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TMI Blog2021 (7) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... 40/ on the basis of writing on loose sheets and admission extracted under coercion and under influence during the course of survey proceedings; 3. For that the additions are not backed by any cohesive primary and circumstantial evidence as to its nature and its source. The persons from whom receipts have been purported to be made are unidentifiable, not-existent and are thus a sham and imaginary transaction; 4. For that the Id. below forum has not applied his mind judicial conclude to the case; 5. For that the survey proceedings u/s,133A of the IT Act, 1961 itself have been conducted in a manner defying instruction and circulars of CBDT which is binding upon all its subordinates; 6. For that the survey proceedings and assessment pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings that the confession of undisclosed income is under duress is an afterthought. He, therefore, treated Rs. 19,61,740/- as undisclosed income and added the same to the total income of the assessee. 6. In first appeal, the action of the AO was confirmed. 7. Ld A.R. of the assessee submitted that during the course of assessment proceedings, books of account alongwith bills and vouchers were produced and same were test checked. He submitted that the assessee has not made any transaction with the three parties as claimed by the department. He submitted that during survey proceedings, income tax officers all of a sudden entered the business premises and made enquiries and compelled the assessee make statement that Rs. 19,61,740/- as h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f search and seizure and survey operations no attempt should be made to obtained confession to the undisclosed income. 8. Ld A.R. further submitted that the assessee is a contractor and even it assumes that Rs. 19,41,740/- is treated as undisclosed receipts, any business receipts would be treated as contract receipt. Therefore, the entire receipt cannot be added to the total income of the assessee and income embedded therefrom can be added only. Ld A.R. also submitted that the expenditure on the receipts was not considered. 9. Replying to above, ld DR submits that a survey was conducted at the business premises of the assessee. During the survey action statement of the assessee was recorded on oath. The assessee admitted to have received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices rendered. It was further explained by the assessee that if these are contract receipts then the assessee must have incurred some expenditure to earn these receipts, therefore, provisions of section 44AD of the Act should be applied and enhancement be only restricted to 8% of impugned amount of Rs. 19,41,740/-. The Assessing Officer dismissed this explanation by observing that during the recording of statement u/s.1334A of the Act, the assessee had admitted/deposited the advance tax of Rs. 6 lakhs on the undisclosed impugned receipts, since he could not explain the source of above receipts, hence, the plea taken by the assessee is afterthought and not acceptable. With these observations, the AO treated the impugned amount as undisclo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the survey are admissible evidence. Further, I may point out that the CBDT in the circular dated 10.3.2003 (supra) has directed the revenue authorities that if confession not based upon credible evidence, are later retracted by the concerned assesses while filing the returns of income, such confessions do not serve any useful purpose. 12. In the present case, I am satisfied that there was substantial evidence in the hands of survey team in the form of receipts (Assessee's PB 17,18 & 19). Therefore, statements recorded by the survey team on the basis of such receipts cannot be alleged as not based upon credible evidence. I may point out that in the present case, no retraction was filed by the assessee before the authorities below nor during ..... X X X X Extracts X X X X X X X X Extracts X X X X
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