9911796707
TMI Blog2021 (9) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... any other material was found which is unexplained. A perusal of the assessment order as well as the order of the CIT(A) shows that no material pertaining to the assessee was found during the search on 15th December, 2016 showing the existence of any unexplained investment or income or expenditure pertaining to the period from 01.04.2010 to 14th December, 2016. Hon ble Supreme Court in the case of CIT vs. Mantri Share Brokers (P) Ltd.[ 2018 (7) TMI 200 - SC ORDER] has held that no addition u/s 69B can be made in the hands of an assessee where except statement of the Director of the assessee company offering additional income, there was no other material either in the form of cash, bullion, jewellery or document or in any other form to justify such additional income. Accordingly, the SLP filed by the Revenue against the decision of Hon ble Rajasthan High Court was dismissed. Similarly, the Hon ble Allahabad High Court in the case of CIT vs. Dilbagh Rai Arora [ 2019 (3) TMI 1006 - ALLAHABAD HIGH COURT] , has held that merely because during search the assessee surrendered an amount in stipulation that details of the same would be given in due course of time, but, no such assets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crafts. During the search on 15th December, 2016, the statement of the partner was recorded and no additional income was disclosed. It was submitted that search was conducted at the premises of the partnership firm M/s Vision Exports where both the sons of the deponent Mr. Danish Ali and Mr. Tariq Ali are partners. Mr. Tariq Ali in his statement recorded u/s 132(4) of the Act had in apprehension of any possible act of error and omission and under mistaken belief of law and fact, had offered income of ₹ 11 crores pertaining to his partnership firm M/s Vision Exports, his brother Mr. Danish Ali and M/s Kohinoor Crafts. However, the said disclosure was not supported by any cogent evidence, but, an act of surmise and conjectures. It was submitted that Mr. Tariq Ali was not in any manner connected with the affairs of M/s Kohinoor Crafts and was neither competent nor authorized to make any disclosure on behalf of M/s Kohinoor Craft. It was argued that subsequent to search on 15th/16th December, 2016, in response to the summons issued u/s 131(1A) of the Act, the deponent in apprehension of any possible act of error and omission and under mistaken belief of law and fact had made the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in 248 ITR 782 wherein it is held that retraction of statement made voluntarily is not sufficient and the burden is on the assessee to establish that earlier admission is wrong. 7. Aggrieved with such order of the CIT(A), the assessee is in appeal before the Tribunal by raising the following grounds:- 1. That the Ld. CIT(A) has erred on facts and under the law in confirming the addition of ₹ 2500000/- Under section 69C of the Income tax Act, 1961 inter alia because; (i) The appellant firm had not offered any undisclosed income in statements u/s 132(4) of the Income-tax Act, 1961 during the course of search. (ii) Any ambiguous, undefined admission of income of ₹ 25,00,000/- in response to summons u/s 131(1A), retracted later on, on account of any possible income/ expenditure or investment of the appellant firm not found recorded in its books of account for the period 01.04.2010 to 14.12.2016 cannot be added to the total income of the appellant firm for A.Y 2017-18 without any evidence in possession of the department. (iii) Provisions of section 69C of the IT Act in terms had no application to the facts of Appellant s case. 2. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Referring to the decision of the Hon ble Allahabad High Court in the case of CIT vs. Dilbagh Rai Arora, reported in 263 Taxman 30, he submitted that the Hon ble High Court in the said decision has held that merely because during the search the assessee surrendered an amount in stipulation that details of same would be given in due course of time, but, no such assets were ever found/identified by authorities, no addition could be made to assessee s income. 10. So far as the various decisions relied on by the AO and CIT(A) are concerned, he submitted that all those decisions are distinguishable and not applicable to the facts of the present case. In all those cases, the admissions were corroborated with incriminating documents found or impounded whereas in the instant case, nothing was found except the statement of the assessee. Referring to the decision of the Hon ble Supreme Court in the case of Satinder Kumar (HUF) vs. CIT, reported in 106 ITR 64, he submitted that the Hon ble Court has held that admission made by an assessee constitutes a relevant piece of evidence, but, if the assessee contends that in making the admission he had proceeded on a mistaken understanding or on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee is clearly an afterthought and, therefore, is not acceptable. It is the submission of the ld. Counsel that no material pertaining to the assessee was found during the search on 15th December, 2016 showing the existence of any unexplained investment which is evident from Panchnama. Further, no admission was made in the statement recorded u/s 132(4) and the admission made in the statement recorded u/s 131(1A) has no evidentiary value and the onus is upon the Revenue to bring corroborative material/evidence on record either during the search or post search proceeding to prove the existence of any undisclosed income. It is also his submission that the statement mentions that the income pertains to the period 01.04.2010 to 14th December, 2016 and, therefore, the entire addition should not have been made in this year without bringing any material on record to prove that this income pertains to the impugned assessment year. Further, nothing has been brought on record to prove the contents of the affidavit retracting the erstwhile statement. 11.1 I find some force in the above argument of the ld. Counsel. It is an admitted fact that apart from the statement recorded u/s 131(1A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Dilbagh Rai Arora, reported in 263 Taxman 30, has held that merely because during search the assessee surrendered an amount in stipulation that details of the same would be given in due course of time, but, no such assets were ever found/identified by the authorities, no addition could be made to assessee s income. The relevant observation of the Hon ble High Court reads as under:- 14. We have perused the record of the case. The respondent-assessee has filed his return on 30.10.2006 and offered ₹ 24 crores for taxation. Assessee has filed the return and disclosed income from house property, income from other sources and loss on Long Term Capital Gain on the sale of immovable property. The assessee has further disclosed profit from trading in commodity exchange and has also filed evidence in support of his claim. The assessing authority has added back ₹ 7 crores only on the ground that at the time of survey dated 1.9.2005 the assessee had made a disclosure of sum of ₹ 31 crores for taxation in the year under consideration. But, no incriminating materials and documents had been brought on record for addition of such amount. The CIT(Appeals) while allowing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d threadbare and thereafter, reasons for addition have been given. This approach is evident from the fact that Assessing Officer has not mechanically made addition of ₹ 9 lacs which was disclosed in the statement under Section 132(4) of Act, 1961 but actual addition is only ₹ 8,12,360/- which shows due application of mind on the part of Assessing Officer, which has been affirmed by Tribunal. 20. In the above judgment the Hon'ble Court has come to the. conclusion that the addition was not made merely on the statement made but after looking into the explanation, books of account and other material placed before him and then made the certain addition. The case in hand, the addition have only been made on the basis of statement given on 6.10.2005. 21. Therefore, the case law relied upon by the Appellant is of no help. The case in hand the assessee-respondent has given documents, material and explained threadbare with regard to amount of ₹ 24 crores but the assessing authority has mechanically made the addition of ₹ 7 crores and added back the same amount only on the basis of statement having been made by the assessee which is not permitted. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
