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TMI Blog2013 (7) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... of action against the assessee. At that point when there was an apprehension of alleged unaccounted transaction in the eyes of Revenue Department then further investigation could have been done then and there. If the Revenue Department had failed to take appropriate measures then the assessee is at liberty to take the legal advantage of those fallacies. Certain measures were taken by the assessee, such as, deposit of advance-tax, entries in the personal set of books of accounts, fixed deposit in the bank, filing of the Income Tax Return and disclosure of capital gain pertaining to the said land, therefore assessee had wisely taken the legal advantage of the provision of the Act, especially when the Revenue had faulted in not taking a timely action. Therefore, in the absence of any cogent material this ground of the Revenue is hereby dismissed. - IT(ss)A No. 565/Ahd/2010 - - - Dated:- 14-6-2013 - Shri Mukul Kr. Shrawat And Shri Anil Chaturvedi,JJ. For the Petitioner : Shri T. Sankar, Sr.D.R. For the Respondent : Shri Mehul Shah, AR ORDER Per Shri Mukul Kr. Shrawat, Judicial Member :- This is an appeal filed by the Revenue arising from the order of learned CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt recorded under Section 131(1A) of the IT Act recorded on 19th of January, 2000. In the said statement it was questioned that whether the said amount was reflected in the regular books of account? The assessee has informed that the said amount was not reflected in his propriety concern, but the money received was shown in his personal books of account. It was also informed that the said amount was invested in a bank as fixed deposit. It was also informed that the interest received from the FD was shown in the income tax return. On account of those facts, the contention of the assessee was that the impugned amount of Rs.24,00,000/- was not shown in the 'Block Return' filed by him because the said sum had already been reflected in the personal set of books of accounts. It was vehemently contested that since the amount was recorded in the personal set of accounts, therefore, the same should not be treated as undisclosed income for the Block period. 2.2 However, the AO was not convinced and held that there were sufficient evidences about with the land for the Dumbhal project agreed to be sold for a consideration of Rs.1,13,00,000/- by the assessee and in lieu in fact the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indavan Developers on 21/12/1999 in which assessee's sons were 40% partners. Entries as per page 11 of Annexure BS-3 clearly show cash receipts (para 7 of AO order) Assessee has deposited Rs.24 lakhs in cash in bank a/c on 18/01/2000. In the statement recorded on 19/01/2000, assessee has admitted that the cash receipts are not recorded in regular books of accounts. CIT(A) has failed to consider several crucial aspects: Para 10.3: "The only conclusion which could be drawn is that the statement was made under mental pressure which any person could normally be expected to experience while his statement is being recorded by an official of the I-T Dept". Such comment is totally contradictory to the decision of Hon'ble Apex Court in the case of Surjeet Singh Chhabra AIR 1197 SC 2560 (last page of AO order). As held in T S Kurnarasmy vs ACIT, 65 ITD 188, by the Hon'ble Madras ITAT, "It is well known that the Income-tax Officers are not Police Officers and they do not use or resort to unfair means or third degree methods in recording oath statements and therefore whatever is confessed and admitted before them during the course of search operations or during the course of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and whether it was kept idle during the intervening period? In a case of search (particularly where assessee's sons' firm ^ was searched) and document showing cash receipt was seized, the presumption is on assessee to show that the same was recorded in regular books. The onus cannot be placed on Department, particularly when cash was deposited in bank a/c only on 18/01/2000. As regards retraction by way of affidavit dated 19/01/2000 (pages 17,18 of PB), there is no mention in any of the submission of the assessee as to whether this was given to DDIT(Inv)-Surat, who had recorded the statement of the assessee on the very same day. Also, in the letter dated 19/12/2000 addressed to the AO (pages 10, 11 of PB), there is no mention of this affidavit. In the entire submissions of the assessee, there is no claim as to when the affidavit was given to Departmental authorities by the assessee. Why was the affidavit not given on 19/1/2000 itself to departmental authorities? This aspect has been completely ignored by the CIT(A). In para 10, CIT(A) has relied on various decisions. The case law of 174 Taxman 44 is not available in the database of Taxman and cannot be commented upon. As re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(1A). The assessee was asked about the transaction with M/s. Vrindavan Developers. The assessee had confirmed that the sum of Rs.24,00,000/- was received. Thereafter, the assessee was questioned whether the money received was shown in the accounts. The assessee has given the answer under the pressure and thought that he was required to disclose the same in the accounts of his proprietorship concern. Because of the said confusion, the assessee has stated that it was not reflected in the regular books accounts. Later on through an affidavit dated 19th of January, 2000, it was clarified through a retraction. He has corrected the said statement and affirmed the fact that the amount in question was recorded in the personal books of accounts. It was also stated on oath that the said amount was deposited in fixed deposit with a bank. 5.1 Shri Shah has drawn our attention to the personal sets of books of accounts, relevant extract of ledger is placed in the compilation. He has also drawn our attention on the return filed by the assessee wherein the assessee has worked out the long term capital gain on the sale of land. The assessee has also informed that advance tax was also paid. He ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amouflage on the part of the assessee. We have given our careful thought over this argument of the Revenue Department. We have noted that the case of the Revenue was not that the assessee's personal books of account were seized at the time of search and in those set of books of account there was no entry of deposit of Rs.24,00,000/- on three different dates, as noted (supra). The correct factual position was that no search action at all was carried out on the assessee. The assessee was directed to file the return of the block period consequence upon a search conducted on developer, viz., M/s. Vrindavan Developers. In that case of M/s. Vrindavan Developers a search was carried on 21.12.1999 and thereupon it was noted that a land was agreed to be sold by the assessee and in lieu received an advance consideration of Rs.24,00,000/-. That was the start point of action against the assessee. At that point when there was an apprehension of alleged unaccounted transaction in the eyes of Revenue Department then further investigation could have been done then and there. If the Revenue Department had failed to take appropriate measures then the assessee is at liberty to take the legal advantag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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