The Allahabad High Court has held that a partner of the Firm who was present during Survey cannot question the validity of the same later.
The applicant is engaged in the business of manufacture and sale of rough C.I. Casting. The business premises of the applicant was surveyed on 18.08.2010, where certain exhibits were seized. On the said basis, the books of account as well as estimation of turnover was made, which was assailed upto the Tribunal.
The assessee contended that at the time of survey, the estimate of CI casting was not actually weighted or verified, but only on the basis of estimate or eye measurement, the same was recorded as 40 tons. They further contended that once a specific ground was raised that the estimate of CI casting of 40 tons was made without actual weight, the authorities below were not justified in drawing an adverse inference against the applicant.
The Revenue argued that at the time of survey dated 18.08.2010, one of the partners of the firm was present and on whose statement, the same was recorded. It was also submitted that if the surveying officer has arbitrarily recorded more than the disclosed by the partner, then it was incumbent upon the said partner to put his objection before singing or not to sign the survey report.
Allowing the contentions of the Revenue, Justice Piyush Agarwal held that the assessee, himself, has accepted that one of the partners was present at the time of survey, who himself, on estimation (Anuman Se) stated that the stock is for 24-25 tons, but he never requested to correct the stock entries or objected before the surveying authority about the noting the same as “40 tons”. At this juncture, the counsel for the applicant submits that there is no provision to object to the entries incorporate during the survey.
“Once the partner of the firm was available at the time of survey, who must have signed the survey report, he could very easily requested to correct the entries or refuse to sign the survey report, if it was not recorded as per his statement. No averment, whatsoever, has been made before the authorities or in the revision that the said partner protested the recording of “40 tons” or any rebuttal to the recording of the said fact of 40 tons was made immediately after the survey was concluded,” the Court said.
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