TaxTMI 
TaxTMI 
2025 (5) TMI 1587
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..... 3,71,04,136/-. The main source of income of the assessee are from Professional fee, interest income and dividend income. As a result of search jurisdiction over the cases was assigned to Central Circle -22, New Delhi vide order u/s. 127 of the Act. The notice u/s. 143(2) and further notices u/s 142(1) were issued from time to time and the assessee responded to the notices issued and filed details required during the assessment proceeding. During the search at the residence of the assessee at 12A Green Avenue, Pocket -3, Vasant Kunj, New Delhi loose papers were found/seized marked as Annexure-A-1 to A-18. Statement of assessee were recorded u/s 132(4) of the Act where in response to question No.22, the assessee made a disclosure of additional income of Rs. 100 crores on account of the discrepancies found at the time of search. Thereafter during post search proceedings before the ADIT, Unit-IlI(1), the authorized representative of the assessee (his CA) vide letter dated 28/05/2012 re-confirmed the surrender and increased the amount of additional income from 100 crores to 130 crores and stated the bifurcation of the disclosure of additional income offered by the assessee during the ....
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....minating material but a statement of the assessee recorded during the proceeding u/s. 132(4) is only piece of evidence found as a result of search which although retracted however, will not make the fact corrected that there was no incriminating material, therefore, the addition was justified and she vehemently supported the order of the ld. AO on this issue The ld. DR further challenged the various finding of the ld. CIT(A). She has heavily relied on the statement recorded u/s. 132(4) of the Act wherein the assessee has accepted the additional income of Rs. 10.crores as his additional income in addition Rs. 120 crores offered as additional income in the hands of other entities. Ld. CIT DR further stated that the addition was based on the confession before the investigation and now the assessee cannot say that the statement is not correct. No evidence was filed in support the allegation that the statements were recorded and admission was obtained from the assessee under pressure. In addition, the ld. DR also filed a written submission in respect of the grounds raised by the revenue, which is reproduced as under: "1. Kind attention is invited to para 16 of the assessment or....
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....to claim that said statement was recorded under some coercion or pressure. Such claim of the assessee gets contradicted by the fact that he had reconfirmed content of his statement recorded under section 132(4) by way of a letter dated 28/05/2012, which was filed around 6 month after such statement. Such letter, by no stretch of imagination can be considered as having been written under some kind of pressure or coercion. Moreover, in case as alleged, statement u/s. 132(4) of the Act was recorded under some pressure, why did assessee not make complaint about the same to higher authorities in the department? Further, if the statement was recorded under pressure, why did assessee not retract it within few days of recording of such statement? It is pertinent to highlight that assessee is making allegation of pressure and harassment more than 3 years after the date of making the statement. There is no reason or justification given by the assessee for taking such a long time gap for challenging the statement. In fact, as stated earlier, case records also indicates that the assessee did not file any retraction by way of affidavit before the concerned authorities. Thus, conduct of the asse....
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....Therefore, as per the law, the content of the statement under section132(4) are required to considered as true. In his order, the Ld. CIT(A) has neither given any finding supporting the claim of assessee regarding pressure/duress on him, nor held that the assessee successfully rebutted the presumption arising from statement under section132(4). In absence of such findings in his order, the Ld. CIT(A) committed an error of law in ignoring the admission made by the assessee under section 132(4) of the I.T. Act and deleting the addition made by the Α.Ο. 8. Without prejudice to the contention of the Revenue that admission of additional income by the assessee was based on seized documents and discrepancies therein as noted and judged by the assessee in his wisdom at the time of recording of the statement on oath, relief could not have been allowed to the assessee by the Ld. CIT(A) merely on the ground that "addition made by the A.O. is not based on any document found in the search action" in light of fact that such addition was based on an admission made in a sworn statement under section 132(4) of the I.T. Act, which was neither rebutted nor proved to be invalid/....
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....The ld. CIT(A) has after recording the detailed findings and following binding decisions allowed the appeal of the assessee on the issue of addition on account of alleged admission of additional income in the statements recorded during the search. The ld. AR of the assessee submitted that by not declaring additional income in the return of income filed, the assessee has retracted from the confession of additional made in the statements recorded u/s 132(4) which cannot be binding since the same was made under pressure. The search was commenced in the early morning and recording of statements were continued for around 12 hrs. and assessee was allowed a break of only few minutes in the evening. 8. It is further submitted by the ld. AR that the admission of undisclosed income of Rs. 10,00,00,000/-, was made on ad hoc basis, without referring to any incriminating document found in the search & seizure action u/s 132 of the Act. He further stated that in the case of Shri B.C. Jindal, admission of undisclosed income of Rs. 30 crores was included in the return of income filed on 31.8.2012 and due taxes along with interest were paid as such surrender was based on the incriminating materi....
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....ement discontinued temporarily at 8.15 pm for providing rest as requested" (emphasis supplied) 12. Most importantly, the recording of the statement was resumed at 9 pm on the same night of 14.11.2011 and continued till the wee hours of 15.11.2011. It may be noted that the recording of statement went on during odd hours and ultimately concluded only during the early hours of the next day i.e., 15.11.2011. 13. At the fag-end of the recording of statement, when the assessee was completely exhausted, he was asked to comment on certain voluminous seized annexures (documents and hard disk) marked as Annexure A-1 to A-18, found from his residential premises, in response to which the assessee categorically stated that the aforesaid annexures relate to his business and family and that he shall offer his comments on the same later on. The extracts of the said question and response, which was one of the last queries posed to the assessee is extracted hereunder: "Q.21 During the course of search at your residence i.e., 124, Green Avenue, Sector D-III, Vasant Kunj documents/hard disk found and seized as Annexure A-1 to A-18. Please comment on the contents of these Ann....
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.... assessee was fully exhausted and surrendered the aforesaid ad-hoc amount undress coercion. 17. In the post search proceedings, the assessee was again pressured to give the detailed working/ basis of the amount surrendered and make payment thereof. In response to the same, the authorized representative of assessee, vide a one-page letter dated 28.05.2012, gave a vague bifurcation of the aforesaid surrendered amount of Rs. 100 crores as under: (Refer page 23 of the PB): (i) a sum of Rs. 90 crores was stated to be offered on behalf of Lucky Holdings Pvt. Ltd.: and (ii) balance Rs. 10 crores was stated to be offered on behalf the assessee himself. 18. Later, on examination of the contents of the entire seized documents (including Annexures A-1 to A-18) and the state of affairs as per the regular records, it was evident that the surrender made at the time of search under duress/ coercion ought not to have been made since there was, in reality, no discrepancy that warranted any such surrender. Accordingly, return of income was on 27.09.2012 without including any such surrendered amount, thereby formally withdrawing/retracting from the surrender errone....
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....l found during the course of search. Further, even after the completion of search, relentless pressure by the investigating wing continued and to avoid unnecessary harassment, the assessee had no option but to continue with the same position and filed. 25. Later, on undertaking detailed verification of the seized annexures, books of accounts and other relevant documents/ records maintained, it transpired that the amount surrendered was completely unfounded and ought not to have been surrendered in the first place, and accordingly, no part of the amount surrendered was offered to tax in the return of income filed on 27.09.2012. 26. Pertinently, even in the post search proceedings i.e., investigation/assessment, no incriminating documents was ever confronted to the assessee by the Department to demonstrate any nexus of the above amount of Rs. 10 crores. Repeated request to AO to undertake verification to assess correct taxable income 27. It is imperative to note here that during the course of assessment, the assessing officer, vide notice dated 17.01.2014 (enclosed at page 27 of the PB), confronted the assessee to explain why the income surrendered....
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....plain as to why the amount surrendered in response to question no.22 of the statement recorded during the course of search was not offered to tax. In the said notice, the assessing officer, despite the assessee's earlier letter dated 27.01.2014, did not pin-point/ confront the assessee with any specific document/information which warranted surrender of any additional income. 30. In response to the aforesaid show-cause notice, the assessee, vide letter dated 04.12.2014 (enclosed at pages 32 to 37 of the PB), again reiterated that the surrender made during the course of search was ad-hoc, without any basis and was made under huge pressure, only to buy peace. In the said letter, the assessee even pin-pointed that the Department was unable to place on record any incriminating material to insist the assessee to offer to tax such amount. The relevant extracts of the aforesaid letter is reproduced as under: ".....The aforesaid alleged surrender of Rs. 10 crores made during the search proceedings was adhoc and not based on any discrepancy/incriminating documents found during the search. The aforesaid surrender had absolutely no basis in law as the same has no nexus or....
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....aw, the same being de-hors any incriminating material or documents found during search. It is further pertinent to mention that even in the post search proceedings like investigation or assessment, no incriminating documents have been confronted to me by the Department to demonstrate any nexus of the above amount of Rs. 10 crores. Being so, the same was of no consequence and no adverse inference can be drawn on that basis ............. Considered in the light of the aforesaid factual and legal position, it is respectfully submitted, that the aforesaid sum of Rs. 10 crores having no nexus whatsoever with any incriminating documents/evidences which have been confronted to me which would demonstrate that the said amount represents my income for the assessment year under consideration either during the search proceedings or thereafter." (emphasis supplied) 31. On perusal of the above letter dated 4.12.2014, it will kindly be appreciated that the assessee had categorically mentioned before the assessing officer that: a) the amount surrendered during the course of search was ad-hoc, without any basis and under huge pressure; b) the contents of....
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.... 35. Despite the above, the assessing officer proceeded to conclude the assessment by making addition of Rs. 10 crores in the hands of the assessee, without any basis and failed to bring on record any incriminating material/document to support such addition, that too, despite repeated requests by the assessee during the course of assessment. 36. In the aforesaid facts, it is respectfully submitted that no cognizance could have, in law, been taken of the amount surrendered on an ad-hoc basis by the assessee during the search, more so, when the surrender did not have any nexus with any document(s), much less incriminating, found during the course of search. Income tax Act mandates assessment of real "income" 37. In this regard, it is respectfully submitted that assessment under the provisions of the Act is required to be made with reference to the correct taxable real "income" of the assessee and consequently, such assessment ought to be as per documents, records and evidence and not merely on the basis of any ad-hoc, that too, involuntary statement/ surrender made during the course of search, which too stands subsequently retracted/ clarified, as discussed here....
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.... return or the books of accounts may be relevant, but is not conclusive and can be clarified/ withdrawn at a subsequent stage. 45. Reliance, in this regard, is placed on the following decisions wherein the Courts have consistently held that admission, per se, cannot be the foundation of assessment; admission may be an important piece of evidence but cannot be held to be conclusive. - Pullangode Rubber Produce Co. Ltd. vs. State of Kerala: 91 ITR 18 (SC) - The Supreme Court in Sri Krishna vs. Kurukshetra University, AIR 1976 SC 376 - Abdul Qayume vs. CIT: 184 ITR 404 (All.) - The Federal Bank Ltd. vs. The State of Kerala: AIR 1995 Kerala 62 @ 64 (Ker) 46. To the same effect are the following decisions: Basant Singh V. Janki Singh: AIR 1967 SC 341 (SC) Bharat General Reinsurance Co. Ltd.: 81 ITR 303 (Del) Satinder Kumar (HUF) V. CIT: 106 ITR 64 (HP) DCIT V. Sreeni Printers: 67 STC 279 (Ker.) KrishanLal Shiv Chand Rai V. CIT: 88 ITR 293 (P&H) Indo Java & Co. V. IAC: 30 ITD 161(SB) Addition cannot be made simply on the basis of statement recorded during search, that too,....
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....obtain confession to the undisclosed income, rather concentrate on collection of evidence of income which lead to what has not been disclosed or is not likely to be disclosed before the Income-tax authorities. The relevant extracts of the said Instruction reads as under: "Instances have come to the notice of the Board where assessee have claimed that they have been forced to confess the undisclosed income during the course of the search & seizure and survey operations. Such confessions, if, not based upon credible evidence, are later retracted by the concerned assessee while filing returns of income. In these circumstances, such confessions during the course of search & seizure and survey operations do not serve any useful purpose. It is, therefore, advised that there should be focus and concentration 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. 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. Any action on the contrary shall be viewed ....
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.... vs. ITO: 288 CTR 579 (Guj) 58. CIT v Smt. Jaya Lakshmi Ammal: 390 ITR 189 (Mad) 59. PCIT vs. Best Infrastructure (India) Pvt. Ltd. 397 ITR 82 (Del) 60 Ratan Corporation: 197 CTR 536 (Guj.) 61. It has similarly been held in the following decisions: CIT vs. N. Swamy 241 IIR 363 (Mad) CIT vs. Radha Kishan Goel: 278 ITR 454 (All) Surinder Pal Verma V. ACIT: 89 ITD 129 (Chd.) (TM) Smt. Ranjnaben Mansukhlal Shah V. ACIT: 83 TTJ 369 (Rajkot) Ashok Manilal Thakkar vs. ACIT: 97 ITD 361 (Ahd.) Rajesh Jain vs. DCIT: 100 TTJ 929 (Del) Catherine Thomas V. DCIT: 111 ITD 132 (Cochin) 62. To the same effect are the decision in the following cases: * PCIT vs. PGF Ltd.: 457 ITR 607 (Delhi) * Krishan Lal Shiv Chandra Rai vs. CIT: 88 ITR 293 (P&H) * CIT vs. M.P. Scrap Traders: 372 ITR 507 (Guj) * CIT vs. Ravindra Kumar Jain: 201 Taxman 95 (Jhar) (Mag) * DCIT vs. Sanjeev J Aeren: ITA Nos.5596 & 5597/Del/2015 (order dated 30.10.2024) (Del. ITAT) * DCIT vs. Sh. Anil Sankhwal: ITA No. 1472/Del/2020 (order dated 24.10.2024) (Del. ITAT) *....
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....nue. No addition made in the case of Lucky Holdings 67. It is also of utmost importance to note here that similarly in the case of Lucky Holdings Pvt. Ltd. in respect of which ad-hoc amount of Rs. 90 crores was surrendered, the same was not considered by the company in the return of income filed for the assessment year 2012-13, since the same was not supported by any document found and seized during the course of search (Refer pages 44 to 46 of the PB). 68. It is submitted that the case of Lucky Holdings Pvt. Ltd. for the assessment year 2012-13 was subsequently re-opened under section 148 of the Act on the basis of disclosure made in the statement recorded of the assessee during search proceedings (Refer pages 47 to 51 of the PB). However, the assessment was ultimately concluded vide order dated 29.03.2016, passed under section 147/143(3) of the Act accepting the returned income and no addition was made on account of the so-called surrender made by the assessee (Refer pages 60 to 61 of the PB). 10. The ld. AR also filed rejoinder wherein the case laws relied upon by the ld. CIT DR vide written submissions dated 18.05.2022 are distinguished as under: ....
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....f the assessee in the course of which several incriminating documents and material were found and seized. The assessee in his statement recorded on oath under section 132(4) admitted having procured gifts of Rs. 50 lakhs from 'R' During the course of the block assessment proceedings, the assessee retracted his admission on bogus gifts, asserting that the gift given to him by 'R' was genuine and not procured. The assessee further submitted that the confession was extorted under coercion, pressure and duress. The assessing officer rejected the assessee's explanation and added amount of gift to undisclosed income of the assessee. The Tribunal, however, taking a view that transaction of gift was genuine, deleted addition made by the assessing officer. On Revenue's appeal, the High Court reversed the order of the Tribunal after observing that was no evidence or even an indication as to how the assessee knew the donor, a well-known businessman, who gave the gift to the assessee. In the aforesaid peculiar facts, especially considering that the assessee was unable to substantiate why such huge gift would be made by a stranger donor, the ad....
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....liar facts. 4. Bannalal Jat Constructions Pvt. Ltd. vs. ACIT: 264 Taxman 5 (SC) In the said case, the director of the assessee company surrendered the cash found during the course of search as undisclosed income in the statement recorded during the course of search, which was later retracted on the ground that such cash actually belonged to another proprietary concern. In light of the aforesaid facts, the Court, after specifically taking note of the fact that cash was found from the premises of the assessee which could not be explained and that the assessee indulged in maintaining transaction on diaries and loose papers which was not permissible in any of the method of accounting, disregarded the retraction as being without any evidence or proof and upheld the addition made by the assessing officer The aforesaid case being on its peculiar facts, wherein retraction was disregarded considering that actual cash was found which remained unexplained, is not at all applicable in the case of the assessee. 5. M/s Pebble Investment and Finance Ltd. vs. ITO: 2017-TIOL-188-HC-MUM-IT (Bom) SLP Dismissed in 2017-TIOL-238-SC-IT (SC) ....
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.... in the case of an assessee, however no statement was recorded. Thereafter, two months later, the assessee voluntarily filed a declaration in pursuance of the proceedings under section 133A confirming surrendering income of 1.25 crores. Later, after a period of 2 years, the assessee submitted that letter for declaration was given to remove the pressure of the Income-tax Authorities and it did not represent true and correct picture of the affairs. Thus, the surrendered income was not included in the return of income filed. In the assessment proceedings, the assessing officer disregarded the retraction and proceeded to make addition of the surrendered amount, which order was confirmed by the CIT(A) and ITAT. In the aforesaid facts, on further appeal preferred by the assessee, the High Court, after specifically considering the fact that the surrender was not made in the statement during survey, but was made voluntarily by way of declaration, that too two months after the survey had concluded, held that such declaration cannot be said to be under force or compulsion. Further, the retraction after a long gap of 2 years was also held to be unjustifiable Accordingly, the....
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....e of search operation, from the bank accounts of the assessee's two proprietary concerns, an amount was seized. in the statement recorded during the course of search, the assessee admitted the fact of the money received in his bank accounts and further that the money belonged to him and that it represented his unaccounted income. Subsequently, during the assessment proceedings, the assessee retracted from his earlier admission of unaccounted income. In the assessment, the assessing officer added the amount surrendered by the assessee, which was confirmed by the CIT(A) and ITAT. On further appeal, the High Court, taking note of the fact that the assessee was unable to satisfactorily explain the amounts credited, disregarded the retraction and confirmed the addition made. It may be noted that in the aforesaid case, the addition was made on the basis of unexplained amounts credited in the bank accounts of the assessee, which could not be explained by the assessee. The decision being distinguishable on facts, is not applicable. 10. ACIT vs. Hukum Chand Jain: 191 Taxman 319 (Chhatisgarh) In this case, search and seizure operation was conducted at ....
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.... ignored from consideration. 11. Greenview Restaurant vs. ACIT: 133 Taxman 432 (Gauhati) In this case, the assessee was a partnership firm carrying on the business of running a restaurant. A search was conducted in its premises and in the course of which the books of account of the assessee were seized by the authorized officer under the Act. During the search, the authorized officer recorded certain statements of one of the partners of the firm. The case of the assessee-firm was that the said partner was not a literate person and the income-tax authorities used force and coercion to compel him to sign the said statements which the said person did out of fear and compulsion. On receipt of copy of the statement, the said partner addressed a letter to the assessing officer retracting the statements made by him. The assessing officer however included the amount surrendered as income of the firm. On appeal, the CIT(A) deleted the addition, which was reversed by the ITAT on the ground that assessee's partner had made his statement suo motu under section 132(4) and on facts it was clear that there was neither an inducement or threat at the time of making th....
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....lly considered assessment order, written submissions, case law and oral arguments of Ld. AR. The objections/arguments of the appellant are discussed as under:- (i) In the case of the appellant's group, a search and seizure action u/s 132 was carried out on 14.11.2011. In the statement of income recorded u/s 132(4) of the Act, the appellant has made the total disclosure of Rs. 130 crores, which includes disclosure of Rs. 10 crs, in the hands of the appellant. The details of disclosure of Rs. 130 crores, were furnished by the AR vide letter dated 28.5.2012 and same is summarized as under:- S. No. Name of Person A.Y. Admitted Amount (Rs.in crores) Amount included in return Annexure Referred Remark 1. M/s Lucky Holdings Pvt. Ltd. 2012-13 90 NIL No No addition was made u/s 147 by AO 2. Shri S.S. Jindal 2012-13 10 Nil No Addition is made by A.O. 3. Shri B.C. Jindal 2012-13 30 30 JJ/1 & JJ/7 Disclosure is accepted Total 130 30 (ii) Original return of income u/s 139(1) was filed on 27.9.2012, declaring total income of Rs. 3,71,04,136/-, ....
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.... of disclosure of Rs. 90 crores, since this disclosure was not supported by any document found during search action. (vi) It has been submitted by the appellant that no seized material, evidencing the fact that the appellant was in possession of the undisclosed income of Rs. 10 crores, in the form of any cash or assets) or any undisclosed investment, was found during search & seizure action or subsequently during assessment proceedings. Therefore, facts of the appellant are identical to the facts of M/s Lucky Holdings Pvt. Ltd., for A. Y. 2012-13, for adhoc disclosure in the statement recorded during search, without any incriminating document. (vii) It is further submitted by the appellant, the CBDT has also issued Instruction No. 286/2/2003-IT Inv, dated 10.3.2003 that the A.O. should make addition on the basis of evidences collected during search and seizure action or thereafter while framing the relevant assessment order. In the case of the appellant, no evidence has been found during course of search and seizure action nor thereafter before completing the assessment u/s 143(3) of the Act. From the above, following facts emerged: - the disclos....
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....hargeable to tax, represented in the form of an asset, which has escaped assessment amounts to or is likely to amount to fifty lakh rupees or more for that year. Hence, the Legislature in their wisdom has introduced new provisions to mean that for assessing or re-assessing any year beyond 3 years, consequent to search on or after 1st April, 2021, the requirement of incriminating material is mandatory. 14. It is a settled proposition of law that mere statement u/s 132(4) or u/s 131 is not sufficient to make an addition. A statement made must be relatable to incriminating material found during the search or the statement must be made relatable to some material by subsequent inquiry/investigations. 15. Hon'ble Supreme Court in the case of Pullangode Rubbers Produces CO Ltd (supra) has observed as under: "It is no doubt true that entries in the account books of the assessee amount to an admission that the amount in question was laid out or expended for the cultivation, upkeep or maintenance of immature plants from which no agricultural income was derived during the previous year. An admission is an extremely important piece of evidence but it cannot be said that it i....
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....e Delhi High Court in case of Harjeev Agarwal (supra) held as under: "...A plain reading of Section 132 (4) of the Act indicates that the authorized officer is empowered to examine on oath any person who is found in possession or control of any books of accounts, documents, money, bullion, jewellery or any other valuable article or thing. The explanation to Section 132 (4), which was inserted by the Direct Tax Laws (Amendment) Act, 1987 w.e.f. 1st April, 1989, further clarifies that a person may be examined not only in respect of the books of accounts or other documents found as a result of search but also in respect of all matters relevant for the purposes of any investigation connected with any proceeding under the Act. However, as stated earlier, a statement on oath can only be recorded of a person who is found in possession of books of accounts, documents, assets, etc. Plainly, the intention of the Parliament is to permit such examination only where the books of accounts, documents and assets possessed by a person are relevant for the purposes of the investigation being undertaken. Now, if the provisions of Section 132(4) of the Act are read in the context of Section 1....
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....retracted by the Assessee. In a situation like this, where the office premises are sealed for many days and during that period, a statement is said to have been recorded under Section 132 (4) of the I.T. Act, the Tribunal's view that only the basis of such retracted statement, addition could not be justified without any other material admissible in evidence, warrants no interference as it is not a substantial question of law. In the case of Commissioner of Income Tax Versus Harjeev Aggarwal reported in (2016) 290 CTR (Del) 263 and Kailashben Manharlal Chokshi Versus Commissioner of Income Tax reported in (2010) 328 ITR 411 (Guj) various High Courts have held that addition based solely on statement later on retracted, without anything more, could not be justified in law. Thus, the view taken by the Tribunal cannot be faulted. In view of the above consideration, we are of the view that this appeal does not involve any substantial question of law and is, therefore, dismissed. 22. AT this juncture, it is also relevant to mention that in the case of M/s Lucky Holding Pvt. Ltd. in whose hands a sum of Rs. 90 Crores were admitted by the assessee in the same statem....