M/s. Deep Colonisers, Bhopal v. The DCIT 1(2), Bhopal

ITA 470/IND/2013 | 2008-2009
Pronouncement Date: 26-10-2016 | Result: Dismissed

Appeal Details

RSA Number 47022714 RSA 2013
Assessee PAN AADFD2966P
Bench Indore
Appeal Number ITA 470/IND/2013
Duration Of Justice 3 year(s) 4 month(s) 12 day(s)
Appellant M/s. Deep Colonisers, Bhopal
Respondent The DCIT 1(2), Bhopal
Appeal Type Income Tax Appeal
Pronouncement Date 26-10-2016
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 26-10-2016
Date Of Final Hearing 14-09-2016
Next Hearing Date 14-09-2016
Assessment Year 2008-2009
Appeal Filed On 14-06-2013
Judgment Text
I.T.A. NO. 470/IND/2013/A.Y:08-09/M/S. DEEP COLONI ZERS PAGE 1 OF 13 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE .. .. % BEFORE SHRI D.T. GARASIA JUDICIAL MEMBER AND SHRI O.P. MEENA ACCOUNTANT MEMBER M/S. DEEP COLONISERS 131/4 ZONE- II MP NAGAR BHOPAL PAN:AA DFD2966P VS. DY. COMMISSIONER OF INCOME TAX CIRCLE 1(2) BHOPAL / APPELLANT / RESPONDENT / APPELLANT BY SHRI ASHISH GOYAL & SHRI N D PATW A ADVOCATES / RESPONDENT BY / DATE OF HEARING 14.09.2016 / DATE OF PRONOUNCEMENT 26.10.2016 / O R D E R PER O. P. MEENA ACCOUTANT MEMEBR. 1. THIS APPEAL IS FILED BY THE ASSESSEE IS DIRECTED AG AINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-RAIPUR CAMP AT BHOPAL (HEREINAFTER REFERRED TO AS THE LD. CIT (A)) DATED 23.03. 2013. THIS APPEAL PERTAINS TO ASSESSMENT YEAR 2008-09. TH IS APPEAL ARISES OUT OF ASSESSMENT ORDER U/S. 143(3) OF INCOME TAX A CT 1961 [HEREIN AFTER REFERRED TO AS 'THE ACT) DTD. 30.12.2010 PAS SED BY THE DY. COMMISSIONER OF INCOME TAX CIRCLE 1(2) BHOPAL [HERE INAFTER REFERRED TO AS THE AO]. . . ./ I.T.A. NO. 470/IND/2013 %' ' / ASSESSMENT YEAR: 2008-09 I.T.A. NO. 470/IND/2013/A.Y:08-09/M/S. DEEP COLONI ZERS PAGE 2 OF 13 2. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL :- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING THE ADDITION OF RS.40 00 000/- MADE ON A CCOUNT OF INCOME SURRENDERED AT THE TIME OF SURVEY WITHOUT CO NSIDERING THE EXPLANATION OFFERED BY THE ASSESSEE AND WITHOUT APPRECIATING THE FACT THAT DURING THE COURSE OF SURVEY AND EVEN DURING THE COURSE OF ASSESSMENT PROCEEDINGS ALSO THAT THERE W AS NO ANY CONCRETE MATERIAL AND VALID REASON WHICH COULD FOR M THE BASIS FOR SUCH A HUGE ADDITION OF RS. 40 00 000/-. FURTHE R THE SURRENDER WAS MADE IN ILL STATE OF MIND AND WITHOUT CONSIDERING THE CONSEQUENCES PROPERLY. THUS THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) BY CONFIRMING ADDITION UNJUST UNFAIR AND BAD IN LAW. 2. THAT UNDER THE CIRCUMSTANCES CHARGING OF INTEREST OF RS. 8 00641/- U/S. 234B IS NOT JUSTIFIED. 3. THAT UNDER THE CIRCUMSTANCES INITIATION OF PENALTY PROCEEDING U/S. 271(1) (C) IS NOT JUSTIFIED. 3. GROUND NO.1 RELATES TO CONFIRMING OF ADDITION OF RS . 40 LAKH ON ACCOUNT OF UNEXPLAINED INVESTMENT IN CONSTRUCTION A ND RENOVATION OF HOUSE SURRENDER DURING THE COURSE OF SURVEY UNDER S ECTION 133A OF THE ACT. I.T.A. NO. 470/IND/2013/A.Y:08-09/M/S. DEEP COLONI ZERS PAGE 3 OF 13 4. SUCCINCTLY THE FACTS AS CULLED OUT FROM THE ORDER OF LOWER AUTHORITIES ARE THAT THE ASSESSEE IS PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF CONSTRUCTION AND LAND DEVELOPER NAMED AND STYLED AS M/S. DEEP COLONISERS. THE ASSESSEE HAS FILED HIS RETURN OF IN COME FILED ON 30.09.2008 DECLARING TOTAL INCOME AT RS. 36 176/-. IN THIS CASE A SURVEY UNDER SECTION 133A WAS CONDUCTED ON 22.06.20 07 WHEREIN SOME LOOSE PAPERS DOCUMENTS AND BOOKS OF ACCOUNTS WERE FOUND AND SEIZED. A REGISTER CONTAINING ENTRIES REGARDING EXT RA WORK DONE ON PLOT WAS FOUND AND SEIZED AT THE TIME OF SURVEY. DURING THE COURSE OF SURVEY STATEMENT OF SHRI DEEPAK BABBAR PARTNER OF THE ASSESSEE FIRM WAS RECORDED. WHEN HE WAS CONFRONTED ABOUT EXTRA WO RK DONE AN AMOUNT OF RS. 20 00 000/- WAS SURRENDERED AS INCOME OF F.Y. 2007- 08. FURTH SHRI DEEPAK BABBAR PARTNER OF THE FIRM S TATED CERTAIN ENTRIES FOR RECEIPTS AND EXPENSES ARE YET TO BE ENT ERED IN THE REGULAR BOOKS OF ACCOUNTS. DURING THE COURSE OF SURVEY THE ASSESSEE WAS ASKED TO CLARIFY THE LOOSE PAPERS DOCUMENTS ETC. T HAT THE ASSESSEE COULD NOT BE TALLIED WITH REGULAR BOOKS OF ACCOUNTS . FOR SUCH IRREGULARITIES AMOUNT OF RS. 20 00 000/- WAS SURREN DERED AS UNDISCLOSED INCOME. BOOKS OF ACCOUNTS WERE FOUND TO BE MAINTAINED ON COMPUTER WHICH WERE INCOMPLETE. HOWEVER THE AS SESSEE HAS NOT DISCLOSED THIS AMOUNT IN HIS RETURN OF INCOME FOR T HE ASSESSMENT YEAR UNDER CONSIDERATION. SINCE THE ASSESSEE HAS HIMSELF ACCEPTED THE DISCREPANCIES IN THE BOOKS OF ACCOUNTS AND ADMITTED UNDISCLOSED I.T.A. NO. 470/IND/2013/A.Y:08-09/M/S. DEEP COLONI ZERS PAGE 4 OF 13 INCOME AT RS.40 00 000/- THEREFORE THE AO MADE AD DITION OF THE SAME BY PLACING RELIANCE IN THE CASE OF ACIT VS. HU KUM CHAND JAIN (2010) 191 TAXMAN 319 (CHHATTISGARH). 5. BEING AGGRIEVED THE ASSESSEE FILED AN APPEAL BEFOR E CIT (A). IT WAS CLAIMED THAT THE REGULAR BOOKS OF ACCOUNTS WERE MAI NTAINED WHICH ARE AUDITED US44AB U/S. 44AB OF THE ACT BY CHARTERED ACCOUNTANT AND NO MISTAKE WAS POINTED OUT BY THE AUDITOR THEREIN. IN THE ASSESSMENT PROCEEDINGS ALSO THE AO HAS NOT POINTED OUT ANY MA JOR MISTAKE. DURING THE COURSE OF SURVEY UNDER SECTION 133A OF T HE ACT SHRI DEEPAK BABBAR PARTNERSHIP FIRM OF THE ASSESSEE WA S IN PRESSURE AND HIS MENTAL STATUS WAS NOT WELL STATUS HENCE HE MAD E SURRENDER OF RS.40 00 000/- FOR DISCREPANCIES IN THE BOOKS OF AC COUNTS AND AS UNDISCLOSED INCOME OF THE FIRM IN REPLY TO QUESTION NO. 34 & 34 OF HIS STATEMENT. IT IS ALSO CLEAR FROM THE STATEMENT THAT NO SPECIFIC DETAILS WERE ASKED FOR REGARDING BUSINESS INCOME AND NO INC RIMINATING DOCUMENTS WERE FOUND DURING THE COURSE OF SURVEY FR OM WHICH IT COULD BE ASCERTAINED THAT THERE WAS ANY INVESTMENT IN HOU SE OUT-SIDE BOOKS OF ACCOUNTS. HOWEVER THIS ARGUMENT DOES NOT GO WEL L TO LD. CIT (A). THE LD. CIT (A) ALSO OBSERVED THAT THE AO DID REFER THAT LOOSE PAPERS INCOMPLETE BOOKS OF ACCOUNTS REGISTER CONTAINING E XTRA WORK DONE ON PLOTS CERTAIN ENTRIES AND EXPENSES NOT FOUND RECOR DED IN THE BOOKS OF ACCOUNTS AND OTHER IRREGULARITIES IN MAINTENANCE OF BOOKS OF ACCOUNTS DURING THE COURSE OF SURVEY OPERATION. ON REFERENCE THEREOF THE I.T.A. NO. 470/IND/2013/A.Y:08-09/M/S. DEEP COLONI ZERS PAGE 5 OF 13 PARTNER OF THE ASSESSEE FIRM HAD SURRENDERED A SUM OF RS. 40 LAKHS AS INCOME FROM UNDISCLOSED SOURCES. THE LD. CIT (A) FU RTHER STATED THAT THE ASSESSEE IS NOT ABLE TO DEMONSTRATE THE COMPELL ING CIRCUMSTANCES WHICH HAD PUT THE PARTNER UNDER MENTAL TENSION. IT IS GATHERED THAT THE PARTNER OF THE FIRM HAD SURRENDERED ONLY AT THE INSTANCE OF DISCREPANCIES UNEARTHED DURING SURVEY OPERATION. TH E LD. CIT (A) FURTHER OBSERVED THAT THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY DECISION IN THE CASE OF ACIT VS. HUKUM CHAND JAIN ( 2011) 337 ITR 238(CHHATTISGARH) /(2010) 191 TAXMAN 319 (CHHATTISG ARH) THE LD. CIT (A) FURTHER STATED BY MAKING SURRENDER DURING SUR VEY DID INDUCE THE SURVEY TEAM TO ABSTAIN FROM COLLECTING INCRIMINAT ING EVIDENCES AGAINST THE ASSESSEE THEREFORE THE APPELLANT CANNO T BE ALLOWED TO ENJOY THE BENEFIT OF HIS ACT OF SURRENDER AND SUBSE QUENT RETRACTION HENCE THE ADDITION ARISING OUT OF PARTNERS ADMISSIO N OF UNDISCLOSED INCOME IS SUSTAINED. HENCE THE ADDITION OF RS. 40 LAKHS WAS CONFIRMED. 6. BEING NOT SATISFIED THE ASSESSEE FILED AN APPEAL BEFORE THIS TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT PROPER BOOKS OF ACCOUNTS ARE MAINTAINED AND DULY AUDITED AND THE AU DITOR NOR THE LD. A.O. HAS POINTED OUT NO DISCREPANCY AND MISTAKE. AT THE TIME OF SURVEY SHRI DEEPAK BABBAR PARTNER OF THE FIRM WA S UNDER PRESSURE AND NOT WELL HENCE HE SURRENDERED RS. 40 LAKH. LA TER ON ONGOING THROUGH THE BOOKS OF ACCOUNTS HE REALISED HIS MIST AKE AND RETRACTED I.T.A. NO. 470/IND/2013/A.Y:08-09/M/S. DEEP COLONI ZERS PAGE 6 OF 13 FROM SURRENDER. THE LEARNED COUNSEL SUBMITTED THAT READING THE QUESTION NO. 33 AND 34 OF HIS MAKES IT CLEAR THAT T HE CASHBOOK WAS NOT WRITTEN UP TO DATE OF SURVEY. IT WAS NOT UPDATE D UP TO 22.06.2007. NO CASH WAS FOUND DURING SURVEY. THEREFORE IT WAS CONTENDED THAT SHORTAGE OF CASH BALANCE ITSELF WAS EXPLANATION FOR INVESTMENT IN PROPERTY. WHICH WAS NOT EXAMINED AT THE TIME OF SUR VEY. THERE WAS NOT ANY FINDING IN ASSESSMENT ORDER AND ADDITION IS MADE MERELY BASED ON STATEMENT ON OATH. THE LEARNED COUNSEL OF THE ASSESSEE FURTHER SUBMITTED THAT CBDT CIRCULAR DTD. 10.03.200 3 SAYS THAT CONFESSION SHOULD BE BASED UP ON CREDIBLE EVIDENCE FOR DURING THE COURSE OF SURVEY SEARCH AND SEIZURE AND SURVEY OPER ATION. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER PLACED RELIANCE IN THE CASE OF CIT VS. S. KHADER KHAN SON 25 TAXMANN.COM 413 (SC) UPHOLDIN G CIT VS. S KHADER KHAN SON (2008) 300 ITR 157 (MAD) THE HONBL E MADRAS HIGH COURT HELD THAT IT COULD NOT BE SAID SOLELY ON THE BASIS OF STATEMENT GIVEN BY ONE OF THE PARTNER OF THE ASSESSEE FIRM TH AT THE DISCLOSED INCOME WAS ASSESSABLE AS LAWFUL INCOME OF THE ASSES SEE. THE LEARNED COUNSEL OF THE ASSESSEE ALSO PLACED RELIANCE ON THE FOLLOWING DECISIONS: 1. PAUL MATHEWS & SONS (2003) 263 ITR 101 / (2003)129 TAXMAN 416 (KER)/ (2003) 181 CTR 207 (KER.)DR. S C GUPTA V S. CIT (2001) 248 ITR 782(ALL)/(2001)118 TAXMAN 252(ALL) 2. HIRA SINGH & CO. VS. CIT (1998) 230 ITR 791(HP)/147 CTR 364/ 98 TAXMAN 210(HP) I.T.A. NO. 470/IND/2013/A.Y:08-09/M/S. DEEP COLONI ZERS PAGE 7 OF 13 3. CBDT INSTRUCTION NO. F. NO. 286/2/2003-IT (INV.II) DTD. 10.03.2003 4. DCIT CIRCLE 6(1) AHMEDABAD VS. PRAMUKH BUILDERS (2 008)112 ITD 179(AHD)(TM) 5. TDI MARKETING P LTD. 28 SOT 215(DEL) 6. I T O VS. ZUBERI ENGINEERING CO. 128 ITD 375(JAIPU R) 7. CIT VS. DHINGRA METAL WORKS 196 TAXMAN 488(DEL) 8. CIT VS. RADHE ASSOCIATES (2013) 37 TAXMANN.COM 336 (GUJ) 9. CIT VS. M P SCRAP TRADERS (2015) 60 TAXMANN.COM 205 (GUJ.) 10. PULLANGODE RUBBER PRODUCE CO. 91 ITR 18 (SC) 11. SHREE PARSHWANATH CONSTRUCTION 24 TTJ 409 (TRIB-IND ORE) 12. I T O VS. SUBHASH BROTHERS JEWELLERS (P) LTD. (2014 ) 51 TAXMANN.COM 422(KOL-TRIB)/67 SOT 50(KOL-TRIB) 13. ACIT VS. MRS. SUSHILADEVI S AGARWAL (1994) 50ITD 52 4(AHD)/49 TTJ663(AHD) 7. PER CONTRA LEARNED SENIOR (DR) SUPPORTED THE ORDER OF LOWER AUTHORITIES. THE LD. SENIOR (DR) SUBMITTED THAT THE ASSESSEE HAS SPECIFICALLY STATED IN HIS STATEMENT THAT HE HAS MA DE CONSTRUCTION OF NEELAM COLONY HOUSE AND GIVE DETAILS OF THE CONSTRU CTED AREA OF HOUSE; THEREFORE THE ADMISSION WAS BASED ON MATERI AL NOTICED DURING THE COURSE OF SURVEY OPERATION. THE LD. SENIOR (DR) FURTHER SUBMITTED THAT IF CONFESSIONAL STATEMENT IS RETRACTED IT SHO ULD BE RETRACTED WITHIN REASONABLE TIME WITH SUFFICIENT EVIDENCE. IT IS NOT THE CASE OF I.T.A. NO. 470/IND/2013/A.Y:08-09/M/S. DEEP COLONI ZERS PAGE 8 OF 13 THE ASSESSEE THAT SURRENDERED WAS MADE UNDER COERCI ON THREAT OR UNDUE INFLUENCE. THE LD. SENIOR (DR) ALSO PLACED R ELIANCE IN THE CASE OF M/S. KOTTAKKAL WOOD COMPLEX VS. DCIT CC-2 KOZHI KODE IN I. T. A. 27 OF 2013 OF HONBLE KERALA HIGH COURT DTD. 04.07. 2016 WHEREIN IT WAS HELD THAT ASSESSMENT MADE IS NOT ONLY BASED ON STATEMENT UNDER SECTION 133A OF THE ACT AND ALSO SUPPORTED BY THE K VAT ACT PROCEEDINGS AND ALSO RE-AFFIRMED VIDE LETTER DATED 18.09.2007 BY MAKER OF THE STATEMENT AND NOTHING HAS BEEN PRODUC ED TO SHOW THAT CONTENTS OF STATEMENT ARE INCORRECT. THE LD. SENIOR (DR) FURTHER RELIED IN THE CASE OF DR. S. C. GUPTA VS. CIT (2001) 248 I TR 782 (ALL) / 170 CGTR 0421/ 118 TAXMAN 0252(ALL) RATANCHAND BHOLANAT H 83 TAXMAN 213(MP) AND IN SUPPORT OF HIS CONTENTION. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GONE T HROUGH THE ORDERS OF THE LOWER AUTHORITIES AND PERUSED THE MA TERIAL AVAILABLE ON RECORD. WE FIND THAT SHRI DEEPAK BABBAR PARTNER OF THE FIRM HAS MADE A SURRENDERED OF RS.20 LAKH ON ACCOUNT OF EXTRA WORK DONE AN AMOUNT OF RS.20 LAKHS ON ACCOUNT OF CERTAIN ENTRIE S FOR RECEIPTS AND EXPENSES WERE YET TO BE ENTERED IN THE REGULAR BOOK S OF ACCOUNTS. DURING THE COURSE OF SURVEY THE ASSESSEE WAS ASKED TO CLARIFY THE LOOSE PAPERS DOCUMENTS ETC. WHICH THE ASSESSEE CO ULD NOT BE TALLIED WITH REGULAR BOOKS OF ACCOUNTS. FOR SUCH IRREGULARI TIES AMOUNT OF RS. 20 00 000/- WAS SURRENDERED AS UNDISCLOSED INCOME BUT IT IS NOT INCLUDED IN THE RETURN OF INCOME FILED BY THE ASSES SEE. WE FIND THAT I.T.A. NO. 470/IND/2013/A.Y:08-09/M/S. DEEP COLONI ZERS PAGE 9 OF 13 DURING THE COURSE OF SURVEY OPERATION SOME LOOSE PA PERS RELATING TO EXTRA WORK WERE FOUND WHICH WERE CONFRONTED WITH SH RI DEEPAK BABBAR PARTNER OF THE ASSESSEE FIRM HAS ADMITTED THAT THE ASSESSEE HAS CARRIED OUT EXTRA WORK HENCE HE MADE SURRENDER OF RS. 20 LAKHS ON THIS ACCOUNT. SIMILARLY SOME ENTRIES WERE NOT R ECORDED IN THE BOOKS OF ACCOUNTS UP TO DATE OF SURVEY THUS BOOKS OF ACCOUNTS WERE INCOMPLETE AND THERE WERE DISCREPANCIES THEREIN. FU RTHER WE FIND THAT THE ASSESSEE HAS NOT MADE ANY RETRACTION UP TO DATE OF FILING OF RETURN OF INCOME. IF THE CONTENTION OF THE ASSESSEE IS TRU E THEN THIS SHOULD HAVE BEEN BROUGHT TO THE NOTICE OF THE A.O. HOWEVE R NO SUCH DISCLAIMER LETTER WAS FILED. IT IS ALSO NOT THE CAS E OF THE ASSESSEE THAT OTHER PARTNER OF THE ASSESSEE FIRM WAS NOT AGGREGAB LE WITH THE SURRENDER MADE BY ONE PARTNER. THEREFORE UNDER THE SE CIRCUMSTANCES WE ARE OF THE CONSIDERED VIEW THAT T HE STATEMENT MADE BY ONE OF THE PARTNER OF THE ASSESSEE FIRM WAS BIND ING UPON THE ASSESSEE FIRM. 9. WE ALSO FIND SUPPORT FROM DECISION IN THE CASE OF RAMANLAL KAMDAR VS. CIT (1977) 108 ITR 73 (MAD.) WHEREIN IT WAS HEL D THAT ONCE THE ASSESSEE ACCEPTS CERTAIN ADDITION BEFORE THE AUTHO RITIES HE CANNOT BE SAID TO BE AGGRIEVED BY THAT ADDITION AND CANNOT AP PEAL AGAINST IT BEFORE THE APPELLATE AUTHORITIES. 10. THE LD. A. R. HAS PLACED RELIANCE IN THE CASE OF C IT VS. S. KHADER KHAN SON 25 TAXMANN.COM 413 (SC) UPHOLDING CIT VS. S KHA DER KHAN SON I.T.A. NO. 470/IND/2013/A.Y:08-09/M/S. DEEP COLONI ZERS PAGE 10 OF 13 300 ITR 157 (MAD) BUT IN THE SAID CASE ONE OF THE PARTNERS HAD RETRACTED FROM THE STATEMENT BY HIS LETTER WHEREAS IN THE INSTANCE CASE THERE IS NO SUCH RETRACTION. SIMILARLY IN TH E CASE OF PAUL MATHEWS & SONS (2003) 263 ITR 101 /(2003)129 TAXMAN 416 (KER)/ (2003) 181 CTR 207 (KER.) IT WAS STATED THE STATEM ENT UNDER SECTION 133A HAS TO BE READ AS WHOLE AND HE PROVES THAT STA TEMENT IS MADE WITHOUT VERIFYING FACTS OR BOOKS OF ACCOUNTS AND TH AT INCOME DECLARED WAS ALREADY OFFERED THEN IT WAS HELD THAT NO ADDITI ON CAN BE MADE BUT IN THE PRESENT CASE; BOOKS OF ACCOUNTS WERE INCOMPL ETE AND SHRI DEEPAK BABBAR HAS MADE A STATEMENT ON THE BASIS OF DISCREPANCIES NOTICED DURING SURVEY AND HAS ADMITTED UNDISCLOSED INCOME. HENCE SAID CASE IS IN DIFFERENT CONTEXT AND FACTS. 11. THE LEARNED COUNSEL FOR THE ASSESSEE RELIED IN THE CASE OF TDI MARKETING P LTD. 28 SOT 215(DEL) DCIT CIRCLE 6(1) AHMEDABAD VS. PRAMUKH BUILDERS (2008)112 ITD 179(AHD)(TM) CIT VS. RADHE ASSOCIATES (2013) 37 TAXMANN.COM 336 (GUJ) AND CIT VS. M P SCRAP TRADERS (2015) 60 TAXMANN.COM 205 (GUJ.) BUT IN ALL THESE CASES THERE WAS RETRACTION FROM THE STATEMENT WITHIN REASONABLE TIME BUT IN THE INSTANCE CASE THERE IS NO RETRACTION OF STATEMENT B EFORE THE FILING OF RETURN OF INCOME. 12. THE LD. A.R. HAS CITED CBDT INSTRUCTION ISSUED UNDER F. NO. 286/2/2003 DATED10.03.2003 AND DATE 18.12.0014 WHER EIN IT WAS EMPHASIZED THAT ADMISSION SHOULD NOT BE FORCED AND EVIDENCES I.T.A. NO. 470/IND/2013/A.Y:08-09/M/S. DEEP COLONI ZERS PAGE 11 OF 13 WITHOUT ANY EVIDENCE WHEREAS IN THE PRESENT CASE NEITHER RETRACTION NOR THERE IS ANY ALLEGATION OF FORCED CONFESSION IS MADE. 13. THEREFORE WE FIND THAT THE ASSESSEE IS ABLE TO DEM ONSTRATE THAT HOW THE ADMISSION MADE DURING SURVEY IS INCORRECT. THER EFORE SUCH RETRACTION IS PERMISSIBLE IN THE LIGHT OF RATIO LAI D DOWN BY HON'BLE SUPREME COURT IN THE CASE OF PULLANGODE RUBBER PROD UCE CO. LTD.(1973) 91 ITR 18(SC) WHEREIN IT WAS HELD THAT A N ADMISSION IS AN EXTREMELY IMPORTANT PIECE OF EVIDENCE BUT IT CANNOT BE SAID THAT IT IS CONCLUSIVE. IT IS OPEN TO THE PERSON WHO MADE THE A DMISSION TO SHOW THAT IT IS INCORRECT. IN THE INSTANCE CASE NO EVID ENCE WHATSOEVER HAS BEEN BROUGHT ON RECORD BY THE ASSESSEE TO DISPROVE THAT THERE WAS NO ADDITIONAL INCOME AND CONFESSION WAS WRONG. 14. THERE THE LD. SR. D.R. RELIED IN THE CASE OF DR. S. C. GUPTA VS. CIT (2001) 248 ITR 0782(ALL)/ 170 CGTR 0421/ 118 TAXMAN 0252(ALL) WHEREIN HELD THAT A STATEMENT MADE VOLUNTARILY BY THE ASSE SSEE COULD FORM THE BASIS OF ASSESSMENT. THE MERE FACT THAT TH E ASSESSEE RETRACTED THE STATEMENT COULD NOT MAKE THE STATEMENT UNACCEPT ABLE. THE BURDEN LAY ON THE ASSESSEE TO ESTABLISH THAT THE ADMISSION MADE IN THE STATEMENT AT THE TIME OF SURVEY WAS WRONG AND IN FA CT THERE WAS NO ADDITIONAL INCOME. THIS BURDEN WAS NOT EVEN ATTEMPT ED TO BE DISCHARGED. THE ORDER OF THE TRIBUNAL WAS BASED ON FACTS AND NO QUESTION OF LAW AROSE FROM IT. IN THE INSTANT CASE THERE IS NO PRESSURE FOR MAKING SURRENDER AND THE ASSESSEE HAS NOT RETRA CTED WITHIN I.T.A. NO. 470/IND/2013/A.Y:08-09/M/S. DEEP COLONI ZERS PAGE 12 OF 13 REASONABLE TIME. THEREFORE THIS CASE IS SQUARELY C OVERED BY THIS DECISION OF HON'BLE ALLAHABAD HIGH COURT. 15. THE DECISION RELIED BY THE LEARNED SR. (DR) IN THE CASE OF KOTTAKKAL WOOD COMPLEX (SUPRA) OF HONBLE KERALA HIGH COURT A LSO SUPPORTS THE VIEW OF THE REVENUE. SIMILARLY THE DECISION RELIED BY THE REVENUE IN THE CASE OF ACIT VS. HUKUM CHAND JAIN (2010) 191 TAXMAN 319 (CHHATTISGARH) AND HEERA SINGH & CO. 98 TAXMAN 201 (HP) ALSO SUPPORTS OUR VIEW. WE FIND GUIDANCE FROM THE DECISI ON IN THE CASE OF ISAWARDIN MEWALAL VS. CIT (1988) 169 ITR 584(MP)/ 6 7 CTR 66(MP)/35 TAXMAN 314(MP) WHEREIN THE JURISDICTIONAL HIGH COURT HAS LAID DOWN THE RATIO BY REFERRING THE DECISION I N THE CASE OF NARAYAN BHAGWANTRAO GOSAVI BALAJIWALE V GOPAL VINAY K GOSAVI AIR 1960 SC100 THAT AN ADMISSION IS THE BEST EVIDENCE T HAT AN OPPOSING PARTY CAN RELY UPON THOUGH NOT CONCLUSIVE IS DECI SIVE OF THE MATTER UNLESS SUCCESSFULLY WITHDRAWN OR PROVED ERRONEOUS. IT HAS NOT BEEN SHOWN TO US THAT ADMISSION REFERRED TO ABOVE PROVED EITHER ERRONEOUS OR SUCCESSFULLY WITHDRAWN BY THE PERSON WHO MADE TH AT ADMISSION BEFORE THE INCOME TAX AUTHORITIES. IN THE LIGHT OF ABOVE DISCUSSION WE ARE OF THE CONSIDERED OPINION STATEMENT MADE VOLUNT ARILY DURING SURVEY COULD FORM BASIS OF ADDITION UNLESS PROVED O THERWISE. IN VIEW OF THESE FACT AND CIRCUMSTANCES WE ARE OF THE CONSIDE RED OPINION THAT BY MAKING SURRENDER DURING SURVEY THE ASSESSEE DID IN DUCE THE SURVEY TEAM TO ABSTAIN FROM FURTHER COLLECTING INCRIMINATI NG EVIDENCES AGAINST I.T.A. NO. 470/IND/2013/A.Y:08-09/M/S. DEEP COLONI ZERS PAGE 13 OF 13 THE ASSESSEE THEREFORE THE ASSESSEE CANNOT BE ALLO WED TO ENJOY THE BENEFIT OF HIS ACT OF SURRENDER BY NOT OFFERING THE SAME FOR TAXATION. IN VIEW OF THESE FACTS AND CIRCUMSTANCES RESPECTFULLY FOLLOWING THE ABOVE JUDICIAL PRONOUNCEMENTS AND STATEMENT OF PARTNER OF THE ASSESSEE RECORDED DURING THE COURSE OF SURVEY AND SPECIFIC A DMISSION OF UNDISCLOSED INCOME BY THE ASSESSEE`S WE UPHELD THE FINDING OF THE LOWER AUTHORITIES IN MAKING ADDITION ON ACCOUNT OF SURRENDER MADE DURING SURVEY WHICH WAS NOT RETRACTED. ACCORDINGLY THIS GROUND OF APPEAL IS DISMISSED. 16. IN THE RESULT THIS GROUND OF APPEAL OF THE ASSESSE E IS DISMISSED. 17. AS FAR AS GROUND OF CHARGING OF INTEREST U/S. 234B IS CONCERNED IT IS CONSEQUENTIAL IN NATURE. 18. SO FAR GROUND RELATED TO INITIATION OF PENALTY PROC EEDING U/S. 271(1) (C) IS CONCERNED IT IS PREMATURE THEREFORE REQUIRES NO ADJUDICATION FROM OUR SIDE. 19. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DISMI SSED. 20. THIS ORDER PRONOUNCED IN OPEN COURT ON 26TH OCT. 2016. SD/- ( . . ) (D.T.GARASIA) JUDICIAL MEMBER SD/- ( . . ) (O.P.MEENA) ACCOUNTANT MEMBER & / DATED : 26TH OCTOBER 2016.OPM