2020 (10) TMI 976 - AT - Income Tax

Addition of on-money in cash from the buyers of various flats - unexplained cash u/s 68 - Addition made by the A.O. by simply relying upon the sworn statement made u/s 132(4) of Director of the assessee company - assessee stated that he himself stated in his statements recorded U/s 132(4) of the Act during the course of search as well as past search proceedings - CIT-A deleted the addition - HELD THAT - CBDT had issued instructions wherein it has been instructed that no surrender should be obtained and assessment should be completed not on the basis of such surrender but on the basis of material gathered during search. However, in the present case, the A.O. had made additions solely on the basis of solitary statement made by the Director of the assessee. Even the Hon ble Jurisdictional High Court of Rajasthan in the case of CWT vs. Sanwarmal Shivkumar 1987 (9) TMI 26 - RAJASTHAN HIGH COURT has held that the officers of the Department are bound by the circulars of the board. Mere admission is not conclusive as to the truth of the matter. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances in which it is made. It can be shown to be erroneous or untrue. Therefore, addition made merely and solely on the basis of confession without any corroborative evidence was not sustainable in law and moreover the said confession made by the assessee was subsequently retracted and since the addition was not supported by any cogent, convincing independent documentary evidence, therefore, the same was correctly found to be not sustainable by the ld. CIT(A). No new facts and circumstances have been brought before us in order to controvert or rebut the findings so recorded by the ld. CIT(A), therefore, we see no reason to interfere or deviate from the findings so recorded by the ld. CIT(A). Therefore, we uphold the order passed by the ld. CIT(A) qua this issue. - Decided in favour of assessee.

Summary

Issues Involved:
1. Deletion of addition of ?25,86,60,550/- based on alleged on-money receipts.
2. Deletion of addition of ?2,50,00,000/- based on alleged discrepancies in seized documents.

Issue-Wise Detailed Analysis:

1. Deletion of Addition of ?25,86,60,550/- Based on Alleged On-Money Receipts:

The core issue pertains to whether the CIT(A) was correct in deleting the addition of ?25,86,60,550/- made by the Assessing Officer (A.O.) on account of alleged on-money receipts from flat sales. The A.O. based the addition on the statement of the director recorded under Section 132(4) of the Income Tax Act during a search operation, where the director admitted to receiving on-money. However, the assessee retracted the statement, claiming it was made under coercion.

The CIT(A) deleted the addition, noting several key points:
- The A.O. relied solely on the director's statement without corroborative evidence.
- The seized documents were deemed "dumb documents" as they lacked dates, names of buyers, and signatures.
- The A.O. did not conduct any independent inquiries or gather corroborative evidence.
- The retraction of the statement was supported by affidavits from buyers denying the payment of on-money.
- The CIT(A) emphasized that the presumption under Section 292C of the Act is rebuttable and the onus was on the A.O. to prove the contents of the seized documents.

The Tribunal upheld the CIT(A)'s order, agreeing that the addition was based on suspicion rather than concrete evidence. The Tribunal cited various judicial precedents emphasizing that additions cannot be made on the basis of uncorroborated statements and dumb documents. The Tribunal also noted that the A.O. failed to verify the contents of the seized documents against the actual sale deeds and did not investigate the affidavits provided by the buyers.

2. Deletion of Addition of ?2,50,00,000/- Based on Alleged Discrepancies in Seized Documents:

The second issue concerns the deletion of an addition of ?2,50,00,000/- made by the A.O. based on alleged discrepancies in the seized documents. The A.O. added this amount under Section 69C of the Income Tax Act, citing the director's statement during the search.

The CIT(A) deleted this addition as well, highlighting that:
- The A.O. did not identify any specific discrepancies in the seized documents that justified the addition.
- The addition was made solely based on the director's statement without any corroborative evidence.
- The provisions of Section 69C were not applicable as the A.O. did not point out any specific unexplained expenditure incurred by the assessee.

The Tribunal concurred with the CIT(A)'s findings, noting that the addition lacked a factual basis and was not supported by any evidence. The Tribunal emphasized that the A.O. failed to establish any discrepancies in the seized documents that warranted the addition.

Conclusion:

In both issues, the Tribunal upheld the CIT(A)'s decision to delete the additions made by the A.O. The Tribunal emphasized the need for corroborative evidence and proper verification before making additions based on statements and seized documents. The Tribunal's decision aligns with various judicial precedents that caution against making additions based on uncorroborated statements and dumb documents.