Shri Rajnikant Paragji Lad, Navsari v. The ACIT., Navsari Circle,, Navsari

IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH AHMEDABAD BENCH D DD D BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI BHAVNESH BHAVNESH BHAVNESH BHAVNESH SAINI SAINI SAINI SAINI JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER AND AND AND AND SHRI N.S.SAINI SHRI N.S.SAINI SHRI N.S.SAINI SHRI N.S.SAINI ACCOUNTANT ACCOUNTANT ACCOUNTANT ACCOUNTANT MEMBER MEMBER MEMBER MEMBER DATE OF HEARING :11-2-11. DRAFTED ON: 11-2-11. ITA NO. 2507 /AHD/ 2006 ASSESSMENT YEAR :2003-04 SHRI RAJ NIKANT PARAGJI LAD (PROP.KALPANA TRAVEL SERVICE) 170 SHOPPING CENTRE NEAR DUDHIA TALAO NAVSARI. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX NAVSARI CIRCLE SWAPNALOK COMPLEX NEAR KALIAWADI BRIDGE NAVSARI. PAN/GIR NO. : AABPL0587E (A PPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI TUSHAR HEMANI. RESPONDENT BY: SHRI G.S. SOURYAWANSI D.R. O R D E R O R D E R O R D E R O R D E R PER N.S.SAINI ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-VALSAD DATED 8-9-2006. 2. THE ASSESSEE HAS TAKEN FIVE GROUNDS OF APPEAL AN D THE SOLE ISSUE INVOLVED IN ALL THE GROUNDS OF APPEAL IS THAT LEARN ED COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ADDITION OF `.6 76 853/- OUT OF THE ADDITION OF `.7 35 553/- MADE BY THE LEARNED ASSESS ING OFFICER ON THE BASIS OF DECLARATION OF `.10 50 000/- MADE BY THE ASSESSEE I N THE COURSE OF SURVEY. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE A SURVEY UNDER SECTION 133A OF THE ACT WAS CONDUCTED ON 21-2 -2003. THE ASSESSEE IS A TRAVEL AGENT. IN THE STATEMENT RECORDED UNDER SECTI ON 133A IN REPLY TO QUESTION NO.8 THE ASSESSEE SUBMITTED AS UNDER:- Q.NO.8. THE FOLLOWING ISSUES HAVE EMERGED DURING T HE COURSE OF SURVEY IN YOUR PREMISES. - 2 - A) THERE IS NO FIXED AMOUNT OF COMMISSION YOU EARN PER TICKET. B) THE SERVICE CHARGE YOU CHARGE PER PASSPORT FOR PREP ARING PASSPORT IS NOT FIXED. C) THE CONSULTING FEES/CHARGES YOU CHARGE FOR IMMIGRAN T VISA IS NOT FIXED. WHETHER YOU WANT TO DECLARE ANY ADDITIONAL INCOME A FTER CONSIDERING THE ABOVE QUERIES? ANS.8 WITH REFERENCE TO ABOVE QUESTION AT PRESENT THERE ARE NO RELATED PARTICULARS FOR THE ABOVE QUERIES. BUT WITH A VIEW TO CO-OPERATE THE DEPARTMENT I DECLARE `.10 50 000/- AS AN ADDITIONAL INCOME FOR THE CURRENT YEAR. IT IS TO BE NOTED THAT THE SAID ADDIT IONAL INCOME INCLUDES THE CASH DIFFERENCE. MOREOVER I WILLINGLY DECLARE THIS ADDITIONAL INCOME AND SHALL PAY ADVANCE TAX THEREON BY 15 TH MARCH 2003. 4 THEREAFTER THE ASSESSEE FURNISHED HIS RETURN OF INCOME ON 27-11-2003 AND THEREIN DISCLOSED SEPARATE INCOME OF `.7 35 553 /- AND ALSO APPENDED A NOTE TO THE COMPUTATION OF INCOME WHICH READS AS UN DER:- THE DECLARATION OF `.7 35 553/- IS NOT REPRESENTE D BY ANY INVESTMENT IN ANY UNDISCLOSED ASSETS. NEITHER THE D EPARTMENT NOR THE ASSESSEE IS IN A POSITION TO IDENTIFY ANY UNDISCLOS ED ASSETS REPRESENTING THE SAID INCOME AT THIS JUNCTURE. THEREFORE YOUR A SSESSEE HAS DECLARED THIS `.7 35 553/- UNDER THE CAPTION LUMPSUM AMOUNT TO COVER ANY UNKNOWN ITEMS OF ADDITIONS/DISALLOWANCES WHICH MAY EMERGE AT THE TIME OF ASSESSMENT. 5. IN ASSESSMENT THE LEARNED ASSESSING OFFICER ACCE PTED THE ABOVE INCOME OF `.7 35 553/- AS DISCLOSED BY THE ASSESSEE AND AL SO MADE A SEPARATE ADDITION OF `.3 14 447/- ON ACCOUNT OF LESSER CASH FOUND DUR ING THE SURVEY AND `.58 700/- ON ACCOUNT OF PERSONAL USE OF TELEPHONE AND CAR. 6. ON AN APPEAL BY THE ASSESSEE THE LEARNED COMMISS IONER OF INCOME TAX (APPEALS) DELETED THE SEPARATE ADDITION MADE OF `.3 14 447/- AND `.58 700/- BUT CONFIRMED THE ASSESSMENT OF `.7 35 553/- ON THE GRO UND THAT THE ASSESSEE ITSELF HAS RETURNED SUCH INCOME IN HIS RETURN OF INCOME UN DER THE CAPTION LUMPSUM AMOUNT. 7. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE ARGUED BEFORE US THAT THERE WAS NO MATERIAL IN SUPPORT OF ADDITION O F `.7 35 553/- EXCEPT THE - 3 - DECLARATION OF THE ASSESSEE DURING THE COURSE OF SU RVEY. HE RELIED UPON THE FOLLOWING DECISIONS IN SUPPORT OF THE SUBMISSION TH AT THE ADDITION OF `.7 35 553/- IS NOT JUSTIFIED IN THE INSTANT CASE. (1) COMMISSIONER OF INCOME-TAX V. SHELLY PRODUCTS (2003) 261 ITR 367 (SC) (2) S. R. KOSHTI V. COMMISSIONER OF INCOME-TAX (2005) 276 ITR 165 (GUJ) (3) COMMISSIONER OF INCOME-TAX V. VALI BROTHERS (2006) 282 ITR 149 (ALL) (4) COMMISSIONER OF INCOME-TAX V. S. KHADER KHAN SON (2008)300 ITR 157 (MAD) (5) ABHI DEVELOPERS VS. INCOME TAX OFFICER (2007) 12 SOT 444 (AHD) (6) DEPUTY COMMISSIONER OF INCOME TAX VS. PREMSONS (2010) 130 TTJ (MUMBAI) 159 8. ON THE OTHER HAND THE LEARNED DEPARTMENTAL REPR ESENTATIVE SUBMITTED THAT PRINCIPLE OF ESTOPPELS SHALL APPLY AGAINST THE ASSESSEE AND THE ASSESSEE SHOULD NOT BE ALLOWED TO GO BACK FROM THE STATEMENT MADE DURING THE COURSE OF THE SURVEY. HE ALSO RELIED UPON THE ORDERS OF T HE LOWER AUTHORITIES. 9. WE FIND THAT IN THE INSTANT CASE THE AMOUNT OF ` .7 35 553/- WAS DISCLOSED BY THE ASSESSEE ITSELF AS HIS INCOME IN THE RETURN OF INCOME FILED 27-11-2003. THUS IT IS NOT CORRECT TO SAY THAT THE ASSESSMENT OF `.7 35 553/- WAS MADE BY THE LEARNED ASSESSING OFFICER ONLY ON THE BASIS OF A STATEMENT RECORDED DURING THE COURSE OF THE SURVEY AS IT IS OBSERVED THAT THE ASSESSMENT WAS MADE ON THE DISCLOSURE OF SUCH AMOUNT AS INCOME BY THE ASSE SSEE IN THE RETURN OF INCOME AS WELL. NO MATERIAL WAS BROUGHT BEFORE US BY THE ASSESSEE TO SHOW THAT THE DISCLOSURE WAS MADE IN THE RETURN OF INCOM E BY IT WAS WITHDRAWN BY IT BY FILING ANY REVISED RETURN. FURTHER IT IS NOT TH E CASE OF THE ASSESSEE THAT THE DISCLOSURE AS INCOME MADE IN THE RETURN WAS UNDER A NY BONAFIDE MISTAKE EITHER OF LAW OR OF FACT OR SUCH DISCLOSURE IN THE RETURN FILED BY IT WAS NOT A VOLUNTARY - 4 - DISCLOSURE. ON THE OTHER HAND FROM THE DETAILED NO TE APPENDED IN THE COMPUTATION SHEET ABOUT THIS DISCLOSURE OF `.7 35 5 53/- AS QUOTED ABOVE WE FIND THAT THE ASSESSEE WAS FULLY AWARE OF MAKING OF THE ABOVE DISCLOSURE IN THE RETURN OF INCOME AND THE SAME WAS DONE CONSCIOUSLY. WE FIND THAT IN THE DECISIONS RELIED ON BY THE ASSESSEE IT HAS BEEN HEL D AS UNDER:- COMMISSIONER OF INCOME-TAX V. SHELLY PRODUCTS (2003) 261 ITR 367 (SC) IN A CASE WHERE THE ASSESSEE CHOOSES TO DEPOSIT BY WAY OF ABUNDANT CAUTION ADVANCE TAX OR TAX ON SELF-ASSES SMENT WHICH IS IN EXCESS OF HIS LIABILITY ON THE BASIS OF THE RETU RN FURNISHED OR IF THERE IS AN ARITHMETICAL ERROR OR INACCURACY IT IS OPEN TO THE ASSESSEE TO CLAIM REFUND OF THE EXCESS TAX PAID IN THE COURSE OF THE ASSESSMENT PROCEEDINGS. HE CAN CERTAINLY MAKE SUCH A CLAIM BEFORE THE CONCERNED AUTHORITY CALCULATING THE REFU ND. SIMILARLY IF THE ASSESSEE HAS BY MISTAKE OR INADVERTENCE OR ON ACCO UNT OF IGNORANCE INCLUDED IN HIS INCOME ANY AMOUNT WHICH IS EXEMPTED FROM PAYMENT OF INCOME-TAX OR IS NOT INCOME WITHIN THE CONTEMPLATION OF LAW HE MAY LIKEWISE BRING THIS TO THE NOTICE OF THE ASSESSING AUTHORITY WHICH IF SATISFIED MAY GRANT HIM RELIEF AND REFUND THE TAX PAID IN EXCESS IF ANY. SUCH MATTERS CAN BE BROUGHT TO THE NOTICE OF THE CONCERNED AUTHORITY IN A CASE WHE RE A REFUND IS DUE AND PAYABLE AND THE AUTHORITY CONCERNED ON BEING SATISFIED SHALL GRANT APPROPRIATE RELIEF. S. R. KOSHTI V. COMMISSIONER OF INCOME-TAX (2005) 276 ITR 165 (GUJ) THE AUTHORITIES UNDER THE INCOME-TAX ACT 1961 ARE UNDER AN OBLIGATION TO ACT IN ACCORDANCE WITH LAW. TAX CAN B E COLLECTED ONLY AS PROVIDED UNDER THE ACT. IF AN ASSESSEE UNDER A MISTAKE MISCONCEPTION OR ON NOT BEING PROPERLY INSTRUCTED IS OVER-ASSESSED THE AUTHORITIES UNDER THE ACT ARE REQUIRED TO ASSIS T HIM AND ENSURE THAT ONLY LEGITIMATE TAXES DUE ARE COLLECTED. COMMISSIONER OF INCOME-TAX V. VALI BROTHERS (2006) 282 ITR 149 (ALL) - 5 - UNDER SECTION 237 OF THE INCOME-TAX ACT 1961 IF T HE ASSESSING OFFICER IS SATISFIED THAT THE AMOUNT OF TAX PAID BY THE ASSESSEE FOR ANY ASSESSMENT YEAR EXCEEDS THE AMOUNT WITH WHICH H E IS PROPERLY CHARGEABLE UNDER THE ACT FOR THAT YEAR THE ASSESSE E MUST BE GIVEN REFUND OF THE EXCESS AMOUNT. COMMISSIONER OF INCOME-TAX V. S. KHADER KHAN SON (2008)300 ITR 157 (MAD) THE PRINCIPLES RELATING TO SECTION 133A OF THE INCO ME-TAX ACT 1961 ARE AS FOLLOWS : (I) AN ADMISSION IS AN EXTREMELY I MPORTANT PIECE OF EVIDENCE BUT IT CANNOT BE SAID THAT IT IS CONCLUSIV E AND IT IS OPEN TO THE PERSON WHO MADE THE ADMISSION TO SHOW THAT IT I S INCORRECT AND THAT THE ASSESSEE SHOULD BE GIVEN A PROPER OPPORTUN ITY TO SHOW THAT THE BOOKS OF ACCOUNT DO NOT CORRECTLY DISCLOSE THE CORRECT STATE OF FACTS ; (II) IN CONTRADISTINCTION TO THE POWER UNDE R SECTION 133A SECTION 132(4) ENABLES THE AUTHORISED 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 ACT. ON THE OTHER HAND WHATEVER STATEMENT IS RECORDED UNDER SE CTION 133A IS NOT GIVEN ANY EVIDENTIARY VALUE OBVIOUSLY FOR THE R EASON THAT THE OFFICER IS NOT AUTHORISED TO ADMINISTER OATH AND TO TAKE ANY SWORN STATEMENT WHICH ALONE HAS EVIDENTIARY VALUE AS CONT EMPLATED UNDER LAW ; (III) THE EXPRESSION SUCH OTHER MATERIALS OR INFORMATION AS ARE AVAILABLE WITH THE ASSESSING OFFICER CONTAINED IN SECTION 158BB WOULD INCLUDE THE MATERIALS GATHERED DURING THE SUR VEY OPERATION UNDER SECTION 133A ; (IV) THE MATERIAL OR INFORMAT ION FOUND IN THE COURSE OF SURVEY PROCEEDING COULD NOT BE A BASIS FO R MAKING ANY ADDITION IN THE BLOCK ASSESSMENT ; AND (V) THE WORD MAY USED IN SECTION 133A(3)(III) OF THE ACT 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 C OLLECTED AND THE STATEMENT RECORDED DURING THE SURVEY UNDER SECTION 133A ARE NOT CONCLUSIVE PIECE OF EVIDENCE BY ITSELF. A SURVEY WAS CONDUCTED IN THE PREMISES OF THE ASSES SEE-FIRM. ONE OF THE PARTNERS IN HIS SWORN STATEMENT OFFERED AN A DDITIONAL INCOME OF RS. 20 LAKHS FOR THE ASSESSMENT YEAR 2001-02 AND RS. 30 LAKHS FOR THE ASSESSMENT YEAR 2002-03. HOWEVER THE SAID STATEMENT WAS RETRACTED BY THE ASSESSEE THROUGH ITS LETTER DATED AUGUST 3 2001 STATING THAT THE PARTNER FROM WHOM A STATEMENT WAS RECORDED DURING THE SURVEY OPERATION UNDER SECTION 133A WAS NEW TO THE - 6 - MANAGEMENT AND HE COULD NOT ANSWER THE ENQUIRIES MA DE AND AS SUCH HE AGREED TO AN AD HOC ADDITION. THE ASSESSIN G OFFICER BASED ON THE ADMISSIONS MADE BY THE ASSESSEE WHICH WERE DIRECTLY RELATABLE TO THE DEFECTS NOTICED DURING THE ACTION UNDER SECTION 133A OF THE ACT RECOMPUTED THE ASSESSMENT. THE ORDER WA S SET ASIDE BY THE COMMISSIONER OF INCOME-TAX (APPEALS) AND THIS O RDER WAS UPHELD BY THE TRIBUNAL. ON APPEAL TO THE HIGH COURT : _ HELD _ DISMISSING THE APPEAL THAT IN VIEW OF THE SCOPE AND AMBIT OF THE MATERIALS COLLECTED DURING THE COURSE OF SURVEY ACTION UNDER SECTION 133A SHALL NOT HAVE ANY EVIDENTIARY VALUE. IT COULD NOT BE SAID SOLELY ON THE BASIS OF THE STATEMENT GIVEN BY ONE OF THE PARTNERS OF THE ASSESSEE-FIRM THAT THE DISCLOSED IN COME WAS ASSESSABLE AS LAWFUL INCOME OF THE ASSESSEE. ABHI DEVELOPERS VS. INCOME TAX OFFICER (2007) 12 SOT 444 (AHD) A PERUSAL OF ASSESSMENT ORDER WILL REVEAL THAT AD DITION OF RS. 6 07 830 HAS BEEN MADE ONLY ON THE BA SIS OF THE FACT THAT PARTNER OF ASSESSEE FIRM IN THE ST ATEMENT RECORDED AT THE TIME OF SURVEY HAD ADMITTED TO SHOW THE SAID 'ON MONEY' AS INCOME. CIT(A) HAS ALSO UPHELD THE ADDITION ON THIS SCORE ONLY. OTHERWISE THERE IS NO DISPUTE REGARDING THE APPLICABILITY OF S. 44AD OF THE ACT ON THE FACTS OF THE CASE OF ASSE SSEE. NOW THE ONLY QUESTION WHICH SURVIVES FOR CONSIDERAT ION IS THAT WHETHER ONLY ON THE BASIS OF STATEMENT MADE BY THE PARTNER DURING THE COURSE OF SURVEY SUC H ADDITION COULD BE SUSTAINED ? AS PER WELL-SETTLED LAW THERE IS A BASIC DIFFERENCE BETWEEN THE STATEMENT R ECORDED UNDER S. 133A OF THE ACT AS COMPARED TO STATEMENT RECORDED UNDER S. 132(4). IN THE PRESENT CASE THE STATEMENT HAS BEEN RECORDED UNDER S. 133A OF THE ACT. IT IS NOT THE CASE OF REVENUE THAT THE TOT AL RECEIPTS OF THE ASSESSEE EXCEEDED RS. 40 LAKHS S O AS TO SAY THAT THE INCOME OF ASSESSEE IS NOT ASSESSABLE U NDER S. 44AD OF THE ACT. THERE IS NO MATERIAL ON RECORD TO SHOW THAT ALL THE EXPENDITURE INCURRED IN RESPECT OF CIVIL WORK WERE DULY CLAIMED BY THE ASSESSEE AND THE RECEIPT OF 'ON MONE Y' WAS THE NET INCOME OF THE ASSESSEE PARTICULARLY WHEN ASSESSEE HAS NOT MAINTAINED THE BOOKS OF ACCOU NT OR THEY HAVE NOT BEEN PRODUCED OR RELIED UPON B Y THE ASSESSEE. THERE IS NO MATERIAL WITH THE DEPARTM ENT TO ARRIVE AT A CONCLUSION THAT FOR RECEIVING 'O N MONEY' ASSESSEE DID NOT INCUR ANY EXPENDITURE. AS P OINTED OUT EARLIER THAT THE ONLY BASE FOR THE REVE NUE TO ASSESS THE 'ON MONEY' IN ITS ENTIRETY IS THE ST ATEMENT OF PARTNER RECORDED DURING THE COURSE OF SE ARCH. NO EVIDENTIARY VALUE CAN BE ATTACHED TO SUCH STATEM ENT UNLESS IT IS SUPPORTED BY SOME MATERIAL. IN THI S VIEW OF THE SITUATION IT CAN BE HELD THAT THERE IS NO MATERIAL WITH THE DEPARTMENT TO MAKE ADDITION O F 'ON MONEY' IN ITS ENTIRETY AND WHAT IS ASSESSABLE UNDER S. 44AD IS 8 PER CENT OF THE GROSS RECEIPT OR MORE PROFITS SHOWN BY ASSESSEE IN ITS RETURN OF INCOME. IN THE PRESENT CASE ASSESSEE HAS SHOWN INCOME OF MO RE THAN 8 PER CENT THEREFORE NO ADDITION CAN BE MADE BY AO WHILE WORKING UNDER S. 44AD. DEPUTY COMMISSIONER OF INCOME TAX VS. PREMSONS (2010) 130 TTJ (MUMBAI) 159 THE DEPARTMENT IS NOT OBLIVIOUS OF THE PRACTICE BY WHICH THE REVENUE AUTHORITIES OBTAIN UNDUE CONFESSION FROM THE ASSESSEE DURING SEARCH OR SURVE Y PROCEEDINGS. VIDE CBDT CIRCULAR DT. 10 TH MARCH 2003 IT HAS BEEN MADE CLEAR BY THE BOARD THAT NO AT TEMPT SHOULD BE MADE TO OBTAIN CONFESSION AS TO THE UNDISCLOSED INCOME AND THE ADDITION SHOULD BE MADE ONLY ON THE BASIS OF MATERIAL GATHERED DURING THE COURSE OF SEARCH AND SURVEY. GOING BY THE VERDICT O F THE HIGH COURTS AND THE POSITION REAFFIRMED BY TH E CBDT THROUGH ITS CIRCULAR IT BECOMES ABUNDANTLY CL EAR THAT NO ADDITION CAN BE MADE OR SUSTAINED SIMPL Y ON THE BASIS OF STATEMENT RECORDED AT THE TIME OF S URVEY/SEARCH. IN ORDER TO MAKE AN ADDITION ON THE B ASIS OF SURRENDER DURING SEARCH OR SURVEY IT IS SINE QU A NON THAT THERE SHOULD BE SOME OTHER MATERIAL TO CORRELATE THE UNDISCLOSED INCOME WITH SUCH STATEMEN T. ADVERTING TO THE FACTS OF THE INSTANT CASE ONLY TO THE EXTENT OF RS. 21.14 LAKHS THERE IS A MATERIAL T O CO-RELATE WITH THE ADMISSION REPRESENTING THE EX CESS STOCK FOUND AT THE TIME OF SURVEY. EVIDENTLY THE SU RRENDER MADE BY THE ASSESSEE AT THE TIME OF SURVEY TO - 7 - THAT EXTENT AND OFFERED FOR TAXATION IN THE RETURN OF INCOME IS IN ORDER. BUT INSOFAR AS THE AMOUNT IN DISPUTE TO THE TUNE OF RS. 28.85 LAKHS IS CONCERNED SUCH S URRENDER WAS SPECIFICALLY MADE 'TOWARDS ANY OTHER DISCREPANCY'. THERE IS NO MENTION IN THE ASSESSMENT ORDER OF ANY SUCH DISCREPANCY FOUND AS A RESULT OF SURVEY THROWING LIGHT ON THE UNDISCLOSED INCOME. EV EN THE DEPARTMENTAL REPRESENTATIVE COULD NOT POINT OUT ANY MATERIAL SHOWING THE EXISTENCE OF UNDISCLOS ED INCOME EARNED BY THE ASSESSEE WHICH WAS UNEARTHED DURING THE COURSE OF SURVEY. THERE IS NOT HING ON RECORD WHICH COULD CORRELATE SUCH ADDITIONA L INCOME OFFERED BY THE ASSESSEE DURING THE COURSE OF SURVEY WITH ANY OTHER DISCREPANCY. THERE IS NO BAS IS FOR SUSTAINING THE ADDITION IN QUESTION. PAUL MATHEWS & SONS VS. CIT (2003) 181 CTR (KER) 207 : (2003) 263 ITR 101 (KER) AND CIT VS. S. KHADER KHAN SON (2008) 214 CTR (MAD) 589 : (2008) 300 ITR 157 (MAD) FOLLOWED. 10. THUS WE FIND THAT THE ASSESSMENT OF AMOUNT OF `.7 35 553/- AS INCOME WAS NOT MERELY BASED ON STATEMENT RECORDED DURING T HE COURSE OF THE SURVEY BUT WAS ALSO BASED ON DISCLOSURE MADE BY THE ASSESS EE HIMSELF IN THE RETURN OF INCOME FILED BY IT. FURTHER AS IT IS NOT THE CAS E OF THE ASSESSEE THAT THE DISCLOSURE OF AFORESAID AMOUNT AS INCOME WAS UNDER ANY MISTAKE THE CASE LAWS RELIED UPON BY THE LEARNED AUTHORISED REPRESEN TATIVE OF THE ASSESSEE ARE FOUND TO BE DISTINGUISHABLE ON FACTS AND NOT APPLIC ABLE IN THE INSTANT CASE. WE THEREFORE DO NOT FIND ANY GOOD REASON TO INTERFERE WITH THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). IT IS CONFIRMED. THE GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 11. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON THIS 15 TH DAY OF FEBRUARY 2011. SD/- SD/- (BHAVNESH SAINI) ( N.S. SA INI ) JUDICIAL MEMBER ACCOUN TANT MEMBER DATED: AHMEDABAD 15 TH DAY OF FEBRUARY 2011. COMPILED AND COMPARED BY: PATKI COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-VALSAD. 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD - 8 - DATE INITIALS 1. DRAFT DICTATED ON 10-2-2011 -------------- ----- 2. DRAFT PLACED BEFORE AUTHORITY 14-2-2011 ----- -------------- 3. DRAFT PROPOSED & PLACED 14-2-2011 ----------- -------- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 14-2-2011 ---------- --------- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 14-2-2011 -------- ------------ 6. KEPT FOR PRONOUNCEMENT ON 15-2-2011 --------- ----------- 7. FILE SENT TO THE BENCH CLERK 15-2-2011 ------ -------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- A.R. 9. DATE OF DISPATCH OF ORDER ---------------- --- ------------------