TaxTMI 
TaxTMI 
2011 (8) TMI 1231
X X X X Extracts X X X X
X X X X Extracts X X X X
....he lead year is the A.Y. 1998-99, therefrom the grounds are reproduced below:- 1. The CIT(A) has erred in law and on facts in deleting the addition of Rs. 31,63,962/- (A.Y. 99-00 - Rs. 9,98,846/-, A.Y. 2000-01 - Rs. 16,79,519/-, A.Y. 2001-02 - Rs. 2,08,156/-, A.Y. 2002-03 - Rs. 42,476/-, A.Y. 2003-04 - Rs. 42,467/- and A.Y. 2004-05 - Rs. 2,02,498/-) made by the A.O. on account of on money receipt on sale of plots. 2. The CIT(A) has erred in law and on facts in directing the A.O. to take on-money @ Rs. 100/- per Sq. Yard as against @ Rs. 575/- per Sq. Yard as recorded in seized material. 3. On the facts and in the circumstances of the case and in law, the CIT(A) ought to have upheld the order of the A.O. 4. It is, therefore, prayed that the order of the CIT(A) be set aside and that of the A.O. be restored to the above extent. 2.1. Facts involved are similar in all the appeals and for the sake of brevity, the facts as narrated in lead A.Y. 1998-99 vide an order u/s.143(3) r.w.s. 153A dated 24/03/2006, in short, were that a search u/s.132 was carried out at the business premises and at the residential premises. It has also been noted by the AO th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cially when according to him they were not supported by an evidence. 2.3. After the discussion of certain legal aspects the AO has referred certain instances of sale of plots which were alleged to have been sold on higher price, but in the books lesser sale price was recorded. Facts related to those instances were mentioned by the AO in para-12.a in the assessment order, reproduced below:- "12. a. The statement recorded was on oath and the legal consequences were made aware before recording the statement U/s.132(4). It cannot be said to be sweet will of the Authorized Officer. As it is duly signed by him, the statement cannot be said to be one sided. As discussed in the next paras, it was noticed that in the seized note book inventorised as BF-1, on page No.65, the details of plot No.128 is written. In this page the sales price of the plot mentioned at Rs. 575/- as against the assessee has shown the sales value of Rs. 50,000/- @ 200/- per sq. meter in its books of accounts. The sales of the plot shown in A.Y. 1999-2000. On page No.8 of the said note book, the details of plot No.15 is recorded. The sales price as per the note book is Rs. 550/- sq. yard as against Rs. 400....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nce 1998-99 13193.93 575 7,586,510 3,103,175 4,483,335 1999-2000 4150.44 574 2,465,361 1,051,471 1,413,890 2000-01 5889.53 594 3,498,381 1,229,639 2,268,742 2001-02 1761.50 594 1,046,331 662,025 384,306 2002-03 881.40 594 523,552 392,945 130,607 2003-04 649.04 625 405,650 393,200 12,450 2004-05 2122.21 701 1,487.669 1,072,950 414,719 3. For all the years, the assessee has challenged the respective additions before the ld.CIT(A). After detailed discussion, ld.CIT(A) was of the view that since one of the partner has made a statement that an average on-money @ Rs. 100/- per sq.yd. was received by the assessee, therefore, he has directed the AO to adopt the said rate for all the years and recalculate the addition. Relevant paragraph No.4.3; reproduced below:- "4.3. I have carefully considered the case of the assessing officer, submissions of the authorized representative of the appellant and the law on the point. The statements can always be considered while interpreting the seized documents. The statements were ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....." 4. From the side of the Assessee, ld.AR Mr. S.N.Soparkar and from the side of the Revenue ld.DR Mr.S.K. Gupta appeared. Revenue has placed reliance on the order of the AO and argued that once certain instances of "on-money" received by the assessee on sale of particular sale of plots were detected consequence upon the search, therefore, the same rate was correctly applied by the AO in respect of all the sales executed by the assessee. It has also been argued that ld.CIT(A) was not correct in ignoring the said fact and directing the AO to apply a uniform rate of Rs. 100/- in respect of all the plots. 4.1. On the other hand, ld.AR Mr.Soparkar has commented that this is not an ordinary assessment but an assessment in consequence upon an action u/s.132 of the I.T. Act. He has argued that the AO should not have applied the rate of "on-money" in respect of all the plots but should have confined to those very plots which were found recorded in the seized diary. For this legal proposition, he has placed reliance on an order of ITAT "D" Bench Ahmedabad in the case of ACIT vs. M/s.Amar Corporation, wherein in the bunch of 12 cases bearing ITA Nos.2036 to 2041/Ahd/2007 and CO bearing....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he present case, the AO has proceeded to extrapolate the 'onmoney' of Rs. 180/- for rest of the flats in respective years. But there was no material in his possession to conclusively demonstrate that in respect of the other flats the assessee had in fact charged 'on-money' from the customers. Once the Revenue Department has taken the extreme step of conducting a raid on this assessee, then it is expected to unearth every penny of unrecorded money, but the fact is that neither any unaccounted money was recovered nor any such document was found in possession of the assessee through which it could be held that the assessee was in the practice of charging on-money on other facts as well." 5.1. We have therefore concluded that though an admission could be said to be an important piece of evidence but such an admission can only be conclusive if corroborated by some evidence. We have also opined that it is open for the assessee to demonstrate that the said admission was incorrect. The right of retrieval, in legal terminology "retraction", is available as per law, but it should be within a reasonable time and should also be supported by some cogent evidence. We have remarked that the on....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the above conclusion, as far as the grounds of the Revenue are concerned, the same are hereby partly allowed. (B) Cross Objections filed by the Assessee (CO Nos.183 to 189/Ahd/2007) 8. The assessee has raised the following common grounds for all the years as follows:- Extracted from CO No.183/Ahd/2007 1. Ld. CIT(A) has erred in law and on facts in holding that retraction of the statements made by the partners of the appellant was invalid and not acceptable without appreciating that the said statement was taken under pressure and immediately after the statement was given, retraction affidavit was duly affirmed and placed before the Authorities at the first given opportunity. 2. Ld. CIT(A) has erred in law and on facts in confirming the action of ld. AO in making addition on account of receipt of 'on money' at the rate of Rs. 100/- per Sq. Yard of land sold during the year under consideration. 3. Both the lower authorities have erred in law and on facts in not properly appreciating and considering various submissions, evidences and supporting placed on record during the course of the assessment proceedings and not properly appreciating various f....