TaxTMI 
TaxTMI 
2013 (2) TMI 48
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....ssessment year 2006-2007. The Tribunal had reversed the decision of the Commissioner, Income Tax (Appeals) and sustained the decision of the Assessing Officer in making an addition of Rs.1.75 crores on the basis of statements made by the assessee under Section 132 (4) during the course of search conducted on 10-11.11.2005 and on 21.11.2005. 2. The learned counsel for the appellant/assessee proposed the following question as a substantial question of law: - "Whether the ITAT was justified in law in reversing the decision of CIT(A) and sustaining the addition of Rs.1,75,00,000 made solely on the basis of statements recorded at the time of search and as modified vide subsequent letter dated 09.01.2006 in the absence of any evidence inclu....
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....d documents, jewellery, cash and property which all family members, family firms and companies have acquired at different times. I voluntarily, keeping in consideration of issues, increase the total amount of disclosure of additional income to Rs.1.75 crores on behalf of all family members, family firms and company. I request you that no penal measures like penalty and prosecution be initiated against myself and my family members, family concerns, company in lieu of this voluntary disclosure of additional income. I promise that after receiving all the seized documents from Income-tax Department I will provide break up of this voluntary disclosure of Rs.1.75 crore in various hands. I also promise to pay the due tax as soon as possible." 5....
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.... undisclosed income found after verification of seized material in hands of different family members or business concerns of the assessee group at the time of filing of return as per the provisions of Section 153A of the Act and the balance of Rs.1.50 crores would be treated as undisclosed business income in the hands of Mr. Bhagirath Aggarwal pending verification of such seized material. Thanking you Yours faithfully, Encl: As above Sd/- Bhagirath Aggarwal" 8. It has been emphasized by the learned counsel for the appellant that the sum of Rs.1.75 crores which was surrendered by the appellant/assessee was bifurcated by the said assessee into sums of Rs.1.5 crores and Rs.25 lakhs. The former sum was, according to the assess....
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....ld not have been coercion on the part of the revenue authorities in as much as the first declaration was made on 10-11.11.2005 and the next declaration was made on 21.11.2005 and there was a gap of 10 days in between. This also makes it clear that the declarations made by the respondent assessee were only after the appellant/assessee had thought over the same over a span of ten days. Even in the declaration made on 21.11.2005 the appellant/assessee did not disclaim the earlier declaration/admission made on 10-11.11.2005. It is on the basis of these observations that the Tribunal concluded that the statements of the appellant/assessee cannot be regarded as a retracted statements. 10. The Tribunal also observed that because the assessee ha....
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....ission once made can certainly be retracted, if the circumstances permit, and it can also be shown to have been made under some mistake or to be otherwise incorrect. But, the onus would be on the maker of that admission. In this case it is the appellant/assessee who has admitted and surrendered a sum of Rs.1.75 crores as his undisclosed income. It was incumbent upon him to show that he had made a mistake in making that admission and that the said admission was incorrect. He had access to all the documents which has been seized in as much as the copies had been supplied to him. However, he did not produce anything to establish that the admission was incorrect in any way. That being the position, the appellant/assessee cannot resile from h....
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....nts during the course of search, seizure and survey operations, no attempt should be made to obtain confessions as to undisclosed income and that any action to the contrary would be viewed adversely. 14. We do not see how this circular would, in any way, come to the aid and assistance of the appellant. All that it shows is that the Income-tax Officers should not try to force a confession from an assessee. However, if an assessee voluntarily makes a surrender, the officials of the income tax department are bound to record that statement u/s 132(4) and such a statement, voluntarily made, is relevant and admissible and is liable to be used as evidence. 14. The learned counsel for the appellant also submitted that the admission should be ....