SMT. L.H. BABBAR, Bhopal V. THE ACIT-1(2), Bhopal

ITA 637/IND/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5623 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-10-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 14-09-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 09-09-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K G GOYAL
• Assessee Lawyers: N D PATWA S
• Keywords: Unexplained investment; Sale consideration of property below Jantri Value; Business income; Search and seizure; Loose papers; Question of law; Retraction
• Section: 143(3); 50C; 133A

Judgement Text

I.T.A. NO. 637/IND/2015/A.Y:08-09/SMT. L. H. BABBAR PAGE 1 OF 14 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .., .., % BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER SMT. L. H. BABBAR, PROPRIETOR M/S. HONG KONG RESTAURANT , 131/14 ZONE-II, M. P. NAGAR, BHOPAL PAN: AFVPM6127L VS. DY. COMMISSIONER OF INCOME TAX CIRCLE 1(1) BHOPAL / APPELLANT / RESPONDENT / APPELLANT BY SHRI ASHISH GOYAL & SHRI N D PATWA, ADVOCATES / RESPONDENT BY SHRI K. G GOYAL, SR. (DR) / DATE OF HEARING 14.09.2016 / DATE OF PRONOUNCEMENT 26.10.2016 / O R D E R PER O. P. MEENA, ACCOUTANT MEMEBR. THIS APPEAL IS FILED BY THE ASSESSEE IS DIRECTED AG AINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-2, BHO PAL (HEREINAFTER REFERRED TO AS THE LD. CIT (A)) DATED 08.06.2015. T HIS APPEAL PERTAINS TO ASSESSMENT YEAR 2008-09. THIS APPEAL ARISES OUT OF ASSESSMENT ORDER U/S. 143(3) OF INCOME TAX ACT, 1961 [HEREIN AFTER R EFERRED TO AS 'THE . . ./ I.T.A. NO.637/IND/2015 %' ' / ASSESSMENT YEAR: 2008-09 I.T.A. NO. 637/IND/2015/A.Y:08-09/SMT. L. H. BABBAR PAGE 2 OF 14 ACT) DTD. 30.12.2010 PASSED BY THE DY. COMMISSIONE R OF INCOME TAX CIRCLE 1(1) BHOPAL [HEREINAFTER REFERRED TO AS THE AO]. 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.3,00,000/-BEING INCOM E SURRENDERED AT THE TIME OF SURVEY ON ACCOUNT OF INV ESTMENT IN IMMOVABLE PROPERTIES WITHOUT CONSIDERING THE EXPLAN ATION OFFERED BY THE APPELLANT AND WITHOUT APPRECIATING T HE FACT THAT DURING THE COURSE OF SURVEY NO SUCH DOCUMENT WAS FO UND ESTABLISHING SUCH INVESTMENT. 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.5,00,000/-BEING INCOM E SURRENDERED AT THE TIME OF SURVEY ON ACCOUNT OF DIS CREPANCIES FOUND IN BOOKS OF ACCOUNTS OF M/S. ROSE BEAUTY PARL OUR BELONGING TO HER MOTHER-IN LAW MRS KAN SHOW YEIN WI THOUT CONSIDERING THE EXPLANATION OFFERED BY THE APPELLAN T AND WITHOUT CONSIDERING THE FACTS THAT DURING THE COURSE OF SUR VEY NO SUCH DOCUMENT WAS FOUND ESTABLISHING SUCH FACT. 3. 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. 13,152/- UNDER SECTI ON 50C(1) OF THE ACT AS UNDISCLOSED SALE VALUE IN THE HANDS OF T HE APPELLANT BY INCREASING THE INCOME FROM CAPITAL GAIN WITHOUT CONSIDERING THE EXPLANATION OFFERED BY THE APPELLANT. 3. GROUND NOS.1 TO 2 RELATES TO CONFIRMING OF ADDIT ION OF RS. 3 LAKH AND RS. 5 LAKHS RESPECTIVELY ON ACCOUNT OF UNEXPLAINED INVESTMENT IN I.T.A. NO. 637/IND/2015/A.Y:08-09/SMT. L. H. BABBAR PAGE 3 OF 14 CONSTRUCTION AND RENOVATION OF HOUSE AND ON ACCOUNT OF DISCREPANCIES IN THE BOOKS OF ACCOUNTS OF ROSE BEAUTY PARLOUR BEL ONGING TO MOTHER- IN LAW OF THE ASSESSEE RESPECTIVELY WHICH WAS SURRE NDERED DURING THE COURSE OF SURVEY UNDER SECTION 133A OF THE ACT. 4. SUCCINCTLY, THE FACTS AS CULLED OUT FROM THE ORDER OF LOWER AUTHORITIES ARE THAT THE ASSESSEE IS INDIVIDUAL, AND ENGAGED IN THE BUSINESS OF BEAUTICIAN AND RESTAURANT BEING CARRIED ON IN THE N AME OF PROPRIETORSHIP VIZ NEW ROSE BEAUTY PARLOUR AND M/S. HONG KONG RESTAURANT RESPECTIVELY. THE ASSESSEE HER FILED HIS RETURN OF INCOME ON 31.03.2009 DECLARING TOTAL INCOME AT RS. 10,14,740/ - BEING RS.5,54,605/- FROM BEAUTY PARLOUR AND RS. 5,29,333/ - FROM RESTAURANT BUSINESS. THE ASSESSEE HAS LOOKING AFTER THE BUSINESS OF HER MOTHER-IN LAW NAMED AND STYLED AS M/S. ROSE BEA UTY PARLOUR. IN THIS CASE, A SURVEY UNDER SECTION 133A WAS CONDUCTE D ON 22.06.2007 WHEREIN SOME LOOSE PAPERS, DOCUMENTS AND BOOKS OF A CCOUNTS WERE FOUND AND IMPOUNDED. BOOKS OF ACCOUNTS WERE FOUND T O BE MAINTAINED ON COMPUTER, WHICH WERE INCOMPLETE IN AS MUCH AS SOME ENTRIES WERE NOT RECORDED UP TO DATE WHICH WERE MAI NTAINED ON COMPUTER. CONSIDERING INCOMPLETE BOOKS OF ACCOUNTS THE ASSESSEE HAS SURRENDERED A SUM OF RS. 2 LAKH AS BUSINESS INCOME IN NEW ROSE BEAUTY PARLOUR BUSINESS AND RS.3 LAKH IN CONSTRUCTI ON AND RENOVATION OF HOUSE BUILDING AT NEELAM COLONY, NEEMUCH, AND RS . 5 LAKH IN ROSE BEAUTY PARLOUR BUSINESS BEING RUN IN THE NAME OF HE R MOTHER-IN LAW I.T.A. NO. 637/IND/2015/A.Y:08-09/SMT. L. H. BABBAR PAGE 4 OF 14 FOR ASSESSMENT YEAR UNDER CONSIDERATION. HOWEVER, T HE ASSESSEE HAS NOT DISCLOSED THESE AMOUNTS IN HER RETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. SINCE THE ASSE SSEE HERSELF ACCEPTED THE MISTAKE OF RS. 2 LAKH IN REGULAR BOOKS OF ACCOUNTS, RS. 3 LAKH IN INVESTMENT IN CONSTRUCTION AND RENOVATION O F NEELAM COLONY HOUSE AND RS. 5 LAKH IN ROSE BEAUTY PARLOUR BUSINES S AS THE ASSESSEE IS LOOKING AFTER THE SAID BUSINESS HENCE ADDITION O F RS. 5 LAKH WAS MADE IN THE HANDS OF THE ASSESSEE ON SUBSTANTIVE BA SIS AND PROTECTIVE IN THE CASE OF HER MOTHER-IN LAW. ACCORDINGLY, THE AO MADE AGGREGATE ADDITION OF RS. 10 LAKH ON THE BASIS OF STATEMENT R ECORDED DURING THE COURSE OF SURVEY. THE AO MADE ADDITION OF THE SAME BY PLACING RELIANCE IN THE CASE OF ACIT VS. HUKUM 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 BY CHARTERED ACCOUNTANT AND THE AUDITOR POI NTED OUT NO MISTAKE THEREIN. IN THE ASSESSMENT PROCEEDINGS ALSO , THE AO HAS NOT POINTED OUT ANY MAJOR MISTAKE. DURING THE COURSE OF SURVEY UNDER SECTION 133A OF THE ACT, SMT. L H BABBAR BEING A LA DY WAS UNDER MENTAL PRESSURE AND AS THE SURVEY PROCEEDING CONTI NUED TILL LATE NIGHT AND TO AVOID THE HARASSMENT AND DUE TO MENTAL PRE SSURE THE ASSESSEE SURRENDERED OF RS.2,00,000/- FOR BEING UNF ORESEEN MISTAKE IN REGULAR BOOKS OF ACCOUNTS RS. 3,00,000 FOR UNFOR ESEEN INVESTMENT I.T.A. NO. 637/IND/2015/A.Y:08-09/SMT. L. H. BABBAR PAGE 5 OF 14 IN BUILDING AT NEELAM COLONY AND RS. 5,00,000/ BEIN G UNFORESEEN UNKNOWN AND UNFOUND RECEIPTS IN THE BUSINESS BELONG ING TO MOTHER- IN LAW AND NOT TO THE ASSESSEE IN REPLY TO QUESTIO N NO.2 OF HER STATEMENT DTD. 22.06.2007. IT IS ALSO CLEAR FROM TH E STATEMENT THAT NO SPECIFIC DETAILS WERE ASKED REGARDING RENOVATION AN D CONSTRUCTION OF HOUSE AND NO INCRIMINATING DOCUMENTS WERE FOUND DUR ING THE COURSE OF SURVEY FROM WHICH IT COULD BE ASCERTAINED THAT T HERE WAS ANY INVESTMENT IN HOUSE OUT-SIDE BOOKS OF ACCOUNTS. THE LD. CIT (A) OBSERVED THE APPELLANT HAS MADE DISCLOSURE OF RS. 2 LAKH FOR UNDECLARED RECEIPTS IN HER BOOKS OF ACCOUNTS. IT IS ALSO SEEN THAT DURING THE ENTIRE COURSE OF SURVEY AS WELL AS ASSES SMENT PROCEEDINGS, THE AO FAILED TO BRING ON RECORD EVEN A SINGLE SPEC IFIC INSTANCE OF SUCH UNRECORDED TRANSACTIONS, THE AO SOLELY RELYING ON C ASE LAWS PERTAINING TO SEARCH CASES AND ON THE BASIS OF STAT EMENT OF THE APPELLANT HAS MADE ADDITION OF RS. 2 LAKH AS UNACCO UNTED BUSINESS TRANSACTIONS. THEREFORE, LD. CIT (A) HELD THAT KEEP ING THE VALUE OF STATEMENT RECORDED DURING SURVEY AS DISTINGUISHED U NDER SECTION 132(4) DURING SEARCH; FACTS OF THE CASE DELETED THE ADDITION OF RS. 2 LAKH MADE ON ACCOUNT UNDISCLOSED INCOME BUSINESS IN COME OF BEAUTY PARLOUR. HOWEVER, THE LD. CIT (A) UPHELD THE ADDITI ON OF RS. 3 LAKH MADE ON ACCOUNT OF CONSTRUCTION AND RENOVATION OF N EELAN HOUSE PROPERTY AND RS. 5 LAKH PERTAINING TO ROSE BEAUTY P ARLOUR PROPRIETOR CONCERN OF HER MOTHER-IN LAW BY HOLDING THAT BUSINE SS IS BEING LOOKED I.T.A. NO. 637/IND/2015/A.Y:08-09/SMT. L. H. BABBAR PAGE 6 OF 14 AFTER BY THE ASSESSEE AND RETURN OF INCOME IS BEING SIGNED BY THE ASSESSEE. 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 ANY DISCREPANCY AND MISTAKE. A T THE TIME OF SURVEY, SMT. L H BABBAR WAS UNDER PRESSURE AND NOT WELL, HENCE, SHE SURRENDERED RS. 3 LAKH ON ACCOUNT CONSTRUCTION AND RENOVATION OF HOUSE AND RS. 5 LAKH ON ACCOUNT OF BUSINESS INCOME OF ROSE BEAUTY PARLOUR BELONGING TO HER MOTHER-IN LAW. LATER ON, O NGOING THROUGH THE BOOKS OF ACCOUNTS, SHE REALISED HER MISTAKE AND RET RACTED FROM SURRENDER. THE LEARNED COUNSEL SUBMITTED THAT READI NG OF HER STATEMENT MAKES IT CLEAR THAT THERE IS NO SPECIFIC MENTION ABOUT DESCRIBED IRREGULARITY IN THE BOOKS OF ACCOUNTS OR SPECIFIC UN ENTERED INVESTMENT IN THE CONSTRUCTION OF HOUSE OR NOR ANY PARTICULAR DEFICIENCY WAS FOUND IN THE ACCOUNTS OF BUSINESS B ELONGING TO HER MOTHER-IN LAW. NO EXPLANATION FOR INVESTMENT IN HOU SE PROPERTY OF NEELAM COLONY WAS ASKED DURING THE COURSE OF ASSESS MENT PROCEEDINGS. FURTHER, THE ROSE BEAUTY PARLOUR DOES NOT BELONG TO THE ASSESSEE BUT BELONG TO HER MOTHER-IN LAW WHO IS REG ULARLY ASSESSED TO INCOME TAX AND ALSO FILED HER RETURN FOR THIS YEAR ALSO. HENCE, ADDITION IF ANY SHOULD HAVE BEEN MADE IN THE HANDS OF THE MO THER-IN LAW OF ASSESSEE AND NOT IN HER CASE. THE ADDITION SO MADE IS MERELY BASED ON I.T.A. NO. 637/IND/2015/A.Y:08-09/SMT. L. H. BABBAR PAGE 7 OF 14 STATEMENT ON OATH. IT IS SETTLED LAW THAT MERE ADMI SSION OF THE ASSESSEE, WITHOUT ANY EVIDENCE, WOULD NOT BE BINDIN G ON THE ASSESSEE AND ADDITION CANNOT BE MADE ON THE BASIS OF THE SAM E. THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT CBDT INSTRUCTION DATED 10.03.2010 SAYS THAT CONFESSION SHOULD BE BASED UP ON CREDIBLE EVIDENCE FOUND DURING SEARCH AND SEIZURE AND SURVEY OPERATION. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER PLACED R ELIANCE IN THE CASE OF CIT VS. S. KHADER KHAN SON 25 TAXMANN.COM 413 (SC) UPHOLDING THE DECISION IN CIT VS. S KHADER KHAN SON (2008) 300 IT R 157 (MAD) THE HONBLE MADRAS HIGH COURT HELD THAT IT COULD NOT B E SAID SOLELY ON THE BASIS OF STATEMENT GIVEN BY ONE OF THE PARTNER OF THE ASSESSEE FIRM THAT THE DISCLOSED INCOME WAS ASSESSABLE AS LAWFUL INCOME OF THE ASSESSEE. SINCE THERE WAS NO MATERIAL ON RECORD TO PROVE THE EXISTENCE OF SUCH DISCLOSED INCOME OR EARNING OF SUCH INCOME IN THE HANDS OF ASSESSEE, IT COULD NOT BE SAID THAT THE REVENUE HAD LOST LAWFUL TAX PAYABLE BY ASSESSEE. THE LEARNED COUNSEL OF THE AS SESSEE 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. INSTRUCTION NO. F. NO. 286/2/2003-IT (INV.II) DTD. 10.03.2003 I.T.A. NO. 637/IND/2015/A.Y:08-09/SMT. L. H. BABBAR PAGE 8 OF 14 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. ITO 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 REPLY TO QUESTION NO. 21 OF HIS STATEMENT THAT HE HAS MADE CONSTRUCTION OF NEELAM COLONY HOUSE AND ALSO GIVEN THE 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 I.T.A. NO. 637/IND/2015/A.Y:08-09/SMT. L. H. BABBAR PAGE 9 OF 14 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), HIRA SINGH & CO. VS. CIT (1998) 230 ITR 791(HP)/147 CTR 364/ 98 TAXMAN 210(H P), ACIT VS. HUKUM CHAND JAIN (2010) 191 TAXMAN 319 (CHHATTISGAR H) AND CHANDRA MOHAN MEHTA 71 ITD 245(PUNE) 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 L. H. BABBAR, HAS MADE A SURRENDER OF RS. 2 LAKH ON ACCOUNT BUSINESS INCOME OF BEAUTY PARLOUR A ND OF RS.3 LAKH ON ACCOUNT OF CONSTRUCTION AND RENOVATION AND INVES TMENT IN IMMOVABLE PROPERTY AND RS. 5 LAKHS ON ACCOUNT DISCR EPANCIES FOUND IN THE BOOKS OF ACCOUNTS OF ROSE BEAUTY PARLOUR IN COME OF BELONGING TO HER MOTHER-IN LAW, BUT SAME IS NOT INCLUDED, IN THE RETURN OF INCOME FILED BY THE ASSESSEE. WE FIND THAT BOOKS OF ACCOUNTS FOUND DURING SURVEY WERE INCOMPLETE AS ENTRIES FROM 09.05 .2007 WERE NOT UPDATED. WHEN CONFRONTED WITH THESE DISCREPANCIES; SMT. L.H.BABBAR, THE ASSESSEE HAS ADMITTED ADDITIONAL IN COME OF RS. 3 LAKHS INVESTED IN CONSTRUCTION AND RENOVATION OF HI S HOUSE. SHE ALSO I.T.A. NO. 637/IND/2015/A.Y:08-09/SMT. L. H. BABBAR PAGE 10 OF 14 ADMITTED UNDISCLOSED INCOME IN RESPECT OF ROSE BEAU TY PARLOUR IN ON BEHALF OF HER MOTHER-IN LAW AS AUTHORISED REPRESENT ATIVE AS SHE WAS LOOKING AFTER THE SAID BUSINESS ONLY AND EARNING UN DISCLOSED INCOME FROM THAT BUSINESS, HENCE, THE AO HAS RIGHTLY TAXED THE SAME IN HER HAND. FURTHER, WE FIND THAT THE ASSESSEE HAS NOT MADE ANY RETRACTION UP TO DATE OF FILING OF RETURN OF INCOME. IF THE CO NTENTION OF THE ASSESSEE IS TRUE THEN HE SHOULD HAVE BROUGHT TO TH E NOTICE OF THE A.O. BUT NO SUCH DISCLAIMER LETTER WAS FILED. THEREFORE, UNDER THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED VIEW THAT T HE STATEMENT MADE BY THE ASSESSEE WAS BINDING UPON HER. 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 CI T 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 133A HAS TO BE READ AS WHOLE AND HE PROVES THAT STA TEMENT IS MADE I.T.A. NO. 637/IND/2015/A.Y:08-09/SMT. L. H. BABBAR PAGE 11 OF 14 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 SMT. L H BABBAR HAS SMADE A SPECIFIC 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 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 NOT ABLE T O DEMONSTRATE THAT HOW THE ADMISSION MADE DURING SURVEY IS INCORRECT. THEREFORE, SUCH RETRACTION IS NOT PERMISSIBLE IN THE LIGHT OF RATIO LAID DOWN BY HON'BLE SUPREME COURT IN THE CASE OF PULLANGODE RUBBER PROD UCE CO. I.T.A. NO. 637/IND/2015/A.Y:08-09/SMT. L. H. BABBAR PAGE 12 OF 14 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 TAXMA N 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 RETRACTED WITHIN REASONABLE TIME ALSO . THEREFORE, THIS CASE IS SQUARELY COVERED 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 SINH & 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 JURISDICTIONA L HIGH COURT HAS LAID DOWN THE RATIO BY REFERRING THE DECISION IN THE CASE OF I.T.A. NO. 637/IND/2015/A.Y:08-09/SMT. L. H. BABBAR PAGE 13 OF 14 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 EITHER PROVED ERRONEOUS OR SUCCESSFULLY WITHDRAWN BY THE PERSON WHO MADE TH OSE 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 HER 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 OF THE ASSESSEE, RECORDED DURING THE COURSE OF SURVEY AND SPECIFIC ADMISSION OF UNDISCLOSED INCOME BY THE ASSESSEE`S, WE UPHELD THE FINDING OF THE LOWER AUTHORITIES IN MAKING ADDITION ON ACCOUNT OF SURRE NDER MADE DURING SURVEY WHICH WAS NOT RETRACTED. ACCORDINGLY, GROUND NO. 1 AND 2 OF APPEAL IS DISMISSED. 16. GROUND NO. 3 RELATES TO ADDITION OF RS. 13,152/- BE ING DIFFERENCE IN COMPUTATION OF LONG TERM CAPITAL GAINS BY ADOPTING MARKET PRICE AS PER PROVISIONS OF SECTION 50C AND ACTUAL SALE PRIC E. 17. BRIEFLY, THE ASSESSEE HAS SOLD A PIECE OF LAND SITU ATED AT RISHI NAGAR FOR RS. 1.5 LAKH BUT MARKET PRICE AS PER STAMP DUTY WAS AT RS.1.58 LAKH. SIMILARLY THE INDEXATION COST WAS CONSIDERED BY THE ASSESSEE AT RS. 1,04,515/- INSTEAD OF RS. 1,09,667/- ACCORDINGL Y LONG TERM CAPITAL I.T.A. NO. 637/IND/2015/A.Y:08-09/SMT. L. H. BABBAR PAGE 14 OF 14 GAINS OF RS. 53,485/- WAS COMPUTED AS AGAINST LON G TERM CAPITAL GAINS OF RS. 40,333/. IN THE COURSE OF APPELLATE P ROCEEDINGS, THE ASSESSEE HAS ACCEPTED THE COST OF INDEXATION AS COM PUTED BY THE AO BUT DISPUTED THE APPLICATION OF PROVISIONS OF SECTI ON 50C. HOWEVER, THE LD. CIT (A) HAS UPHELD THE ADDITION SO MADE. 18. WE HAVE HEARD THE PARTIES AND FIND THAT THE LOWER A UTHORITIES HAVE CORRECTLY APPLIED THE PROVISIONS OF SECTION 50C AND COST OF INDEXATION, HENCE NO INTERFERENCE IS CALLED FOR. ACCORDINGLY, T HIS GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 19. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS, DISMI SSED. 20. THIS ORDER PRONOUNCED IN OPEN COURT ON 26 TH OCTOBER,2016. SD/- ( . . ) (D.T.GARASIA) JUDICIAL MEMBER SD/- ( . . ) (O.P.MEENA) ACCOUNTANT MEMBER & / DATED : 26TH OCTOBER, 2016.OPM