TMI Blog2016 (10) TMI 1220X X X X Extracts X X X X X X X X Extracts X X X X ..... not correct. The burden lay on the assessee to establish that the admission made in the said statement was wrong as in fact there was no additional income. The burden is upon the assessee to prove that he has no additional income. In this case one of the partners has made confession of additional income, but he has not retracted from the statement admitting the additional income. Therefore, we are of the view that the assessee has not discharged the burden lay upon it. - Decided against the assessee. - I.T.A. No. 615/Ind/2016 - - - Dated:- 21-10-2016 - SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER Appellant by : Sri Ashish Goyal Shri N.D.Patwa Respondent by : Shri Mohd. Javed O R D E R PER SHRI D.T. GARASIA, JM The assessee has preferred this appeal against the order of the learned CIT(A) dated 11.3.2016. 2. The short facts of the case are that the assessee filed the return of income for the assessment year 1009-10 on 30.9.2009. Survey was conducted at the business premises of one of the partners, Shri Parvez Hasan who has surrendered ₹ 38 lacs in favour of the assessee firm as undisclosed income. Thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This confusion happened as there were outstanding bills of ₹ 10 lacs, not yet booked (Q.6 statement) 2. The statement made by Shri Parvez Hassan had some misunderstanding and without consulting the other partners of the firm, the statement was made. This statement could not bind the firm. No evidence of any excess construction, or that on money payment was found. Survey party did not visit the firm, or the site to find the real cost of construction. This ₹ 1.45 crores is an estimate. 3. The addition is made merely on the basis of statement on oath. It is a settled law that mere admission of assessee, without any evidence, would not be binding on assessee and no addition can be made on basis of same. 4. The appellant relies upon the judgment of the Hon'ble Madras High Court in the case of CIT vs. S. Khader Khan Son reported in (2008) 300 ITR 157 (Mad.). This judgment has been upheld by the Hon'ble Supreme Court and SLP has been dismissed. The judgment of the Hon'ble Supreme Court is available in (2012) 210 Taxman 248/254 CTR 228(SC). The appellant relies on the following :- 1. CIT vs. Khader Khan Son; 25 Taxman.com 413( SC) upholding CIT vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CTR 313 (Raj.) and Carpenters Classics (Exim) Pvt.Ltd.; 108 TTJ 760 (Bang.) 5. We have heard the rival contentions of both the parties. We find that during the course of survey, statement of partner of the firm was recorded. There was survey on 5.9.2008 and during the course of survey a statement and confession of Shri Parvez Hasan was recorded who has declared ₹ 38 lacs as undisclosed investment u/s 69A of the Act. The assessee firm has not shown ₹ 38 lacs in his profit and loss account and it is the contention of the assessee that the assessee firm has purchased the land for about ₹ 45 lacs and construction of around ₹ 8 crores was done and as per the trial balance of the firm as on 5.9.2008, the cost of construction was ₹ 1,31,50,486/- was appearing. The statement of Shri Parvez Hasan was on estimation which was not substantiated and not proved as per the books of the firm. It is also the contention of the assessee that the statement made by Shri Parvez Hasan was without consulting the firm. Therefore, the addition is only made on the basis of statement recorded on oath. Therefore, the admission without evidence is not binding on the assessee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Sons; 129 Taxman 416 wherein the Hon'ble High Court held that the statement u/s 133A has to be read as a whole and if any statement is made by the assessee and if he proves that the statement was made without verifying the facts or books of accounts and if the assessee proves that any income declared by the assessee is already offered for taxation then no addition can be made. Therefore, in that context, the Hon'ble High Court has held that the statement recorded u/s 133A which may be useful relating to any proceedings under the Act, therefore, in the instant case, the Assessing Officer has carried out the survey and the statement was recorded u/s 133A of the Act and the assessee has admitted that no books of accounts were maintained properly and this case was u/s 263 of the Act. Therefore, it will not be useful to the assessee. The learned counsel for the assessee relied upon the decision in TDI Marketing P. Ltd.; 28 SOT 215 (Del) but in that case there was retraction by the assessee. The learned counsel for the assessee relied upon the decision in the case of ITO vs. Zuberi Engg. Co.; 128 ITD 375 (Jaipur) but the facts of this case are not similar to the facts of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon the decision of the Hon'ble Allahabad High Court in the case of S.C. Gupta vs. CIT; 248 ITR 782 wherein the Hon'ble High Court has held that when the addition on the basis of statement made during survey, the assessee surrendered the additional income in his statement recorded during survey, but later on retracted from the same. The contention of the learned counsel for the assessee that the Assessing Officer should have independently come to the conclusion that there was additional income and there was no material to indicate that there was such income, is not correct. The burden lay on the assessee to establish that the admission made in the said statement was wrong as in fact there was no additional income. The burden is upon the assessee to prove that he has no additional income. The Hon'ble High Court has dismissed the appeal of the assessee and stated that if the assessee has retracted, the Assessing Officer should have independently come to the conclusion that there was additional income, sought to be assessed and there was no material to support that there was such income. This contention of the assessee is not correct. We Rely upon the decision of the Hon&# ..... X X X X Extracts X X X X X X X X Extracts X X X X
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