DCIT CENTRAL CIRCLE-30, NEW DELHI V. PRITI SANKHWAL, NEW DELHI

ITA 1473/DEL/2020

AI Insights

The case involves three separate appeals by the Revenue against Shri Anil Sankhwal, Shri Amit Sankhwal, and Shri Priti Sankhwal, concerning the assessment year 2016-17. The appeals were based on the additions made by the Assessing Officer following a search and seizure operation under section 132 of the Income Tax Act. The main contention was the acceptance of foreign remittances as gifts, which the Revenue argued were undisclosed incomes. The assessees contested these additions, claiming that the statements made during the search were coerced and retracted shortly thereafter. The Tribunal's decision was influenced by the lack of incriminating material and the retraction of statements by the assessees.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 37371 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-10-2024
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 12-08-2024
• Assessment Year: 2016-2017
• Appeal Filed On: 06-08-2020
• Other Referred Cases: Kishore Kumar Vs CIT, Bhagirath Aggarwal vs. CIT, CIT Vs M.S. Aggarwal, PCIT Vs. Abhisar Buildwell Pvt. Ltd., CIT Vs. Kabul Chawla, Best Infrastructure (India) (P.) Ltd. vs. CIT, Harjeev Aggarwal vs. CIT, Sunil Aggarwal vs. CIT, Meeta Gutgutia Prop. M/S. Ferns 'N' Petals vs. CIT, Uttamchand Jain vs. CIT, Naresh Kumar Agarwal vs. CIT, Pramukh Builders vs. CIT, Vinod Solanki Vs. Union of India, Pullangode Rubber Produce Co. vs. CIT, Nirmal Rani vs. DCIT, Heena Sharma vs. CIT, JH Jewellers LLP vs. Raaya Fine Jewellery, Kuwait
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RITU SHARMA
• Assessee Lawyers: UN MARWAH
• Keywords: Business income; Income from undisclosed sources; Gift; Retraction; Search and seizure; Block assessment; Bogus
• Section: 143(2); 119; 64; 132; 153A; 68; 139; 274; 133A

Judgement Text

"IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI ‘A’ BENCH, NEW DELHI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER AND SHRI NAVEEN CHANDRA, ACCOUNTANT MEMBER ITA No.1472/DEL/2020 [A.Y 2016-17] The Dy. C.I.T. Vs. Shri Anil Sankhwal Central Circle – 30 6/30, Shanti Niketan New Delhi New Delhi PAN – ABJPS 5331 A ITA No.1471/DEL/2020[A.Y 2016-17] The Dy. C.I.T. Vs. Shri Amit Sankhwal Central Circle – 30 6/30, Shanti Niketan New Delhi New Delhi PAN – ABJPS 5322 B ITA No.1473/DEL/2020 [A.Y 2016-17] The Dy. C.I.T. Vs. Shri Priti Sankhwal Central Circle – 30 6/30, Shanti Niketan New Delhi New Delhi PAN – ABJPS 9500 P (Applicant) (Respondent) Assessee By : Shri UN Marwah, CA Shri Praveen Goel, Adv Department By : Ms. Ritu Sharma, CIT-DR Date of Hearing : 12.08.2024 Date of Pronouncement : 24.10.2024 2 ORDER PER NAVEEN CHANDRA, ACCOUNTANT MEMBER:- The above captioned three separate appeals of Revenue against three different but connected assessees, are preferred against three separate orders of the ld. CIT(A)–30 dated 29.04.2020 pertaining to A.Y. 2016-17 respectively. 2. Since these three appeals were heard together and involve common issues, they are disposed of by this common order for the sake of convenience and brevity. Revenue appeal: ITA No. 1472/DEL/2020 [A.Y. 2016-17] 2. The Revenue has raised the following grounds of appeal: “1. Ld. CIT (A) has erred in facts or law in stating that no addition can be made on the basis of statements recorded u/s 132(4) of the IT Act without any corroborating incriminating materials. This is against the legal position held by various courts. In the case of Kishore Kumar Vs CIT (62 taxmann.com 215, 234 Taxman 771), Hon'ble Supreme Court dismissed SLP against High Court's order where it was held that since assessee himself had stated in sworn statement during search and seizure about his undisclosed income, tax was to be levied on basis of admission without scrutinizing documents. 3 2. Ld. CIT (A) has erred in facts or law in stating that retracted statements have no evidentiary value. Ld. CIT (A) has failed to appreciate the fact that assessee has not brought any facts during the assessment proceedings or appellate proceedings on the basis of which retraction would be held valid. 3. Ld. CIT (A) has erred in facts in ignoring the statements of Anil Sankhwal, recorded u/s 132(4) of the IT Act where he had categorically accepted that he and his son regularly visited Kuwait for the purpose of exhibition. They had clients in Kuwait to whom, they exported jewellery and diamond. They did under-invoicing, so that they could save some custom duty. The difference amount of these sales made to clients in Kuwait was given to his daughter in Kuwait and it was remitted back. 4. Ld. CIT (A) has erred in facts in ignoring the statements of Anjali Shah, recorded u/s 132(4) of the IT Act where she had categorically accepted that her father and her brother used to visit Kuwait for some exhibition. Some of their clients in Kuwait gave her amount. She further stated that this amount given to her by the clients on account of sale of jewellery and diamond made by father and brother. That the order of Ld. CIT(A) is perverse, erroneous and is not tenable on facts and in law. That the grounds of appeal are with prejudice to each other. 4 That the appellant craves leave to add, amend, alter or forgo any ground(s) of appeal either before or at the time of hearing of the appeal. 3. The brief facts of the case are that the return of income u/s 139 of the Act was filed by the assessee for the A.Y. 2016-17 declaring income at Rs. 4,89,450/- on 17.10.2016.A search & seizure action u/s 132 of the Act was carried out on 27.07.2016 & 23.08.2016 in the case of the assessee along with the other cases of Sh. Kartar Singh, his family and associate group of cases at various residential and business premises. Accordingly, notice u/s 153A of the Income-tax Act, 1961 [the Act, for short] was issued on 06.04.2018 and in response to this, the assessee filed his return of income for the A.Y. 2016-17 declaring income at Rs. 4,82,520/-. 4. Accordingly, notice u/s 143(2) of the Act was issued by the Assessing Officer on 27.08.2018 along with questionnaires for the assessment year 2016-17. For the impugned AY, the Assessing Officer observed that the assessee had received foreign remittances aggregating to an amount of Rs. 2,08,00,000/- on 27.05.2015 on account of gift received from Mrs. Anjali Shah. 5 5. The assessee explained before the AO that the said amount was given by Smt. Anjali Shah, his daughter, out of love and affection. The Assessing Officer, however, relying on the statement of Anil Sankhwal recorded u/s 132(4) dated 28/29.07.2016 and that of his daughter Mrs Anjali Shah u/s 132(4) of the I T Act, rejected the explanation of the assessee andmade addition Rs. 2,08,00,000/- in the A.Y. 2016-17 as unaccountedincome in the form of gift received from Mrs. Anjali Shah. Further, the Assessing Officer added an amount of Rs. 6,930/- in the A.Y. 2016-17, on account that the assessee had filed return of income u/s 153A of the Act after reducing an amount of Rs. 6,930/-, from the return originally filed u/s 139 of the Act. 6. Aggrieved, the assessee went in appeal before the ld. CIT(A) who after discussing the case and evidence submitted, deleted the additions made. 7. Now the aggrieved Revenue is in appeal before us. 8. Before us, the ld DR strongly supporting the order of the assessing officer, argued that in the course of the search, Mr. Anil Sankhwal [Father of Amit Sankhwal (son) and Anjali Shah (daughter)] 6 gave a statement u/s 132(4) on 28/29.07.2016 where he admitted that the assessee, his wife Priti Sankhwal and his son Amit Sankhwal had received 7.21 crore as foreign remittances from his daughter Anjali Shah in F.Ys. 2014-15 and 2015-16. The ld. DR referred to the statement where the assessee explained in detail that he under- invoiced the export sale to save custom duties and the difference in the sale proceeds were collected from the clients in Kuwait by his daughter Anjali Shah. The collection of the under-invoiced export sales proceeds was remitted as gifts by Anjali Shah from Kuwait to India in the assessee’s books to evade income tax. The ld DR emphasized that the assessee voluntarily offered this sum as his unaccounted income and offered for taxation. 9. The ld DR corroborated the assessee’s statement with the statement of Mrs. Anjali Shah which was recorded u/s 132(4) of the Income Tax Act on 28.07.2016.The ld DR pointed out that Anjali Shah admitted in her statement that her father and her brother used to visit abroad for jewellery exhibitions. Some of their clients in Kuwait gave her the above amount. She admitted that this amount was from the sale of jewellery and diamond made by her father and brother. She also stated that she transferred the amount to her RBS Bank and 7 NRE/NRO account. From this RBS Bank and NRE/NRO account, she issued cheque to her father, mother and brother. The ld DR, therefore argued that the addition made by the AO be sustained. 10. Per contra, the ld AR of the assessee vehemently argued that the addition was made solely relying upon the statement of the Mr. Anil Sankhwal, the assessee and his daughter Anjali Shah. It was forcefully submitted that there was no incriminating/corroborating evidence found in the course of search to substantiate the allegation. It was argued that the statements u/s 132(4) of Mr. Anil Sankhwal and his daughter Anjali Shah were given under coercion andthreat of adverse action. It was further submitted that these statements were retracted by them, by means of separate Affidavits dated 05.08.2016, filed before DDIT(Inv), Unit 5(4), New Delhi on 08.08.2016 (i.e. within 10 days of original statement). It was vehemently submitted that the AO wrongly held that the retraction was filed vide letter dated 22.03.2017 i.e., after 9 months. The ld AR of the assessee submitted that the daughter Anjali Shah is a Non-resident and was visiting her parents during the period when search u/s 132 took place. The ld AR submitted that the statement of Anjali Shah was given under threat and coercion 8 and therefore the statement, in absence of any incriminating materials, do not have any evidentiary value. 11. The ld AR, argued on merits with respect to the genuineness of gift in the context of section 68 of the I T Act, that theAssessing Officer while making the impugned addition failed to consider and appreciate the evidence filed in support of the gift, in particular Audited Financial statements of Mrs Anjali Shah and her husband Abhinn Shah along-with their Source of Incomefrom business through entity “Wow Ballons and Gifts & Accessories” in Kuwait in support of credit worthiness;Copies of Foreign and Indian Bank Accounts of Mrs Anjali Shah as also of the recipient of Gift along-with memorandum of Gift in support of genuineness and Copy of Passport & Residency permit of Mrs Anjali Shah in support of Identity. 12. It was also submitted that the assessee has few more concerns such as (i) J H Jewellers LLP, (ii) JH Jewellers Pvt Ltd; (iii)Maharaja Tie Up Pvt Ltd ;(iv) Dynamic Enclave Pvt Ltd involved in the business of jewellery. It was submitted that there was a survey conducted simultaneously on the same day i.e. 27.07.2016 on the above entities. It was the say of the ld AR that no incriminating material was found at 9 the premises of these entities. It was submitted that a statement of Amit Sankhwal (son) was recorded u/s 133A on 29.07.2016 wherein Amit Sankhwal categorically stated that gifts received by Anil Sankhwal/PritiSankhwal from Anjali Shah were out of her earning from apparel business. 13. The ld AR further submitted that the JH Jewellers LLP has made exports of jewellery to Raaya Fine Jewellery, Kuwait from time to time, all of which have been recorded in the Books of the firm.It is vehemently contended that Assessing Officer’s conclusion that no business has been recorded between Raya Fine Jewellery, Kuwait and JH Jewellers LLP, is completely opposed to facts and is based on surmises. 14. The ld AR pointed that after the retraction of the statement made on 28/29.07.2016,a fresh statement of Anil Sankhwal was recorded by Inv. Officer on 05.08.2017 and of Amit Sankhwal on 29.09.2017 wherein they confirmed the receipt of gifts from Anjali Shah. 10 15. The ld AR argued that the AO reliance upon the case of B.Kishore Kumar Vs CIT 62 Taxmann.com215 [SLP dismissed] is distinguishable as in that case incriminating materialwas found & seized and Statement was based on such material whereas in the assessee’s case, no incriminating material has been found and addition is solely made on basis of Statement, which has been retracted within 10 days of search. The reliance on the case of Bhagirath Aggarwal vs. CIT, 31Taxmann.com 274 [Delhi] is again distinguishable as in that case the assessee had access to all the documents which had been seized in as much as copies had been supplied to him and there was a clear admission, voluntarily made, on part of the assessee which would constitute a good piece of evidence for the revenue. In case of assessee no incriminating material has been found during the search. Statement recorded u/s 132(4) has no evidentiary value as the same was retracted within 10 days of search & no incriminating material. 16. The case of CIT Vs M.S. Aggarwal 93 Taxmann.com 247 [Delhi] is distinguishable as in that case, addition to the assessee's undisclosed income in respect of gift, in view of fact that (i) assessee did not even know donor personally (ii) the retraction has been filed after 2 years of search (iii) assessee does not claim that the statement recorded was 11 extracted and given under force, threat or coercion. Whereas in the instant case (i) Gift is received from daughter (ii) retraction has been filed within 10 days of search. Hence cannot be relied upon.With respect to the cases of M/s Pebble Investment and Finance Ltd. Vs. ITO [2017-TIOL- 238-SC- IT); Raj Hans Towers (P) Ltd. Vs. CIT- 56.taxmann.com 67; PCIT Vs. Avinash Kumar Setia [2017] 81 taxmann.com 476 (Delhi), it was submitted that theyare related to survey proceeding, hence distinguishable. 17. The ld AR relied upon various case laws regarding validity of retractionand for the proposition that the statement recorded u/s 132(4) of the Act, can form a basis for a search assessment only if such statement is corroborated with any incriminating evidence of undisclosed income unearthed during search.The statement solely cannot be the basis for making an assessment as follows: (1) Vinod Solanki Vs. Union of Indian SLP (C) No. 3537 of 2008 Civil Appeal No. 7407 of 2008 (SC) (ii) Pullangode Rubber Produce Co. (1973) 91 ITR 18 [SC] (iii) CIT v. Sunil Aggarwal[2015] 64 taxmann.com 107 (Delhi) 12 iv) PCIT V Meeta Gutgutia Prop. M/S. Ferns 'N' Petals 017 (5) Tmi 1224 - Delhi High Court (v) CIT v. Uttamchand Jain [2009] 182 Taxman 243 (Bombay) (vi) Abhi Developers v. Income-tax Officer, Ward 2(1), Surat (2007) 12 SOT 44 (ahd.) (vii) CIT-II, Hyderabad v. Naresh Kumar Agarwal [2015] 53 taxmann.com 306 (Andhra Pradesh) (viii) Deputy Commissioner of Income-tax, Circle 6(1), Ahmedabad v. Pramukh Builders [2008] 112 ITD 179 (Ahmedabad) (TM). 18. The ld AR relied on the following judicial pronouncement for the proposition that statement recordedu/s132(4), which were retracted, without reference to any other material discovered during the search and seizure operation would not empower the AO to make addition merely because any admission was made by the appellant during search operation. (i) PCIT, Delhi-2 vs. Best Infrastructure (India) (P.) Ltd., Delhi HC, [2017] 84 taxmann.com 287 (Delhi) 13 (ii) CIT, Delhi-2 vs. Harjeev Aggarwal. Delhi HC, 70 taxmann.com 95 (Delhi) (iii) CIT, Delhi-2 vs. Sunil Aggarwal. Delhi HC, 64 taxmann.com 107 (Delhi) 19. Arguing on merits of the addition, it was submitted that the assessee along with his family received gifts aggregating Rs. 6.26 crore in AY 2016-17, from Mrs. Anjali Shah as under:- Name of Recipient Year Relationship with Donor Amount (In Rs.) receipt of Gift Mr. Anil Sankhwal 2016-17 Daughter 2,10,00,000 Mrs. Priti Sankhwal 2016-17 Daughter 2,08,00,000 Mr. Amit Sankhwal 2016-17 Brother 2,08,00,000 Total 6,26,00,000/- It was submitted that the source of gifts were combined income of Mrs. Anjali and her husband Mr. Abhinn Shah. The combined Net Worth as on Dec’2015 was 10,83,517 Kuwaiti Dinar which is equivalent to INR 24.05 Crores approx. and the combined Net worth for the year ending Dec'2016was 27,48,282 Kuwaiti Dinar( around Rs 60.32 crore). 14 20. It was submitted that Abhinn Shah transferred KD 3,00,000 (equivalent USD 9,89,772.35) from his Al Ahli[ABK] Bank Account to Anjali Shah on 12.05.2015. [Copy of Bank Statement of Abhinn Shah at Pg. No. 296 of PB & copy of Anjali Shah at Pg 286]. On 14.05.2015 she transferred USD 9,89,000 from her Kuwait Bank Account to Indian Bank Account namely Royal Bank of Scotland, Account No.775, equivalent INR: 6,25,82,654 which was credited in Indian Account 19.05.2015. Out of same she gifted Rs.2.08 Cr. each to Amit and Anil Sankhwal and Rs.2.10 Cr to Priti Sankhwal (Copy of Bank Statement of Amit at Pg. 303 of PB; Bank Statement of Anil at Pg. 304 of PB; and Bank statement of Priti Sankhwal at Pg. 306 of PB) 21. The AR submitted that the assessee, in terms of section 68, has established (i) identity of the person making gift (ii) capacity/ability of donor to make gift (iii) genuineness of gift. Thus, the initial onus to establish all these three conditions was discharged by the assessee. Identity: That the Donor Mrs. Anjali Shah is a permanent resident of Kuwait under Residency Permit No.274082203255. She is assessed to tax in India under the jurisdiction of Ward-32 (5), New Delhi under PAN: ABIPS9071 Q in Status of Non Resident. 15 Creditworthiness: As mentioned is the above paragraphs, Mrs. Anjali Shah and her husband Mr. Abhinn Shah are capable enough to gift the mentioned sum of money as evident from the Audited financial statements of Mrs. Anjali Shah and Mr. Abhinn Shah, Thus, the creditworthiness of the Donor stands explained. Genuineness: The copy of gift deeds and the copy of Bank Statements from where the amounts were transferred to the appellants Bank Account, are part of the record. Also the source i.e. from where the donor received the funds was filed. 22. The ld AR relied on the following judgements: (1) CIT, Delhi-2 vs Kinetic Capital Finance Ltd [2011] 14 taxmann.com 150 (Delhi) (ii) CIT v. Dwarkadhish Investment (P.) Ltd. [2010]194Taxman 43(Delhi) iii) Neelamben Gopaldas Agrawal v. Income-tax Officer (iv) Smt (iv) CIT vs Dr. Kodela Siva Prasada Rao [2013] 29 taxmann.com 18 (Andhra Pradesh) 16 (v) Nirmal Rani v. DCIT, Ambala City [2017] 79 taxmann.com 180(Chandigarh - Trib.) (vi) CIT-VI v. Heena Sharma [2013] 33 taxmann.com 176 (Gujarat) (vi) 23. We have heard the rival submissions and have perused the relevant material on record. We find that the AO has based his entire case on the initial statements of Anil Sankhwal and Anjali Shah recorded u/s 132(4) on 28/29.07.2016 in the course of search. We also note that the AO has not alluded to any incriminating material found in the course of search to corroborate the statements.At this juncture, we refer to the law laid down by the hon’ble Delhi High Court in the case of Best Infrastructure (India) (P.) Ltd that : “the statements recorded under Section 132 (4) of the Act of the Act do not by themselves constitute incriminating material as has been explained by this Court in Harjeev Aggarwal (supra)”. 24. On the subject of statement u/s 132(4), the decision in the case of CIT, Delhi-2 vs. Harjeev Aggarwal is even more illuminating, the relevant portion are reproduced as under: 17 \"However, the statements recorded would certainly constitute information and if such information is relatable to the evidence or material found during search, the same could certainly be used in evidence in any proceedings under the Act as expressly mandated by virtue of the Explanation to section 132(4). However, such statements on a standalone basis without reference to any other material discovered during search and seizure operations would not empower the Assessing Officer to make a block assessment merely because any admission was made by the assessee during search operation. A plain reading of section 132(4) indicates that the authorized officer is empowered to examine on oath any person who is found in possession or control of any books of account, documents, money, bullion, jewellery or any other valuable article or thing…….The undisclosed income of an assessee has to be computed on the basis of evidence and material found during search. The statement recorded under section 132(4) may also be used for making the assessment, but only to the extent it is relatable to the incriminating evidence/material unearthed or found during search. In other words, there must be a nexus between the statement recorded and the evidence/material found during search in order to for an assessment to be based on the statement recorded. The statement recorded under section 132(4) can form a basis for a block assessment only if such statement relates to any incriminating evidence of undisclosed income unearthed during 18 search and cannot be the sole basis for making a block assessment. If the revenue's contention that the block assessment can be framed only on the basis of a statement recorded under section 132(4) is accepted, it would result in ignoring an important check on the power of the Assessing Officer and would expose assessees to arbitrary assessments based only on the statements, sometimes extracted by exerting undue influence or by coercion. Sometimes statements are recorded by officers in circumstances which can most charitably be described as oppressive and in most such cases, are subsequently retracted. Therefore, it is necessary to ensure thatsuch statements, which are retracted subsequently, do not form the sole basis for computing undisclosed income of an assessee. (Para 24)” 25. In accordance with the Delhi High Court decision in Best Infrastructure, wenote that the statements of Anil Sankhwal and Anjali Shah cannot be considered as incriminating material by themselves. Furthermore, we find that these statements were retracted within 10 days i.e., on 05.08.2016 through affidavits clearly stating that the initial statement was recorded under duress and coercion. 19 26. We find that subsequently after the retraction, another statement of Anil Sankhwal was recorded by the Inv. Officer on 05.08.2017 wherein he confirmed the retraction on the grounds of coercion and threat of adverse action and reiteratedthe denial of initial statement. We have gone through the subsequent statement wherein Anil Sankhwal has answered as follows: Q. No 11. \"Gift was given by my daughter Mrs. Anjali Shah out of natural love and affection, The amount gifted by Anjali is out of her business income from Kuwait and monies received from his husband Abhinn Shah... \"[Pg. 117 of PB] Q. No. 15. \"Yes. This statement recorded during search in the middle of night when I was mentally, physically exhausted. Further, me and my daughter Mrs. Anjali Shah, who was visiting India, was coerced,. My daughter was told that her passport will be confiscated unless she admitted to monies sent by her from abroad as gift were bogus as monies arranged by me... [pg119 of PB] Q. No. 16. \"Yes it is true that I had signed this, but in the given circumstances I had no choice or option \"[Pg. 119 of PB] Q. No. 18. \"Firstly during the search the officials through coercion, threats recorded the statement of my Non Resident daughter who was present, in a separate room. She was 20 threatened ........I was forced to admit that there was under- invoicing of jewellery.” 27. We find that the Assessing Officer, in his assessment order, has not controverted the affidavit dated 05.08.2016 retracting the earlier statement nor the subsequent statement recorded by Inv. Officer on 05.08.2017 with any cogent evidence or incriminating materials. The Assessing Officer has merely discarded the retraction on the ground that it was made 9 months later which, as discussed elsewhere and by the CIT(A), is factually incorrect. The ld DR, before us, also neither could controvert the retraction affidavit nor the subsequent statement recorded on 05.08.2017. In such a situation we find that the decision in the case of Harjeev Agarwal prohibits the use of such statement as the sole basis for computing undisclosed income. 28. We also note that the AO has not referred to any incriminating material found during the search which could corroborate the initial statement of Anil Sankhwal or Anjali Shah. We find that the AO has referred to a large numbers of emails which have been exchanged between [e-mail] and [e-mail] and [e-mail] to allege that Mr. Abhinn Shah and Mrs. Anjali Abhinn Shah were managing the jewellery business for the 21 Sankhwals in Kuwait. However, we could not find any instance where either the AO or the ld DR has dislodged or controverted the assessee’s claim that all the sales made by M/s JH Jewellers LLP to Raaya Fine Jewellery, Kuwait were duly recorded in the books of accounts of the Firm. 29. We are inclined to agree with the assessee’s submission that the reliance of the AO, for the validity of statement u/s 132(4),on the decisionsof B. Kishore Kumar Vs CIT; Bhagirath Aggarwal vs. CIT and CIT Vs M.S.Aggarwal are distinguishable on facts. We are also inclined to agree with ld AR that decisions in the cases ofM/s Pebble Investment and Finance Ltd. Vs. ITO; Raj Hans Towers (P) Ltd. Vs. CIT; PCIT Vs. Avinash Kumar Setia are related to survey proceeding, hence distinguishable. 30. Further, the assessee has placed on record the order of the co- ordinate Delhi bench in the case of Shri Amit Sankhwal (son of Anil Sankhwal) in ITA 1564 & 1565/Del/2020 for A.Ys 2011-12 and 2013-14 wherein the issue of incriminating material during the same search was involved. The Tribunal while disposing of the appeal vide order dated 29.12.2023 has held as under: 22 “As could be observed from the above, it is the finding of the Ld.CIT(A) that no incriminating material was unearthed during search/survey and in view of the proposition laid down in the case of Kabul Chawla (supra) the addition made by the AO was held to be bad in law as no incriminating material was found or seized which relating to the assessment year under consideration. We observe that the decision of the Jurisdictional High Court in the case of CIT Vs. Kabul Chawla (supra) has been affirmed by the Hon'ble Supreme I.T.A.Nos.1564 & 1565/Del/2020 Court in the case of PCIT Vs. Abhisar Buildwell Pvt. Ltd. (454 ITR 212). The Revenue could not place on record any seized material based on which the additions were made in the assessment order. In the circumstances, we do not see any infirmity in the order passed by the Ld.CIT(A) in deleting the addition made by the AO in the absence of any incriminating material seized in the course of search. We observe that the facts in both the appeals are identical as in both these assessment years 2011-12 and 2013-14 no incriminating materials were seized leading to the additions in dispute. Thus, the ratio of the decision of the Hon'ble Supreme Court in the case of PCIT Vs. Abhisar Buildwell Pvt. Ltd. squarely applies for both these appeals. Thus, we sustain the order of the Ld.CIT(Appeals) for the assessment years 2011-12 and 2013-14. Grounds raised by the Revenue for both these assessment years are rejected.” 23 31. Considering the entire issue in the instant case from a legal perspective, we are of the considered opinion that the Revenue has failed to place on record any seized material based on which the additions were made in the assessment order. There is not even a whisper of any incriminating material found at the time of search qua the assessment year.Therefore a statement u/s 132(4), sans any incriminating evidence of undisclosed income unearthed during search, can not be the sole basis for computing undisclosed income.The ratio laid down by the Hon'ble High Court of Delhi in the case of Kabul Chawla281 CTR 45therefore,squarely apply which has now been affirmed by the Hon'ble Supreme Court in the case of Abhisar Buildwell 454 ITR 212. Respectfully following the established legal principles as cited in the judicial pronouncementsas above, we do not find any infirmity in the order of the CIT(A). Accordingly, the addition made, devoid of any incriminating material,is deleted. Consequently all the grounds of appeal of the Revenue is dismissed. Since we have adjudicated the issue on legal grounds, we refrain from commenting on merits of the case. 24 Revenue Appeal ITA No.1471/DEL/2020 [A.Y 2016-17] ITA No.1473/DEL/2020 [A.Y 2016-17] 32. Facts and circumstances being identical and on finding parity of facts, we respectfully follow the decision of the Hon'ble Supreme Court, Hon'ble High Court and the co-ordinate bench as above, and dismiss the grounds of appeal taken by the Revenue in both the appeals. 33. In the result, the appeals of the Revenue in ITA No. 1471, 1472 and 1473/DEL/2020 stand dismissed. The order is pronounced in the open court on 24.10.2024. Sd/- Sd/- [VIKAS AWASTHY] [NAVEEN CHANDRA] JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 24th October, 2024. VL/ 25 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi Date of dictation Date on which the typed draft is placed before the dictating Member Date on which the typed draft is placed before the Other Member Date on which the approved draft comes to the Sr.PS/PS Date on which the fair order is placed before the Dictating Member for pronouncement Date on which the fair order comes back to the Sr.PS/PS Date on which the final order is uploaded on the website of ITAT Date on which the file goes to the Bench Clerk Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the Order "