9911796707
TMI Blog2003 (10) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... ll take this year as the focal year for the purposes of this order. 3. The assessee-company carries on the business of construction of residential flats at Surat. There was a search and seizure operation at the residential premises of one of the directors of the assessee-company, namely, Shri Shailendra Kumar Agarwal at Surat, on 31st Feb., 1994 (sic). During the course of search and seizure proceedings, a small paper (hereinafter referred to as the 'Chit') containing the details of sales of flats in Sarita Building, was seized as per Sr. No. 23, p. 25 of the seized material. The details of this chit are as under: 2111 Sq. ft. Other side of chit 351.00 260.00 740961.00-15 = 548860-15= 49000 x 10 Upto Feb., 36000 x 10 490000 36000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements recorded on 31st Feb., 1994 (sic), at the time of cross-examination; that they have denied having made any cash payment; that the statement of the director, Shri Shailendra Kumar Agarwal was recorded under duress at the time of search; that the director admitted certain income in a confused state of mind, unsupported by any material or evidence; that the assessee had produced certain material and evidence to establish that the admission was incorrect and against the evidence on record; the nature of the noting on the chit also stood explained in the statement of Shri Shailendra Kumar Agarwal, recorded on 22nd March, 1994, in the cross-examination on 22nd March, 1994, all the three persons had denied payment of any cash against purcha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers and other persons. It is also pleaded that the learned CIT(A) erred in accepting the retraction of the statements disregarding the fact that the onus for the allegation that the statements were recorded under coercion was not discharged. Undisputedly, the search action was carried out in the residential premises of one of the director of the assessee-company. No premises of the assessee-company were searched. The residence searched bears the address of 4, Swami Nagar, near Lake View Hotel, Surat. The director is a 17 per cent shareholder of the assessee-company. The chit recovered from the pocket of the director bears details, as reproduced hereinabove. The averment on behalf of the assessee is that this chit carries no details with reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounding years were relied on. Whereas the Department says that the entries to the right (back) of the chit represent cash payment, the learned authorised representative for the assessee contends that cash payment, cannot be installed. There was no search on the company, but it was conducted only on the director in his personal capacity. The AO made a total addition of Rs. 45,94,230 in all these years involved. Attention is drawn to p. 17 of the paper book, which comprises letter dt. 30th April, 1994 from the director, Shri Shailendra Kumar Agarwal to the AO. In this letter, the break up of the disclosure of Rs. 90 lakhs is given, the director has owned up Rs. 15 lakhs. The learned authorised representative for the assessee pointed out that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case; that he has confessed the receipt of the on-money payment and admitted the same under s. 132(4) and also by filing a letter before the Department subsequent to the search proceedings; that the admission of on-money payment at the time of search and subsequent filing of offering of income goes to prove that the assessee received on-money payment and that there was no duress; that if there was a threat or duress on the assessee, there was no reason as to why it did not retract the statement immediately; that the statement of the director was not retracted for a period of 11 months, which goes to prove that the assessee had given a statement which was true and correct and the statement was given by the director of his own will and consen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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