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TMI Blog2018 (12) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... e and has arbitrarily upheld the addition of Rs. 1 crore on account of undisclosed income alleged to have been surrendered at the time of survey, which addition being contrary to facts, bad in law be deleted. 2. Because the CIT(A) has failed to appreciate that the addition of Rs. 1 crore, alleged to have been made on the basis of statement recorded at the time of survey which has been retracted and there being no other evidence either direct or circumstantial or any material on record, has erred in upholding the addition of Rs. 1 crore which is bad in law and be deleted. 3. Because the CIT(A) has failed to appreciate that mere surrender at the time of survey without any cogent material in support of the same would not make the surrender enforceable nor the addition is sustainable, the addition made is bad in law and be deleted. 4. Because the CIT(A) has failed to appreciate and consider the explanation as well as Paper Book filed during the course of hearing, and the failure to do so is against the principle of natural justice, the addition of Rs. 1 crore made by the Assessing Officer and upheld by the CIT(A) be deleted. 3. The crux of grievance is the addition of Rs. 1 cror ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he papers recovered and surrender made. Copy of statement recorded is available at page 11-12, so this second statement recorded on 11.03.2015 at page 13 to 15. It is submitted that all these papers are dumps papers, in as much as. except for the date and amount, there are no details as to whether these amounts relate to any payment received or made, even property number is not mentioned on the paper as also the name of person. It may not be out of place to mention that no land has been purchased either before or after the date of survey or uptill now. If a reference is made to the loose papers, it would clearly reflect that the entire writing on the papers is by one single pen and at one stretch only. The Director of the company was forced to make a declaration of Rs. 1,00.00,000/- and to offer it as income for the year under consideration. Not only this, soon after the survey, when the survey proceedings closed, the assessee was again summoned by issue of notice u/s.131 of the Act, and his statement was again recorded, in re-confirmation of the statement already recorded on 19.02.2015. It may be worthwhile to mention that it the time when the second statement was recorded on 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement has been recorded in absence of the said queries, the statement as well as surrender leads us no where. In view the above, the addition made by the Assessing Officer is bad in law and therefore, kindly be deleted." 4. The ld. CIT(A) after considering the facts of the case, submissions of the assessee and the assessment order, confirmed the addition made by the Assessing Officer for various reasons as appearing in his order, which is on record. Being further aggrieved, assessee had preferred this appeal before us and the ld. A.R. of the assessee vehemently argued that addition made by the Assessing Officer was only on the basis of loose documents found during the course of survey and that there was no circumstantial or direct evidence in connection with the surrender made by the assessee. The Assessing Officer has not brought any material on record to show that for which land the amount was advanced; to whom advance was made and whether at all land was purchased by the assessee or not. Assessee on his part has denied giving any advance or buying any land. Even during assessment proceedings no query has been raised in this context. The ld. A.R. of the assessee further subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st that any corroborating material was present to strengthen the case of the Revenue. On perusal of materials on record, even in the assessment proceedings also, no query has been raised in this context. 7. In the case of Texraj Realty Pvt. Ltd. vs. DCIT (supra), it has been held by the Ahmedabad Bench of the Tribunal that it is pertinent to observe that when explanation or a defence of an assessee based on number of facts supported by evidence and circumstances required consideration whether explanation is sound or not must be determined not by considering the weight to be attached to each single fact in isolation but by assessing the cumulative effect of all the facts in their setting as a whole. If we make an analysis of all the facts in their setting as a whole, then it would reveal that Revenue failed to bring corroborative evidence on record for demonstrating the alleged receipt of on-money by the assessee. 8. Similarly, Mumbai Bench of the Tribunal in the case of Shri Amod Shivlal Shah vs. ACIT (supra) referring to the observations of the Hon'ble Apex Court in CIT vs. S Khader Khan Son's case (supra) held that statement u/s 133A of the Act would not have any evidentiar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal in the case of Manjit Singh vs. ACIT (supra) has held that there was no material with the Department on the basis of which the addition in excess of the physical stock found during the survey can be made specially keeping in view the fact that assessee had reiterated from the statement recorded during survey proceedings within a period of six days only. The surrender letter itself cannot be relied to make addition in the absence of other corroborated material. Thus, addition made by Assessing Officer was to be deleted. 12. The aforementioned case laws, in our humble opinion, establishes the legal principle in crystal clear manner that statement recorded under section 133A cannot be given evidentiary value and the only basis for addition by the Assessing Officer is the statement of the assessee without any corroborating material or documentary evidence on record, such addition is not permissible within the ambit of taxing statute, especially keeping in view the CBDT Instruction dated 10/3/2003 which was once again brought on record by ITAT Mumbai Bench in the case of Shri Amod Shivlal Shah vs. ACIT (supra). There has to be circumstantial evidences or other corroborating mate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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