M/s.Roma Builders, Cochin V. The ITO, Cochin

ITA 363/COCH/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86414 (ITAT-COCHIN)
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2015
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 04-02-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 21-07-2014
• Court: TRIBUNAL
• Assessee Lawyers: C B M WARRIER CA SHRI K K JOHN
• Keywords: Unexplained investment; Income from undisclosed sources; Search and seizure; Retraction
• Section: 133A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND CHANDRA POOJ ARI, AM I.T.A. NO.363/COCH/2014 ASSESSMENT YEAR : 2009-10 M/S. ROMA BUILDERS, NO.32/1642, 2 ND FLOOR, SYED MOHD. COMPLEX, N.H. BYEPASS, PALARIVATTOM, KOCHI-25. [PAN: AAKFR2151F] VS. THE INCOME TAX OFFICER, WARD- 2(3), RANGE-2, KOCHI. (ASSESSEE-APPELLANT) (REVENUE-RESPONDENT) ASSESSEE BY SHRI C.B.M. WARRIER, CA REVENUE BY SHRI K.K. JOHN, SR. DR DATE OF HEARING 04/02/2015 DATE OF PRONOUNCEMENT 12/02/2015 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 17/03/2014 PASSED BY THE CIT(A)-II, KOCHI FOR THE A SSESSMENT YEAR 2009-10. 2. THE ASSESSEE HAS RAISED THE GROUND WITH REGARD TO ADDITION OF RS.1,41,00,000/- TO THE TOTAL INCOME OF THE ASSESSE E. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSING OFF ICER MADE THE ADDITION OF RS.1,43,00,000/- ON THE BASIS OF THE PROFIT AND LOS S ACCOUNT FOUND DURING THE I.T.A. NO.363/COCH/2014 2 COURSE OF SURVEY. IN THIS, THE PURCHASES ACCOUNT SH OWED EXPENDITURE OF RS.1,81,56,303, GROSS PROFIT OF RS.2,85,49,335/- AN D NET PROFIT OF RS.1,83,22,005/-. THE ASSESSEE WAS NOT ABLE TO EXP LAIN THE SOURCES OF INVESTMENT AND VARIOUS WORKS UNDERTAKEN BY IT AND S INCE THERE WAS A DEFICIENCY OF RS.1.10 CRORES IN EXPLAINING THE VARIOUS WORKS U NDERTAKEN BY, IT WAS OFFERED AS INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES. FURTHER, THE ASSESSEE WAS NOT ABLE TO EXPLAIN THE SOURCE OF THE PAYMENT OF RS .40 LAKHS FOR THE ADVANCE GIVEN FOR LAND AT CHOTTANIKARA AND DEVELOPMENT OF P ANANGAD, AND HENCE THE SAME WAS ALSO OFFERED AS UNACCOUNTED INCOME BY THE ASSESSEE. HENCE THE TOTAL ADDITION WAS MADE BY THE ASSESSING OFFICER AT RS.1, 43,00,000/- AS UNDER: 1. PROFIT CALCULATED @12% ON 5.41 CRORES : RS. 65,00,000/- 2. AMOUNT BROUGHT INTO BUSINESS FROM : RS. 78,00,000/- UNDISCLOSED INCOME TOTAL INCOME DISCLOSED DURING THE YEAR : RS.1,43,00,000/- 4. ON APPEAL, THE CIT(A) OBSERVED THAT THE DOCUMENT S FOUND DURING THE COURSE OF SURVEY WAS PROPER PROFIT AND LOSS ACCOUNT GIVING DETAILS OF SALES AND EXPENDITURE UNDER VARIOUS HEADS IN DETAIL. ACCORDI NG TO THE CIT(A), IT SPECIFICALLY MENTIONED FIGURE OF SALES, PURCHASE OF MATERIAL, GR OSS PROFIT AND NET PROFIT. THUS, THE CIT(A) OBSERVED THAT THE SUBMISSIONS AND EXPLANATIONS MADE BY THE ASSESSEE WERE ONLY AFTERTHOUGHT AND NOT SUPPORTED B Y DOCUMENTARY EVIDENCES. IN ADDITION TO PROFIT AND LOSS ACCOUNT FOUND DURING THE COURSE OF SURVEY, THE CIT(A) RELIED ON THE STATEMENT OF THE MANAGING PART NER, SHRI SONI E. THOMAS FOR I.T.A. NO.363/COCH/2014 3 SUSTAINING THE ADDITION. ACCORDING TO THE CIT(A), THE EXPLANATION WAS NOT SUPPORTED BY ANY DOCUMENTARY PROOF AND IT WAS ONLY AN AFTERTHOUGHT. ACCORDINGLY, THE CIT(A) REJECTED THE CLAIM OF THE A SSESSEE AND SUSTAINED THE ADDITION OF RS.1,43,00,000/-. AGAINST THIS, THE AS SESSEE IS IN APPEAL BEFORE US. 5. THE LD. AR SUBMITTED THAT THE ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE CIT(A) WAS ONLY ON THE BASIS OF ST ATEMENT OF THE MANAGING PARTNER SHRI SONI E. THOMAS AND THERE WAS NO SUPPORT ING MATERIAL TO SUSTAIN THE ADDITION. FURTHER, THE LD. AR SUBMITTED THAT THE S TATEMENT WAS TAKEN FROM SHRI SONI E. THOMAS BY THREATENING WITH PROSECUTION AND O THER PENAL PROCEEDINGS AND THEREFORE SUCH STATEMENT WHICH WAS OBTAINED ON COERCION, THREATENING OR UNDUE INFLUENCE CANNOT BE RELIED UPON FOR THE PURPO SE OF ASSESSMENT SO AS TO SUSTAIN THE ADDITION. EVEN OTHERWISE, HE SUBMITTED THAT THE COPIES OF STATEMENT RECORDED FROM SHRI SONI E. THOMAS WAS NOT FURNISHED TO THE ASSESSEE AT THE TIME OF ASSESSMENT. IT WAS ONLY RECEIVED BY THE ASSESSE E FROM THE DEPARTMENTAL REPRESENTATIVE DURING THE PROCEEDINGS BEFORE THE TR IBUNAL ON 12-01-2015. ACCORDING TO HIM, THE STATEMENT OF SHRI SONI E. THOM AS WAS PREPARED BY THE OFFICERS AFTER THE SURVEY AND BROUGHT TO THE ASSESS EES OFFICE AND SIGNATURE WAS OBTAINED AND EVEN THOUGH THE SIGNATURE WAS OBTAINED , THE ASSESSEE WAS COMPLETELY IN THE DARK ABOUT THE CONTENT AND THE TA X IMPLICATION IN THOSE DOCUMENTS. THE LD. AR RELIED ON THE CBDT CIRCULAR F.NO.286/2/2003-IT(INV.II) DATED 10/03/2003, STATING THAT CONFESSION OBTAINED FROM THE ASSESSEE WITHOUT I.T.A. NO.363/COCH/2014 4 THE SUPPORT OF SEIZED MATERIALS IS UNLAWFUL AND IT IS NOT AN EVIDENCE AS PER THE DECISION OF THE SUPREME COURT IN THE CASE OF CIT VS . S. KHADER KHAN SON (2013) (352 ITR 480). 5.1 FINALLY, THE LD. AR SUBMITTED THAT THE INCOM E OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2008-09 WAS ESTIMATED AT 12% OF THE TOTAL EXPENDITURE BY FOLLOWING THE CONTRACT COMPLETION METHOD AND THE SA ME METHOD IS ALSO TO BE FOLLOWED FOR ESTIMATING THE INCOME FOR THE ASSESSME NT YEAR 2009-10. 5.2. THE LD. AR SUBMITTED THAT THE TOTAL INVESTM ENT FOR THE ASSESSMENT YEAR 2009-10 WORKED OUT TO RS.3,46,58,118/- AND THE INCO ME FOR THE ASSESSMENT YEAR 2009-10 WORKED OUT TO RS.41,58,974/-. THUS, THE AD DITION OF RS.65 LAKHS TOWARDS INCOME FROM SALES MAY BE REPLACED WITH THE ADDITION OF RS.41,58,974/- FOR THE ASSESSMENT YEAR 2009-10. 6. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT THE ASSESSING OFFICER HAS CLEARLY CONSIDERED THE MATERIAL GATHERED DURING THE COURSE OF SURVEY, ALONGWITH THE BOOKS OF ACCOUNT AND THE ARGUMENT OF THE ASSESS EE COUNSEL PLACED BEFORE THE BENCH IS ENTIRELY AN AFTERTHOUGHT AND WITHOUT A NY CREDIBLE EVIDENCE. HE RELIED ON THE ORDER OF THE LOWER AUTHORITIES. I.T.A. NO.363/COCH/2014 5 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORD. THE GRIEVANCE OF THE ASSESSEE BEFORE US IS THAT NO RELIANCE CAN BE P LACED ON THE STATEMENT MADE BY SHRI SONI E. THOMAS DURING THE COURSE OF SURVEY U /S. 133A OF THE I.T. ACT CONDUCTED ON 15/09/2009 FOR THE REASON THAT IT WAS NOT PREPARED BY HIM. IT WAS PREPARED BY THE INCOME TAX OFFICER AND BROUGHT TO T HE ASSESSEES OFFICE BY ONE OF THE OFFICERS OF THE SURVEY DEPARTMENT WHO PERSUA DED SHRI SONI E. THOMAS TO SIGN THE STATEMENT SINCE HE WAS THREATENED THAT WIT HOUT WHICH STEPS OF PROSECUTION AND OTHER ACTION WILL BE TAKEN. HE WAS NOT GIVEN ANY OPPORTUNITY TO CONSULT ANY PERSON BEFORE SIGNING THE STATEMENT. HE SIGNED THE STATEMENT WITHOUT KNOWING FULLY WHAT IS CONTAINED IN THE STAT EMENT. IT WAS ALLEGED THAT NO COPY OF THE STATEMENT WAS GIVEN TO HIM AND HE WAS N OT ALLOWED TO CONSULT ANY PERSON AFTER THE SURVEY ALSO. HE RECEIVED THE COPY OF THE STATEMENT AS ANNEXURE-I ONLY ALONG WITH THE ASSESSMENT ORDER WHE REIN AN AMOUNT OF RS.78,00,000/- WAS CONSIDERED AS INVESTMENT BROUGHT INTO BUSINESS FROM UNEXPLAINED SOURCES THE ASSESSEE SUBMITTED THAT TH ERE WAS NO SUCH INVESTMENT FROM UNDISCLOSED SOURCES. ACCORDING TO THE ASSESSE E, THE PROFIT AND LOSS ACCOUNT AND BALANCE SHEET WERE PREPARED FROM THE ACCOUNT FO UND AT THE TIME OF SURVEY AND IN THESE BOOKS OF ACCOUNTS, THERE WAS NO UNDISC LOSED INCOME AND UNEXPLAINED INVESTMENT. 7.1 IT IS UNDISPUTED FACT THAT U/S. 133A OF THE I.T . ACT, THE REVENUE AUTHORITIES ARE ENTITLED TO RECORD THE STATEMENT OF ANY PERSON WHO MAY BE USEFUL I.T.A. NO.363/COCH/2014 6 OR RELEVANT TO THE PROCEEDINGS UNDER THE I.T. ACT. THE POWER TO RECORD A STATEMENT DURING SURVEY PROCEEDINGS IS FOUND IN SEC TION 133A(3) OF THE I.T. ACT . THE RELEVANT PORTION OF THE ACT READS AS FOLLOWS: POWER OF SURVEY.__.....(3) AN INCOME TAX AUTHORITY ACTING UNDER THIS SECTION MAY, __ (III) RECORD THE STATEMENT OF ANY PERSON WHICH MAY BE USEFUL FOR, OR RELEVANT TO, ANY PROCEEDING UNDER THIS ACT. THE REQUIREMENT OF RECORDING A STATEMENT ON OATH IS FOUND IN SECTION 132 OF THE ACT, I.E., DURING SEARCH AND SEIZURE PROCEEDING AND SUCH A REQUIREMENT IS NOT FOUND IN SECTION 133A OF THE ACT. HOWEVER, A STATE MENT MADE U/S. 133A OF THE ACT IS HAVING ITS EVIDENTIARY VALUE AND IT COULD BE RELIED UPON, THOUGH IT IS NOT A SOLE CONCLUSIVE EVIDENCE. IN THIS CASE, THE LOWER AUTHORITIES WHILE MAKING THE ADDITION OF RS.1,43,00,000/- DID NOT SOLELY RELIED UPON THE STATEMENT MADE BY SHRI SONI E. THOMAS BUT ALSO ON THE PROFIT AND LOSS ACCOUNT AND BALANCE SHEET FOUND DURING THE COURSE OF SURVEY WHEREIN IT WAS CL EARLY MENTIONED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER THAT THER E WAS PROFIT AND LOSS ACCOUNT AND BALANCE SHEET FOUND DURING THE COURSE OF SURVEY . THE PROFIT AND LOSS ACCOUNT SHOWED THE INCOME AT RS.1,83,22,005/-. THE SOURCE OF INVESTMENT WAS SHOWN IN THE BALANCE SHEET AS LOAN BY PLEDGING GOLD OF ASSESSEES WIFE, SISTER-IN- LAW AND OTHERS, MORTGAGING LAND BELONGING TO HIS FA MILY AND ADVANCE RECEIVED FROM PROSPECTIVE BUYERS. WHEN THE QUESTION WAS PUT TO THE ASSESSEE TO EXPLAIN THE SOURCES, THE ASSESSEE OFFERED RS.1.43 CRORES A S ADDITIONAL INCOME WHICH CONSISTED OF TWO PORTIONS: I.T.A. NO.363/COCH/2014 7 I) PROFIT CALCULATED @12% ON RS.5.41 CRORES : RS.65,00,000/- II)AMOUNT BROUGHT INTO BUSINESS FROM UNDISCLOSED INCOME : RS.78,00,000/ - TOTAL : RS.1,43,00,000 7.2. IT IS EVIDENT FROM THE STATEMENT OF SHRI SONI E. THOMAS VIDE ANSWER TO QUESTION NO. 11 WHEREIN HE STATED THAT THERE IS A D EFICIENCY OF RS.1.10 CRORES FOR EXPLAINING THE SOURCE FOR THE VARIOUS WORKS UNDERTA KEN BY THE ASSESSEE AND HE IS READY TO OFFER THAT AMOUNT AS INCOME OF THE FIRM. FURTHER, TO QUESTION NO. 12, HE OFFERED ANOTHER SUM OF RS. 40 LAKHS TO EXPLAIN T HE SOURCE FOR THE ADVANCE GIVEN FOR PURCHASING LAND AT CHOTTANIKARA AND DEVEL OPMENT OF PANANGAD. THUS HE OFFERED RS.1.50 CRORES FOR THE TWO ASSESSMENT YE ARS, NAMELY, 2008-09 AND 2009-10. THIS WAS AGAIN CONFIRMED BY A DECLARATION GIVEN BY HIM IN WHICH HE STATED THAT THE AMOUNT DISCLOSED FOR THE ASSESSMENT YEAR 2008-09 WAS RS.6.42 LAKHS, ENHANCING THE ALREADY RETURNED INCOME TO RS. 15.72 LAKHS MAKING IT 12% OF THE TOTAL RECEIPTS OF THE YEAR AND HE DISCLOSED THE TOTAL INCOME AT RS.1.43 CRORES FOR THE ASSESSMENT YEAR 2009-10 AS PER ANNEX URE I TO ASSESSMENT ORDER. THUS, THE ADDITION WAS MADE NOT ONLY ON THE BASIS O F THE STATEMENT OF THE ASSESSEE BUT ALSO ON THE BASIS OF THE MATERIAL GATH ERED IN THE COURSE OF SURVEY IN THE FORM OF PROFIT AND LOSS ACCOUNT AND BALANCE SHE ET. 7.3 THOUGH THE SURVEY TOOK PLACE ON 15/09/2009 AN D THE ASSESSMENT WAS COMPLETED ON 30/12/2011, THERE WAS NO RETRACTION ON THE PART OF THE ASSESSEE. BEFORE THE ASSESSING OFFICER, THE ASSESSEE IS VERY EVASIVE AND NOT CO-OPERATED I.T.A. NO.363/COCH/2014 8 WITH THE ASSESSING OFFICER AT THE TIME OF ASSESSMEN T. THE ASSESSEE FILED RETRACTION LETTER BEFORE THE CIT(A) ONLY ON 10 TH JULY, 2013 FOR THE REASON BEST KNOWN TO THE ASSESSEE. IF THERE IS ANY COERCION, THREATENING OR UNDUE INFLUENCE FROM THE SIDE OF THE DEPARTMENT, THE ASSESSEE SHOUL D HAVE REMEDIED AT HIS END BUT THE ASSESSEE HAS NOT TAKEN ANY REMEDIAL ACTION ON THIS COUNT. ON THE OTHER HAND, THE ASSESSEE WAS NOT ABLE TO GIVE EXPLANATION IN RESPECT OF THE ENTRIES IN THE PROFIT AND LOSS ACCOUNT AND BALANCE SHEET SO AS TO EXPLAIN THE SOURCE OF INVESTMENT AND GAVE A STATEMENT THAT THE ASSESSEE I S READY TO OFFER RS.150 LAKHS AS INCOME MORE THAN THE INCOME COMPUTED IN TH E BOOKS OF ACCOUNT AND REQUESTED THE DEPARTMENT NOT TO TAKE PENALTY PROCEE DINGS AGAINST HIM OR THE FIRM. THE ASSESSEE STATED BEFORE US THAT AS PER CB DT CIRCULAR CITED SUPRA, A CONFESSION STATEMENT CANNOT BE COLLECTED BY THE DEP ARTMENT FROM THE ASSESSEE DURING THE COURSE OF SEARCH OR SURVEY SO AS TO MAKE ADDITION. IN THIS CASE, IT IS NOT A CONFESSION STATEMENT COLLECTED BY THE DEPARTM ENT, RATHER IT IS AN EVIDENCE IN THE FORM OF PROFIT AND LOSS ACCOUNT AND BALANCE SHEET ON THE BASIS OF WHICH THE ASSESSEE OFFERED ADDITIONAL INCOME WHEN IT FAIL ED TO EXPLAIN THE SOURCE OF INVESTMENT FOUND IN THESE DOCUMENTS. 7.4 THE CASE LAW RELIED UPON BY THE ASSESSEE IN THE CASE OF CIT VS. S. KHADER KHAN SON (2013) (352 ITR 480) (SC) IN WHICH THE SLP WAS DISMISSED IS ARISING FROM THE DECISION OF THE MADRAS HIGH COURT IN THE C ASE OF CIT VS. S. KHADER KHAN SON (2008) (300 ITR 157) WHICH PROCEEDED ON THE FAC T THAT THE AUTHORITIES DID I.T.A. NO.363/COCH/2014 9 NOT ACCEPT THE RETRACTION OF THE STATEMENT MADE ON OATH BY THE DEPONENT DURING THE SURVEY PROCEEDINGS U/S. 133A OF THE ACT ON THE GROUND THAT THE STARTEMENT WAS MADE ON OATH. BESIDES THE SOLE EVIDENCE AGAINS T THE ASSESSEE IN THAT CASE WAS THAT THE STATEMENT WAS MADE ON OATH DURING THE SURVEY PROCEEDINGS WHICH IS NOT THE CASE IN THE PRESENT CASE. IN THIS CASE, PROFIT AND LOSS ACCOUNT AND BALANCE SHEET WERE FOUND DURING THE COURSE OF SURVE Y AND THE ASSESSEE WAS NOT ABLE TO EXPLAIN THE SOURCE OF INVESTMENT SHOWN IN T HE BALANCE SHEET AND THE SAME WAS CONSIDERED AS UNEXPLAINED INVESTMENT AND U NDISCLOSED INCOME FROM PROJECT. THEREFORE, THE CASE RELIED UPON BY THE ASS ESSEE IS COMPLETELY DISTINGUISHABLE AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. FURTHER, THE ALLEGATION OF THE ASSESSEE THAT THE STATEMENT WAS B ROUGHT TO THE ASSESSEE BY ONE OF THE OFFICERS OF THE SURVEY DEPARTMENT WHO FO RCED HIM TO SIGN THE STATEMENT IS WITHOUT BASIS. AS DISCUSSED EARLIER, THIS ALLEGATION WAS MADE BY THE ASSESSEE AFTER A LONG GAP, I.E., BETWEEN 15/09/2009 AND 10 TH JULY, 2013, I.E., 3 YEARS 10 MONTHS. IT IS NOTHING BUT AN AFTERTHOUGHT AND HIS SOLE INTENTION WAS TO EVADE TAX. BEING SO, THE LETTER WRITTEN BY THE ASS ESSEE TO THE CIT(A) ON 10THJULY, 2013 CANNOT BE RELIED UPON AS THE ASSESSE E WAS NOT ABLE TO DEMONSTRATE THAT THE DEPARTMENT HAS EXERTED ANY COE RCION, THREATENING OR UNDUE INFLUENCE ON THE ASSESSEE TO GIVE THE STATEME NT SO AS TO DECLARE ADDITIONAL INCOME. WHEN THE SURVEY DEPARTMENT HAS F OUND THE PROFIT AND LOSS ACCOUNT AND BALANCE SHEET AT THE PREMISES OF THE AS SESSEE, ONUS IS ON THE ASSESSEE TO SHOW THAT THE INCOME SHOWN IN THE PROFI T AND LOSS ACCOUNT IS NOT THE I.T.A. NO.363/COCH/2014 10 ACTUAL INCOME OF THE ASSESSEE AND THE INVESTMENT SH OWN IN THE BALANCE SHEET REFLECTED THE TRUE AND CORRECT SOURCE AND THERE IS NO UNDISCLOSED INCOME OR UNEXPLAINED INVESTMENT. IT IS TO BE NOTED THAT THE PROFIT AND LOSS ACCOUNT AND THE BALANCE SHEET FOUND DURING THE SURVEY PROCEEDIN GS, AND EVEN AFTER 3 YEARS, 10 MONTHS, DID NOT RETRACT THE CONTENTS THEREIN. ON THE OTHER HAND, THE ASSESSEE STATED THAT THE INCOME OF THE ASSESSEE WAS DETERMIN ED ON THE BASIS OF AUDITED PROFIT AND LOSS ACCOUNT AND BALANCE SHEET. THERE I S NO EVIDENCE TO SUGGEST THAT THE ENTRIES FOUND IN THE BALANCE SHEET FOUND DURING THE COURSE OF SURVEY WAS EXPLAINED. BEING SO, THE RETRACTION MADE BY THE AS SESSEE ON 10 TH JULY, 2013 BEFORE THE CIT(A) IS AN AFTER THOUGHT AND THE STAT EMENT MADE DURING THE COURSE OF SURVEY ACCOMPANIED WITH PROFIT AND LOSS ACCOUNT AND BALANCE SHEET IS TO BE CONSIDERED FOR THE PURPOSE OF ASSESSMENT WHEREIN TH E ASSESSEE HAS VOLUNTARILY OFFERED ADDITIONAL INCOME. IN VIEW OF THIS, SINCE THERE IS FAILURE ON THE PART OF THE ASSESSEE TO LEAD EVIDENCE BEFORE THE AUTHORITIE S TO EXPLAIN THE DOCUMENTS FOUND DURING THE COURSE OF SURVEY AND RECONCILE THE SAME WITH AUDITED PROFIT AND LOSS ACCOUNT AND BALANCE SHEET, AND ALSO BEFORE THE TRIBUNAL TO SHOW THAT THE PROFIT AND LOSS ACCOUNT AND BALANCE SHEET FOUND DUR ING THE COURSE OF SURVEY IS REFLECTING THE TRUE POSITION OF THE ASSESSEE, IT SH OULD BE CONSIDERED AS EVIDENCE IN SUPPORT OF THE STATEMENT MADE BY THE ASSESSEE IN THE COURSE OF SURVEY AND THE ADDITION IS TO BE SUSTAINED. ACCORDINGLY, WE A RE INCLINED TO CONFIRM THE ORDER OF THE CIT(A) ON THIS ISSUE. I.T.A. NO.363/COCH/2014 11 7.4 AT THIS POINT, WE MAKE IT CLEAR THAT WITH REGAR D TO QUESTION WHETHER THE ASSESSEE CAN RETRACT HIS STATEMENT GIVEN DURING THE COURSE OF SURVEY, THE OBVIOUS ANSWER IS YES, BUT THAT SHOULD BE AT THE EARLIEST OPPORTUNITY WHEN THE STATEMENT WAS RECORDED OR ATLEAST WITHIN THE REASON ABLE TIME. IT IS AN IMPORTANT PIECE OF EVIDENCE WHICH SIMPLY CANNOT BE BRUSHED AS IDE UNLESS AND UNTIL OTHERWISE IT IS PROVED. IT IS OPEN TO THE ASSESSEE TO SHOW THAT THE EARLIER STATEMENT WAS INCORRECT. IN THE PRESENT CASE, THE ASSESSEE WAS NOT ABLE TO SHOW THAT THE EARLIER STATEMENT MADE BY THE ASSESSE E WAS INCORRECT. HENCE, THE STATEMENT MADE BY THE ASSESSEE IS TO BE CONSIDERED AS RELEVANT MATERIAL AND CONSIDERING THE TOTALITY OF FACTS PARTICULARLY IN T HE LIGHT OF LONG DELAY OF 3 YEARS 10 MONTHS TAKEN BY THE ASSESSEE IN RETRACTING THEM, TH E RETRACTION IS TO BE REJECTED. THUS, HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER OF THE CIT(A) IS UPHELD. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 12-02-2015 SD/- SD/- (N.R.S.GANESAN) (CHANDRA POOJARI) JUDICIAL MEMBER ACC OUNTANT MEMBER PLACE: KOCHI DATED: 12TH FEBRUARY, 2015 GJ COPY TO: 1. M/S. ROMA BUILDERS, NO.32/1642, 2 ND FLOOR, SYED MOHD. COMPLEX, N.H. BYEPASS, PALARIVATTOM, KOCHI-25. 2. THE INCOME TAX OFFICER, WARD-2(3), RANGE-2, KOCH I. I.T.A. NO.363/COCH/2014 12 3. THE COMMISSIONER OF INCOME-TAX(APPEALS)-II, KOCH I, 4. THE COMMISSIONER OF INCOME-TAX, KOCHI. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COC HIN