Sh. Suresh Chand Agarwal, Agra V. A.C.I.T., Circle-4(1), Agra

ITA 191/AGR/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0737 (ITAT-AGRA)
• Duration Of Justice: 5 year(s) 11 month(s) 9 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-07-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 07-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L MAURYA
• Keywords: Search and seizure; Loose papers; Retraction; Revised return; Set aside
• Section: 271(1)(c); 133A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 191/AGRA/2013 ASSTT. YEAR : 2009-10 SURESH CHAND AGARWAL, VS. A.C.I.T., CIRCLE 4(1), 20, KAVERI KUNJ, AGRA. KAMLA NAGAR, AGRA. (PAN: ABHPA 9742 K) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PANKAJ GARGH, ADVOCATE RESPONDENT BY : SHRI S.L. MAURYA, SR. D.R. DATE OF HEARING : 25.07.2013 DATE OF PRONOUNCEMENT OF ORDER : 31.07.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A)-II, AGRA DATED 20.03.2013 FOR THE ASSESSMENT YEAR 2009- 10, CHALLENGING THE ADDITION OF RS.14,00,000/-. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE AO M ADE ADDITION OF RS.14,00,000/- ON THE BASIS OF STATEMENT OF ASSESSEE RECORDED DURI NG THE COURSE OF SURVEY CONDUCTED ON 08.09.2010 AT THE BUSINESS PREMISES OF THE ASSESSEE. THE ASSESSEE AT THE TIME OF SURVEY MADE A DISCLOSURE OF RS.50,00,00 0/- BUT WHILE FILING THE REVISED ITA NO. 191/AGRA/2013 2 RETURN, THE AMOUNT WAS SURRENDERED OF RS.36,00,000/ - ONLY. THE AO ACCORDINGLY, MADE ADDITION ON THE BASIS OF STATEMENT OF ASSESSEE . THE ADDITION WAS CHALLENGED BEFORE THE LD. CIT(A) AND THE ASSESSEE MADE FOLLOWI NG WRITTEN SUBMISSIONS, WHICH IS REPRODUCED IN THE APPELLATE ORDER AS UNDER : '1. THAT: SURVEY U/S 133A OF THE ACT WAS CONDUCTED ON 08-09-2010 AT THE BUSINESS PREMISES OF THE ASSESSEE. THE ASSESSEE IS IN THE BUSINESS OF COLONIZING AND CONTRACT WORK. BESIDE THIS HE ALS O HAS COMMISSION INCOME AS AN AGENT IN PURCHASE AND SALE OF PROPERTY ON BEHALF OF THE CLIENT. 1.2. THAT DURING THE COURSE OF SURVEY IN STATEMENT RECORDED BY THE SURVEY OFFICER THE ASSESSEE SURRENDER RS. 50 LACS I N A. Y. 2009-10 AS UNDISCLOSED INCOME. 1.3. THAT IN THE RECEIVED RETURN FILED FOR A. Y. 20 09-10 THE ASSESSEE SURRENDER AND INCLUDE RS. 36 LACS UNDER THE HEAD IN COME FROM OTHER SOURCES IN HIS RETURN OF INCOME. STATEMENT GIVING T HE BREAKUP OF RS. 36 LACS WAS FILED DURING THE COURSE OF ASSESSMENT P ROCEEDINGS REPRODUCED BY THE ASSESSING OFFICER IN THE ASSESSME NT ORDER. 1.4 THAT DURING THE COURSE OF ASSESSMENT PROCEEDING S ASSESSEE WAS ASKED THAT AT THE TIME OF SURVEY PROCEEDINGS HE SUR RENDERED RS. 50 LACS THEN WHY HE HAS SHOWN ONLY RS. 36 LACS IN HIS RETURN OF INCOME. IN REPLY THE ASSESSEE STATED THAT ON GOING THROUGH THE MATERIAL THE ITA NO. 191/AGRA/2013 3 SAID AMOUNT OF RS. 36 LACS HAS BEEN SHOWN. LOOKING TO THE HEALTH AND THE PEACE OF MIND IF ANY PENAL ACTION IS NOT TAKEN AGAINST ME, I AM READY TO PAY TAX ON 14 LACS,. THE ACCEPTANCE OF THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS WAS CONDITIONA L THAT NO PENAL ACTION SHOULD BE TAKEN WITHOUT THERE BEING ANY MATE RIAL SHOWN BY THE ASSESSING OFFICER THAT INCOME SURRENDERED IN RETURN RS. 36 LACS IS WRONG. THE ASSESSING OFFICER HAS INITIATED PROCEEDI NGS U/S 271(1)(C) OF THE ACT AND HENCE THE CONDITIONAL SURRENDER OF R S. 14 LACS CANNOT BE TAKEN AS AN EVIDENCE ON BASIS TO MAKE ADDITION. 1.5 THAT THE AMOUNT OF RS. 36 LACS AS SHOWN IN THE RETURN IS AFTER CONSIDERING THE MATERIAL FOUND DURING THE COURSE OF SURVEY. BREAKUP OF THE SAME WAS FILED. THE ASSESSING OFFICER HAS NE ITHER POINTED OUT ANY MISTAKE IN THE BREAKUP OF RS. 36 LACS NOR HAS B ROUGHT ANYTHING ADVERSE TO POINT OUT THAT UNDISCLOSED INCOME OF THE ASSESSEE TO BE TAXED IS MORE THAN RS. 36 LACS OR IT IS RS. 50 LACS . ONLY ON THE BASIS OF THE STATEMENT THE ASSESSING OFFICER HAS MADE AN ADDITION WHICH IS APPARENTLY WRONG AND ILLEGAL AND DESERVES TO BE DEL ETED. 1.6 (I) HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF ABDUL QAYUAM VS. CIT REPORTED IN 184 ITR 404 HAS HELD' AN ADMISS ION OR ACQUIESCENCE CANNOT BE A FOUNDATION FOR AN ASSESSME NT. IT IS ALWAYS OPEN TO AN ASSESSEE TO DEMONSTRATE AND SATISFY THE AUTHORITY CONCERN THAT A PARTICULAR INCOME IS NOT TAXABLE IN THIS HAN DS'. (II) HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF DR . S.C. GUPTA VS. CIT REPORTED IN 248 ITR 782 HAS HELD, IT IS A SETTL ED LAW THAT THOUGH ITA NO. 191/AGRA/2013 4 AN ADMISSION IS EXTREMELY IMPORTANT PEACE OF EVIDEN CE, IT CANNOT BE SAID TO BE CONCLUSIVE AND IT IS OPEN TO THE PERSON WHO HAS MADE THE ADMISSION TO SHOW THAT IT IS NOT CORRECT. (III) HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. S. KHADER KHAN SON REPORTED IN 300 ITR 157. (IV) HON'BLE CHATTISGARH HIGH COURT IN THE CASE IT O VS. VIJAY KUMAR KESAR REPORTED IN 327 ITR 497. (V) HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CAS E OF KISHAN LAL SHIV CHAND RAI VS. CIT REPORTED IN 88 ITR 293. (VI) HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS . DHINGRA METAL WORKS (ITA NO. 111/2010 DATED 04.10.2010) (VIII) HON'BLE ITAT AGRA BENCH IN THE CASE OF MAYA TRADING CO. 3. THE LD. CIT(A) CONSIDERING THE SUBMISSIONS OF TH E ASSESSEE AND THE FACTS OF THE CASE CONFIRMED THE ADDITION. HIS FINDINGS IN PA RA 4.1 OF THE APPELLATE ORDER ARE REPRODUCED AS UNDER : 4.1. I HAVE CAREFULLY CONSIDERED THE ASSESSMENT O RDER AS WELL AS THE WRITTEN SUBMISSION OF THE APPELLANT. THE AMO UNT SURRENDERED DURING SURVEY PROCEEDINGS WAS RS. 50,00,000/-WHEREA S THE ASSESSEE WHILE FILING THE RETURN OF INCOME HAS SHOWN ONLY RS . 36,00.000,[- AS UNDISCLOSED INCOME, WHICH HAS BEEN REPRODUCED BY TH E AO IN THE ITA NO. 191/AGRA/2013 5 ASSESSMENT ORDER. THE AO WHILE MAKING THE ADDITION OF RS. 14,00,000/- HAS SUBSTANTIALLY RELIED ON THE STATEME NT OF THE ASSESSEE RECORDED DURING THE SURVEY PROCEEDINGS. NO VERIFICA TION APPEARS TO HAVE BEEN MADE ON THE CLAIM OF THE APPELLANT THAT U NDISCLOSED INCOME AFTER CONSIDERING THE MATERIAL FOUND DURING THE COU RSE OF SURVEY WORKS OUT TO RS. 36,00,000/-- AND NOT RS. 50,00,000 /- SURRENDERED DURING SURVEY PROCEEDINGS. AT THE SAME TIME EVEN DU RING APPEAL PROCEEDINGS BEFORE ME, THE LD. AIR HAS NOT BEEN ABL E TO PRODUCE ANY DOCUMENTARY EVIDENCE IN SUPPORT OF THE CLAIM BEING MADE NOW NOR BEING ABLE TO PINPOINT THE DOCUMENTS FOUND DURING S URVEY ON THE BASIS OF WHICH RS. 36,00,000/- HAS BEEN WORKED OUT AS THE UNDISCLOSED INCOME AND NOT RS. 50,00,000/- AS STATED DURING THE SURVEY PROCEEDINGS. GIVEN THE CIRCUMSTANCES, I AM CONSTRAI NT TO BELIEVE THAT WHAT THE ASSESSEE HAS STATED ON OATH DURING SURVEY PROCEEDINGS TO BE CORRECT AS NO DOCUMENTARY EVIDENCES COULD BE PRODUC ED IN SUPPORT OF THE CLAIM BEING MADE NOW AT THE TIME OF FILING REVI SED RETURN OF INCOME. ACCORDINGLY, THE ADDITION OF RS.14 LACS WHI CH HAS BEEN ADDED TO THE INCOME OF THE ASSESSEE UNDER THE HEAD INCOME FROM OTHER SOURCES IS CONFIRMED. 4. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. HE HAS SUBMITTED THAT THE ASSESS EE HAS MADE SURRENDER OF RS.36 LACS IN THE REVISED RETURN OF INCOME (PB-6). PB-8 I S THE CALCULATION OF SURRENDER OF RS.36 LACS MADE FOR THE ASSESSMENT YEAR UNDER APPEA L AND THE SAID CALCULATION WAS MADE ON THE BASIS OF IMPOUNDED DOCUMENTS. THE DETAI LS OF THE SAME HAVE BEEN REPRODUCED BY THE AO IN THE ASSESSMENT ORDER AT PAG E 2. HE HAS SUBMITTED THAT THE AO DID NOT VERIFY THE CALCULATION OF THE ASSESSEE B ASED ON THE IMPOUNDED DOCUMENTS. THEREFORE, THE CONTENTION OF THE ASSESSE E COULD NOT HAVE BEEN REJECTED. HE HAS SUBMITTED THAT SINCE CALCULATION OF SURRENDE R OF RS.36 LACS WAS BASED ON ACTUAL FIGURE AND FACTS, THEREFORE, IT WOULD AMOUNT TO RETRACTION FROM THE STATEMENT ITA NO. 191/AGRA/2013 6 MADE DURING THE COURSE OF SURVEY AND THE ADDITION S HOULD NOT HAVE BEEN MADE MERELY ON THE BASIS OF STATEMENT MADE BY THE ASSESS EE DURING THE SURVEY WITHOUT BRINGING ANY CORROBORATIVE EVIDENCE TO SUCH STATEME NT. HE HAS SUBMITTED THAT SINCE THE ASSESSEE CALCULATED THE SURRENDERED AMOUNT OF R S.36 LACS BASED ON ACTUAL IMPOUNDED DOCUMENTS, THEREFORE, THE SURRENDER OF RS .50,00,000/- WAS NOT BASED ON CORRECT FACTS AND, THEREFORE, THE SURRENDER MADE BY THE ASSESSEE IS NOT CONCLUSIVE AND IT WAS OPEN TO THE ASSESSEE TO SAY THAT THE ADM ISSION WAS NOT BASED ON TRUE AND CORRECT FACTS. HE HAS SUBMITTED THAT THE SURRENDER MADE AT THE ASSESSMENT STAGE WAS CONDITIONAL ONLY SUBJECT TO NO PENALTY/PENAL ACTION , BUT THE AO DID NOT ACCEPT THE SAME, BUT INITIATED PENALTY PROCEEDINGS U/S. 271(1) (C) OF THE IT ACT. THEREFORE, SURRENDER MADE AT THE ASSESSMENT STAGE IS ALSO RELE VANT. HE HAS FILED COPY OF REPLY BEFORE THE AO TO EXPLAIN EACH AND EVERY SEIZED PAPE R SO THAT SURRENDER OF RS.60 LACS WAS NOT JUSTIFIED AS IT WAS NOT BASED ON CORRE CT FACTS AND EVIDENCES. HE HAS RELIED UPON THE ORDER OF THE ITAT, AGRA BENCH IN TH E CASE OF MAYA TRADING CO. IN ITA NO. 31/2012 AND CROSS OBJECTION NO. 22/2012 DAT ED 05.10.2012. ON THE OTHER HAND, THE LD. DR RELIED UPON THE ORDERS OF THE AUTH ORITIES BELOW AND SUBMITTED THAT SINCE THE ASSESSEE MADE VOLUNTARY SURRENDER OF RS.5 0,00,000/- DURING THE COURSE OF SURVEY, THEREFORE, THE ADDITION WAS CORRECTLY MADE. SIMILAR SURRENDER WAS MADE AT THE STAGE OF ASSESSMENT, COPY OF THE ORDER SHEET IS FILED ON RECORD, THEREFORE, IT WAS ITA NO. 191/AGRA/2013 7 SUBMITTED THAT THE ADDITION IS UNJUSTIFIED. THE DR PRODUCED THE SURVEY FOLDER FOR PERUSAL OF THE BENCH. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD. IT IS NOT IN DISPUTE THAT THE SURVEY WAS CONDUCTED IN THE PREMISES OF THE ASSESSEE AND CERTAIN LOOSE PAPERS ETC. WERE IMPOUNDED WHICH WERE NOT STATED TO BE RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. SURVEY FOLDER IS PRODUCED BY THE LD. DR WHICH CONTAINED THE STATEMENT OF BANK ACCOUNT HELD BY THE ASSESSEE AND OTHERS. INVENTORY OF THE BOOKS OF ACCOUNT AND STATEMENT OF THE ASSESSEE RECORDED ON THE DATE OF SURVEY. THERE IS NO MATERIAL AVAILABLE IN T HE SURVEY FOLDER TO SHOW THE BASIS OF CALCULATION OF SURRENDER OF RS.50 LACS IN THE AS SESSMENT YEAR UNDER APPEAL. NOTHING IS BROUGHT IN THE SURVEY FOLDER AS TO HOW T HE SURVEY PARTY HAVE CALCULATED THE UNDISCLOSED INCOME OF ASSESSEE AT RS.50,00,000/ - FOR THE PURPOSE OF SURRENDER MADE BY THE ASSESSEE. WHEN THE ASSESSEE WAS CONFRON TED WITH THE NOTE BOOKS AND IMPOUNDED PAPERS DURING THE STATEMENT, THE ASSESSEE EXPLAINED THAT AT THE TIME OF SURVEY, BOOKS OF ACCOUNT WERE NOT AVAILABLE, THEREF ORE, HE WAS NOT ABLE TO EXPLAIN FULLY WHETHER THE ENTRIES IN THE SEIZED PAPERS WERE RECORDED IN THE BOOKS OF ACCOUNT OR NOT. HOWEVER, ON SEEING THOSE ENTRIES, HE HAS ST ATED THAT THE SAME ARE NOT RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. I T IS, THEREFORE, CLEAR THAT AT THE TIME OF MAKING SURRENDER OF RS.50 LACS IN ASSESSMEN T YEAR UNDER APPEAL, COMPLETE ITA NO. 191/AGRA/2013 8 RECORDS WERE NOT AVAILABLE TO THE ASSESSEE AND THE ASSESSEE IN THE ESTIMATION HAS AGREED TO MAKE SURRENDER OF RS.50 LACS. IN THE QUES TION PUT BY THE SURVEY PARTY, IT WAS ALSO NOT CLARIFIED AS TO WHAT WAS THE QUANTUM O F UNDISCLOSED INCOME SHOWN IN THE IMPOUNDED PAPERS. THEREFORE, THE SURRENDER MADE BY THE ASSESSEE IN HIS STATEMENT ON THE DATE OF SURVEY WAS NOT SPECIFIC AN D WAS NOT BASED UPON THE TRUE AND CORRECT FACTS. THE ASSESSEE LATER ON MADE CALCU LATION OF THE SURRENDERED AMOUNT AT RS.36,00,000/- ON THE BASIS OF ACTUAL WORKING OF IMPOUNDED PAPERS AND HAS MADE A SURRENDER OF RS.36 LACS IN THE REVISED RETUR N OF INCOME. THE CALCULATION OF THE ASSESSEE WAS FILED BEFORE THE AO AT THE ASSESSM ENT STAGE, WHICH IS REPRODUCED AT PAGE 2 OF THE ASSESSMENT ORDER, COPY OF WHICH IS FILED AT PAGE 8 OF THE PAPER BOOK. THE ASSESSEE IN THIS CALCULATION HAS POINTED OUT THE QUANTUM OF SALES AND PROFIT EARNED ON DIFFERENT PROJECTS AND HAS GIVEN A CTUAL WORKING, BUT THE AO DID NOT MAKE ANY VERIFICATION OF THE SAME FROM THE SEIZ ED MATERIAL. THE LD. CIT(A) HELD IN HIS FINDINGS THAT NO VERIFICATION APPEARS T O HAVE BEEN MADE ON THE CLAIM OF THE ASSESSEE THAT UNDISCLOSED INCOME AFTER CONSIDER ING THE MATERIAL FOUND DURING THE COURSE OF SURVEY WORKS OUT TO RS.36 LACS AND NO T RS.50 LACS SURRENDERED IN THE SURVEY PROCEEDINGS. THEREFORE, IT IS CLEAR THAT THE RE WAS NO BASIS AT THE TIME OF MAKING SURRENDER IN THE STATEMENT OF THE ASSESSEE O N THE DAY OF SURVEY THAT ACTUAL QUANTUM OF UNDISCLOSED INCOME WAS RS.50 LACS AND WH EN THE ASSESSEE MADE CORRECT CALCULATION OF SURRENDERED AMOUNT AT RS.36 LACS, NEITHER THE AO NOR THE LD. ITA NO. 191/AGRA/2013 9 CIT(A) HAVE VERIFIED THE CALCULATION SUBMITTED BY T HE ASSESSEE ON THE BASIS OF DOCUMENTS IMPOUNDED DURING THE COURSE OF SURVEY. TH E CBDT ON SUCH TYPE OF CONFESSION WHICH ARE NOT SUPPORTED BY THE DOCUMENTA RY EVIDENCE IN ITS INSTRUCTION NO. 286/2/2003-IT (INV.) HAS EXPLAINED AS UNDER : 'INSTANCES HAVE COME TO THE NOTICE OF THE BOARD WHE RE ASSESSEE HAVE CLAIMED THAT THEY HAVE BEEN FORCED TO CONFESS THE UNDISCLOSED INCOME DURING THE COURSE OF SEARCH AND SEIZURES AND SURVEY OPERATIONS. SUCH CONFESSIONS, IF NOT BASED UPON CRE DITABLE EVIDENCE, ARE LATER RETRACTED BY THE CONCERNED ASSESSEE WHILE FILLING RETURNS OF INCOME. IN THESE CIRCUMSTANCES, CONFESSIONS DURING THE SEARCH AND SEIZURE AND SURVEY OPERATIONS DO NOT SERVE ANY USEF UL PURPOSE. IT IS, THEREFORE, ADVISED THAT THERE SHOULD BE FOCUS AND C ONCENTRATION ON COLLECTION OF EVIDENCES OF INCOME WHICH LEADS TO IN FORMATION ON WHAT HAS NOT BEEN DISCLOSED OR IS NOT LIKELY TO BE DISCLOSED BEFORE THE INCOME TAX DEPARTMENT. SIMILARLY, WHILE RECORDING S TATEMENT DURING THE COURSE OF SEARCH, SEIZURE AND SURVEY OPERATIONS NO ATTEMPT SHOULD BE MADE TO OBTAIN CONFESSIONS AS TO THE UNDISCLOSED IN COME. ANY ACTION ON THE CONTRARY SHALL BE VIEWED ADVERSEL Y. ' THE ABOVE INSTRUCTION IS PLACED AT ANNEXURE A-2 5.1 IT IS ALSO WELL SETTLED THAT THE ADDITION MEREL Y MADE ON THE BASIS OF STATEMENT RECORDED DURING THE COURSE OF SURVEY WITHOUT BRINGI NG ANY CORROBORATIVE EVIDENCE, CANNOT BE SUSTAINED. WE RELY UPON THE DECISION OF H ONBLE CHHATTISGARH HIGH COURT IN THE CASE OF ITO VS. VIJAY KUMAR KESAR, 327 ITR 497. ITAT, AGRA BENCH IN THE CASE OF M/S. MAYA TRADING CO. (SUPRA) HELD I N PARA 4 AS UNDER : 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND DO NOT FIND ANY JUSTIFICATION TO INTERFERE WITH THE ORDER OF TH E LD. CIT(A). IT IS WELL SETTLED LAW THAT ADMISSION ARE NOT CONCLUSIVE PROOF OF THE MATTER. THEY MAY BE SHOWN TO BE UNTRUE OR HAVE BEEN MADE UNDER M ISTAKE OF FACT ITA NO. 191/AGRA/2013 10 OR LAW. CIRCUMSTANCES HAVE TO BE SEEN UNDER WHICH S AME ARE MADE. IT CAN BE WITHDRAWN UNLESS IT IS ESTOPPEL AND CONCLUSI VE. HONBLE SUPREME COURT IN THE CASE OF PULLANGODE RUBBER PROD UCTS CO. LTD. 91 ITR 18 HELD THAT THE ASSESSEE SHOULD BE GIVEN OP PORTUNITY TO SHOW THAT ADMISSION IS INCORRECT OR DO NOT SHOW CORRECT STATE OF FACTS. HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF KISHAN LAL SHIV CHAND RAI VS. CIT, 88 ITR 293 HELD THAT IT IS AN ES TABLISHED PRINCIPLE OF LAW THAT A PARTY IS ENTITLED TO SHOW AND PROVE T HAT ADMISSION MADE BY HIM WAS IN FACT NOT CORRECT AND TRUE. CONSIDERIN G THE FACTS OF THE CASE IN THE LIGHT OF THE LEGAL PROPOSITION ABOVE, W E DO NOT FIND IF THE LD. CIT(A) HAS COMMITTED ANY ERROR IN REDUCING SUBS TANTIAL ADDITION. THE CASE OF THE ASSESSEE IS ENTIRELY BASED UPON PRO VISIONAL TRADING ACCOUNT PREPARED AT THE TIME OF SURVEY SHOWING THE FIGURE OF PURCHASE AND SALES DIFFERENTLY AS AGAINST THE FIGURES POINTE D OUT BY THE ASSESSEE. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE PREPARE D THE WORKING OF THE PURCHASE AND SALES FIGURES ON THE BASIS OF THE IMPO UNDED BILLS AND VALUE OF THE SALE WAS ARRIVED AT RS.67,58,352/- AND THE PURCHASES HAVE BEEN FOUND AT RS.71,79,376/- AS AGAINST THE SA LES AND PURCHASES OF RS.74,20,097/- AND RS.49,00,581/- AS PER THE PRO VISIONAL TRADING ACCOUNT. THE CORRECT FIGURES POINTED OUT BY THE ASS ESSEE OF SALES AND PURCHASES WERE BASED UPON THE IMPOUNDED DOCUMENTS. THE LD. CIT(A) VERIFIED ALL THE FIGURES AT THE APPELLATE STAGE IN THE PRESENCE OF THE AO AND AFTER VERIFICATION OF PURCHASE AND SALES FOUND THAT CORRECT FIGURES HAVE BEEN POINTED OUT BY THE ASSESSEE. THUS, THE SO LE BASIS OF MAKING ADDITION, I.E., PROVISIONAL TRADING ACCOUNT WAS NOT FUND HAVING CORRECT FIGURES OF PURCHASE AND SALES. WHATEVER ITEMS HAVE BEEN DECLARED BY THE ASSESSEE ON ACCOUNT OF EXCESS STOCK HAVE BEEN G IVEN BENEFIT CORRECTLY BY THE LD. CIT(A). SINCE THE FIGURES OF T HE SALES AND PURCHASES WERE BASED ON FACTUAL FIGURES, THEREFORE, IT IS A CASE OF FACTUAL MISTAKE COMMITTED BY THE SURVEY PARTY AS WE LL AS BY THE ASSESSING OFFICER, WHICH HAS BEEN RIGHTLY CORRECTED BY THE LD. CIT(A). THUS, THE ASSESSEE ON THE BASIS OF SEIZED MATERIAL ITSELF HAS BEEN ABLE TO SHOW THAT THE ADMISSION MADE AT THE TIME OF SURV EY SURRENDERING THE ADDITIONAL INCOME ON ACCOUNT OF EXCESS STOCK WA S NOT CORRECT AND DID NOT SHOW CORRECT STATE OF FACTS. THEREFORE, NO ADDITION COULD BE MADE AGAINST THE ASSESSEE ON THE BASIS OF MERE ADMI SSION ACCORDING TO THE FACTS AND CIRCUMSTANCES OF THIS CASE. THE LD . CIT(A) CORRECTLY ON THE BASIS OF THE MATERIAL ON RECORD, DELETED THE SUBSTANTIAL ADDITION. THE CASE LAW RELIED UPON BY THE LD. CIT(A ) SUPPORT THE FINDINGS OF LD. CIT(A). IT IS A DEPARTMENTAL APPEAL AND NO MATERIAL HAS ITA NO. 191/AGRA/2013 11 BEEN PRODUCED BEFORE US TO CONTRADICT THE FINDINGS OF THE LD. CIT(A) IN DELETING THE ADDITION. WE, THEREFORE, DO NOT FIND A NY INFIRMITY IN THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDITION. 5.2 CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF THE LEGAL PROPOSITION ABOVE, WE DO NOT FIND IT PROPER TO SUSTAIN THE ADDITION OF RS.14,00,000/- IN THIS CASE. IN THIS CASE, THE ADDITION IS ENTIRELY BASED ON SURREN DER MADE BY THE ASSESSEE DURING THE COURSE OF SURVEY WITHOUT BRINGING ACTUAL CALCUL ATION OF SURRENDERED THE AMOUNT OF RS.50 LACS BY THE ASSESSEE. WHEN ACTUAL FIGURES AND CALCULATION WERE GIVEN OF SURRENDERED AMOUNT OF RS.36 LACS, THE SAME WERE NOT VERIFIED BY THE AUTHORITIES BELOW ON THE BASIS OF THE SEIZED MATERIAL. THE CORR ECT FIGURES POINTED OUT BY THE ASSESSEE BASED UPON IMPOUNDED DOCUMENTS SHOULD HAVE BEEN VERIFIED BY THE AUTHORITIES BELOW AND THE CORRECT FIGURES SHOULD HA VE BEEN ACCEPTED. THUS, THE SOLE BASIS OF MAKING ADDITION ON THE BASIS OF STATEMENT OF ASSESSEE RECORDED DURING THE COURSE OF SURVEY WOULD NOT BE JUSTIFIED IN THE FACT S AND CIRCUMSTANCES OF THE CASE. THE ASSESSEE HAS POINTED OUT FACTUAL MISTAKE COMMIT TED BY HIM WHILE MAKING SURRENDER OF RS.50 LACS, THEREFORE, SAME SHOULD HAV E BEEN VERIFIED BY THE AUTHORITIES BELOW FROM THE MATERIAL IMPOUNDED DURIN G THE COURSE OF SURVEY. FURTHER, DURING THE ASSESSMENT PROCEEDINGS, THE ASS ESSEE EXPLAINED THAT AFTER EXAMINING THE SEIZED PAPERS, THE ASSESSEE MADE THE SURRENDER, BUT FOR BUYING PEACE AND THAT NO PENALTY WOULD BE IMPOSED, HE WAS READY TO MAKE SURRENDER OF RS.50 LACS. THEREFORE, ACCEPTANCE OF ASSESSEE OF CONDITIO NAL SURRENDER WOULD NOT BE VALID ITA NO. 191/AGRA/2013 12 BECAUSE THE AO ULTIMATELY INITIATED PENALTY PROCEED INGS U/S. 271(1)(C) AGAINST THE ASSESSEE IN THE YEAR UNDER APPEAL. SUCH SURRENDER A T THE ASSESSMENT STAGE WAS ALSO NOT VOLUNTARY AND WAS ALSO NOT BASED UPON ANY MATER IAL AVAILABLE ON RECORD. THEREFORE, SUCH STATEMENT CANNOT BE READ IN EVIDENC E AGAINST THE ASSESSEE. EVEN DURING THE COURSE OF HEARING BEFORE US, NOTHING IS POINTED OUT FROM THE SIDE OF REVENUE DEPARTMENT THAT THE ACTUAL CALCULATION GIVE N BY THE ASSESSEE OF SURRENDER OF RS.36 LACS AS NOTED IN THE ASSESSMENT ORDER WOUL D NOT BE BASED ON THE SEIZED MATERIAL. THE REPLY OF THE ASSESSEE FILED BEFORE TH E AO AT THE ASSESSMENT STAGE IS FURNISHED ON RECORD, IN WHICH THE ASSESSEE EXPLAINE D EACH AND EVERY SEIZED PAPER AND FOR SEVERAL DOCUMENTS, IT WAS EXPLAINED THAT TH E SAME DO NOT RELATE TO THE ASSESSEE OR THAT THE PROFIT MARGIN WAS VERY LOWER. THE DETAILED CALCULATION SUBMITTED BEFORE THE AO WAS NOT SUBJECTED TO ANY VE RIFICATION BY THE AUTHORITIES BELOW. THUS, THE ASSESSEE ON THE BASIS OF THE IMPOU NDED MATERIAL DURING THE COURSE OF SURVEY HAS BEEN ABLE TO SHOW THAT ADMISSION MADE AT THE TIME OF SURVEY SURRENDERING THE AMOUNT OF RS.50 LACS WAS NOT CORRE CT AND DID NOT SHOW CORRECT STATE OF FACTS. THE FIGURES/CALCULATION SHOWN BY TH E ASSESSEE WAS BASED ON FACTUAL FIGURES, IN WHICH NO MISTAKES HAVE BEEN POINTED OUT BY THE AUTHORITIES BELOW AS WELL AS BY THE LD. DR DURING THE COURSE OF ARGUMENT S. THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ADDITION OF RS.14,00 ,000/- COULD NOT BE MADE AGAINST THE ASSESSEE ON THE BASIS OF MERE ADMISSION. THE AU THORITIES BELOW WERE, THEREFORE, ITA NO. 191/AGRA/2013 13 NOT JUSTIFIED IN MAKING AND CONFIRMING THE ADDITION OF RS.14 LACS. ORDERS OF THE AUTHORITIES BELOW ARE ACCORDINGLY SET ASIDE AND ADD ITION OF RS.14,00,000/- IS DELETED. THE APPEAL OF THE ASSESSEE IS ACCORDINGLY ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY