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TMI Blog2024 (5) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... ified to do homework after search and arrive at a correct figure for offer in return. Had the correct figure been higher than surrender, the AO would have been entitled to assess more and if it is lower, the AO must assess only lesser amount. This is for the reason that under the scheme of Income-tax, only correct income has to be taxed. We find that the CBDT instruction dated 10.03.2003 is clearly placing restrictions in stricter terms at both levels, namely (i) while recording statements during the course of search/survey, no attempt should be made by search/survey authorities to obtain confession as to the undisclosed income, and (ii) while framing assessment, the AO should rely only upon the evidence/material gathered during the course of search/survey. Further, various judicial rulings of different courts, as filed by Ld. AR in Case Law Paper-Book, also carry a view that no addition can be made on the basis of mere surrender made during survey/search unless the same is corroborated by some tangible evidence. We thus find no merit in the addition made by revenue authorities after appreciation of the factual matrix of present case in the light of CBDT Instruction as well as judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Precisely the AO has noted that during the course of search proceeding, the statements of assessee were recorded and he was confronted with the seized documents. The AO has also re-produced the statements of assessee. The AO noted that in reply to Q.No. 13 to 15, the assessee admitted/surrendered undisclosed income of Rs. 5,00,00,000/- in his own hands and family members. The assessee further agreed that the tax on such undisclosed income of Rs. 5,00,00,000/- shall be paid. The assessee also stated that he will furnish head-wise and year-wise break-up after going through seized documents. The AO further noted that the assessee was not able to explain all seized documents and considering the unverifiable nature of documents owing to limitations during search proceeding, the assessee was given an opportunity u/s 132(4) for quantification of concealment. Then, the assessee himself preferred to surrender additional income of Rs. 5,00,00,000/- in statements. Thereafter, during assessment-proceedings, opportunities were given to the assessee to prepare statement of affairs and explanation and for that matter the copies of all seized documents were also provided to assessee. However, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Departmental authorities, merely not disclosed with the return of income; iii. From record, it is impossible to hold that any threat or coercion has been exerted during the confession statement of the assessee; iv. Irrespective of the form or validity of the voluntary disclosure statement of the deposition taken from the assessee on 07.01.2016, the evidence of testimony cannot be wiped out and does not become non-existent and this evidence can well be utilized to frame the assessment on that basis. v. Shri Ved Prakash Goyal in his sworn statement recorded on oath on 07.01.2016 has admitted undisclosed income of Rs. 5,00,00,000/- of the entire Goyal Group, however, has only made disclosure of Rs. 2,36,68,100/- and the AO has made total addition on the basis of incriminating document to the tune of Rs. 86,63,071/- leaving a balance of Rs. 1,76,68,829/-. In view of the above position, the appellant s unsuccessful attempt to retract from the disclosure is untenable being an after-thought and is rejected. Therefore, the additions made by the AO amounting to Rs. 1,76,68,829/- is confirmed. Therefore, the appeal on this ground is dismissed. 6. Ld. AR for assessee drew us to the orders o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition on the basis of mere surrender during search though he is making a bald statement that the addition is supported by seized documents. The fact is that the addition has no evidence or document, it is just mathematical or arithmetical difference. Such addition, which has no corroborative or supportive evidence, cannot be made as per numerous decisions rendered by courts, copies of certain judgements have been filed in the Paper-Book of Case-laws. Ld. AR submitted that the CBDT, which is highest authority in the scheme of Income-tax u/s 116, has also issued Instruction dated 10.03.2003 binding upon authorities, which clearly gives very same direction: (iv) Lastly, Ld. AR also resisted assessee s stand from a different angle. He submitted that from the statements, it is very much clear that the assessee made a lump sum/ad hoc surrender of Rs. 5,00,00,000/- for himself and his family members. Now, even if the authorities stuck to the figure of Rs. 5,00,00,000/-, which though is not valid, how is AO justified in making addition of difference of Rs. 1,76,68,829/- in assessee s hands alone? Ld. AR strongly contended that the impugned addition made in assessee s hands is very much ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere appears no evidence for the impugned addition made by AO except the assessee s statement during search forming basis of the impugned addition. Ld. DR reiterated Revenue s stand that the addition is very much based on documents found during search. We, however, notice from a perusal of statements recorded u/s 132(4) duly extracted by AO in assessment-order itself that the assessee surrendered a figure of Rs. 5,00,00,000/- and that too in his own hands as well as family member s hands while agreeing to give year-wise/assessee-wise chart subsequently. Thus, the figure of Rs. 5,00,00,000/- cannot be said to be a final figure, it is in the nature of lump sum, an ad hoc figure. The assessee is very much entitled and justified to do homework after search and arrive at a correct figure for offer in return. Had the correct figure been higher than surrender, the AO would have been entitled to assess more and if it is lower, the AO must assess only lesser amount. This is for the reason that under the scheme of Income-tax, only correct income has to be taxed. On a careful reading of para 13.5 of assessment-order, re-produced earlier, one can find that the AO has himself admitted that he pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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