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TMI Blog2022 (5) TMI 939X X X X Extracts X X X X X X X X Extracts X X X X ..... o what are these documents and what are the discrepancies found and confronted to the assessee. Hence, keeping in view the retraction of the assessee, the circular of the CBDT, non-availability of the relevant seized material, judgments of the various Courts with regard to the validity of the statement and validity of the retraction thereof, we hereby hold that the addition made based on the statement u/s. 132(4) cannot be sustained. Unexplained cash u/s. 69A - AO held that the assessee has not furnished any evidence to prove the status of cash flow in the entire family between period 31.03.2013 to 26.04.2013 as on the date of search and the amount found at the premises was added as undisclosed income of the assessee - HELD THAT:- We find that the cash in hand of Rs. 14,06,524/- has been determined by the AO who however chose to treat the cash of Rs. 4,58,700/- as undisclosed is contradictory as no evidence was found or could be gathered that the amount of Rs. 14,06,524/- stands spent or used for incurring any expenditure or for any other purpose. Since, the cash in hand has not been in dispute in the absence of any evidence contra, no addition is called for. Undisclosed j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd against the facts and circumstances of the case. 3. In ITA No. 4846/Del/2016, following grounds have been raised by the assessee: 1. That having regard to the fact and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Rs. 75,00,000/- only on the on the basis of alleged statement of assessee which was recorded at the time of search and has even being retracted on 09.07.2012 by the assessee. Thus the addition is not sustainable. 2. that having regard to the fact and circumstances of the case, Ld. CIT(A) has erred in law and on facts in making addition of Rs. 4,58,700/- on account of cash found at the time of search. 3. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in making addition of Rs. 5,27,375/- on account of jewellery found but not seized during the search. 4. The assessee is an individual and deriving income from business, house property and other sources. A search u/s. 132 of the Income Tax Act, 1961 took place in the business and residential premises of the assessee on 26.04.2012 in M/s. Ganga Realtors Group of cases. The assessee filed return o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the circumstances in which I was placed at that moment and in good faith only at your insistence and your advice relying on your considered opinion that that was the amount of leakage indicated from the seized material and your lure that if I surrender it for tax we will be spared the rigor of penalties imposable and liability from prosecution. I have no knowledge of any undisclosed income earned by me or my family members or the business concerns with which we are associated. In retrospect I wonder as to what material you could have found to demand from me a surrender of that magnitude. We are in the process of appreciating the copies of seized material to find it out for ourselves. I further require the copies of my statement and those off my family members and employees, recorded at the time the search seizure operations to appreciate the situation for which we have already applied and it will be only after the requisite exercise that I will be in a position to revert on the matter. 11. From the retraction letter, it could be observed that the assessee has submitted that the surrender was under duress and he has no knowledge of any undisclosed income earned by him. Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credible evidence. Such actions defeat the very purpose of Search/Survey operations as they fail to bring the undisclosed income to tax in a sustainable manner leave alone levy of penalty or launching of prosecution. Further, such actions show the Department as a whole and officers concerned in poor light. 2. I am further directed to invite your attention to the Instructions/Guidelines issued by CBDT from time to time, as referred above, through which the Board has emphasized upon the need to focus on gathering evidences during Search/Survey and to strictly avoid obtaining admission of undisclosed income under coercion/undue influence. 3. In view of the above, while reiterating the aforesaid guidelines of the Board, I am directed to convey that any instance of undue influence/coercion in the recording of the statement during Search/Survey/Other proceeding under the I.T. Act, 1961 and/or recording a disclosure of undisclosed income under undue pressure/coercion shall be viewed by the Board adversely. 13. The Hon'ble High Court of Delhi in the case of CIT Vs. Best Infrastructure (India) (P.) Ltd. 397 ITR 82 has held that statements recorded u/s. 132(4) of the I.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ha Arya and mother late Prem Lata Jain. Later he stated that cash belonged to Sh. Akshat Bansal and Smt. Alka Bansal submitting cash in hand available with them as on 31.03.2013. 18. The AO held that as per the cash in hand available in hands of entire family of the assessee as on 31.03.2013, the cash found physically should have been more than Rs. 4,58,700/-. 19. The cash in hand available as on 31.03.2013 as per the AO with the family members of the assessee was as under: i. Rishi Bansal Rs. 1,13,371/- ii. Alka Bansal Rs. 1,38,044/- iii. Akshat Bansal Rs. 8,74,356/- iv. Meetu Bansal Rs. 2,80,753/- 20. The AO held that the total cash in hand was Rs. 14,06,524/- as on 31.03.2013. The AO held that the assessee has not furnished any evidence to prove the status of cash flow in the entire family between period 31.03.2013 to 26.04.2013 as on the date of search and the amount of Rs. 4,58,700/- found at the premises was added as undisclosed income of the assessee. 21. We find that the cash in hand of Rs. 14,06,524/- has been determined by the AO who however chose to treat the cash of Rs. 4,58,700/- as undisclosed is contradictory as no evidence was found o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bullions is Rs. 4,57,650/- and 1447 gms of silver coins is Rs. 69,725/- was treated as undisclosed income. 25. We find that the assessee owns jewellery worth Rs. 60,000/- in the financial year 2006-07 which could prove that the assessee had jewellery of approximately 85 gms till the year 2007. The remaining 72 gms of jewellery has been acquired in a span of 5 years period which could be by the way of purchases or by the way of customary gifts. The gross total income of the assessee for Financial Year 2011-12 of Rs. 10,50,000/- and for the Financial Year 2012-13 of Rs. 7,00,000/-. The average price of the 72 gms of gold would be approximately Rs. 1,50,000/- over a period of five years. Keeping in view, the returned income and the general financial affairs of the assessee, customs practices of the geographical area and in the special peculiar circumstances of the case, we hold that the assessee can be deemed to have acquired 72 gms of gold by purchase and customary gifts. The circular of the CBDT and the various judgments of the Courts consider upto 100 gms of gold to a male member. Hence, keeping in view the entire facts and circumstances and in peculiarities of the case, we d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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