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TMI Blog2018 (12) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Dated:- 10-12-2018 - Sh. H.S. Sidhu, Judicial Member And Sh. L.P. Sahu, Accountant Member For the Assessee : Shri P.C. Yadav, Advocate For the Department : Shri Sridhar Dora, Sr. DR. ORDER PER H.S. SIDHU, JM These appeals are filed by the Department against the separate orders passed by the Ld. CIT(A)-27, New Delhi in respect of the aforesaid separate Assessees relating to assessment year 2012-13. Since the grounds raised in these appeals are common, except the difference in figure, hence, the appeals were heard together and are being disposed of by this common order for the sake of convenience, by dealing with ITA No. 6318/Del/2015 (AY 2012-13) ACIT vs. Brahm Datt. 2. The grounds raised by the Revenue in ITA No. 6318/Del/2015 (AY 2012-13) in the case of ACIT vs. Brahm Datt read as under:- 1. The Ld. CIT(A) has erred in law and on the facts in deleting the addition of ₹ 1,11,64,700/- made by the AO on account of unexplained money u/s. 69A of the I.T. Act, by ignoring the fact that the assessee himself declared additional income of ₹ 1,20,00,000/- during the course of post search proceedings and offered income of ₹ 8,35,30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. CIT(A) has erred in law and on the facts in deleting the addition of ₹ 1,00,00,000/- made by AO, without appreciating the facts that the assessee never retracted in her statement made under oath u/s. 131(1A) of the I.T. Act during the assessment proceedings. 3(a) The order of the CIT(A) is erroneous and not tenable in law and on facts. (b) The appellant craves leave to add, alter or amend any / all of the grounds of appeal before or during the course of the hearing of the appeal. 5. Briefly stated facts of the case are that the search and seizure operation u/s. 132 of the Income Tax Act, 1961 (in short Act) was conducted at the business / residential premises of the assessee on 27.9.2011. The authorization for the search was made and Panchnama was duly executed in this case. Assessee belongs to M/s Som Datt Group of Cases. The assessee field the return of income declaring income at ₹ 8,47,07,391/- on 6.5.2013. Notice u/s. 143(2) of the Act was issued on 6.5.2013 and notice u/s. 142(1) of the Act alongwith detailed questionnaire was issued on 9.4.2013. In response to the notices, the AR for the assessee attended the proceedings from time to time and filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard both the parties and perused the records especially Ld. CIT(A) s order as well as the Tribunal s order dated 16.8.2016 passed in the case of ACIT vs. Sh. Subhash Chander Sudha and the case laws cited by the Ld. DR. We find that Ld. CIT(A) has elaborately adjudicated the issue vide its order dated 22.09.2015 vide para no. 7. The relevant portion of the Ld. CIT(A) s order are reproduced as under:- 7. Finding 1. I have considered the written submission of the appellant, gone through the case laws relied upon and also gone through the assessment order. 2. It is seen that assessee has furnished complete particulars of his actual income. 3. It is also evident that during the course of search, no evidence of any undisclosed income was found. 4. This fact was also confirmed by the AO at page 5-6, of the assessment and has observed as under:- Here it is pertinent to mention that during the course of search, no documents pertaining to the details of the undisclosed income earned by the assessee as has been disclosed by him or was found and neither the same has been submitted by the assessee during the assessment proceedings also. 5. The above observat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is held that statement recorded during the course of search cannot on a standalone basis give power to the Assessing Officer to make the addition. 2.3 We have heard the rival submissions and perused the material on record including the decision of the Tribunal in the case of M/s. Best Infrastructure (India) Private Limited (supra) cited by the learned Authorized Representative of the assessee. The Tribunal in para 23 of the order has held as under: 23. We have discussed in detail the legal position as laid down by Hon'ble Jurisdictional High Court and Hon ble Apex Court in various cases. We have also discussed the facts of the assessee s case. Now, applying the law as laid down by Hon'ble Jurisdictional High Court and Hon ble Apex Court to the facts of the assessee s case, the following position emerges. (i) . (ii) Any statement recorded during the course of search cannot on a standalone basis without reference to any other material discovered during search and seizure operation would empower the Assessing Officer to make the addition. The words evidence found as a result of search would not take within its sweep statement recorded dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements are recorded by officers in circumstances which can most charitably be described as oppressive and in most such cases, are subsequently retracted. Therefore, it is necessary to ensure that such statements, which are retracted subsequently, do not form the sole basis for computing undisclosed income of an assessee. 12. Thus, Hon'ble Jurisdictional High Court has held The words evidence found as a result of search would not take within its sweep statements recorded during search and seizure operations . Their Lordships further observed However, such statements on a standalone basis without reference to any other material discovered during search and seizure operations would not empower the AO to make a block assessment merely because any admission was made by the assessee during search operation . In paragraph 24, their Lordships have mentioned about the prevailing practice of extracting statement by exerting undue influence or coercion by the search party. Though the above decision in the case of Harjeev Aggarwal is with reference to the meaning of undisclosed income u/s 158BB of the Income-tax Act, however, in our opinion, the above observati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s. Sudha Traders, Ladwa Value of stock inventory taken on the date of search ₹ 5,39,932/- Value of inventory as per books = ₹ 5,39,932/- iv) M/s. Subhash Co. Ladhva Value of stock inventory taken on the date of search ₹ 2,03,584/- Value of inventory as per books =Rs. 2,03,584/- 2.6 The Assessing Officer has placed reliance on the statement of the assessee under section 132(4) of the Act, irrespective of the fact that there was no discrepancy in the stock. The learned Commissioner of Income-tax (Appeals) after considering the submission of the assessee deleted the addition with observations as under: 6.2 I have carefully considered the rival submissions. It is an undisputed fact that the stock was reconciled during the assessment proceeding in reply to the questionnaire issued by the AO. No difference was found in the inventory valuation of stock on the search in between physical stock and stock as per stock registers of the business concerns. It is also undisputed that the surrender of additional income was made to cover difference in stock if any in respect of the different business concerns. No doubt the offer of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidentiary value but as the same is not conclusive as held by the courts, the addition based totally on such statement without any corroboration does not hold strength. Therefore, I am constraint to delete the addition and allow the appeal of the assessee. As for the letter referred by the assessee, the same being an internal confidential correspondence between AO and Investigation Wing, which has also not been commented in the remand report, I have no reason to take it into cognizance. Assessee succeeds on this ground. 2.8 These factual findings have not been denied by the Revenue. In the grounds also, the Revenue has agitated the only issue that the additions have been deleted by the learned Commissioner of Income-tax (Appeals) despite the assessee had admitted the undisclosed income in the statement recorded under section 132(4) of the Act. It is clear that there is no material or corroborative evidence to support the statement made under section 132(4) of the Act in respect of the addition of ₹ 30 lakh against unexplained investment in stock and ₹ 23.20 Lacs against the unexplained expenditure. The assessee did not admit the addition, which means, he ret ..... X X X X Extracts X X X X X X X X Extracts X X X X
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