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TMI Blog2019 (3) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... m Developers Pvt. Ltd. and as well as by the assessee in their books of accounts. Therefore, the amount of cash received by the assessee of 24,25,000/- was rightly added to the total income of the assessee as unexplained income of the assessee and the same was rightly confirmed by the Ld. CIT(A), which does not need any interference on our part, hence, we uphold the action of the Ld. CIT(A) on the issues in dispute and reject the grounds raised by the Assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... wn in the return filed fully matches with the appointment letter found and seized during the course of search und section 132(1) of the Act from the office of employer of the assessee namely M/s Zoom Developers (P) Ltd. It was further submitted that the document impounded from the premises of the Employer of the assessee clearly states that the sum of ₹ 10 lakhs was paid for IRCTC (Indian Railway Catering and Travel Corporation)!.e. for the purposes where the Company's projects were going on and nowhere in the said entry at SI. No. 6 or otherwise name of the appellant appears. Therefore, Id. CIT(A) was wholly unjustified to assume that the sum in question had been paid to the appellant and that too by way of salary taxable in his hands, simply on the ground that appellant-assessee has not stated that where and how this amount was utilized. He further submitted that Ld. CIT(A) failed to appreciate and missed to note that page 29 of Annexure A-27 was not impounded or found from the possession of the assessee but from the business premises of his employer and no corroborative evidence so as to allege that sums found noted in the loose papers impounded were received by the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estionnaire dated 9.11.2010; Ack. for filing ITR for AY 2009-10 dated 15.12.2010; Ack. for filing ITR for AY 2009-10 dated 16.12.2010; Assessee's reply dated 11.12.2010; Assessee's reply dated 16.12.2010 alongwith increment letter dated 30.11.2008, as was received from the employer i.e. M/s Zoom Developers Pvt. Ltd. and written submission dated 23.2.2012 as were during hearing before the Ld. CIT(A). He also filed the copy of synopsis in support of his contention, which are reproduced as under:- "Present appeal is against the assessment for the search year framed under section 153A/143(3) of the IT Act, wherein addition of ₹ 24,65,000 was made by the AO on account of undisclosed income from salary, out of which ₹ 24,25,000 has been sustained by the CIT(A). Facts: 2. The assessee is an individual deriving income from salary mainly. During the year under appeal he was under the employment of M/s Zoom Developers Pvt. Ltd. (a company engaged in the development of real estate), in the capacity of CEO (Chief Executive Officer) at their office at Thapar Farms, Behind D-3 Pocket, Shantikunj, New Delhi. 3. A search and seizure action U/s 132 took place on 04.02.2009 on M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order observed and held as under: "4.2 The reply furnished by the assessee has been considered but not found to be tenable in view of the fact that the assessee himself accepted that his annual salary income was ₹ 1.31 Crs. instead of ₹ 80.59 Crs. as declared by the assessee. This fact also hold grounds on the fact that the assessee has got an increment from the company according to which his salary amounted to ₹ 1.31 Crs. as stated by the assessee, this letter was also recovered from his possession. So this fact cannot be denied that the assessee has tried to conceal his income just to avoid tax liability. In view of the above it is held that the above said cash amounts were paid by the company to the assessee in lieu of salary in cash which is not being reflected into the Salary details of the Assessee. The same is treated as undisclosed income of the assessee for the year under consideration. In view of above, an addition of ₹ 24,65,000/- which is difference of salary declared and accepted by the assessee. Penalty proceeding under section 271(1)(c) of the I.T. Act, are being initiated separately for concealment of income. (Addition: ₹ 24,65,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he possession of the assessee but from the business premises of his employer and no corroborative evidence so as to allege that sums found noted in the loose papers impounded were received by the appellant-assessee and the same were received by him against his salary emoluments or for personal benefit of the assessee and the said sum of ₹ 10.00 lakhs could not have been added to the income of the assessee/appellant even by raising presumption. 13. In spite of search on the assessee, no matching undisclosed asset or cash was found from the possession of the assessee. 14. Similarly, the transaction appearing at SI. No. 1, for ₹ 2,50,000/- is dated 19.03.2008, therefore, no addition for the same can be mad in the impugned assessment year i.e. 2009-10, moreover, it shows non-application of mind to the facts of the case. 15. So far as the variation in the return filed on 15.12.2010 and revising the same on the very next date i.e. on 16.12.2010 is concerned, it is submitted the variation is mainly due to the fact that in the return filed on 15.12.2010, only net salary received i.e. net of TDS was shown [as Form 16 for the tax deducted at source from salary was not recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 56,222/- on 15.12.2010 which was revised on 16.12.2010 at ₹ 81,76,615/-. This shows that the salary receipt of the assessee were not properly managed by him and he has not filed any Form No. 16 alongwith return of income till date. She further submitted that in the statement recorded on 5.2.2009 the assessee has himself has mentioned vide rely to question no. 3 that his total salary was ₹ 1.31 crores. All these facts indicate that assessee was receiving salary in cash which was not being recorded by M/s Zoom Developers Pvt. Ltd. and as well as by the assessee in their books of accounts. Therefore, the amount of cash received by the assessee of ₹ 24,25,000/- during the year was rightly added to this total income as unexplained income of the assessee and Ld. CIT(A) rightly confirmed the addition, which does not need any interference. Hence, she requested to confirm the action of the Ld. CIT(A) and reject the grounds raised by the Assessee. In support of her contention, she filed the copy of written submissions, which read as under:- "A. As in judicial proceedings in Courts, the evidences both oral and documentary, are relevant in deciding the issues in the income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar Vs CIT (62 taxmann.com 215, 234 Taxman 771) Where Hon'ble Supreme Court dismissed SLP against High Court's order where it was held that since assessee himself had stated in sworn statement during search and seizure about his undisclosed income, tax was to be levied on basis of admission without scrutinizing documents. B Kishore Kumar Vs CIT (52 taxmann.com 449) Madras High Court confirmed 2. In the case of Bhagirath Aggarwal vs. CIT 31 Taxmann.com 274 Hon'ble Delhi High Court has held that - "In the present case no material has been produced by the appellant/assessee to show that the admission made by him was incorrect in any way. On the other hand, it is the assessee who is insisting that it is for the department to corroborate the statement of admission made by him and until and unless the department corroborates the same, the statement cannot be relied upon. Admission once made can certainly be retracted, if the circumstances permit, and it can also be shown to have been made under some mistake or to be otherwise incorrect. But, the onus would be on the maker of that admission. In this case it is the appellant/assessee who has admitted and surrendered a sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2006. [Para 16] Therefore, the appeal is to be dismissed. [Para 17] 3. Raj Hans Towers (P.) Ltd. Vs CIT (56 taxmann.com 67, 230 Taxman 567, 373 ITR 9) Where Hon'ble Delhi High Court held that where assessee had not offered any satisfactory explanation regarding surrendered amount being not bona fide and it was also not borne out in any contentions raised before lower authorities, additions so made after adjusting expenditure were justified (SURVEY CASE) 4. Further, in the case of Hiralal and Maganlal & Co. vs. DCIT 96 ITD 113(Mum.) Hon'ble ITAT Mumbai Bench has held that - "The CBDT's Circular F. No. 286/2/2003-IT (Inv.), dated 10-3-2003 relied upon by the assessee is an advisory to the field officers that they should concentrate on collections of evidence relating to undisclosed income and not on making attempts to obtain confession. In the instant case, the department was not found to have made any attempt to obtain the confession of the assessee. They, in fact, simply examined 'P' and 'J' to collect evidence of undisclosed income but it was 'P' who, instead of denying or providing the information with regard to the locations where the unaccounted stock had been kept, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 115 and, hence, the same was neither open to retraction nor required any further corroboration. The Assessing Officer could, therefore, base the impugned addition on the said declaration. Statements, which are not in the nature of declarations under section 115, are also binding and can form the sole basis for assessment if they are not effectively retracted. Effective retraction is possible in two situations. First situation is where it is not voluntarily made. A statement, however, cannot be said to be involuntarily made merely because it is subsequently sought to be retracted. The law of evidence presumes regularity and correctness of the official actions unless proved otherwise and. hence, the said principle will also govern the statement recorded by a public official and that is more particularly so when it is recorded in pursuance of the statutory provisions of law." 5. Further, in the case of Dewan Bahadur Seth Gopal Das Mohta vs. UOI 26 ITR 722 Hon'ble Supreme Court has held that - "Whatever tax the petitioner had already paid, or whatever was still recoverable from him, was recovered on the basis of the settlement proposed by him and accepted by the Central G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missions filed by both the parties and the Paper Book filed by the assessee. We find that during the course of search loose papers were seized vide Annexure A-27 from the office premises of M/s Zoom Developers Pvt. Ltd. As per page 29 of Annexure A-27 cash payment of ₹ 24,65,000/- to various persons were made on different dates (as mentioned at page no. 6 & 7 of Ld. CIT(A)'s order). We note that all these payments have been made in cash and the same were not found recorded in the books of accounts of M/s Zoom Developers Pvt. Ltd. as well as in the books of appellant. The assessee was specifically asked to explain the receipt of cash on various dates vide question no. 20,21,22 and 23 of his statements recorded on 05.02.2009. The assessee was specifically asked about the cash payment received in question no. 22. However, assessee stated that he will not able to reply and accounts persons will clarify the same. However, no clarification about cash payments received was filed by the assessee subsequently before the Assessing Officer. The AR of the assessee submitted that this paper was not signed and confirmed by anyone, therefore, same cannot be relied upon. The AR further state ..... X X X X Extracts X X X X X X X X Extracts X X X X
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