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TMI Blog2016 (7) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... akore nowhere state the name of the assessee. Thus the Revenue has not brought any evidence. The onus, in our opinion, is on the Revenue to prove that the assessee has earned the income. It gets shifted on the assessee once the assessee claims the exemption of income. Additions were rightly deleted - Decided against the revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... question in favour of the Department. 5. On the other hand, learned Counsel for the assessee has contended that retraction was made immediately within the period of three months and the statement was recorded under telephonic talks by the Department pursuant to the statement recorded of one Shir Subhash Pandey. However, the assessee was not allowed to crossexamine the said statement. 5.1 Learned Counsel for the assessee has relied upon letter [F.No.286/98/2013IT (INV.II] dated 18/12/2014 whereby the instructions was issued in relation to Section 132, read with Section 133A of the Income Tax Act, 1961 with regard to search & seizure, admission of undisclosed income under coercion / pressure during the search / survey. The said circular reads thus: "Instances / complaints of undue influence/coercion have come to notice of the CBDT that some assessees were coerced to admit undisclosed income during Searches / Surveys conducted by the Department. It is also seen that many such admissions are retracted in the subsequent proceedings since the same are not bakced by credible evidence. Such actions defeat the very purpose of Search / Survey operations as they fail to bring the undisclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome. Any action on the contrary shall be viewed adversely. Further, in respect of pending assessment proceedings also, assessing officers should rely upon the evidences / materials gathered during the course of search / survey operations or thereafter while framing the relevant assessment orders." 5.3 In support of his argument, learned Counsel for the assessee has relied upon a decision in case of Andaman Timber Industries v. Commissioner of Central Excise, KolkataII [2015] 62 taxmann.com 3 (SC) and has relied upon paragraph Nos.6, 7, 8 and 9 which reads thus: "6. According to us, not allowing the assessee to crossexamine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to crossexamine, the Adjudicating Authority did not grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are of the view that the admission made by the assessee is not a conclusive proof and such admission can be used as an evidence unless it is not retracted. The assessee in this case has already retracted the statement which in our opinion is a valid retraction. Although there had been search in the case of Gokul Corporation and its partner Shri Suresh A Patel on which the Revenue has relied for making the additions in the case of the assessee but the Revenue could not bring any evidence or material except the statement of the assessee which was recorded on 8.1.96 and also the statements of Shri Subhash Pandey and Shri Kashyap Thakore and these statements were although recorded at the back of the assessee. When the assessee has asked for their crossexamination, the crossexamination of Shri Subhash Pandey was not given to the assessee, although the statement of the assessee was recored in consequence of the statement of Shri Subhash Pandey recorded on 1.1.96 u/s. 131. The statements of Shri Suresh A Patel and Shri Kashyap Thakore nowhere state the name of the assessee. Thus the Revenue has not brought any evidence. The onus, in our opinion, is on the Revenue to prove that the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for which the assessee claimed to have been made contribution from time to time. The assessee took possession of the bunglow in 1974 when only ground floor was constructed. Since then he has been living there. The assessee has constructed first floor during 1986 to 1988 and he has incurred the expenses for first floor structure to the tune of ₹ 2,03,185.65 ps. but this amount has been withdrawn from the account of the firm in which the assessee is a partner. As per say of Mr.Shah even departmental valuation officer has also accepted that the cost of construction of first floor worked out to ₹ 2,06,060/- . There was, therefore, no reason for making addition of ₹ 4 lacs on the basis of alleged disclosure made by the assessee in his statement recorded under Section 132(4) of the Act. In support of this statement the Revenue has not brought any evidence whatsoever which would establish that the assessee had in fact incurred an amount of ₹ 4 lacs on the construction of the first floor and that amount was invested out of the undisclosed income. Hence there is no justification for making account of ₹ 4 lacs merely on the basis of statement recorded under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record. The Tribunal while deciding the appeal in paragraph No.8 has observed as under: 8. We have heard the assessees counsel and the D.R. We are of the opinion that the CIT(A) when he relied upon the statement of the assessee made on 8.8.90 ignored the fact that there were two statements recorded on that day. The first statement was recorded at the 8 am. and second statement was recorded at 8:45 pm. in the night. In the first statement recorded in the morning which are contained on pages 1 to 12 of the assessees paper book. There is no acceptance of the fact that the business belonged to him and not to the other persons who are said to have given the statements against him. It is notable that 33 questions were asked in the morning session and this morning session statement was the first statement. Therefore, if the line of reasoning recorded by the CIT (A) is accepted then the reliance has to be placed on the first statement in the morning. In this first statement in the morning there is no acceptance of any benamidari or any disclosure. It is notable that the second statement of the assessee started at 8:45 pm. which according to the assessee continued upto 6 am. next day. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se for a particular year. The quantum of disclosure made in each and every 14 concerns have not been identified by either of the lower authorities. The department has also not contested the fact that this assessees son suffered from diabetes. In view of the above circumstances we see reason to believe that the second statement given by the assessee after 8:45 pm. was not given under the the circumstances which could be said as normal for the assessee. 6. In view of the above discussion and considering the principal laid down in the case of Kailashben Manharlal Choksh (supra), we are of the considered opinion that the view taken by the Tribunal is just and proper. We are not convinced with the submissions made by Mr. Mehta, learned advocate for the appellant that the Tribunal has not given cogent reasons. Therefore, the answer to the first question would be against the Revenue and in favour of the assessee. The second question will also enure for the benefit of the assessee as from the record it is clear that other concerns were not Benami concerns of the assessee." 10. In view of the aforesaid settled legal situation and in view of the findings arrived at by the Tribunal, we ar ..... 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