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TMI Blog2022 (11) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... totally unjustified on facts as also in law and may Kindly be deleted. 3 0 The Id CIT(A) erred on facts as also in law in retaining the addition of Rs.83,03,000/-on the alleged ground that the appellant has retracted from the income disclosed during the course of search which was without filing any affidavit or letter. The addition retained is totally unjustified on facts also in law and may kindly be deleted 4.0 Your Honor's appellant craves leave to add, amend, alter, or withdraw any or more grounds of appeal on or before the hearing of appeal. The 1st issue raised by the assessee is that the learned CIT-A erred in confirming the addition made by the AO for Rs.16.97 Lacs on account of unexplained cash found during the search proceedings. 3. Briefly stated facts are that the assessee in the present case is an individual who was subject to search and seizure operation under section 132 of the Act dated 30 May 2012. In the course of search proceedings, the cash of Rs.16.97 Lacs was found. In this regard the assessee submitted that amount of cash represents the cash withdrawal of various family members towards the household expenses. 4. However, the AO was not satisfied wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by way of cash. According to the assessee all the transactions relating to the immovable properties were duly accounted/ disclosed by the respective family members. As such a detailed explanation was submitted to the AO during the assessment proceedings vide letter dated 16-7-2015 with respect to the documents seized during the search and seizure operation and no defect was pointed out by the AO. Thus, the assessee submitted that no addition on account of cash found during the search and seizure operation is warranted in the given facts and circumstances. 7. However, the learned CIT-A disregarded the contention of the assessee by observing that: After taking into consideration the overall facts of the submission, in my opinion, the documents seem to have been prepared by the AR of the assessee as an afterthought just to mislead the AO. If he was having genuine evidence in support of the submissions, he should have furnished copy of income tax returns duly accompanied by the above evidence in the case of Smt. Chandrikaben Ramchandani. The submission did not have any supporting independent evidence such as details of income tax returns filed upto the A.Y. 2011-12 accompanied b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1-12 before the date of search, wherein, she has enclosed the financial statements, i.e., balance sheet, profit & loss account and capital account. Summary of cash balance as per the said financial statements is as under: Assessment Year Return of Income filed on Returned Income Cash Balance as per financial statement 2008-09 31-03-2010 1,20,199 15,84,640 2009-10 31-03-2010 1,58,690 17,13,330 2010-11 30-03-2012 1,64,550 18,47,882 2011-12 30-03-2012 1,69,480 19,87,359 In view of the above, the appellant consistently held the cash, which is verifiable from the financial statements forming part of the returns of income filed u/s.139 of the Act with the jurisdictional assessing officer. Therefore, allegation of the AO that the appellant was having no basis to explain the cash found is devoid of facts. 11.2 Furthermore, we find that the necessary details about the return of income, computation of income, balance sheet, profit and loss account and capital accounts for the assessment year 2008-09 to 2011-12 of Shrimati Chandrikaben Ramchandani are placed on pages 45 to 58 of the paper book wherein the availability of cash in her hands was duly disclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was noticed that during the course of search the assessee recorded statement u/s. 132(4} wherein he made a candid statement for making disclosure of unaccounted income of Rs.1.00 crore on account of land transactions held in cash. The statement of the assessee was based on the documents seized from his premises and marked as Annexure-A2. This statement was also subsequently confirmed in the statement of Shri Tharachand B Ramchandani. Further a letter dated 14.09.2012 was filed voluntarily to this effect by the assessee. The retraction was made without proving that it was recorded under any sort of pressure or coercion or threat. The assessee replied all the questions in his statement u/s.132(4). The issue is settled in the decisions discussed by the AO in the assessment order. The facts in the case of Kamleshbhai B Kandoi (supra) are by directly applicable to the facts of the case of the appellant. The AR of the assessee did not furnish any material evidence to establish that the disclosure of the unaccounted income was not based on the seized incriminating material in the possession of the AO. His; contention is purely devoid of any substance. 17. Being aggrieved by the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee has retracted from the disclosure statement without furnishing any letter or the affidavit. However we disagree with the finding of the AO on the reasoning that the assessee has retracted his earlier statement by way of sworn affidavit dated 3rd February 2015 which is placed on pages 35 to 37 of the paper book. 20.2 Besides the above we note that the disclosure was made by the assessee for Rs.1 crore but there was no reference made by the assessee with respect to any undisclosed income of the assessee. Thus the question arises whether any addition can be sustained merely on the basis of the statement furnished during the search proceedings. In this regard we note that CBDT vide its instruction F.No.286/2/2003- IT (Inv. II), dated 10-3-2003 has discouraged its officers to make any addition based on the statement until and unless it is corroborated by any tangible material. The relevant extract of the CBDT circular reads as under: "Instances have come to the notice of the Board where assessees have claimed that they have been forced to confess the undisclosed income during the course of search and seizure and survey operations. Such confession, if not based upon credibl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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