9911796707
TMI Blog2025 (3) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... d/concluded year, therefore, we find no basis in upholding the additions made by the AO u/s 68 and disallowance made u/s 37(1) of the Act in the absence of incriminating evidence found during the search. Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing in the appeal filed by the revenue was fixed before the Hon'ble Tribunal on 06.08.2024, the assessee approached a counsel in the third week of July, 2024 to represent the matter before the Hon'ble Tribunal on 06.08.2024. 5) I say that the counsel, during the conference with him in the third week of July 2024, explained the necessity for filing a cross-objection. I further say that accordingly the captioned cross-objection has been filed before the Hon'ble Tribunal. 6) I say that the cross-objection is marginally late by 20 days which, however, was not due to any negligence or deliberate act but for lack of proper professional advice. 7) I repeat and reiterate the statements and averments made in the accompanying application for condonation of delay and they may be treated as reproduced verbatim in this affidavit. 8) I say that whatever stated above is true to the best of my knowledge and belief." 6. We find that the reasons stated by the assessee for seeking condonation of delay fall within the parameters for grant of condonation laid down by the Hon'ble Supreme Court in the case of Collector Land Acquisition, Anantnag v/s MST Katiji and others: 1987 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved on the assessee, which were responded to by the assessee. The AO, vide order dated 03/06/2021 passed under section 153A of the Act, computed the total income of the assessee at Rs. 10,50,34,381, after making certain additions/disallowances under section 68 and section 37(1) of the Act. 10. In its appeal before the learned CIT(A), the assessee, inter-alia, raised ground challenging the additions made vide order passed under section 153A of the Act in the absence of incriminating material found during the search. The learned CIT(A), vide impugned order, inter-alia, decided the issue against the assessee. Being aggrieved, the assessee has filed cross-objection before us. 11. We have considered the submissions of both sides and perused the material available on record. In the present case, it is undisputed that the scrutiny assessment under section 143(3) of the Act was already concluded vide order dated 28/01/2016 in the case of the assessee. Thus, on the date of search and seizure action under section 132 of the Act, i.e. 04/10/2018, no assessment for the year under consideration was pending and therefore the same was not abated as per the second proviso to section 153A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid two parties under section 37(1) of the Act by considering the loan transaction as non-genuine. 13. It is further evident from the record that the addition under section 37(1) of the Act on account of the interest paid to M/s Transgate Investment and Developers Private Limited, and M/s Paanash Trading Private Limited, for the loan taken by the assessee in earlier years, was made by the AO again by referring to the details available on the MCA portal, the financials of the company, and ROC data, without any reference to the material found during the search. Therefore, it is discernible from the perusal of the record that the aforesaid additions/disallowances made by the AO under section 68 and section 37(1) of the Act are all based on material which was not found during the search and rather the same was retrieved from publicly available database. 14. At this stage, it is relevant to note the ratio laid down by the Hon'ble Supreme Court in PCIT v/s Abhisar Buildwell (P.) Ltd., reported in [2023] 149 taxmann.com 399 (SC), wherein the Hon'ble Supreme Court held that in case no incriminating material is found during the search conducted under section 132 of the Act, the AO ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But some of these bogus unsecured Toan parties which I am able to recall as of now are as follows: Sr. No. Name of the person/ company Amount (Rs.) 1. Akshay Sthapatya Pvt. Ltd. 1,20,00,000 2. Antartica Trading Co. 11,00,000 3. Dhan Kuber Exports Pvt. Ltd. 1,33,00,000 4. Ravi Subodh Mahaseth 10,00,000 5. Samir Diamonds 25,83,437 6. Uttam Galve Metalics Ltd. 5,77,00,000 7. Vertex Trade and Interchange 3,00,00,000 16. It is the plea of the assessee that the said statement was not only retracted after the search but there was no material found during the search which would corroborate the aforesaid statement. During the assessment proceedings, the assessee submitted that Shri Darshan Doshi has stated that he was handling the unaccounted cash receipts for the past 3 years, and therefore, such a statement cannot be relied upon for making the addition in the year under consideration. It is evident from the record that the assessment order passed under section 153A of the Act is completely silent on the aforesaid submissions of the assessee and did not even point out any material found during the search which would corroborate the statement of Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been led by the Revenue authority. We are, therefore, of the view that merely on the basis of admission the assessee could not have been subjected to such additions unless and until, some corroborative evidence is found in support of such admission. We are also of the view that from the statement recorded at such odd hours cannot be considered to be a voluntary statement, if it is subsequently retracted and necessary evidence is led contrary to such admission. Hence, there is no reason not to disbelieve the retraction made by the Assessing Officer and explanation duly supported by the evidence. We are, therefore, of the view that the Tribunal was not justified in making addition of Rs. 6 lakhs on the basis of statement recorded by the Assessing Officer under section 132(4) of the Act. The Tribunal has com mitted an error in ignoring the retraction made by the assessee. [Emphasis supplied] 22. Further, the position with respect to whether a statement recorded under Section 132(4) of the Act could be a standalone basis for making assessment was clarified by this Court in the case of CIT v. Harjeev Aggarwal2, wherein, it was held that merely because an admission has been made ..... X X X X Extracts X X X X X X X X Extracts X X X X
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