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TMI Blog2005 (9) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... e and acquisition of immovable properties in own name and in the name of wife. In the course of search the assessee's statements were recorded on oath under s. 132(4) of the IT Act in which he made the disclosure in respect of the investments made by the HUF, in his individual capacity as well as investments made in the name of his wife. The details of the same are recorded by the CIT(A) in para 7.1 of the appellate order. 5. In the returns filed, however, the assessee declared only Rs. 45,000 in the asst. yr. 1992-93 in respect of plot at Tagore Nagar and Rs. 50,000 for miscellaneous items in the asst. yr. 1990-91. Rest of the amounts were not offered for taxation. In the case of his wife, only the disclosure of Rs. 65,000 was disputed. In the course of assessment proceedings, the AO called upon the assessee as to why the entire income surrendered in the hands of the HUF, individual and in the name of the wife was not declared in the return of income. The assessee contended that he had adequate resources from where the investment in the acquisition of the various immovable properties were acquired and to explain the source of the investment, the assessee filed a cash flow statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces admission was made or to prove that what was stated was not correct. In his paper book, he has relied upon the following decisions: (1) CIT vs. Shri Ramdas Motor Transport (2000) 163 CTR (AP) 403 (1999) 238 ITR 177, 183 (AP). (2) R.P. Locks Company vs. Dy. CIT (2000) 67 TTJ (Del) 588 (3) Asstt. CIT vs. Anoop Kumar, Jalandhar, decided by the Tribunal, Amritsar (SMC) Bench on 28th Dec., 2004 in ITA No. 451/Asr/1998. (4) ITO vs. Bua Dass, jalandhar, in ITA Nos. 334 to 340/Asr/2003, dt. 31st Dec., 2004, decided by the Tribunal, Amritsar (SMC) Bench (5) Maheshwari Industries vs. Asstt. CIT (2003) 81 TTJ (Jd) 914. 9. Before proceeding further to decide the grounds of appeal on merits, we are of the view that there is no dispute as regards legal proposition contended by the learned counsel for the assessee. It is settled law that admissions are not conclusive proof of matter. They may be shown to be untrue or have been made in mistake of fact or law. The circumstances have to be seen under which same are made. It can be withdrawn unless it is estoppel and conclusive. It is an established principle of law that a party is entitled to show and prove that an admission made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . His wife has stated that she made the investment by withdrawing Rs. 43,000 from her bank account and balance Rs. 7,000 was contributed as a gift by her husband. That Rs. 7,000 is reflected in the cash flow statement filed by the assessee from where he has claimed to have further withdrawn Rs. 62,500 on 23rd July, 1990 for purchasing another plot in the same locality. He observed that the assessee has contended that while making the disclosure in his individual capacity the cost of the plot in the name of his wife was also included therein. That the plot was jointly purchased including the name of assessee's mother but regarding the mother's source of income, the assessee has stated that he has no knowledge. He observed that looking to the background of the case and unauthentic cash flow statement the disclosure of Rs. 1,35,000 made in his individual capacity and also in the name of his wife for Rs. 65,000 is treated as unexplained investment in the hands of the assessee. 11.2 The addition was challenged before the CIT(A) and it was submitted that the assessee was totally confused at the time of making the statement. He disclosed the above amount of Rs. 1,35,000 in respect of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 65,000 in the hands of his wife. The CIT(A) also examined the bank account of his wife where there is a debit entry of Rs. 43,000 on 5th March, 1991 which is the date of purchase of the property. The CIT(A), therefore, thus found that source of Rs. 43,000 is fully explained. The CIT(A) did not believe the gift of Rs. 7,000 made by the assessee and treated it to be unexplained investment. Regarding the source of the purchase of 40 Marlas for Rs. 62,500 on 23rd July, 1990, the assessee relied upon the cash flow statement. There is one entry of Rs. 1,44,230 in February, 1990, regarding the assessee's share in the sale of plot of New Ashok Nagar developed by the AOP in which he had 1/3rd share. The CIT(A) observed that though in the cash flow statement as in February, 1990, the assessee has shown a cash balance of Rs. 2,25,158 after including this amount of Rs. 1.44,230 as his share in the collection from the sale of the plot of New Ashok Nagar yet he found it difficult to believe that the amount which was calculated as his share in February, 1990, was available with him on 23rd July, 1990 for explaining the source of investment of Rs. 62,500. The CIT(A) held that the assessee will b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the assessee paid his share of Rs. 50,000 on 29th June, 1992 out of the cash in hand and Rs. 33,333 out of the bank withdrawal on 27th July, 1992. The AO, however, observed that this is the general feature for making the explanation and rejected the explanation of the assessee and made the addition. The assessee explained the source before the CIT(A). It Was submitted that the assessee has given the advance in respect of 6 Marlas plot at Avtar Nagar, Jalandhar, wherein he had 1/3rd share. The other 2/3rd share belonged to other. The deal was not matured and the assessee's share in the above advance amounted to Rs. 83,333 which the assessee has paid, the source for the same is as under: Rs. 50,000 Out of cash in hand on 29-6-1992. Rs. 33,333 Withdrawal from Bank of Baroda, Faridabad, on 27-7-1992. It was also stated that the advance amount was received back and the same was deposited by the assessee in his bank account No. 7693 with PNB, Jalandhar. Copies of the agreements for cancellation were filed. It was, therefore, submitted that there is no question of surrender of Rs. 1 lakh in his capacity being member of HUF. The CIT(A) considering the withdrawals from the bank and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the CIT(A) that the addition is unjustified. Same submissions were reiterated as were made before the AO. The CIT(A) considering the facts of the case was of the view that the assessee has withdrawn Rs. 60,000 on 13th Dec., 1991 from his account with the Bank of Baroda. The deposits in this bank account has been added. Rs. 50,000 in the asst. yr. 1991-92 and another Rs. 50,000 in the asst. yr. 1992-93 as unexplained investment and that has been, as mentioned above, duly confirmed by the CIT(A) in para 9.2 of the impugned order. However, the CIT(A) further found that the assessee further received payment of Rs. 14,200 each on 20th Dec., 1991 and 16th April, 1992 from the sale of property at Dyal Nagar. The CIT(A) further found that there is no dispute about the availability of these amounts in the cash flow statement. The CIT(A) accordingly held that the assessee is equally entitled to have the benefit of withdrawal from the bank account once the deposit in the bank has been treated as unexplained investment. The CIT(A) accordingly allowed the credit of Rs. 88,400 (Rs. 60,000 + Rs. 14,200 + Rs. 14,200) and restricted the addition to Rs. 11,600 and deleted the addition of Rs. 88,4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in which three purchasers were shown and one of the purchasers was Shri Prashant Singh. The CIT(A) was of the view that the assessee has in fact transferred his own property to himself as Shri Prashant Singh was not a man of means and as such making an entry in the cash flow statement would be of no help. The CIT(A) was of the view that if, in fact, no investment was made by the assessee, the question of making the disclosure and showing that as investment would not arise. He was of the view that this disclosure was made in total confused state of mind. The CIT(A) further observed that no money has come and no money has gone. The CIT(A) accordingly deleted the addition. 14.2 The learned Departmental Representative relied upon the order of the AO and the learned counsel for the assessee relied on the submissions made before the CIT(A). 14.3 On consideration of the above facts, it is clear that the CIT(A) has clearly mentioned that the assessee had only 1/3rd share in such property. Therefore, it is clear that the property would be represented by AOP as is explained by the assessee before the CIT(A). Therefore, no addition could be made in the hands of the assessee of that amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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