COMMISSIONER OF INCOME TAX Vs. ASHOK KUMAR JAIN

JUDGEMENT

(1.) This appeal u/s 260-A of the Income Tax Act (for short, 'IT Act') is directed against the order of the Income Tax Appellate Tribunal (for short, 'ITAT') dt.16/04/2013 and it relates to the assessment year 2008-09.

(2.) Brief facts, which can be noticed on perusal of the order impugned and the arguments of the counsel for the appellant, are that in the case of the respondent-assessee a survey u/s 133 A of the IT Act was carried out at the business premises on 25/11/2009 and during the course of survey some incriminating documents were found, inventorised and impounded, inventory of cash & stock was also prepared. At the time of survey, statement of the assessee-respondent was also recorded wherein on the basis of impounded loose papers, diaries, documents etc. he surrendered a total sum of Rs.8 crore which comprised of income of Rs.2 crore in the assessment year 2007-08; Rs.5 crore for the current year and Rs.1 crore for the assessment year 2009-10. In the assessment year 2007-08, though the assessee had surrendered Rs.2 crore but in the return of income an additional income was offered to the tune of Rs.1.5 crore only and even the AO was satisfied and accepted Rs.1.5 crore and he passed assessment order for the assessment year 2007-08 on 24/12/2009.

(3.) In the revised return, for the assessment year 2008-09 which is under appeal which the respondent-assessee filed pursuant to the said surrender, he surrendered a sum of Rs.3 crore only instead of Rs.5 crore which he admitted during the course of survey. A show cause notice was issued by the Assessing Officer (for short, 'AO') to the respondent-assessee wherein query was raised that as to when during the course of survey surrender was made to the tune of Rs.5 crore, then what was the reason for surrendering only Rs.3 crore in the revised return filed. It was explained by the assessee before the AO that the surrender of Rs.5 crore was made by him which was not correct as according to the transactions, in actuality and based on the peak credits and after having gone through the loose papers and documents, the actual surrender comes to lower than Rs.3 crore but to maintain peace and not to litigate the matter further, he has offered Rs.3 crore. He further contended that though the actual surrender on the basis of investment in shares application money,non-verifiable creditors etc or transactions recorded in the diary, comes to about Rs.2.20 crore only but he had additionally surrendered an amount of Rs.80 lacs on other defects, transaction in the diary or other transactions in the books of accounts so as to make the total surrender to the tune of Rs.3 crore and according to the assessee, the actual offer of Rs. 3 crore based on the material was proper and accordingly prayed for acceptance of the said surrender, however, the AO was not satisfied and merely because the assessee had surrendered an amount of Rs.5 crore, during the course of survey an addition of Rs.2 crore was made by the AO.