2014 (2) TMI 472

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.... of the assessee is connected with Shanker Gutkha group of cases, in which search u/s. 132(1) was conducted on 30/31st January, 2008. Simultaneously, a survey operation u/s. 133A of the IT Act was carried out at the business premises of the assessee, M/s. Maya Commodities, proprietor Shri Varun Maheshwari (assessee) on 30.01.2008, in which several books of account, documents etc. were impounded. During the course of survey proceedings, the assessee has himself admitted that income of Rs.10 lacs and 15 lacs in both the years is unexplained income and has escaped assessment and surrendered the same amounts for taxation. However, on perusal of return of income filed by the assessee, it was noticed that the assessee did not show the surrendered....

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.... the Boar's circular No. 286 dated 10.03.2003, in which Board has directed that during the search and seizure operation, there should be focus and concentration on collection of evidence of income and no attempt should be made to obtain confession as to the undisclosed income. The assessee, therefore, submitted that there was no basis to make any surrender of income because no unaccounted income or any corroborative evidence was found. Therefore, mere recording of statement during the survey is not admissible in law and relied upon the decision of Kerala High Court in the case of Paul Mathews & Sons vs. CIT, 263 ITR 101 and decision of Delhi High Court in the case of CIT vs. Anil Bhalla, 322 ITR 191, in which it was held that addition could....

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.... is conclusive and it is open to the person who made the admission to show that it is not correct. The ld. CIT(A) also noted that when statement is retracted, the onus is upon the department to prove that the statement was voluntary. The ld. CIT(A) also noted several decisions on the point that statement recorded in survey has no evidentiary value. The ld. CIT(A) also followed the order of the ITAT, Agra Bench in the case of M/s. Maya Trading Co. (ITA No. 31/Agra/2012 dated 05.10.2012) connected with the assessee, in which on the identical matter, it was held that no addition could be made against the assessee on the basis of mere admission. The ld. CIT(A), therefore, held that the statement of surrender is incomplete and that there is noth....

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....course of survey. No question was asked to the assessee as to what is the basis of making such a surrender of income. No material is also referred during the course of statement to show if assessee earned any unaccounted income for the assessment years under appeals. Therefore, there was no material found during the course of survey against the assessee to prove that the assessee earned any undisclosed income. Therefore, it was mere statement of assessee without any basis for making surrender. Therefore, it was correctly retracted by the assessee because the admission was not based on correct facts. The assessee in reply to show cause notice u/s. 142(1) with regard to surrendered income also explained that he is maintaining regular books of....