Shri Deepak Babbar, Bhopal V. THE DCIT, Bhopal

ITA 691/IND/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5627 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 10 month(s) 28 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: 28-11-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K G GOYAL
• Assessee Lawyers: N D PATWA S
• Keywords: Unexplained investment; Search and seizure; Loose papers; Question of law; Retraction
• Section: 143(3); 133A; 234B

Judgement Text

I.T.A. NO. 691/IND/2013/A.Y:08-09/SHRI DEEPAK BABBA R PAGE 1 OF 13 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE .. , .. , % BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER SHRI DEEPAK BABBAR, 131/14 ZONE-II, M. P. NAGAR, BHOPAL PAN:AEWPB 9854 K VS. DY. COMMISSIONER OF INCOME TAX CIRCLE 1(2) 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. 1. THIS APPEAL IS FILED BY THE ASSESSEE IS DIRECTED AG AINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-I, BHO PAL (HEREINAFTER REFERRED TO AS THE LD. CIT (A)) DATED 28.08.2013. 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 ACT) DTD. 30.12.2010 PASSED BY THE DY. COMMISSIONE R OF INCOME TAX CIRCLE 1(2) BHOPAL [HEREINAFTER REFERRED TO AS THE AO]. 2. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEAL :- . . /. I.T.A. NO. 691/IND/2013 ( ( / ASSESSMENT YEAR: 2008-09 I.T.A. NO. 691/IND/2013/A.Y:08-09/SHRI DEEPAK BABBA R PAGE 2 OF 13 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.7,00,000/- MADE ON AC COUNT OF INCOME SURRENDERED AT THE TIME OF SURVEY WITHOUT C ONSIDERING 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, THERE WAS NO ANY CONCRETE MATERIAL WHICH COULD FORM THE BASIS FOR SU CH HUGE ADDITION OF RS. 7,00,000/-. IT IS ALSO SUBMITTED THAT THE LD. CIT (A) OUGHT TO CONSIDER THE FACT THAT THE RETRACTION OF THE ASSESSEE FROM THE INCOME SURRENDERED WAS BONA FIDE AND JUSTIFIED ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 2. THAT UNDER THE CIRCUMSTANCES, CHARGING OF INTEREST OF RS. 80,046/- U/S. 234B IS NOT JUSTIFIED. 3. 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 . 7 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. 4. SUCCINCTLY, THE FACTS AS CULLED OUT FROM THE ORDER OF LOWER AUTHORITIES ARE THAT THE ASSESSEE, IS INDIVIDUAL, ENGAGED IN TH E BUSINESS OF I.T.A. NO. 691/IND/2013/A.Y:08-09/SHRI DEEPAK BABBA R PAGE 3 OF 13 CONSTRUCTION AND LAND DEVELOPER AND ALSO PARTNER I N M/S. DEEP MOHINI, M/S. DEEP COLONISERS , M/S. MOHINI MUSKAN C ONSTRUCTION AND M/S. MOHINI DEEP CONSTRUCTION. THE ASSESSEE HAS FILED HIS RETURN OF INCOME ON 30.09.2008 DECLARING TOTAL INCOME AT R S. 4, 89,980/- . 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 ENTRIES IN CASH BOOK FROM 09.05.2007 TO 22.06.2007 WERE NOT ENTERED, HENCE, ON ACCOUNT OF INCOMPLETE REGULAR BOOKS OF AC COUNTS THE ASSESSEE HAS SURRENDERED A SUM OF RS. 1 LAKH FOR TH E ASSESSMENT YEAR 2006-07. FURTHER, IN STATEMENT RECORDED ON OATH DUR ING SURVEY, THE ASSESSEE HAS SURRENDERED A SUM OF RS. 7 LAKHS ON AC COUNT OF CONSTRUCTION AND RENOVATION OF HOUSE BUILDING AT JH A SADAN, NEELAM COLONY, NEEMUCH FOR ASSESSMENT YEAR UNDER CONSIDERA TION. HOWEVER, THE ASSESSEE HAS NOT DISCLOSED THIS AMOUNT IN HIS R ETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. SINCE THE ASSESSEE HAS HIMSELF ACCEPTED THE INVESTMENT IN CONSTRUCTION AND RENOVATION OF HOUSE AT RS. 7 LAKH FROM HIS UNDISCLOSED INCOME, TH EREFORE, THE AO MADE ADDITION OF THE SAME BY PLACING RELIANCE IN TH E CASE OF ACIT VS. HUKUM CHAND JAIN (2010) 191 TAXMAN 319 (CHHATTISGAR H). 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 I.T.A. NO. 691/IND/2013/A.Y:08-09/SHRI DEEPAK BABBA R PAGE 4 OF 13 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 WAS IN PRESSURE AND HIS MENTAL STATUS WAS NOT WELL STATUS, HENCE HE MADE SU RRENDER OF RS.7,00,000/- FOR INVESTMENT IN CONSTRUCTION AND RE NOVATION OF HOUSE IN REPLY TO QUESTION NO. 21 OF HIS STATEMENT. IT IS ALSO CLEAR FROM THE STATEMENT THAT NO SPECIFIC DETAILS WERE ASKED FOR R EGARDING RENOVATION AND CONSTRUCTION OF HOUSE AND NO INCRIMINATING DOCU MENTS WERE FOUND DURING THE COURSE OF SURVEY FROM WHICH IT COU LD BE ASCERTAINED THAT THERE WAS ANY INVESTMENT IN HOUSE OUT-SIDE BOO KS OF ACCOUNTS. HOWEVER, THIS ARGUMENT DOES NOT GO WELL TO LD. CIT (A). THE LD. CIT (A) ALSO OBSERVED THAT THE ASSESSEE HAS NOT RETRACTED F ROM HIS STATEMENT WITHIN REASONABLE TIME. THEREFORE, RELYING THE DECI SION IN THE CASE OF ISHWARDIN MEWALAL VS. CIT (1986) 169 ITR 584 (MP) AND OTHERS AS DISCUSSED IN THE APPEAL ORDER UPHELD THE ADDITION S O MADE. 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 NO DISCREPANCY AND MISTAKE. AT THE TIME OF SURVEY, SHRI DEEPAK BABBAR WAS UNDER PRESSURE AND N OT WELL, HENCE, HE SURRENDERED RS. 7 LAKH. LATER ON, ONGOING THROUG H THE BOOKS OF ACCOUNTS, HE REALISED HIS MISTAKE AND RETRACTED FRO M SURRENDER. THE I.T.A. NO. 691/IND/2013/A.Y:08-09/SHRI DEEPAK BABBA R PAGE 5 OF 13 LEARNED COUNSEL SUBMITTED THAT READING THE QUESTION NO. 21 OF HIS STATEMENT MAKES IT CLEAR THAT THE CASH BOOK WAS WRI TTEN UP TO 09.05.2007 IT WAS NOT UPDATED UP TO 22.06.2007. T HE LD. A.O. HIMSELF STATED THAT IF CASH BOOK IS UPDATED TO CURR ENT DATE BASED ON VOUCHERS, THE CASH BALANCE WOULD COME TO RS. 8-9 L AKHS, WHEREAS NO CASH WAS FOUND DURING SURVEY. THEREFORE, IT WAS CON TENDED THAT SHORTAGE OF CASH BALANCE ITSELF WAS EXPLANATION FOR INVESTMENT IN HOUSE PROPERTY OF JHA SADAN, NEELAM COLONY, WHICH W AS NOT EXAMINED AT THE TIME OF SURVEY. THERE WAS NOT ANY F INDING IN ASSESSMENT ORDER OR APPEAL ORDER THAT ANY RENOVATIO N WAS DONE IN JHA PROPERTY. THE ADDITION IS MADE MERELY BASED ON STAT EMENT ON OATH. IT IS SETTLED LAW THAT MERE ADMISSION OF THE ASSESSEE, WITHOUT ANY EVIDENCE, WOULD NOT BE BINDING ON THE ASSESSEE AND ADDITION CANNOT BE MADE ON THE BASIS OF THE SAME. THE LEARNED COUNS EL 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 RELIANCE 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 ITR 157 (MAD) THE HONBL E MADRAS HIGH COURT HELD THAT IT COULD NOT BE SAID SOLELY ON THE BASIS OF STATEMENT GIVEN BY ONE OF THE PARTNER OF THE ASSESSEE FIRM TH AT THE DISCLOSED INCOME WAS ASSESSABLE AS LAWFUL INCOME OF THE ASSES SEE. SINCE THERE I.T.A. NO. 691/IND/2013/A.Y:08-09/SHRI DEEPAK BABBA R PAGE 6 OF 13 WAS NO MATERIAL ON RECORD TO PROVE THE EXISTENCE OF SUCH DISCLOSED INCOME OR EARNING OF SUCH INCOME IN THE HANDS OF AS SESSEE, IT COULD NOT BE SAID THAT THE REVENUE HAD LOST LAWFUL TAX PA YABLE BY ASSESSEE. THE LEARNED COUNSEL OF THE ASSESSEE ALSO PLACED REL IANCE 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 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) I.T.A. NO. 691/IND/2013/A.Y:08-09/SHRI DEEPAK BABBA R PAGE 7 OF 13 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 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. I.T.A. NO. 691/IND/2013/A.Y:08-09/SHRI DEEPAK BABBA R PAGE 8 OF 13 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 DEEPAK BABBAR HAS CATEGOR ICALLY ADMITTED IN REPLY TO QUESTION 21 OF HIS STATEMENT RECORDED DURI NG SURVEY A SUM OF RS. 7 LAKH WAS SPENT ON CONSTRUCTION AND RENOVATION OF JHA SADAN SITUATED AT NEELAM COLONY HOUSE, BUT THIS AMOUNT IS NOT INCLUDED IN THE RETURN OF INCOME FILED BY THE ASSESSEE. WE FIND THAT BOOKS OF ACCOUNTS FOUND DURING SURVEY WERE INCOMPLETE AS ENT RIES FROM 09.05.2007 WERE NOT UPDATED. THERE CASH BOOK SHOWED CAPITAL BALANCE ABOUT RS. 8-9 LAKHS WHEREAS NO CASH WAS FOU ND. WHEN CONFRONTED WITH THESE DISCREPANCIES; SHRI DEEPAK B ABBAR, THE ASSESSEE HAS ADMITTED ADDITIONAL INCOME OF RS. 7 LA KHS INVESTED IN CONSTRUCTION AND RENOVATION OF HIS HOUSE. FURTHER, WE FIND THAT THE ASSESSEE HAS NOT MADE ANY RETRACTION UP TO DATE OF FILING OF RETURN OF INCOME. IF THE CONTENTION OF THE ASSESSEE IS TRUE T HEN HE SHOULD HAVE BROUGHT TO THE NOTICE OF THE A.O. BUT NO SUCH DISC LAIMER LETTER WAS FILED. THEREFORE, UNDER THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED VIEW THAT THE STATEMENT MADE BY THE ASSESSEE WAS BI NDING UPON HIM. 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 I.T.A. NO. 691/IND/2013/A.Y:08-09/SHRI DEEPAK BABBA R PAGE 9 OF 13 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 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 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 SMADE A SPECIFIC STATEMENT ON THE BASIS OF DISCREPANCIES NOTICED DURING SURVEY AND HAS ADMITTE D UNDISCLOSED INCOME. HENCE, SAID CASE IS IN DIFFERENT CONTEXT AN D 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 I.T.A. NO. 691/IND/2013/A.Y:08-09/SHRI DEEPAK BABBA R PAGE 10 OF 13 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 TO DEMONSTRATE THAT HOW THE ADMISSION MADE DURING SURVEY IS INCORRECT. THEREFORE, SUCH RETRACTION IS NOT PERMISSIBLE IN THE LIGHT OF RATI O LAID DOWN BY HON'BLE 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. 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 I.T.A. NO. 691/IND/2013/A.Y:08-09/SHRI DEEPAK BABBA R PAGE 11 OF 13 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 SINGH & 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 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 I.T.A. NO. 691/IND/2013/A.Y:08-09/SHRI DEEPAK BABBA R PAGE 12 OF 13 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 DURING SURVEY WHICH WAS NOT RETRACTED. ACCORDINGLY, THIS GROUND OF APPEAL IS DISMISSED. 16. SO FAR AS GROUND NO. 2 OF CHARGING OF INTEREST U/S. 234B IS CONCERNED, IT IS CONSEQUENTIAL IN NATURE. 17. SO FAR GROUND NO. 3 RELATED TO INITIATION OF PENALT Y PROCEEDING U/S. 271(1) (C) IS CONCERNED, IT IS PREMATURE, THEREFORE , REQUIRES NO ADJUDICATION FROM OUR SIDE. 18. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS, DISMI SSED. 19. THIS ORDER PRONOUNCED IN OPEN COURT ON 26 TH OCT.,2016. I.T.A. NO. 691/IND/2013/A.Y:08-09/SHRI DEEPAK BABBA R PAGE 13 OF 13 S D / - ( . . ) (D.T.GARASIA) JUDICIAL MEMBER S D / - SD/- ( . . ) (O.P.MEENA) ACCOUNTANT MEMBER + / DATED : 26 TH OCTOBER, 2016.OPM