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

ITA 472/IND/2013 | 2008-2009
Pronouncement Date: 26-10-2016 | Result: Dismissed

Appeal Details

RSA Number 47222714 RSA 2013
Assessee PAN AAEFD2569B
Bench Indore
Appeal Number ITA 472/IND/2013
Duration Of Justice 3 year(s) 4 month(s) 12 day(s)
Appellant M/s. Deep Mohini, 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. 472/IND/2013/A.Y:08-09/M/S. DEEP MOHINI PAGE 1 OF 16 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 MOHINI 100 INDRAPURI BHOPAL PAN:AAEFD 2569B 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. 472/IND/2013 %' ' / ASSESSMENT YEAR: 2008-09 I.T.A. NO. 472/IND/2013/A.Y:08-09/M/S. DEEP MOHINI PAGE 2 OF 16 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.34 48 986/- BEING DIS ALLOWANCE OF DEDUCTION U/S. 80IB(10) WITHOUT CONSIDERING THE EXP LANATION OFFERED BY THE ASSESSEE AND WITHOUT CONSIDERING THE FACTS PROPERLY AND THUS THE ORDER PASSED BY THE COMMISSI ONER OF INCOME TAX (APPEALS) IS UNJUST UNFAIR AND BAD IN L AW. 2. 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.50 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. 50 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. 3. THAT UNDER THE CIRCUMSTANCES CHARGING OF INTEREST OF RS. 8 00641/- U/S. 234B IS NOT JUSTIFIED. I.T.A. NO. 472/IND/2013/A.Y:08-09/M/S. DEEP MOHINI PAGE 3 OF 16 4. 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 . 34 48 986/- BY DISALLOWING DEDUCTION U/S. 80IB)(10) OF THE ACT. 4. SUCCINCTLY THE FACTS AS CULLED OUT FROM THE ORDER OF LOWER AUTHORITIES ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM ENGAG ED IN THE BUSINESS OF CIVIL CONSTRUCTION DEVELOPING AND BUILDING HOUSING PROJECT. THE RETURN OF INCOME WAS FILED ON 30.09.2008 DECLARING TOTAL I NCOME AT RS. 50 000/- THE AO NOTED THAT THE ASSESSEE HAS CLAIMED DEDUCTION OF RS. 34 48 986/- U/S. 80IB(10) BUT THE OWNER OF THE LAND IS M/S. DEEP COLONISERS AND ALSO THE PERMISSION OF PROJECT IS IN THE NAME OF M/S. DEEP COLONISERS. THAT THE ASSESSEE HAS ONLY ENTERED IN TO A JOINT VENTURE AGREEMENT FOR DEVELOPING OF HOUSING PROJECT THAT THE APPELLANT HAS CLAIMED TO DEVELOP THE LAND THE LAND AND CONSTRUCTION OF HOUSING PROJECT ON WHICH DEDUCTION IS CLAIMED U/S. 80IB(10). THE AO WAS OF THE VIEW THAT SECTION 80IB(10) IS APPLICABLE WHERE DEVELOPMENT OF LAND AND BUILDING HOUSING PROJECT IS DONE BY THE APPELLANT. THAT THE ONLY WORK DONE DOES NOT MAKE ENTITLED FOR 100% DEDUCTION U/S. 80IB(10). THE AO ACCORDINGLY HELD THAT THE ASSESSEE HAS NOT DEVELOPED THE LAND WHICH WAS ALREADY DEVELOPED BY THE M/S. DE EP COLONISERS AND ONLY SUCH BUILDING CONSTRUCTION WAS DONE BY THE ASSESSEE NOR THE ASSESSEE HAS FILED COMPLETION CERTIFICATE WITHIN ST IPULATED TIME I.T.A. NO. 472/IND/2013/A.Y:08-09/M/S. DEEP MOHINI PAGE 4 OF 16 THEREFORE THE ASSESSEE IS NOT ENTITLED THE DEDUCTI ON CLAIMED U/S. 80IB(10) OF THE ACT. 5. BEING AGGRIEVED THE ASSESSEE FILED AN APPEAL BE FORE LD. CIT (A). THE LD. CIT (A) CONSIDERED THE SUBMISSION OF THE ASSESS EE AND OBSERVED THAT THE ASSESSEE HAS NOT BROUGHT ON RECORD ANY EVI DENCE THAT APPROVAL WAS FOR THE PURPOSE OF DEVELOPMENT AND CO NSTRUCTION OF HOUSING PROJECT AND NOT FOR BUILDING CONSTRUCTION. FURTHER THERE WERE NO TRANSACTIONS IN BOOKS OF ACCOUNTS INDICATING DEV ELOPMENT/SALE OF LAND. THE APPELLANT HAS NOT REBUTTED THE ASSERTION OF THE A.O. THAT THE APPELLANT IS NOT SELLING ANY CONSTRUCTED PROPERTY. THE APPELLANT HAS FAILED TO BRING ON RECORD ANY EVIDENCE TO THE EFFEC T THAT THE APPELLANT WAS NOT ACTING MERELY AS CONTRACTOR TO THE CUSTOMER FOR WHICH CONSTRUCTION CHARGES WERE BEING PAID BY THE CUSTOM ERS. THE APPELLANT IS NEITHER THE OWNER OF LAND NOR THE SELLER OF THE LAND ON WHICH PROJECT IS CLAIMED TO HAVE BEEN CONSTRUCTED OR UNDERTAKEN. THE AO ALSO RECORDED A FACT THAT THE PROJECT IS NOT APPROVED AS A WHOLE BY BMC ON THE CONTRARY INDIVIDUAL BUILDING PERMISSION HAS BEEN GIVEN. AS THE PERMISSION FOR THE PROJECT WAS IN THE NAME OF M/S. DEEP COLONISERS IT WAS INCUMBENT UPON THE APPELLANT TO PROVE BEYON D ALL SHADOWS OF DOUBT THAT THE RISK AND REWARD VESTED WITH THE APPE LLANT HOWEVER THE APPELLANT HAS NOT BROUGHT ON RECORD ANY EVIDENCE TO PROVE THE SAME. THE DECISION RELIED ON DOES NOT COME TO THE RESCUE OF THE APPELLANT IN VIEW OF DISTINGUISHED FACTS. I.T.A. NO. 472/IND/2013/A.Y:08-09/M/S. DEEP MOHINI PAGE 5 OF 16 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GONE T HROUGH THE ORDERS OF THE LOWER AUTHORITIES AND PERUSED THE MAT ERIAL AVAILABLE ON RECORD. WE FIND FROM THE FINDING OF LOWER AUTHORITI ES THAT THE APPROVAL WAS NOT GIVEN FOR THE PURPOSE OF DEVELOPMENT AND CO NSTRUCTION OF HOUSING PROJECT. NOR THERE WAS ANY TRANSACTIONS IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE INDICATING DEVELOPMENT/SAL E OF THE LAND. THE ASSESSEE HAS ALSO NOT FOUND RECORDED EXPENSES AS PE R THE AGREEMENT IN THE BOOKS OF ACCOUNTS. THE ASSESSEE WAS NOT THE OWNER OF THE LAND NEITHER SELLER OF THE LAND. THE PERMISSION OF BMC W AS FOR INDIVIDUAL BUILDING AND NOT FOR THE WHOLE PROJECT. WE FIND THA T THE PERMISSION WAS IN THE NAME OF M/S. DEEP COLONISERS AND NOT IN THE NAME OF THE ASSESSEE. THE RISK AND REWARD WERE NOT VESTED WITH THE ASSESSEE NOR THE ASSESSEE HAS BROUGHT ON RECORD ANY EVIDENCE TO PROVE THE SAME. WE ALSO FIND THAT IT IS HYPOTHETICAL TO ASSUME THAT SUCH A BUSINESS OF DEVELOPMENT OF HOUSING PROJECT CAN BE RUN WITHOUT S UFFICIENT CAPITAL OF THE PARTNERS. THE AO HAS RECORDED A FINDING OF FACT THAT AFTER EXAMINATION OF BOOKS OF ACCOUNTS THAT THERE WAS ANY TRANSACTIONS IN THE BOOKS OF ACCOUNTS INDICATING DEVELOPMENT OR SAL E OF LAND. IT WAS ALSO NOTICED THAT THE ASSESSEE HAS NOT DEVELOPED A NEW RESIDENTIAL PROPERTY OR CONSTRUCTED OR TRANSFERRED THE NEW PROP ERTY. IN VIEW OF THESE CIRCUMSTANCES WE DO NOT FIND ANY REASONS TO INTERFERE WITH THE FINDING RECORDED BY THE LOWER AUTHORITIES. THEREFOR E THIS GROUNDS OF APPEAL IS DISMISSED. I.T.A. NO. 472/IND/2013/A.Y:08-09/M/S. DEEP MOHINI PAGE 6 OF 16 7. GROUND NO.2 RELATES TO CONFIRMING OF ADDITION OF RS . 50 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. 8. 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 MOHINI. THE ASSESSEE HAS FILED HIS RETURN OF INCOME FILED ON 30.09.2008 DECLARING TOTAL INCOME AT RS. 4 89 980/- . 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. BOOKS OF ACCOUNTS WERE FOUND TO BE MAINTAIN ED ON COMPUTER WHICH WERE INCOMPLETE IN AS MUCH AS ENTRIES IN CA SH BOOK FROM 09.05.2007 TO 22.06.2007 WERE NOT ENTERED HENCE O N ACCOUNT OF INCOMPLETE REGULAR BOOKS OF ACCOUNTS THE ASSESSEE H SURRENDERED A SUM OF RS. 1 LAKH FOR THE ASSESSMENT YEAR 2006-07. FURTHER IN STATEMENT RECORDED ON OATH DURING SURVEY THE ASS ESSEE HAS SURRENDERED A SUM OF RS. 7 LAKHS ON ACCOUNT OF CO NSTRUCTION AND RENOVATION OF HOUSE BUILDING AT JHA SADAN NEEMUCH FOR ASSESSMENT YEAR UNDER CONSIDERATION. HOWEVER THE ASSESSEE HA S NOT DISCLOSED THIS AMOUNT IN HIS RETURN OF INCOME FOR THE ASSESSM ENT YEAR UNDER CONSIDERATION. SINCE THE PARTNER OF THE ASSESSEE F IRM HAS ACCEPTED THE DISCREPANCIES IN THE BOOKS OF ACCOUNTS AND ADMITTED UNDISCLOSED I.T.A. NO. 472/IND/2013/A.Y:08-09/M/S. DEEP MOHINI PAGE 7 OF 16 INCOME AT RS. 50 LAKHS THEREFORE THE AO MADE ADDI TION OF THE SAME BY PLACING RELIANCE IN THE CASE OF ACIT VS. HUKUM C HAND JAIN (2010) 191 TAXMAN 319 (CHHATTISGARH). 9. 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 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 MAJOR MISTAKE. DURING THE COURS E OF SURVEY UNDER SECTION 133A OF THE ACT SHRI DEEPAK BABBAR PARTNE RSHIP FIRM OF THE ASSESSEE WAS IN PRESSURE AND HIS MENTAL STATUS WA S NOT WELL STATUS HENCE HE MADE SURRENDER OF RS.50 00 000/- FOR DISCR EPANCIES IN THE BOOKS OF ACCOUNTS AND AS UNDISCLOSED INCOME OF THE FIRM IN REPLY TO QUESTION NO. 25 OF HIS STATEMENT. IT IS ALSO CLEAR FROM THE STATEMENT THAT NO SPECIFIC DETAILS WERE ASKED FOR REGARDING B USINESS INCOME AND NO INCRIMINATING DOCUMENTS WERE FOUND DURING THE CO URSE OF SURVEY FROM WHICH IT COULD BE ASCERTAINED THAT THERE WAS A NY INVESTMENT IN HOUSE OUT-SIDE BOOKS OF ACCOUNTS. HOWEVER THIS ARG UMENT DOES NOT GO WELL TO LD. CIT (A) . THE LD. CIT (A) ALSO OBSERVED THAT THE ASSESSEE BY MAKING SURRENDER DURING SURVEY DID INDUCE THE SURV EY TEAM TO ABSTAIN FROM COLLECTING INCRIMINATING EVIDENCES A GAINST THE ASSESSEE THEREFORE THE APPELLANT CANNOT BE ALLOWED TO ENJOY THE BENEFIT OF HIS ACT OF SURRENDER AND SUBSEQUENT RETRACTION HENCE T HE ADDITION ARISING OUT OF PARTNERS ADMISSION OF UNDISCLOSED INCOME IS SUSTAINED. I.T.A. NO. 472/IND/2013/A.Y:08-09/M/S. DEEP MOHINI PAGE 8 OF 16 THEREFORE RELAYING THE DECISION IN THE CASE OF ACI T VS. HUKUM CHAND JAIN (2010) 191 TAXMAN 319 (CHHATTISGARH) UPHELD TH E ADDITION SO MADE. 10. 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 WAS UNDER PRESSURE AND A LSO NOT WELL HENCE HE SURRENDERED RS. 7 LAKH. LATER ON ONGOING THROUGH THE BOOKS OF ACCOUNTS HE REALISED HIS MISTAKE AND RETR ACTED FROM SURRENDER. THE LEARNED COUNSEL SUBMITTED THAT READI NG THE QUESTION NO. 21 OF HIS MAKES IT CLEAR THAT THE CASH BOOK WAS WRITTEN UP TO 09.05.2007 IT WAS NOT UPDATED UP TO 22.06.2007. T HE LEARNED COUNSEL OF THE ASSESSEE FURTHER SUBMITTED THAT CBDT CIRCULAR DTD. 10.03.2003 SAYS THAT CONFESSION SHOULD BE BASED UP ON CREDIBLE EVIDENCE FOR DURING THE COURSE OF SURVEY SEARCH AND SEIZURE AND SURVEY OPERATION. THE LEARNED COUNSEL FOR THE ASS ESSEE FURTHER PLACED RELIANCE IN THE CASE OF CIT VS. S. KHADER KHAN SON 25 TAXMANN.COM 413 (SC) UPHOLDING CIT VS. S KHADER KHAN SON (2008) 300 ITR 157 (MAD) THE HONBLE MADRAS HIGH COURT HELD THAT IT C OULD NOT BE SAID SOLELY ON THE BASIS OF STATEMENT GIVEN BY ONE OF TH E PARTNER OF THE ASSESSEE FIRM THAT THE DISCLOSED INCOME WAS ASSESSA BLE AS LAWFUL I.T.A. NO. 472/IND/2013/A.Y:08-09/M/S. DEEP MOHINI PAGE 9 OF 16 INCOME OF THE ASSESSEE. 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) 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-INDORE) 12. I T O VS. SUBHASH BROTHERS JEWELLERS (P) LTD. (2014) 51 TAXMANN.COM 422(KOL-TRIB)/67 SOT 50(KOL-TRIB) I.T.A. NO. 472/IND/2013/A.Y:08-09/M/S. DEEP MOHINI PAGE 10 OF 16 13. ACIT VS. MRS. SUSHILADEVI S AGARWAL (1994) 50ITD 524(AHD)/49 TTJ663(AHD) 11. PER CONTRA LEARNED SENIOR (DR) SUPPORTED THE ORDER OF LOWER AUTHORITIES. THE LD. S ENIOR (DR) SUBMITTED THAT THE ASSESSEE HAS SPECIFICALLY STATED IN HIS STATEMENT THAT HE HAS MADE CONSTRUCTION OF NEELAM COLONY HOUS E AND GIVE DETAILS OF THE CONSTRUCTED AREA OF HOUSE; THEREFORE THE ADMISSION WAS BASED ON MATERIAL NOTICED DURING THE COURSE OF SURV EY OPERATION. THE LD. SENIOR (DR) FURTHER SUBMITTED THAT IF CONFESSI ONAL STATEMENT IS RETRACTED IT SHOULD BE RETRACTED WITHIN REASONABLE TIME WITH SUFFICIENT EVIDENCE. IT IS NOT THE CASE OF THE ASSESSEE THAT S URRENDERED WAS MADE UNDER COERCION THREAT OR UNDUE INFLUENCE. THE LD. SENIOR (DR) ALSO PLACED RELIANCE IN THE CASE OF M/S. KOTTAKKAL WOOD COMPLEX VS. DCIT CC-2 KOZHIKODE IN I. T. A. 27 OF 2013 OF HONBLE K ERALA 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 AN D ALSO SUPPORTED BY THE KVAT ACT PROCEEDINGS AND ALSO RE-AFFIRMED VI DE LETTER DATED 18.09.2007 BY MAKER OF THE STATEMENT AND NOTHING H AS BEEN PRODUCED TO SHOW THAT CONTENTS OF STATEMENT ARE IN CORRECT. THE LD. SENIOR (DR) FURTHER RELIED IN THE CASE OF DR. S. C. GUPTA VS. CIT (2001) 248 ITR 782 (ALL) / 170 CGTR 0421/ 118 TAXMAN 0252( ALL) RATANCHAND BHOLANATH 83 TAXMAN 213(MP) AND IN SUPPO RT OF HIS CONTENTION. I.T.A. NO. 472/IND/2013/A.Y:08-09/M/S. DEEP MOHINI PAGE 11 OF 16 12. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE GONE THROUGH 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 SURRENDER OF RS.50 00 000/- FOR DISCREPANCIES IN T HE BOOKS OF ACCOUNTS AND AS UNDISCLOSED INCOME OF THE FIRM IN R EPLY TO QUESTION NO. 25 OF HIS STATEMENT ON ACCOUNT OF CERTAIN ENTR IES 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 IN REPLY TO QUESTION 24 OF HIS STATEMENT SHRI DEEPAK BABBAR HAS ADMITTED THE ENTRIES OF RS. 32 25 471/- OF EXTRA WO RK AND ENTRIES OF RS. 25 81 069/- OF PAYMENTS WERE NOT RECORDED IN TH E BOOKS OF ACCOUNTS. CONSIDERING THESE DISCREPANCIES HE HAS MADE SURRENDER OF RS. 50 LAKHS ON ACCOUNT OF EXTRA WORK DIFFERENCE IN CONSTRUCTION AND LABOUR PAYMENTS NOT RECORDED IN REGULAR BOOKS OF AC COUNTS IN REPLY TO QUESTION 25 OF HIS STATEMENT DTD. 22.06.2007. THUS SHRI DEEPAK BABBAR PARTNER OF THE ASSESSEE FIRM HAS ADMITTED THAT SOME ENTRIES WERE NOT RECORDED IN THE BOOKS OF ACCOUNTS UP TO DA TE OF SURVEY THUS BOOKS OF ACCOUNTS WERE INCOMPLETE AND THERE WERE DI SCREPANCIES THEREIN HENCE HE MADE SURRENDER OF RS.50 LAKHS ON THIS ACCOUNT. I.T.A. NO. 472/IND/2013/A.Y:08-09/M/S. DEEP MOHINI PAGE 12 OF 16 THESE FACTS SHOWS THAT THERE WAS MATERIAL AVAILABLE WITH SURVEY TEAM ON THAT BASIS THE ASSESSEE HAS MADE SURRENDER OF AD DITIONAL INCOME FOR TAX. FURTHER WE FIND THAT THE ASSESSEE HAS NO T MADE ANY RETRACTION UP TO DATE OF FILING OF RETURN OF INCOM E. IF THE CONTENTION OF THE ASSESSEE IS TRUE THEN THIS SHOULD HAVE BEEN BRO UGHT TO THE NOTICE OF THE A.O. HOWEVER NO SUCH DISCLAIMER LETTER WAS FILED. IT IS ALSO NOT THE CASE OF THE ASSESSEE THAT OTHER PARTNER OF THE ASSESSEE FIRM WAS NOT AGGREGABLE WITH THE SURRENDER MADE BY ONE PARTN ER. THEREFORE UNDER THESE CIRCUMSTANCES WE ARE OF THE CONSIDERED VIEW THAT THE STATEMENT MADE BY ONE OF THE PARTNER OF THE ASSESSE E FIRM WAS BINDING UPON THE ASSESSEE FIRM. 13. 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. 14. 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 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 I.T.A. NO. 472/IND/2013/A.Y:08-09/M/S. DEEP MOHINI PAGE 13 OF 16 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. 15. 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. 16. 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 WITHOUT ANY EVIDENCE WHEREAS IN THE PRESENT CASE NEITHER RETRACTION NOR THERE IS ANY ALLEGATION OF FORCED CONFESSION IS MADE. 17. 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 I.T.A. NO. 472/IND/2013/A.Y:08-09/M/S. DEEP MOHINI PAGE 14 OF 16 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. 18. 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 REASONABLE TIME. THEREFORE THIS CASE IS SQUARELY C OVERED BY THIS DECISION OF HON'BLE ALLAHABAD HIGH COURT. 19. 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 I.T.A. NO. 472/IND/2013/A.Y:08-09/M/S. DEEP MOHINI PAGE 15 OF 16 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 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 I.T.A. NO. 472/IND/2013/A.Y:08-09/M/S. DEEP MOHINI PAGE 16 OF 16 DURING SURVEY WHICH WAS NOT RETRACTED. ACCORDINGLY THIS GROUND OF APPEAL IS DISMISSED. 20. SO FAR AS GROUND OF CHARGING OF INTEREST U/S. 234B IS CONCERNED IT IS CONSEQUENTIAL IN NATURE. 21. 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. 22. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DISMI SSED . 23. THIS ORDER PRONOUNCED IN OPEN COURT ON 26 TH OCTOBER 2016. SD/- ( . . ) (D.T.GARASIA) JUDICIAL MEMBER SD/- ( . . ) (O.P.MEENA) ACCOUNTANT MEMBER & / DATED : 26 TH OCTOBER 2016.OPM