Appeal details
Counselvise Citation
[2023] 100 COUNSELVISE.COM (IT) 5005 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
22 day(s)
Appellant
Respondent
Appeal Type
Cross Objection
Pronouncement Date
28-11-2023
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
D
Next Hearing Date
15-11-2023
Assessment Year
2017-2018
Appeal Filed On
06-11-2023
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “D” MUMBAI BEFORE SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) AND SHRI RAHUL CHAUDHARY (JUDICIAL MEMBER) ITA Nos. 2143 & 2142/MUM/2023 Assessment Years: 2017-18 & 2018-19 DCIT, CC-4(1), Room No. 1916, 19 th floor, Air India Building, Nariman Point, Mumbai-400021. Vs. Mr. Rashmin Girdharlal Rughani, 7, Rughani Villa, Khandelwal CHS Ltd., Shankar Lane, Kandivili (W), Mumbai-400067. PAN No. AABPR 0302 D Appellant Respondent CO Nos. 116 & 117/Mum/2023 (Arising out of ITA Nos. 2143 & 2142/MUM/2023) Assessment Years: 2017-18 & 2018-19 Mr. Rashmin Girdharlal Rughani, 7, Rughani Villa, Khandelwal CHS Ltd., Shankar Lane, Kandivili (W), Mumbai-400067. Vs. DCIT, CC-4(1), Room No. 1916, 19 th floor, Air India Building, Nariman Point, Mumbai-400021. PAN No. AABPR 0302 D Appellant Respondent Assessee by : Mr. Gaurav Kabra Revenue by : Smt. Sanyogita Nagpal, CIT-DR Date of Hearing : 16/11/2023 Date of pronouncement : 29/11/2023 PER OM PRAKASH KANT, AM These appeals by the Revenue and cross assessee are directed against two separate orders 08.03.2023 passed by the Ld. Commissioner of Income (Appeals)-52, Mumbai [in short ‘the Ld. CIT(A)’] for assessment year 2017-18 and 2018-19. Since, the issue in dispute involved in both these appeals and cross were heard together and disposed off by way of this consolidated order for convenience and avoid repetition of facts. 2. Firstly, we take up the appeal of the Revenue and cross objections of the assessee for assessment year 2017 relevant grounds raised by the Revenue are as under: 1. "On the facts and in the circumstances of the case, the Ld.CIT(A) erred in restricting the addition of Rs.22,10,27,447/ account of suppression of cash receipts to Rs.2,51,85,790/ 2.1 The cross-objections raised by the assessee are as under: 1. The Learned CIT(A) has erred in restricting the addition of alleged suppression of cash receipt to the extent of Rs.2,51,85,790/ considering the facts and circ 2. The Learned Assessing Officer as well as Learned CIT(A) has erred in not appreciating the that no addition can be made on the basis of the statements which was retracted later on. 3. The Learned Assessing Officer as well as Learned CIT has erred in not appreciating the fact that during the course of cross examination of third person, he himself Mr. Rashmin Girdharlal Raghani ITA Nos. 2143 & 2142 & CO No. 116 & ORDER PER OM PRAKASH KANT, AM These appeals by the Revenue and cross-objections by the assessee are directed against two separate orders 08.03.2023 passed by the Ld. Commissioner of Income 52, Mumbai [in short ‘the Ld. CIT(A)’] for assessment year 19. Since, the issue in dispute involved in both these appeals and cross-objections, is are common the were heard together and disposed off by way of this consolidated order for convenience and avoid repetition of facts. we take up the appeal of the Revenue and cross objections of the assessee for assessment year 2017 ant grounds raised by the Revenue are as under: 1. "On the facts and in the circumstances of the case, the Ld.CIT(A) erred in restricting the addition of Rs.22,10,27,447/ account of suppression of cash receipts to Rs.2,51,85,790/ objections raised by the assessee are as under: The Learned CIT(A) has erred in restricting the addition of alleged suppression of cash receipt to the extent of Rs.2,51,85,790/- on the basis of the peak balance, without considering the facts and circumstances of the case. The Learned Assessing Officer as well as Learned CIT(A) has erred in not appreciating the that no addition can be made on the basis of the statements which was retracted later on. The Learned Assessing Officer as well as Learned CIT has erred in not appreciating the fact that during the course of cross examination of third person, he himself Mr. Rashmin Girdharlal Raghani 2 ITA Nos. 2143 & 2142 & CO No. 116 & 117/Mum/2023 objections by the assessee are directed against two separate orders, both dated 08.03.2023 passed by the Ld. Commissioner of Income-tax 52, Mumbai [in short ‘the Ld. CIT(A)’] for assessment year 19. Since, the issue in dispute involved in both are common therefore, same were heard together and disposed off by way of this consolidated we take up the appeal of the Revenue and cross- objections of the assessee for assessment year 2017-18. The ant grounds raised by the Revenue are as under: 1. "On the facts and in the circumstances of the case, the Ld.CIT(A) erred in restricting the addition of Rs.22,10,27,447/- made on account of suppression of cash receipts to Rs.2,51,85,790/-" objections raised by the assessee are as under: The Learned CIT(A) has erred in restricting the addition of alleged suppression of cash receipt to the extent of on the basis of the peak balance, without umstances of the case. The Learned Assessing Officer as well as Learned CIT(A) has erred in not appreciating the that no addition can be made on the basis of the statements which was retracted The Learned Assessing Officer as well as Learned CIT(A) has erred in not appreciating the fact that during the course of cross examination of third person, he himself categorically denied that the noting belongs to the appellant. 4. Briefly stated facts of the case are that in the search/survey action u/s 132 and 133A of the Income Act’) carried out on 06.10.2017 at the premises of Group’/’Evergreen Group’, i engaged in undisclosed activity of money lending and unaccounted cash loan transactions Shri ‘Nilesh Bharani Act on 11.10.2017 stated that he had been engaged in cash lending and borrowing with persons including promoters of the ‘Ashray Group’. The assessee is one of the ‘Ashray Group’ of Companies the case of search of u/s 132 of the Act was also carried out at the premises of the ‘Ashray Group’ inclu incriminating material was seized. 4.1 In the case of the assessee original return of income was filed on 27.03.2018 declaring total income at Rs.46,98,430/ course of search action u premises of the ‘Ashray Group Shri Dipak Padia, account said data certain excel sheets were found as sent from the official e mail account of Mr. Dipak Padia to his personal e Mr. Rashmin Girdharlal Raghani ITA Nos. 2143 & 2142 & CO No. 116 & categorically denied that the noting belongs to the appellant. Briefly stated facts of the case are that in the search/survey 32 and 133A of the Income-tax Act, 1961 (in short ‘the on 06.10.2017 at the premises of Group’/’Evergreen Group’, it was observed that said group was engaged in undisclosed activity of money lending and unaccounted nsactions. The main person of the ‘Evergreen Group ’, in his statement recorded u/s 132(4) of the Act on 11.10.2017 stated that he had been engaged in cash lending and borrowing with persons including promoters of ’. The assessee is one of the directors ’ of Companies. In view of the information gathered in the case of search of ‘Sunshine/ Evergreen Group’, u/s 132 of the Act was also carried out at the premises of the including the assessee on 18.12.2017 incriminating material was seized. In the case of the assessee original return of income was filed on 27.03.2018 declaring total income at Rs.46,98,430/ action u/s 132 of the Act carried out at the Ashray Group’ on 18.12.2017, data of the mobile of accountant of ‘Ashray Group’, was seized. In the said data certain excel sheets were found as sent from the official e of Mr. Dipak Padia to his personal e-mail account. The Mr. Rashmin Girdharlal Raghani 3 ITA Nos. 2143 & 2142 & CO No. 116 & 117/Mum/2023 categorically denied that the noting belongs to the Briefly stated facts of the case are that in the search/survey tax Act, 1961 (in short ‘the on 06.10.2017 at the premises of ‘Sunshine t was observed that said group was engaged in undisclosed activity of money lending and unaccounted Evergreen Group’, in his statement recorded u/s 132(4) of the Act on 11.10.2017 stated that he had been engaged in business of cash lending and borrowing with persons including promoters of directors of the . In view of the information gathered in a search action u/s 132 of the Act was also carried out at the premises of the ding the assessee on 18.12.2017 and certain In the case of the assessee original return of income was filed on 27.03.2018 declaring total income at Rs.46,98,430/-. In the /s 132 of the Act carried out at the data of the mobile of was seized. In the said data certain excel sheets were found as sent from the official e- mail account. The printout of those excel sheets was taken out proceedings. On being Padia admitted that those excel sheets transaction of the assessee which were not recorded in regular books of accounts. Consequent to search action the Act was issued to the assessee. In response, the assessee filed return of income on 13.02.2019 declaring total income Rs.46,98,430/- i.e. the income return of income. Subsequently statutory notices were issued and after taking into consideration submission of the assessee, the Assessing Officer passed assessment he made addition for Rs.22,10,27,447/-. On further appeal, the Ld. CIT(A) noted that in the excel sheet unaccounted cash transaction of Rs.22,10,27,447/ are related to assessment year 2017 amounting to Rs.26,22,64,438/ 2018-19. The Ld. CIT(A) after taking into consideration submission of the assessee, upheld peak credit of cash transactions at Rs.4,28,21,905/-, out of which peak of Rs. added in assessment ye upheld for assessment year 2018 CIT(A) is reproduced as under: “12. I have considered the facts of the case, as also the submissions made before me and the ma Mr. Rashmin Girdharlal Raghani ITA Nos. 2143 & 2142 & CO No. 116 & printout of those excel sheets was taken out . On being questioned during search action, Padia admitted that those excel sheets contain unaccounted cash of the assessee which were not recorded in regular books of accounts. Consequent to search action, notice the Act was issued to the assessee. In response, the assessee filed return of income on 13.02.2019 declaring total income i.e. the income which was declared in the original return of income. Subsequently statutory notices were issued and after taking into consideration submission of the assessee, the Assessing Officer passed assessment order on 29.12.2019 ddition for suppression of the cash receipts amounting to . On further appeal, the Ld. CIT(A) noted that in the excel sheet unaccounted cash transaction of Rs.22,10,27,447/ lated to assessment year 2017-18 whereas transaction nting to Rs.26,22,64,438/- are related to assessment year 19. The Ld. CIT(A) after taking into consideration submission upheld peak credit of cash transactions at out of which peak of Rs. 2,51,85,790/ added in assessment year 2017-18 and balance amount upheld for assessment year 2018-19. The relevant finding of the Ld. CIT(A) is reproduced as under: 12. I have considered the facts of the case, as also the submissions made before me and the material available on record. Mr. Rashmin Girdharlal Raghani 4 ITA Nos. 2143 & 2142 & CO No. 116 & 117/Mum/2023 during search action, Shri Dipak unaccounted cash of the assessee which were not recorded in regular , notice u/s 153A of the Act was issued to the assessee. In response, the assessee filed return of income on 13.02.2019 declaring total income at was declared in the original return of income. Subsequently statutory notices were issued and after taking into consideration submission of the assessee, the on 29.12.2019, wherein of the cash receipts amounting to . On further appeal, the Ld. CIT(A) noted that in the excel sheet unaccounted cash transaction of Rs.22,10,27,447/- whereas transactions to assessment year 19. The Ld. CIT(A) after taking into consideration submission upheld peak credit of cash transactions at 2,51,85,790/- has been 18 and balance amount has been 19. The relevant finding of the Ld. 12. I have considered the facts of the case, as also the submissions 12.1. The only effective ground is regarding the addition of cash receipts of Rs. singular issue. Since the issue is inter together and adjudi 12.2. One of the contention of the appellant is that the data found in the personal mobile / e belonging to the appellant group. It is also pointed out that Shri Dipak Padia has retracted his stateme recorded under pressure. I do not accept the above contention of the appellant. The statement of Shri Dipak Padia recorded on 18.12.2017 is very categorical and detailed. 12.3. The AO produced extracts of the statement in pag assessment order. The contents of the excel sheet have been explained in detail by Shri Dipak Padia. such documents. One such The repayment of installment cells of the excel sheets (Question No. 19). Column wise explanation of the excel sheet and the abbreviations used therein are explained (Question No. 20). The cash position details and its co various cells of excel sheet has been explained (Question No. Similar co-relations and other questions. 12.4. Thus, it cannot be stated that the statement of Shri Dipak Padia has no basis or that the averments have be based on certain conjunctures. the appellant to demonstrate and prove that such cash transactions did not belong to him. It is not denied by the appellant that Shri Dipak Padia was an employee of department during the relevant period. It is noted that Shri Dipak Padia has confirmed the contents of the excel sheets not just once on 18.12.2017 but also on 20.12.2017. precedences are very relevant: a. The decision of Hon'ble Apex Court in the case of Surjeet Singh Chhabra AIR 1197 SC 2560 (doj: 25.10.1996), wherein it was held as follows: "Since the dispute concerns the confiscation of the jewellery, whether at conveyor be green channel, perhaps the witnesses were required to be called. But in view of confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to cross before the authority takes a decision on proof of t find no force in this contention. The Customs officials are not police officers. The confession, though retracted, is an admission Mr. Rashmin Girdharlal Raghani ITA Nos. 2143 & 2142 & CO No. 116 & 12.1. The only effective ground is regarding the addition of cash receipts of Rs. 22,10,27,447/-. All the grounds revolve around this singular issue. Since the issue is inter-linked, the grounds are taken up together and adjudicated. 12.2. One of the contention of the appellant is that the data found in the personal mobile / e-mail of Shri Dipak Padia cannot be presumed to be belonging to the appellant group. It is also pointed out that Shri Dipak Padia has retracted his statement subsequently as having been recorded under pressure. I do not accept the above contention of the appellant. The statement of Shri Dipak Padia recorded on 18.12.2017 is very categorical and detailed. 12.3. The AO produced extracts of the statement in pages 5 to 10 of the assessment order. The contents of the excel sheet have been explained in detail by Shri Dipak Padia. He has explained various details about such documents. One such explanation is that 1.5 will mean 1.5 Lakhs. The repayment of installments has also been co-related with various cells of the excel sheets (Question No. 19). Column wise explanation of the excel sheet and the abbreviations used therein are explained (Question No. 20). The cash position details and its co-relation with ells of excel sheet has been explained (Question No. relations and explanations have been given in respect to other questions. 12.4. Thus, it cannot be stated that the statement of Shri Dipak Padia has no basis or that the averments have been made therein simply based on certain conjunctures. Rather, there is a very heavy onus on the appellant to demonstrate and prove that such cash transactions did not belong to him. It is not denied by the appellant that Shri Dipak Padia was an employee of the appellant and worked in the accounts department during the relevant period. It is noted that Shri Dipak Padia has confirmed the contents of the excel sheets not just once on 18.12.2017 but also on 20.12.2017. In this regard the following judicial edences are very relevant:- a. The decision of Hon'ble Apex Court in the case of Surjeet Singh Chhabra AIR 1197 SC 2560 (doj: 25.10.1996), wherein it was held as follows: "Since the dispute concerns the confiscation of the jewellery, whether at conveyor be green channel, perhaps the witnesses were required to be called. But in view of confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure to give him the opportunity to cross-examine the witne violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. Therefore, he is entitled to cross-examine the panch witnesses before the authority takes a decision on proof of the offence. We find no force in this contention. The Customs officials are not police officers. The confession, though retracted, is an admission Mr. Rashmin Girdharlal Raghani 5 ITA Nos. 2143 & 2142 & CO No. 116 & 117/Mum/2023 12.1. The only effective ground is regarding the addition of cash . All the grounds revolve around this linked, the grounds are taken up 12.2. One of the contention of the appellant is that the data found in the mail of Shri Dipak Padia cannot be presumed to be belonging to the appellant group. It is also pointed out that Shri Dipak nt subsequently as having been recorded under pressure. I do not accept the above contention of the appellant. The statement of Shri Dipak Padia recorded on 18.12.2017 is es 5 to 10 of the assessment order. The contents of the excel sheet have been explained details about explanation is that 1.5 will mean 1.5 Lakhs. related with various cells of the excel sheets (Question No. 19). Column wise explanation of the excel sheet and the abbreviations used therein are explained relation with ells of excel sheet has been explained (Question No. 21). explanations have been given in respect to 12.4. Thus, it cannot be stated that the statement of Shri Dipak Padia en made therein simply Rather, there is a very heavy onus on the appellant to demonstrate and prove that such cash transactions did not belong to him. It is not denied by the appellant that Shri Dipak the appellant and worked in the accounts department during the relevant period. It is noted that Shri Dipak Padia has confirmed the contents of the excel sheets not just once on In this regard the following judicial a. The decision of Hon'ble Apex Court in the case of Surjeet Singh Chhabra AIR 1197 SC 2560 (doj: 25.10.1996), wherein it was held as follows: "Since the dispute concerns the confiscation of the jewellery, whether at conveyor belt or at the green channel, perhaps the witnesses were required to be called. But in view of confession made by him, it binds him and, therefore, in the facts and circumstances of this case the failure examine the witnesses is not violative of principle of natural justice. It is contended that the petitioner had retracted within six days from the confession. examine the panch witnesses he offence. We find no force in this contention. The Customs officials are not police officers. The confession, though retracted, is an admission and binds the petitioner." In this case, the retraction filed within 6 days was rejected by the Hon'ble Apex C b. As held in T S Kumarasmy vs ACIT, 65 ITD 188, by the Hon'ble Madras ITAT, "It is well known that the Income Officers are not Police Officers and they do not use or resort to unfair means or third degree methods in recording oath statements and before them during the course of search operations or during the course of any proceedings before them then we think such statements, admissions and confessions are binding and cannot be retracted, unless and u proved by legally acceptable evidence that such admission, confession or oath statement was involuntary or tendered under coercion or duress. No such circumstances existed or proved to have existed." No such evidence recorded under duress has been brought on record. c. In the case of Manharlal Kasturchand Choksi, 61 ITD 55 (ITAT Ahd), it has been held that "6... It is well admission by a party is the best evidence of the and, though not conclusive is decisive of the matter unless successfully withdrawn or proved erroneous.... Further, nothing on record that the said assessee under duress, pressure and/or coercion. The ret after a lapse of over two months from the date of disclosure by the assessee was an afterthought and the affidavit filed by the assessee on which much reliance has been placed by the assessee's counsel, was a self therefore, say that the assessee has failed to prove and establish that he was tortured by searching party but nonetheless it cannot be ignored that the assessee retracted from the earlier statement made on search date and upon retraction he rendered himself untr the eyes of law and accordingly the addition of Rs. 7 lacs to the income declared is fully justified." d. In the case of CIT vs Hukum Chand Jain, 337 ITR 238; 236 CTR 92 (doj: 10.08.2009), the Hon'ble Chattisgarh HC has held as follows: Mr. Rashmin Girdharlal Raghani ITA Nos. 2143 & 2142 & CO No. 116 & and binds the petitioner." In this case, the retraction filed within 6 days was rejected by the Hon'ble Apex Court. b. As held in T S Kumarasmy vs ACIT, 65 ITD 188, by the Hon'ble Madras ITAT, "It is well known that the Income Officers are not Police Officers and they do not use or resort to unfair means or third degree methods in recording oath statements and therefore whatever is confessed and admitted before them during the course of search operations or during the course of any proceedings before them then we think such statements, admissions and confessions are binding and cannot be retracted, unless and until, we repeat, unless and until it is proved by legally acceptable evidence that such admission, confession or oath statement was involuntary or tendered under coercion or duress. No such circumstances existed or proved to have existed." No such evidence of statement having been recorded under duress has been brought on record. c. In the case of Manharlal Kasturchand Choksi, 61 ITD 55 (ITAT Ahd), it has been held that "6... It is well-settled in law that as admission by a party is the best evidence of the point in issue and, though not conclusive is decisive of the matter unless successfully withdrawn or proved erroneous.... Further, nothing on record that the said disclosure was made by the assessee under duress, pressure and/or coercion. The ret after a lapse of over two months from the date of disclosure by the assessee was an afterthought and the affidavit filed by the assessee on which much reliance has been placed by the assessee's counsel, was a self-serving statement. We can, re, say that the assessee has failed to prove and establish that he was tortured by searching party but nonetheless it cannot be ignored that the assessee retracted from the earlier statement made on search date and upon retraction he rendered himself untrustworthy and unreliable in the eyes of law and accordingly the addition of Rs. 7 lacs to the income declared is fully justified." d. In the case of CIT vs Hukum Chand Jain, 337 ITR 238; 236 CTR 92 (doj: 10.08.2009), the Hon'ble Chattisgarh HC has held follows: "27. From the principles of law laid down in the aforesaid judgments, it may be deducted that, admission is one important piece of evidence but it cannot be said that it is conclusive. It is rebuttable. It is open to the assessee who made admission to establish that confession was involuntary and the same was extracted under duress and coercion. The burden of proving that the statement was obtained by coercion or intimidation lies upon the assessee. Where the assessee claims that he made the statement under the mistaken belief of fact Mr. Rashmin Girdharlal Raghani 6 ITA Nos. 2143 & 2142 & CO No. 116 & 117/Mum/2023 and binds the petitioner." In this case, the retraction filed within b. As held in T S Kumarasmy vs ACIT, 65 ITD 188, by the Hon'ble Madras ITAT, "It is well known that the Income-tax Officers are not Police Officers and they do not use or resort to unfair means or third degree methods in recording oath therefore whatever is confessed and admitted before them during the course of search operations or during the course of any proceedings before them then we think such statements, admissions and confessions are binding and cannot ntil, we repeat, unless and until it is proved by legally acceptable evidence that such admission, confession or oath statement was involuntary or tendered under coercion or duress. No such circumstances existed or proved to of statement having been c. In the case of Manharlal Kasturchand Choksi, 61 ITD 55 (ITAT settled in law that as point in issue and, though not conclusive is decisive of the matter unless successfully withdrawn or proved erroneous.... Further, there is disclosure was made by the assessee under duress, pressure and/or coercion. The retraction after a lapse of over two months from the date of disclosure by the assessee was an afterthought and the affidavit filed by the assessee on which much reliance has been placed by the serving statement. We can, re, say that the assessee has failed to prove and establish that he was tortured by searching party but nonetheless it cannot be ignored that the assessee retracted from the earlier statement made on search date and upon ustworthy and unreliable in the eyes of law and accordingly the addition of Rs. 7 lacs to the d. In the case of CIT vs Hukum Chand Jain, 337 ITR 238; 236 CTR 92 (doj: 10.08.2009), the Hon'ble Chattisgarh HC has held "27. From the principles of law laid down in the aforesaid judgments, it may be deducted that, admission is one important piece of evidence but it cannot be said that it is conclusive. It is rebuttable. It is open to the n to establish that confession was involuntary and the same was extracted under duress and coercion. The burden of proving that the statement was obtained by coercion or intimidation lies upon the assessee. Where the assessee claims that ent under the mistaken belief of fact e. In the case of Sudarshan P Amin vs ACT, 35 taxmann.com 370 ( Gujarat HC; (doj: 08.01.2013), the Hon'ble HC has held that where assessee has disclosed a sum as undeclared income in two Statements, and both were addition stands confirmed. f. 234 Taxman 771 (SC), B Kishore Kumar vs DCIT [2015] (doj: 02.07.2015) statement during search and seizure about his undisclosed income, tax was to be scrutinizing documents. g. 351 ITR 143 (Delhi HC); Bhagirath Aggarwal vs CIT (doj: 22.01.2013); addition in assessee's income relying on statements recorded during search operations cannot be deleted without proving vide CA no.16170/2013. h. [2019] 106 taxmann.com 128 (SC) / [2019] 264 Taxman 5 (SC), BannalalJat Constructions (P.) Ltd. vs ACIT assessee to show that admission made by director in his statement was wrong and such retraction had to be supported by a strong evidence showing that earlier statement was recorded under duress and coercion. Mr. Rashmin Girdharlal Raghani ITA Nos. 2143 & 2142 & CO No. 116 & or law, he should have applied for rectification to the authority who passed the order based upon his statement. The retraction should be made at the earliest opportunity and the same should be established by producing any contemporaneous record or evidence, oral or documentary, to substantiate the allegation that he was forced to make the statement in question involuntarily. 29. From perusal of the order of the CIT(A) as also the Tribunal, we find that none of the forums have recorded a finding that the statement under section 132(4) was obtained under duress. The assessee has totally failed to discharge the burden of proving that the statement was obtained under coercion or intimidation. He did not make any complaint to the Higher Authorities alleging intimidation or coercion for retracting the statement under section 132(4). The Tribunal has confirmed the order of the CIT(A) by observing that surrender was made under bona fide mistake though it was never the case of the assessee before any of the forums that the surrender was on account of bona fide mistake. The Appellate Forums while reversing the orders of the Assessing Officer are legally bound to dwell upon specific reasons assigned by the Assessing Officer for not accepting the explanation of the assessee." e. In the case of Sudarshan P Amin vs ACT, 35 taxmann.com 370 ( Gujarat HC; (doj: 08.01.2013), the Hon'ble HC has held that where assessee has disclosed a sum as undeclared income in two Statements, and both were recorded in presence of CA, addition stands confirmed. f. 234 Taxman 771 (SC), B Kishore Kumar vs DCIT [2015] (doj: 02.07.2015) - since assessee himself had stated in sworn statement during search and seizure about his undisclosed income, tax was to be levied on the basis of admission without scrutinizing documents. g. 351 ITR 143 (Delhi HC); Bhagirath Aggarwal vs CIT (doj: 22.01.2013); addition in assessee's income relying on statements recorded during search operations cannot be deleted without proving statements to be incorrect. SLP dismissed by SC vide CA no.16170/2013. [2019] 106 taxmann.com 128 (SC) / [2019] 264 Taxman 5 (SC), BannalalJat Constructions (P.) Ltd. vs ACIT - Burden lay on assessee to show that admission made by director in his statement was wrong and such retraction had to be supported by a strong evidence showing that earlier statement was recorded under duress and coercion. Mr. Rashmin Girdharlal Raghani 7 ITA Nos. 2143 & 2142 & CO No. 116 & 117/Mum/2023 or law, he should have applied for rectification to the authority who passed the order based upon his statement. The retraction should be made at the earliest opportunity and the same should be established by any contemporaneous record or evidence, oral or documentary, to substantiate the allegation that he was forced to make the statement in question 29. From perusal of the order of the CIT(A) as also the ms have recorded a finding that the statement under section 132(4) was obtained under duress. The assessee has totally failed to discharge the burden of proving that the statement was obtained under coercion or intimidation. He did not o the Higher Authorities alleging intimidation or coercion for retracting the statement under section 132(4). The Tribunal has confirmed the order of the CIT(A) by observing that surrender was made under bona fide mistake though it was never the e assessee before any of the forums that the surrender was on account of bona fide mistake. The Appellate Forums while reversing the orders of the Assessing Officer are legally bound to dwell upon specific reasons assigned by the Assessing Officer for accepting the explanation of the assessee." e. In the case of Sudarshan P Amin vs ACT, 35 taxmann.com 370 ( Gujarat HC; (doj: 08.01.2013), the Hon'ble HC has held that where assessee has disclosed a sum as undeclared income recorded in presence of CA, f. 234 Taxman 771 (SC), B Kishore Kumar vs DCIT [2015] (doj: since assessee himself had stated in sworn statement during search and seizure about his undisclosed levied on the basis of admission without g. 351 ITR 143 (Delhi HC); Bhagirath Aggarwal vs CIT (doj: 22.01.2013); addition in assessee's income relying on statements recorded during search operations cannot be deleted statements to be incorrect. SLP dismissed by SC [2019] 106 taxmann.com 128 (SC) / [2019] 264 Taxman 5 Burden lay on assessee to show that admission made by director in his statement was wrong and such retraction had to be supported by a strong evidence showing that earlier statement was i. In the case of 142 ITR 618 (Allahabad), Ram Ratan vs CIT, it has been held that "Ordinarily, in the a statements may be accepted as true but if there are circumstances which suggest that the statements on affidavit should not be accepted as true, the absence of denial by the other side, would not by itself be sufficient to clothe the statements on affidavit with truthfulness and reliability." Hence, this contention of the appellant is rejected. 13. Another contention of the appellant is that Shri Dipak Padia in the first place has no reason to provide the search party to access his personal mobile phone and e this is a proof good enough to show that there was coercion. I do not agree with this argument either. The provisions of section 133A make it clear that the appellant is legally required to of for inspection of such books of account or other documents which are available at such place. Similarly more stringent provisions are laid down in section 132 of the Act. Section 2(12A) of the Act includes definitions of books of cash books, account books and other books form or in electric form or in digital form or in print presumptions as to such books of account are laid down in section 292C of the Act. Thus, it is evident that Shri Dipak Padia was duty bound to produce such documents and evidences and this by no means indicate coercion as claimed by the appellant. 14. Another contention of the appellant is that the retraction affidavit of Shri Dipak Padia ought to have been looked into. It is also contended that the cross- that the statements recorded in December, 2017 do not have much evidentiary value, hence, should be discarded. I am af contentions cannot be accepted. In this respect, I agree with the findings of the AO which are reproduced below: "The cross examination sought by the assessee with his employee Mr. 28.11.2019. It assessee and Mr. Dipak Padia have asked very standard questions mostly in the nature of affirmation and denial. They have not discussed anything about the seized material, explanation of multiple excel sheets ex the time of initial statements. There are multiple evidences, documents, specific explanations made which were discussed in the above para can't be denied in the absence of any evidence. The result of cross examination is merely statement to save the assessee from its certain tax liability. Since assessee and Mr. Dipak Padia shares employee and employer relationship for quite a long time and it was not difficult to convince Mr. Dipak Padia to retract his initial Mr. Rashmin Girdharlal Raghani ITA Nos. 2143 & 2142 & CO No. 116 & In the case of 142 ITR 618 (Allahabad), Ram Ratan vs CIT, it has been held that "Ordinarily, in the absence of denial, the statements may be accepted as true but if there are circumstances which suggest that the statements on affidavit should not be accepted as true, the absence of denial by the other side, would not by itself be sufficient to clothe the statements on affidavit with truthfulness and reliability." e, this contention of the appellant is rejected. 13. Another contention of the appellant is that Shri Dipak Padia in the first place has no reason to provide the search party to access his sonal mobile phone and e-mail, hence it has been contended that this is a proof good enough to show that there was coercion. I do not agree with this argument either. The provisions of section 133A make it clear that the appellant is legally required to offer the necessary facility for inspection of such books of account or other documents which are available at such place. Similarly more stringent provisions are laid down in section 132 of the Act. Section 2(12A) of the Act includes definitions of books of account to mean to include ledgers, cash books, account books and other books whether kept in written form or in electric form or in digital form or in print-outs. The specific presumptions as to such books of account are laid down in section 92C of the Act. Thus, it is evident that Shri Dipak Padia was duty bound to produce such documents and evidences and this by no means indicate coercion as claimed by the appellant. Another contention of the appellant is that the retraction affidavit of Shri Dipak Padia ought to have been looked into. It is also contended -examination of Shri Dipak Padia on 28.11.2019 shows that the statements recorded in December, 2017 do not have much evidentiary value, hence, should be discarded. I am afraid that such contentions cannot be accepted. In this respect, I agree with the findings of the AO which are reproduced below:- "The cross examination sought by the assessee with his employee Mr. Dipak Padia was provided to the assessee on 28.11.2019. It was observed from cross examination that the assessee and Mr. Dipak Padia have asked very standard questions mostly in the nature of affirmation and denial. They have not discussed anything about the seized material, explanation of multiple excel sheets explained by him in detail at the time of initial statements. There are multiple evidences, documents, specific explanations made which were discussed in the above para can't be denied in the absence of any evidence. The result of cross examination is merely a self statement to save the assessee from its certain tax liability. Since assessee and Mr. Dipak Padia shares employee and employer relationship for quite a long time and it was not difficult to convince Mr. Dipak Padia to retract his initial Mr. Rashmin Girdharlal Raghani 8 ITA Nos. 2143 & 2142 & CO No. 116 & 117/Mum/2023 In the case of 142 ITR 618 (Allahabad), Ram Ratan vs CIT, it bsence of denial, the statements may be accepted as true but if there are circumstances which suggest that the statements on affidavit should not be accepted as true, the absence of denial by the other side, would not by itself be sufficient to clothe the statements on affidavit with truthfulness and reliability." 13. Another contention of the appellant is that Shri Dipak Padia in the first place has no reason to provide the search party to access his mail, hence it has been contended that this is a proof good enough to show that there was coercion. I do not agree with this argument either. The provisions of section 133A make it fer the necessary facility for inspection of such books of account or other documents which are available at such place. Similarly more stringent provisions are laid down in section 132 of the Act. Section 2(12A) of the Act includes account to mean to include ledgers, day-books, whether kept in written outs. The specific presumptions as to such books of account are laid down in section 92C of the Act. Thus, it is evident that Shri Dipak Padia was duty bound to produce such documents and evidences and this by no means Another contention of the appellant is that the retraction affidavit of Shri Dipak Padia ought to have been looked into. It is also contended examination of Shri Dipak Padia on 28.11.2019 shows that the statements recorded in December, 2017 do not have much raid that such contentions cannot be accepted. In this respect, I agree with the findings "The cross examination sought by the assessee with his Dipak Padia was provided to the assessee on was observed from cross examination that the assessee and Mr. Dipak Padia have asked very standard questions mostly in the nature of affirmation and denial. They have not discussed anything about the seized material, plained by him in detail at the time of initial statements. There are multiple evidences, documents, specific explanations made which were discussed in the above para can't be denied in the absence of any evidence. a self-serving statement to save the assessee from its certain tax liability. Since assessee and Mr. Dipak Padia shares employee and employer relationship for quite a long time and it was not difficult to convince Mr. Dipak Padia to retract his initial statement and deny the detailed and specific explanation provided in the cross examination in order to safeguard the interest of assessee. They are, therefore prone to prevaricate and tried to extricate from trouble in order to save further proceedings again interested witness can be biased. The pre of cross examination cannot be ruled out since there is huge tax implication on the assessee. The denial of the transaction is mutually beneficial connived together to cause injury to the Revenue. It is well established that the witness who has interest in the proceedings would always try to save their own skin prompting them to give self In the case of M/s Unique Bombay Bench H' Mumbai in ITA No. 533/Mum/2005 observed that one were self 14.1. In the case of CIT vs Krishnaveni, Ammal, 158 ITR 826, the Hon'ble Madras High Court 'It might be that any judicial authority can accept any statement of an assessee, when that is the only piece of evidence available in that particular case, and order assessment on such sole evidence. But when, even according to the assess other documentary evidence of corroborative value and the same is within the reach of the assessee, in such a case, we are of the opinion that a judicial body cannot act on such interested testimony of the assessee alone. Here, admittedly, som cheques were issued to the alleged multani bankers by the assessee; yet the assessee did not care to summon those cheques. Hence, evidentiary value at all. Any finding on such unworthy evidence deserves to be characterised as perverse and has to be set aside." "We have pointed out that in this case, the Tribunal acted on unworthy evidence and, therefore, such a finding has to be rejected as perverse. As a matter of fact, the law of evidence mandates th an adverse inference can be drawn as against the person who ought to have produced it. " 14.2. In view of the above and considering the date wise elaborate entries in the excel sheet and in a methodic discarded in a perfunctory manner as is sought to be made by the appellant. This part of the appellant's contention stands rejected. Mr. Rashmin Girdharlal Raghani ITA Nos. 2143 & 2142 & CO No. 116 & atement and deny the detailed and specific explanation provided in the cross examination in order to safeguard the interest of assessee. They are, therefore prone to prevaricate and tried to extricate from trouble in order to save further proceedings against assessee. It is well known that evidence of interested witness can be biased. The pre-planning of outcome of cross examination cannot be ruled out since there is huge tax implication on the assessee. The denial of the transaction is mutually beneficial connived together to cause injury to the Revenue. It is well established that the witness who has interest in the proceedings would always try to save their own skin prompting them to give self-serving statements. In the case of M/s Unique Shanti Developers Pvt. Ltd., the ITAT Bombay Bench H' Mumbai in ITA No. 533/Mum/2005 observed that one-sided statement made by some interested witnesses were self-serving." 14.1. In the case of CIT vs Krishnaveni, Ammal, 158 ITR 826, the Hon'ble Madras High Court held as under:- 'It might be that any judicial authority can accept any statement of an assessee, when that is the only piece of evidence available in that particular case, and order assessment on such sole evidence. But when, even according to the assess other documentary evidence of corroborative value and the same is within the reach of the assessee, in such a case, we are of the opinion that a judicial body cannot act on such interested testimony of the assessee alone. Here, admittedly, som cheques were issued to the alleged multani bankers by the assessee; yet the assessee did not care to summon those cheques. Hence, the isolated statement of the assessee has no evidentiary value at all. Any finding on such unworthy evidence es to be characterised as perverse and has to be set "We have pointed out that in this case, the Tribunal acted on unworthy evidence and, therefore, such a finding has to be rejected as perverse. As a matter of fact, the law of evidence mandates that if the best evidence is not placed before the court, an adverse inference can be drawn as against the person who ought to have produced it. " 14.2. In view of the above and considering the date wise elaborate entries in the excel sheet and in a methodical manner cannot be discarded in a perfunctory manner as is sought to be made by the appellant. This part of the appellant's contention stands rejected. Mr. Rashmin Girdharlal Raghani 9 ITA Nos. 2143 & 2142 & CO No. 116 & 117/Mum/2023 atement and deny the detailed and specific explanation provided in the cross examination in order to safeguard the interest of assessee. They are, therefore prone to prevaricate and tried to extricate from trouble in order to save further st assessee. It is well known that evidence of planning of outcome of cross examination cannot be ruled out since there is huge tax The denial of the transaction is mutually beneficial and they It is well established that the witness who has interest in the proceedings would always try to save their own skin prompting Developers Pvt. Ltd., the ITAT Bombay Bench H' Mumbai in ITA No. 533/Mum/2005 observed sided statement made by some interested witnesses 14.1. In the case of CIT vs Krishnaveni, Ammal, 158 ITR 826, the 'It might be that any judicial authority can accept any statement of an assessee, when that is the only piece of evidence available in that particular case, and order assessment on such sole evidence. But when, even according to the assessee, there is other documentary evidence of corroborative value and the same is within the reach of the assessee, in such a case, we are of the opinion that a judicial body cannot act on such interested testimony of the assessee alone. Here, admittedly, some crossed cheques were issued to the alleged multani bankers by the assessee; yet the assessee did not care to summon those the isolated statement of the assessee has no evidentiary value at all. Any finding on such unworthy evidence es to be characterised as perverse and has to be set "We have pointed out that in this case, the Tribunal acted on unworthy evidence and, therefore, such a finding has to be rejected as perverse. As a matter of fact, the law of evidence at if the best evidence is not placed before the court, an adverse inference can be drawn as against the person who 14.2. In view of the above and considering the date wise elaborate al manner cannot be discarded in a perfunctory manner as is sought to be made by the appellant. This part of the appellant's contention stands rejected. 15. The appellant himself has vide online letter submitted as under: "As regards Shri Dipak Padia his the Ashray Group, he was responsible for handling cash in hand which was withdrawn from the bank and this cash in hand is maintained in the regular books of accounts of the respective group concerns / individuals." Thus, there is a credible linkage with the evidences found in the possession of Shri Dipak Padia and they cannot be said to be dumb documents. The appellant's contention that the Doctor's certificate also substantiates coercion is not acceptable as it merely stat common these days. 15.1. The appellant's contention that the AO has made addition only in respect of 2 out of 7 years whereas for other 5 years the returned income reflects its actual income cannot be has been fair enough in making additions only on the basis of tangible material and evidences. In view of the above, I am unable to agree with the contentions of the appellant. 16. At the same time, there is merit in the claim o where there is inflow and outflow of funds, addition has to be restricted to a peak cash balance. In my view, such a benefit has to be given to the appellant unless a finding is given that such cash outflow was not available to be cons Krishnaveni Ammal, 158 ITR 826 by the Hon'ble Madras High Court also supports the view of this office that it is the difference of the peak credit transactions which can be eventually considered for addition appellant has also pointed out that the peak working for AY 2017 and 2018-19 works out to Rs. 4,28,21,905/ appellant, a copy of the working has already been submitted before the AO during the course of assessment proceedings. 17. On perusal of the sheet summarizing the daily inflow and outflows, it is seen that the maximum cash balance available with the appellant on any day is Rs. 4,04,91,440/ there is negative cash balance on few days indi adjustments of such cash has been managed by the appellant. The highest of such negative cash balance is recorded on Rs. 23,30,465/ (on 19.11.2016). Thus, the peak balance of the complete period relevant to AY 2017-18 and AY 2018 18. Now the question arises as to how much disallowances can be made for AY 2017 (on 17.11.2016). The peak negative balance is Rs. 23,30,465/ 19.11.2016). Thus, the p tax for AY 2017 by the AO. The addition of Rs. 2,51,85,790/ of Rs. 19,58,41,657/ Mr. Rashmin Girdharlal Raghani ITA Nos. 2143 & 2142 & CO No. 116 & 15. The appellant himself has vide online letter submitted as under: "As regards Shri Dipak Padia his official duties for executing for the Ashray Group, he was responsible for handling cash in hand which was withdrawn from the bank and this cash in hand is maintained in the regular books of accounts of the respective group concerns / individuals." here is a credible linkage with the evidences found in the possession of Shri Dipak Padia and they cannot be said to be dumb documents. The appellant's contention that the Doctor's certificate also substantiates coercion is not acceptable as it merely states that his blood pressure is high which is very common these days. 15.1. The appellant's contention that the AO has made addition only in respect of 2 out of 7 years whereas for other 5 years the returned income reflects its actual income cannot be accepted, If at all, the AO has been fair enough in making additions only on the basis of tangible material and evidences. In view of the above, I am unable to agree with the contentions of the appellant. At the same time, there is merit in the claim of the appellant that where there is inflow and outflow of funds, addition has to be restricted to a peak cash balance. In my view, such a benefit has to be given to the appellant unless a finding is given that such cash outflow was not available to be considered for subsequent inflow. The case of CIT vs Krishnaveni Ammal, 158 ITR 826 by the Hon'ble Madras High Court also supports the view of this office that it is the difference of the peak credit transactions which can be eventually considered for addition appellant has also pointed out that the peak working for AY 2017 19 works out to Rs. 4,28,21,905/-. According to the appellant, a copy of the working has already been submitted before the AO during the course of assessment proceedings. . On perusal of the sheet summarizing the daily inflow and outflows, it is seen that the maximum cash balance available with the appellant on any day is Rs. 4,04,91,440/- (on 12.12.2017). It is also seen that there is negative cash balance on few days indicating that temporary adjustments of such cash has been managed by the appellant. The highest of such negative cash balance is recorded on Rs. 23,30,465/ (on 19.11.2016). Thus, the peak balance of the complete period relevant 18 and AY 2018-19 is arrived at Rs. 4,28,21,905/ Now the question arises as to how much disallowances can be 2017-18. The peak positive balance is Rs. 2,28,55,325/ (on 17.11.2016). The peak negative balance is Rs. 23,30,465/ 19.11.2016). Thus, the peak balance of Rs. 2,51,85,790/- is brought to tax for AY 2017-18 as against the addition of Rs. 22,10,27,447/ by the AO. The addition of Rs. 2,51,85,790/- is sustained. The balance of Rs. 19,58,41,657/- is deleted.” Mr. Rashmin Girdharlal Raghani 10 ITA Nos. 2143 & 2142 & CO No. 116 & 117/Mum/2023 15. The appellant himself has vide online letter submitted as under:- official duties for executing for the Ashray Group, he was responsible for handling cash in hand which was withdrawn from the bank and this cash in hand is maintained in the regular books of accounts of the here is a credible linkage with the evidences found in the possession of Shri Dipak Padia and they cannot be said to be dumb documents. The appellant's contention that the Doctor's certificate also substantiates coercion is not acceptable as it es that his blood pressure is high which is very 15.1. The appellant's contention that the AO has made addition only in respect of 2 out of 7 years whereas for other 5 years the returned accepted, If at all, the AO has been fair enough in making additions only on the basis of tangible material and evidences. In view of the above, I am unable to agree with f the appellant that where there is inflow and outflow of funds, addition has to be restricted to a peak cash balance. In my view, such a benefit has to be given to the appellant unless a finding is given that such cash outflow was not idered for subsequent inflow. The case of CIT vs Krishnaveni Ammal, 158 ITR 826 by the Hon'ble Madras High Court also supports the view of this office that it is the difference of the peak credit transactions which can be eventually considered for addition. The appellant has also pointed out that the peak working for AY 2017-18 . According to the appellant, a copy of the working has already been submitted before the . On perusal of the sheet summarizing the daily inflow and outflows, it is seen that the maximum cash balance available with the appellant (on 12.12.2017). It is also seen that cating that temporary adjustments of such cash has been managed by the appellant. The highest of such negative cash balance is recorded on Rs. 23,30,465/- (on 19.11.2016). Thus, the peak balance of the complete period relevant is arrived at Rs. 4,28,21,905/-. Now the question arises as to how much disallowances can be 18. The peak positive balance is Rs. 2,28,55,325/- (on 17.11.2016). The peak negative balance is Rs. 23,30,465/- (on is brought to 18 as against the addition of Rs. 22,10,27,447/- made is sustained. The balance 5. Before us, the Ld. Departmental Representative (DR) submitted that entire transactions have been added as income of the assessee rather than only peak balance upheld by the Ld. CIT(A). 6. On the other hand, the addition for unaccounted cash transaction has been made by the Assessing Officer on the basis of statement of Shri Dipak Padia and not on any material seized submitted that there is no corrobora addition other than th been subsequently retracted during the course of search action, the assessee denied of existence of any cash transaction as stated b the Ld. Counsel, when the assessee refuted the allegation of the cash transaction during the course of search action officers should have him, rather than keeping h making an addition against the assessee despite the assessee or corroborative evidence of those transactions. The Ld. Counsel further referred to cross wherein he admitted that the transaction and the excel sheets were mere imaginary figures and not related to the assessee. The Ld. Counsel for the assessee filed typed copy of the statement made by the assessee u/s 132(4) of the Act as well as statement of Shri Mr. Rashmin Girdharlal Raghani ITA Nos. 2143 & 2142 & CO No. 116 & Before us, the Ld. Departmental Representative (DR) submitted that entire transactions of unaccounted cash should have been added as income of the assessee rather than only peak balance upheld by the Ld. CIT(A). On the other hand, the ld Counsel for assessee submitted that addition for unaccounted cash transaction has been made by the Assessing Officer on the basis of statement of Shri Dipak Padia and on any material seized from the premises from the assessee. He submitted that there is no corroborative evidence other than the statement of Shri Dipak Padia, which has ubsequently retracted by him. He further submitted that during the course of search action, the assessee denied of existence of any cash transaction as stated by Shri Dipak Padia. According to when the assessee refuted the allegation of the cash transaction during the course of search action officers should have confronted Shri Dipak Padia immediately to rather than keeping his statement under carpet and used for making an addition against the assessee despite no the assessee or corroborative evidence of those transactions. The Ld. Counsel further referred to cross-objection of Shri Dipak Padiya d that the transaction and the excel sheets were mere imaginary figures and not related to the assessee. The Ld. the assessee filed typed copy of the statement made by the assessee u/s 132(4) of the Act as well as statement of Shri Mr. Rashmin Girdharlal Raghani 11 ITA Nos. 2143 & 2142 & CO No. 116 & 117/Mum/2023 Before us, the Ld. Departmental Representative (DR) accounted cash should have been added as income of the assessee rather than only peak sessee submitted that addition for unaccounted cash transaction has been made by the Assessing Officer on the basis of statement of Shri Dipak Padia and from the premises from the assessee. He tive evidence for making e statement of Shri Dipak Padia, which has . He further submitted that during the course of search action, the assessee denied of existence y Shri Dipak Padia. According to when the assessee refuted the allegation of the cash transaction during the course of search action, the authorized Shri Dipak Padia immediately to ement under carpet and used for no admission by the assessee or corroborative evidence of those transactions. The Shri Dipak Padiya d that the transaction and the excel sheets were mere imaginary figures and not related to the assessee. The Ld. the assessee filed typed copy of the statement made by the assessee u/s 132(4) of the Act as well as statement of Shri Dipak Padia. The Ld. Counsel further relied on the submissions made before the Ld. CIT(A) and submitted that no addition the peak amount, can be added in the 7. We have heard rival submission of the parties and perused the relevant material on record. As far as contentio that addition has been made on the basis of personal mobile/e of Shri Dipak Padia and same cannot be presumed to be belong to the assessee group, we are of opinion that search Padia has been carried out as part of the search of the assessee only and not an independent search, and contention that assessment is based on material not found from the assessee is devoid of merit. According to the Ld. Counsel, the said data recovered from Shi Dipak P and the assessee had of statement u/s 132(4) of the Act. It is contended on behalf of the assessee that Shri Dipak Padia filed affidavit retracting his statement recorded statement was recorded under course of the hearing before us, t could not file any evidence in support of said u/s 132(4) of the Act of sh Dipak Padia was or any ‘coercion’. We find that statement of Shri Dipak Padia was recorded u/s 131 of the Act on 18.12.2017 wherein in response to question No. 13 he explained Mr. Rashmin Girdharlal Raghani ITA Nos. 2143 & 2142 & CO No. 116 & The Ld. Counsel further relied on the submissions made before the Ld. CIT(A) and submitted that no addition can be added in the hands of the assessee. We have heard rival submission of the parties and perused the rial on record. As far as contention of the assessee has been made on the basis of personal mobile/e of Shri Dipak Padia and same cannot be presumed to be belong to the assessee group, we are of opinion that search as been carried out as part of the search of the assessee only and not an independent search, and contention that assessment is based on material not found from the assessee is According to the Ld. Counsel, the said data Dipak Padia was not concerned and the assessee had denied since beginning i.e. since the recording of statement u/s 132(4) of the Act. It is contended on behalf of the assessee that Shri Dipak Padia filed affidavit retracting his statement recorded before the search parties, stating that recorded under ‘threat’ and ‘coercion course of the hearing before us, the Ld. Counsel for could not file any evidence in support of said claim that statement u/s 132(4) of the Act of sh Dipak Padia was recorded under . We find that statement of Shri Dipak Padia was of the Act on 18.12.2017 wherein in response to question No. 13 he explained that the recording of the data related Mr. Rashmin Girdharlal Raghani 12 ITA Nos. 2143 & 2142 & CO No. 116 & 117/Mum/2023 The Ld. Counsel further relied on the submissions made before the Ld. CIT(A) and submitted that no addition , even of the assessee. We have heard rival submission of the parties and perused the n of the assessee has been made on the basis of personal mobile/e-mail of Shri Dipak Padia and same cannot be presumed to be belonging to the assessee group, we are of opinion that search on sh Dipak as been carried out as part of the search of the assessee only and not an independent search, and contention that assessment is based on material not found from the assessee is According to the Ld. Counsel, the said data to the assessee denied since beginning i.e. since the recording of statement u/s 132(4) of the Act. It is contended on behalf of the assessee that Shri Dipak Padia filed affidavit retracting his stating that said coercion’. During the for the assessee claim that statement recorded under ‘threat’ . We find that statement of Shri Dipak Padia was of the Act on 18.12.2017 wherein in response to the recording of the data related to cash transactions in the form of excel sheets. question and answer “Q.13. I am showing you email received on your email id d_padia@hotmail.com, on Thrusday, 25th May 2017 from accounts@ashraygroup.com The said mail is located in the dipak folder mentioned in the previous q subject "ashray documents". Kindly confirm the same and describe its contents. Ans. Yes sir, I confirm that the mail with the subject "ashray documents" in the "dipak" folder of my email id d_padida@hotmail.com has been shown to me. The contains three excel sheets as attachments. are titled: 1. DJP.xIsx 2. OUTSIDER APR_17_28042017 xlsx 3. Ashray Neev P Ltd_FY All the three excel sheets were made by me. Further I emailed the excel sheet from the email my personal email id d_padia@hotmail.com to maintain a backup of the data contained in the excel sheets. I deleted the mail from the sent mail folder of the email id accounts@ashraygroup.com after sending the email to my personal email id d_padia@hotmail.com. 7.1 Further, in answer to question No. 27 and question No. 30 Dipak Padia explained the entire detail of those cash transactions and even stated that part were related to the parties in regular books of accounts of the assessee. The said statement was further affirmed by him during the course of statement recorded u/s 132(4) of the Act on 20.12.2017 was recorded in presence of two witnesses who have duly signed on Mr. Rashmin Girdharlal Raghani ITA Nos. 2143 & 2142 & CO No. 116 & to cash transactions in the form of excel sheets. question and answer are reproduced as under: Q.13. I am showing you email received on your email id d_padia@hotmail.com, on Thrusday, 25th May 2017 from accounts@ashraygroup.com The said mail is located in the dipak folder mentioned in the previous question and has the "ashray documents". Kindly confirm the same and describe its contents. Ans. Yes sir, I confirm that the mail with the subject "ashray documents" in the "dipak" folder of my email id d_padida@hotmail.com has been shown to me. The contains three excel sheets as attachments. The 3 excel sheets 1. DJP.xIsx 2. OUTSIDER APR_17_28042017 xlsx 3. Ashray Neev P Ltd_FY-15-16.xlsx All the three excel sheets were made by me. Further I emailed the excel sheet from the email-id accounts@ashraygroup.com to personal email id d_padia@hotmail.com to maintain a backup of the data contained in the excel sheets. I deleted the mail from the sent mail folder of the email id accounts@ashraygroup.com after sending the email to my personal email id d_padia@hotmail.com.” in answer to question No. 27 and question No. 30 explained the entire detail of those cash transactions that part of transactions recorded in excel sheet the parties which were appearing as purchase books of accounts of the assessee. The said statement further affirmed by him during the course of statement recorded u/s 132(4) of the Act on 20.12.2017. The said statement presence of two witnesses who have duly signed on Mr. Rashmin Girdharlal Raghani 13 ITA Nos. 2143 & 2142 & CO No. 116 & 117/Mum/2023 to cash transactions in the form of excel sheets. The relevant Q.13. I am showing you email received on your email id d_padia@hotmail.com, on Thrusday, 25th May 2017 from accounts@ashraygroup.com The said mail is located in the uestion and has the "ashray documents". Kindly confirm the same and Ans. Yes sir, I confirm that the mail with the subject "ashray documents" in the "dipak" folder of my email id d_padida@hotmail.com has been shown to me. The email The 3 excel sheets All the three excel sheets were made by me. Further I emailed accounts@ashraygroup.com to personal email id d_padia@hotmail.com to maintain a backup of the data contained in the excel sheets. I deleted the mail from the sent mail folder of the email id accounts@ashraygroup.com after sending the email to my in answer to question No. 27 and question No. 30, Sh explained the entire detail of those cash transactions s recorded in excel sheet which were appearing as purchase party books of accounts of the assessee. The said statement further affirmed by him during the course of statement he said statement presence of two witnesses who have duly signed on the statement. If the assessee was of the opinion Shri Dipak Padiya was recorded under the onus was on the examination before the Assessing Officer. Therefore, in absence of any such cross-examination of Shri Dipak Padia of recording statement u/s 132(4) of the Act under ‘threat’ and ‘coercion’ the Hon’ble Supreme Court in the case of Constructions (P.) Ltd. v. ACIT (SC) held that burden made by the director in his had to be supported by a statement was recorded under duress and coercion. Hon’ble Rajasthan High Court in the case of PCIT v. Sansheti in Division Bench Appeal No. 47/2018 retraction of statement recorded u/s 132(4) of the Act has to be made within a reasonable time or immediately after statement of assessee is recorded and hence where retraction of recorded u/s 132(4) of the Act and later confirmed in his statem recorded u/s 131 of the Act almost 8 month, same was to be discarded assessee against the said decision has been dismissed by the Hon’ble Supreme Court in view of the above, we do not find any infirmity in the finding of the Mr. Rashmin Girdharlal Raghani ITA Nos. 2143 & 2142 & CO No. 116 & the statement. If the assessee was of the opinion that Shri Dipak Padiya was recorded under ‘threat’ and the onus was on the assessee to produce those witnesses nation before the Assessing Officer. Therefore, in absence of examination of those witnesses, mere Shri Dipak Padia of recording statement u/s 132(4) of the Act under ‘coercion’ can’t be relied upon and discarded the Hon’ble Supreme Court in the case of Constructions (P.) Ltd. v. ACIT [2019] 106 taxmann.com 128 that burden lies on the assessee to show that admission the director in his statement was wrong and such had to be supported by a strong evidence showing that earlier statement was recorded under duress and coercion. Hon’ble Rajasthan High Court in the case of PCIT v. in Division Bench Appeal No. 47/2018 of statement recorded u/s 132(4) of the Act has to be made reasonable time or immediately after statement of assessee is recorded and hence where retraction of a statement recorded u/s 132(4) of the Act and later confirmed in his statem recorded u/s 131 of the Act, had been made by the assessee after same was to be discarded . A SLP filed by the assessee against the said decision has been dismissed by the Hon’ble Supreme Court in (2023) 150 taxmann.com 228 (SC). view of the above, we do not find any infirmity in the finding of the Mr. Rashmin Girdharlal Raghani 14 ITA Nos. 2143 & 2142 & CO No. 116 & 117/Mum/2023 that statement of and ‘coercion’, then witnesses for cross- nation before the Assessing Officer. Therefore, in absence of mere affidavit of Shri Dipak Padia of recording statement u/s 132(4) of the Act under can’t be relied upon and discarded. Moreover, the Hon’ble Supreme Court in the case of Bannalal Jat [2019] 106 taxmann.com 128 on the assessee to show that admission and such retraction showing that earlier statement was recorded under duress and coercion. Further, the Hon’ble Rajasthan High Court in the case of PCIT v. Roshan Lal in Division Bench Appeal No. 47/2018 held that of statement recorded u/s 132(4) of the Act has to be made reasonable time or immediately after statement of assessee statement , which is recorded u/s 132(4) of the Act and later confirmed in his statement had been made by the assessee after SLP filed by the assessee against the said decision has been dismissed by the (2023) 150 taxmann.com 228 (SC). In view of the above, we do not find any infirmity in the finding of the Ld. CIT(A) that there is a enough tangible material and evidence to make additions in the case of the assessee in respect of the unaccounted cash transactions. Accordingly the cross raised by the assessee are 7.2 As far as ground find that the assessee has filed transactions given as well as received back and filed a peak credit statement. In our opinion loans given earlier has been rotated case addition cannot be made for the entire amount of the loan given and benefit of the money which has been returned back and further utilized for giving loans has to be considered quantum of peak computed by the assessee and filed before the Assessing Officer, same Assessing Officer or by the Ld. CIT(A). disputed computation of peak credit find any infirmity in the order of the of the Ld the addition of the peak assessment years. Accordingly, the grounds of appeal of the Revenue are dismissed. 8. The ground raised in the appeal of the Revenue and cross objections raised by the assessee for AY 2018 Mr. Rashmin Girdharlal Raghani ITA Nos. 2143 & 2142 & CO No. 116 & Ld. CIT(A) that there is a enough tangible material and evidence to make additions in the case of the assessee in respect of the unaccounted cash transactions. Accordingly the cross raised by the assessee are dismissed. As far as ground of appeal of the Revenue is concerned find that the assessee has filed a complete detail transactions given as well as received back and filed a peak credit In our opinion, where the money received back from has been rotated for giving further case addition cannot be made for the entire amount of the loan given and benefit of the money which has been returned back and r utilized for giving loans has to be considered quantum of peak computed by the assessee and filed before the , same has not been disputed either by the Assessing Officer or by the Ld. CIT(A). The ld DR has also not mputation of peak credit amount. Therefore, we do not find any infirmity in the order of the of the Ld. CIT(A) in upholding the addition of the peak credit which has been further assessment years. Accordingly, the grounds of appeal of the nue are dismissed. 8. The ground raised in the appeal of the Revenue and cross objections raised by the assessee for AY 2018-19 are identical to AY Mr. Rashmin Girdharlal Raghani 15 ITA Nos. 2143 & 2142 & CO No. 116 & 117/Mum/2023 Ld. CIT(A) that there is a enough tangible material and evidence to make additions in the case of the assessee in respect of the unaccounted cash transactions. Accordingly the cross-objections of appeal of the Revenue is concerned, we a complete detail of cash loan transactions given as well as received back and filed a peak credit received back from further loans, in that case addition cannot be made for the entire amount of the loans given and benefit of the money which has been returned back and r utilized for giving loans has to be considered. As far as quantum of peak computed by the assessee and filed before the has not been disputed either by the The ld DR has also not Therefore, we do not . CIT(A) in upholding credit which has been further split in two assessment years. Accordingly, the grounds of appeal of the 8. The ground raised in the appeal of the Revenue and cross 19 are identical to AY 2017-18, and thus following our finding in AY 2017 respective grounds are decided 9. In the result, both the appeal of the Revenue and cross objections of the assessee are dismissed. Order pronounced in the open Court on Sd/ (RAHUL CHAUDHARY JUDICIAL MEMBER Mumbai; Dated: 29/11/2023 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// Mr. Rashmin Girdharlal Raghani ITA Nos. 2143 & 2142 & CO No. 116 & 18, and thus following our finding in AY 2017 respective grounds are decided mutasis mutandis. In the result, both the appeal of the Revenue and cross objections of the assessee are dismissed. nounced in the open Court on 29/11/2023. Sd/- Sd/ RAHUL CHAUDHARY) (OM PRAKASH KANT JUDICIAL MEMBER ACCOUNTANT MEMBER Copy of the Order forwarded to : BY ORDER, (Assistant Registrar) ITAT, Mumbai Mr. Rashmin Girdharlal Raghani 16 ITA Nos. 2143 & 2142 & CO No. 116 & 117/Mum/2023 18, and thus following our finding in AY 2017-18, the In the result, both the appeal of the Revenue and cross- /11/2023. Sd/- OM PRAKASH KANT) ACCOUNTANT MEMBER BY ORDER, (Assistant Registrar) ITAT, Mumbai
