HARI OM MARATHA, J.M.: ORDER These are cross-appeals filed against order of learned CIT(A) dt. 19th Dec., 2002 pertaining to asst. yr. 2000-01. These appeals are being decided by common order. ITA No. 40/Jd/2003 2 . This is appeal of assessee, in which additional ground of appeal has been taken. additional ground is purely legal ground and therefore, it was admitted and was taken as ground No. 5 of appeal, after considering oral objections of learned Departmental Representative. 3. At time of hearing, learned Authorised Representative appearing on behalf of assessee, Shri N.R. Mertia did not press ground No. 2. Ground Nos. 3 and 4 are formal in nature. Thus, ground Nos. 2, 3 and 4 stand dismissed. 4 . Thus, ground No. 5 (additional ground) and ground No. 1, only now survive for adjudication. Other grounds of this appeal stand dismissed. 5. First, we will deal with ground No. 5, additional ground, which relates to action of IT Inspector in taking statements during course of search. This ground is connected with ground No. 1, which relates to trading addition. Therefore, these are being disposed of simultaneously. 6 . We have heard rival submissions and perused evidence on record. 7 . submission of learned Authorised Representative is that Inspector of IT has no authority and power to administer oath to person for recording his statement. In this case, assessee admitted that statement was recorded by Inspector of IT. very strange thing was revealed that survey was illegal and when we examine statements in original that these statements are not even signed by Inspector and not to speak of by AO. Therefore, legally these statements cannot be read with evidence against case of assessee. It was brought to our notice that trading addition was based solely on statements of Shri Kailash Chand S/o Shri Mangilal. statements of Shri Kailash Chand above named persons were recorded in capacity of manger because Shri Mangilal was suffering from breathing, old man. assessee derived income from manufacturing of sweets and its trading together with income from trading of kachha milk and curd for last several years under name and style of M/s Mangilal Kailash Chand, Jodhpur. assessee also carried out job work occasionally for preparing sweets etc. in marriages, festivals etc. On 14th March, 2000, survey under s. 133A of Act was conducted at business premises of assessee. AO estimated physical stock and worked out same on basis of statement of Shri Kailash Chand. Thus, stock of Rs. 35,769 was found short as compared to stock as per books of accounts on date of survey. assessee did not make any surrender of income but deposited Rs. 35,000 as advance tax. AO, thus, made trading addition of Rs. 5,68,437 after rejecting books of accounts under s. 145(1) and by applying higher GP rate of enhanced sales of sweets, milk and curd. learned CIT(A) relates trading addition to Rs. 1,26,224. Revenue has also taken ground No. 1 in this regard. Ground No. (1) of Revenue s appeal has also been decided simultaneously. 8 . We have heard rival submissions and perused evidence on record. We have also carefully read decisions relied before us. 9 . After hearing both parties and after going through relevant material on record, we are convinced that statement of Shri Kailash Chand cannot be taken as piece of evidence against assessee. Inspector of IT was however, authorized by AO to go on spot and to prepare inventory, therefore, we cannot hold survey itself as illegal. But at same time, we exclude statement of Shri Kailash Chand as these are not signed by either Inspector or AO. These statements have not been explained and read over to maker i.e., Shri Kailash Chand, on that reason this statement cannot be taken to be valid piece of evidence. Various decisions have been quoted by learned Authorised Representative in this regard and same are contained in his paper book. are contained in his paper book. 10. Now coming to question of trading addition, it is undeniable fact that assessee has declared better GP rate in this year at 19.94 per cent as compared to 19.89 per cent in asst. yr. 1998-99 and 19.47 per cent in asst. yr. 1999-2000. assessee has been properly maintaining books of accounts and it is only on basis of statements of Shri Kailash Chand, which now stands excluded by AO as well as learned CIT(A), came to conclusion that books of accounts were not properly maintained. But assessee had been issuing sale vouchers in respect of sweets and milk on estimated basis, which did not indicate quantity of goods sold. assessee was issuing sale vouchers at end of day by counting cash. assessee was asked to furnish names and addresses of parties from whom h e made purchases of raw materials, which were used for manufacture of sweets. On basis of information given by firm, confirmation letters were obtained from certain parties. It was found that assessee did not enter all purchase bills in his books of accounts and some of such purchase bills, obtained from various parties, were not found recorded in books of accounts of assessee as under : S. Name & address Bill No. & Amount No. of party date M/s Deepchand 9761 6th Rs. 1. Meethala, Jodhpur Dec., 1999 7,430.00 M/s Amrit 8339 25th Rs. 2. Traders, Jodhpur June, 1999 2137.50 M/s Ganapati 6704 18th Rs. 3. Agencies, Jodhpur June, 1999 3031.74 M/s Sreegopal 9039 18th Rs. 4. Balkishan, Jodhpur Dec., 1999 876.71 above discrepancy was brought to notice of assessee, which was admitted by assessee. There was no dispute with regard to this fact even at time of arguments. Consequently, total of above amount is hereby sustained as addition in trading account. This is consistent view of Bench that when GP rate declared in given year is better than that of immediately preceding year, no further addition can be made in trading receipts of assessee unless some specific and definite evidence to that extent is found. AO took sales of assessee during relevant year at Rs. 9,390 per day and estimated it at Rs. 32,86,500. learned CIT(A) took sales at Rs. 350 per day on basis of statement of Shri Kailash Chand n d reduced estimation. Both AO and learned CIT(A) calculated enhanced sales accordingly, and after applying GP rates in their own way, incomes from sale of sweets, milk and curd separately, made their respective impugned additions. Since, statement of Shri Kailash Chand stands excluded and no other evidence which can support trading addition was found during survey, in view of fact that combined GP rate in this year is better than two preceding years as mentioned above. In our considered opinion, no further addition can be made in this account. As result, additional ground of appeal is not allowed in its entirety and ground No. 1 of assessee s appeal is allowed whereas ground No. 1 of Revenue s appeal is dismissed. 11. In Revenue s appeal, only other ground is ground No. 2 which relates to relief of Rs. 15,500 given to assessee on account of job work receipts. 12. facts of this issue are that AO found that income shown by assessee from job work receipts at Rs. 8,500 supported by documentary evidence. He estimated net income from job works at Rs. 2,000 per month and made addition of Rs. 24.000. learned CIT(A) reduced this addition to Rs. 8,500 and granted relief of Rs.15,500. 1 3 . After hearing rival submissions, we are also in agreement with learned CIT(A) because there is no basis for making any addition in account of job work receipts and income shown by assessee from job work at Rs. 8,500 has not been found fault with help of evidence on record. Consequently, this ground of appeal stands dismissed. 14. assessee also took another legal plea that appeal has been filed by Revenue against dead person and consequently proceeding has to abate and appeal would become null and void. 15. We have heard rival submissions and perused evidence on record. 16. learned Authorised Representative has vehemently submitted that Shri Mangilal died on 28th Jan., 2002 and he has also filed copy of death certificate on record. We have gone though various decisions relied by learned Authorised Representative on this point. It is true that any appeal filed against dead person is not maintainable in case if respondent is only one. But in this case, fact of death of Shri Mangilal, assessee was brought to notice of ITO, only after he had filed appeal before Tribunal. Therefore, this appeal shall not abate and only would amount to curable irregularity. Revenue has corrected this mistake by filing Legal Representatives on record. title of appeal is accordingly corrected. 17. In result, both appeals are partly allowed. *** KAILASH CHAND L/H OF LATE MANGILAL v. INCOME TAX OFFICER