TaxTMI 
TaxTMI 
2012 (7) TMI 735
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....rectly made even though the assessee retracted from the disclosure. 2. That the Ld. CIT (A) was not correct in confirming the assessment of the sum of Rs.25,07,000 which was retracted by the assessee. 3. That the Ld. CIT (A) Surat's order is entirely contradictory to law and facts of the case to the extent he confirmed the addition of Rs.25,07,000/- which may please be deleted. 4. That the Commissioner of Income tax (Appeals) grossly erred in not adjudicating Circular No.F.286/2/2003-IT(Inv.) no confession can be extorted, Budget speech of Minister of Finance for 2003-04 para No.151 (1) (2003) 260 ITR (St.) 29 statement u/s. 133A of the Act was recorded at odd hours, the statement u/s. 133A of the Act was not recorded at the regist....
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.... sale and accordingly made a disclosure of Rs.25,07,000/-. During the assessment proceedings the partner Mr. Rajesh Ghayal submitted affidavit dated 12-4-2007 wherein he retracted the statement made during the survey proceedings. In the affidavit it was inter alia submitted that the statement was extracted under coercion and duress. It was further submitted that the statement made u/s133A has no evidentiary value. The A.O. did not agree with contentions of the assessee. He treated the statement that the confessional statement was extorted under duress as a mere afterthought and ignored it and held that the assessee has received "on money" of Rs.25,07,000/- on sale of property and accordingly added it to the total income. The A.O. finaliz....
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....placed at page 31 to 33 of the paper book. It was further submitted by the Ld. A.R. that no discrepancy has been noticed in the books of accounts and the A.O. has also not rejected the books of accounts. The addition has been made only on the basis of statement recorded at the time of survey and even this statement has been retracted by the partner of the firm. It was thus stated that the addition was made purely on the basis of guess work, surmises and without any corroborative evidence. The Ld. A.R. further submitted that the Department had no power to examine any person on oath during the survey u/s. 133A. The assessee relied on the decisions in the case of Kailashben Manharlal Chokshi (2010) 328 ITR 411 (Guj.), Paul Mathews & Sons vs....
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....en on merits the alleged advance money cannot be taxed. 8. On the other hand the Ld. D.R. submitted that nothing has been brought on record by the assessee to prove that the statement of the assessee was recorded after exerting pressure on the assessee and that it was obtained under duress. Apart from the retraction made in the form, of an affidavit, the assessee has not taken any other action to corroborate his stand. The assessee has also not filed any complaint with respect to the allegations made in his affidavit. The affidavit of the assessee is afterthought, self-serving and devoid of any merits because at the time of recording of the statement of Mr. Rajesh he was made aware of the consequence of giving false statement on oath. At....
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....lied on the decision in the case of Nihorilal Prabhudayal vs. CIT (1951) 19 ITR 240 (All) where it has been held if a party on whom the burden of proof lies produces evidence which is considered to be unsatisfactory and is, therefore, disbelieved, the mere fact that there is no evidence to the contrary does not compel to record a finding in favour of the party on whom the burden lies. The Ld. D.R. further submitted that the ratio of the decision in the case of Rakesh Kapadia (supra) is not applicable to the facts of the case in that case the construction had not started. He thus, urged that the order of the A.O. be upheld. 9. We have heard the rival contentions and perused the material on record. The factual matrix of the case is that th....
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.... CIT vs. Ashaland Corporation (supra), the Hon'ble Gujarat High Court has held as under: "In order to partake the character of income, a receipt must be a part of the profits earned by the assessee. The receipt must assume the character of income before it becomes exigible to income tax. An agreement to sell does not create any interest in favour of the purchaser. It is on completion of the transaction of purchase and sale culminating in the extinguishment of the title in the vendor and simultaneous creation of the title in the vendee that the seller earns a profit or suffers a loss. In case of a person who is a dealer in land, the business transaction would be completed only when the purchase or sale transaction is complete. In order to....