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TMI Blog2015 (2) TMI 943X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A) has also dealt with the assessee’s contention regarding projections and not actual, after recording detailed finding and the ld. CIT(A) reached to the conclusion that note book contained the details of actual and it is not projections as claimed by the assessee. The ld. CIT(A) has also dealt with various judicial pronouncements in support of his contention that mere retraction of the statement by filing the affidavit is not an acceptable evidence in the eyes of law. The ld. CIT(A) has dealt with each and every objection of the assessee with regard to the findings recorded by the A.O. and after considering the same, he confirmed the findings recorded by the A.O. to the effect that the assessee has actually received on money which was over and above the amounts in the books of account. No reason to interfere with the findings recorded by the lower authorities with respect to the addition of ₹ 1,21,24,500/- on account of on money received on sale of plots which has not been accounted for in the books of account. - Decided against assessee. - I .T.A. No.7597/Mum/2012 - - - Dated:- 6-2-2015 - Shri R.C. Sharma And Shri Sanjay Garg JJ. For the Appellant : Shri K. G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adi, Pelhar Village, Tal. Vasai. The details are as under : Survey No. Guntha 77/1 1.25 Guntha 77/2 1.50 Guntha 70 11.71 Guntha 69 20.86 Guntha 71 4.87 Guntha 75 7.66 Guntha 20.15 Guntha Total value of above plots is ₹ 1,21,24,500/-. 1. No proof has been found out in the course of survey action related to the said cash involvement. 2. There are few persons have been summoned by you, have declined to make payment of any cash for purchase of property. 3. No hard cash was found in the premises during for survey action, further no any papers relating to the same was also found there. 4. The scrutiny of the bank, bank account/pass book/ books of account produced before you. No cash has been deposited, was traced out by you. 5. There are differences between the Guntha and rates reported by survey parties and as per registered/unregistered documents sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heques from various customers. In all, sales have been effected to 51 persons, out of which registration of sales has been done in respect of 22 persons. As for as the balance is concerned, though the registration has not taken place, sale of land has been confirmed and entire cash component has been received from these persons after earmarking the land to be sold to these persons. Thus, out of the total transaction to be made with 51 persons, documents have been registered in respect of 22 persons, and in respect of the rest; documents are yet to be registered however, as stated above the cash component as appearing in the note book in respect of all the 51 persons have been received by me. Since, this amount of ₹ 1,21,24,500/- received by way of cash has not been entered in to my regular books of accounts maintained, I voluntarily offer the same for taxation as my additional income for the current financial year 2008-09. This will be over and above the normal business profits that will be shown by me as at the end of the Financial Year. I also promise to pay the Advance Tax due on the Addition income offered by me on the appropriate dates. . Q.No.12: Do you want to say a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary by using coercive measures cannot be accepted. 2.3.3. During the course of assessment proceedings the copy of the impounded Register Sundaram was given to the appellant. In fact based on the content of this impounded document a specific questions were asked in the statement recorded which was, subsequently retracted by the Proprietor. The Assessing Officer in the assessment order itself had mentioned the survey Number and the area in each survey which was plotted and sold. The impounded documents clearly shows that the appellant had received ₹ 1,50,000/- by way of cash on sale of the plots. Entries in the page -3 and page - 4 of the above impounded document is reproduced as under for the sake of convenience:- Page 3 Regd. Date Guntha SR No. 141 Istiyag Ahmed 9.6.08 2.12 Abdul Hai 9.6.08 1.21 Bipin N. Rathod 9.6.08 0.61 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nabi Hasan Nabi Ahmed 09.07.08 0.92 TOTAL 10.93 SR. 141 Sarbajit Singh 2.76 RATE X GUNTHA AMT 1.50 10.93 16.39 1.50 2.76 4.14 The above entries are related to sale of plots in Survey No.141. The total area sold is 10.78 and 13.69 Gunthas respectively. The appellant had clearly entered the dates on which the documents were registered. Below this rate @ 1.50 was worked out on the entire area sold. A specific question was asked during the course of survey itself which was related to page No. 1 in respect of sale of 4.63 gunthas to 4 persons. The Proprietor Shri Aslam Chand Khan had agreed that 1.5 in the above noting indicates the cash component of ₹ 1,50,000/- received over and above the registration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 22 persons. As far as the balance is concerned, though the registration has not taken place, sale of land has been confirmed and entire cash component has been received from these persons after earmarking the land to be sold to these persons. Thus, out of the total transaction to be made with 51 persons, documents have been registered in respect of 22 persons and in respect of the rest, documents are yet to be registered however as stated above the cash component as appearing in the note book in respect of all the 51 persons have been received by me. Since this amount of ₹ 1,21,24,500/- received by way of cash has not been entered into my regular books of accounts maintained, I voluntarily offer the same for taxation as my Additional income for the current financial year 2008-09. This will be over and above the normal business profits that will be shown by me as at the end of the financial year. I also promise to pay the Advance Tax due on the additional income offered by me on the appropriate dates. 2.3.4 The submission of the appellant that the notings in the Sundaram Register was the expected price which might be received from the sale of specified plots from the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material on record, has to be taken into consideration before arriving at a finding. A statement by a deponent can be held to be unreliable either on the basis of cross-examination of the deponent or by reference to other material on record. 2) Sri Krishna vs. CIT 142 ITR 618 (All) Affidavit need not always be accepted as correct. It is neither a rule of prudence nor a rule of law that the statements made in an affidavit which remains uncontroverted, must invariably be accepted as true and reliable. Ordinarily, in the absence of denial, the statements may be accepted as true but if there are circumstances which suggests that the statements on affidavit should not be accepted as true, the absence of denial by the other side, would not by itself be sufficient to clothe the statements on affidavit with truthfulness and reliability. 3) Garibdas Chandrika Prasad vs. CIT (MP) 230 ITR 771 Affidavit filed by a partner of firm much after the search, contradicting his own statement recorded on oath during the course of search is an afterthought to cover up the undisclosed income and hence the contents of affidavit rightly rejected by the Assessing Officer. 4) Technical Glass Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement or otherwise of a confession which has since been retracted, the Court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors. Law does not say that the accused has to prove that retraction of confession made by him was because of threat, coercion, etc. but the requirement is that it may appear to the court as such. (2) CIT Vs. Uttamchand Jain (Bombay High Court), Income Tax Appeal No 634 of 2009, it was held the retracted confession can be relied only there is independent and cog net evidence to corroborate the statement. (3) Abdul Qaymme Vs CIT (1990) 184 ITR 404 :-An admission or acquiescence can not be foundation of assessment when income is returned under an erroneous or misconception of law. it is always open to assessee to demonstrate and satisfy the authority concerned that a particular income is not taxable in his hands and it was returned under an erroneous impression of law. (4) The ITAT Bangalore Bench in the case of Carpenters Classics (Exim) (P.) Ltd. Vs OCIT 108 ITO 142 has held that, Since the assessee had not taken any s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nclusive to hold that the statement earlier made was false. The assessee failed to produce books of account which may have been maintained during the regular course of business or any other authentic contemporaneous evidence of agricultural income . 2.3.7. The impounded document clearly reveals the receipt of on money of ₹ 1.5 lakhs per guntha and appellant could not produce any other contemporaneous evidence to dissolve the same. I have brought out clearly that these notings are only actual and not projections based on the registrations done with parties mentioned in page No. 3 4 of the document. The contention of the appellant particularly the retraction and questioning the validity of the statement is definitely an afterthought without any basis. In view of the above discussion, the claim of the appellant that the statement recorded during the course of survey is invalid, cannot be accepted. 2.3.8. The next objection is that the cash component was not recorded in the regular books of accounts. In this regard I would like to point out the discussion in para 2.3.3 to 2.3.6 where it has been proved beyond doubt that cash was received by the appellant. Further in the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered if an Inspector carries out the survey in which case he needs an authorization from the Assessing Officer or Jt.CIT/AddI.CIT to carry out such action. 2.3.11. Further It is the contention of the appellant in para 18 of the submission that out of 55 plots, registration were carried out only in 41 plots during the year and 14 of the agreements were cancelled and there is no question assessing the on money on these unsold plot of land. It was submitted that the value of the unsold plots ₹ 5,46,87,293/- for 586.54 Gunthas were admitted as closing stock on 31.3.2009. 2.3.12. As discussed above, the impounded document 'Sundaram' Register contains details of on money received in respect of 55 parties which appellant himself had admitted at the time of survey. I have also given a clear finding in the above para that the impounded book contain the details of actual sale and on money received and they are not projections as alleged by the appellant.. During the course of hearing the AR was specifically directed to file documentary evidence such as copy of the deed of cancellation and proof to show that the amount collected was returned back to the concerned par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed summon to a few customers u/s 131 of the Act and their statements were recorded. No defect or discrepancy was found in these proceedings. The purchasers of the plots who appeared before the A.O. clearly stated that all payments were made by them by account payee cheque and in support or their contention copies of their pass book were produced before the A.O. Everybody clearly mentioned that there was no element of cash involved in the transactions of purchase of plots by them. 5. Against the presumption of extra cash received addition to the sale price of the plots @Rs.1,50,000/-- per guntha for 80,83 Gunthas amounting to ₹ 1,21 ,24,5001- as alleged by the A.O., the appellant produced registered sale deeds of all the sales registered during the year, agreement of sale for unregistered sale and details of cancelled sale for which no amount was received. The survey team as well as the Id AD presumed that cash element for each plot was received by the appellant. The A.O. did not object the price mentioned in the registered sale deed where stamp duty as per value determined by the competent authority was paid. Thus, there was no iota of doubt that sale of plots was made at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as found to be in receipt of on money in respect of sale of industrial plot of land. On the basis of seized material, the A.O. computed the on money received by the assessee amounting to ₹ 1,50,000/- per guntha. The statement of the assessee was also recorded where he agreed for receipt of on money which has not been accounted for in the regular books of account. In the statement, the assessee also surrendered cash component of ₹ 1,21,24,500/- as additional income in addition to its regular income shown in the books of account. Since the cash entries appearing in the note book found during the course of survey and inventorised by the Department were not accounted for in the regular books of account maintained by the assessee, the A.O. added the same while framing the assessment u/s 143(3) of the Act. It is pertinent to mention that the statement of the assessee was recorded on oath in the presence of assessee s authorisd representative Shri M.A. Siddiqui wherein he agreed for surrender of on money received in cash with respect to the sale of various plots of land as per the note book namely True Friendship (Sundaram) which was inventorised at Sl. No. 1. Even durin ..... 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