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TMI Blog2015 (9) TMI 1657X X X X Extracts X X X X X X X X Extracts X X X X ..... er pressure or duress where no incriminating documents/unrecorded valuables were found is to be held invalid and cannot be sustained. The assessee filed affidavit on 31/3/2009 before the AO but he remained silent on the face of it and had not carried out any inquiry to verify the correctness of the affidavit. AO also had not cross examined on the points of retraction and not asked to produce any evidence. It is held by the various Hon'ble High Courts as well as Hon'ble Supreme Court that the statement recorded U/s 132(4) has evidentiary value but rebuttable. In CBDT circular No. F.NO. 286/2/2003- IT(Inv) does not support any disclosure made U/s 132(4), in absence of any incriminating document/undisclosed assets. Therefore, we upheld the order of the ld CIT(A). - Revenue s appeal is dismissed. - ITA No. 947/JP/2013 - - - Dated:- 24-9-2015 - SHRI T.R.MEENA, AM SHRI LALIET KUMAR, JM For the Appellant : Shri Narendra Kr. Gaud (CIT) For the Respondent : Shri Vijay Goyal (CA) Shri Mridul Goyal (Adv) ORDER PER T.R. MEENA, A.M. This is an appeal filed by the revenue against the order dated 01/10/2013 of the learned C.I.T.(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons was received back and invested/spent in unaccounted assets/unexplained expenses. This group had retracted the disclosure made U/s 132(4 of the Act by filing the affidavit subsequently during the course of assessment proceedings giving the reasons that this surrender was made due to pressure, mental tension and duress is an afterthought to escape the payment of taxes and penalty proceedings. He further observed that the pressure and duress claimed by the assessee during the course of search was unfounded because even after the conclusion of search, during post search enquiries, the statement on oath of Shri R.s. Mittal, the main person of the group recorded U/s 131 on 05/09/2008 in which he has categorically accepted and reiterated that this surrender made by him and his family members was correct and true. This fact itself proves that the admission made by the persons during the course of search was voluntary and without any threat or coercion. The assessee also filed reply dated 04/08/2010 which has been reproduced by the Assessing Officer on page Nos. 4 and 5 of the assessment order. After considering the assessee s reply, the ld Assessing Officer held that the statement was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly demonstrated that the admission made during the course of search is not correct. The ingredient for retraction of statement made during the search, therefore, stand duly satisfied as the assessee is found to have made retraction within a reasonable time immediately after the copies of statement were provided to him. Furthermore, there being no material or evidence on record to show that appellant has carried any business outside the books for sale and purchase of items of pharmaceutical companies that could give rise to income to the extent of ₹ 30,00,000/- addition merely on the basis of such statement which stood validly retracted could not have been made. On similar basis and reasoning in the case of Suresh Medical Agency another assessee of the group who were also searched on the same day alongwith this appellant, vide our order dated 21/08/2013 in ITA No. 443/JP/2012 have found the retraction made as valid and also deleted the addition. We, therefore, find no factual or legal justification in sustenance of addition by Ld. CIT(A) in this regard. As a result, the addition sustained by the Ld. CIT (A) is deleted and ground No. 1 raised in appeal is allowed. Considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s reiterated the arguments made before the ld CIT(A) that the statement was recorded under duress, mental tension and under pressure of department on 27/08/2008 and 28/08/2008. During the course of search, no incriminating documents/cash/unaccounted assets were found and seized by the department. There is no correlation between disclosure made by the assessee and unaccounted assets found. The assessee has retracted on 31/03/2009 before close financial year and return filed U/s 153A of the Act. The department had conducted search operation not only assessee but his relative and on all the business premises but did not find any evidence that the assessee was indulged in undisclosed medical business in his individual capacity and had earned unaccounted income from undisclosed medicine business in individual capacity. He further relied on the decision of Hon ble ITAT, Jaipur Bench, Jaipur in the case of Shri Pawan Kumar Lashkary in ITA No. 808/JP/2011 wherein it has been held that income cannot be assessed merely on the basis of statement. He further argued that the copy of statement had not been provided by the department but provided on 13/3/2009 whereas search was conducted on 28/08 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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