TaxTMI 
TaxTMI 
2017 (11) TMI 1231
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....ing from the statement made u/s 132(4) of the Act." 2. Briefly the facts of the case are that the assessee is a commission agent and selling synthetics fabrics on commission basis. A search was carried out on 26.09.2012. In search 2057.500 gms of gold jewellery/ ornaments valued at Rs. 63,79,272/- and 13.494 kg of silver items valued at Rs. 6,42,314/- was found. The assessee in the statement recorded u/s 132(4) on 26.09.2012 in reply to question no. 4 stated the source of jewellery found in search as being received at the time of marriage in the year 1972, on marriage of son in the year 2003, on various occasions received from relatives and out of ornaments seized in search carried out in the year 2000 which was released to him only a month before the date of search. Thereafter, the assessee in reply to question no. 8 of the statement u/s 132(4) stated that out of the gold jewellery found, the jewellery value at Rs. 30 lacs is not disclosed and surrendered the same. He also disclosed Rs. 20 lacs on account of miscellaneous discrepancies in the books. The same was reiterated in reply to Q. No. 3 & 4 of the statement u/s 131 dated 16.10.2012. 3. Subsequent to these statement, the ....
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....n can be made even when assessee has not retracted from the statement of surrender made u/s 132(4) provided that the assessee brings material on record to prove that the statement so made is incorrect. The CBDT in Instruction No. 286/2003- IT(Inv.) dated 10.03.2003 has also accepted that instances have come to the notice of the Board where assesses have claimed that they have been forced to confess the undisclosed income during the course of search & seizure and survey operations. Such confession is not based upon reliable evidences and not considered by the concerned assessee while filing returns of income. In these circumstances, a confession during the course of search & seizure and survey operation does not serve any useful purpose. It is therefore, advised that there should be focus and concentration on collection of evidence of income which lead to information on what has not been disclosed or is not likely to be disclosed before the Income Tax Department. Similarly, while recording statement during the course of search & seizure and survey operations, no attempt should be made to obtain confession as to the undisclosed income. 5.1 It may be noted that apart from retraction ....
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....f which gold jewellery of 445.47 gms was seized. Copy of the panchanama dated 24.03.2000. The seized jewellery was released on 22.05.2012 i.e. just before the present search. In earlier search, the assessee offered gold ornaments to the extent of 445.47 gms value at Rs. 1,83,824/- for tax. Thus, the gold jewellery to the extent of Rs. 1667.26 gms is fully verifiable as found in the earlier search dated 24.03.2000. (b) The assessee and his family members purchased 526.332 gms of gold jewellery in the year 2003-2004 and duly disclosed in the individual balance sheet. The payment for these purchases was made by account payee cheque. Copy of the purchase bills were filed before the AO. The details of jewellery purchased is tabulated as under: Date Purchase of jewellery in the name of Weight (gms) Amount 17.01.2003 Devendra Kumar Chaudhary 49.632 158000 17.01.2017 Snehlata Chaudhary 119.750 78911 11.02.2003 Snehlata Chaudhary 144.530 92971 17.01.2003 Unnat Chaudhary 116.400 81496 28.01.2003 Unnat Chaudhary 54.200 35461 2003-04 Monika Chaudhary 41.820 24260 526.332 471099 Thus, the purchase of the gold ....
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....rwise also, AO has not found any discrepancy/defect in the books of accounts for which an amount of Rs. 20 lacs was surrendered in the statement and offered in the return by the assessee. Therefore, any addition on account of the unexplained silver jewellery needs to be covered against the amount so offered in the return. In view of above, the order of CIT(A) be upheld and ground of the department be dismissed. 6. Before we proceed further, it would be relevant to refer to the decision of the Hon'ble Rajasthan High Court in case of Ravi Mathur & others (D.B Appeal No. 67/2002 & others) where Hon'ble High Court has laid down the following proposition in law in respect of retraction of statement recorded under section 132(4) of the Act vide its order dated 13.05.2016: "14. Having noticed the arguments of the learned counsel for the parties, we deem it proper at the outset to take into consideration the finding of the Tribunal about retraction/resiling of the statements recorded under Section 132(4) as the Tribunal has primarily come to a finding that retraction is proper. We would also deal with the judgments relied on by the learned counsel which has a bearing on the issues and ....
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....he statement u/s 132(4) was not correct and these amounts are in thousands, not lakhs i.e. it is now attempted to retract from the statements made at the time of S & S operations." Therefore, what we gather from the Assessment Order and on perusal of the above finding that the retraction was at the stage when the assessment proceedings were being finalized i.e. almost after a gap of more than an year. Such a so-called retraction in our view is no retraction in law and is simply a self-serving statement without any material. 15.1 Thus, in our view, the Tribunal in a summary manner has held that retraction is proper, without going in detail and manner, time of retraction, the addition deleted, is wholly on a perverse finding. 15.2 This Court in Raj kumar Sodhani vs The CIT (D.B ITA No. 15/2015 decided on 28.4.2016) has taken this very view that retraction after a sufficient long gap loses its sanctity." 7. In the present case, the statement of the assessee u/s 132(4) was recorded on 26.09.2012. Thereafter, the assessee on verification of the record claimsthat the gold jewellery was fully disclosed and he filed the return on 29.09.2013 without including the surrender made i....