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TMI Blog2016 (11) TMI 1308X X X X Extracts X X X X X X X X Extracts X X X X ..... .2011 passed for the Asstt.Year 2009-10. 2. Though grounds of appeal taken by the assessee are not in consonance with Rule 8 of Income Tax (Appellate) Rules, 1963 - they are descriptive and argumentative in nature. In brief her grievance is that the ld.AO ought to have granted a refund of ₹ 5,28,801/- in respect of amount of ₹ 15 lakhs, which was offered for taxation conditionally. 3. The ld.counsel for the assessee, at the very outset, submitted that an identical issue was heard in the Division Bench in the case of ITA No.81 82/Ahd/2012 dated 6.9.2016 and outcome of those appeals is to be followed in the present appeal. The ld.DR was unable to controvert this contention of the ld.counsel for the assessee. 4. I find that Division Bench has decided those appeals vide order dated 6.9.2016. The order reads as under: 1. ITA Nos.81 82/Ahd/2012 are appeals by two different Assessees directed against the order of Ld. CIT(A)-II, Ahmedabad dated 18.10.2011 pertaining to A.Y. 2009-10. 2. As common grievance is involved in both these appeals, though quantum may differ, both these appeals were heard together and are being disposed of by this common order for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,25,00,000 27,00,000 1,98,00,000 7. While filing the aforementioned chart, the assessees specifically stated that the aforementioned chart may also be treated for registering retraction of the preliminary disclosure made to the extent it remains unidentified during assessment. 8. Thus, the unidentified disclosure of Shri Kanaiyalal B. Patel was appropriated at ₹ 10 lacs and that of Shri M.K. Patel was appropriated at ₹ 25 lacs. We are considering the appeals of these two persons. 9. The claims of the appellants are that the disclosure was on estimate basis, there was no corroborative unexplained investment/expenditure found at the time of search, no undisclosed assets were found nor it is a case of the revenue that the disclosure made by the assessees have any nexus with the unexplained income found at the time of search. 10. At this stage, it would be pertinent to understand the view of the CBDT on disclosures made at the time of search and the same reads as under:- The CBDT circular No. 286/2/2003-IT (INV), dated 10-3-2003 in reference to the confession of income made during the course of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above extracted disclosures as voluntary, unconditional, unequivocal and precise which could not brushed aside in assessee's return as conditional. His view was that at most, the above stated deemed dividend amount therein (supra) could be held as a conditional disclosure. Shri Patel's statements were taken as that of a fully conscious ones since administered under oath. And that the same had gone un-rebutted for want of tangible evidence. Retraction time period of 11 months was held to be based on legal advice only. The Assessing Officer took into account all these conclusions for rejecting assesee's retraction qua the impugned sum of ₹ 1.48 lacs and held that the entire sum of ₹ 1.75 crores (supra) was its unaccounted income. 9. The CIT(A) has upheld the Assessing Officer's action under challenge. 10. The learned authorized representative invites our attention to the above extracted statement for terming the same as a conditional disallowance and not a categoric one. He submits that the same lacks any supportive evidence as well i.e. the four basic ingredients of the concerned assessee's identity out of the above stated four entities (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd records. The relevant array of questions forming part of the paper book are found to be not throwing light on any specific material with contents thereof; whatsoever. The same factual position continues in assessment, lower appellate order and in the course of arguments before us. It is not out of place to reiterate that we are dealing with the issue of impugned unaccounted business income of ₹ 1,48,00,000/-. We observe in these peculiar circumstances that there is no specific incriminating material supportive of the above stated addition right from search till date. We quote Board's circular (supra) issued much prior to the search in question directing the investigating officers to focus on collection of evidence pointing towards unaccounted income rather than requesting such confessional disclosure statements. We accordingly hold that the Revenue has not collected any specific material supporting the impugned addition. 14. Now we come to relevant case law quoted. The first one (2010) 328 ITR 411 (Guj) Kailashben Manohar Choksi vs. CIT. The department had recorded disclosure statement at midnight hours. The same stood retracted after two months. There was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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