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TaxTMI 
TaxTMI 
TaxTMI 
2023 (7) TMI 1650
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....he LD CIT(A) is Erred in confirming the said sum inspite of the fact that Appellant had retracted his statement immediately has he could do so counting the general circumstances & covid-19 pandemic situations & also waited to receive the copy of original statement recorded. 4. The LD CIT(A) is also erred in arriving at conclusion that cash portion given by the Appellant to the developer without appreciating the fact that agreement value was at Rs. 1,10,00,000/- as against stamp duty valuation/market value of the said property was only Rs. 83,82,000/- 5. The Ld CIT(A) is failed to appreciate the fact that the statement given by the appellant was under pressure as appellant's Wife shocked and she was taken immediately to the doctor by the investigating team officers. 5A. The Ld CIT(A) is also erred in not considering the retracted statement which was filed immediately after getting the statement from the Ld A.O. & Immediately after completion of Lockdown due to Covid-19 Pandemic. 6. The Appellant prays to delete the addition made on this account. 7. The Appellant craves leave to add, alter, amend or delete the above ground/s of appeal.....
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....ition of Rs. 42,69,000/- made by the AO on account of Unexplained Investment by way of cash made in Property Being Flat No. C-805, Suparshwa Urbana, Old Nagardas Road, Andheri (East), Mumbai. During the course of search proceedings, digital evidence in the form of excel files in laptop and whatsapp messages in the mobile phone of the assessee were found pertaining to the purchase of flat at C-805, Suparshwa Urbana, Old Nagardas Road, Andheri (E), Mumbai 400069. The digital evidence pointed out that during the year, the assessee had made cash payment of Rs 42.69 lakhs to the builder Suparshwa Estate over and above the agreement value of Rs 1,1 crore. The assessee accepted the said cash transaction in his statement recorded u/s 132(4) and offered the amount of Rs. 42 69 lakh as his undisclosed income. However, almost 8 months after the search, the assessee retracted from the disclosure made by filing an affidavit on 02.07.2020 by simply stating that the earlier disclosure statement was given under pressure and that no cash payment had been made in respect of the relevant property transaction. The appellant also took the plea that the change of hands of cash was not proved in his case....
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....been generally made within a reasonable time or by filing complaint to supenor authorities or otherwise brought to notice of the higher officials by filing duly sworn affidavit of statement supported by convincing evidence. Such a statement when recorded at two stages cannot be discarded summanly in cryptic manner by observing that the assessee in the belatedly filed affidavit have retracted from their statements Such retraction is required to be made as soon as possible or immediately after the statement of the assessee was recorded. Duration of time when such retraction was made, assumes significance and in the present case, retraction has been made by the assessee after eight months to be precise, 237 days. 62. It is settled position of law that the admission though important is not conclusive. It is open to the assessee who made the admission to show that it is incorrect as held by the Hon'ble Supreme Court in Pullangode Rubber Produce Co. Ltd. v. State of Kerala [1973] 91 ITR 18. The onus falls on the person who had earlier admitted to prove it wrong. Therefore, the statements could form the basis of assessment. 63. The statements given to the Assessing o....
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.... be given any credence, on the other hand, the statements given by three persons under section132(4) carries more evidentiary value and cannot be discarded. Further, the Assessing Officer also brought corroborative evidence in the form of the evidence showing refund of capitation fees, recommendation letters given by VIPS of the locality seeking waiver/reduction in the capitation fees/donations, exchange the messages between A, S and D and admission agent. This corroborative evidence remains uncontroverted by the assessee society. Thus, there is a conclusive evidence brought on record by the Assessing Officer to hold that the assessee had been indulging in collection of capitation fees from the students at the time of admission in various courses under the management quota. The relevant extracts of the said order are as under: 27. Now, we shall deal with the contention made on behalf of the appellant society that no evidentiary value can be attached to the statements made by said three persons u/s 132(4) of the Act in view of the affidavits filed on 21-4-2014 before the Assessing Officer by the said three persons. The said affidavits are claimed to be retraction s....
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....cause the retractment statements were filed The statements u/s 132(4) are true and correct and brings out the correct picture as at that time the maker of the statement is uninfluenced by external agencies and it is the statements are recorded in the presence of the independent witnesses Therefore, in our considered opinion, the so-called retraction statements are simple a self-serving statements without any material and cannot override the statements recorded u/s 132(4) of the Income-tax Act. The reliance placed by the Id. Counsel on the decision of the Hon'ble Delhi High Court in the case of CIT v. Sunil Aggarwal (2015) 64 taxmann.com 107/2016] 237 Taxman 512/[2015] 379 ITR 367 cannot come to the rescue of the appellant herein for the reason that in the said case the assessee apart retracting the statement also discharged the onus of proving the statement is incorrect through cogent material. 8.1.3 In the case of Nayyar Patel v. ACIT [2022] 137 taxmann.com 149 (Kerala), the Hon'ble Kerala High Court has held that where pursuant to search conducted at assesseee's premises, his statement was recorded under section 132(4) and later assessee retracted his stateme....
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....ssure, makes it nothing but a bald statement. No credence can be given to the retraction statement and it looses significance. The statement recorded under section 132(4) cannot be discarded merely because the retraction statement was filed The statement under section 132(4) brings out the correct picture as at that time the maker of the statement is uninfluenced by external agencies and the statements are recorded in the presence of the independent witnesses. Therefore, the so-called retraction statements is a simple self-serving statement without any material and cannot override the statement recorded under section132(4). Moreover, in the instant case the statement made by the assessee u/s 132(4) accepting the cash transactions of Rs.42.69 lakh was based on strong corroborating evidence by way of excel sheets of seized digital evidence and whatsapp chats of seized mobile phone data which further confirmed the cash transactions. This digital evidence cannot in any case be negated 8.3 In view of the above, the addition of Rs.42,69,000/- made by the AO as unexplained investment is upheld. Grounds 1 to 4 are accordingly dismissed." 4. During the course of appellate procee....
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....ed the agreement value of Rs.1,10,00,000/- and the cash component of over and above the agreement value of Rs. 42.69 lac. It is establish that there was incriminating material found and seized during the course of search action in the case of the assessee. Therefore, ground no. 1 of the assessee that nothing was found during the course of search is not correct. Accordingly, ground no. 1 of the assessee stand dismissed. 6. Regarding other ground of appeal No. 3 to 5A, we find that as per copy of agreement placed in the paper book at page no. 18 to 48 it is evident that assessee has executed the agreement on 15.11.2017 for purchasing the above referred flat from the builder M/s Suparshwa Estate. The total price of the property as per the agreement was Rs. 1.10 crores. It is noticed that as per clause W at page 5 of the agreement the carpet area of the flat no. 805 was mentioned of 546 sq. ft. which matched with the area of the Flat recorded in the excel sheet as 546 sq. ft. In the excel sheet the different components of the transactions are clearly mentioned. The agreement value and the area of the flat was matched with the transactions recorded in the excel sheet. It is clarely m....