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TMI Blog2021 (9) TMI 885X X X X Extracts X X X X X X X X Extracts X X X X ..... coercion has been exerted during the confession statement of the assessee - HELD THAT:- CIT(A) discussed the evidentiary value as per Indian Evidence Act and reached to the conclusion that no retraction communicating to the Revenue Authorities was made and it is also evident from the record available that no threat or coercion had been exerted during the confession statement of the assessee. Even before us, the finding of the Id. CIT(A) could not be controverted by the Id. CIT(A) by bringing any contrary material on record, thus, we are in agreement with the Id. CIT(A) in observing that the evidence of testimony cannot be wiped out and does not become non-existent and therefore, this evidence can well be utilized to frame the assessment. Accordingly, we do not find any reason to interfere with the findings of the Id. CIT(A). Hence, the findings recorded by the Id. CIT(A) are confirmed. Therefore, last ground i.e. ground no.2 raised in the appeal of the assessee is also dismissed. Addition u/s 69C - unexplained expenditure - HELD THAT:- We find that the assessee made the payment by RTGS and the source of payment and destination can be found on the bank statement. Since the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount of unexplained investment without considering the facts and reasoning stated by the assessee. This action of AO which is further confirmed by CIT(A) is incorrect and illegal. 2. Your appellant craves leave to add to and/or to amend and/or to modify and/ to cancel any one or more grounds of appeal at any time before or at the time of hearing. The Revenue has raised following grounds of appeal: Whether on the facts and in the circumstances of the case, the Ld. CIT{A} was justified in deleting the addition made by AO u/s 69C of the I. T. Act 1961 of ₹ 70, 73,241/- on account of unexplained expenditure in view of Assessing Officer and even when no appeal was filed by assessee against this addition as is evident from the grounds of appeal. {i} Whether on the facts and in the circumstances of the case, the Ld. CIT{A} was justified in deleting the addition made by AO u/s 69B of the f. T. Act 1961 of ₹ 11,30,80,000/- on account of unexplained and undisclosed investment by ignoring the facts of the case and enquiry made by AO. (ii) Whether on the facts and in the circumstances of the case, the Ld. ClT{A} was justified in ignoring the fact that assessee failed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to valuation cell. The appellant craves leave to add to or deduct from or amend the above grounds of appeal. Assessee's appeal bearing ITA No.899/Ind/2018 2. First ground raised by the assessee is with regard to the addition made by the AO u/s 69 on account of unexplained investment at ₹ 50,000/-. Facts as culled out from the orders of the Revenue Authorities are that during the course of assessment proceedings it was found that the assessee has made the cash payment of ₹ 50,000/- out of the books. During the course of assessment proceedings as well as appellate proceedings, the assessee failed to explain the source of investment. Even before us, the Id. Counsel for the assessee could not bring any contrary material to controvert the findings of the Revenue Authorities. In view of above, the addition made by the AO amounting to ₹ 50,000/- is confirmed. Therefore, the first ground raised in the appeal of the assessee is dismissed. 3. Last ground i.e. ground no.2 raised in the assessee's appeal relates to confirmation of the addition of ₹ 70,00,000/- u/s 69 on account of unexplained investment. Facts as culled out from the orders of the Revenue Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make use of such 'Confessional evidence as long as it is proved that' it was so obtained by operation or under circumstances which indicate an inference of such operation. The confessions are to be considered as a whole and not in any edited form. In the case of the assessee there has been no allegation of any coercion. 4.2.1 Even retracted confession was held to be binding) reference is made to the case of Surjit Singh Chhabra (1997) ISCC 508), S09(SC) wherein petitioner retracted his confession given to the customs officials, yet it was held to be binding. The Indian Law on confession can be understood from the following passage in a decision under criminal law in State of V.P. v. Boota Sinqh, AIR J 978 se 1770. "As, however, the confession was a retracted one, it could be acted upon only if substantially corroborated by independent circumstances. It is not necessary that a retracted confession should be corroborated in each material particular; it is sufficient that there is a general corroboration of the important incidents mentioned in the confession". In the instant case the confession was correlated to the material found during the course of Survey. 4.2.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot indicate any sort of pressure or coercion but alert presence of mind and clarity of thought of the deposing assessee. By this statement, it was categorically and unequivocally stated that the concern was not maintaining proper books of account. These facts were within the exclusive knowledge of the appellant, who voluntarily stated the same. Therefore, with these facts in exclusive knowledge domain, once disclosed voluntarily in full consciousness, were binding on the assessee, as the contrary could not be proved. Further, the Honble IT AT, Pune Bench, in the case of Chander Mohan Mehta v . ACIT(Inv,) [1999J 65 TT) (Pune) 327, has come to the conclusion that seized documents along with the statement recorded under section 133A constituted valid piece of evidence, which could be used in assessing undisclosed income. However, the two taken together have to be read as a whole. In the instant case, the assessee has clearly linked the non availability of cash of concern to undisclosed income in statement u/section 133A of the Income Tax Act, 1961 and hence, such statement is binding on the assessee. 4.2.4 The return filed, before the disclosure made during the course of survey. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Id. CIT(A). 6. We have heard rival contentions of both the parties and perused material available on record. We find that during the course of survey, it was found that assessee had made the cash payment of ₹ 70,00,000/- to the land owners against the purchase of their land. The date of registry was 22/01/2015 and during the course of survey, it was found that there was no cash available on 22/01/2015. A statement of Shri R. C. Mittal, Partner of the Firm was recorded wherein Shri R. C.Mittal admitted an additional income of ₹ 70,00,000/- on this account. During assessment proceedings, a detailed questionnaire was issued u/s 142(1) of the I.T. Act to the assessee on 13.11.2017. The assessee submitted vide reply dated 08.12.2017 that during post survey proceedings, a sum of ₹ 70 lakhs was offered and tax due thereon has already been paid and challan already submitted. We find that having discussed facts and circumstances in the light of the judicial pronouncements (supra), Id. CIT(A) discussed the evidentiary value as per Indian Evidence Act and reached to the conclusion that no retraction communicating to the Revenue Authorities was made and it is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons associated with the work of registration of property like advocates and stamp vendors. Shri Mustaq Khan is one of the vendors who is well acquainted for last several years. It was submitted that the registration' of documents was compelled to be preponed to 22/01/2015 due to personal reasons and Shri Mustaq Khan extended helping hand by lending stamps on credit on 22/01/2015. The consideration of stamps was repaid on 23/01/2015. However, the Assessing Officer ignored this practical aspect and added ₹ 70,73,241/-. We find that the assessee made the payment by RTGS and the source of payment and destination can be found on the bank statement. Since the assessee purchased the stamp and made the payment through RTGS then there is no question of considering the same has unexplained investment. Further, the AO issued the summon u/s 131 of The Act to the stamp vendor and by issuing the summon, the stamp vendor becomes the witness of the Revenue and thus, it was the duty of the Assessing Officer to collect the information from the stamp vendor and confront to the assessee but the Assessing Officer failed to gather the information. Even before us, the Id. CIT-DR could not con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the third persons who are not having any link with the transactions. Since Shri Nagendra Singh Chauhan is nothing to do with the transaction, his statement has no evidentiary value, The department has carried out the survey at the business premises of the appellant on 15/09/2017; The department has used all the means available and verified each and every document related to the land but no evidence of whatsoever regarding the on-money was found. When not evidence regarding payment of on-money was found during the course of survey, the AO is not justified in making the addition during the course of assessment proceedings. The land is the capital asset and the capital gain is taxable in the hands of sellers. The AO has not brought on record that the sellers has paid the capital gain tax as per ₹ 60, 00, 00/ - per big ha. Therefore, the addition made by the AO amounting to ₹ 11,30,80,000/-- is Deleted. Therefore, the appeal on this ground is Allowed." 11. Being aggrieved, the Revenue is in appeal before this Tribunal. Before us, the Id. CIT-DR relied upon the order of the Assessing Officer. Per contra, the Id. Counsel for the assessee relied on the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king payments to sellers over and above the registered value. Further, we find that the assessee had purchased the land on its guideline value and the Assessing Officer did not adversely comment upon, thus, this fact is in front of Assessing Officer since the beginning that the transaction value is equivalent to the guideline value. Further, it is not the case that investment was not fully recorded in the books of account and therefore, the onus of proof is on Revenue to prove that the assessee made some unaccounted investment in purchase of property. Our Observations are supported by the ratio laid down in the following judicial pronouncements: 1. Umacharan Saha & Bros Co. vs CIT 37 ITR 21 (SC) 2. K.P. Varghese vs ITO (1981) 131 ITR 597 (SC) 3. Dhakeshwari Cotton Mills Ltd. vs CIT (1954) 26 ITR 775 (SC) 4. Dhiraj Lal Girdharilal vs CIT (1954) 26 ITR 736 (SC). 13. In view of the above facts in the light of the aforesaid judicial pronouncements, we are of the view that the Assessing Officer failed to discharge his onus and simply on guess work, presumption and suspicion, the addition in this regard had been made. The allegations of the Assessing Officer were merely without ..... X X X X Extracts X X X X X X X X Extracts X X X X
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