9911796707
TMI Blog2018 (4) TMI 1841X X X X Extracts X X X X X X X X Extracts X X X X ..... ived back given in earlier year and surrendered in Assessment Year 2013-14. 3. Under the facts and circumstances of the case the learned CIT (A) has erred in relying in the decision of Ravi Matur & Others of 2000 instead of Pullanguegode Rubber & Produce Co. Ltd. vs. State of Kerala 91 ITR 18 (Supreme Court). 4. The assessee craves your indulgence to add amend or alter all or any grounds of appeal before or at the time of hearing. Ground No. 1 is regarding validity of assessment order passed under section 143(3) read with section 153B(1)(b) of the I.T. Act. 2. At the time of hearing, the ld. A/R of the assessee has stated at bar that the assessee does not press ground no. 1 and the same may be dismissed as not pressed. The ld. D/R has raised no objection if the ground no. 1 of the assessee's appeal is dismissed as not pressed. Accordingly, ground no. 1 of the assessee's appeal is dismissed being not pressed. Ground Nos. 2 & 3 are regarding addition of Rs. 1,60,00,000/- on account of advances given for purchase of land and disclosed in the statement recorded under section 132(4) of the Act but was not offered to tax. 3. There was a search and seizure operation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... challenged the action of the AO before the ld. CIT (A) and reiterated his contention as raised before the AO. However, the ld. CIT (A) was not impressed with the contention of the assessee and held that the assessee has not produced any supporting evidence of refund of the said amount of Rs. 1,60,00,000/-. Further, the ld. CIT (A) was of the view that the assessee did not file any retraction letter immediately after the search and seizure operation but the assessee has claimed so only in the return of income filed after lapse of one year. Thus the ld. CIT (A) has confirmed the addition made by the AO. 4. Before us, the ld. A/R of the assessee has submitted that the search and seizure action was continued for 2 days and until and unless the search party obtained the surrender from the party of a sum of Rs. 11,25,00,000/- the search operation continued. The ld. A/R has thus submitted that in those facts and circumstances it was not possible to state each and every fact regarding the transactions recorded in the diary which is seized material. However, once the assessee has realized that out of the total advances of Rs. 11,25,00,000/- the assessee has already received a sum of Rs. 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned to whom the advances were given and subsequently the amounts were refunded by these two persons to the assessee, then without considering the said evidence filed by the assessee and without conducting further enquiry by the AO to controvert the evidence filed by the assessee, the addition made by the AO is not justified. The ld. A/R has submitted that the AO can very well doubt the evidence tendered by the assessee on affidavit but in the absence of any contrary finding or material brought on record, rejecting the said evidence is not legal and proper and, therefore, the addition made by the authorities below without giving a finding that the affidavits and facts brought on record are incorrect, the addition is not sustainable. The ld. A/R has further submitted that the ld. CIT (A) has placed reliance on the decision of Hon'ble Jurisdictional High Court in the case of Ravi Mathur & Others in DBIT Appeal No. 63, 65, 66, 69, 70, 74, 77 and 133 of 2002. Whereas the said decision is not applicable on the facts of the case of the assessee as the assessee has not disputed the entries found in the seized material but the assessee has only explained the source of the amount given as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chase of land and neither the deal was completed nor the amount was received back. Thus the assessee has surrendered this amount by explaining the fact that the assessee did not receive back the amount till the date when the statement was recorded on 23rd May, 2013. Hence the subsequent stand of the assessee that the assessee received back the amount of Rs. 1,60,00,000/- on 20th April, 2013 is nothing but an after-thought to avoid the due tax. The ld. D/R has further contended that the assessee even after the statement recorded under section 132(4) on 23rd May, 2013 never retracted the said admission and surrendered till the filing of the return of income on 13th September, 2014. Therefore, there was a gap of more than one year between the statement recorded under section 132(4) and the retraction of the admission in the return of income filed by the assessee. He has relied upon the orders of the authorities below. 5. We have considered the rival submissions as well as the relevant material on record. The assessee in his statement recorded under section 132(4) on 23rd May, 2013 has admitted undisclosed income of Rs. 11,25,00,000/- on account of advances given to various persons fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is as under : " Surrender of Rs. 11.25 crore :- That during the course of search and statements u/s 132(4) of the Act the assessee has admitted to surrendering an income of Rs. 11.25 crore, these surrender was made on the following grounds :- S.No. Particulars Amount 1. Cash Seized from the Residential premises of the assessee 1.70 crore 2. Advance given as per Page No. 7 of Annexure AS-1 exhibit -1 as on 31.03.2013 1.60 crore 3. Advance given to various persons as per Annexure AS 1 Exhibit-2(6.45 crore - 1.60 crore) 4.85 crore 4. Amount surrendered as per unexplained jewellery found at the residential premises of the assessee 1.50 crore TOTAL 9.65 Crore Out of the total amount of Rs. 11.25 crore surrendered by the assessee the amount shown in point no. 2 of the table above, the assessee has given advance of Rs. 1.60 crores to one Mr. Hanuman (75 lacs) and Mr. Radheyshyam (85 lacs) these advances are given before 31.03.2013 as stated in page no. 7 of the AS-1, Exhibit-1, and the search was conducted on the residential premises of the assessee on 23.05.2013, in-between these two dates the assessee has received back these amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2013 in respect of advance of Rs. 75,00,000/- given to Shri Hanuman and 8th March, 2013 regarding advance of Rs. 85,00,000/- given to Shri Radhyshaym. In the statement recorded under section 132(4), the assessee explained that these amounts were given as advance for purchase of land from these two persons. This fact of giving the advances for purchase of land is not in dispute. The AO has accepted that the advances were given for purchase of land. However, the transaction of purchase of land from these two persons could not be materialized and the AO has not disputed this fact that the transaction of purchase of land from these two persons was finally not fructified and, therefore, the consequent effect would be return of these amounts by these two persons to the assessee. The refund of the amount in any case is a necessary corollary when the land deal was not successful. The only fact which can be doubted by the AO is the time of refund of the said amount. The assessee produced the affidavits of these two persons in support of the fact that these amounts were repaid by these two persons on 20th April, 2013. For ready reference, we reproduce the affidavits filed by these persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, in the absence of any evidence in support of the claim that the amount found recorded in the seized material was in thousands and not in lacs, the Hon'ble High Court has rejected the retraction made by the assessee. In the case in hand, the assessee never disputed the amounts or entries recorded in the seized material but the assessee has subsequently explained and brought on record the fact that out of the total amount of Rs. 11,25,00,000/-, a sum of Rs. 1,60,00,000/- given as an advance during the financial year 2012-13 relevant to the assessment year 2013-14 was received back by the assessee on 20th April, 2013 and, therefore, the said amount was available with the assessee for giving advances during the year under consideration. Therefore, this stand of the assessee is not disputing the entries in the seized material and further the assessee has filed the evidences in support of the fact that the said amount was received back by the assessee. Since these transactions are unaccounted transactions and only found during the course of search and seizure operation, therefore, there cannot be any other evidence in the shape of entries in the books of accounts except the persons co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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