Shree Kishan Rajaram, Aurangabad V. ITO Wd. 3(2), Nanded

ITA 1175/PUN/2009

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 67023 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-05-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 22-01-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 25-09-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources
• Section: 143(3); 133A; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 1175/PN/2009 (ASSESSMENT YEAR : 2005-06) SHREE KISHAN RAJARAM INGLE PLOT NO. L-1, TIRUMALA ARCADE, N-2, CIDCO, AURANGABAD PAN : AAEPE8270G . APPELLANT VS. INCOME TAX OFFICER WARD 3 (2), NANDED . RESPONDENT APPELLANT BY : MR. KISHOR PHADKE RESPONDENT BY : MR. RAJESH DAMOR DATE OF HEARING : 25-04-2013 DATE OF PRONOUNCEMENT : 15-05-2013 ORDER PER G. S. PANNU, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), AURANGABAD DA TED 20.07.2009 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 20.12.2007 PASSED BY THE ASSESSING OFFICER, UNDER SECTION 143(3) READ WITH SECTION 144 OF THE INCOME-TAX ACT, 1961(IN SHORT THE ACT), PERTAINING TO THE ASSESSM ENT YEAR 2005-06. 2. IN THIS APPEAL, THE SOLITARY GRIEVANCE OF THE AS SESSEE, AS MANIFESTED BY THE REVISED GROUNDS OF APPEAL, READS AS UNDER :- 1) ON 18.08.2004 DURING THE SURVEY, INSPECTORS HAV E CHECKED ALL STOCK, RECORDS, BOOKS INVOICES, BILLS, PREMISES OF BUSINESS IN DETAIL. DURING THIS PHYSICAL VERIFICATI ON THEY FOUND SOME ADDITIONAL STOCK ONLY. THIS ALSO ON ACCOUNT OF SOME ACCOUNTING ERRORS. ITA NO. 1175/PN/2009 SHREE KISHAN RAJARAM INGLE A.Y. 2005-06 2) ASSESSEE HAS DECLARED CASH OF RS. 7,50,000/- IN 133A STATEMENT WHICH IS UNDER FULL TENSE, COERCION AND T HREAT. 3) ASSESSING OFFICER HAS TAKEN CASH INVENTORY WHICH IS RS. 1,28,400/- WHICH IS AS PER BOOKS. WHEN ASSESSEE DECLARED THAT HE IS HAVING RS. 7.50 LACS AS CASH THEN ITO SHOULD HAVE VISITED HIS HOME AND VERIFIED THE CASH. IT WAS POSSIBLE FOR HIM TO MAKE INVENTORY OF CASH IN DETAIL. ASSESSING OFFICER HAS NOT DONE LIKE THIS AND THEY RELIED ON ONLY THE STATEMENT OF SEC. 133A WHICH CARRIES NIL EVIDENTIAL VALUE IN LEGAL TERMS. 3. IN BRIEF, THE FACTS ARE THAT ASSESSEE IS AN INDI VIDUAL CARRYING ON A PROPRIETORY BUSINESS OF DEALERSHIP OF INDIAN OIL CORPORATION OF HIGH SPEED DIESEL, MOTOR SPRIT AND OIL. ON 18.08.2004, A SURVEY ACTION UNDER SECTION 133A OF THE ACT WAS CARRIED OUT IN TH E BUSINESS PREMISES OF THE ASSESSEE. CERTAIN DISCREPANCIES FOR INSTANCE, NON- MAINTENANCE OF INVENTORY OF STOCK, INCOMPLETE BOOKS OF ACCOUNT, UNAVAILABILITY OF DETAILS IN RESPECT OF EXPENDITURE S, ETC. WERE NOTICED. A STATEMENT OF THE ASSESSEE WAS ALSO RECORDED IN TH E COURSE OF SURVEY PROCEEDINGS AND INTER-ALIA , BY WAY OF AN ANSWER TO QUESTION NO. 22, ASSESSEE DECLARED ADDITIONAL INCOME IN THE FOLLOWING MANNER:- I WISH TO DECLARE THE FOLLOWING AS MY ADDITIO NAL INCOME FOR THE ASSESSMENT YEAR 2003-04 TOTAL RS. 21,83,353/- 1) DEPOSITS SHOWN ON 31.03.2003 RS. 14,82,800/- 2) FOR FAILURE TO MAINTAIN EXPENSE VOUCHERS RS. 6 ,62,000/- 3) SUBSIDY INCOME RS. 38,553/- TOTAL RS. 21,83,353/- FOR THE ASSESSMENT YEAR 2004-05 TOTAL RS. 15,00,000/- 1) STOCK DIFFERENCE & G.P. RS. 5,00,000/- 2) FOR FAILURE TO MAINTAIN EXPENSE VOUCHERS RS. 10, 00,000/- TOTAL RS. 15,00,000/- ITA NO. 1175/PN/2009 SHREE KISHAN RAJARAM INGLE A.Y. 2005-06 FOR THE ASSESSMENT YEAR 2005-06 TOTAL RS. 9,00,000/- 1) UNACCOUNTED CASH BALANCE RS. 7,50,000/- 2) STOCK DIFFERENCE RS. 1,50,000/- TOTAL RS. 9,00,000/- GRAND TOTAL RS. 45,83,353/- 4. IN THIS BACKGROUND, THE ASSESSING OFFICER EXAMIN ED THE RETURN OF INCOME FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2005-06 AND NOTED THAT WHILE IN THE COURSE OF SURVEY ACTION , ASSESSEE HAD DECLARED AN ADDITIONAL INCOME ON ACCOUNT OF UNACCOU NTED CASH BALANCE OF RS.7,50,000/- WHEREAS IN THE RETURN OF I NCOME FILED, ASSESSEE HAD DISCLOSED ADDITIONAL INCOME OF RS.50,0 00/- ONLY AND THUS THE DIFFERENCE OF RS.7,00,000/- WAS ADDED TO T HE TOTAL INCOME. THE ASSESSEE CHALLENGED THE ADDITION BEFORE THE CIT (A) ON THE GROUND THAT THE ASSESSING OFFICER ERRED IN MAKING T HE ADDITION MERELY ON THE BASIS OF THE STATEMENT RECORDED IN TH E SURVEY PROCEEDINGS. AS PER THE ASSESSEE, THE ADDITION WAS BASED ONLY ON THE STATEMENT RECORDED DURING THE SURVEY ACTION UND ER SECTION 133A OF THE ACT AND IN THE ABSENCE OF ANY EVIDENCE, IT I S NOT SUSTAINABLE. THE CIT(A) HAS AFFIRMED THE ADDITION MADE BY THE AS SESSING OFFICER ON THE GROUND THAT THE ASSESSEE HAD HIMSELF VOLUNTA RILY DECLARED SUCH INCOME DURING THE COURSE OF SURVEY ACTION. AGA INST SUCH SUSTENANCE OF ADDITION BY THE CIT(A), ASSESSEE IS I N FURTHER APPEAL BEFORE US. 5. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE VEHEMENTLY POINTED OUT THAT NO ADDITION IS SUSTAINABLE MERELY ON ACCOUNT OF A DECLARATION FILED BY THE ASSESSEE AND IT IS POINTED OUT THAT THERE WAS NO EVIDENCE GATHERED BY THE ASSESSING OFFICER IN TH E COURSE OF ITA NO. 1175/PN/2009 SHREE KISHAN RAJARAM INGLE A.Y. 2005-06 SURVEY, SO AS TO JUSTIFY THE IMPUGNED ADDITION. THE LEARNED COUNSEL HAS FURTHER REFERRED TO THE STATEMENT RECORDED AT T HE TIME OF SURVEY TO POINT OUT THAT THERE WAS NO EVIDENCE TO SUGGEST EXISTENCE OF AFORESAID UNACCOUNTED CASH BALANCE AND THEREFORE, T HE ASSESSING OFFICER WAS NOT JUSTIFIED IN MAKING THE IMPUGNED AD DITION. APART THEREFROM, THE LEARNED COUNSEL FOR THE ASSESSEE SUB MITTED THAT A STATEMENT RECORDED IN THE COURSE OF SURVEY ACTION U NDER SECTION 133A OF THE ACT DOES NOT HAVE ANY EVIDENTIARY VALUE AND FOR THAT MATTER, REFERENCE HAS BEEN MADE TO THE JUDGEMENT OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. S. KHADER KHAN SON (2008) 300 ITR 157 (MAD.). RELIANCE HAS ALSO BEEN PLACED O N THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DHINGRA METAL WORKS (2011) 196 TAXMAN 488 (DELHI) FOR THE PROPOSI TION THAT DECLARATION MADE DURING THE SURVEY CANNOT BE THE SO LE BASIS OF ADDITION. 6. ON THE OTHER HAND, LEARNED DEPARTMENTAL REPRESEN TATIVE APPEARING FOR THE REVENUE HAS VEHEMENTLY POINTED OU T THAT THE LOWER AUTHORITIES WERE JUSTIFIED IN MAKING THE IMPU GNED ADDITION HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE. IT WAS POINTED OUT THAT DURING THE COURSE OF SURVEY, ASSES SEE HAD DECLARED ADDITIONAL INCOME FOR THE VARIOUS ASSESSMENT YEARS UNDER VARIED HEADS AND THAT THERE WAS NO JUSTIFICATION FOR THE A SSESSEE NOT TO HAVE DECLARED IMPUGNED INCOME IN THE RETURN OF INCO ME FILED SUBSEQUENTLY. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. IN THIS CASE, FACTUAL SPEAKING IT IS NOT IN DISPUTE THAT IN THE COURSE OF SURVEY, ASSESSEE DECLARED CERTAIN ADDITIONAL INCOME FOR THREE ASSESSMENT YEARS I.E. A.Y. 2003-04, A.Y. 2004-05 AN D A.Y. 2005-06, WHICH WE HAVE ALREADY EXTRACTED ELSEWHERE IN THIS O RDER. THE ITA NO. 1175/PN/2009 SHREE KISHAN RAJARAM INGLE A.Y. 2005-06 DISPUTE BEFORE US IS WITH REGARD TO AN AMOUNT OF RS .7,00,000 WHICH REPRESENTS ADDITIONAL INCOME ON ACCOUNT OF UNACCOUN TED CASH BALANCE OF RS.7,50,000/- DECLARED BY THE ASSESSEE F OR ASSESSMENT YEAR 2005-06. IN ORDER TO APPRECIATE THE MANNER IN WHICH THE SAID DECLARATION WAS MADE BY THE ASSESSEE, IT WOULD BE A PPROPRIATE TO REFER TO THE ANSWERS GIVEN BY THE ASSESSEE TO QUEST ION NOS. 6 AND 7 IN THE COURSE OF STATEMENT RECORDED AT THE TIME OF SURVEY IN ASSESSMENT YEAR 2006-07, WHICH ARE REPRODUCED AS UN DER :- Q. NO. 6:- WHICH BOOKS OF ACCOUNTS YOU HAVE MAINTA INED WITH REGARDS TO ABOVE MENTIONED BUSINESS, AND TILL WHICH DATE? WHERE YOU HAVE KEPT THOSE BOOKS OF ACCOUNTS? ANS. I HAVE MAINTAINED CASH BOOK, LEDGER, STOCK REG ISTER. BUT FOR THE CURRENT YEAR BOOKS OF ACCOUNTS ARE YET TO BE MAINTAINED BUT THE SALES AND PURCHASE INVOICES A RE MAINTAINED. Q. NO. 7:- AS ON DATE WHAT IS CASH IN HAND BALANCE? AND HOW DO YOU RECONCILE IT WITH CASH BOOK? ANS. AS ON DATE I HAVE CASH IN HAND OF RS. 1,28,400 /-. SINCE I HAVE NOT MAINTAINED CASH BOOK AND OTHER BOOKS OF ACCOUNTS I CANNOT CONFIRM WHETHER THIS CAS H IN HAND BALANCE IS AS PER CASH BOOK. APART FROM ABO VE MENTIONED CASH BALANCE I HAVE CASH IN HAND OF RS.7,50,000/- (IN WORDS- SEVEN LAKHS AND FIFTY THOUSAND ONLY) AT MY RESIDENCE. SINCE I CANNOT GIVE FULL DETAILS OF RS.7,50,000/-, I REQUEST YOU TO CON SIDER THIS AMOUNT AS A PART OF INCOME FOR THE ASSESSMENT YEAR 2005-06. 8. IN THE RETURN OF INCOME FILED FOR THE ASSESSMENT YEAR 2005-06, THE ASSESSEE DECLARED ADDITIONAL INCOME ON ACCOUNT OF UNACCOUNTED CASH OF RS.50,000/- ONLY INSTEAD OF RS.7,50,000/- D ECLARED AT THE TIME OF SURVEY. THE ASSESSING OFFICER HENCE ASSESSE D THE BALANCE ITA NO. 1175/PN/2009 SHREE KISHAN RAJARAM INGLE A.Y. 2005-06 OF RS.7,00,000/- ALSO WHILE DETERMINING THE TOTAL I NCOME FOR THE ASSESSMENT YEAR 2005-06. 9. THE ASSESSEE HAS RESISTED THE ADDITION OF RS. 7, 00,000/- ON THE GROUND THAT A MERE ADMISSION BY THE ASSESSEE IS NOT CONCLUSIVE AND THAT THERE WAS NO EVIDENCE GATHERED DURING THE COURSE OF SURVEY, THAT THE IMPUGNED SUM OF RS. 7,00,000/- REF LECTED ANY UNACCOUNTED INCOME. IN THIS REGARD, WE FIND THAT TH E TOTAL ADDITIONAL INCOME OF RS. 45,83,353/- DECLARED BY THE ASSESSEE FOR THREE ASSESSMENT YEARS I.E. A.Y. 2003-04, A.Y. 2004-05 AN D A.Y. 2005-06 IS PRIMARILY ON FOLLOWING COUNTS, NAMELY, STOCK DIF FERENCE, FAILURE TO MAINTAIN EXPENSE VOUCHERS, UNACCOUNTED CASH, SUBSID Y INCOME AND UNEXPLAINED DEPOSITS, ETC.. NOTABLY, IN SO FAR AS T HE ADDITIONAL INCOME DECLARED OTHER THAN THE IMPUGNED UNACCOUNTED CASH BALANCE IS CONCERNED, THE SAME RELATE TO THE BUSINESS ACTIV ITIES OF THE ASSESSEE. WITH REGARD TO THE UNACCOUNTED CASH BALAN CE DECLARED FOR ASSESSMENT YEAR 2005-06, THE SAME IS OTHER THAN THE CASH IN HAND OF BUSINESS AS IS EVIDENT FROM THE ANSWER OF THE AS SESSEE TO QUESTION NO. 7, WHICH WE HAVE EXTRACTED ABOVE. A PE RUSAL OF THE STATEMENT SHOWS THAT THE ASSESSEE WAS NOT PUT ANY Q UESTION WITH REGARD TO AMOUNT OF RS.7,50,000/-, PURPORTEDLY THE SAME WAS LYING AT THE RESIDENCE OF ASSESSEE. PERTINENTLY, THE DEPARTM ENT WAS ALSO NOT AWARE OF THE SAME INASMUCH AS THE QUESTION ON CASH IN HAND RAISED BY THE ASSESSING OFFICER WAS ONLY WITH REGARD TO TH E CASH IN HAND AS PER THE BOOKS OF ACCOUNT. IT WAS THE ASSESSEE HIMSE LF, AFTER EXPLAINING THE CASH IN HAND OF RS.1,28,400/- VIS-- VIS HIS BOOKS OF ACCOUNT, VOLUNTARILY STATED THAT HE HAD A CASH BALA NCE OF RS.7,50,000/- AS HIS RESIDENCE FOR WHICH HE COULD N OT GIVE FULL DETAILS AND HE OFFERED THE SAME AS AN ADDITIONAL INCOME FOR THE ASSESSMENT YEAR 2005-06. PERTINENTLY, THE SURVEY ACTION HAD TA KEN PLACE AT THE BUSINESS PREMISES OF THE ASSESSEE AND THE QUESTION THAT WAS BEING ITA NO. 1175/PN/2009 SHREE KISHAN RAJARAM INGLE A.Y. 2005-06 DIRECTED TO THE ASSESSEE RELATED TO HIS BUSINESS AC COUNTS. THE EMERGENCE OF THE CASH BALANCE AT THE RESIDENCE WAS A FEATURE BROUGHT OUT BY THE ASSESSEE SUO MOTTO TO THE SURVEY PARTY PRESENT AT HIS BUSINESS PREMISES; AND QUITE CLEARLY, THE FACTU M OF THE IMPUGNED CASH BALANCE AT THE RESIDENCE WAS TO THE EXCLUSIVE AND SPECIFIC KNOWLEDGE OF THE ASSESSEE AND THE ASSESSEE ALONE. T HEREFORE, HAVING VOLUNTEERED TO DECLARE SUCH INCOME DURING TH E SURVEY ACTION, WHICH WAS IN THE DOMAIN OF HIS SPECIFIC KNOWLEDGE A LONE, THE ASSESSEE CANNOT TURN-AROUND AND SAY THAT THE ASSESS ING OFFICER OUGHT TO HAVE GATHERED EVIDENCE TO JUSTIFY SUCH AN ADDITION. QUITE CLEARLY, ANY FURTHER INVESTIGATIONS ON THIS ASPECT WERE FORECLOSED BY THE ASSESSEE BY SUO-MOTTO DECLARING THE EXISTENCE OF CASH BALANCE OF RS. 7,50,000/- AND SIMULTANEOUSLY OFFERING IT AS ADDITIONAL INCOME AT THE TIME OF SURVEY. THEREFORE, ON A SUBSEQUENT D ATE, IN THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE CANNOT TURN -AROUND AND PUT THE ONUS ON THE ASSESSING OFFICER TO JUSTIFY SU CH ADDITION. IN OUR CONSIDERED OPINION, THE ASSESSEE IS NOT JUSTIFIED I N RESISTING THE IMPUGNED ADDITION. 10. SO FAR AS THE PLEA OF THE ASSESSEE THAT ADMISSI ON BY ASSESSEE IS NOT CONCLUSIVE IS CONCERNED, THE SAID PROPOSITIO N IS QUITE WELL- SETTLED, BUT THE SAME IS NOT ABSOLUTE, THE SAME IS TO BE CONSIDERED IN THE LIGHT OF ATTENDANT FACTS. IT IS ALSO TO BE APPR ECIATED THAT ONCE THERE IS AN ADMISSION MADE DURING THE SURVEY, IT IS AN EXTREMELY IMPORTANT PIECE OF EVIDENCE. THE ONUS IS ON THE ASS ESSEE TO DEMONSTRATE THAT THE ADMISSION MADE DURING THE SURV EY WAS ERRONEOUS OR WAS UNDER A MISCONCEPTION OF LAW. BY M ERELY SAYING THAT THERE IS NO EVIDENCE WITH THE ASSESSING OFFICE R TO SUPPORT THE ADDITION, THE ONUS CAST ON THE ASSESSEE TO DEMONSTR ATE THAT THE ADMISSION MADE DURING THE SURVEY WAS ERRONEOUS OR U NDER MISCONCEPTION OF LAW IS NOT DISCHARGED. THE RELIANC E PLACED BY THE ITA NO. 1175/PN/2009 SHREE KISHAN RAJARAM INGLE A.Y. 2005-06 ASSESSEE ON THE JUDGEMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF DHINGRA METAL WORKS (SUPRA) IS ALSO MISPLAC ED INASMUCH AS THE FACTS IN THE SAID CASE STAND ON A DIFFERENT FOO TING. IN THE CASE BEFORE THE HONBLE HIGH COURT, ASSESSEE HAD ADMITTE D CERTAIN ADDITIONAL INCOME ON ACCOUNT OF DISCREPANCIES IN ST OCK WHICH HE RETRACTED SUBSEQUENTLY. THE AFORESAID RETRACTED STA ND OF THE ASSESSEE WAS UPHELD BY THE HONBLE HIGH COURT, SO H OWEVER IT IS TO BE NOTED THAT THE ASSESSEE THEREIN WAS ABLE TO EXPL AIN THE DISCREPANCY IN STOCK NOTICED DURING THE COURSE OF S URVEY. IT WAS IN THIS BACKGROUND, THE HONBLE HIGH COURT OBSERVED TH AT THOUGH AN ADMISSION MADE DURING THE SURVEY IS AN EXTREMELY IM PORTANT PIECE OF EVIDENCE, BUT IT CANNOT BE SAID TO BE CONCLUSIVE AN D IT IS UPON THE PERSON WHO MADE ADMISSION TO SHOW THAT IT WAS INCOR RECT. IN THE PRESENT CASE, THE ADDITIONAL INCOME ON ACCOUNT OF U NACCOUNTED CASH BALANCE DECLARED BY THE ASSESSEE WAS TO THE SPECIFI C KNOWLEDGE OF THE ASSESSEE AND THERE IS NO EFFORT OR EVIDENCE LED BY THE ASSESSEE TO DEMONSTRATE THAT THE DECLARATION SO MADE DURING THE SURVEY WAS ERRONEOUS OR UNDER A MISCONCEPTION OF LAW. THEREFOR E, THE RATIO OF THE JUDGEMENT OF THE HONBLE DELHI HIGH COURT IN TH E CASE DHINGRA METAL WORKS (SUPRA) IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. 11. ANOTHER PLEA RAISED BY THE ASSESSEE IS TO THE E FFECT THAT HIS STATEMENT RECORDED IN THE COURSE OF SURVEY UNDER SE CTION 133A OF THE ACT DOES NOT HAVE ANY EVIDENTIARY VALUE AND THE REFORE THE IMPUGNED ADDITION IS UNSUSTAINABLE. THE ASSESSEE HA S ALSO REFERRED TO THE JUDGEMENT OF THE HONBLE HIGH COURT OF MADRA S IN THE CASE OF S. KHADER KHAN SON (SUPRA) IN SUPPORT OF THE PROPOS ITION THAT STATEMENT RECORDED DURING THE SURVEY ACTION UNDER S ECTION 133A OF THE ACT DOES HAVE ANY EVIDENTIARY VALUE. IN OUR CON SIDERED OPINION, THE JUDGEMENT OF THE HONBLE MADRAS HIGH COURT STAN DS IN THE ITA NO. 1175/PN/2009 SHREE KISHAN RAJARAM INGLE A.Y. 2005-06 BACKGROUND OF THE FACTS WHICH PREVAILED IN THE CASE BEFORE THE COURT AND THE FACTS AND CIRCUMSTANCES IN THE PRESENT CASE ARE QUITE DIFFERENT. IN THE CASE BEFORE THE HONBLE HIGH COUR T DURING A SURVEY ACTION UNDER SECTION 133A OF THE ACT ON 24.07.2001, PARTNER OF THE FIRM OFFERED CERTAIN ADDITIONAL INCOME FOR TWO ASSE SSMENT YEARS. HOWEVER, THE ASSESSEE FIRM RETRACTED THE SAID STATE MENT WITHIN A FEW DAYS I.E. ON 03.08.2001 EXPLAINING THAT THE PARTNER WHOSE STATEMENT WAS RECORDED DURING THE SURVEY ACTION WAS NEW TO TH E MANAGEMENT AND THAT IN ANY CASE ADHOC ADDITION AGREED TO BY TH E SAID PARTNER WAS NOT ACHIEVABLE CONSIDERING THE BUSINESS COMPETI TION AND DUE TO THE LEGISLATION BY THE GOVERNMENT PROHIBITING SMOKI NG IN PUBLIC PLACES. IT WAS UNDER THESE CIRCUMSTANCES THE STATEM ENT OF THE PARTNER RECORDED DURING THE SURVEY WAS CLAIMED TO B E LACKING IN EVIDENTIARY VALUE AND SUCH A PLEA WAS UPHELD BY THE HONBLE HIGH. IN OUR CONSIDERED OPINION, THE FACT SITUATION BEFOR E THE HONBLE MADRAS HIGH WAS ENTIRELY DIFFERENT THAN THE PRESENT CASE. IN THE CASE BEFORE THE HONBLE HIGH COURT, ASSESSEE RETRACTED F ROM THE STATEMENT AT THE EARLIEST OPPORTUNITY I.E. WITHIN 1 0 DAYS OF THE ADMISSION AND ALSO EXPLAINED THE CIRCUMSTANCES IN W HICH THE ADMISSION MADE DURING THE SURVEY WAS ERRONEOUS AND CONTRARY TO THE FACT POSITION. IN THE PRESENT CASE, IN THE COUR SE OF THE HEARING BEFORE US, THE ASSESSEES COUNSEL WAS ASKED TO WHAT IS THE POSITION WITH REGARD TO THE ADDITIONAL INCOME OFFERED IN THE OTHER ASSESSMENT YEARS AND UNDER OTHER HEADS. THE LEARNED COUNSEL AF FIRMED THAT THERE WAS NO OTHER DISPUTE WITH THE REVENUE EXCEPT WITH REGARD TO THE IMPUGNED SUM OF RS. 7,00,000/-. CONSIDERED IN T HIS LIGHT AND ALSO THE FACT THAT THE ASSESSEE HAS NOT BEEN ABLE T O SHOW AS TO HOW THE ADMISSION IN QUESTION WAS ERRONEOUS, IT CANNOT DRAW SUPPORT FROM THE PROPOSITION LAID DOWN BY THE HONBLE HIGH COURT WHICH WAS UNDER DIFFERENT SET OF CIRCUMSTANCES. IN THE PRESEN T CASE, THE ASSESSEE HAS RETRACTED FROM HIS STATEMENT OF DECLAR ATION OF INCOME ITA NO. 1175/PN/2009 SHREE KISHAN RAJARAM INGLE A.Y. 2005-06 ONLY IN THE RETURN OF INCOME FILED ON 31.10.2005 WH ICH MUCH AFTER THE DATE OF SURVEY I.E. 18.08.2004. PERTINENTLY, IT IS A CASE WHERE THE ASSESSEE HAS NEITHER BEEN ABLE TO SHOW THE ERROR IN THE DECLARATION MADE AT THE TIME OF SURVEY AND NOR IS THE RETRACTIO N PROMPT SO AS TO DISPLAY BONAFIDES. THEREFORE, THE DECISION OF THE H ONBLE HIGH COURT IN THE CASE OF S. KHADER KHAN SONS (SUPRA) DOES NOT HELP THE CASE OF THE ASSESSEE. 12. CONSIDERING THE AFORESAID DISCUSSION, IN OUR VI EW, THE LOWER AUTHORITIES MADE NO MISTAKE IN HOLDING THAT THE SUM OF RS. 7,00,000/- WAS LIABLE TO BE ASSESSED AS UNACCOU NTED CASH BALANCE IN TERMS OF THE DECLARATION OF ADDITIONAL I NCOME MADE BY THE ASSESSEE DURING THE SURVEY ON 18.08.2004 UNDER SECT ION 133A OF THE ACT. THE STAND OF THE LOWER AUTHORITIES IS HERE BY AFFIRMED. 13. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH MAY, 2013. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 15 TH MAY, 2013 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A), AURANGABAD; 4) THE CIT, AURANGABAD; 5) THE DR, B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY I.T.A.T., PUNE