9911796707
TMI Blog2025 (1) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... idhyapith with which the appellant was unconnected at the relevant point of time. (ii) Statement of appellant was neither recorded in any proceedings u/s. 133A nor u/s. 131A of the Act in the case of the appellant and that this aspect would be relevant for considering nature and effect of the statement. (iii) In the Writ petition filed before the High Court, it was categorically stated in para (3) that impounded material was not provided though specifically requested by the Appellant to understand the context of questions asked and the nature of documents with reference to which questions were asked to him in the statement recorded in the course of survey in response to which his disclosure of undisclosed income was recorded and that this aspect has bearing in appreciating the appellant's submission that the survey team recorded questions and answers in their own way. (iv) The presence of Witness who happened to be chartered accountant at the time of recording statement cannot imply that the appellant was allowed to consult them. (v) The act of paying up tax in the immediately preceding year with a view to buy mental peace cannot be used to draw adverse inference in the yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e documents requested by the assessee or give an explanation as to why these documents could not be provided to the assessee. In response to the survey, the assessee confirmed that he had invested Rs. 22 crores in the names of family members, declaring it as undisclosed income for the financial year 2010-11. The assessee also offered the above income of Rs. 22 crores declared in the survey, in the return of income filed for A.Y. 2011-12. However, for the A.Y. 2012-13, although in the survey the assessee stated to have received undisclosed income of Rs. 14 crores from land dealings acting as a land broker, the Assessing Officer observed that the assessee failed to include this amount in his return of income filed for assessment year 2012-13, which declared an income of Rs. 94,19,670/-. The AO noted that while the assessee had admitted to earning Rs. 14 crores as undisclosed income during the survey from land broking, this amount was not disclosed in the A.Y. 2012-13 return. The assessee's retraction of his statement was based on his averment that the assessee was coerced into signing the statement during the survey and that no documentary evidence had been provided to substantiate t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The assessee submitted that he was not allowed to review or add a qualifying note to his statement made during the course of survey. The assessee also argued that the retraction of the declaration made during the survey was valid, as it was based on an understanding that the information was not supported by documentary evidence. Ld. CIT(Appeals) observed that the AO, had refuted these claims on the ground that the assessee had made a voluntary admission of the undisclosed income during the survey and had confirmed the statement in the presence of two Chartered Accountants. Ld. CIT(Appeals) observed that the assessee had disclosed the Rs. 22 crore income for A.Y. 2011-12 based on land dealings, and therefore, the admission by assessee for A.Y. 2012-13 that he was engaged in land dealings was consistent with the earlier admission and his involvement in land brokering. CIT(A) observed that the assessee had made a similar disclosure in his return of income for A.Y. 2011-12, where he had acknowledged unaccounted cash from land dealings, which reinforced the credibility of the survey team's findings that even in the present year, the assessee was engaged in land dealings as a broke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concrete to show that assessee was engaged in land broking. The Counsel for the assessee drew our attention to attachment / notice to the computation of income for the impugned assessment year, in which the assessee had specifically mentioned that from the impounded material received by the assessee as per the directions of the Hon'ble High Court, there is no document in the impounded material indicating that the assessee had earned income as a land broker. The Counsel for the assessee submitted that in the assessment order, no specific details of transactions undertaken by the assessee, name of buyer and seller, there was no reference of land which were sold, value of transactions and the brokerage amount etc. were not found on the basis of which the additions were proposed to be made. Further, the Counsel for the assessee submitted that so far as details of property as mentioned at question No. 10 of the statement taken is concerned, those properties pertained to a different assessment year and further, these properties were purchased / sold by other family members and not the assessee. Further, with regards to two properties mentioned at question No. 13, the assessee has alread ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Department and in respect to which specific properties, there is no specific details of land which was purchased and sold for which the assessee earned brokerage income and further, there is no mention of the value of transactions for which the assessee earned brokerage income. It is seen that the entire basis of making addition of Rs. 14 crores to the income of the assessee is on the basis of statement recorded under Section 131A of the Act, during the course of survey proceedings. It is a well settled law that no additions can be made only on the basis of statement of the assessee unless supported by incriminating evidence against the assessee. 10. It would be useful to reproduce the relevant extracts of decision in the case of DCIT vs. M/s. Real Strips Ltd. in ITA No. 2255/Ahd/2016 vide order dated 31.05.2018, wherein the ITAT made the following observations: "We also note that the statement u/s 133A was recorded on 21-01-2015, wherein, the excess production loss was observed. The same observations was applied to the A.Y. 2012-13 and accordingly, suppressed production leading to suppress sale was determined. In our considered view, the statement recorded during the F.Y. 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FAIRS DEPARTMENT OF REVENUE CENTRAL BOARD OF DIRECT TAXES Room No. 254/North Block, New Delhi, the 10th March, 2003 To All Chief Commissioners of Income Tax, (Cadre Contra) & All Directors General of Income Tax Inv. Sir Subject-: Confession of additional Income during the course of search & seizure survey operation -regarding Instances have come to the notice of the Board claimed that they have been forced to confess the undisclosed income during the course of the search & seizure and survey operations. Such confessions, if not based upon credible evidence, are retracted by the concerned assessee while filing returns of income. In these circumstances, on confessions during the course of search & seizure and survey operations do not serve any useful purpose. It is, therefore, advised that there should be focus and on collection of evidence of income which leads to information on what has not been disclosed or is not likely to be disclosed before the Income Tax Departments. Similarly, while recording statement during the course of search it seizures and survey operations no attempt should be made to obtain confession as to the undisclosed income. Any action on the ..... 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