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TMI Blog2012 (11) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of survey an assessee himself concedes that the stocks are short and even comes to an agreement regarding the extent of shortage, unless it can be established that such consents or agreement was given or arrived at under threat, coercion, undue influence, misrepresentation or wrong understanding of facts or law, it would bring all efforts put in survey operations to nought if the assessees are allowed to retract from whatever they had stated or agreed to at the time of survey. Thus in view of the factual and legal position it is held that the additional income of Rs.30 Lakh declared by the appellant on account of unexplained investment in construction of factory building of M/s Oscar Remedies is to be taken as unexplained investment and accordingly is to be added to the income of the appellant. The action of the AO is therefore confirmed and ground of appeal is as such rejected - against assessee. - ITA No. 691 & 697/CHD/2011 - - - Dated:- 31-7-2012 - Ms. SUSHMA CHOWLA AND SHRI MEHAR SINGH, JJ. Appellant by : Shri M.R.Sharma Respondent : Smt. Jaishree Sharma ORDER PER MEHAR SINGH, AM These are cross-appeals by the revenue and the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rror) in deleting addition of Rs.14,40,000/- made by AO, on account of unexplained accretion in the capital account, as no evidences were furnished. Revenue further contended that fresh evidences were admitted by the CIT(A) , without recording reasons. 5. In the course of present appellate proceedings, ld. 'DR' referred to the findings recorded by AO in para 1.05 and 1.06. Ld. 'DR' placed reliance on the assessment order passed by AO. 6. Ld. 'AR', on the contrary, supported the well reasoned and detailed order passed by the CIT(A). Ld. 'AR' referred to page No. 32, 34 35 of the Paper Book, which are in the form of copy of accounts of the assessee and M/s Oscar Remedies Pvt. Ltd. 7. We have carefully perused the rival submissions, facts of the case and the relevant record. The addition was made by the AO on account of accretion in the assessee's account with M/s Oscar Remedies, Kala Amb, on the ground that no evidences for such accretion was fi led by the assessee. In view of this, the AO invoked the provisions of Section 68 and made impugned addition of Rs.14,40,000/-. The ld. CIT(A) , on appreciation of evidences filed by the assessee, deleted the impugned addition. Ld. CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of credit of Rs.5,00,000/- from M/s Global Med. Surg. (P) Ltd. and Rs.4.00 lacs from M/s Phythochem Healthcare Pharmaceuticals, Panchkula without any basis or facts on record. Ld. 'AR' referred to page No. 30, 31, 55, 60 and 61 of the Paper Book. Similarly, ld. CIT(A) referred to page 9 of the order of the CIT(A) . 12. Ld. 'DR' placed reliance on the order passed by the CIT(A) and referred to para 2.16 and 2.17 of the appellate order. 13. We have carefully perused the rival submissions, facts of the case and the relevant record. The AO, sought explanation of the assessee in respect of accretion of Rs. 21 lacs, in the unsecured loan as per the following details : 1. Global Med Surg, Panchkula Rs. 5,00,000/- 2. Law Medbros Pvt.Ltd. Rs.2,00,000/- 3. Smt. Charanjit Kaur,Kala Amb Rs.5,00,000/- 4. Shri Subhash Chander Garg Yamunanagar Rs.5,00,000/- 14. On examination of the submission and explanation filed by the assessee, the AO accepted the unsecsured loan of Rs.5 lacs from Shri Subhash Chander Garg, as explained. However, AO made an addition of Rs.16 lacs in respect of remaining unsecured loans as explained cash credit u/s 68 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and relevant records. We are of the considered opinion that the evidences under Rule 46A, filed by the assessee, deserve to be admitted, with a view to further the cause of justice and, hence, the same are admitted. Further, the submission filed by the appellant that the parties are existing assessee and evidences fi led by the appellant are sufficient, to prove the case within the meaning of Section 68 of the Act, are to be looked into by the CIT(A). In view of the above, we are of the opinion that the case be restored to the file of the CIT(A), for fresh adjudication, in the light of fresh evidences and in accordance with the relevant provisions of the Act. The CIT(A) should afford proper and reasonable opportunity to both the parties. 17. In Ground No.3, it was contended that the CIT(A) erred in confirming the addition of Rs.30 lacs on account of additional income u/s 69B of the Act, without any facts and corroborative evidences on record. 18. In the course of present appellate proceedings, ld. 'AR' stated that a survey was conducted on the business premises of M/s Oscar Remedies Pvt. Ltd. on 18.01.2006. The assessee declared additional income of Rs.50 lacs; on account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter of surrender, discussed earlier. It is pertinent to mention here that no retraction has been made by the assessee in respect of such surrendered amount, as additional income in the course of survey and operation. However, such surrender amount was not reflected in his return of income, filed on 18/19.01.2006. Ld. CIT(A) has considered the submissions of the appellant and adjudicated the issue by way of speaking and detailed order. Ld. CIT(A) has successfully distinguished numerous case laws cited by the assessee. It is further mentioned that the retraction of the impugned additional surrender made by the assessee has not been corroborated by the assessee by way of cogent and credible evidence. In view of this, any retraction without any corroborative evidence, cannot be accepted, as genuine and bonafide retraction. In view of this, findings of the CIT(A), which are reproduced hereunder, are upheld and this ground of the assessee is dismissed. The relevant findings of the CIT(A) are reproduced hereunder: 3.04 The issue is considered. The facts in brief are that a survey u/s 133 A(I) of the Act was carried out at the business premises of M/s Oscar Remedies Pvt. Ltd. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The appellant could not bring on record any evidence in support of this claim specifically in view of the fact that the survey was carried out on 18-19 January 2006 and the return was filed on 31.3.2007 and no such fact was brought in the notice of the department during this period. Had the plea of the appellant been correct, the same would have been brought in the notice of the department immediately after survey. Even in the return of income no indication in this regard was given. This can only be said to be an attempt so that this fact would not come in the notice of the department. The plea of the appellant that most of the investment was made subsequent to the survey is not tenable in view of the fact that books of the accounts of M/s Oscar Remedies were not produced during survey and the same were open to make entries as per his convenience. 3.07 As per amended provisions of law effective from 1.6.02, I.T. authorities conducting survey were specifically empowered to useful for or relevant to any proceedings under the Act. It goes without saying that the information gathered by the authority in the course of survey proceedings will have to be recorded in some form or other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and substantial piece of evidence that can be used against him and is, very often, the best evidence that can be available against him." 3.11 The appellant has placed reliance on various judicial decisions to support his contentions but it is settled position of law that decision rendered in a particular case cannot be applied to the facts of another case unless both facts and issues involved in the reported decision vis-a-vis the case of the assessee/appellant are either identical or were close resemblance with each other. There are series of other decisions whether in the factual settings of those cases, it has been held that the retraction made by the assessee to the factual position admitted in the statement recorded u/s!3l(3) and 132(4) etc., cannot be permitted unless he successfully establishes that such admission was wrongly made on facts. Further allegation that such admission was under coercion, intimidation, duress or compulsion cannot be accepted unless the same is established as a fact with cogent and reliable evidences. Reference can be made to the following decisions: i. Dr. S.C.Gupta v. CIT, 248 ITR 782 (All.) ii. Mahesh B. shah v. ACIT 238 ITR 130 (Ker.) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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