TMI Blog2017 (10) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 27.12.2008. It is clearly an admission on the part of the appellant to surrender the amount of ₹ 5,00,000/- as an admitted commission which itself is an important piece of evidence, therefore, statement made voluntarily by the assessee could well affirm the basis of assessment which in the instant case is done. It is well settled law that burden lays on the assessee to establish that the admission made at the time of survey by means of a statement was wrong and, in fact, there was no additional income. In the present case, this burden does not even seem to have been admitted to be discharged by the assessee. - Income Tax Appeal No. 800 of 2012 - - - Dated:- 13-10-2017 - Hon'ble Abhinava Upadhya And Hon'ble Ashok Kumar, JJ. For the Appellant : Suyash Agarwal For the Respondent : C.S.C., I.T., Gaurav Mahajan, Shambhu Chopra ORDER ( Delivered by Hon'ble Ashok Kumar, J. ) 1. The present appeal has been preferred by the assessee against the order of the Income Tax Appellate Tribunal, Agra Bench Agra in ITA No.81/Agra/2011 assessment year 2006-07 dated 31.08.2012, raising following substantial questions of law. I. Whether on the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of which the assessee did not offer any reply. During the course of the assessment proceeding the assessing officer noticed that the appellant did not offer undisclosed amount of ₹ 5,00,000/- in the return of income filed by the assessee, and therefore, assessing officer has made an addition of ₹ 5,00,000/- vide assessment order dated 29.12.2008. In paragraph 2 of the assessment order, the assessing authority narrated the detail of the proceedings after issuance of notice under Section 143(2) of the Act. The contents of paragraph no.2 of the assessment order are quoted hereinbelow as the same are relevant; 2. Notice u/s 143(2) of the I.T. Act, 1961 dated 01.11.2007 issued and served on 15.11.2007 fixing the date for hearing on 19.11.2007. In this case notice u/s 143(2) was also sent through registered post fixing the date for 15.11.2007. On 15.11.2007 Sri K.L. Goyal, C.A. attended and requested for adjournment. Case was adjourned to 26.12.2007. On 26.12.2007, Shri K.L. Goyal C.A. attended and filed written reply which is placed on file. He has not produced A/c books. He was required to produce A/c books and purchase a sale bills. He was also require to furnish co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal and after due examination of the documents the tribunal has noticed that the contention of the assessee was not correct as so claimed that at the time of survey the assessee was forced to surrender the said amount. The Tribunal has also considered the instruction which has been relied by the assessee, which provides the restrictions given to the revenue authorities that while recording the statement during the course of search, seizure and survey operation no attempt should be made to obtain confession as to the undisclosed income. 8. The Income Tax Appellate Tribunal has elaborately examined the survey folder and thereafter a detailed discussion is made by the ITAT in paragraph 6 of the impugned order, which is quoted hereinbelow; 6. On perusal of survey folder, we notice that there is Annexure-A which contains inventory of books found during the course of survey, copy of statement of Shri Puneet Kumar Jain, copy of statement of one witness Shri Varun Maheswari. A copy of statement of Shri Neeraj Kumar Maheswari is also available in the survey folder. Other certain papers relating to summary of disclosure made at the time of survey in the case of different assessees is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s Maya Commodities, being one of the sub-broker of M/s L.D.K. Commodities Pvt. Ltd. dealing in speculative business of commodities on commission basis. Maya Commodities started its business from October 2005 and continued till 31st March, 2007, and thereafter no business was done in this proprietary concern as deposed by him. At the time of survey operations, following disclosures were made after considering the discrepancies in books of accounts etc. impounded. Unexplained and undisclosed income for AY 2006-07 ₹ 10.00 lac, for AY 2007-08 ₹ 15.00 lac. AY 2008-09 ₹ 05.00 lac, thus total surrender of ₹ 30.00 lac in these three years in addition to regular income shown, though returns of income till AY 2007-08 are claimed to have been filed. 2. Mr. Neeraj Kumar Maheshwari PAN ABJPM 4861F Firms/companies Status of Shree Neeraj Kumar 1. M/s Maya Trading (AAGFM8509A) Partner 2. M/s BRG Company (ABEFS0029G) Partner 3. Shri Supari Spices Pvt. Ltd. (AAICS2490P) Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of ₹ 99.75,782/- in different concerned/hands in assessment years mentioned hereinabove. During the course of survey proceedings, books of accounts and other papers in this group were impounded at different places and permission to retain them further has been taken from worthy DGIT(Inv.), Lucknow till 30.06.2008. 9. After perusal of the record placed before the Tribunal, the Tribunal has noticed that the letter which has been furnished by the assessee dated 02.06.2008 in which assessee clearly admits and stated that assessee makes surrender of ₹ 30,00,000/- in the case of M/s Maya Commodities and has deposited a sum of ₹ 3,00,000/- as advance income tax. In the said letter dated 02.06.2008, the assessee confirm the surrender in case of the assessee itself of ₹ 5,00,000/- in the assessment year 2006-07(present assessment year) and ₹ 7,00,000/- in the subsequent year namely assessment year 2007-08. 10. We have heard Sri Suyash Agarwal, learned counsel for the appellant and Sri Gaurav Mahajan, learned Standing Counsel representing the department. 11. The learned ITAT has discussed the issue in detail while dismissing the appeal filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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