The Harekrishna Exports, Surat V. The ACIT.,Cent.Circle-2, Surat

CO 94/AHD/2009

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 7885 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 2 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 23-11-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 31-10-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 21-05-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S N SOPARKAR
• Assessee Lawyers: A TIRKEY
• Keywords: Unexplained investment; Income from undisclosed sources; Loose papers; Retraction
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NO. 961/ AHD/2009 (ASSESSMENT YEAR 2006-07) ACIT, CIRCLE 2, SURAT VS. M/S. HAREKRISHNA EXPORTS, 9/15, HARIKRISHNA COMPLEX, GOTALAWADI, KATARGAM,SURAT C.O.94/AHD/2009 (ASSESSMENT YEAR 2006-07 M/S. HAREKRISHNA EXPORTS, VS. ACIT, CIRCCLE 2, 9/15, HARIKRISHNA COMPLEX, SURAT GOTALAWADI, KATARGAM, SURAT PAN/GIR NO. : AAAFH0538E (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI A TIRKEY, SR. DR RESPONDENT BY: SHRI S N SOPARKAR, AR DATE OF HEARING: 31.10.2012 DATE OF PRONOUNCEMENT: 23.11.2012 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS REVENUES APPEAL AND THE CROSS OBJECTION I S FILED BY THE ASSESSEE. THESE ARE DIRECTED AGAINST THE ORDER OF LD. CIT(A) II, AHMEDABAD DATED 19.01.2009 FOR THE ASSESSMENT YEAR 2006-07. 2. FIRST, WE TAKE UP THE CROSS OBJECTION FILED BY T HE ASSESSEE. THE GROUNDS RAISED BY THE ASSESSEE IN THE C.O. ARE AS U NDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE CIT(A) SHOULD HAVE REALIZED ALSO THAT THE ASSESSING OFFICE R WAS NOT JUSTIFIED IN GIVING UNDUE IMPORTANCE TO ANSWER TO Q UESTION NO.14 OF STATEMENT RECORDED U/S. 132(4) PARTICULARLY BECA USE FIRST 12 QUESTIONS AND ANSWERS OF THAT STATEMENT WERE RECORD ED ON THE DATE OF INITIATION OF SEARCH VIZ. 21.2.2006 IN THE FOREN OON AT 11-00 AM AND ONLY LAST TWO QUESTIONS VIZ. 13 AND 14 WERE REC ORDED THE NEXT DAY I.E. 22.2.2006 EARLY IN THE MORNING 8-00 AM. I.T.A.NO.961 /AHD/2009 C.O.94/AHD/2009 2 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE C ASE, THE CIT(A) SHOULD HAVE HELD THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN CHARGING OF INTEREST U/S 234B OF THE ACT IN RESPECT ON ADDITIONAL INCOME, FOR WANT OF SEIZED MATERIAL/ STATEMENT IN T IME. THE ASSESSEE VEHEMENTLY DENIES ITS LIABILITY TO PAY SUC H INTEREST. 3. THE RESPONDENT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR WITHDRAW ANY GROUND OR GROUNDS OF CROSS OBJECTIONS EITHER BEFORE OR DURING THE COURSE OF HEARING OF THE SAME. 3. IT WAS SUBMITTED BY THE LD. A.R. BEFORE US THAT THE CROSS OBJECTION FILED BY THE ASSESSEE IS NOT PRESSED AND ACCORDINGL Y ALL THE GROUNDS RAISED BY THE ASSESSEE IN THE C.O. ARE REJECTED AS NOT PRE SSED. 4. IN THE RESULT, THE CROSS OBJECTION OF THE ASSESS EE IS DISMISSED AS NOT PRESSED. 5. NOW, WE TAKE UP THE APPEAL OF THE REVENUE. THE REVISED GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FA CTS OF THE CASE IN DELETING THE ADDITION OF RS.1 .80 CRORES MADE ON TH E BASIS OF ADMISSION MADE BY MANAGING PARTNER OF THE ASSESSEE IN HIS STATEMENT RECORDED U/S 132(4). WHICH WAS ON THE BAS IS OF AND AFTER VERIFICATION OF THE SEIZED MATERIAL. 2. ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) OUGHT NOT TO HAVE ACCEPTED THE RETRACTION BY THE ASSESSEE AND UPHELD THE ORDER OF ASSESSING OFFICER AS THE PARTNER OF ASSESSEE HIMSELF HAD ADMITTED TOTAL UNDISCLOSED INCOME OF RS.9 CRORES IN THE STATEMENT RECORDED U/S 1 32(4) OF THE ACT ON 21.025006 AND SUBSEQUENT STATEMENT RECORDED ON 20.0 4.2006 ON THE BASIS OF AND AFTER VERIFICATION OF THE SEIZED M ATER, BUT SHOWN ONLY SHOWN RS.7.2 CRORES IN THE RETURN OF INCOME. 3. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT(A) BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THAT EXTE NT. 6. BRIEF FACTS TILL THE ASSESSMENT STAGE ARE NOTED BY LD. CIT(A) IN PARA 3 OF HIS ORDER AND FOR THE SAKE OF READY REFERENCE, THE SAME IS REPRODUCED BELOW: THE SECOND GROUND OF APPEAL RELATE TO ADDITION OF RS.180 LACS MADE ON ACCOUNT OF SHORT FALL IN DISCLOSURE. IT IS OBSERVED BY THE I.T.A.NO.961 /AHD/2009 C.O.94/AHD/2009 3 A.O. THAT SEARCH PROCEEDINGS WERE CARRIED OUT AT TH E PREMISES OF THE APPELLANT ON 21.2.2006. DU8IRNG THE COURSE OF SEARCH, THE STATEMENT OF SHRI SAVJIBHAI D. DHOLIYA WAS RECORDED WHEREIN HE ADMITTED UNACCOUNTED INCOME OF THE GROUP OF RS.9 CR ORES AND PROMISED TO OFFER THE SAME IN THE RETURN OF INCOME OF HAREKISHNA EXPORTS. THE ASSESSING OFFICER HAS OBSERVED THAT IN THE RETU RN OF INCOME FOR A.Y. 2006-07, .THE ASSESSEE HAD OFFERED FOR TAXATIO N OF RS.7,20,00,000/- AND, THEREFORE, THE APPELLANT WAS ASKED TO FURNISHED BREAK UP OF THE DISCLOSURE. THE BREAK UP WAS GIVEN FOR THE AMOUNT OF RS.7.20 CRORES. THUS, THE APPELLANT H AD RETRACTED THE DISCLOSURE TO THE EXTENT OF RS.1.80 CRORES. IT IS S TATED THAT A SHOW CAUSE NOTICE WAS ISSUED WHICH IS REPRODUCED ON THE SECOND PAGE OF THE ASSESSMENT ORDER. THE APPELLANT'S REPLY DATED 2 6-12-2007 IS ALSO REPRODUCED FROM THIRD PAGE ONWARDS. THIS REPLY HAS NOT BEEN ACCEPTED BY THE A.O. IT IS STATED BY THE A.O. THAT THE ASSESSEE HAD RAISED THE FOLLOWING ISSUES: SHRI SAVJIBHAI WAS NOT ALLOWED TO SPEAK WITH KE Y MANAGERIAL PERSONNEL AT THE TIME OF RECORDING OF STATEMENT DUR ING THE COURSE OF SEARCH. HE WAS NOT HAVING COMPLETE INFORMATION OR ANY I DEA ABOUT THE SEARCH/SURVEY PROCEEDINGS GOING ON AT DIFFERENT PLA CES AND WHAT SORT OF DOCUMENTS, LOOSE PAPERS HAS BEEN FOUND THER E. THE ASSESSEE WAS NOT MADE AVAILABLE WITH ANY DO CUMENTARY EVIDENCE OR LOOSE PAPERS SO AS TO SUBSTANTIATE THE DISCLOSURE MADE DURING THIS SEARCH/SURVEY. DURING THE COURSE OF THE SEARCH AND SURVEY AS W AS BEING EXPLAINED/ INFORMED BY THE AUTHORISED OFFICER REGAR DING LOOSE PAPERS FOUND FROM VARIOUS PREMISES, STATEMENT REGAR DING DISCLOSURE WAS TAKEN.' THE A.O. HAS, HOWEVER, STATED THAT THE QUESTION NO. 13 AND 14 WHICH ARE REPRODUCED AS UNDER SHOWS THE DISCLOSURE MADE BY THE APPELLANT: 'Q.13. DURING THE SEARCH/SURVEY PROCEEDINGS AT YOUR PLACE, AT YOUR OFFICE, AND SEARCH/SURVEY PROCEEDINGS AT PIYUSH PAT EL, NILESH JADA, JAYRAM KHOKHARIYA ETC. EVIDENCES OF UNACCOUNTED INC OME EARNED BY THE GROUP HAS BEEN FOUND. ALL THE EVIDENCES YOU HAVE SEEN AND UNDERSTOOD. WHAT YOU HAVE TO SAY REGARDING THIS UNA CCOUNTED INCOME AND INVESTMENT? A. 13 I HAVE SEEN AND UNDERSTOOD EVIDENCES OF UNACC OUNTED INCOME AND INVESTMENT. I HAVE SEEN EVIDENCES AND UN DERSTOOD PROPERLY ALL THE EVIDENCES OF ALL THE PREMISES. AFT ER UNDERSTANDING I.T.A.NO.961 /AHD/2009 C.O.94/AHD/2009 4 ALL THE EVIDENCES I FEEL THAT I HAVE EARNED UNACCOU NTED INCOME AND HAS MADE UNACCOUNTED INVESTMENTS OUT OF THAT. ALL T HIS INCOME AND INVESTMENT IS MADE IN NAME OF MY SELF, MY BROTHERS AND MY OTHER FAMILY MEMBERS. I WILL PRODUCE DETAILED BREAK UP NE XT WEEK. MAJORITY OF THE INVESTMENT WOULD HAVE BEEN MADE IN LAND, BUILDINGS, STOCK ETC. COMPLETE DETAILS IN THIS REGA RDS WILL BE PRODUCED NEXT WEEK. Q.14 YOU WANT TO SAY ANYTHING ELSE? A. 14 AFTER GOING THROUGH ALL THE EVIDENCES WHICH H AS BEEN FOUND FROM DIFFERENT PREMISES OF OUR GROUP, I WANT TO DIS CLOSE UNACCOUNTED INCOME OF RS.9 CRORES AND MYSELF AND MY BOTHERS ARE WILLING TO PAY TAX ON THE SAME. I WANT TO RESTATE T HAT UNACCOUNTED INCOME IS INVESTED BY US IN LAND ETC. IT IS STATED BY THE A.O. THAT FROM THE ABOVE REFERR ED REPLIES OF SHRI SAVJIBHAI IT IS CLEAR THAT HE HAD SEEN THE EVIDENCE S FOUND FROM THE PREMISES OF THE GROUP AND THEREAFTER, AFTER UNDERST ANDING THE SAME HIMSELF, HAD COMPUTED UNACCOUNTED INCOME OF THE GRO UP, OF RS.9 CRORES AND SHOWN HIS WILLINGNESS TO PAY TAX THEREON . THEREFORE, IN HIS OPINION THERE WAS NO R MERITS OF THE ARGUMENTS OF THE APPELLANT THAT HE WAS NOT GIVEN OPPORTUNITY TO SEE THE DOCUME NTS AND HE WAS NOT AWARE AS TO WHAT HAD HAPPENED AT DIFFERENT PREM ISES. IT IS FURTHER STATED BY THE A.O. THAT THE THEORY OF THE ASSESSEE THAT UNACCOUNTED INCOME WAS OF RS.7.20 CRORES AND NOT OF RS.9 CRORES IS AFTER THOUGHT AND THE APPELLANT WANTS TO AVOID T HE PAYMENT OF TAXES ON RS.9 CRORES. IT IS STATED THAT IF THE APPE LLANT WAS OF THE VIEW THAT UNACCOUNTED INCOME WAS OF RS.7.20 CRORES WHAT PREVENTED HIM FOR FILING THE DECLARATION IMMEDIATEL Y. IT IS STATED THAT AT THE TIME OF FILING OF RETURN THE MIND WAS M ADE UP FOR RETRACTING THE DISCLOSURE MADE AND BREAK UP WAS PRE PARED SO AS TO SHOW INCOME OF RS.7.20 CRORES. IT IS STATED BY THE A.O. THAT THUS THE RETRACTION WAS AFTER THOUGHT. IT IS FURTHER STA TED BY THE A.O. THAT THE APPELLANT HAD ARGUED BEFORE HIM ABOUT THE RIGHT TO RETRACT IN CERTAIN CIRCUMSTANCES. IT IS STATED THAT IN VIEW OF THE STATEMENT OF THE APPELLANT RECORDED IT WAS CLEAR THAT SUCH EXCEP TIONS DO NOT APPLY. THE STATEMENT WAS GIVEN WITHOUT INFLUENCE DU RESS COERCION ETC. IT IS STATED THAT THE STATEMENT WAS GIVEN AFTE R GOING THROUGH THE EVIDENCES BY THE APPELLANT HIMSELF. THE A.D. HAS RE FERRED TO THE DECISION OF PUNJAB HIGH COURT IN THE CASE OF SHRI K ISHANLAL 88 ITR 293 AND STATED THAT THE FACTS OF THE APPELLANT'S CA SE ARE DIFFERENT FROM THAT CASE. THE OTHER DECISION, WHICH WERE RELI ED UPON BY THE APPELLANT BEFORE HIM, ARE ALSO NOT ACCEPTED STATING THAT THE FACTS OF THE APPELLANT'S CASE ARE DIFFERENT AND THE STATEMEN T WAS ADMITTED I.T.A.NO.961 /AHD/2009 C.O.94/AHD/2009 5 AFTER GOING THROUGH THE EVIDENCES. HE HAS REFERRED TO THE FOLLOWING CASES: I) HIRALAL MAGANLAL & CO. IT(S&S) APPEAL NO. 117, MUMBAI DATED 20-9-2004 II) KANTILAL PRABHUDAS PATE! IT(S&S) APPEAL N O. 7S & 80 OF 2002 (INDORE) WITH THE ABOVE DISCUSSION HE HAS MADE THE ADDITION OF RS.1,80,00,000/- TO THE RETURNED INCOME. 7. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD. CIT(A) AND HE DECIDED THE ISSUE IN FAVOUR OF TH E ASSESSEE AND NOW, THE REVENUE IS IN APPEAL BEFORE US. 8. IT WAS SUBMITTED BY LD. D.R. THAT THE WORKING OF THE ASSESSEE REGARDING THE INCOME DISCLOSED IN THE RETURN OF INC OME OF RS.720 LACS IS APPEARING ON PAGE 16 OF THE PAPER BOOK. IT IS SUBM ITTED BY HIM THAT THESE DETAILS OF INCOME DISCLOSED IN THE RETURN OF INCOME DO NOT EXPLAIN THE DIFFERENCE BETWEEN AMOUNT DISCLOSED IN THE COURSE O F SEARCH AND THE AMOUNT DISCLOSED IN THE RETURN OF INCOME AND HENCE, MERELY ON THE BASIS OF THE SUBMISSION OF THE ASSESSEE AND THE WORKING S UBMITTED BY THE ASSESSEE, IT CANNOT BE SAID THAT THE AMOUNT DISCLOS ED BY THE ASSESSEE IN THE RETURN OF INCOME IS SUFFICIENT TO COVER THE DISCLOS URE MADE BY THE ASSESSEE IN THE COURSE OF SEARCH U/S 132(4) OF THE INCOME TA X ACT, 1961. HE STRONGLY SUPPORTED THE ASSESSMENT ORDER. IT WAS AL SO HIS SUBMISSION THAT THERE IS NO RETRACTION MADE BY THE ASSESSEE. 9. AS AGAINST THIS, LD. A.R. SUPPORTED THE ORDER OF LD. CIT(A). HE FURTHER SUBMITTED THAT THE COPY OF THE STATEMENT ON OATH OF SHRI SAVJIBHAI S/O SHRI DHANJIBHAI DHOLIA ON 21.02.2006 U/S 132(4) OF THE INCOME TAX ACT, 1961 IS AVAILABLE ON PAGES 41-45 OF THE PAPER BOOK AND FROM THE SAME, IT CAN BE SEEN THAT A LUMP SUM DISCLOSURE OF RS.9 CRORES WAS MADE WITHOUT GIVING ANY DETAILS OF THE SAME. HE FURTHER POINTED OUT THAT IT WAS ALSO STATED IN REPLY TO QUESTION 13 THAT HE WILL PR ODUCE DETAILED BREAKUP I.T.A.NO.961 /AHD/2009 C.O.94/AHD/2009 6 NEXT WEEK. HE FURTHER SUBMITTED THAT IT WAS ALSO S TATED IN THE REPLY TO THIS QUESTION THAT UNACCOUNTED INCOME WAS EARNED AND THE SAME WAS USED FOR UNACCOUNTED INVESTMENTS WHICH WERE MADE IN HIS NAME AND IN THE NAME OF HIS BROTHER AND OTHER FAMILY MEMBERS. HE FURTHE R SUBMITTED THAT UNLESS ANY UNACCOUNTED INVESTMENT IN EXCESS OF THIS AMOUNT OF RS.720 LACS IS BROUGHT OUT ON RECORD BY THE A.O., IT CANNO T BE SAID THAT THE AMOUNT OF EXTRA INCOME DISCLOSED BY THE ASSESSEE IN THE RETURN OF INCOME DOES NOT COVER THE DISCLOSURE MADE IN THE STATEMENT U/S 132(4) OF THE ACT. HE FURTHER SUBMITTED THAT SUBSEQUENT STATEMENT OF S HRI SB DHOLIA WAS ALSO RECODED ON 20.04.2006 AND A COPY OF THIS IS AV AILABLE ON PAGE 46-51 OF THE PAPER BOOK. HE SUBMITTED THAT IN REPLY TO Q UESTION 2 OF THIS STATEMENT, IT WAS STATED THAT LOTS OF PAPERS, COPY OF COMPUTER C.D. AS WELL AS STATEMENT OF PARTNERS AND EMPLOYEES WERE RECORDE D AND COPY OF THE SAME WERE NOT PROVIDED TILL THIS DATE AND HENCE, IT WAS NOT POSSIBLE TO GIVE EXACT BIFURCATION AND THE SAME COULD BE GIVEN ONLY AFTER COPY OF STATEMENT AND DATA IS PROVIDED. HE ALSO SUBMITTED THAT UNDOUBTEDLY, HE AGREED WITH THE INCOME DISCLOSED ON 21.2.2006 OF RS .9 CRORES BUT THIS WAS BEFORE THE RECEIPT OF THE COPY OF THE SEIZED MA TERIAL ETC. AND HENCE, IT CANNOT BE SAID THAT ADDITION CAN BE MADE ON THE BAS IS OF STATEMENT ALONE. HE ALSO SUBMITTED THAT AFFIDAVIT OF THE ASSESSEE IS AVAILABLE ON PAGES 52- 54 OF THE PAPER BOOK IN WHICH IT WAS STATED THAT IN THE COURSE OF SEARCH ON 21.2.2006, DISCLOSURE OF RS.9 CRORES WAS MADE WITHO UT SEEING AND VERIFYING THE STATEMENTS AND DOCUMENTS AND WHEN THE SE DOCUMENTS AND STATEMENTS WERE RECEIVED FROM THE DEPARTMENT, IT WA S FOUND THAT ONLY RS.7.20 CRORES WAS UNACCOUNTED INCOME AND INVESTMEN T AND, THEREFORE, THE DISCLOSURE IN THE RETURN OF INCOME WAS MADE TO THIS EXTENT. RELIANCE WAS PLACED ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS : (A) 328 ITR 411 (GUJ) KAILASHBEN MANHARLAL CHOKSHI VS CIT I.T.A.NO.961 /AHD/2009 C.O.94/AHD/2009 7 (B) 327 ITR 497 (CHHATTISGARH) ITO VS VIJAY KUMAR K ESAR (C) ACIT VS VRUJBHUMI COTTON INDUSTRIES IN I.T.A.NO . 2210 AND 2215/AHD/2008 ORDER DATED 22.07.2011 (COPY FILED). 10. IN THE REJOINDER, IT WAS SUBMITTED BY THE LD. D .R. THAT THE TRIBUNAL DECISION RENDERED IN THE CASE OF VRUJBHUMI COTTON I NDUSTRIES (SUPRA) CITED BY THE LD. A.R. IS IN RESPECT OF SURVEY PROCE EDINGS AND NOT IN SEARCH PROCEEDINGS. REGARDING THE JUDGEMENT OF HONBLE GU JARAT HIGH COURT AND OTHER HIGH COURTS, IT WAS SUBMITTED THAT THESE JUDGMENTS ARE NOT RELEVANT IN THE PRESENT CASE BECAUSE THE FACTS ARE DIFFERENT. 11. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUS ED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW AND THE JUDGEMENTS CITED BY THE LD. A.R. THIS ISSUE WAS DE CIDED BY LD. CIT(A) A PER PARA 3.2 OF HIS ORDER WHICH IS REPRODUCED BEL OW FOR THE SAKE OF READY REFERENCE: I HAVE CONSIDERED THE ASSESSMENT ORDER AND THE SUB MISSIONS MADE ON BEHALF OF THE APPELLANT. IT IS FOUND THAT THE A. O. HAS NOTED THAT THE APPELLANT HAD IN HIS STATEMENT RECORDED ON 22-2 -2006 MADE DISCLOSURE OF RS.9 CRORE. HOWEVER, IN THE RETURN OF INCOME FILED BY THE, APPELLANT THEY HAVE DISCLOSED ADDITIONAL INCOM E OF RS.7.20 CRORES AND HENCE THE ADDITION IS MADE FOR RS.1,80,0 0,000/-. THE A.O. IS OF THE VIEW THAT THE STATEMENT AS RECORDED AT THE TIME OF SEARCH AND THE DISCLOSURE WAS MADE BY THE MAIN PERS ON AFTER VERIFICATION OF SEIZED MATERIAL, AS WAS RECORDED IN REPLY NO. 14 OF HIS STATEMENT DATED 22-2-2006. ACCORDING TO HIM, TH EREFORE, THE SUBSEQUENT ACTION OF DISCLOSING INCOME OF RS.7.20 C RORES IS AFTER THOUGHT AND THE ASSESSEE CANNOT BE ALLOWED TO RETRA CT THE DISCLOSURE. ON THE OTHER HAND, IT IS SEEN THAT AS E XPLAINED BY THE APPELLANT, IN REPLY TO QUESTION NUMBER 13 OF HIS ST ATEMENT SHRI SAVJIBHAI HAD STATED THAT HE WOULD SUBMIT THE DETAI LS OF UNDISCLOSED INCOME/ ASSETS WITHIN A WEEK I.E. HE WA S TO VERIFY THE SIZED RECORD AND WORK OUT THE INCOME. HOWEVER, IN T HE IMMEDIATE NEXT REPLY OF HIS STATEMENT, DISCLOSURE OF RS.9 CRO RE WAS RECORDED. THIS REPLY STATES THAT SAVJIBHAI HAD VERIFIED ALL T HE MATERIAL FOUND AT THE TIME OF SEARCH AND WORKED OUT SUCH INCOME. H OWEVER, AS EXPLAINED BY THE APPELLANT THIS WAS NOT CORRECT WHI CH CAN BE I.T.A.NO.961 /AHD/2009 C.O.94/AHD/2009 8 APPRECIATED FROM SUBSEQUENT STATEMENT RECORDED ON 2 0-4-2006 WHEREIN HE HAD STATED THAT COPIES OF VARIOUS PAPERS WERE NOT MADE AVAILABLE TO HIM AND ACCORDINGLY HE WAS NOT IN A PO SITION TO GIVE EXACT WORKING ASSESSEE WISE/ YEAR WISE OF THE DIS CLOSURE. IT WAS, THEREFORE, CLAIMED THAT SUCH DISCLOSURE RECORDED WA S NOT GIVING THE CORRECT SHARE OF THE UNDISCLOSED INCOME. HOWEVER, D ISCLOSURE OF RS.7.20 CRORES WAS MADE IN THE RETURN AFTER VERIFIC ATION OF THE SEIZED MATERIAL AND BREAK UP THEREOF WAS GIVEN TO T HE A.O. THE ASSESSING OFFICER HAS NOT POINTED OUT ANY ADDITIONA L AMOUNT OF INCOME OR ASSET WHICH WAS NOT DISCLOSED BY THE APPE LLANT. HE HAS HELD THAT THE STATEMENT RECORDED HAS TO BE ACCEPTED AND SUBSEQUENT WORKING IS AFTER THOUGHT. HOWEVER, FOR SUCH LARGER AMOUNT NO SEIZED MATERIAL OR ASSET IS POINTED BY HIM. IN THE CIRCUMSTANCES, CONSIDERING RATIO OF VARIOUS DECISIONS RELIED UPON BY THE APPELLANT NAMELY (1) ACIT VS J.LMEHTA I TA NO. 13325/AH'D/1998 FOR A.Y.1995-96 (2) DEPUTY COMMISSI ONER OF INCOME-TAX VS PRAMUKH E3UILDERS REPORTED AT '112 IT D 179, [AHMEDABAD TRIBUNAL], (3) ITAT AHMEDABAD IN THE CAS E OF AC1T VS SUSHILADEVI AGRAWAL 49 TTJ 663, (4) C1T VS K. BH UVANENDRAN & OTHERS 303 1TR 235 (MADRAS HIGH COURT) & KAILASHB EN MANHARLAL CHOKSI 174 TAXMAN 44 (GUJ. HIGH COURT), A ND .THE SPIRIT OF CIRCULAR DATED 10-3-2003 REFERRED TO BY T HE APPELLANT, I AM OF THE VIEW THE A.O. WAS NOT JUSTIFIED IN MAKING TH E ADDITION FOR THE DIFFERENTIAL AMOUNT OF RS.1,80.00,000/-, WHICH REPRESENTS DIFFERENCE BETWEEN THE DISCLOSURE OF RS.9 CRORES RE CORDED IN THE STATEMENT OF SAVJIBHAI AND ADDITIONAL INCOME OF RS. 7.20 CRORES AS SHOWN IN TIRE RETURN OF INCOME. ACCORDINGLY THE ADD ITION MADE IS DELETED. 12. WE FIND THAT LD. CIT(A) HAS DECIDED THIS ISSUE AFTER CONSIDERING AND FOLLOWING VARIOUS TRIBUNAL DECISIONS AND JUDGEM ENTS OF VARIOUS HONBLE HIGH COURTS INCLUDING THE JUDGEMENT OF HON BLE GUJARAT HIGH COURT RENDERED IN THE CASE OF MANHARLAL CHOKSI (SUP RA). HE ALSO CONSIDERED THE BOARDS CIRCULAR DATED 10.03.2003 AN D THEREAFTER, IT WAS DECIDED BY HIM THAT THE ADDITION MADE BY THE A.O. I S NOT JUSTIFIED. WHEN WE EXAMINED THE ASSESSMENT ORDER, WE FIND THAT THE ADDITION WAS MADE BY THE A.O. MERELY ON THE BASIS THAT THERE IS DIFFEREN CE IN THE AMOUNT I.T.A.NO.961 /AHD/2009 C.O.94/AHD/2009 9 DISCLOSED AT THE TIME OF SEARCH IN THE STATEMENT RE CORDED U/S 132(4) AND THE AMOUNT DISCLOSED IN THE RETURN OF INCOME FILED BY THE ASSESSEE WITHOUT BRINGING ANYTHING ON RECORD TO SHOW THAT ANY UNACCO UNTED INVESTMENT OR INCOME WAS NOT INCLUDED IN THE AMOUNT OF RS.720 LAC S DISCLOSED BY THE ASSESSEE IN THE RETURN OF INCOME. UNDER THESE FACT S, NOW WE EXAMINE THE APPLICABILITY OF THE JUDGEMENT OF HONBLE GUJARAT H IGH COURT RENDERED IN THE CASE OF KAILASHBEN MANHARLAL CHOKSI (SUPRA) ON WHICH RELIANCE WAS PLACED BY THE LD. A.R. IN THAT CASE ALSO, A SEARCH WAS CARRIED OUT AT THE PREMISES OF THE ASSESSEE FIRM AND A STATEMENT OF TH E ASSESSEE U/S 132(4) WAS RECORDED IN WHICH THE ASSESSEE MADE DISCLOSURE OF RS.7 LACS WHICH INCLUDED BIFURCATION ALSO BEING RS.4 LACS ON ACCOUN T OF UNACCOUNTED INVESTMENT IN HOUSE PROPERTY, RS.1 LAC FROM UNACCOU NTED CASH, AND RS.1 LAC FORM UNACCOUNTED INVESTMENT IN FURNITURE AND RS .1 LACS FROM UNACCOUNTED INVESTMENT IN GOLD ORNAMENTS. THIS STA TEMENT WAS RECORDED ON 04.11.1988. LATER ON IN JANUARY 1989, THE ASSES SEE RETRACTED THIS DISCLOSURE AND STATED THAT DISCLOSURE OF ONLY RS.50 ,000/- IS ACCEPTABLE TO HIM. THE A.O. WAS NOT SATISFIED AND HE MADE ADDITI ON OF RS.7 LACS. ON APPEAL, THE ADDITION MADE BY THE A.O. WAS CONFIRMED BY LD. CIT(A) AS WELL AS BY THE TRIBUNAL AND ON FURTHER APPEAL, HON BLE GUJARAT HIGH COURT HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE ON THIS BASIS THAT MERELY ON THE BASIS OF ADMISSION OF THE ASSESSEE, IT CANNOT B E SUBJECTED TO SUCH ADDITION UNLESS AND UNTIL SOME CORROBORATIVE EVIDEN CE IS FOUND IN SUPPORT OF SUCH ADMISSION. IN THE PRESENT CASE ALSO, THE A DDITION IS MADE ON THE BASIS OF ADMISSION ALONE WITHOUT BRINGING ANY CORRO BORATIVE MATERIAL ON RECORD AND HENCE, IN OUR CONSIDERED OPINION, THIS I SSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THIS JUDGEMENT OF HONBLE GUJARAT HIGH COURT BECAUSE IN THE PRESENT CASE ALSO, NO COR ROBORATIVE MATERIAL HAS BEEN BROUGHT ON RECORD BY THE A.O. TO INDICATE ANY EXTRA INVESTMENT OR I.T.A.NO.961 /AHD/2009 C.O.94/AHD/2009 10 INCOME E IN EXCESS OF INVESTMENT AND INCOME DISCLOS ED BY THE ASSESSEE IN THE RETURN OF INCOME OF RS.720 LACS. THERE IS NO MA TERIAL AVAILABLE INDICATING ANY OTHER INCOME OR ANY OTHER INVESTMENT WHICH WAS UNACCOUNTED. HENCE, BY RESPECTFULLY FOLLOWING THIS JUDGEMENT OF HONBLE GUJARAT HIGH COURT, WE DECLINE TO INTERFERE IN THE ORDER OF LD. CIT(A). 13. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. 14. IN THE COMBINED RESULT, APPEAL OF THE REVENUE A S WELL AS C.O. OF THE ASSESSEE ARE DISMISSED. 15. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 21.11.2012 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 22.11.2012.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 23/11/2012 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.23/11 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 23/11/2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .