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TMI Blog2012 (11) TMI 843X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2. That the assessee requests for leave to add or amend the grounds of appeal before the appeal is heard or disposed of." 3. The brief facts of the case are that a survey under section 133A of the Act was conducted at the business premises of the assessee on 9.3.2005 and the result of the various discrepancies found at the time of survey operations, the assessee gave undertaking to file a return of income of not less than two lacs for the assessment year 2005-06 without the claim of any loss. However, the assessee filed return declaring loss of Rs.20,36,320/-. On show cause notice given, it was submitted vide letter dated 03.12.2007 as under: "That as regards your query at question No.VII that we offered sum of Rs.2 lac as additional income and further undertook to file income tax return with income of not less than 2 lac as against loss returned at RS.20,36,320/- and this call for addition of Rs.22,36,320/- it is submitted that Rs. 2 lac were offered as additional income for taxation due to gross profit of Rs.1,60,457/- on shortage in stocks amounting to RS.17,92,817/- and other discrepancies. Rs. 2 lac surrendered during survey have been disclosed in the profit & loss accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecution. However, a cheque amounting to Rs.70,000/- is being given as security." 3.2. The assessee reiterated its willingness to file the return of not below Rs. 2 lacs in the letter dated 18.03.2005 addressed to the Add. CIT Jalandhar. The AO vide paras 3.2 to 5.1 discussed the decisions of various courts of law and observed that if the survey party knew that the assessee would go back from the agreement, the Departments would have gone for impounding of the documents and other incriminating material found at the business premises of the assessee for further investigation. The retraction is an attempt to avoid the legitimate tax liability which was admitted during the course of survey against the principle enunciated by the decisions of the various courts of law mentioned in AO's order. Accordingly, an addition of Rs.22,36,320/- was made to the income of the assessee. 4. On appeal, the learned CIT(A) confirmed the action of the Assessing Officer. 5. It was argued and submitted by the ld. counsel for the assessee that it was not the case of the AO that loss returned at Rs.20,36,320/- is wrong since in para 2 of the assessment order, the AO has observed as under: "As regards th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated that it is an established law that what is otherwise not taxable cannot become taxable because of admission of assessee nor there can be waiver of the right otherwise available to the assessee in law. Also statement made, admission made, agreements made, cannot form foundation of assessment. Assesse can always show that admission made by him is incorrect. 5.1. The Ld. counsel for the assessee relied upon the decisions of various courts of law as under: i) Bharti Engg. Corpn. Vs. ACIT Cir.II, Phagwara (ITAT, Asr Bench) ii) Maynak Poddar (HUF) vs. Wealth Tax Officer 181 CTR 362 (Cal.) iii) CIT vs. D.P.F. Textiles Lt. 241 ITR 548 (Mad.) iv) ACIT vs. Anoop Kumar 94 TTJ 288 (ASR) v) Central Board of Direct Taxes vide Circular F.No.286/2/2003- IT (Inv) dated 10.03.2003 have issued instructions to the field officers that no confessional statement be recorded. vi) Rishi Grover vs. ACIT (ITAT Amritsar Bench) 127 TTJ 527 (Asr) vii) TDI Marketing (P) Ltd. vs. ACIT 28 SOT 215 (Delhi) viii) DCIT vs. Premsons 130 TTJ 159 (Mumba) ix) CIT vs. Khader Khan Sen 300 ITR 157 (Mad.) 6. The Ld. DR, on the other hand, argued and submitted that the factual matrix in this case culminating in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence." The Ld. DR further submitted that in view the above judgment of Hon'ble Jurisdictional High Court, the assessee's appeal be rejected and the order of the CIT be confirmed as assessee has not denied that the surrender made by it was not voluntary. 7. We have heard the rival contentions and perused the facts of the case. There is no dispute to the fact that during survey, the assessee offered a sum of Rs.2 lacs as additional income, which was credited to the profit & loss account below the trading account. As regards the undertaking to file return of income of not less than Rs. 2 lacs as against loss of Rs.20,36,320/- declared in the eturn of income, the case of the A.O. vide para 3 to 5.2 is only that the assessee could not explain certain discrepancies in the account during the course of survey operation and, therefore, the assessee offered the addition to the extent that income for the impugned assessment year would not be less than Rs. 2 lacs. The ignorance of law is no longer considered as an excuse in view of the decisions of various cours of law mentioned in his order. The AO also observed in para 5.1 that the assesse during the course of survey if had known that he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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