Gurdev Agro Engineers, Bhawanigarh V. ITO, Sangrur

ITA 781/CHANDI/2009

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80903 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 year(s) 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 07-08-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 23-07-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Assessee Lawyers: RAKESH JAIN
• Keywords: Principle of natural justice; Retraction
• Section: 143(3); 133A; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.781 /CHD/2009 ASSESSMENT YEAR : 2006-07 GURDEV AGRO ENGINEERS, VS. THE INCOME TAX OFFIC ER, SANGRUR ROAD, WARD 1, SANGRUR, BHAWANIGARH, PUNJAB. PUNJAB. PAN: AADFG5350N AND ITA NO.128 /CHD/2010 ASSESSMENT YEAR : 2006-07 DAULAT RAM MAGHAR RAM, VS. THE INCOME TAX OFFIC ER, SANGRUR ROAD, WARD 1, BHAWANIGARH, PUNJAB. SANGRUR, PAN: AABFD6100D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAKESH JAIN RESPONDENT BY : SHRI J.S.NAGAR, DR DATE OF HEARING : 07.08.2014 DATE OF PRONOUNCEMENT : 17.09.2014 O R D E R PER SUSHMA CHOWLA, J.M. : THE APPEAL FILED BY THE ASSESSEE M/S GURUDEV AGRO ENGINEERS IS AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), PATIALA DATED 29.06.2009 RELATING TO ASSESSMENT YEAR 2006-0 7 AGAINST THE ORDER PASSED UNDER SECTION 143(3) OF INCOME TAX ACT, 1961 (IN SHORT THE ACT). FURTHER THE APPEAL FILED BY THE ASSESSEE D AULAT RAM MAGHAR RAM IS AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS), 2 PATIALA DATED 12.01.2010 RELATING TO ASSESSMENT YEA R 2006-07 AGAINST THE ORDER PASSED UNDER SECTION 143(3) OF INCOME TAX ACT , 1961 (IN SHORT THE ACT). 2. THE ASSESSEE IN ITA NO.781/CHD/2009 HAS RAISED T HE FOLLOWING GROUNDS OF APPEAL: 1. BECAUSE THE ACTION OF CTT(A) IS UNDER CHALLENGE IN FACTS AND LAW FOR UPHOLDING THE ASSESSMENT ORDER U/ S 144 BY RECORDING CONTRADI CTORY FINDINGS& EVEN FURTHER PERVERSE IN ITS NATURE . 2. BECAUSE THE ACTION OF THE C1T(A) IS UNDER CHALLENGE ON FACTS AND LAW FOR DISALLOWANCE OF SALARY RS. 96,000/- AND INTERES T RS. 97,737/- TO THE PARTNERS INVOKING PROVISIONS OF SECTION 184(5). 3. BECAUSE THE ACTION OF C1T(A) IS UNDER CHALLENGE ON FACTS AND LAW IN UPHOLDING THE ADDITION OF RS. 20.00 LACS FOR THE SU RRENDER RETRACTED WHICH IS EVEN DEHORS THE MATERIAL ON RECORD FOR WHICH THE FI NDINGS HAVE NOT BEEN RETURNED. 4.A) BECAUSE THE ACTION OF C1T(A) IS UNDER CHALLE NGE ON FACTS AND LAW REGARDING ADDITION OF RS. 3,45,000/- U/S 68 WHICH IS BEHIND T HE BACK OF ASSESSEE AFTER DECLINING TO APPRECIATE WITH HOLDING OF THE R ECORDS (FOR BEING PROVIDED) BY THE ASSESSING OFFICER. B) BECAUSE THE ACTION IS IN VIOLATION OF RULES OF NATURAL JUSTICE AND THE SETTLED PRINCIPLES OF LAW. EVEN FURTHER THE ACTION IS ARBITRARY AND MIS- UTILISATION OF THE POWERS. 5.A) BECAUSE THE ACTION OF C1T(A) IS UNDER CHALLEN GE ON FACTS AND LAW REGARDING ADDITION OF RS. 97158/- FOR PAYMENT TREATED OUTSIDE BOOKS. B) BECAUSE THE ACTION IS IN VIOLATION OF RULES OF NATURAL JUSTICE AND THE SETTLED PRINCIPLES OF LAW. EVEN FURTHER THE ACTION IS ARBIT RARY AND MIS-UTILISATION OF THE POWERS. 6.A) BECAUSE THE ACTION OF CIT(A) IS UNDER CHALLENG E ON FACTS AND LAW REGARDING ADDITION OF RS.1,82,400/- TOWARDS COLLECT ION OF OUTSTANDING TOWARDS UGRAHI. B) BECAUSE THE ACTION IS IN VIOLATION OF RULES OF NATURAL JUSTICE AND THE SETTLED PRINCIPLES OF LAW. EVEN FURTHER THE ACTIO N IS ARBITRARY AND MIS- UTILISATION OF THE POWERS. 7.A) BECAUSE THE ACTION OF CIT(A) IS UNDER CHALLENG E ON FACTS AND LAW REGARDING ADDITION OF RS.30,980/- TOWARDS THE PREVI OUS YEAR EXPENSES. B) BECAUSE THE ACTION IS IN VIOLATION OF RULES OF NATURAL JUSTICE AND THE SETTLED PRINCIPLES OF LAW. EVEN FURTHER THE ACTIO N IS ARBITRARY AND MIS- UTILISATION OF THE POWERS. 3. THE ASSESSEE IN ITA NO.128/CHD/2010 HAS RAISED T HE FOLLOWING 3 GROUNDS OF APPEAL: 1. BECAUSE THE ACTION OF CIT(A) IS UNDER CHALLENGE ON FACTS AND LAW IN UPHOLDING THE ADDITION OF RS. 16.00 LACS FOR THE SU RRENDER RETRACTED WHICH IS EVEN DEHORS THE MATERIAL ON RECORD AND EVEN FOR THE PLEADINGS ADVANCED ALONGWITH THE MATERIAL THERE HAS NOT BEEN RECORDED ANY FINDINGS . EVEN THE ORDER IS PERVERSE IN IT'S NATURE. 2. BECAUSE THE ACTION OF C1T(A) IS UNDER CHALLENGE ON FACTS AND LAW REGARDING ADDITION OF RS. 1,37,34S/- (ON SALES OF R S. 10,81,48S/- @ 12.70%) GROSS PROFIT WHICH IS BEHIND THE BACK OF ASSESS EE AFTER DECLINING TO APPRECIATE THE WITHHOLDING OF THE RECORDS (FOR BEIN G PROVIDED) BY THE ASSESSING OFFICER. 3. BECAUSE THE ACTION OF CIT(A) IS UNDER CHALLENGE ON FACTS AND LAW REGARDING ADDITION OF RS. 3,677/- FOR PAYMENT TREAT ED OUTSIDE BOOKS OF ACCOUNT. 4. BECAUSE THE ACTION OF CIT(A) IS UNDER CHALLENGE ON FACTS AND LAW REGARDING ADDITION OF RS. 4,998/- FOR PAYMENT OUTSI DE BOOKS OF ACCOUNT. 5. BECAUSE THE ACTION IS IN VIOLATION OF RULES OF N ATURAL JUSTICE AND THE SETTLED PRINCIPLES OF LAW. EVEN FURTHER THE ACTION IS ARBITRARY AND MIS- UTILISATION OF THE POWERS. 4. BOTH THESE APPEALS RELATING TO THE DIFFERENT ASS ESSEE ON SIMILAR ISSUE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF F BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 5. THE LEARNED A.R. FOR THE ASSESSEE AT THE OUTSET POINTED OUT THAT SIMILAR ISSUE HAS BEEN RAISED IN BOTH THE APPEALS A ND FACTS AND CIRCUMSTANCES IN BOTH THE APPEALS ARE IDENTICAL. WE PROCEED TO DECIDE THE PRESENT APPEALS AFTER REFERRING TO THE FACTS IN ITA NO.781/CHD/2009. 6. THE BRIEF FACTS OF THE CASE ARE THAT SURVEY UNDE R SECTION 133A OF THE ACT WAS CARRIED OUT AT THE PREMISES OF THE ASSE SSEE ON 27.9.2005, UNDER WHICH THE ASSESSEE SURRENDERED SUM OF RS.20 L ACS OVER AND ABOVE ITS REGULAR INCOME. HOWEVER, THE SAID SURRENDER W AS NOT DECLARED IN THE RETURN OF INCOME AND THE ASSESSEE CLAIMED THAT IT W AS RETRACTED BY WRITTEN PLEADINGS DATED 6.1.2006. AS PER THE ASSE SSEE SURRENDER OF RS.20 LACS COMPRISING OF SURRENDER OF RS.15 LACS IN CASH AND RS.5 LACS FOR STOCK WAS MADE UNDER PRESSURE IN HASTE AND, THE REFORE, THE SAME WAS RETRACTED BY LETTER DATED 6.1.2006. THE ASSESSEE FURTHER PLEADED THAT NO 4 QUERY REGARDING DISCREPANCY IN THE STOCK WAS PUT TO THE PARTNERS OF THE ASSESSEE FIRM WHILE RECORDING THE STATEMENT DURING THE COURSE OF SURVEY AND THE SAID SURRENDER WAS RETRACTED VIDE LETTER DA TED 6.1.2006. IN RESPECT OF THE SURRENDER OF CASH OF RS.15 LACS, THE ASSESSEE CLAIMED THAT THERE IS NO DISCREPANCY IN THE CASH AND NO SUCH DIS CREPANCY WAS PUT TO THE PARTNERS DURING THE COURSE OF SURVEY AND THE RE TRACTION OF SURRENDER WAS MADE VIDE LETTER DATED 6.1.2006 AND INITIAL SUR RENDER WAS MADE UNDER PRESSURE AND HASTE. THE ASSESSING OFFICER H AD COMPLETED THE ASSESSMENT EX-PARTE UNDER SECTION 144 OF THE ACT AS THE ASSESSEE FAILED TO FURNISH INFORMATION DESPITE SEVERAL NOTICES BEIN G ISSUED O THE ASSESSEE. A SUM OF RS.20 LACS SURRENDERED BY THE ASSESSEE WAS ADDED AS INCOME OF THE ASSESSEE. FURTHER CERTAIN OTHER ADDITIONS WERE MADE BY THE ASSESSING OFFICER AFTER EXAMINATION OF THE B OOKS OF ACCOUNT IMPOUNDED DURING THE COURSE OF SURVEY. 7. THE CIT (APPEALS) REJECTING THE RETRACTION OF SU RRENDER CLAIMED BY THE ASSESSEE IN THE ABSENCE OF ANY EVIDENCE UPHELD THE ADDITION OF RS.20 LACS IN VIEW OF THE SURRENDER MADE BY THE ASSESSEE AND ALSO IN VIEW OF THE STATEMENT RECORDED DURING THE COURSE OF SURVEY. THE OTHER ADDITION MADE BY THE ASSESSING OFFICER WAS ALSO UPHELD BY TH E CIT (APPEALS). 8. THOUGH THE ASSESSEE HAS RAISED VARIOUS GROUNDS O F APPEAL IN RESPECT OF DIFFERENT ADDITIONS MADE IN THE HANDS OF THE ASSESSEE, HOWEVER, THE LEARNED A.R. FOR THE ASSESSEE SUBMITTE D THAT THE WRITTEN SUBMISSIONS AND ALSO MADE ARGUMENTS IN RELATION TO ADDITION OF RS.20 LACS. CONSEQUENTLY, WE TAKE UP THE ONLY GROUND OF APPEAL NO.3 RAISED BY THE ASSESSEE FOR ADJUDICATION AND THE BALANCE GR OUNDS OF APPEAL HAVE NOT BEEN PRESSED BY THE LEARNED A.R. FOR THE ASSESS EE AND THE SAME ARE DISMISSED. IN THE WRITTEN SUBMISSIONS, THE LEARNE D A.R. FOR THE ASSESSEE FIRST AGITATES THE ADDITION MADE ON ACCOUNT OF SURR ENDER OF STOCK OF RS.5 5 LACS. THE MAIN PLEA RAISED BY THE LEARNED A.R. FO R THE ASSESSEE WAS THAT THE SAID SURRENDER WAS RETRACTED BY LETTER DATED 6. 1.2006 AND CONSEQUENTLY NO ADDITION COULD BE MADE IN THE HANDS OF THE ASSESSEE. FURTHER IT WAS EXPLAINED BY THE ASSESSEE THAT IN CA SE THE TRADING ACCOUNT IS DRAWN ON 27.9.2005 THEN THE STOCK AVAILABLE WITH THE ASSESSEE MATCHES WITH THE STOCK FOUND AT THE TIME OF SURVEY AND THER E IS NO MERIT IN THE ADDITION. THE SECOND PLEA RAISED BY THE LEARNED A.R. FOR THE ASSESSEE WAS THAT NO DEFECTS WERE POINTED OUT EITHER IN THE BOOKS OF ACCOUNT OR THE SALES AND HENCE, THERE IS NO MERIT IN THE SAID ADDITION. IN RESPECT OF THE CASH SURRENDER OF RS.15 LACS, SIMILAR PLEAS WERE RAISED BY THE ASSESSEE OF RETRACTION AND NO DETAILS BEING FOUND. ANOTHER PLEA RAISED BY THE ASSESSEE WAS THAT NO CASH WAS FOUND FROM THE POSSESSION OF THE ASSESSEE AND ON THE OTHER HAND, SOME BLANK SIGNED P APERS WERE TAKEN BY THE SURVEY TEAM WHICH HAVE BEEN MIS-UTILISED BY THE SAID TEAM. ANOTHER PLEA RAISED BY THE LEARNED A.R. FOR THE ASSESSEE WA S THAT THE CASH INVENTORY WAS PREPARED BY THE SURVEY TEAM AND SIGNA TURE OF SHRI AVTAR SINGH WERE TAKEN, WHEREAS ON THE STOCK LIST PREPARE D BY THE SURVEY TEAM, SIGNATURE OF SHRI GURDEV SINGH WAS TAKEN. FURTHER STATEMENTS OF SHRI GURDEV SINGH AND SHRI GURVINDER SINGH WERE RECORDED AND NO STATEMENT OF SHRI AVTAR SINGH, WHOSE SIGNATURE WERE TAKEN ON CASH INVENTORY AND SURRENDER LETTER, WAS RECORDED DURING THE SURVEY. ALSO NO QUERY REGARDING DISCREPANCY IN CASH WAS PUT TO THE PERSONS WHOSE STATEMENTS WERE RECORDED DURING THE SURVEY. 9. THE LEARNED D.R. FOR THE REVENUE POINTED OUT THA T ON THE DATE OF SURVEY, CASH BOOK WAS WRITTEN UP TO 5.9.2005 AND Q UESTIONS WERE PUT TO THE PARTNER OF THE FIRM ON 27.9.2005 UNDER WHICH TH E ASSESSEE ADMITTED THAT THE BOOKS OF ACCOUNT WERE WRITTEN ONLY UP TO 5 .9.2005. THE LEARNED D.R. FOR THE REVENUE FURTHER POINTED OUT THAT DURIN G THE COURSE OF SURVEY 6 CASH INVENTORY WAS PREPARED AND THE LIST OF THE SAI D INVENTORY WAS PLACED AT PAGE 103 OF THE PAPER BOOK. THE LEARNED D.R. FOR THE REVENUE FURTHER INVITED OUR ATTENTION TO THE SURRENDER LETT ER FILED BY THE ASSESSEE, WHICH IS PLACED AT PAGES 61 AND 62 OF THE PAPER BOO K. IN VIEW OF THE SAID SURRENDER OF RS.20 LACS THE ADDITIONAL INCOME IS TO BE ADDED IN THE HANDS OF THE ASSESSEE. IT WAS VEHEMENTLY ARGUED BY THE LEARNED D.R. FOR THE REVENUE THAT THERE WAS NO RETRACTION AND IN ANY CASE RETRACTION SIMPLICITER CANNOT ABSOLVE THE ASSESSEE FROM ITS OB LIGATION. FURTHER RELIANCE WAS PLACED ON THE RATIO LAID DOWN BY THE H ON'BLE PUNJAB & HARYANA HIGH COURT IN HARBHAJAN SINGH VS. CIT-II IN ITA NO.17 OF 2012 DATE OF DECISION 7.5.2012. 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ASSESSEE WAS ENGAGED IN THE BUSINESS OF MANUFACTURI NG OF AGRICULTURE IMPLEMENTS, BORING MACHINES, TROLLEYS, ETC. SURVE Y UNDER SECTION 133A OF THE ACT WAS CONDUCTED IN THE BUSINESS PREMISES O F THE ASSESSEE ON 27.9.2005. DURING THE COURSE OF SURVEY IT WAS NOT ED THAT THE BOOKS OF ACCOUNT HAD BEEN WRITTEN ONLY UP TO 5.9.2005 AND NO T UP TO 27.9.2005. THE SURVEY TEAM NOTED THE DIFFERENCE IN STOCK TO TH E TUNE OF RS.5 LACS AND FURTHER CASH AMOUNTING TO RS.15 LACS WAS FOUND FROM THE PREMISES OF THE ASSESSEE, WHICH WAS SURRENDERED BY THE ASSESSEE VIDE SURRENDER LETTER PLACED AT PAGES 63 AND 64 OF THE PAPER BOOK. THE PERUSAL OF THE LETTER REFLECTS THE ASSESSEE TO HAVE ADMITTED THAT DURING THE COURSE OF SURVEY SOME DISCREPANCIES IN CASH AND STOCK WERE FOUND AND IN ORDER TO AVOID LITIGATION WITH THE DEPARTMENT AND TO BUY PEACE OF MIND, STOCK OF RS.5 LACS AND CASH OF RS.15 LACS WAS BEING SURRENDERED. THE SAID SURRENDER WAS IN ADDITION TO THE REGULAR INCOME FOR ASSESSMEN T YEAR 2006-07 AND IT WAS ALSO ADMITTED THAT THE TAXES ON THE SURRENDERED AMOUNT WOULD BE PAID IN DUE COURSE. THE ASSESSEE ALSO PLACED ON R ECORD THE STATEMENT OF 7 SHRI GURDEV SINGH, PARTNER OF THE ASSESSEE FIRM REC ORDED ON THE DATE OF SURVEY I.E. 27.9.2005 IN WHICH HE ADMITTED THAT THE BOOKS OF ACCOUNT WERE WRITTEN UP TO 5.9.2005 AND THE OPENING BALANCE OF CASH IN HAND ON 5.9.2005 WAS RS.2,37,793/-. THE ENGLISH TRANSCRI PTIONS OF THE SAID STATEMENT ARE PLACED AT PAGES 65 TO 70 OF THE PAPER BOOK. AT PAGES 61 AND 62 OF THE PAPER BOOK, A HAND WRITTEN LETTER ON LETTER HEAD OF ASSESSEE FIRM DATED 27.9.2005 IS ALSO PLACED IN WHICH THE AS SESSEE HAD ADMITTED TO HAVE SURRENDERED SUM OF RS.20 LACS I.E. STOCK OF RS .5 LACS AND CASH OF RS.20 LACS. AT PAGE 103 OF THE PAPER BOOK, THE AS SESSEE HAS PLACED INVENTORY OF CASH FOUND AT THE BUSINESS PREMISES OF THE ASSESSEE DURING THE COURSE OF SURVEY TOTALING RS.15 LACS. THE SA ID CASH OF RS.15 LACS WAS RETURNED BACK TO THE ASSESSEE AFTER COUNTING TH E SAME. THE PERUSAL OF THE SAID LIST REFLECTS THAT SUM OF RS.12 LACS WA S FOUND FROM THE STEEL ALMIRAH AND THE BALANCE SUM WAS FOUND FROM THE TABL E DRAWERS OF THE ASSESSEE. THE DENOMINATION OF THE CURRENCY FOUND IS ALSO MENTIONED IN THE SAID SHEET PLACED AT PAGE 103 OF THE PAPER BOOK . THE LIST OF THE STOCK INVENTORY FOUND DURING THE COURSE OF SURVEY I S PLACED IN THE PAPER BOOK. THE ASSESSEE CLAIMED THAT VIDE LETTER DATE D 6.1.2006 IT HAD RETRACTED FROM ITS SURRENDER. THE ASSESSEE THUS D ID NOT INCLUDE THE SAID SURRENDER AMOUNT IN THE RETURN OF INCOME. THE PLE A OF ASSESSEE BEFORE US WAS THAT NO DEFECTS WERE POINTED OUT EITHER IN T HE BOOKS OF ACCOUNT OR THE SALES AND HENCE THERE WAS NO MERIT IN THE SAID ADDITION MADE ON ACCOUNT OF THE STOCK SURRENDERED AND SIMILARLY THER E WAS NO MERIT IN THE ADDITION MADE ON ACCOUNT OF CASH SURRENDERED OF RS. 15 LACS. 11. IN THE FACTS OF THE PRESENT CASE SURVEY TEAM HA D VISITED THE BUSINESS PREMISES OF THE ASSESSEE AND HAD PREPARED A LIST OF STOCK FOUND FROM THE POSSESSION OF THE ASSESSEE AND ALSO THE LI ST OF CASH FOUND FROM THE BUSINESS PREMISES OF THE ASSESSEE. ADMITTEDLY, BOTH THE STOCK AND 8 SURRENDERED CASH BELONG TO THE ASSESSEE. THE BOOK S OF ACCOUNT WHICH WERE WRITTEN UP TO 5.9.2005 DID NOT REFLECT THE REQ UISITE STOCK FOUND FROM THE POSSESSION OF THE ASSESSEE AND THE CASH FO UND FROM THE BUSINESS PREMISES. AS THE ASSESSEE HAD NO EXPLANATION WITH REGARD TO THE EXCESS STOCK AND CASH, THE SAME WAS SURRENDERED BY THE ASS ESSEE AND THE SURRENDER LETTER DULY SIGNED BY THE PARTNERS OF THE ASSESSEE FIRM IS AVAILABLE ON RECORD I.E. AT PAGES 61 AND 62 OF THE PAPER BOOK FILED BY THE ASSESSEE. IT IS AN ESTABLISHED LAW THAT WHERE THE ASSESSEE WANTS TO RETRACT FROM HIS EARLIER STATEMENT, THEN HE HAS TO FURNISH ON RECORD AN EVIDENCE TO PROVE THE CONTRARY. MERE WITHDRAWAL O F EARLIER SURRENDER MADE WITHOUT ANY EVIDENCE CANNOT BE ACCEPTED. ADM ITTEDLY, THE ADMISSION MADE UNDER SECTION 133A OF THE ACT HAS NO EVIDENTIARY VALUE BUT WHERE DURING THE COURSE OF SURVEY, EVIDENCE WAS FOUND AS TO EXCESS STOCK IN POSSESSION OF THE ASSESSEE AND ALSO CASH O VER AND ABOVE THE AMOUNT RECORDED IN HE BOOKS OF ACCOUNT, THEN THE AD MISSION MADE UNDER SECTION 133A OF THE ACT CAN BE USED AGAINST THE ASS ESSEE TO MAKE ADDITION ON ACCOUNT OF THE AFORESAID STOCK AND THE CASH EXCESS FOUND FROM THE POSSESSION OF THE ASSESSEE. THE ASSESSEE HAD PLACED THE RELIANCE ON THE RATIO LAID DOWN BY THE CIT VS. S.KA DAR KHAN SONS REPORTED IN 352 ITR 480(SC) THAT THE ADMISSION MADE UNDER SECTION 133A HAS NO EVIDENTIARY VALUE. WE SUBSCRIBE TO THE SA ID PROPOSITION LAID DOWN BY THE HON'BLE SUPREME COURT. HOWEVER, IN CA SE OF THE ASSESSEE, THE STOCK WAS FOUND EXCESS, FOR WHICH THE ASSESSEE EVEN BEFORE US HAS FURNISHED NO EXPLANATION AND FURTHER THE CASH WAS A LSO FOUND FROM THE POSSESSION OF THE ASSESSEE, WHICH WAS NOT REFLECTED IN ITS BOOKS OF ACCOUNT AND FOR WHICH THE ASSESSEE HAD NO EXPLANATI ON. THE EXPLANATION OF THE ASSESSEE BEFORE US THAT IF THE T RADING ACCOUNT IS RECONSTRUCTED ON 27..9.2005, THEN THERE IS NO DISCR EPANCY IN THE STOCK, CANNOT BE ACCEPTED AT SUCH A LATE STAGE WHERE THE A SSESSEE HAD FAILED TO 9 FURNISH ANY INFORMATION AFTER THE CONCLUSION OF SUR VEY ORDER. EVEN THE SO-CALLED RETRACTION MADE ON A LATER DATE I.E. 6.1. 2006 CANNOT ABSOLVE THE ASSESSEE FROM ITS LIABILITY AND THE SURRENDER MADE, IN VIEW OF THE RATIO LAID DOWN BY THE HON'BLE PUNJAB & HARYANA HIGH COUR T IN BACHITTAR SINGH VS. CIT [328 ITR 400 (P&H), WHERE IT HAS BEEN HELD THAT THE BURDEN WAS UPON THE ASSESSEE TO ESTABLISH THAT THE ADMISSION WAS WRONG AND ALSO THAT THE RETRACTION SHOULD BE AT THE EARLI EST POINT OF TIME OR WITHIN THE REASONABLE TIME. FURTHER THE LEARNED D.R. FOR THE REVENUE HAS PLACED RELIANCE ON THE RATIO LAID DOWN BY THE H ON'BLE PUNJAB & HARYANA HIGH COURT IN HARBHAJAN SINGH VS. CIT IN IT A NO.17 OF 2012 ORDER DATED 7.5.2012 AND WE FIND THAT THE ISSUE BEF ORE US IS SIMILAR TO THE ISSUE BEFORE THE HON'BLE PUNJAB & HARYANA HIGH COURT WHERE IN THE FACTS BEFORE THE HON'BLE HIGH COURT CASH OF RS.33, 40,950/- WAS FOUND DURING THE COURSE OF SURVEY AND IF THE ASSESSEE HAD NO EXPLANATION TO OFFER, SUM OF RS.30,40,950/- WAS SURRENDERED BY THE ASSESSEE. THE TRIBUNAL CONFIRMED THE ADDITION OBSERVING AS UNDER: '15. THE THIRD PLANK OF THE SURRENDER AT THE TIME O F SURVEY WAS THE CASH FOUND FROM THE PREMISES OF THE ASSESSEE. THE ASSESSEE FAILED T O EXPLAIN THE SOURCE OF CASH OF RS.33,40,950/- FOUND DURING THE COURSE OF SURVEY AN D AS HE HAD NO EXPLANATION TO OFFER, SUM OF RS.30,40,000/- WAS SURRENDERED BY THE ASSESSEE. THE SAID SURRENDER AS POINTED OUT IN PARAS HEREINABOVE WAS NOT ON ACCO UNT OF THE TOTAL CASH FOUND BUT ON ACCOUNT OF THE DIFFERENCE IN CASH AS PER THE BOOKS AND CASH FOUND AT THE TIME OF SURVEY. WHILE FILING THE RETURN OF INCOME T HE ASSESSEE REDUCED THE SAID SURRENDER ON ACCOUNT OF CASH TO RS.3,23,999/- AND T HE PLEA OF THE ASSESSEE WAS THAT THIS WAS THE SURPLUS FOUND AFTER RECONCILIATION OF THE BOOKS OF ACCOUNT BY THE AUDITOR. THE SURVEY WAS CARRIED OUT AT THE PREMISES OF THE ASSESSEE ON 20.3.2007 AND THE RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 5.3.2008 I.E. AFTER A GAP OF NEARLY ONE YEAR. PRIOR TO FILING THE SAID RETURN OF INCOME, THE ASSESSEE HAD NOT RETRACTED ITS STATEMENT, NOR HAD EXPLAINED THE DISC REPANCIES IN THE CASH THOUGH THE SAID CASH AVAILABLE WITH THE ASSESSEE WAS NOT ACCOU NTED FOR IN THE BOOKS OF ACCOUNT AT THE TIME OF SURVEY AND WAS SURRENDERED. THE HON'BLE PUNJAB & HARYANA HIGH COURT IN BACHITTAR SINGH VS. CIT (SUPR A) HAVE LAID DOWN THE PROPOSITION THAT THE RETRACTION, IF ANY, SHOULD BE AT THE EARLIEST TIME. 12. THE HON'BLE HIGH COURT UPHOLDING THE ORDER OF T HE TRIBUNAL OBSERVED AS UNDER : 10 10. A READING OF THE AFORESAID FINDINGS CLEARLY SHO WS THAT IT WAS RECORDED THAT DURING THE COURSE OF SURVEY, THE ASSESSEE WAS NOT ABLE TO OFFER MY PLAUSIBLE EXPLANATION FOR THE SUM OF RS.30,40,000/- WHICH WAS SURRENDERED BY THE ASSE SSEE. FURTHER, DURING THE COURSE OF SURVEY, IT AS FOUND THAT CERTAIN SALE INVOICES WERE EITHER NOT RECORDED IN THE BOOKS OF ACCOUNT OR WERE UNDER INVOICED. THE ASSESSEE HAD AL SO ADMITTED CERTAIN NOTINGS IN THE DIARY AND NOTE BOOKS TO BE ON ACCOUNT OF SALES WHIC H WERE UNACCOUNTED. IN THE LIGHT OF THE AFORESAID FINDINGS, THE CONTENTION OF THE ASSES SEE THAT THE AMOUNT OF RS.27,16,001/- COULD NOT BE INCLUDED AS UNACCOUNTED CASH AND IT WAS RS.3,23,999/- ONLY DOES NOT CARRY ANY WEIGHT AND THE PLEA OF THE ASSESSEE HAS RIGHTLY BEEN DISPELLED BY THE AUTHORITIES BELOW. IN VIEW OF THE CONCURRENT FINDINGS RECORDED, NO QUE STION OF LAW ARISES IN THIS APPEAL. ACCORDINGLY, THE PRESENT APPEAL IS DISMISSED. 13. IN THE FACTS OF THE PRESENT CASE BEFORE US ALSO THERE WAS ADMITTEDLY EVIDENCE FOUND AGAINST THE ASSESSEE WHICH COULD NOT BE EXPLAINED BY THE ASSESSEE AND THE SURRENDER WAS MADE BY THE ASSESSEE TOTALING RS.20 LACS. ONCE THE ASSESSEE IS UNABLE TO OFFER ANY PLAUSIBLE EXPLANATION FOR THE SUM SURRENDERED BY THE ASSESSEE AND MERELY RELYING ON THE RETRACTION MADE ON A LATER DATE, DOES NOT ABSOLVE THE ASSESSEE FROM ITS LIABILITY. THE CIT (APPEALS) WHILE UPHOLDING THE ORDER OF THE ASSESSING OFFICER HAD GIVEN A FINDING THAT THE SURRENDER WAS MADE BY THE ASSESSEE BASED ON THE MATERIAL ALLEGED TO BE IN THE POSSESSION OF THE ASSESSING OFFICER COLLECTED DURING THE COURSE OF SURVEY AND THE SAID SURRENDER WAS MADE VOLUNTARILY. THE ASSESSEE HAD FAILED TO CONTROVER T THE SAID FINDINGS OF THE CIT (APPEALS) AND MERELY BECAUSE IT HAD TAKEN A STAND AFTER A CONSIDERABLE GAP OF TIME THAT IT WITHDRAWS ITS SUR RENDER, IS MERE AFTER THOUGHT AND SUCH RETRACTION OF SURRENDER CANNOT BE ACCEPTED. FURTHER BILLS AND CASH WERE FOUND FROM THE POSSESSION OF TH E ASSESSEE AND SUPPORTING DOCUMENTS, WHICH ESTABLISH THE CASE OF T HE REVENUE THAT THE ASSESSEE WAS IN POSSESSION OF ASSETS/CASH OVER AND ABOVE THE ASSET DECLARED IN THE BOOKS OF ACCOUNT AGAINST WHICH SURR ENDER WAS MADE BY THE ASSESSEE. UPHOLDING THE ORDER OF THE CIT (AP PEALS) WE FIND NO MERIT IN THE GROUNDS OF APPEAL RAISED BY THE ASSESS EE IN THIS REGARD AND THE SAID ARE DISMISSED. 11 14. THE LEARNED A.R. FOR THE ASSESSEE FAIRLY ADMITT ED THAT THE FACTS, CIRCUMSTANCES AND THE ISSUE IN ITA NO.128/CHD/2010 ARE IDENTICAL TO THE FACTS AND CIRCUMSTANCES IN ITA NO.781/CHD/2009 AND OUR DECISION IN ITA NO.781/CHD/2009 SHALL APPLY MUTATIS MUTANDIS TO ITA NO.128/CHD/2010. 15. IN THE RESULT, BOTH THE APPEALS FILED BY THE D IFFERENT ASSESSEES ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 17 TH DAY OF SEPTEMBER, 2014. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 17 TH SEPTEMBER, 2014 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH