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4. During the course of hearing, the ld. CIT/DR submitted that a survey operation u/s 133A of the Act was conducted at the business premises of the assessee on 4/9/2013. During the course of survey, sworn statements of director Sh. Nagarmal Agarwal was recorded wherein he voluntarily made admission of total undisclosed income of Rs. 5,00,00,000/- in the hands of assessee company collectively for both AY 2013-14 and 2014-15 and the same admission had got approved during the survey operation by another director Shri Durga Prasad Agarwal whose statement was also recorded. Pursuant to this, assessee revised its ITR for AY 2013-14 wherein it admitted and offered an additional income of Rs. 1,33,27,282/- being part of undisclosed income as owned up by directors during the course of survey operation conducted. However, for balance surrendered amount Rs.3,66,72,718/- (Rs.5,00,00,000/- less Rs.1,33,27,282/-), assessee did not offer this in its ITR filed for AY 2014-15 which was e-filed on 29/11/2014 at a returned income at Rs.80,98,100/-. It is also a fact that till filing of ITR for AY 2014-15 on 29/11/2014, assessee did not file any retraction letter before the AO or Addl.CIT or Pr.CIT. Therefore, while filing its ITR for AY 2014-15, after a lapse of more than a year, assessee retracted from its earlier stated stand taken on 4/9/2013 without assigning any reason or providing any additional fact to support its contention. The assessee's only stand was that surrender during survey operation was not backed by corroborative evidences. It was submitted that during the survey operation, no books of accounts were found at the business premises of the assessee nor they were made ITA No. 1236 & 1429/JP/2018 DCIT, Jaipur vs. M/s Mojika Real Estate & Developers Pvt. Ltd., Jaipur available to the Authorized party or even to the AO on subsequent dates. Even on analysis of assessee's P.C. where books were maintained, no such complete books of account were found to been kept. In this regard, reference can be drawn to the sworn statement of Shri Nagarmal Agarwal and on perusal of the same, it is absolutely clear that there were no books of accounts prepared by the assessee and also same were not made available to Authorised Officers during the course of survey operation. Therefore, Balance Sheet for the year prepared thereafter and even e-return filed online later on for the year cannot be relied. If that was the case, assessee could have produced its books of accounts in support of its contention after conclusion of survey operation. But assessee waited for almost a year to retract from its stated position. Further, it is pertinent to note that assessee did not even bother to controvert these facts later on also before the AO. Even these facts have also not been looked into by ld CIT(A) while deciding the present appeal.

6. It was submitted that the assessee never flied any letter for making retraction from the surrender made during the survey. The admissions, made during the course of survey operation, legally bind the person who deposed such facts, until and unless rebutted or disproved by evidence otherwise. Further, the assessee is unable to get verify the expenses claimed on account of the consumption of material, labour and others. In case, even after verification of impounded documents, the assessee would have worked the surrender amount to be on higher side, it was its onus to prove it otherwise with the help of corroborative evidence, which it failed to do. Contrary to this, the retraction before AO as discussed in the assessment order is a general, rather a vague retraction and there is no supporting evidence to demonstrate that the impugned statement was factually wrong. Further, it is also pertinent to mention here that assessee has also not raised doubts that statement of directors during survey operations conducted were taken under duress. This fact is also evident from assessee's written submission made during assessment proceedings. Therefore, as discussed above, on merit as well, ld CIT(A)'s decision suffers from infirmities which deserves to be reversed.

8. It was accordingly submitted that in light of aforesaid decisions, sworn statement recorded of one of the director Sh Nagarmal Agarwal and duly confirmed by another director Sh. Durga Das Agarwal, cannot be discarded simply by observing that the assessee has retracted the same by simply stating that disclosure taken by the Department was not backed by corroborative evidences. But it is also a proven legal position that such retraction ought to have been generally made within reasonable time or by filing complaint to superior authorities or otherwise brought to notice of the higher officials by filing duly sworn affidavit or statement supported by convincing evidence. Such a statement when recorded at two stages or even confirmed by two directors during survey operation conducted and in absence or non-production of books of accounts during survey operation or even on subsequent dates cannot be discarded summarily in cryptic manner by ld CIT(A) by simply allowing the assessee's retraction on assessee's claim that disclosure was not backed by corroborative evidences. Even if such retraction be allowed by ld CIT(A) then he should have enquired whether it was made as soon as possible or immediately after the statement of the assessee was recorded. Duration of time when such retraction is made assumes significance and in the present case retraction has been made by the assessee after almost a year. The burden in this case lies on the assessee to establish that the admission made during the survey operation was wrong and there was no additional income arising out of transactions reflected in the impounded documents. Even so the assessee could have produced its complete books of accounts to demonstrate that transactions appearing in the impounded documents were duly recorded in its regular books of account maintained. Clearly ITA No. 1236 & 1429/JP/2018 DCIT, Jaipur vs. M/s Mojika Real Estate & Developers Pvt. Ltd., Jaipur this burden does not have even seemed to have been attempted to be discharged. Even this aspect was also not looked into by ld CIT(A). It was accordingly submitted that the order ld CIT(A) with regard to deletion of addition of Rs. 3,66,72,718/- being balance amount of undisclosed income for the year may be reversed.

26. As per the Assessing officer, loose papers found during the course of survey include number of papers which are not recorded in the books of accounts and during the course of assessment proceedings, the assessee was asked to furnish the page-wise details of the loose papers found during the course of survey. He was also asked to verify the same from the books of account so prepared and produce before undersigned for examination and after verification, it has been found that there are number of papers containing entries in lacs which are not recorded in the books of accounts. It was accordingly held by the AO that it is clearly established that Mr. Nagar ITA No. 1236 & 1429/JP/2018 DCIT, Jaipur vs. M/s Mojika Real Estate & Developers Pvt. Ltd., Jaipur Mal Agarwal in his statement recorded during the course of survey had rightly disclosed the undisclosed income of Rs. 5.00 crores in A.Y. 2013-14 and 2014-15, which is also established from the fact that assessee itself after the survey had revised its return of income and had declared additional income of Rs. 1,33,27,282/-. Further, the assessee company never filed any retraction letter in respect of surrender made during the survey. During the course of hearing, the ld CIT D/R has also emphasized on this fact and submitted that where the assessee makes sworn statement during the survey operations making a voluntary disclosure, it becomes a vital piece of evidence which can be rebutted only on the basis of corroborative evidence and further, where the assessee wishes to retract from its statement, such retraction is supposed to be done within reasonable period of time and should be backed by further corroborative evidence. It was submitted that such admissions, made during the course of survey, legally bind the person who deposed such facts, until and unless rebutted or disproved by evidences otherwise. In the present case the evidences of unrecorded expenditures / receipts are available in the documents impounded during the course of survey and also in the form of admission in the statements recorded of the directors of the assessee company and given that the undisclosed income was not offered in the return of income, the same was rightly brought to tax by the AO and which has been wrongly deleted by the ld CIT(A).