9911796707
TMI Blog2022 (9) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. The Disclosure was neither voluntarily made nor based in any incriminating material relating to the assessee found in the search. As such, the confirmation of addition by the Ld. CIT(A), Central-I, Kolkata is arbitrary, unjustified and bad in law and need to be deleted. 3. For that the appellant reserved the right to adduce any further ground or grounds, if necessary, at or before the hearing of the appeal. 3. The only effective issue raised in ground nos. 1 and 2 is against the confirmation of addition of Rs. 89,13,710/- by Ld. CIT(A), Central-I, Kolkata as made by the AO on account of undisclosed income surrendered by the assessee at the time of search. 4. Facts in brief are that the search action u/s 132 of the Act was conducted on 16.09.2009 at the residential and business premises of the assesseeand group. The assessee filed return of income declaring total income of Rs. 6,30,150/-. The assessment u/s 143(3) of the Act was framed vide order dated 31.12.2011 assessing total income of Rs. 1.06,30,150/- by making an addition of Rs. 1.00crore was made on account of undisclosed income. The facts underlining the above addition of Rs. 1.00crore was that during the course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has brought no material on record to substantiate his claim. As the seized documents were recovered from the residence of the assessee, the onus was on him to establish that such documents did not belong to him or that they pertained to the other persons. And, as the assessee has failed to discharge his onus, the presumption of Section 292C shall certainly operate against him. The AO was justified in holding that the seized documents BSA/1 belong to the assessee and that the content recorded therein was true and correct; and consequently, the commission income of Rs. 89,02,110/- recorded therein was assessable in the hands of the assessee. I am therefore not impressed with the argument that no incriminating material was found in the search insofar as the addition of Rs 89,02,110/- is concerned. The addition of Rs. 89,02,110/- made on the basis of the seized documents BSA/1 is confirmed." 6. The ld. Counsel for the assessee submitted before us at the time of hearing that the addition on the basis of mere disclosure made in the post search enquiry on 14.11.2009 when the search was conducted on 16.09.2009 is arbitrary, wrong and bad in law. It is settled law that no addition cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed following the said decision of the Co-ordinate Bench. 7. The Ld. D.R. on the other hand, strongly objected the arguments as put forward by the Ld. A.R by submitting that the annexure-05 of the disclosure signed by the assessee though the disclosure was made by Shri Sombhunath Agarwal on behalf of the assessee and other individuals/entities in the group. The Ld. D.R submitted that it is immaterial whether the disclosure was made after approximately two months from the date of search in post search proceedings. The Ld. D.R. submitted while defending the assessment order and appellate order that the addition was based upon the BSA/1 which contained the particular of said income and it was admitted that it is being a commission income of the assessee on supply of onion to Bangladesh. The ld DR argued that nevertheless admittedly, the said document could not be traced in the assessment folder at the time of joint inspection of assessment records on 28.12.2021 which was carried out on the direction of the Bench, the adverse inference cannot be drawn against the assessee. The Ld. D.R, therefore, submitted that the assessee should not be allowed the benefit of non-production of said do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated to the belonging to the assessee but the undisputed position is that no addition can be made on the basis of ad hoc disclosure made during the course of search or post search when there is no corroborating evidence. In the present case only BSA/1 was seized during the search which was denied by the assessee in the assessment proceedings. Under these circumstances, we are of the considered view the assessee cannot be slapped with tax liability based upon the information contained in the document which could not be produced before the Bench despite the specific direction. We note that the search team has not found any cash, money and not other assets corroborating the said addition in the hands of the assesse. Therefore presumption of section 292CA of the Act cannot be applied in this case. So far as the another plea of the income tax authorities is concerned that the retraction was made only in the return of income, we are not satisfied with the said plea as the assessee has retracted the disclosure in the return of income itself and the case is supported by the decision of Co-ordinate Bench in the case of Shri Lalji Khimjibhai Patel (supra) the operative part is extracted b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notice of higher authorities. To our mind, reasoning given by the ld.Revenue authorities are not sufficient for making addition of Rs.80,69,186/- in the hands of the assessee. The finding of the ld.CIT(A) is that the alleged affidavit is being filed after 25 months i.e. before the AO and not before the officer who have recorded his statement or senior officers. It is pertinent to observe that after search nothing remained pending for adjudication before the investigating authorities. Their role is to investigate the assessee and collect material and pass on to the AO concerned. They did not pass any order which can be executed for effecting the recovery of taxes. Thus, the executable order for making any assessee liable to pay tax is the assessment order. The role of the AO is of a quasi-judicial officer who prosecute as well as adjudicate. Therefore, the right forum before whom an objection can be made is the AO. If some proceedings remained open before the investigation wing, and their adjudication give rises to refund of tax or collection of tax, probably, the Revenue authorities would be justified in making such observation.Passage of time before passing of the assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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