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TMI Blog2017 (11) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... ree times of tax which are required to be paid therefore, it was contended that the assessee will adopt easy way to be caught hold of the tax authority. Tribunal has seriously committed an error in adding ₹ 77,298/- ignoring provisions of the act therefore, both the issues are required to be answered in favour of the assessee. - D. B. Income Tax Appeal No. 449 / 2009 - - - Dated:- 29-8-2017 - K. S. Jhaveri And Inderjeet Singh, JJ. For the Appellant : Mr. Siddharth Ranka with Mr. Raj Kumar Yadav For the Respondent : Mr. K. D. Mathur Mr. Prateek Kedawat for Mr. R.B. Mathur ORDER 1. By way of this appeal, the appellant has assailed the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the assessee confirming the order of the Assessing Officer as well as CIT(A). 2. This court while admitting the matter framed the following questions of law:- i) Whether in the facts and cirucmstances of the case the learned ITAT was right in law in holding that the AO was right in adding ₹ 2,70,248/- as undisclosed income on the basis of assessee s statement, retracted by specific affidavit dated 20.11.2007, dated 23.2.2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks of accounts to DDI for verification. The Learned DDI was continuously pursuing me to declare the investment in dry fruits as my income from undisclosed sources. Further he also inform him that in case no declaration is made as per his advise the dry fruits will not be release for a longer time. Since the value of old dry fruits decrease sharply after passing of time in market, or say after a period of six months value remains less than half of the dry fruits. For the reason, I was forcely admitted that investment in dry fruits were made by me from my undisclosed sources, while actually investment was made out of cash drawings from regular books of accounts. As such statement was made under pressure and is not binding on the me. 6. In spite of his retraction, the CIT (A) has added the income and the Tribunal has confirmed the same. 7. He has relied upon the decision in case of Kailashben Manharlal Chokshi vs. Commissioner of Income Tax reported in [2010] 328 ITR 411 (Gujarat) wherein it has been held as under:- 26. In view of what has been stated hereinabove we are of the view that this explanation seems to be more convincing, has not been considered by the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by CBDT from time to time, as referred above, through which the Board has emphasized upon the need to focus on gathering evidences during Search/Survey and to strictly avoid obtaining admission of undisclosed income under coercion/undue influence. 3. In view of the above, while reiterating the aforesaid guidelines of the Board, I am directed to convey that any instance of undue influence/coercion in the recording of the statement during Search/Survey/Other proceeding under the I.T. Act, 1961 and/or recording a disclosure of undisclosed income under undue pressure/coercion shall be viewed by the Board adversely. 4. These guidelines may be brought to the notice of all concerned in your Region for strict compliance. 5. I have been further directed to request you to closely observe/oversee the actions of the officers functioning under you in this regard. 6. This issues with approval of the Chairperson, CBDT. 9. This Court had also an occasions to deal with the similar issue in case of Chandrakumar Jethmal Kochar (supra), where this Hon'ble Court after considering various pronouncements has held as under: 3. Learned advocate for the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce 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 Section 132 (4). None of the authorities have considered this explanation and the CIT(A) as well as Tribunal both have proceeded on the footing that the Assessing Officer has considered the explanation. So far as the addition on account of gold ornament to the tune of ₹ 1 lac is concerned, the assessee has given the explanation that was reproduced by the Assessing Officer in his assessment order which says that during the course of search and seizure proceeding, statement of assessee's wife, Smt. Kailashben Chokshi was recorded and according to which she had received about 25 tolas of gold each from her parents and from her parents in law side at the time of her marriage in the year 1960. She had given 15 tolas of gold ornaments to her daughter Ritaben at the time of her marriage in the month of March, 1988. If the total jewellery found during the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. This is contained from pages 13 to 26 of the paper book and contains 35 questions and answers. Till question No. 21 of the second statement there is no allegation of any benamidari. From question No. 22 the statement starts talking about proprietorship of different concerns in the name of his various employees. Even in answer to question No. 22 he could not give the names of the proprietors of Kamal Traders, Naman Traders, Sampat Traders, Adarsh textiles. In the last sentence of the said answer he stated as translated in English besides above there are no other firms in the name of our employees. In answer to question No. 23 he accepted that Sugam Textiles was being run by his employees as his benami. In answer to question No. 24 he accepted that all the concerns mentioned in question No. 22 are his benami concerns. In answer to question No. 26 he accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question would be against the Revenue and in favour of the assessee. The second question will also ensure for the benefit of the assessee as from the record it is clear that other concerns were not Benami concerns of the assessee. 9. He has also relied upon another decision of Gujarat High Court in case of Chetnaben J Shah Legal Heir of Jagdishchandra K. Shah vs. The Income Tax Officer Ward 10(3) Or His Successor in Tax Appeal No. 1437/2007 decided on 14th June, 2016 wherein it has been held as under:- 5. Learned Counsel for the respondent has taken this Court to Section 132(4) of the Act and contended that the statement made during the search is required to be accepted and the retraction was made after a very long time. The reasoning of the Assessing Officer was confirmed by the Tribunal and therefore, no interference is called for by this Court in the facts and circumstances of the case. 6. We have heard learned Counsel for the respective parties and perused the records of the case. We are of the view that the CIT (Appeals) has rightly appreciated the case based on the sound principles of law and has also considered the statement made by the assessee at the rele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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