2016 (5) TMI 93 - AT - Income Tax

Cessation of liability - Addition on the basis of search - Retraction of statement - Held that - It is clear that the seized paper (paper book page 82) is not reliable, did not show the correct state of affairs and the same is not corroborated by any independent evidence. There is interpolation of the date in the same and the language contained therein clearly show that the letter is not disclosing the correct facts. It is also not explained why the original letter remained with the assessee and how the payment of ₹ 90 lakhs have been verified. M/s. PACL Ltd. did not confirm alleged payment. Therefore, the assessee had a justification to retract from the earlier statement making surrender of ₹ 90 lakhs. The assessee, has been able to show that the retraction from the earlier statement was justified and based on the facts and material on record. The learned Commissioner of Income-tax (Appeals), on proper appreciation of facts and material on record, correctly deleted the addition. The decision relied upon by the learned Departmental representative would not support the case of the Revenue because of the facts and circumstances as considered above. We, therefore, do not find any error in the order of the learned Commissioner of Income-tax (Appeals) in deleting the addition. - Decided in favour of assessee.

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Validity and evidentiary value of the statement recorded during the survey under section 133A.
3. Retraction of the statement by the assessee.
4. Addition of Rs. 90 lakhs on account of unexplained investment under section 69.
5. Verification of the document and its authenticity.

Detailed Analysis:

1. Condonation of Delay in Filing the Appeal:
The Departmental appeal was time-barred by 17 days due to procedural lapses. The learned counsel for the assessee did not object to the condonation of delay. Considering no objection from the assessee, the nominal delay in filing the Departmental appeal was condoned.

2. Validity and Evidentiary Value of the Statement Recorded During the Survey under Section 133A:
The Assessing Officer (AO) noted that during the survey under section 133A(1), the assessee offered an additional income of Rs. 2.25 crores, including Rs. 90 lakhs for cessation of liability. However, the assessee retracted this statement, claiming it was made under duress and exhaustion. The AO emphasized that statements recorded under section 133A have evidentiary value, citing several judicial precedents to support the validity of such statements. However, the Commissioner of Income-tax (Appeals) (CIT(A)) and the Tribunal referred to the Supreme Court's decision in CIT v. S. Khader Khan Son, which held that statements recorded under section 133A do not have conclusive evidentiary value and cannot be the sole basis for an addition.

3. Retraction of the Statement by the Assessee:
The AO did not accept the retraction, viewing it as an afterthought since the assessee did not immediately inform the Department about the alleged coercion. The CIT(A) and the Tribunal, however, considered the circumstances under which the statement was made, including the late hour and the lack of corroborative evidence. The Tribunal noted that the retraction was justified, especially since the statement was made under duress and the document in question was not verified with the books of account.

4. Addition of Rs. 90 Lakhs on Account of Unexplained Investment under Section 69:
The AO made an addition of Rs. 90 lakhs based on the statement and a letter allegedly written by the assessee to Pearl India, New Delhi, regarding the cessation of liability. The CIT(A) found that the letter was fabricated and not corroborated by the books of account or any other evidence. The Tribunal upheld the CIT(A)'s findings, noting discrepancies in the letter and the lack of independent verification of the alleged payment.

5. Verification of the Document and Its Authenticity:
The CIT(A) and the Tribunal scrutinized the document and found several inconsistencies, such as overwriting of dates and incorrect content. The Tribunal emphasized that the document did not belong to the assessee and was likely created to extract a higher surrender during the survey. The Tribunal also noted that the original letter remained with the assessee, which was unusual for such an important communication.

Conclusion:
The Tribunal upheld the CIT(A)'s decision to delete the addition of Rs. 90 lakhs, finding that the statement made during the survey was not corroborated by credible evidence and was obtained under duress. The Tribunal also noted that the document in question was fabricated and did not support the AO's addition. The Departmental appeal was dismissed, and the order pronounced in the open court.

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