TaxTMI 
TaxTMI 
2015 (10) TMI 815
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....he return an amount of Rs. 5,36,063/- only was declared as against the surrendered amount of Rs. 34,50,400/-. (2) On the facts and in the circumstances of the case, the ld. CIT (A), Central, Jaipur has erred in ignoring the statement of assessee u/s 132(4) recorded on oath disclosing unaccounted advances without assessee having shown that the statement on oath was recorded under threat or coercion, despite the fact that even in Panchanama also, which is an independent piece of evidence, it is clearly stated by the two witnesses that the statement of assessee under section 132(4) of the I.T. Act, 1961 was recorded without any force and coercion and was read over the assessee who understood before signing. (3) On the facts and in the circumstances of the case, the ld. CIT (A), Central, Jaipur has erred in ignoring the letter dated 10.11.2009 filed by the assessee before the Investigation Wing reiterating the admission about the undisclosed advances in sworn statement earlier without giving any cogent reason to ignore the same. Despite the fact that the letter has been filed by the assessee on his own; that too after 20 days since the same facts were admitted in sworn statement ....
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....rtunity of being heard on this issue which was availed by the assessee by letter dated 27.12.2011 which has been reproduced by the AO at pages 3 & 4 of the assessment order. After considering the assessee's reply, the AO held that the assessee himself has re-affirmed the fact of surrender of Rs. 34,60,400/- in his above referred letter at point no. 3. Having re-affirmed the fact of advances of loans to people on more than one occasion including admitting the same in his statement recorded on oath under section 132(4) of the Act it is unfathomable as to why the assessee has not disclosed the impugned amount in his return of income. The statement recorded during the course of search is unadulterated statement because the assessee is caught unawares and has no time and means to analyze the pros and cons of making a statement. In that state, it is but reasonable to expect that the assessee would speak what is not just the truth but the sole truth. This inference without any hesitation and trouble, can be transported to the statement of the assessee. The AO further relied on the decision in the case of Hotel Kiran vs. CIT, 82 ITD 453 (Pune) wherein it was held that where statement under....
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....spect of certain days before the search had not been considered at the time of search. The second reason was that this surrender of Rs. 34,60,400/- on account of undisclosed advances admitted during the course of search was retracted by stating that such surrender was obtained under duress in as much as no incriminating documents or any other corroborative documents were found and this surrender was obtained to make the total surrender of Rs. 2,00,00,000/-. The ld. CIT (A) further observed that the assessee also made further disclosure in the return itself of Rs. 8.40 lacs in the income of M/s. Sodhani Sweets Pvt. Ltd. which was not a surrender during the course of search. The assessee also surrendered Rs. 5,36,063/- in his own case while filing the return of income to cover up any other issue/incriminating paper/document etc. Such surrender has not been made in the original at the time of search. He further observed that " The AO's case is that the amount of Rs. 34.60 lacs was originally surrendered u/s 132(4) by statement dated 20.10.2009, and the assessee reiterated such surrender vide letter dated 10.11.2009. It is stated that such surrender of income was made without any du....
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.... advances would have been found or seized. It may further be noted that the surrender for cash on at Rs. 9839600/- was original made but subsequently cash amounting to Rs. 7676080/- was explained and accordingly while filing the return of income only difference of Rs. 2163510/- was shown as income. Such retraction of the surrender was also accepted by the AO and no addition to the extent of original surrender was made by the AO. This fact further proves the contention of the appellant that the original surrender of income u/s 132(4) was not correct or final. The appellant has also relied upon certain case laws in which it has been laid down that confession or surrender may be extremely important piece of evidence but it cannot said that it is conclusive. The person who makes the admission can show and prove that it is conclusive. The person who makes the admission can show and prove that it was incorrect. (Pannangode Rubber Producing Co. Ltd. vs. State of Kerala 91 ITR 0018). In the jurisdictional High Court in the case of CIT vs. Ashok Kumar Soni 291 ITR 172 also held that admissions are relevant and strong piece of evidence but they are not conclusive proof and statement of....
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....-536063) in as much as such addition is not supporting by any documentary or corroborative evidence. Therefore, the addition so made is deleted." 5. Now the Revenue is before us. The ld. CIT D/R supported the order of the AO and argued that statement recorded under section 132(4) is binding on the assessee. The ld. CIT (A) was not right to accept the assessee's retraction without any evidence and requested to confirm the order of the AO. 6. At the outset, the ld. A/R of the assessee reiterated the argument made before ld. CIT (A). He further relied upon following decisions Pullangode Rubber Produce Co. Ltd. vs. State of Kerala and Another (1973) 91 ITR 18 (SC) - Statement under section 132(4) is not conclusive. Federal Bank Ltd. vs. State of Kerala (1995) 124 CTR 355 (Ker.HC) - Statement under section 132(4) is not conclusive. CIT vs. Ashok Kumar Jain (2014) 111 DTR 291/229 Taxman 65 (Raj.HC) - Statement recorded under section 133A and retraction from the original disclosure by giving explanation supported by the material on record. CIT vs. Ashok Kumar Soni (2007) 291 ITR 172 (Raj. HC) - Statement recorded under section 133A and retraction from the ori....
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....e request of the assessee. The assessee had requested to adjust the seized cash against the advance tax liability as under :- Date Letter written to Remarks P. B.No. 25.2.10 DDIT (Inv.)-III Request for adjustment of tax amount of Rs. 40 lacs in A.Y. 2010-11 as advance tax 29 12.3.10 ACIT, C. C.-II Request for adjustment of cash against advance tax for A.Y. 2010-11 estimated at Rs. 45 lacs. 30 16.3.10 Letter of DCIT, CC-2 Rejecting the application regarding adjustment of cash in advance tax for the reason that the application is written by the authorised representative and no power of attorney is filed. 31 22.3.10 ACIT, CC-2 Again request for adjusting the cash lying in PD account against advance tax with Power of attorney 32 The assessee filed return on 27.10.2010 according to which the tax liability was worked out at Rs. 34,51,200/-. It was requested to adjust the amount from P.D. account vide letter dated 27.10.2010. The adjustment was finally made on 06.12.2010. As per section 234B, the interest is chargeable in case assessee had not paid advance tax. In assessee's case the total cash was seized at Rs. 98,4....