TaxTMI 
TaxTMI 
TaxTMI 
2013 (7) TMI 1253
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....er : "1. That: survey u/s 133A of the Act was conducted on 08-09-2010 at the business premises of the assessee. The assessee is in the business of colonizing and contract work. Beside this he also has commission income as an agent in purchase and sale of property on behalf of the client. 1.2. That during the course of survey in statement recorded by the survey officer the assessee surrender Rs. 50 lacs in A. Y. 2009-10 as undisclosed income. 1.3. That in the received return filed for A. Y. 2009-10 the assessee surrender and include Rs. 36 lacs under the head income from other sources in his return of income. Statement giving the breakup of Rs. 36 lacs was filed during the course of assessment proceedings reproduced by the Assessing Officer in the Assessment Order. 1.4 That during the Course of assessment proceedings assessee was asked that at the time of survey proceedings he surrendered Rs. 50 lacs then why he has shown only Rs. 36 lacs in his return of income. In reply the assessee stated that on going through the material the said amount of Rs. 36 lacs has been shown. Looking to the health and the peace of mind if any penal action is not taken....
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....duced as under : "4.1. I have carefully considered the assessment order as well as the written submission of the appellant. The amount surrendered during survey proceedings was Rs. 50,00,000/-whereas the assessee while filing the return of income has shown only Rs. 36,00.000,[- as undisclosed income, which has been reproduced by the AO in the assessment order. The AO while making the addition of Rs. 14,00,000/- has substantially relied on the statement of the assessee recorded during the survey proceedings. No verification appears to have been made on the claim of the appellant that undisclosed income after considering the material found during the course of survey works out to Rs. 36,00,000/-- and not Rs. 50,00,000/- surrendered during survey proceedings. At the same time even during appeal proceedings before me, the Ld. AIR has not been able to produce any documentary evidence in support of the claim being made now nor being able to pinpoint the documents found during survey on the basis of which Rs. 36,00,000/- has been worked out as the undisclosed income and not Rs. 50,00,000/- as stated during the survey proceedings. Given the circumstances, I am constraint to believ....
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....e ld. DR relied upon the orders of the authorities below and submitted that since the assessee made voluntary surrender of Rs.50,00,000/- during the course of survey, therefore, the addition was correctly made. Similar surrender was made at the stage of assessment, copy of the order sheet is filed on record, therefore, it was submitted that the addition is unjustified. The DR produced the survey folder for perusal of the Bench. 5. We have considered the rival submissions and the material on record. It is not in dispute that the survey was conducted in the premises of the assessee and certain loose papers etc. were impounded which were not stated to be recorded in the books of account of the assessee. Survey folder is produced by the ld. DR which contained the statement of bank account held by the assessee and others. Inventory of the books of account and statement of the assessee recorded on the date of survey. There is no material available in the survey folder to show the basis of calculation of surrender of Rs.50 lacs in the assessment year under appeal. Nothing is brought in the survey folder as to how the survey party have calculated the undisclosed income of assessee at Rs....
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....hich are not supported by the documentary evidence in its Instruction No. 286/2/2003-IT (Inv.) has explained as under : "Instances have come to the notice of the Board where assessee have claimed that they have been forced to confess the undisclosed income during the course of search and seizures and survey operations. Such confessions, if not based upon creditable evidence, are later retracted by the concerned assessee while filling returns of income. In these circumstances, confessions during the search and seizure and survey operations do not serve any useful purpose. It is, therefore, advised that there should be focus and concentration on collection of evidences of income which leads to information on what has not been disclosed or is not likely to be disclosed before the income tax department. Similarly, while recording statement during the course of search, seizure and survey operations no attempt should be made to obtain confessions as to the undisclosed income. Any action on the contrary shall be viewed adversely. " The above instruction is placed at Annexure A-2 5.1 It is also well settled that the addition merely made on the basis of statement recorded during....
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....excess stock have been given benefit correctly by the ld. CIT(A). Since the figures of the sales and purchases were based on factual figures, therefore, it is a case of factual mistake committed by the Survey Party as well as by the Assessing Officer, which has been rightly corrected by the ld. CIT(A). Thus, the assessee on the basis of seized material itself has been able to show that the admission made at the time of survey surrendering the additional income on account of excess stock was not correct and did not show correct state of facts. Therefore, no addition could be made against the assessee on the basis of mere admission according to the facts and circumstances of this case. The ld. CIT(A) correctly on the basis of the material on record, deleted the substantial addition. The case law relied upon by the ld. CIT(A) support the findings of ld. CIT(A). It is a departmental appeal and no material has been produced before us to contradict the findings of the ld. CIT(A) in deleting the addition. We, therefore, do not find any infirmity in the order of the ld. CIT(A) in deleting the addition." 5.2 Considering the facts of the case in the light of the legal proposition above, w....