TaxTMI 
TaxTMI 
2024 (10) TMI 1816
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....of Rs. 4,68,76,340/-. There was a survey action u/s. 133A of the Act was conducted at the business premises of the assessee and family members on 27.12.2010 at 1: 30 P.M. and concluded on the next date at 4:00 P.M. During the course of survey, statements were recorded disclosing income of Rs. 25 crores by forcibly creating fabricated evidence in the form of a newly written diary. The above affidavit was retracted immediately by way of an affidavit. The assessee and his sons had to agree for so called unaccounted income disclosure under coercion and duress. The newly prepared diary (page 158 to 167 of PB), which was compelled to be written in hand writing of the Accountant Shri Shailendra Y. Doshi in early morning was done only to obtain support for the pre-determined amount of disclosure, and it contains only paper entries which is not true on facts and in law. In so called transactions, which had been forcefully written hurriedly through Accountant, by them contains so many grave mistakes and are also against the preponderance of probability. Some of the evidences will clearly indicate, so called cash transactions have been hurriedly written in the early morning and are far from t....
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....d after execution of the sale deed on 10.11.2008, there could be no possibility of paying on money to the land owner by M/s AVS Infracon Pvt. Ltd., the ultimate purchaser of the land. Further, the diary (marked as Annexure A-1) Impounded by the Party No.2 led by the I.T.O., Ward-1, Gandhinagar appears to be newer than the diary (Marked as Annexure- A) impounded by the Party No.5 led by the TRO, Gandhinagar Range and the handwritings in the diary impounded by the ITO, Ward-1, Gandhinagar also appeared to be freshly written than the handwritings found in the diary Impounded by the TRO, Gandhinagar Range, Gandhinagar. The details of payments of Rs. 18,00,00,000/- (pages 165 to 167 of paper book) were shown as under :- Date Amount 18.09.2012 1,10,00,000/- 28.09.2012 1,20,00,000/- 10.10.2012 90,00,000/- 18.10.2012 1,50,00,000/- 26.10.2012 1,40,00,000/- 05.11.2012 1,10,00,000/- 11.11.2012 1,50,00,000/- 17,11.2012 95,00,000/- 26.11.2012 1,15,00,000/- 30.11.2012 1,65,00,000/- 03.12.2012 1,05,00,0007- 07.12.2012 1,15,00,000/- 10.12.2012 1,50,00,000/- 18.12.2012 1,85,00,000/- Total 18,00,00,000/- ....
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....s. 34,11,915/- and the payment of Rs. 4,53,45,600/- has been shown as made through cheques and thus, the balance amount to be paid in cash has been shown at Rs. 19,40,00,903/-. 6.1 The analysis of these documents clearly reveals that the contents of the diary (impounded by Survey Team No.2) for payment of cash of Rs. 19,40,00,000/- In respect of Vejalpur land which was included in the disclosure of Rs. 25,00,00,000/- made by the appellant at the time of survey proceedings is nothing but an arranged one and there is some force in the averment of the appellant that the survey team dictated the narration of the entries which were made in a single handwriting by the accountant at one stretch. Further, no post- survey inquiry had been made by the A.O. so as to ascertain the sources of cash shown as to be paid (being liability which had also not been ascertained as to which company it belonged or related) as the land deal was made between two companies and Shri Jugaji Babaji Thakor. The company M/s AVS Infracon Pvt. Ltd. was incorporated only on 07.07.2008 and had purchased the said land from M/s AVS Developers Pvt. Ltd. as confirming party and Shri Jugaji Babaji Thakor, the ori....
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....the Hon'ble ITAT, Delhi (2016) 74Taxmann.com 224 (Delhi ITAT) 6.6 Considering the above judicial pronouncements relied on by the undersigned on the core issue of validity of retraction of the admitted disclosure of Rs. 25,00,00,000/- and making subsequent addition of Rs.19.40 crores, is decided in favour of the appellant by holding that the retraction of the admitted disclosure was valid and, therefore, the subsequent addition of Rs. 19.40 crores made by the A.O. is directed to be deleted. Thus, the ground no.1 is also allowed after taking into the account the above judicial pronouncements. 6.7 In view of all these facts coupled with the above-referred judicial pronouncements, the retraction from the original disclosure of Rs. 25,00,00,000/- to the reduced disclosure of Rs. 4,50,00,000/- which reflected in the return of income filed for A.Y. 2013-14 is held to be valid. Accordingly ground no. 1 of the appeal is allowed and the consequential addition of Rs. 19,40,00,000/- made by the A.O. is accordingly deleted. 3.1. Against the addition of Rs. 9,47,78,991/- being investments made in various plots of land at Village Harsol, Ld CIT[A] called for a remand repo....
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....) Pages 41 to 69 of the said diary remained blank and no contents were found to be noted on these pages. e) On pages 70 to 79, some jottings were found which reflected the payments to various persons. Page 80 contained the address of one Shri Dilip Narayandas Patel with date of birth and no financial transactions were recorded. f) The names appeared in this diary for payments to the various persons on various dates are noted as under :- i) Shri Sanjaybhai B. Patel (claimed to be money giver) ii) Shri Ashishbhal B. Patel (claimed to be money giver) iii) Shri Hamidkhan Sarvarkhan iv) Kiritbhal Vakil v) Liyakhat Miya Mohammadmiya Parmar vi) Mustakmiya Sakumiya vii) Vipulbhal Savaliya (claimed to be money giver) viii) Abbasbhal ix) Mamu Miya Abid Miya x) Parmar Rajubibi Usmanmiya xi) Pathan Daulatkhan M. xii) Popatbhai Dhulabhai xiii) Parmar Samir Miya Usumanmiya xiv) Ishwarbhal xv) Rami Sureshbhai Vithaldas xvi) Hiteshbhal Kalathiya(claimed to be money giver) g) On each and every page, the signature of Shri B. V. Pat....
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....491/- leaving difference of Rs. 3,72,501/- which might be attributable to totaling mistake or non- accounting of some amounts by the appellant in the cash book. The A.O. ought to have given the credit for opening cash balance of Rs. 28,27,500/- which were the transactions of loans received from these persons in the earlier year and payments made out of such receipts of Rs. 70,00,000/- leaving the opening balance at Rs. 28,27,500/-, Considering all these facts, the addition of Rs. 3,52,00,000/- is confirmed on this account and the balance amount of Rs.1,45,78,991/- is directed to be deleted. Thus, the ground no.2 of the appeal is partly allowed. 4. Aggrieved against the appellate order Assessee is in appeal before us raising the following Grounds of Appeal: (1) That on Commissioner grievously addition facts and of in Income law tax the learned (Appeals) has erred in partly confirming the of Rs. 3,52,00,000/- (out of Rs. 4,97,78,991/-) made on account of unexplained investment. (2) That on facts, in law, and on evidence on record, the entire addition ought to have been deleted, as prayed for. (3) The appellant craves leave to add, alter, amend any ground....
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....f which final Sale Deed which was executed on 10-11-2008 which is relating to the Asst. Year 2009-10, whereby the AO made addition of Rs. 19.80 crores. Normally in property transactions the Sale deed describes the details of property, how long the same had been owned by Vendor, is it by way of Sale or inheritance, mode of payments/consideration received, etc. It is a case on record the property relates to Vejalpur land was purchased by AVS Developers Pvt. Ltd. in July to Nov'2008 for the cost of Rs.421 lakhs and a registered Sale Deed executed on 10-11-2008 with original land owner shri Jugaji Thakor. 6.2. It is thereafter AVS Developers Pvt. Ltd. had transferred the said land to AVS Infra Pvt. Ltd. for a consideration of Rs 453.21 lacs as indicated in the above seized deed, the difference amount have been duly accounted for by the said company in A.Y. 2009-10. Further the said purchase and sale are duly recorded in the Audited Accounts of the Company i.e. AVS Developers in A.Y. 2009- 10 [which are placed at page 225 of PB]. Whereas the Ld AO without considering the above documents held that the land transaction completed on execution of registered sale deed in Nov, 2008 ....
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....de by the Ld AO on this count is liable to be deleted. 6.6. The AO has described the basis for making the so called cash payments from September to December' 2012 is based on the Civil Suit Decree dated 19-11-2012 in respect of the family dispute of Jugaji Thakor's family. This finding arrived by the Ld AO is totally baseless and illogical, since the registered Sale Deed was executed as early as 10-11-2008 and the so called cash payments cannot be made after passage of four years in respect of the concluded transaction. The assessee was not at all concerned with the internal family disputes of Shri Juqaji Thakor and it defies all logic, reasons and also human probability that the original owner who executed the registered Sale Deed will wait for cash payments till four years. Further now, the High Court order also held that the claim of the other family members of land ownership was without basis dismissed their claim. 6.7. In view of the above direct evidences and retraction affidavit on oath, it is clear that the Pocket diary Nilkanth A-1, was prepared hurriedly and under duress by the Survey Team, so the same can't be the ground for any addition and the said ad....