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TMI Blog2006 (12) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. JUDGMENT The judgment of the court was delivered by P. P. S. Janarthana Raja J.— These appeals are filed under section 260A of the Income-tax Act, 1961, by the Revenue against the order of the Income-tax Appellate Tribunal, Chennai, "D" Bench, dated March 17, 2006, in I. T. (SS) A. No. 116/Mds/2002 for the block period April 1, 1988, to March 18, 1999, I. T. A. No. 2270/Mds/2003 for the assessment year 1997-98 and I. T. A. No. 796/Mds/2004 for the assessment year 1997-98, raising the following common substantial questions of law : "1. Whether the statement made during the course of search under section 132(4) of the Income-tax Act, 1961, voluntarily by a person is admissible in evidence or not ? 2. Whether, on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appeal and directed the Assessing Officer to delete the addition of Rs. 23 lakhs. Aggrieved, the Revenue filed an appeal to the Income-tax Appellate Tribunal ("the Tribunal" in short). The Tribunal dismissed the Revenue's appeal and confirmed the order of the Commissioner of Income-tax (Appeals). (ii) Learned standing counsel appearing for the Revenue submitted that a mere denial of payment of on-money over and above Rs. 34 lakhs mentioned in the document, by filing an affidavit could not absolve the assessee from the consequences of the sworn testimony recorded under section 132(4) of the Act. Further it is submitted that the assessee had no case to retract that the on-money has not been paid later and also the assessee himself has ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pleted smoothly if he agrees that there is on-money payment of Rs. 23 lakhs. Hence, the assessee also admitted the same, without being aware of the consequences. Further, the assessee made a statement that he was physically and mentally nervous and did not know what he answered and also denied on February 8, 2001, that neither he nor any of his family members made any on-money payment. Further, it is seen from the record that the assessee is not the owner of the property and only his wife and children are the co-owners. Later, on January 4, 2001, all the three coowners have also categorically denied payment of any on-money to the seller over and above Rs. 34 lakhs mentioned in the registered document. Two statements were recorded from Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatement said to be recorded from the assessee was subsequently retracted and rebutted. The registered sale deed does not show any payment more than above what was disclosed. In the absence of any material, in our opinion, there cannot be any addition as undisclosed income. 5. Section 158BB of the Income-tax Act provides for computation of undisclosed income. According to section 158BB, undisclosed income shall be the aggregate of the total income of the previous years falling within the block period computed in accordance with the provisions of the Income-tax Act on the basis of the evidence found as a result of search or any other material or information available with the Assessing Officer and relatable to the evidence found during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id property situated at door Nos. 8 and 9, Arunachala Asari Street, Salem. The relevant assessment year involved in both these appeals is 1997-98 and the corresponding accounting year ended on March 31, 1997. The assessees in T. C. Nos. 2664 of 2006 and 2665 of 2006, filed returns of income admitting total income of Rs. 62,640 and Rs. 75,900, respectively, on March 31, 1999, for the assessment year 1997-98. The returns were processed under section 143(1)(a) of the Act and, subsequently, notices under section 148 were issued on the basis of the information received from the Deputy Director of Income-tax that a survey was conducted in the business premises of the assessees consequent to the information gathered at the time of search in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant materialsand facts and come to a correct conclusion that there is no material available for the Revenue to assess the same. Paragraph No. 6 of the order of the Tribunal reads as follows : "6. Now, coming to I. T. A. Nos. 2270/Mds/2003 and 796/Mds/2004, these appeals relates to the vendors of the property. The addition was made only on the basis of the statement said to be made by Shri Bhuvanendran on March 19, 1999. Admittedly, the said Shri Bhuvanendran retracted the statement. No other material was available to show that any on-money was paid. The Assessing Officer found that the property was located in a busy commercial locality and the market price is much more than the price quoted in the document. It is well-settled principles ..... X X X X Extracts X X X X X X X X Extracts X X X X
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