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TMI Blog2015 (4) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... ax Act, 1961 during the course of search operation - Held that:- The property in respect of which the assessee has made a statement is not owned by him. The ownership of the property is in his wife’s name, Smt. Mukul Aggarwal, therefore, the provisions of section 69B of the Income-tax Act, 1961 cannot be invoked in assessee’s case. Further, no evidence of any on money was found or seized during the search operation. The statement was recorded at the odd hours in the night. The assessee has submitted an affidavit before the Director General (Inv.), U.P., Lucknow on 07.11.2005 stating that the search party confronted him at around 3.00 AM in the morning of 28.10.2005 when he was too tired and weak and in that situation, he was not having any other option but to obey raiding party and he kept on signing whatever document which has been put before him and he made it clear that any surrender recorded in the statement is baseless, false and without his knowledge. He denied absolutely his legal consent by the discloser. Revenue has not made any effort to disprove the contents of this affidavit. We also find that this addition was made only on the basis of statement and there is no corrobo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of HUF from 1982-83 to 1999-2000 when no such bank account was neither found at the time of search nor was it produced in course of assessment. 2. That the order of the CIT(A) is perverse in as much as it is based on wrong facts regarding evidence of existence of HUF being found and seized in course of search vide annexure 16-22 when no such evidence was actually seized. 3. That the order of the CIT(A) is perverse in as much as he has drawn inference regarding existence of HUF and genuineness of investment made in Asst. Year 2000-01 on the basis of asstt. of HUF for Asstt. Year 2004-05 that too when the return of HUF for 2004-05 was filed after the search. 4. That the order of the CIT(A) is perverse in as much as he totally omitted to consider the main ground of addition that the assessee in course of search had surrendered investment in KVP/NSC to the extent of 30 lacs as his undisclosed income. 5. That the CIT(A) violated the provisions of rule 46A of the I.T. Rules by admitting fresh evidence by way of Post Master's report without giving the A.O. an opportunity to examine the evidence. 6. That the order of the Ld. CIT(A), Meerut being erroneous in law and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the main ground of addition that the assessee in course of search had surrendered investment in KVPINSC to the extent of 30 lacs as his undisclosed income. 5. That the CIT (A) violated the provisions of rule 46A of the LT. Rules by admitting fresh evidence by way of Post Master's report without giving the A.O. an opportunity to examine the evidence. 6. That the order of the Ld. CIT(Appeals) being erroneous in law and on facts be vacated and the order of the A.O. be restored. 7. That the appellant craves leave to amend anyone or more of the grounds of the appeal as stated above as and when need for during so may arise. 3. The appeals in ITA Nos.1981 1982/Del/2010 emanate from the order of CIT (A), Meerut dated 09.02.2010 and the appeals in ITA Nos.2310, 2364 2365/Del/2010 emanate from the order of CIT (A), Meerut dated 16.02.2010. The cross objection no.188/Del/2010 and cross objection no.189/Del./2010 are filed in response to ITA No.2364/Del/2010 for Assessment Year 2004-05 and ITA No.2365/Del/2010 for Assessment Year 2005-06 respectively. 4. While pleading on behalf of the revenue, ld. DR submitted that on the issue of existence of the HUF and genuineness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heard both the sides. Some of the evidences on which the assessee has relied were part of the seized record. The Bank account details were seized as per Annexure F of panchnama. The investment in NSCs/KVPs were from these bank accounts and M/s. Trilok Prakash Agarwal HUF had made investment in several years in FDR/NSC and on maturity, the same has been reinvested in subsequent years. These investments were made in the name of coparcener/karta. The income-tax return of HUF could not be filed due to income being below the taxable limit. In view of the facts, we find no fault in the order of the CIT (A) in this regard. We also hold that the certificate of Post Master with regard to the maturity of the KVP/NSC was only in support of the already existing evidences which prove the existence of HUF and source of the investment. In view of these facts, all the grounds in ITA Nos.1981, 1982, 2364 2365/Del/2010 and ground nos.2 to 7 in ITA No.2310/Del/2010 are dismissed. 7. In ITA No.2310/Del/2010, ground nos.1, 1a and 1b is related to the deletion of addition made on money payment of ₹ 30 lacs for purchase of property at Shivalik Malviya Nagar, New Delhi on the basis of stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t made any effort to disprove the contents of this affidavit. We also find that this addition was made only on the basis of statement and there is no corroborative evidence whatsoever found and seized during the search operation. The assessee has categorically retracted from this statement. There is no evidence whatsoever on the record to substantiate that any on money was paid for the purchase of the property. CBDT Instruction No.286/2/2003 IT (Inv.) dated 10.03.2003 also discourages such confessions where concurrence is taken without any supportive evidence. Such forced admission without any support of documents cannot be treated as admission when same are also retracted immediately by way of filing affidavit. In view of the facts, we confirm the deletion of addition and accordingly, ground nos.1, 1a and 1b are dismissed. 11. In the result, all the appeals being ITA Nos.1981 1982/Del/2010, ITA No.2310/Del/2010 and ITA Nos.2364 2365/Del/2010 are dismissed. 12. Now, we take cross objections, CO Nos.188 189/Del/2010 in ITA Nos.2364 2365/Del.2010), filed by the assessee. In these cross objections, the assessee has raised the issue wherein the CIT (A) has restricted t ..... 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