Usha Agarwal, Burdwan V. ACIT, CC-VI, KOLKATA, Kolkata

CO 16/KOL/2016

• Counselvise Citation: [2016] 112 COUNSELVISE.COM (IT) 4152 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 08-06-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 28-03-2016
• Court: TRIBUNAL
• Department Lawyers: G MALLIKARJUNA
• Assessee Lawyers: CROSS OBJECTOR SHRI K M ROY
• Keywords: Gift; Search and seizure
• Section: 143(3); 133A; 201; 192

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI N. V. VASUDEVAN, JM & SHRI M. BALAGAN ESH, AM] I.T.A NO.142/KOL/2014 ASSESSMENT YEAR: 2010-11 ASSISTANT COMMISSIONER OF INCOME-TAX, VS. SMT. US HA AGARWAL CENTRAL CIRCLE-VI, KOLKATA. (PAN: ACSPA8989N) ( APPELLANT ) ( RESPONDENT ) & C. O. NO.16/KOL/2016 IN I.T.A NO.142/KOL/2014 ASSESSMENT YEAR: 2010-11 SMT. USHA AGARWAL VS. ASSISTANT COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-VI, KOLKATA. (CROSS OBJECTOR) (RESPONDENT) DATE OF HEARING: 31.05.2016 DATE OF PRONOUNCEMENT: 08.06.2016 FOR THE REVENUE: SHRI G. MALLIKARJUNA, CIT, DR FOR THE ASSESSEE/CROSS OBJECTOR: SHRI K. M. ROY, CA ORDER PER SHRI M. BALAGANESH, AM: THIS APPEAL BY REVENUE AND CROSS OBJECTION BY ASSES SEE ARE ARISING OUT OF ORDER OF CIT(A), CENTRAL-1, KOLKATA VIDE APPEAL NO. 323/C C-VI/CIT(A)C-1/11-12 DATED 01.11.2013. ASSESSMENT WAS FRAMED BY DCIT, C.C-VI, KOLKATA U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS TH E ACT) FOR AY 2010-11 VIDE HIS ORDER DATED 31.12.2011. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL OF THE REVENUE IS AS TO WHETHER THE LEARNED CITA IS JUSTIFIED IN DELETING THE ADDITION MADE IN THE SUM OF RS. 1 CRORE AND SUSTAINING THE ADDITION IN THE SUM OF RS. 51 LACS I N THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE IS THAT A SEARCH AND SEIZURE OPERATION U/S 132(1) OF THE ACT WAS CARRIED OUT ON 16.9.2009 AND SUBSEQUENT DAT ES IN THE RESIDENTIAL AND BUSINESS PREMISES OF VARIOUS PERSONS BELONGING TO UTSAV GROU P. THE ASSESSEE IS ONE OF THE PERSONS RELATED TO THIS GROUP. LATER, A SURVEY OPE RATION U/S 133A OF THE ACT WAS ALSO 2 ITA NO.142/K/2014 & CO NO.16/K/2016 USHA AGARWAL. AY 2010-11 CONDUCTED AT SEVERAL BUSINESS PREMISES OF THE ASSES SEE GROUP. THE AO HAS NOTED IN THE ASSESSMENT ORDER THAT SRI SAMBHUNATH AGRAWAL (KEY P ERSON OF THE ASSESSEE GROUP) FILED A DISCLOSURE PETITION DATED 14-11-2009 BEFORE THE D DIT(INV) THEREBY ADMITTING UNDISCLOSED INCOME OF RS.7 CRORES IN THE NAME OF THE FAMILY MEMBERS WHICH INCLUDED SURRENDER OF RS.1 CRORE IN THE HANDS OF TH E ASSESSEE FOR THE ASSESSMENT YEAR 2010-11 BY WAY OF 'MISC & OTHERS'. THE AO ALSO NOTE D THAT THE STATEMENT OF UNDISCLOSED INCOME PLACED AT SCHEDULE-2 OF THE' DIS CLOSURE PETITION WAS SIGNED BY THE ASSESSEE. HOWEVER, THE ASSESSEE DID NOT INCLUDE THE SAID DISCLOSURE OF RS.1 CRORE IN HER RETURN FOR THE RELEVANT ASSESSMENT YEAR 2010-11. TH E AO REQUIRED THE ASSESSEE TO EXPLAIN AS TO WHY THE DISCLOSURE MADE BY SRI SAMBHU NATH AGRAWAL ON HER BEHALF VIDE DISCLOSURE PETITION DATED 14-11- 2009 WAS NOT INCLU DED IN HER RETURN. IT WAS EXPLAINED AT THE ASSESSMENT STAGE THAT THE AD-HOC DISCLOSURE OF RS.7 CRORES IN THE NAME OF THE FAMILY MEMBERS WAS NOT MADE VOLUNTARILY BUT UNDER C OERCION, THREAT AND PRESSURE OF THE OFFICERS AUTHORISED TO CONDUCT SEARCH U/S 132; THAT NO INCRIMINATING MATERIAL REPRESENTING UNDISCLOSED INCOME OR UNDISCLOSED ASSETS OF THE ASS ESSEE WAS FOUND IN THE SEARCH; AND, THAT THE DISCLOSURE MADE AT THE TIME OF THE SEARCH WAS UNWARRANTED AND IRRELEVANT AS IT WAS NOT BASED ON ANY MATERIAL FOUND IN THE SEARCH. THE AO WAS NOT IMPRESSED WITH THE ARGUMENT THAT THE DISCLOSURE WAS MADE UNDER COERCIO N. HE WAS OF THE OPINION THAT THE ARGUMENT WAS ONLY AN AFTERTHOUGHT. THE AO ALSO REJE CTED THE CONTENTION THAT NO INCRIMINATING MATERIAL WAS FOUND IN THE SEARCH. THE AO NOTED THAT UNDISCLOSED CASH DEPOSIT IN BANK ACCOUNT WAS FOUND IN CONSEQUENCE TO THE SEARCH; AND, THAT INTRODUCTION OF UNACCOUNTED MONEY IN THE GUISE OF LOAN OR GIFT O R CAPITAL GAIN WAS ALSO DETECTED IN THE CASES OF THE ASSESSEE GROUP. THE AO CONCLUDED THAT THE DISCLOSURE OF RS. 1 CRORE HAD TO BE CONSIDERED AS THE UNDISCLOSED INCOME OF THE ASSE SSEE FUR THE RELEVANT YEAR; AND ACCORDINGLY, MADE ADDITION OF RS. L CRORE. 4. BEFORE THE LEARNED CITA, IT WAS ARGUED THAT THE AO HAS ERRED IN LAW IN RELYING SOLELY ON THE CONFESSIONAL STATEMENT MADE BY THIRD PARTY FOR DRAWING ADVERSE INFERENCE IN THE CASE OF THE ASSESSEE WHEN THERE WAS NO CORRO BORATIVE MATERIAL ON RECORD TO SUPPORT SUCH STATEMENT. THE LD AR HAS FURTHER SUBMI TTED THAT SRI SAMBHUNATH AGRAWAL WAS NOT LEGALLY COMPETENT TO MAKE STATEMENT ON BEHA LF OF THE ASSESSEE; AND, THAT SUCH UNLAWFUL STATEMENT MADE WITHOUT ANY AUTHORITY WAS N OT BINDING ON THE ASSESSEE, BUT, 3 ITA NO.142/K/2014 & CO NO.16/K/2016 USHA AGARWAL. AY 2010-11 EVEN OTHERWISE, THE DECLARATION MADE BY SRI SAMBHUN ATH AGRAWAL IN HIS STATEMENT RECORDED AT THE TIME OF THE SEARCH OR SUBSEQUENTLY IN HIS DISCLOSURE PETITION WAS UNSUBSTANTIATED AS IT WAS NOT BASED ON OR CORROBORA TED BY ANY MATERIAL ON RECORD. AND, ABOVE ALL, NO INCRIMINATING MATERIAL REPRESENTING U NDISCLOSED INCOME OR UNDISCLOSED ASSET OF THE ASSESSEE WAS FOUND IN THE SEARCH. IN V IEW OF THE ABOVE, THE ASSESSEE WAS JUSTIFIED IN NOT INCLUDING THE ALLEGED DISCLOSURE O F RS.L CRORE IN HER RETURN OF INCOME. THE LD AR HAS ARGUED THAT THE AO HAS MADE IRRELEVANT OB SERVATIONS FOR MAKING THE ADDITION. FOR, THE AO HAS MENTIONED THAT UNDISCLOSED CASH DEP OSIT IN BANK ACCOUNT WAS FOUND IN CONSEQUENCE TO THE SEARCH; BUT THEN, THE SAME HAS B EEN CONSIDERED SEPARATELY. SECONDLY, THERE IS NO FINDING OF THE AO IN HIS ASSESSMENT ORD ER THAT THE CASH DEPOSIT WAS UNEXPLAINED IN THE HANDS OF THE ASSESSEE. IT WAS EX PLAINED AT THE ASSESSMENT STAGE THAT THE ITS DATA SHOWING CASH DEPOSIT OF RS.51 LAKHS WA S FACTUALLY INCORRECT IN AS MUCH AS THE ASSESSEE HAD MADE CASH DEPOSIT OF RS.6.50 LAKHS ONLY WHICH WAS DULY RECORDED IN THE BOOKS OF ACCOUNT. THE AO HAS NOT DISPUTED OR DI SPROVED THE CONTENTION OF THE ASSESSEE. THE AO HAS MADE THE ADDITION ON THE GROUN D THAT HE HAD NO TIME FOR VERIFYING THE CONTENTION OF THE ASSESSEE. THE AO HAS ALSO MEN TIONED THAT INTRODUCTION OF UNACCOUNTED MONEY IN THE GUISE OF LOAN OR GIFT OR C APITAL GAIN WAS DETECTED IN THE CASES OF THE ASSESSEE GROUP; BUT THEN, THE SAME HAS BEEN CONSIDERED SEPARATELY IN THE CASE(S) OF THE CONCERNED ASSESSEES. THE ISSUE REGARDING CASH D EPOSIT IN THE BANK ACCOUNT OR INTRODUCTION OF MONEY IN THE GUISE OF LOAN OR GIFT OR CAPITAL GAIN IS IN THE WAY RELATED TO THE DISCLOSURE OF RS.1 CRORE IN THE ASSESSMENT YEAR 2010-11. 5. THE LEARNED CITA OBSERVED IN HIS ORDER THAT TH E AO HAS BROUGHT NO MATERIAL ON RECORD TO SHOW THAT SRI SAMBHUNATH AGRAWAL HAD GOT ANY LEGAL SANCTION OR AUTHORITY TO MAKE A DISCLOSURE ON BEHALF OF THE ASSESSEE. BUT, E VEN OTHERWISE, THE DISCLOSURE MADE ON BEHALF OF THE ASSESSEE IS NOT SUPPORTED OR CORROBOR ATED BY ANY MATERIAL FOUND IN THE SEARCH. I FIND SUBSTANCE IN THE CONTENTION THAT NO INCRIMINATING DOCUMENT OR ASSET REPRESENTING UNDISCLOSED INCOME OF THE ASSESSEE WAS FOUND IN THE SEARCH AS NONE HAS BEEN DISCUSSED BY THE AO IN THE ASSESSMENT ORDER. I N THIS FACTUAL BACKGROUND, IT IS TO BE HELD THAT NO INCRIMINATING MATERIAL REPRESENTING UN DISCLOSED INCOME OF TILE ASSESSEE WAS FOUND IN THE SEARCH; AND, THAT THE DISCLOSURE OF RS . L CRORE IN THE CASE OF THE ASSESSEE IS NOT SUPPORTED OR CORROBORATED BY INDEPENDENCE EVIDE NCE. HE OBSERVED THAT THE CBDT 4 ITA NO.142/K/2014 & CO NO.16/K/2016 USHA AGARWAL. AY 2010-11 VIDE ITS CIRCULAR DATED 10.3.2003 HAS CLEARLY INSTR UCTED THAT THE LEARNED AO SHOULD RELY ON CREDIBLE EVIDENCE AND THAT THE MATERIAL GATHERED IN SEARCH SHOULD FORM THE BASIS FOR FRAMING THE ASSESSMENT. HE FURTHER HELD THAT SPEC IFIC ISSUES RELATING TO CASH DEPOSIT IN BANK ACCOUNT OR INTRODUCTION OF UNDISCLOSED MONEY I N THE GUISE OF LOAN OR GIFT OR CAPITAL GAIN, IF ANY , HAS TO BE CONSIDERED SEPARATELY IN T HE CASE OF THE CONCERNED ASSESSEES AND THAT IT CANNOT BE MADE THE BASIS FOR MAKING AD HOC ADDITION OF RS 1 CRORE IN THE HANDS OF THE ASSESSEE. ACCORDINGLY HE HELD THAT THE ADDITIO N OF RS 1 CORRE MADE SOLELY ON THE BASIS OF THE DISCLOSURE MADE AT THE TIME OF SEARCH IS NEITHER SUSTAINABLE IN LAW NOR ON FACTS. 5.1. WITH REGARD TO THE INFORMATION OBTAINED IN ITS DATA TOWARDS CASH DEPOSIT IN BANK TO THE TUNE OF RS. 51 LACS, HE HELD THAT THOUGH THE AS SESSEE HAD DENIED THE SAME AT THE ASSESSMENT STAGE AND HAD STATED THAT ONLY RS 6.50 L ACS WAS DEPOSITED IN THE BANK ACCOUNT WHICH IS ALREADY DISCLOSED IN THE RETURNS , NO SEPARATE GROUND WAS RAISED BY THE ASSESSEE CONTESTING SUCH ADDITION. HE FINALLY HELD THAT THE LEARNED AO HAD HELD THAT CASH DEPOSIT OF RS 51 LACS IN BANK ACCOUNT OF THE A SSESSEE HAS TO BE TREATED AS UNEXPLAINED INCOME, HOWEVER, NO SEPARATE ADDITION W AS BEING MADE IN VIEW OF THE ADDITION OF RS 1 CRORE ON THE BASIS OF THE DISCLOSU RE. AS THE ADDITION OF RS 1 CRORE MADE ON THE BASIS OF THE DISCLOSURE HAS BEEN DELETED, TH E ADDITION OF RS 51 LACS ON ACCOUNT OF CASH DEPOSIT IN BANK ACCOUNT IS SUSTAINED. IN EFFE CT, THE ADDITION MADE BY THE LEARNED AO WAS RESTRICTED TO RS 51 LACS AFTER GRANTING RELI EF TO THE ASSESSEE TO THE TUNE OF RS 49 LACS. 6. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US O N THE FOLLOWING SOLE GROUND:- 1. THAT THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.49,00,000/- ON ACCOUNT OF UNDISCLOSED INCOME WITHOUT APPRECIATING THE FACTS O F THE CASE. THE ASSESSEE HAS ALSO PREFERRED CROSS OBJECTION BY RAISING THE FOLLOWING GROUND: - THAT THE CITA HAS ERRED IN SUSTAINING ADDITION OF RS 51 LAKH TOWARDS DEPOSIT OF CASH IN BANK ACCOUNT WHEN NO SUCH TRANSACTION HAD ACTUALLY TAKEN PLACE. 7. THE LEARNED AR RELIED ON THE ORDER OF THE LEAR NED CITA WITH REGARD TO THE ADDITION DELETED IN THE SUM OF RS. 1 CRORE. WITH R EGARD TO THE ADDITION SUSTAINED IN THE SUM OF RS. 51 LAKHS, HE ARGUED THAT THERE WAS NO CA SH DEPOSIT TO THE TUNE OF RS 51 LACS AS STATED BY THE LEARNED AO WHICH FACT WAS NEVER VE RIFIED BY THE LOWER AUTHORITIES AND 5 ITA NO.142/K/2014 & CO NO.16/K/2016 USHA AGARWAL. AY 2010-11 THE FACT OF NON-VERIFICATION IS ALSO MENTIONED IN T HE ORDERS OF THE LOWER AUTHORITIES. ACCORDINGLY HE PRAYED THAT THIS FACT MAY KINDLY BE VERIFIED BY THE LEARNED AO TO ASCERTAIN THE TRUTH AND PRAYED FOR SPECIFIC DIRECTI ON TO BE GIVEN IN THIS REGARD. IN RESPONSE TO THIS, THE LEARNED DR VEHEMENTLY RELIED ON THE ORDER OF THE LEARNED AO. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE ENTIRE ADDITION OF RS 1 C RORE MADE BY THE LEARNED AO WAS MERELY BASED ON THE DISCLOSURE MADE BY THE ASSESSEE S HUSBAND WHILE MAKING TOTAL DISCLOSURE OF RS 7.5 CRORES FOR THE TOTAL GROUP AS A WHOLE AND THE ASSESSEES NAME HAS BEEN INCLUDED IN THE FIGURE OF RS 1 CRORE ONLY IN O RDER TO MAKE THE TOTAL DISCLOSURE TO RS 7.5 CRORES. WE FIND THAT NO INCRIMINATING MATERIAL S WHATSOEVER WAS FOUND DURING THE COURSE OF SEARCH REPRESENTING UNDISCLOSED INCOME OR UNDISCLOSED ASSETS BELONGING TO THE ASSESSEE JUSTIFYING THE DISCLOSURE MADE IN THE SUM OF RS. 1 CRORE. UNDER THESE CIRCUMSTANCES, IT IS RIGHT ON THE PART OF THE ASSES SEE TO HAVE RETRACTED FROM THE EARLIER DISCLOSURE WHILE FILING HER RETURN OF INCOME FOR TH E ASST YEAR 2010-11. WE DRAW SUPPORT FROM THE FOLLOWING CASE LAWS IN THIS REGARD :- (I) PULLANGODE RUBBER PRODUCE CO. VS STATE OF KERAL A AND ANR (1973) 91 ITR 18 (SC) THE HONBLE SC HAS OBSERVED THAT AN ADMISSION IS AN EXTREMELY IMPORTANT PIECE OF EVIDENCE BUT IT CANNOT BE SAID THAT IT IS CONCLUSIV E. IT IS OPEN TO THE PERSON WHO MADE THE ADMISSION TO SHOW THAT IT IS INCORRECT. (II) CIT VS RAVINDAR KUMAR JAIN (2011) 201 TAXMAN 9 5 (JHARKHAND HC) 6. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY THE LEARNED COUNSEL FOR THE APPELLANT AND PERUSED THE REASONS GIVEN IN THE ORDERS PASSED BY THE CIT(A). 7. IT IS NOT IN DISPUTE THAT DURING THE COURSE OF S EARCH, THE ASSESSEE FIRST SUBMITTED THAT HE HAS NOTHING TO DISCLOSE AND THEREFORE FIRST STAND O F THE ASSESSEE WAS THAT HE HAD NO UNDISCLOSED INCOME AND THEN THE ASSESSEE ALLEGED TO HAD STATED THAT HE HAD ALSO UNDISCLOSED INCOME OF RS. 7 LAKHS. HOWEVER, THE ASS ESSING OFFICER HIMSELF FOUND THAT OUT OF SAID AMOUNT OF RS. 7 LAKHS, THE AMOUNT WHICH THE ASSESSEE STATED HAS BEEN DEPOSITED IN THE BANK, WAS NOT FOUND IN ANY BANK AND AMOUNT OF R S. 3 LAKHS HAD ALREADY BEEN DELETED BY THE ASSESSING OFFICER HIMSELF. THEREFORE, PART O F ALLEGED ADMISSION OF ASSESSEE WAS NOT FOUND CORRECT. NOT ONLY THIS, EVEN FROM THE ORDER P ASSED BY THE ASSESSING OFFICER ITSELF IT IS APPARENT THAT THE ASSESSEE, IN ADDITION TO STATI NG THAT HE DEPOSITED RS. 3 LAKHS IN DIFFERENT SAVING BANK ACCOUNTS OF ORIENTAL BANK OF COMMERCE, HE ALSO LENT SOME MONEY TO PRIVATE PERSONS THAT FACT WAS ALSO FOUND NOT COR RECT BY THE ASSESSING OFFICER HIMSELF. THEREFORE, THE ADMISSION MADE BY THE ASSESSEE BEFOR E THE ASSESSING OFFICER DURING THE COURSE OF SEARCH CONTAINED THREE FACTS-(I) THAT HE HAD NO UNDISCLOSED INCOME, (II) THE 6 ITA NO.142/K/2014 & CO NO.16/K/2016 USHA AGARWAL. AY 2010-11 ASSESSEE HAD UNDISCLOSED INCOME OF RS. 7 LAKHS, AND (III) THAT HE HAD INVESTED RS. 4 LAKHS IN STOCK OF M/S. MOOLCHAND JAIN AND SONS IN SUPPORT OF WHICH THERE WAS NO EVIDENCE COLLECTED BY THE ASSESSING OFFICER AND THEN DEPOSIT OF RS. 3 LAKHS IN THE BANK ACCOUNT WHICH COULD NOT HAVE BEEN IF HIS STATEMENT AS GIVEN AT THE RELEVANT TIME IS DEEMED CORRECT, BECAUSE THE ASSESSEE ALSO STATED THAT HE L ENT SOME OF THE AMOUNTS TO SOME PERSONS. THEREFORE RELYING ON ONLY ONE SUCH STATEME NT GIVEN BY THE ASSESSEE IN THESE CIRCUMSTANCES WHERE OUT OF THREE TWO FACTS WERE FOU ND TO BE NOT CORRECT, THEN IN THESE FACTS AND CIRCUMSTANCES, IT WAS THE DUTY OF THE ASS ESSING OFFICER TO COLLECT MORE EVIDENCE IN SUPPORT OF THE FACT THAT THERE WAS UNDISCLOSED I NCOME OF RS. 7 LAKHS IN THE HANDS OF THE ASSESSEE. THESE REASONS HAD BEEN CONSIDERED BY THE CIT(A) AS WELL AS BY THE ITAT AND THEREFORE, THEIR FINDINGS ABOUT THE TAXABLE INCOME OF THE ASSESSEE HAS BEEN GIVEN IN THE FACTS OF THE CASE. (III) KAILASHBEN MANOHARLAL CHOKSHI VS CIT (2010) 328 IT R 411 (GUJ) HELD, THAT THE STATEMENT OF THE ASSESSEE WAS RECORD ED UNDER SECTION 132(4) OF THE ACT AT MIDNIGHT. IN NORMAL CIRCUMSTANCES, IT WAS TOO MUCH TO GIVE ANY CREDIT TO THE STATEMENT RECORDED AT SUCH ODD HOURS. THE PERSON WOULD NOT BE IN A POSITION TO MAKE ANY CORRECT OR CONSCIOUS DISCLOSURE IN A STATEMENT IF SUCH STATEME NT WAS RECORDED AT SUCH ODD HOURS. THE ASSESSEE HAD GIVEN PROPER EXPLANATION FOR ALL T HE ITEMS UNDER WHICH DISCLOSURE WAS SOUGHT TO BE OBTAINED FROM THE ASSESSEE. WITH REGAR D TO THE INVESTMENT IN HOUSE PROPERTY HE HAD STATED THAT HE TOOK THE PLOT IN 1964 FROM TH E HOUSING SOCIETY WHICH WAS CONSTRUCTING THE BUNGALOW FOR WHICH THE ASSESSEE MA DE CONTRIBUTION FROM TIME TO TIME AND TOOK POSSESSION IN 1974 WHEN ONLY ONE GROUND FL OOR WAS CONSTRUCTED. HE HAD BEEN LIVING THERE AND DURING 1986 TO 1988 HE HAD CONSTRU CTED THE FIRST FLOOR AND HAD INCURRED EXPENSES OF RS. 2,03,185.65 AND THIS AMOUNT HAD BEE N WITHDRAWN FROM THE ACCOUNT OF THE FIRM WHICH HE WAS A PARTNER. THE DEPARTMENTAL VALUE R HAD ACCEPTED THE COST OF CONSTRUCTION AND THERE WAS NO REASON TO MAKE ADDITI ON OF RS. 4 LAKHS ON THE BASIS OF THE DISCLOSURE MADE BY THE ASSESSEE. THE REVENUE HAD NO T BROUGHT ANY EVIDENCE TO ESTABLISH THAT THE ASSESSEE HAD IN FACT INCURRED RS. 4 LAKHS AND THAT AMOUNT WAS INVESTED OUT OF UNDISCLOSED INCOME. THE ADDITION ON ACCOUNT OF GOLD ORNAMENTS COULD NOT BE SUSTAINED SINCE LOOKING INTO THE QUANTUM OF HOLDING AND THE A SSESSEES EXPLANATION THIS WAS A NORMAL HOLDING WHICH COULD BE FOUND IN ANY MIDDLE C LASS INDIAN FAMILY. THE FURNITURE ON THE GROUND FLOOR WAS 15 YEARS OLD AND THE ASSESSEE HAD SPENT RS. 25,000 FOR RENOVATION AFTER MAKING WITHDRAWAL FROM THE FIRMS ACCOUNT. WI TH RESPECT TO FURNITURE IN THE FIRST FLOOR A DETAILED SOURCE OF INVESTMENT OF FURNITURE PURCHASED WITH DUE CONFIRMATION FROM THE PARTY CONCERNED HAD BEEN FILED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER. SINCE NO PAYMENT FOR THIS ADDITIONAL FURNITURE WAS MADE BY T HE ASSESSEE TILL THE DATE OF SEARCH, NO ADDITION COULD BE MADE ON THIS COUNT. THE EXPLANATI ON OF THE ASSESSEE WAS CONVINCING BUT NOT BEEN CONSIDERED BY THE AUTHORITIES BELOW. MEREL Y ON THE BASIS OF THE ADMISSION OF THE ASSESSEE THE ADDITIONS COULD NOT BE MADE UNLESS AND UNTIL SOME CORROBORATIVE EVIDENCE WAS FOUND IN SUPPORT OF SUCH ADMISSION. THE STATEME NT RECORDED AT SUCH ODD HOURS COULD NOT BE CONSIDERED TO BE A VOLUNTARY STATEMENT, IF I T WAS SUBSEQUENTLY RETRACTED AND NECESSARY EVIDENCE WAS LED CONTRARY TO SUCH ADMISSI ON. THE TRIBUNAL WAS NOT JUSTIFIED IN MAKING ADDITION OF RS. 6 LAKHS. (IV) SIMILAR VIEWS WERE EXPRESSED BY THE HONBLE CO URTS IN THE FOLLOWING CASES:- CIT VS CHANDRAKUMAR JETHMAL KOCHAR REPORTED IN (201 5) 230 TAXMAN 78 (GUJARAT) M.NARAYANAN & BROS VS ACIT REPORTED IN (2011) 339 ITR 192 (MAD) 7 ITA NO.142/K/2014 & CO NO.16/K/2016 USHA AGARWAL. AY 2010-11 CIT VS S KHADER KHAN SONS REPORTED IN (2008) 300 IT R 157 (MAD) WHICH WAS LATER APPROVED BY HONBLE SUPREME COURT BACHITTAR SINGH VS CIT REPORTED IN (2010) 328 ITR 4 00 (P&H) IN VIEW OF THE AFORESAID FACTS AND CIRCUMSTANCES AN D JUDICIAL PRECEDENTS RELIED UPON HEREINABOVE, WE HOLD THAT THE LEARNED CITA HAD RIGH TLY DELETED THE ADDITION MADE IN THE SUM OF RS 1 CRORE. 8.1. APROPOS THE ALLEGED CASH DEPOSIT OF RS 51 LAC S MADE BY THE ASSESSEE IN THE BANK ACCOUNT, WE FIND THAT THE ASSESSEE HAD CLAIMED THAT NO SUCH CASH DEPOSITS TO THAT EXTENT WAS MADE IN HER BANK ACCOUNTS. WE ALSO FIND THAT T HIS CLAIM OF THE ASSESSEE WAS NEVER VERIFIED BY THE LEARNED AO FOR WANT OF TIME WHICH I S NOT DISPUTED BY THE REVENUE BEFORE US. WE FIND THAT THE LEARNED AR HAD FAIRLY AGREED FOR SETTING ASIDE OF THIS ISSUE TO THE FILE OF THE LEARNED AO TO ENABLE HIM TO MAKE A DETA ILED VERIFICATION OF THIS FACTUAL ASPECT FOR WHICH THE LEARNED DR BEFORE US AGREED FO R THE SAME. WE DIRECT ACCORDINGLY. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES AND CROSS OBJECTION OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 10. ORDER IS PRONOUNCED IN THE OPEN COURT ON 08.06. 2016. SD/- SD/- (N. V. VASUDEVAN) (M. BALAGANESH) JUDICIAL MEMBER ACCOUNTAN T MEMBER DATED : 8 TH JUNE, 2016 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT ACIT, CC-VI, KOLKATA. 2 RESPONDENT SMT. USHA AGARWAL, 33, BANKIM SARANI, 5 TH FLOOR, KOLKATA- 700 053. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .