TaxTMI 
TaxTMI 
2019 (3) TMI 89
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....t craves lave to amend, modify, alter, add or forego any ground of appeal at any time before or during the hearing of this appeal. 2. The brief facts of the case are that in this case search u/s. 132A of the Income Tax Act, 1961 (in short "Act") was conducted on 04.02.2009. During the course of search various incriminating documents were found at the office as well as residential premises of the assessee and seized. In this case original return of income was filed on 15.12.2010 declaring an income of Rs. 54,56,222/- and revised return of income was filed on 16.12.2010 declaring an income of Rs. 80,76,615/-. During the course of search, loose paper filed Annexure A-27 was seized from the office premises of M/s Zoom Developers Pvt. Ltd. As per page 29 of this file payment to the tune of Rs. 24,65,000/- were made in cash to the assessee during the FY 2008-09. These payments were not found recorded in the books of M/s Zoom Developers Pvt. Ltd. as well as in the books of the assessee. The assessee has specifically asked during the course of recording of statements on 05.2.2009 about the source of this cash payment and ultimate use of the same vide question no. 22nd and 23rd of the st....
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.... even by raising presumption. In spite of search on the assessee, no matching undisclosed asset or cash was found from the possession of the assessee. It was further informed that similarly, the transaction appearing at SI. No. 1, for Rs. 2,50,000/- is dated 19.03.2008, therefore, no addition for the same can be mad in the impugned assessment year i.e. 2009-10, moreover, it shows nonapplication of mind to the facts of the case. So far as the variation in the return filed on 15.12.2010 and revising the same on the very next date i.e. on 16.12.2010 is concerned, it is submitted the variation is mainly due to the fact that in the return filed on 15.12.2010, only net salary received i.e. net of TDS was shown [as Form 16 for the tax deducted at source from salary was not received from the employer], however on realizing the mistake, revised return was filed immediately. Therefore, adverse inference drawn by the Ld. CIT(A) on this score is unwarranted. Further, it was submitted that in the present case as the search on the assessee took place on 04.02.2009 which fell in the previous year 2008-09. Therefore, assessment year 2009-10 (year under appeal here) is not covered by the provision ....
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....residence and two lockers, no unaccounted cash, bank account, assets or incriminating material or document was found and all his affairs were found to be in order. 5. Further, the value of assets found and inventoried in the three Panchnamas drawn at his residence and lockers was merely Rs. 7,42,175/-, made up as under: S. No. Particulars Amount (i) Cash found but not seized (Ann.-2 at pg. 7 of PB) 31,000 (ii) Jewellery - at residence (Ann.-3 at pg. 8 of PB) 79,825 (iii) Household goods- 9 items (Ann.-5 at pg. 10 of PB) 1,77,000 (iv) Jewellery in locker (Ann.-2 at pg. 15 of PB) 4,54,350 Total Rs.7,42,175 6. Simultaneously on 04.02.2009 itself, survey under section 133A was conducted in the office of M/s Zoom Developers Pvt. Ltd. at Thapar Farms, Behind D-3 Pocket, Shantikunj, New Delhi and statement of appellant-assessee was recorded as CEO, copy appearing at page 20-30 of PB, wherein, in response to Q. No.3 he stated that his emoluments are Rs. 1.31 crore per annum (page 21 of PB). Further, in response to Q. No. 22 pertaining to various payments to employees (including the name of the appellant) and others, he stat....
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....-8) of his order, wherein first he noted down the narration of entries as appearing in Q. No. 22 of the statement recorded by the DIT (Inv.), reading as under: (c) Page-29 of Annex : A-27 (1) Paid to Mr. R. Bawa on 19.03.08 = Rs. 2,50,000/- (2) Paid to Mr. R. Bawa on 30.07.08 = Rs. 5,00,000/- (3) Paid to Mr. R. Bawa on 30.07.08 = Rs. 3,00,000/- (4) Paid to Mr. Vikash Aggarwal on 31.07.08 = Rs. 40,000/- (5) Paid to Mr. R. Bawa on 07.08.08 = Rs. 1,00,000/- (6) Paid for IRCTC purpose on 26.08.2008=Rs.10,00,000/- (7) Paid to Mr. Bawa on 26.08.08 = Rs. 2,75,000/- Total = Rs. 24,65,000/- and then held that- (i) In relation to entry at SI. No. 4 above, for Rs. 40,000/- dated 31.07.2008, Id. CIT(A) allowed relief by holding as under: "It is true that entry of Rs. 40,000/- dated 31.07.2008 has been recorded in the name of Sh. Vikas Aggarwal and he was paid Rs. 40,000/-, therefore, this amount cannot be added in the hands of the appellant." (ii) In relation to entry at S. No. 6 above, for Rs. 10,00,000/- dated 26.08.2008, Ld. CIT(A) rejected the appellant contention by holding "The amount of Rs. 10,00,000/- was received for IRCTC purposes by....
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....assessee took place on 04.02.2009 which fell in the previous year 200809. Therefore, assessment year 2009-10 (year under appeal here) is not covered by the provision contained in section 153A Therefore, assessment made by invoking the provision of section 153A for the assessment year 2009-10 is not valid and void ab initio. 17. Reliance is placed on the decision of A.N. Rangaswamy vs. ACIT (2010) 134 TTJ 723 (Bangalore-Trib) wherein, it was held as under: 8. ................According to cl. (b) of sub-s. (1) of the section, the AO is empowered to assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which the search is conducted. The search was conducted on 4th July, 2003 which falls in the accounting year relevant to the asst. yr. 2004-05. The asst, yr. 2004-05 is thus outside the purview of s. 153A because the section does not say that the assessment year relevant to the accounting year in which the search took place shall also be reckoned for assessment under that section. The asst. yr. 2004-05 therefore stands excluded from the purview of s. 153A. This additional ground for the asst. yr. 2004....
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....l documents produced before the income-tax authority for his verification/inspection. Oral and documentary evidences, inter alia, depending upon the circumstances include 'Admissions' which play a crucial role in any judicial proceeding. There is considerable importance of statements recorded during search and seizure operations, which is clear from the intent of Legislature as it thought fit to include a separate section 132(4) for recording of statement during a search operation. Further section 292C has been inserted by the Finance Act, 2007 with retrospective effect from 1-10-1975 allowing presumption as to assets, books of account, etc. found during search under section 132 and requisition under section 132A. Later on by Finance Act, 2008 the ambit of section 292C has been enlarged by including presumption in case of survey proceedings under section 133A with retrospective effect from 1-62002. The words 'may be used in evidence in any proceedings' appearing in section 132(4) are of great significance. Under section 132(4) an authorized officer during search can examine on oath any person who is found to be in possession of any books of account, documents, mo....
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.... 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 his earlier statement. [Para 11] The appellant/assessee has not produced any material to show that the admissions made by him were incorrect. The statements recorded under section 132 (4) of the said Act are clearly relevant and admissible and they can be used as evidence. In fact, once there is a clear admission, voluntarily made, on the part of the assessee, that would constitute a good piece of evidence at the hands of the Revenue. [Para 12] As per the circular, dated 11-3-2003 there is an observation of the Board that the focus of the search party should be on collection of evidence of income which leads to information on what has not been disclosed or is not likely to be disclosed before the Income tax Department. There is a further observation that, while recording statements 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. [Par....
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....dence, oral or documentary, to substantiate the allegation. Fifthly, the answers given by him were quite coherent and did not indicate that he was in a confused state of mind when his statement was recorded. Sixthly, the seized sheets were recovered from the residence of P who actually carried them to the firm's office so as to reconcile the same with the records in the firm's office in consultation with his trusted men. Such cautions and careful approach on the part of 'P' also excluded the possibility of his statement having been made in a confused statement of mind or under any pressure or force. the answers given by P with regard to the nature or documents and other relevant matters were in his specific knowledge and, hence, they could not have been dictated by the search party. Eighthly, at the time of the hearing, 'P' denied that any force was used on him while recording his statement or at the time of search. Hence, it could not be accepted that 'P' was forced to make the statement in question or any kind of undue influence or coercion was exercised on him to extract the said declaration/statement or he was in a confused state of mind while giving the statem....
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....etitioner could establish that his consent was improperly procured. " 6. M/s Pebble Investment and Finance Ltd Vs ITO (2017-TIOL-238-SC-IT) Where Hon'ble Supreme Court dismissed SLP challenging the judgment, whereby the High Court had held that statement made u/s 133A could be relied upon for purposes of assessment, in absence of any contrary evidence or explanation as to why such statement made was not credible. M/s Pebble Investment and Finance Ltd Vs ITO (2017-TIOL-188-HC-MUM-IT) Bombay High Court confirmed. 7. PCIT Vs Avinash Kumar Setia [2017] 81 taxmann.com 476 (Delhi) Where Hon'ble Delhi High Court held that Where assessee surrendered certain income by way of declaration and withdraw same after two years without any satisfactory explanation, it could not be treated as bona fide and, hence, addition would sustain (SURVEY CASE) B. No retraction was filed by the assessee till filing of return of income, which prevented the Department from making further inquiries. For retraction to be valid, threat or coercion has to be proved which has not been done in the present case: Manohar lal Kasturchand Chokshi vs ACIT (ITAT, Ahd.) 61 ITD 55 Paramanan....
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....d in the name of assessee. It is true that entry of Rs. 40,000/- dated 31.07.2008 has been recorded in the name of Sh. Vikas Aggarwal and he was paid Rs. 40,000/-, therefore, this amount cannot be added in the hands of the assessee. As regards the amount of Rs. 10,00,000/- it is mentioned that this amount of Rs. 10,00,000/- was paid for IRCTC purpose on 26.08.2008 to the assessee. The assessee was specifically asked vide his statements recorded on 05.02.2009 to explain the receipt of the cash and their ultimate use. But the assessee did not give any reply to question no. 22 and 23 of the said statements. The amount of Rs. 10,00,000/- was received for IRCTC purposes by the assessee, however where and how this amount was utilized, the assessee did not file any reply for the same. During the course of assessment proceedings, also the assessee was specifically asked about this however no reply was filed by the assessee. It was further noted that assessee has originally filed return of income of Rs. 55,5.6,222/- on 15.12.2010 which was revised on 16.12.2010 at Rs. 81,76,615/-. This shows that the salary receipt of the assessee were not properly managed by him and he has not filed any Fo....