AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2019 (4) TMI 267
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.... Maheshwari Industries vs. ACIT (148 Taxman 74 (Jodh.) (Mag)) without appreciating the facts that the addition was made on the basis of the statement of the Director Shri Haresh Mohanalal Mehta and three key employees of the assessee group namely Ms. Chaula Joshi (Sales and Marketing Executive of Rohan Group) and Mr. Vijay Jasani (Accountant of the Rohan Group) and also of Mr. Paresh Panchlotiya (Office Assistant/Liaison Officer) during the course of search. The CIT(A) further failed to appreciate that the Rohan Group had been searched earlier too on 10.08.2006 and even during the course of that search, the same Ms. Chaula Joshi had admitted to the fact that the group executed sales deed by accepting on money in cash which was over and above the agreement price." The appellant prays that the order of the CIT(A) on the above grounds be set aside and that of the Assessing Officer be restored. The appellant craves leave to amend or alter any ground and/or add new grounds which may be necessary. 4. The brief facts of the case are that the Rohan Group of entities alongwith Directors, family members and related parties were subject to search and seizure operation u/s 132 on 26.05.20....
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.... the 'Rohan Group' had been searched earlier too on 10.08.2006 and even during the course of that search, the same Ms. Chaula Joshi had admitted to the fact that the group executed sales deed by accepting on money in cash which was over and above the agreement price. 7. Whereas on the contrary, Ld. AR appearing on behalf of the assessee relied upon the orders passed by Ld. CIT(A) and also reiterated the same arguments as were raised before Ld. CIT(A). It was also submitted that the identical ground has already been decided on merits in favour of the group concern of 'Rohan Group' by the order of the Coordinate Bench of ITAT in ITA No. 3162 & 3163/Mum/16 in the case of DCIT Vrs. Silver Arch Builders and Promoters. 8. We have heard counsels for both the parties and we have also perused the material placed on record as well as the orders passed by revenue authorities. We find as per the facts of the present case, a search and seizure operation u/s 132 of the Act took place on 'Rohan Group' of entities on 26.05.11. The assessee company is also associated with the said group. The AO while making additions had observed that the assessee was engaged in the business of real estate develo....
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.... company. 10. However, the AO opined that there were sufficient evidences to show that the assessee company was accepting on-money in cash. These included: 1. Page 114, Annexure A-1, found and seized from 112-122, Hira Bhawan, Raja Ram Mohan Roy Road, Prarthana Samaj (panchnama dated 27.05.2011) - wherein the sales executive of the company had mentioned that part of sale price is taken in cheque and rest in cash. 2. Excess cash of Rs. 25,86,687/- found at 112-122 Hira Bhawan, Raja Ram Mohan Roy Road, Prarthana Samaj - source unexplained 3. Excess cash of Rs. 8,50,000/- and unexplained jewellery found at M/s Goodwill Properties - source unexplained 4. Statement of Ms. Chaula Joshi 5. Statement of Shri Vijay Jassani 6. Statement of Shri Haresh Mohanlal Mehta, Director 7. Disclosure of Rs. 100 crores by the appellant group on the basis of the documents found in the search - source of amount unexplained. 11. The AO also rejected the contention of the assessee that no incriminating evidence was found in respect of on-money receipt. It was further noted by the AO that the delay in retraction of statement was also indicative of the fact that the assessee's explanation was ....
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....s Rs. 1,35,00,000/- and that from this sum, an amount of Rs. 1,09,13,313/- was reconciled with the books of accounts of the constituent companies, directors etc. of the Group. The balance amount of Rs. 25,86,687/- was stated to have been offered as undisclosed income in the hands of M/s Rohan Developers Private Limited for A.Y. 2012-13. 13. It is a settled law that for carrying out of proceedings against concerned persons, the materiality, relevance, admissibility or weight of retracted statements has to be examined. The retraction by itself does not provide an impenetrable shield to the concerned person, it is also equally true that a statement per se, by itself is not conclusive evidence. In this regard, we draw strength from the judgment in the case of ACIT vs Janak Raj Chauhan {102 TTJ 316 (Amritsar)}, wherein the Tribunal had held that admission made at the time of search is important but not conclusive. In case of Maheshwari Industries vs ACIT {148 Taxman 74 (Jodh)(Mag)}, the Tribunal held that additions should be considered on merits rather than on the basis of surrender made by an assessee. 14. In the present case, the AO had made reliance on a single sheet of paper which....
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.... could not be taken to relates the projects of the assessee. After considering the submission of the assessee and taking note of the cash and jewellery found at the office premises, the AO made an addition of Rs. 36.71 lakhs under the head on money received during the year under consideration. 3.Aggrieved by the order of the AO, the assessee preferred an appeal before the First Appellate Authority(FAA).Before her,the assessee challenged the validity of the order passed u/s. 153A of the Act and relied upon certain case laws.After considering the elaborate submissions of the assessee,the FAA held that original return u/s. 139 of the Act on 2/7/2007, that search was carried out in the case of Rohan group on 26/05/2011, that the time limit for issue of notice u/s. 143(2) for the year under consideration expired on 31/03/2008,that there was no proceedings pending in the case of the assessee,that it was not a case where assessment proceedings were pending and had abated.She referred to the case of All Cargo Global Logistics Ltd. of the special bench of the Tribunal and held that in cases where there had not been any abatement of assessment the assessment u/s. 153A of the Act would be....
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....y by the bench to the DR about supporting evidence proving the receipt of alleged on money,she could not refer to any material. As the assessment for the AY. 2007-08 was not pending, so, without some incriminating material the AO should not have made the addition to the total income of the assessee.The FAA had taken notice of the order of the special bench and dismissal of the Departmental appeal by the Hon'ble Bombay High Court and had decided the issue.In our opinion, her order does not suffer from any legal or factual infirmity. So, confirming the same, we decide effective ground of appeal (GOA-1&2) against the AO. 16. After having gone through the facts of the present case and also perusing the orders of the Coordinate Bench of ITAT in the case of group concern with regard to the same search, we are also of the view that the statements of the employees, in search and seizure cases, can be used only if they are supported by some kind of collaborative evidence. However, Ld. DR could not point out the evidence proving the receipt of alleged on money. As the assessment for the AY. 2008-09 was not pending, so, without some incriminating material, the AO should not have made the add....