCESS STOCK FOUND AT THE TIME OF SURVEY AT RS.61,873/-. I T IS STATED THAT THE INVENTORY VALUATION WAS DONE AT THE TIME OF SURVEY WITH THE HELP OF SHRI SATISH NARANG (SON OF THE ASSESSEE), WHO WAS THE MA IN PERSON RESPONSIBLE FOR THE BUSINESS. THIS FACT WAS NOT CON TROVERTED BY THE APPELLANT AT THE TIME OF SURVEY OR IMMEDIATELY THER EAFTER. THIS ARGUMENT HAS BEEN RAISED BY THE APPELLANT ONLY AT THE ASSESS MENT STAGE AS AN AFTERTHOUGHT. THE APPELLANT HAS FAILED TO FURNISH A NY EVIDENCE IN SUPPORT OF THE CLAIM MADE BY FURNISHING A QUANTITATIVE RECO RD OF PURCHASES AND SALES OF BOTH VARIETIES OF STONE. ACCORDINGLY, I CO NFIRM THE ADDITION OF RS.61,873/- MADE ON ACCOUNT OF UNEXPLAINED INVESTME NT IN EXCESS STOCK. ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 18 7.6 FOLLOWING THE RATIO OF THE DECISION OF THE HON BLE ITAT, JAIPUR IN THE ABOVE CITED CASE, I HOLD THAT THE BENEFIT OF TE LESCOPING MAY BE GIVEN TO THE APPELLANT IN THIS CASE, AS REGARDS THE ADDIT ION OF RS.61,873/- ON ACCOUNT OF UNACCOUNTED INVESTMENT IN EXCESS STOCK I S CONCERNED, AS A TRADING ADDITION OF RS.4,14,652/- ON ACCOUNT OF GRO SS PROFIT EARNED ON UNACCOUNTED SALES HAS ALREADY BEEN CONFIRMED ABOVE. THUS, THERE WOULD BE NO SEPARATE ADDITION OF RS.61,873/- ON ACCOUNT O F UNEXPLAINED INVESTMENT IN EXCESS STOCK. 6. THE LD. DR HAS VEHEMENTLY ARGUED THE MATTER AND HAS RELIED ON THE ORDER OF THE LD. CIT(A) WHICH WE HAVE TAKEN NOT E OF AS ABOVE. . 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. FIRSTLY, IN RESPECT OF GROUNDS NO. 1 AND 1.1, THE PAYMENT OF RS.79,392/- WAS MADE ON 25/12/2007 BEING A PUBLIC HOLIDAY WHICH IS COVERED UNDER RULE 6DD(J) OF THE INCOME TA X RULES 1962. REGARDING THE REMAINING PAYMENT OF RS. 2,13,314/-, THE APPELLANT HAS SUBMITTED THAT THESE PAYMENTS HAVE BEEN MADE IN CAS H TO M/S MAHA LAXMI STONE IN RESPECT OF AUCTION PURCHASE WHICH HAS BEEN COMPLETED IN THE EVENING. AS PER THE TERMS OF THE CONTRACT, THE AMOUNT HAS TO BE PAID ON THE SAME DAY AND GIVEN THAT THERE WAS NO EVENING BRANCH OF ANY BANK AT BAYANA, THE ASSESSEE WAS LEFT WITH NO OPTION BUT TO MAKE PAYMENT IN CASH AND HENCE THE CASE OF THE A SSESSEE IS COVERED UNDER RULE 6DD(G) OF THE INCOME TAX RULES. ON PERUS AL OF THE SAID RULES, IT IS PROVIDED THEREIN THAT WHERE THE PAYMEN T IS MADE IN A VILLAGE OR TOWN WHICH ON THE DATE OF SUCH PAYMENT IS NOT SE RVED BY ANY BANK TO ANY PERSON WHO ORDINARILY RESIDES OR IS CARRYING ON ANY BUSINESS PROFESSION OR AUCTION IN ANY SUCH VILLAGE OR TOWN, IT SHALL BE CONSIDERED ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 19 AS AN EXCEPTIONAL CIRCUMSTANCE FOR MAKING THE CASH PAYMENT. THE LD. CIT(A) HAS GIVEN A FINDING THAT BOTH THE BUYER AND SELLER ARE FUNCTIONING IN AN AREA WHERE AMPLE BANKING FACILITIES ARE AVAIL ABLE. THE SAID FINDING HAS NOT BEEN CONTROVERTED BY THE ASSESSEE. FURTHER, THE RULES PROVIDES THAT ON THE DATE OF PAYMENT, THE PLACE WHERE THE PA YMENT IS MADE IS NOT SERVED BY ANY BANK. THE RULES HOWEVER HAVE NOT PROVIDED FOR A SITUATION AS IN THE INSTANT CASE WHERE EVEN THOUGH THE PLACE IS SERVED BY THE BANK BUT AT THE RELEVANT POINT IN TIME (EVENING ) WHEN THE PAYMENT IS MADE, WHETHER THE PLACE IS SERVED BY THE BANK OR NOT. IN ABSENCE OF THE SAME, WE ARE UNABLE TO ACCEDE TO THE CONTENTION OF THE LD. AR IN RESPECT OF PAYMENT AMOUNTING TO RS.2,13,314/- COVER ED UNDER RULE 6DD (G) OF THE INCOME TAX RULES. ACCORDINGLY, THE ASSES SEE DESERVES RELIEF TO THE EXTENT OF ONLY RS.79,392/-. THE GROUND NO.1 TO 1.1 IS THUS PARTLY ALLOWED. 8. IN RESPECT OF GROUNDS NO. 2 & 2.1, THE ASSESSING OFFICER HAS WORKED OUT THE UNACCOUNTED SALE BASED ON THE IMPOUN DED PAPERS WHICH CLEARLY SHOW THE QUANTITY OF THE MATERIAL, RATE, DA TE & NAME OF THE PARTY. THEREFORE, THE CONTENTION OF THE LD. AR THAT THESE WERE ROUGH ESTIMATES CANNOT BE ACCEPTED AND WE ACCORDINGLY CONFIRMED THE UNACCOUNTED SALES AS WORKED OUT BY THE ASSESSING OFFICER AT RS.13,37, 586/-. REGARDING ESTIMATION OF GP RATE ON THE UNACCOUNTED SALES, THE LD. CIT(A) HAS APPLIED THE GP RATE WHICH IS OTHERWISE OFFERED BY T HE ASSESSEE HERSELF IN RESPECT OF ACCOUNTED SALES RECORDED IN THE BOOKS OF ACCOUNTS FOR THE YEAR UNDER CONSIDERATION. WHERE THE GP RATE OF THE SAME YEAR IS AVAILABLE, THERE IS NO JUSTIFICATION FOR APPLYING T HE AVERAGE GP RATE FOR LAST 3 YEARS AS DONE BY THE ASSESSING OFFICER. WE A CCORDINGLY, CONFIRMED THE ACTION OF THE LD. CIT(A) IN CONFIRMING THE PROF IT EARNED ON ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 20 UNACCOUNTED SALES AMOUNTING TO RS.4,14,652/-. HENCE , GROUND NO. 2 & 2.1 OF ASSESSEE ARE DISMISSED. 9. REGARDING THE GROUND NO. 3 & 3.1, THE LD. CIT(A) HAS ALREADY GIVEN THE BENEFIT OF TELESCOPING AS REGARDS THE ADD ITION OF RS.1,25,105/- ON ACCOUNT OF UNACCOUNTED PURCHASES AGAINST THE TRA DING ADDITION OF RS.4,14,652/- ON ACCOUNT OF PROFIT EARNED ON UNACCO UNTED SALES AND NO SEPARATE ADDITION HAS BEEN CONFIRMED ON ACCOUNT OF UNACCOUNTED PURCHASES. THEREFORE, GROUND NO.3 & 3.1 BECOMES INF RUCTUOUS AND ARE DISMISSED. 10. REGARDING THE GROUND NO.4 & 4.1, AGAIN LD. CIT( A) HAS GIVEN THE BENEFIT OF TELESCOPING AND NO SEPARATE ADDITION HAS BEEN CONFIRMED ON THIS ACCOUNT. THEREFORE, GROUND NO.4 & 4.1 BECOMES INFRUCTUOUS AND ARE DISMISSED. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS PART LY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 08/02/2 017. SD/- SD/- DQY HKKJR FOE FLAG ;KNO (KUL BHARAT) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 08/02/2017. * SANJEEV*. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. JAMUNA DEVI, BHARATPUR. 2. IZR;FKHZ@ THE RESPONDENT- THE ACIT, CIRCLE, BHARATPUR. ITA NO.926/JP/2013 SMT. JAMUNA DEVI VS. A.C.I.T., BHARATPUR 21 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 926/JP/2013} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR