M/S. Bharat Traders v. Dated : 14Th September, 2011

sas IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.2642 OF 2009 The Commissioner of Income Tax-13, Mumbai ..Appellant. V/s. M/s. Bharat Traders..Respondent. Ms. Anamika Malhotra for the appellant. Mr. V. Murlidhar with B.G. Yewale i/b. Rajesh Shah & Co. for the respondent. CORAM : J.P. DEVADHAR AND K.K. TATED, JJ. DATED : 14TH SEPTEMBER, 2011 P.C. :- 1.Whether the ITAT was justified in deleting the addition made by the assessing officer on the basis of the voluntary statement by the partner of the assessee firm during the course of survey under Section 133A of the Income Tax Act, 1961, is the question raised in this appeal. 2.The assessment year involved herein is AY 1998-99. 3. The assessee is a trader in gum. The assessee filed its return of income in the assessment year in question declaring income of Rs.1,38,570/-. On 6[th] March, 1998 there was a survey action under Section 133A of the Income Tax Act, 1961. Physical Inventory of the stock prepared by the survey officials during the course of the survey and the physical stock actually found was found to be at variance and the partner of the firm being unable to offer justifiable explanation offered the differential amount to tax. 4.During the course of assessment proceedings, the assessee contended that the shortage of actual physical stock was on account of the fact that the same were lying with five parties on consignment sale basis. Out of the five parties, three parties were situate at Mumbai, who on issuance of summons, appeared and stated on oath that the stock in question were lying with them. Out of the remaining two parties, one party at Lucknow confirmed to holding such stocks, but no such confirmation was received from the party at Delhi. 5.According to the assessing officer, the assessee failed to prove that the stocks were lying with outside parties and accordingly made additions. The CIT(A) upheld the additions made by the assessing officer. On further appeal, the ITAT deleted the addition on the 3 itxa2642-09 ground that the assessee has given suitable explanation for the difference in the stock. The Tribunal has recorded a finding that even the Delhi party has sent confirmation by registered post directly to the assessing officer vide letter dated 17/3/2001. 7.Thus, the decision of the Tribunal that the assessee has discharged the onus of explaining the deficiency is based on appreciation of evidence and can be considered as one of the possible view. 8.In these circumstances, the decision of the Tribunal cannot be said to give rise to any substantial question of law. 9.In the result, we see no merit in the appeal and the same is hereby dismissed with no order as to costs. (K.K. TATED, J.) (J.P. DEVADHAR, J.)