TaxTMI 
TaxTMI 
2024 (10) TMI 850
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.... addition made by AO and sustained by CIT(A) is illegal and not justified. 2. Without prejudice to ground no. 1 of appeal, Ld. CIT(A) erred in confirming the action of AO in invoking provisions of sec. 115BBE in relation to the addition made by AO, without appreciating the facts of the case properly and judiciously. 3. The appellant reserves the right to add, amend or modify any of the ground/s of appeal. 3. The Brief facts culled out from the records are, that the appellant is an individual and engaged in jewellery business, as proprietor of M/s N.R. Jewellers. The appellant is also a director of M/s Suraj Rolling Pvt Ltd. In this case search and seizure operations u/s 132 were carried out on the business as well as residential premises of the appellant on 22.11.2018. Return u/s 139(1) was filed on 05.11.2019, declaring total income at Rs. 3,62,22,870/-, Notice u/s 143(2) of the I.T. Act, 1961 was issued on 30.09.2020. During the course of search proceedings, appellant made voluntary surrender of gold, diamond jewellery and silver articles found from the residential premises amounting to Rs. 3,63,68,311/- and excess stock of Rs. 6,23,94,369/- from the business....
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....al, which is pending. 2. As per sec. 153B(1)(b) the assessment order in respect of the assessment year relevant to the previous year in which search is conducting (AY 9/20 in the case of present assessee) is required to be completed within a period of 21 months from the end of the financial year in which the last authorization of search was executed. 3. Sec. 153D provides that no order of assessment or reassessment shall be passed by AO, in respect of each assessment year referred to in sec. 153B(1)(b), except with the prior approval of the Joint Commissioner. "therefore, the assessment order for the year of search was also required to be passed with the prior approval of the Joint Commissioner. The assessment order was passed by the AO on 21.06.2021 and in para 15 of the assessment order, it has been mentioned that the order was passed with the prior approval of the Addl. CIT, Range-central, Raipur dated 17.06.2021. 4. The "approval" of higher authority, as contemplated u/s 153D, necessarily requires that the approving authority is required to apply his mind to the seized material, queries raised by the AO during assessment, replies given by the assessee....
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....se documents were provided by AO to the earlier counsel, who did not give the same to assessee while handing over the file and which has been made available by him to the assessee very recently (via e-mail), when assessee approached him after receipt of letter dated 07.11.2023 of AO. Thus, the communications for approval u/s 153D were not available with the assessee at the time of filing 2nd appeal. For this reason, ground challenging validity of the approval u/s 153D could not be taken in the grounds of appeal. Your honours would kindly appreciate that the assessee was prevented by sufficient and reasonable cause for not taking the above ground in the grounds of appeal in the appeal memo and therefore, it is most humbly and respectfully prayed that the above additional ground may kindly be admitted, and the appellant may very kindly be allowed to argue on the same, per need of justice. 7. The above ground is a legal ground touching jurisdictional aspect, going to the root of the matter and all the facts relating to such ground are already on record. In the following cases, it was held that additional ground going to the root of the matter, can be taken at the sec....
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....es of the appellant. During the course of search statement of Shri Rajat Agrawal, son of the appellant, was recorded on oath on 23.11.2018 wherein in reply to Q. No 6 he admitted that jewellery weighing 1 ko belongs to his mother and regarding balance jewellery and cash neither he nor his mother have any knowledge and the same could only be explained by his father, the appellant. 3.1.1 Statement of appellant was also recorded on oath on 22.11.2018, wherein in reply to Q. No 11 the appellant has clearly admitted that the stock of the firm is kept only at the business premises and not kept at any other place. However, the appellant during post search investigation vide letter dated 30.11.2018 requested to consider the jewellery found from residence as stock of M/S NR Jewellers. The AO by rejecting claim of the appellant stated that the appellant itself during the course of search has admitted that the stock of the firm is not kept elsewhere except at the shop located at Sadar Bazar, Raigarh. Further, statement of the appellant was continuously recorded on 22nd, 23rd and November 2018 but within three days he never stated that the gold, silver and diamond jewellery found from....
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....els. However, during FY 2018-19 (Ay 2019-20) the appellant has purchased major portion of jewellery from M/S Saheli Jewellers Pvt Ltd Durg, M/S Saheli Gems and Jewellers, Bhilai, M/S Saheli Jewellers, M/s KR Diamonds, M/s Shahswat Creations LLP, M/S Empire Bullions, M/S AT Plus Jewellers Pvt Ltd and M/S Briana Jewels. Further, majority of purchase have been made during the month of November between 3rd to 17th November 2018 from the said concern. The appellant during entire year has shown purchase of Rs. 9,93,61,343/- out of which purchase of Rs. 79199209775/- has only been made during the month of November which is nearly 73%. The appellant has also furnished bills of Rs. 8,33,99,443/- (including approval/jangad voucher) before the AO. Further, GST returns were also filed showing the purchase dates of November 2018. 3.1.4 The AO Further observed that out of all the purchase made by the appellant, jewellery valuing Rs. 4,51,58,324/- were retuned back to the sellers by showing sales return. The purchase from the said parties have been made on credit out of which majority of goods have been returned back and the payments have been made after 3-4 months. Also, none of the pay....
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....he Act. During the course of search total stock of Rs. 10,83,10,948/- was found from business premises of the appellant out of which stock of Rs. 4,59,16,574/- was found fully recorded in books of account and therefore, stock of Rs. 6,23,94,369/- was found excess from shop of the appellant. Further, from residential premises of the appellant stock of Rs. 3,63,68,311/- was found out of which stock of Rs. 20,85,006/- was not seized in view of CBDT Circular No 1916 and the same has already been held genuine vide para 3.1.12 of this order. Therefore, unrecorded stock of Rs. 3,42,83,305/- (Rs. 3,63,68,311/- - Rs. 20,85,006/-) was found from residential premises of the appellant. Therefore, total unrecorded stock of jewellery of Rs. 9,66,77,674/- was found during the course of search. Various loose papers were found and seized which contain details unaccounted purchase of jewellery to the tune of Rs. 8,33,99,441/-. The brief details of noting made on page no 19, 24 & 32 of BS-4, which has also been prepared by the appellant are as under:- Sr. No. Item Weight (gms) Amount (in Rs.) Noting in loose paper 1. Gold Ornaments 4,570.340 1,27,33,654 BS-4/32 2. ....
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....6,77,674/-, stock of Rs. 8,33,99,441 being total of stock of Rs. 3,42,83,305/- kept at residence and stock of Rs. 4,91,16,136/- kept at shop of M/s. N. R. Jewellers is treated as deemed income within the provisions of section 69A of the Act. Regarding remaining stock of Rs. 1,32,78,233/- {Rs. 6,23,94,369/- - Rs. 4 9116 136/-, it can be safely held that this amount is unaccounted stock of M/s. N.R. Jewellers for which explanation offered by the appellant about its source of acquisition is not found satisfactory within the meaning of section 69B of the Act. The appellant has offered additional income of Rs. 68,28,637/- on account of excess stock of M/S. N.R. Jewellers which is being treated as part of unaccounted stock of Rs. 1,32,78,233/-. Therefore, the actual stock which is to be treated as unexplained excess stock u/s 69B of the Act is Rs. 1,32,78,233/-. Therefore, the AO is hereby directed to treat the excess stock of Rs. 8,33,99,441/- found during the course of search from business & residential premises of the appellant as undisclosed investment u/s 69A of the Act and excess stock of Rs. 1,32,78,233/- found from business premises as unexplained excess stock u....
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....Gandhi [1983/ 141 ITR 67 and Sundar Lai Jain v. CIT [1979] 117 [TR 316, respectively, contended, t/'la! Section 68 of the ACI can be invoked only, when, the books of account of the assessee show the cash entry and not otherwise. 5. We are afraid, such a narrow and restricted interpretation of the provisions, contained in Section 68 was advanced by learned counsel for the appellant/assessee, cannot be accepted. If the liability shown in the said account, which, is found to be bogus and in the absence of any plausible and reasonable explanation offered by the assessee, then, certainly, the amount can be added towards the income of assessee and brought to tax in the hands of the assessee ". Accordingly, correct provisions have been applied here. 8. Aggrieved by the confirmation of additions though part relief is granted as per the aforesaid decision of the Ld. CIT(A), the assessee has preferred an appeal before us. 9. While assailing Ground No. 1 of the present appeal, at the outset, Ld. AR of the assessee has submitted a written synopsis, which for sake of clarity, extracted as under: Ground no. 1 Submission of assessee 1. Addition made o....
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....P no. 220 (13,812.450 + 4,570.370 + 1,005) 19,387.820 23,781.250 iii) Silver quantity claimed similarly is 1,93,530 grams which is entered on LP no. 24 (31,400 grams) (PN 219 of PB-I) and LP no. 32 (1,62,130 grams being 50,470 + 1,11,660 grams) (PN 220 of PB-1). 6. Since impugned quantity of gold & silver items found recorded in seized diary, while calculating any difference between book & physical stock, these quantities are required to be considered as book stock, as availability of this stock is substantiated by the entries in diary. 7. Presumption u/s 132(4A) and 292C i) Presumption under above sections has not been rebutted and so contents of BS-4, LP no. 19, 24 & 32 have to be treated to be correct. iii) Going by entries in above referred LPs, receipt of quantities referred to therein has to be treated to be correct. Seized documents establish that certain quantities of gold and silver items were received by assessee before search and as per the narration given in such LPs, bills thereof were not received till the date of search. It is equally established that such quantities have not been entered in books. ....
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....tain engrossing of trade name of "NR/SPL". Strong circumstantial evidence that such items pertained to business of assessee. ▪ In answer to question no. 25 of statement dated 23.11.2018 (PN 104 of PB) assessee stated that in all the jewelleries tags are attached. ▪ Silver items in the form of payal are of repetitive designs and such payals of similar design are large in number. ▪ Weight of items found, like payal, bichiya etc. all aggregating to about 243.801 kg of silver - such huge quantity cannot be personal jewellery/item. ▪ Informed ADIT (Inv.) within 6 days of conclusion of search ▪ Immediately after conclusion of search on 24.11.2018, assessee addressed letter to ADIT (Inv.) on 30.11 .2018 intimating the correct facts. Letter placed at PN 136 & 137 of PB-I. ▪ ADIT (Inv.) did not take any steps to verify claim of assessee. Reliance on DCIT vs Rajendra Shanna in ITA no. 296/RPR/2014 dated 01.07.2019 (2019) 202 TTJ 6 (Raipur) (PN 362 to 372 of PB-2). iii) Shortage found at shop Considering the entries of reconciliation statement, there would be shortage ....
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....nd against purchases not entered in books, assessee could not mention the facts due to anxiety & tension. v) Surrender was made by the assessee on the basis of working prepared by the search team and the assessee did not go into correctness of such working. For these reasons, in answer to question no. 52 of the statement dated 23.11.2018 (PN 118 of PB) the assessee stated that whatever excess stock etc. was found, complete details would be given by him within 7 days of conclusion of search, which also shows that the surrender made by him was subject to verification. vi) Reliance on: - ▪ CIT vs Radha Kishan Goel (2005) 278 ITR 454 (AIL), PN 381 to 386 of PB- 2, relevant findings on PN 385, para no. 10. ▪ Sayyed Hamid Ali vs ACIT (2020) 205 TTJ 453 (Indore), para no. 17. ▪ CIT vs Mrs. Sushiladevi S. Agarwal (1994) 50 ITD 524 (Ahd.), para 7. ▪ Surinder Pal Verna vs. ACIT (2004) 89 ITD 129, 176 (Chd)(TM), para 24. vii) Moreover, assessee accepted the quantities and was unaware of valuation aspect and the search team posed questions on the basis of value only. 13. Retraction made by assessee ....
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....ious Courts that misquoting of a section is not fatal, relying upon Om Prakash Patidar HUF in ITA no. 220/Ind/2017 and M/S SVS Oils Mills in tax appeal no. 765/2018 of Hon'ble Madras High Court. On page 122, he concluded that correct provisions have been applied by him. v) Summary of AO's & CIT(A)'s findings: - Particulars Addition made by AO Addition confirmed b Id. CIT A Remarks Sec. (IQs.) sec. (Rs.) Unexplained stock of Jewellery at shop 69B 6,23,94,369/- 69A 4,91,16,136/- 69B 1,32,78,233/- Sub-total (A) 6,23,94,369/- 6,23,94,369/- Unexplained jewellery found at residence 69A 3,63,68,311/- 69A 3,42,83,305/- CIT(A) deleted Rs. 20,85,006/- the basis of CBDT circular no. 1 91 6. Total (B) 9,87,62,680/- 9,66,77,674/- Difference of Rs. 20,85,006/- Less: Amount disclosed in return 68,28,637/- 69B 68,28,637/- Net addition (c) 9,19,34,043/- 8,98,49,037/- Difference of Rs. 20,85,005/- 10. On the basi....
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....Value (Rs.) 866600.00 5133950.00 709537.00 118550.00 TOTAL Over stock Value (Rs.) 6828637.00 11. Carrying the argument further, Ld. AR submitted that the stock received on approval and the purchase not entered in the books of account both were found recorded in the diary and loose papers seized during the search and such transactions were never disputed by the assessee. To substantiate this fact, Ld. AR drew our attention to the aforesaid reconciliation statement of the stock a/w the copy of seized diary being BS-4, LP No.19, 24 and 32 which are placed at page no. 218 to 220 of the PB No.1. In order to peruse the factual aspect of the transaction Page no. 218-220 are extracted here under: 12. Regarding quantity of gold ornaments received on approval for which purchase transaction was not entered in the books, Ld. AR submitted that according to LP No. 19, 24 & 32, the total Gold Ornaments in quantity were 23,781.220 grams (Net), which is tailing with the quantity as evident from the said loose papers, for which the details are culled out as under: LP No / Quantities in Gms Total Qty in Gms LP no. 218 (31.880 + 888.10 + 1120.20) 2,0....
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....from whom goods were received on approval basis, page no.146 to 149 of PB containing copies of final bill of suppliers whose goods were received on approval basis, page no. 152 to 155 having copies of ledger accounts of suppliers whose bills were pending to be entered in books of accounts, page no.156 to 169 showing copies of bills which were pending to be entered in books of accounts, page no. 170 to 174 containing copies of sales bills of goods sold to suppliers whose payments were pending and who were eventually paid by selling of the goods. 16. In terms of aforesaid submissions, Ld. AR further claimed that the presumptions u/s 132(4A) and 292(C) were not rebutted, therefore, the contents of BS-4 i.e., the seized diary and LP-19, 24 & 32 being the loose papers seized should be treated as correct accordingly the quantities mentioned in the seized documents regarding gold ornament, silver ornament, diamond ornament and gold bullion which were physically received by the assessee and are available at the time of the search, for which bills were yet to be received by the assessee, consequently the entries in books of accounts are pending. This shows and establishes that the quanti....
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....lery business to keep stock at a safe place. Ld. AR further argued that at page no. 119 of the appellate order Ld. CIT(A) also observed that out of stock of Rs. 8,33,99,441/-, the stock of Rs. 3,42,83,305/- was kept at the residence which shows that he had admitted that business stock was kept at residence. Similar observation was repeated at page 120, first para last five lines of the Ld. CIT(A)'s order. Ld. AR further mentioned that the stock found at the residence of the assessee was found fastened with tags containing information like for diamond jewellery- gross weight and net gold weight, carat of diamond, MRP of diamond, for silver items most of it was payal containing name of the assessee's business NR/SPL engrossed on it. Such strong circumstantial evidence also shows that these items pertains to business of assessee. Ld. AR further submitted that the weight of silver articles like Payal, Bichiya etc. found at residence of the assessee was in aggregate of about 243.801 Kgs, such huge quantity cannot be the personal jewellery of the assessee, therefore, there is no justified reason to treat them as individual personal stock of the assessee. 19. Ld. AR of the assessee fur....
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....sed an affidavit stating that during stock verification, individual items were not weighed and the stock was verified in duskiness with the help of torchlight and that so she had denied to sign the inventory but she was made to sign the inventory under coercion. We also observe that this affidavit was filed by the assessee before the JDIT (Inv.), Raipur on 28.03.2012. Although, the inventory prepared during search, which has been signed by the employee of the assessee, cannot be called into question but, at the same time, we also observe that the concerned employee had immediately on the next date of conclusion of search, deposed affidavit bringing out certain discrepancies in the stock verification process by way of making allegation that she had signed the inventory under coercion. Not only this, the affidavit was also submitted before an authority, as high as JDIT(lnv.) immediately on 28.03.2012. In other words, the assessee brought out certain facts before the JDIT(Inv.) within the shortest possible time. In such a case, the revenue was required to immediately cause further enquiry into the matter, especially when such grave charges were levelled about the stock verification pr....
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....cts of the case, no adverse view could be taken against the assessee. 20. Referring again to the circumstantial evidence, Ld. AR submitted that after reconciliation of the stock, the quantity of stock reduced by stock physically available at the shop of the assessee was found to be short and the said shortage was matched with the stock physically found at the residence of the assessee, therefore, in aggregate the stock at shop and residence was representing the actual business stock of the assessee for which quantities are received on approval basis but book entries were pending or because of bills to be received. Ld. AR further drew our attention to assessment order page no. 17 para (v), wherein Ld. AO himself have also observed that, if there was shortage in the business premises then it could have been considered that items found at residence was of business concern of the assessee, this observation of the Ld AO is fortified by the evidences furnished by the assessee and confirmed by the concerned suppliers. With such submissions, Ld. AR appealed that the quantity of stock found at residence also pertains to business of the assessee. 21. Regarding applicability of sec. 69A....
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....ncial year." The section in terms requires that the Assessing Officer has to first "find" that the assessee has "expended" an amount which he has not fully recorded in his books of account. It is only then that the burden shifts to the assessee to furnish a satisfactory explanation. Till the initial burden is discharged by the Assessing Officer, the section remains dormant. ▪ CIT vs Naresh Khattar HUF (2003) 261 ITR 664 (Del.) 10. There is no gainsaying that to invoke the provisions of Section 69B of the Act, the burden is on the Revenue to prove that the real investment exceeds the investments shown in the books of account of the assessed. As observed by the apex court in K.P. Varghese v. ITO [1981] 131 ITR 597, to throw the burden of showing that there is no understatement of the consideration received, on the assessed would be to cast an almost impossible burden upon him to establish a negative, namely, that he did not receive any consideration more than what has been declared by him. Therefore, if the Revenue seeks to hold that the assessed has received more than what has been declared by him in respect of the assessment in question, the onus wo....
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....d that the High Court was not justified in setting aside the order of acquittal on the basis of Section 132(4A) of the Act. Therefore, even if, the presumption available under Section 132(4A) of the Act can be raised against the assessee, the ingredients, by way of prerequisite conditions of Section 69 of the Act have to be satisfied and cannot be presumed to have been established on the basis of Section 132(4A) of the Act simpliciter. 15. In the light of what is stated hereinbefore the impugned order of Tribunal is held to be incorrect in law, in the facts and circumstances of the case and material on record. The Tribunal was not justified in remanding the matter to the CIT(A). It was necessary for the Tribunal to have dealt with the applicability of provisions of Section 69 together with provisions of Section 132(4A) of the Act after dealing with the reasons given by CIT(A) instead of recording "we are also at a loss to understand as to what to do with the issue at hand" as recorded in paragraph No, 20 of the impugned order. 16. The question referred is, therefore, answered in the negative, i.e. in favour of the assessee and against the Revenue. The appeal shall....
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....asis of value only. To support this contention, Ld. AR placed his reliance on following judgments: ▪ CIT vs Radha Kishan Goel (2005) 278 ITR 454 (AIL) 10. It is a matter of common knowledge, which cannot be ignored that the search is being conducted with the complete team of the officers consisting of several officers with the police force. Usually, telephone and all other connection are disconnected, and all ingress and egress are blocked are blocked. During the course of search person is so tortured, harassed and put to a mental agony that he loses his normal mental state of mind and at that stage it cannot be expected from a person pre-empt the statement required to be given in law as a part of his defence. ▪ Sayyed Hamid Ali vs ACIT (2020) 205 TTJ 453 (Indore) 17. Hon'ble Allahabad High Court in the case of CIT v. Radha Kishan Goel (2006) 8 (J) ITCL 260 (AllHe) : (2005) 278 JTR 454 (All) : (2006) 152 Taxman 290 (All), It was observed that it is a matter of common knowledge, which cannot be ignored that the search is being conducted with the complete team of the officers consisting of several officers with the police force. Usu....
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....les of evidence do apply as an ingredient of rules of natural justice (refer Central Bank of India Ltd. v. Prakash Chand Jain AIR 1969 SC 983 and the decision of the Supreme Court in the case of Chiiharmal v. CIT [1988] 172 ITR 250 at page 255. Therefore, the statement recorded on the search day has to be tested in accordance therewith. If a person at a later stage retracts from the statement given on the search day, then the Court or the Tribunal should try to ascertain reasons or circumstances from such person for doing so and if satisfied, not to place heavy reliance on such earlier statement which has subsequently been denied and retracted. Now let us examine, whether there were any compelling or justifiable reasons or circumstances on the part of the assessee for giving different statements on different occasions before different officers. It is common knowledge, open secret and admitted fact in this ancient and cultured country that woman/females are heavily dependent on males more particularly, husbands to look after and manage, on implied authority, their business matters, property dealings, tax and legal matters and, therefore, no eyebrow should be raised in astonishment n....
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....ed. The assessees are, therefore, entitled to modify/clarify the statements after verifying the necessary details from the relevant records at a later point of time. Smt. Neelam Verma had consistently taken the same stand from the stage of filing of the return that the sum of Rs. 1 lac has been utilized in construction of these three SCOs. 23. It is further submitted by the Ld. AR that since the surrendered made during the search was under misappreciation of facts without considering the contents of the books of accounts and seized documents, therefore, the assessee retracted the same vide letter dated 03.04.2019 a/w affidavit. 24. In terms of aforesaid submissions, Ld. AR submitted that since the assessee has reconciled the quantities of stock which were found to be in agreement with the physical quantities available at the shop and residence of the assessee. Assessee has established by way of furnishing the documentary evidence wherein it is apparent that the quantities purchased / received by the assessee on approval basis for which bills are received or yet to be received on the date of the search, there was no occasion for the assessee to complete the books in absence of....
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.... after the date of search which related to the month of November 2000 only and not for the earlier period. There were no supporting bills/ vouchers/ challans/ approval slips for goods send for approval etc. not found during the search. With such observations, Ld. CIT(A) has rightly rejected the contentions of the assessee and uphold the addition with part relief in terms of CBDT Circular No. 1916. Ld. CIT DR with such submissions have requested to uphold the order of Ld. CIT(A). 26. Regarding settlement of payments for goods purchase and approval by way of goods returned, in rejoinder, Ld. AR of the assessee submitted that since the major stock of the assessee was seized by the department the assessee was under financial stress. The assessee has to settle the payments towards the quantities received on approval for which bills have been received and on account of scarcity of funds the accounts of the creditors were settled by way of selling the stock lying with him to the said creditors. As per Ld. AR, this is a regular and common practice in the trade of the assessee. 27. We have considered the rival submissions, perused the material available on record and the case laws rel....
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....total purchase in the entire year for Rs.9.94 Crore. It is further observed that 72.40% of total purchase of the assessee was in the month of November 2018. It is also observed that goods of Rs.4.52 Crores were returned back by the appellant as sales returns. Regarding M/s Saheli Jewellers Pvt Ltd, It was the observation that as per GST details the impugned party has made only on transaction in the entire year of Rs.1.59 Crores with the assessee on 03.11.2018. For which payments have been made in the month of January 2019, this transaction are considered as suspicious in nature, similar observations were recorded by the Ld. CIT(A) regarding M/s Saheli Gems & Jewellers Pvt. Ltd., accordingly, the transactions were considered as managed for making unaccounted stock into accounted, (iii) It is also observed by the Ld. CIT(A) that the assessee had made purchase of jewellery from 7 parties in the month of November within 15 days before the date of search and the total purchase made was more than 72 % of the entire years purchase and the appellant did not remember their names, during statement recorded on oath on 3 consecutive days, (iv) It is also noted by the Ld. CIT(A) that during the....
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....e books of accounts, bills and vouchers during the assessment proceedings, however, since the same could not be provided to the survey team during the survey proceedings, the AO has not accepted the same with the observations that such books and documents prepared were an afterthought and are manipulated. Assessee's claim that the survey team has not provided them with sufficient time to produce the documents, was not found convincing by the ld. AO. When the issue was assailed before the ld.CIT(A) after going through the facts of the case and the relevant case laws, ld. CIT(A) has decided the matter in favour of the assessee deleting the addition made by the AO with the observations that rejection of books and estimation of profit is based on merely the statement of assessee's partner u/s. 133A of the Act, there are several facts which were discussed in the appellate order, considering the same, the action of the ld.AO based on no material, cannot be sustained. Ld. CIT(A) while discussing the issue has taken support from the judgment of the Hon'ble Jurisdictional High Court of Chhattisgarh in the case of ITO Vs. Vijay Kumar Kesar, reported in 327 ITR 497, wherein Their Lordship had....
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....No.F.No.286/2/2003-IT(Inv), dated 10th March, 2003 and Circular No.F.No.286/98/2013-IT (Inv.II), dated 18th December, 2014, there by issuing guidelines to the revenue authorities to be observed/overseen and to be followed by collecting the evidence during the course of search/survey operations. 17. In view of the aforesaid observations on the first contention of the assessee that merely on the basis of confessional statement of the assessee which were recorded u/s. 133A of the Act which could not be considered as sacrosanct or decisive having no supporting evidence to substantiate such confession, any addition made by the AO is subjected to be set aside. This contention of the assessee is worth acceptance in terms of judicial pronouncements by the Hon'ble Apex Court and Hon'ble Jurisdictional High Court as referred to supra. Ld. CIT(A) has accepted the said contention of the assessee under the situation when books of accounts and bills and vouchers along with supporting evidence etc. were submitted by the assessee, however, the same were summarily rejected by the AO without examining the same on the basis of presumption, surmises and having a preconceived notion. Therefore....
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....slodged by the revenue, neither any evidence or material could be brought on record by the revenue to rescue their findings 31. Regarding retraction by the assessee, Ld CIT(A) observed that the appellant has admitted and surrendered the entire excess stock during the search, also the stock found at residence of the assessee was not stated by the assessee as business stock during the course of search when the statement of the assessee were recorded. The retraction was only a concocted story and after thought. The appellant has failed to discharge his onus regarding substantiating the retraction. On this issue, after thoughtfully deliberating upon the submission of the assessee and various evidence, we are of the considered view that the supporting evidence like confirmation from the supplier parties, quantity tally between the seized documents and the final bills from the suppliers and similar quantity of stock in aggregate from the shop and the residence establishes that the onus cast upon the assessee to support the retraction has been duly discharged, therefore, the contention raised through retraction substantiated with corroborative evidence cannot be rejected at threshold, ....