Kamlesh Mittal, Mohali V. DCIT, Mohali

ITA 131/CHANDI/2015

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2768 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 year(s) 11 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 04-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND SUDERSHAN
• Assessee Lawyers: AJAY K JAIN
• Keywords: Unexplained investment; Search and seizure; Loose papers; Question of law; Retraction; Co-operative Credit Society
• Section: 143(3); 133A; 292BB; 143(2); 64; 13; 153; 22; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, A CHANDIGARH , !' # $ % &' , '( BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ./ ITA NO. 130/CHD/2015 / ASSESSMENT YEAR : 2011-12 SHRI SANDHURI LAL MITTAL, SCO 2, KALGIDHAR ENCLAVE, BALTANA, ZIRAKPUR, SAS MOHALI THE DCIT, CIRCLE 6(1), MOHALI ./PAN NO: AAQPL4613A / APPELLANT /RESPONDENT ./ ITA NO. 128/CHD/2015 / ASSESSMENT YEAR : 2011-12 SHRI BRIJ LAL MITTAL, SCO 2, KALGIDHAR ENCLAVE, BALTANA, ZIRAKPUR, SAS MOHALI THE DCIT, CIRCLE 6(1), MOHALI ./PAN NO: AGBPM1777B / APPELLANT /RESPONDENT ./ ITA NO. 129/CHD/2015 / ASSESSMENT YEAR : 2011-12 SHRI RAM BHAJ MITTAL, SCO 2, KALGIDHAR ENCLAVE, BALTNA, ZIRAKPUR, SAS MOHALI THE DCIT, CIRCLE 6(1), MOHALI ./PAN NO: APCPM2460H / APPELLANT /RESPONDENT & ./ ITA NO. 131/CHD/2015 / ASSESSMENT YEAR : 2011-12 SHRI KAMLESH MITTAL, SCO 2, KALGIDHAR ENCLAVE, BALTNA, ZIRAKPUR, SAS MOHALI THE DCIT, CIRCLE 6(1), MOHALI ./PAN NO: AIJPM4383K ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 2 / APPELLANT /RESPONDENT ! /ASSESSEE BY : SHRI AJAY K JAIN, CA ' ! / REVENUE BY : SHRI ARVIND SUDERSHAN, SR. DR # $ % /DATE OF HEARING : 13.01. 2020 &'() % / DATE OF PRONOUNCEMENT : 98.01.2020 ')/ ORDER PER SANJAY GARG, JUDICIAL MEMBER: THESE FOUR APPEALS BY DIFFERENT BUT RELATED ASSESSE ES HAVE BEEN PREFERRED AGAINST THE SEPARATE ORDERS DATED 12.11.2 014 OF THE COMMISSIONER OF INCOME TAX (APPEALS), CHANDIGARH [ HEREINAFTER REFERRED TO AS CIT (A)]. 2. SINCE THE FACTS AND ISSUE INVOLVED IN ALL THESE APPEALS ARE INTERCONNECTED, HENCE, THESE HAVE BEEN HEARD TOGETH ER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER. FOR THE SAKE OF CONVENIENCE, ITA NO. 130/CHD/2015 IS TAKEN AS A LEAD CASE. ITA NO.130/CHD/2015 3. THE ASSESSEE IN THIS APPEAL HAS TAKEN THE FOLLOW ING GROUNDS OF APPEAL:- 1. THAT THE ORDER OF LEARNED CIT(A) IS BAD, AND AGAINST LAW AND FACTS. 2. THAT THE LEARNED CIT(A) HAS WRONGLY UPHELD THE ASSESSMENT ORDER AS VALID DESPITE OF FACT THAT ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 3 ASSESSING OFFICER HAS FAILED TO SERVE THE NOTICE U/ S 143(2) WITH IN PRESCRIBED TIME FOR ISSUANCE OF NOTICE U/S 143(2) & THEREFORE THE ASSESSMENT FRAMED U/S 143(3) IS BAD IN LAW & DESERVED TO BE QUASHED . 3. THAT THE LEARNED CIT(A) HAS WRONGLY APPLIED THE PROVISIONS OF SECTION 292BB OF INCOME TAX WITHOUT MAKING ENQUIRY IN RESPECT OF MODE OF SERVICE OF NOTICE TO APPELLANT. 4. THAT THE LEARNED CIT(A) WRONGLY UPHELD THE ADDITION OF RS 72,30,000/- ON ACCOUNT OF RECEIVABLE SIMPLY ON THE BASIS OF STATEMENT OF APPELLANT WITHOUT VERIFYING THE FACTS & ALSO WRONGLY PLACED RELIANCE ON DIARY PREPARED AT THE INSTRUCTION OF SURVEY PARTY DURING THE COURSE OF SURVEY PROCEEDINGS. FURTHER THE LD. CIT(A) WRONGLY UPHELD THE ACTION OF THE ASSESSING OFFICER WHO HAS MADE ADDITION WITHOUT MAKING ANY ENQUIRY TO VERIFY THE OWNERSHIP OF DIARY HANDWRITING OF PERSON WHO WROTE DIARY, EXISTENCE OF PERSON AGAINST WHOM AMOUNT WAS SHOWN RECEIVABLE & WITHOUT APPRECIATING THE FACT THAT THE APPELLANT HAS NOT DISCLOSED ANY ADDITIONAL INCOME DURING THE COURSE OF SURVEY & THEREAFTER. THE LD. CIT(A) HAS ALSO FAILED TO APPRECIATE THE FACT THAT THE SURREND ER LETTER WAS NOT SIGNED BY APPELLANT & NO STATEMENT HAS BEEN GIVEN BY APPELLANT. 5. THAT THE LEARNED CIT(A) HAS WRONGLY UPHELD THE ACTION OF ASSESSING OFFICER WHO ERRED BY NOT REDUCING THE PARTNER SALARY AMOUNTING TO RS 144000/- FROM THE TAXABLE INCOME WHICH HAS BEEN WRONGLY ADDED BY COUNSEL WHILE FILING THE ITR. THIS FACT THAT THE APPELLANT HAS NOT RECEIVED SALAR Y FROM PARTNERSHIP FIRM M/S SURYA INFRASTRUCTURE & BUILDERS ZIRAKPUR WAS INTIMATED TO ID ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 4 6. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR WITHDRAW ANY GROUND OF APPEAL BEFORE FINAL HEARING. 4. GROUND NO.1 : GROUND NO.1 IS GENERAL IN NATURE AND DOES NOT REQUIRE ANY SPECIFIC ADJUDICATION. 5. GROUND NOS. 2 & 3 : THE LD. COUNSEL FOR THE ASSESSEE HAS NOT ADDRESSED ANY ARGUMENTS IN RESPECT OF GROUND NOS. 2 AND 3, HENCE, THE SAME ARE DISMISSED AS NOT PRESSED. 6. GROUND NO. 4 : VIDE GROUND NO. 4, THE ASSESSEE HAS CONTESTED THE ADDITION OF RS. 72,30,000/- MADE INTO THE IN COME OF THE ASSESSEE ON THE BASIS OF THE STATEMENT RECORDED OF THE ASSES SEE DURING THE SURVEY ACTION CARRIED OUT AT THE BUSINESS PREMISES OF PART NERSHIP CONCERN OF THE ASSESSEE I.E M/S SURYA INFRASTRUCTURE AND BUILDER S, ZIRAKPUR. THE BRIEF FACTS OF THE CASE ARE THAT A SURVEY OPERA TION U/S 133A OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') WAS C ARRIED OUT AT THE PREMISES OF M/S SURYA INFRASTRUCTURE AND BUILDERS, ZIRAKPUR ON 09.09.2010. DURING THE COURSE OF SURVEY OPERATION, AN AMOUNT OF RS. 2.40 CORES WAS SURRENDERED BY THE ASSESSEE SHRI SAN DHURI LAL MITTAL, IN THE INDIVIDUAL NAME OF PARTNERS WHO ARE ALSO BROTHE RS (ASSESSEESS HEREIN). THE RELEVANT PORTION OF THE SURRENDERED LE TTER SIGNED BY SHRI SUNDHURI LAL MITTAL IS REPRODUCED AS UNDER:- ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 5 'TODAY SURVEY OPERATION IS CARRIED OUT AT OUR BUSIN ESS PREMISES BY INCOME TAX DEPARTMENT. DURING THE COURSE OF SURV EY SOME INCRIMINATING DOCUMENTS OF PARTNERS WERE FOUND BY T HE SURVEY TEAM OF WHICH WE COULD NOT GIVE ANY EXPLANATION. WE THEREFORE SURRENDER THE FOLLOWING AMOUNT. 1. RS. 76.55 LACS IN THE HAND OF SHRI RAM BHAJ MITTAL ON ACCOUNT OF RECEIVABLES. 2. RS. 72.30 LACS IN THE HAND OF SH SANDHURI LAI MITTA L ON ACCOUNT OF RECEIVABLE. 3. RS. 52.40 LACS IN THE HAND OF SHRI BRIJ LAI MITTAL ON ACCOUNT OF RECEIVABLE. 4. RS. 38.75 LACS IN THE HAND OF SMT. KAMLESH RANI MITTAL ON ACCOUNT OF RECEIVABLE. THE SURRENDER AMOUNTING TO RS. TWO CRORE FORTY LACS (RS.2,40,00,000) AS MENTIONED ABOVE HAS BEEN MADE V OLUNTARILY WITHOUT COERCION TO BUY PEACE OF MIND AND LITIGATIO N WITH THE DEPARTMENT. THE SURRENDER IS MADE SUBJECT TO NO PENALTY AND IS OVER AND ABOVE OUT NORMAL INCOME AS REPORTED IN OUR INCO ME TAX RETURNS. THE SURRENDER IS MADE FOR THE ASSESSMENT Y EAR 2011-12 RELEVANT TO PREVIOUS YEAR 2010-11.' AS PER THE ABOVE LETTER, A SUM OF RS. 72.30 LACS WA S SURRENDERED BY THE ASSESSEE SHRI SANDHURI LAL MITTAL ON ACCOUNT OF REC EIVABLE, HOWEVER, THE ASSESSEE DID NOT DECLARED THIS AMOUNT IN HIS RETURN OF INCOME. ON BEING ASKED TO EXPLAIN IN THIS RESPECT BY THE ASSESSING O FFICER, THE ASSESSEE SUBMITTED THAT HE HAD NOT GIVEN ANY ADVANCE OR SOLD GOODS TO ANY PERSON MENTIONED IN THE DIARY SEIZED DURING THE COURSE OF SURVEY. IT WAS ALSO SUBMITTED THAT THE IMPOUNDED DOCUMENTS WERE PREPARE D AS PER ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 6 INSTRUCTION OF THE SURVEY PARTY AND THE PERSONS MEN TIONED IN THE DIARY DO NOT EXIST AT ALL. THAT, HE HAS NOT RECEIVED BACK AN Y SUMS FROM THESE PERSONS AT ANY POINT OF TIME AS NOTHING WAS RECEIVA BLE FROM THEM. IT WAS CONTENDED THAT THE SURRENDER WAS MADE UNDER GREAT M ENTAL TENSION AND FACTUAL POSITION WAS THAT THERE WAS GREAT RECESSION AT THE TIME OF SURVEY. HOWEVER, THE ASSESSING OFFICER DID NOT AGREE WITH T HE SUBMISSIONS OF THE ASSESSEE. HE REFERRED TO THE STATEMENT RECORDED DURING THE COURSE OF SURVEY IN RESPECT OF DIARY IMPOUNDED AT THE TIME OF SURVEY AND MADE ADDITION OF THE AMOUNT DISCLOSED AS ADDITIONAL INCO ME AT RS. 72,30,000/- AFTER REJECTING THE ARGUMENTS OF THE AS SESSEE. 7. BEING AGGRIEVED BY THE ABOVE ORDER OF THE ASSESS ING OFFICER, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT(A) AND MADE THE FOLLOWING SUBMISSIONS:- (I) THE APPELLANT WAS FORCED TO GIVE SURRENDER IN PERSONAL CAPACITY DESPITE THE FACT THAT HE HAD NOT CARRIED O UT ANY BUSINESS IN PERSONAL CAPACITY AND THE DOCUMENTS ME NTIONED BY THE ASSESSING OFFICER WERE PREPARED DURING THE COUR SE OF SURVEY. (II) THE SURRENDERED AMOUNT WAS NOT DECLARED IN TH E RETURN AND THE DEPARTMENT HAS NOT MADE ANY INQUIRY FROM TH E APPELLANT AFTER RECEIPT OF RETURN. (III) THE CONTENTS OF THE DIARY WERE NEVER VERIFIED AND THESE DIARIES DO NOT CONTAIN ANY DATES, IN THE ABSENCE OF WHICH IT WAS NOT POSSIBLE TO HOLD THAT THE ADVANCES WERE GIVEN D URING THE YEAR UNDER CONSIDERATION. ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 7 (IV) THE SURVEY WAS CONDUCTED IN THE CASE OF M/S SU RYA INFRASTRUCTURE AND BUILDERS AND NOT IN THE PERSONAL CAPACITY OF THE APPELLANT, WHO NEVER CARRIED OUT THESE BUSINESS ACTIVITIES IN HIS PERSONAL CAPACITY. (V) THE ASSESSING OFFICER HAS WRONGLY PLACED RELIAN CE ON THE JUDGEMENT OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF BACHITTAR SINGH (328 ITR 400). (VI) RELIANCE HAS BEEN PLACED BY THE APPELLANT ON T HE JUDGEMENT OF HON'BLE MADRAS HIGH COURT IN THE CASE OF S. KHADER KHAN SON (300 ITR 157) AND HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF M/S DIPLAST PLAST ICS LTD (327 ITR 399) ON INSTRUCTION DATED 10.03.2003 ISSUE D FROM F.NO. 286/2/2003/IT(INV). (VII) PRIMARY ONUS IS ON THE DEPARTMENT TO PROVE TH AT PARTICULAR STATE OF AFFAIRS ARE EXISTING AS HELD BY HON'BLE SUPREME COURT IN THE CASE OF KISHINCHAND CHELLARAM (125 ITR 713). (VIII) THE CONFESSION GIVEN U/S 133A HAS NO EVIDENT IARY VALUE AS HELD BY HON'BLE DELHI HIGH COURT IN THE CASE OF M/S DHINGRA METAL WORKS VIDE ORDER DATED 04.10.2010 IN ITA NO. 1111/2010. 8. HOWEVER, THE LD. CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE OBSERVING AS UNDER:- 4.3 I HAVE CONSIDERED THE SUBMISSION OF THE LD. COUNSEL. IN THIS CASE, A DIARY CONTAINING DETAILS O F RECEIVABLES TO THE TUNE OF RS. 72.30 LACS, RELATING TO APPELLANT WAS IMPOUNDED DURING THE COURSE OF SURVEY ON M/S SURYA INFRASTRUCTURE AND BUILDERS, ZIRAKPUR ON 09.09.2010. ON THE BASIS OF THIS DIARY, THE APPELLANT HAD DISCLOSED AN AMOUNT OF RS. 72.30 LACS . THE CONTENTION OF THE APPELLANT THAT SURVEY WAS CONDUCTED IN THE CASE OF M/S SURYA INFRASTRUCTURE A ND BUILDERS AND NOT ON THE APPELLANT IN THE PERSONAL CAPACITY & SO THE DIARY CANNOT BE CONSIDERED IN HIS ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 8 HANDS, DOES NOT HOLD WATER, SINCE THE INCRIMINATING DOCUMENTS IN THE FORM OF THE DIARY RELATING TO THE APPELLANT WAS FOUND FROM THE PREMISES OF M/S SURYA INFRASTRUCTURE AND BUILDERS, IN WHICH THE APPELLANT WAS A PARTNER AND SO IT HAS TO BE CONSIDERED IN THE HANDS OF THE APPELLANT AND NOT IN THE HANDS OF THE FIRM. 4.3.1 IT WAS THE DUTY OF THE APPELLANT TO TAKE ACTION BY WRITING TO THE ASSESSING OFFICER IF HE WA S NOT AGREEABLE TO THE ADDITIONAL INCOME DISCLOSED BY HIM, WHICH WAS NOT DONE. IN FACT, THE APPELLANT CHO SE QUIETLY NOT TO DISCLOSE THE ADDITIONAL INCOME SURRENDERED DURING SURVEY, PROBABLY IN THE HOPE THA T THE DEPARTMENT WOULD FORGET ABOUT THE SURVEY AND ACCEPT THE INCOME RETURNED BY HIM. 4.3.2 THE ARGUMENT OF THE APPELLANT THAT THE DEPARTMENT DID NOT MAKE ANY INQUIRY WHEN THE APPELLANT HAD NOT DECLARED SURRENDERED AMOUNT MAY BE CORRECT, BUT AS ALREADY DISCUSSED EARLIER THAT T HE APPELLANT SHOULD HAVE ALSO INFORMED THE DEPARTMENT IF HE WAS NOT AGREEABLE TO THE STATEMENT GIVEN AND INCOME SURRENDERED BY HIM. 4.3.3 IT HAS ALSO BEEN CONTENDED THAT THE DEPARTMENT DID NOT MAKE ANY ENQUIRY TO VERIFY THE CONTENTS IN THE DIARIES IMPOUNDED. THE CONTENTION O F THE APPELLANT IS CORRECT, BUT THE DEPARTMENT WAS NO T REQUIRED TO MAKE ANY ENQUIRY, SINCE THE ADDITIONAL INCOME ON THE BASIS OF NOTINGS IN THIS DIARY HAD ALREADY BEEN DISCLOSED. 4.3.4 FURTHER CONTENTION THAT THE DIARIES DO NOT CONTAIN THE DATES AND SO IT CANNOT BE SAID THAT ADVANCES WERE GIVEN DURING THE YEAR UNDER CONSIDERATION IS ALSO NOT ACCEPTABLE BECAUSE THESE DIARIES CONTAIN DETAILS OF RECEIVABLES WHICH, IN TH E ABSENCE OF ANY OTHERWISE MATERIAL, HAVE TO BE TREAT ED AS PERTAINING TO THE YEAR UNDER CONSIDERATION. ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 9 MOREOVER, THE ISSUE THAT RECEIVABLES MENTIONED IN T HE IMPUGNED DIARIES ARE NOT IN RESPECT OF THE YEAR UND ER CONSIDERATION NEVER AROSE AT THE TIME OF SURVEY OR AT ANY TIME IN THE ASSESSMENT PROCEEDINGS. 4.3.5 THE ARGUMENT OF THE LD. COUNSEL THAT THE DEPARTMENT DID NOT MAKE ANY INQUIRY BECAUSE THE DOCUMENTS WERE FABRICATED, CANNOT BE ACCEPTED, AS THE DEPARTMENT WAS PREVENTED FROM MAKING ANY FURTHER INQUIRIES/ INVESTIGATION BY DISCLOSING ADDITIONAL INCOME ON THE BASIS OF THE DETAILS MENTIONED IN THE IMPUGNED DIARY. 4.3.6 THE CONTENTION THAT THE APPELLANT HAD NOT CARRIED OUT ANY BUSINESS IN HIS PERSONAL CAPACITY I S NOT VERIFIABLE AT THIS STAGE, BUT THE FACT REMAINS THAT A DIARY RELATING TO RECEIVABLES BY THE APPELLANT, WAS IMPOUNDED ON THE BASIS OF WHICH ADDITIONAL INCOME WAS DISCLOSED AND THE ADDITIONAL INCOME DISCLOSED I S SUPPOSED TO BE DECLARED IN THE RETURN OF INCOME, WHICH WAS NOT DONE. THE APPELLANT HAS RELIED UPON INSTRUCTION ISSUED BY UNDER SECRETARY (INV.-II) DAT ED 10.03.2003 ISSUED FROM F.NO. 286/2/2003/ IT(INV). THIS INSTRUCTION ONLY SPEAKS THAT THERE SHOULD BE FOCUS AND CONCENTRATION ON COLLECTION OF EVIDENCE A ND WHILE RECORDING THE STATEMENT, ATTEMPT SHOULD NOT B E MADE TO OBTAIN CONFESSION. IN THE INSTANT CASE, THE DEPARTMENT HAD CARRIED OUT A SURVEY OPERATION, DURING THE COURSE OF WHICH THE IMPUGNED DIARY WAS FOUND AND THIS DIARY FORMED THE BASIS OF DISCLOSING THE ADDITIONAL INCOME IN RESPECT OF THE RECEIVABLES MENTIONED IN THE DIARY. IN FACT, THE INSTRUCTION QU OTED BY THE LD. COUNSEL HAS BEEN FOLLOWED BY THE DEPARTMENT IN LETTER AND SPIRIT. 4.3.7 THE APPELLANT HAS RELIED UPON THE JUDGEMENT OF HON'BLE MADRAS HIGH COURT IN THE CASE OF S. KHADER KHAN SON (SUPRA) TO SUPPORT HIS CONTENTION THAT THE CONFESSIONAL STATEMENT RECORDED IN SURVEY PROCEEDINGS HAS NO EVIDENTIARY VALUE. IN THA T CASE, THERE WAS A SURVEY OPERATION AT THE PREMISES OF ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 10 THE ASSESSEE AND STATEMENT OF ONE OF THE PARTNERS W AS RECORDED. THE ADDITIONAL INCOME WAS ALSO OFFERED FO R TAXATION. THE FOLLOWING QUESTIONS OF LAW WERE REFER RED TO HON'BLE HIGH COURT BY THE DEPARTMENT AGAINST THE ORDER OF THE HON'BLE TRIBUNAL: (I) WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL WAS RIGHT IN LAW IN HOLDING THAT THE STATEMENT MADE DURING A SURVEY UNDER S. 133A OF THE IT ACT HAS NO EVIDENTIARY VALUE? (II) WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE TRIBUNAL IS RIGHT IN NOT CONSIDERING THE FACT THAT THE BRANCH CONTRACTORS AGENTS ACCOUNT BOO K IN WHICH ENTRIES WERE MADE SUBSEQUENT TO THE SURVEY AND NOT FOUND DURING THE SURVEY NOR PRODUCED (DURING) THE SURVEY, COULD BE RELIED UPON? (III) WHETHER, ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE, THE TRIBUNAL WAS RIGHT IN NOT CONSIDERING THE FACT THAT THE VOLUNTARY STATEMENT MADE WITHOUT ANY COERCION OR DURESS GIVEN DURING THE COURSE OF SURVE Y ACTION UNDER S. 133A COULD FORM THE BASIS OF THE ASSESSMENT? THE HON'BLE HIGH COURT ON THE BASIS OF FACTS AND CIRCUMSTANCES OF THE CASE, HELD THAT WHEN THE COMMISSIONER OF INCOME TAX (APPEALS) AND HON'BLE TRIBUNAL FOLLOWED THE CIRCULAR OF CBDT DATED 10.03.2003 FOR ARRIVING AT THE CONCLUSION THAT THE MATERIAL COLLECTED AND STATEMENT OBTAINED U/S 133A WOULD NOT AUTOMATICALLY BIND THE ASSESSEE AND SO TH E HON'BLE HIGH COURT DID NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF THE HON'BLE TRIBUNAL. IT WAS MERELY HELD BY HON'BLE COURT THAT NO SUBSTANTIAL QUESTION OF LAW AROSE ON THE FACTS AND CIRCUMSTANCE S OF THIS CASE. IN THE INSTANT CASE, THE ADDITIONAL I NCOME WAS SURRENDERED ON THE BASIS OF THE EVIDENCE IN THE FORM OF DIARY FOUND DURING THE SURVEY, WHICH CONTAINED DETAILS OF RECEIVABLES AND SO RATIO OF TH IS ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 11 JUDGEMENT OF HON'BLE MADRAS HIGH COURT IS NOT APPLICABLE TO THE CASE OF THE APPELLANT. 4.3.8 THE APPELLANT HAS ALSO RELIED UPON THE JUDGEMENT OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF M/S DIPLAST PLASTICS LTD (SUPRA). IN THAT CASE, A SURVEY U/S 133A WAS CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE AND CERTAIN LOOSE PAPERS AND DOCUMENTS WERE FOUND. THE ASSESSING OFFICER HELD THAT THE TRADING RESULTS DECLARED BY T HE ASSESSEE WERE NOT VERIFIABLE AND SO HE MADE THE ADDITION. THE ADDITION WAS DELETED BY COMMISSIONER OF INCOME TAX (APPEALS) AND LATER ON BY TRIBUNAL AND ON FURTHER APPEAL, THE HON'BLE HIGH COURT HAD OBSERVED AS UNDER:- 'WE ALSO FIND THAT THE DEFECTS POINTED OUT BY THE ASSESSING OFFICER WHILE FRAMING THE ASSESSMENT WERE ON ACCOUNT OF OMISSIONS, WRONG POSTINGS AND TOTALLING ERRORS WHICH STOOD DULY RECONCILED AND EXPLAINED BY THE ASSESSEE. SINCE THE ASSESSING OFFICER WHILE REJECTING THE BOOKS OF ACCOUNT MAINLY RELIED ON THE LOOSE SLIPS FOUND DURING THE COURSE OF SURVEY WHICH WERE ALSO DULY RECONCILED AND EXPLAINED BY THE ASSESSEE BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS) AND CONSIDERING THE FACT THAT THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE WERE DULY AUDITED AND ASSESSING OFFICER HAD NOT POINTED OUT ANY SPECIFIC DEFECT WHATSOEVER IN SUCH BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE AND LASTLY KEEPING THE PAST HISTORY OF THIS CASE IN MIND WHEREIN A GP RATE OF MAXIMUM 16.66 PER CENT WAS FULLY ACCEPTED BY THE REVENUE, WE ARE OF THE CONSIDERED VIEW THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) WAS JUSTIFIED IN DELETING SUCH ADDITION MADE BY THE ASSESSING OFFICER BY REJECTING BOOKS OF ACCOUNT AND ESTIMATING THE GP RATE AT 22.01 PERCENT AS 13.20 PERCENT DECLARED BY THE ASSESSEE WHICH ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 12 WAS WITHOUT ANY BASIS AND WITHOUT PINPOINTING ANY DEFECTS IN THE REGULAR BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE.' 4.3.9 THUS, THE HON'BLE HIGH COURT HAD HELD THAT T HE FINDINGS OF HON'BLE TRIBUNAL WERE NOT PERVERSE, SIN CE IT HAD DISCUSSED THE ENTIRE EVIDENCES AND RECORDED THE FINDINGS OF FACT. THEREFORE, THE DOCUMENTS WERE DUL Y RECONCILED BEFORE THE LOWER APPELLATE AUTHORITIES A ND THAT IS WHY HON'BLE HIGH COURT HAD UPHELD THE ORDER OF THE HON'BLE TRIBUNAL. THE FACTS IN THE INSTANT C ASE ARE ENTIRELY DISTINGUISHABLE TO THE JUDGEMENT IN TH E CASE OF M/S DIPLAST PLASTICS LTD, SINCE IN THIS CAS E THE ADDITIONAL INCOME WAS DISCLOSED NOT ON THE BASIS OF LOOSE DOCUMENTS, BUT ON THE BASIS OF A DIARY IN WHI CH DETAILS OF RECEIVABLES WERE DULY MENTIONED. 4.3.10 THE APPELLANT HAS RELIED UPON THE JUDGEMEN T OF HON'BLE APEX COURT IN THE CASE OF KISHINCHAND CHELLARAM (SUPRA) TO SUPPORT HIS CONTENTION THAT ON US IS ON THE DEPARTMENT TO PROVE THAT PARTICULAR AFFAI RS ARE EXISTING. THE RATIO OF THIS JUDGEMENT IS NOT APPLICABLE TO THE CASE OF THE APPELLANT, SINCE IN T HIS CASE THE DEPARTMENT WAS PREVENTED FROM CARRYING OUT ANY FURTHER INVESTIGATION BY DISCLOSING ADDITIONAL INCOME ON THE BASIS OF DIARY OF RECEIVABLES FOUND DURING THE COURSE OF SURVEY. 4.3.11 THE APPELLANT HAS ALSO RELIED UPON THE JUDGEMENT OF HON'BLE DELHI HIGH COURT IN THE CASE O F M/S DHINGRA METAL WORKS (SUPRA). IN THAT CASE, THE HON'BLE HIGH COURT HAD OBSERVED THAT ADMISSION IS AN EXTREMELY IMPORTANT PIECE OF EVIDENCE, BUT IT CO ULD NOT BE SAID TO BE CONCLUSIVE AND IT WAS OPEN TO THE PERSON WHO HAD MADE THE ADMISSION TO SHOW THAT IT I S INCORRECT. THE OBSERVATIONS MADE BY THE HON'BLE HIGH COURT ARE CORRECT, BUT IN THE INSTANT CASE, TH ESE ARE NOT RELEVANT, SINCE ADDITIONAL INCOME WAS DISCLOSED ON THE BASIS OF THE DIARY OF RECEIVABLES IMPOUNDED DURING THE COURSE OF SURVEY. ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 13 4.3.12 THE CONTENTION OF THE LD. COUNSEL THAT JUDGEMENT OF HON'BLE E PUNJAB & HARYANA HIGH COURT IN THE CASE OF BACHITTAR SINGH (SUPRA) IS NOT APPLICABLE TO THE CASE OF THE APPELLANT IS NOT CORR ECT. IN THAT CASE, THE ASSESSEE HAD SURRENDERED AN AMOUN T OF RS. 19,00,000/- ON ACCOUNT OF INVESTMENT IN A SH OP, BUT SUBSEQUENTLY HE RESILED FROM HIS STATEMENT ON T HE GROUND THAT HE HAD AGRICULTURAL INCOME AND INVESTMENT WAS FROM THAT SOURCE, EVIDENCE OF WHICH WAS FOUND DURING THE COURSE OF SURVEY IN THE FORM O F A DIARY. THE ASSESSING OFFICER REJECTED THE CONTENTIO N OF THE APPELLANT BY HOLDING THAT THERE WAS A LONG G AP BETWEEN THE STATEMENT MADE ORIGINALLY ON 21.03.2003 AND RETRACTION ON 28.05.2003 OF THE SAID STATEMENT AND THE STAND TAKEN WAS AN AFTERTHOUGHT. THE COMMISSIONER OF INCOME TAX (APPEALS) ACCEPTED THE PLEA OF THE ASSESSEE, BUT HON'BLE TRIBUNAL REVERSE D THE VIEW TAKEN BY CIT(A) BY HOLDING THAT BURDEN WAS ON THE ASSESSEE TO ESTABLISH THAT THE ADMISSION MAD E BY HIM DURING THE COURSE OF SURVEY WAS WRONG. IT WA S ALSO HELD THAT BY THE HON'BLE TRIBUNAL THAT THE STATEMENT HAVING NOT BEEN RETRACTED AT THE EARLIEST OPPORTUNITY WAS AN IMPORTANT PIECE OF EVIDENCE, WHICH COULD NOT BE BRUSHED ASIDE AND STATEMENT OF ASSESSEE RECORDED DURING SURVEY WAS MATERIAL AND COULD FORM THE BASIS OF ASSESSMENT. THUS, IN THAT C ASE, EVEN GAP OF ABOUT TWO MONTHS FROM MARCH 21 TO MAY 28, 2003 WAS CONSIDERED A LONG GAP, WHEREAS IN THE CASE OF THE APPELLANT THERE WAS NO RETRACTION, BUT THE ADDITIONAL INCOME SURRENDERED WAS SIMPLY NOT DISCLOSED IN THE RETURN OF INCOME, FILED MORE THAN SIX MONTHS AFTER THE SURVEY. THE FACTS IN THE INSTANT CASE ARE, THEREFORE, SIMILAR TO THE CASE OF BACHITTAR SI NGH AND RATIO OF THIS JUGEMENT HAS BEEN RIGHTLY APPLIED TO THE CASE OF THE APPELLANT. 4.3.13 THE STATEMENT GIVEN BY THE ASSESSEE WAS VOLUNTARY AND WITHOUT ANY COERCION OR UNDUE INFLUENCE. ONE CANNOT BE ALLOWED TO STATE ONE THING ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 14 TODAY AND TO WITHDRAW THE SAME TOMORROW. IT IS ALSO PERTINENT TO NOTE THAT IF SUCH A STATEMENT IS ALLOW ED TO BE RETRACTED, THEN IT WOULD BE A MOCKERY OF LAW. IT WOULD BE TOO MUCH OF A TRAVESTY AND ABUSE OF THE JUDICIAL PROCESS-UNLESS THERE IS SOME MATERIAL ON RECORD THAT CLEARLY ESTABLISHES THAT THE STATEMENT WAS GIVEN UNDER DURESS OR INDUCEMENT. 4.3.14 THE CRUCIAL QUESTION IS WHETHER ANY ADDITION CAN BE MADE ON THE BASIS OF SELF STATEMENT GIVEN VOLUNTARILY BY THE ASSESSEE, WHICH IS LATER RETRACTED. IT IS SETTLED LAW THAT ADMISSION BY A PE RSON IS GOOD PIECE OF EVIDENCE THOUGHT NOT CONCLUSIVE AN D THE SAME CAN BE USED AGAINST A PERSON WHO MAKES IT. THE REASON BEHIND THIS IS THAT A PERSON MAKING A STATEMENT STOPS THE OPPOSITE PARTY FROM MAKING FURTHER INVESTIGATION. IT IS TRUE THAT THERE ARE EXCEPTIONS TO SUCH ADMISSION WHERE THE ASSESSEE CAN RETRACT FROM SUCH ADMISSION. THE FIRST EXCEPTION IS WHERE SUCH STATEMENT IS MADE INVOLUNTARILY I.E. OBTAINED UNDER COERCION, THREAT, DURESS, UNDUE INFLUENCE ETC, BUT IN THIS SITUATION, THE BURDEN LI ES ON THE PERSON MAKING SUCH ALLEGATIONS TO PROVE THAT STATEMENT WAS OBTAINED BY THE AFORESAID MEANS. THE SECOND EXCEPTION IS WHERE THE STATEMENT HAS BEEN GIVEN UNDER SOME MISTAKEN BELIEF EITHER OF FACT OR LAW AND IN THAT SITUATION, THE ASSESSEE HAS TO SHOW THA T THE STATEMENT WAS MADE ON MISTAKEN BELIEF OF FACTS AND HE CAN RETRACT FROM THE STATEMENT IF HE CAN SHO W THAT FACTS ON THE BASIS OF ADMISSION SO MADE WERE INCORRECT. IF ANY UNDUE INFLUENCE, DURESS, COERCION , THREAT HAD BEEN BROUGHT UPON THE APPELLANT AT THE TIME OF DEPOSING THE STATEMENT OR IF HE WAS UNDER SOME MISTAKEN BELIEF OF FACT OR LAW, IT WAS INCUMBE NT UPON HIM TO HAVE INFORMED THIS FACT TO THE HIGHER AUTHORITIES AND INFORM THEM ABOUT THE FACT THAT WHA T WAS STATED IN THE STATEMENT WAS WRONG. 4.3.15 IN VIEW OF THE ABOVE DISCUSSION, IT IS HELD THAT THE ASSESSING OFFICER HAS RIGHTLY ASSESSED THE ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 15 ADDITIONAL INCOME DISCLOSED DURING THE SURVEY OF RS . 72,30,000/- IN THE HANDS OF THE APPELLANT AND HER ACTION IN THIS REGARD IS UPHELD. GROUND OF APPEAL N O. 3 IS DISMISSED. 9. BEING AGGRIEVED BY THE ABOVE ORDER OF THE CIT(A) , THE ASSESSEE HAS COME IN APPEAL BEFORE US. 10. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET , HAS REITERATED THE SUBMISSIONS AS WERE MADE BEFORE THE LD. CIT(A) AND HAS SUBMITTED THAT THE ADDITIONS HAVE BEEN WRONGLY MADE IN THE CASE OF THE ASSESSEE ON THE BASIS OF A FORCED SURRENDER DURING THE SURVEY ACTIO N. 11. ON THE OTHER HAND, THE LD. DR HAS RELIED ON THE FINDINGS OF THE LOWER AUTHORITIES AND HAS SUBMITTED THAT THE ASSESS EE HIMSELF SURRENDERED INCOME DURING THE SURVEY ACTION, HENCE, THE ADDITIONS HAVE BEEN RIGHTLY MADE BY THE LOWER AUTHORITIES. 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HA VE ALSO GONE THROUGH THE IMPUGNED ORDER OF THE CIT(A). A PERUSA L OF THE ABOVE REPRODUCED ORDER OF THE CIT(A) REVEALS THAT THE ASS ESSEE HAD PLEADED BEFORE THE CIT(A) THAT THE ASSESSEE WAS FORCED TO S URRENDER IN PERSONAL CAPACITY DESPITE THE FACT THAT HE HAD NOT CARRIED O UT ANY BUSINESS IN THE PERSONAL CAPACITY AND FURTHER THAT THE DOCUMENTS ME NTIONED BY THE ASSESSING OFFICER WERE PREPARED DURING THE COURSE O F SURVEY ACTION ONLY ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 16 TO GET SURRENDER FROM THE ASSESSEE. THE LD. CIT(A) IN HIS DISCUSSION ON THIS POINT HAS OBSERVED THAT SINCE THE DIARY CONTAI NING THE DETAILS OF THE RECEIVABLE TO THE TUNE OF RS. 72.30 LACS RELATING T O THE ASSESSEE WAS IMPOUNDED DURING THE COURSE OF SURVEY OF SHRI SANDH URI LAL MITTAL, HENCE, ON THE BASIS OF THE SAID AFORESAID INCRIMINA TING MATERIAL, THE ASSESSEE DISCLOSED AN AMOUNT OF RS. 72.30 LACS. TH E LD. CIT(A) HAS FURTHER OBSERVED THAT THE ASSESSEE SHOULD HAVE INFO RMED IN WRITING TO THE ASSESSING OFFICER AT THE EARLIEST POINT OF TIME, IF HE WAS NOT AGREEABLE TO THE ADDITIONAL INCOME DISCLOSED BY HIM. THAT THE A SSESSEE RETRACTED FROM THE ABOVE SURRENDER FIRST TIME ONLY WHEN HE DI D NOT DISCLOSE THE SAID SURRENDERED INCOME IN THE RETURN OF INCOME. THE LD. CIT(A), THOUGH HAS ALSO OBSERVED THAT CONTE NTION OF THE ASSESSEE IS CORRECT THAT THE DEPARTMENT HAD NOT MAD E ANY INQUIRY TO VERIFY THE CONTENTS OF THE DAIRY IMPOUNDED; HOWEVER , HE HAS AGAIN REJECTED THE ABOVE CONTENTION CITING SIMILAR REASON S THAT THE ASSESSEE HIMSELF HAD SURRENDERED THE SAID INCOME DURING THE SURVEY ACTION. THE LD. CIT(A) ALSO HAS MADE OBSERVATION THAT THE DIARY DO NOT CONTAIN THE DATES OF TRANSACTIONS, HOWEVER, HE HAS OBSERVED THA T IN THE ABSENCE OF ANY OTHER MATERIAL, THE ENTRIES ARE TO BE PRESUMED FOR THE PREVIOUS FINANCIAL YEAR RELEVANT TO THE ASSESSMENT YEAR UNDE R CONSIDERATION. THE LD. CIT(A) HAS ALSO OBSERVED THAT THE CONTENTION O F THE ASSESSEE THAT THE ASSESSEE HAD NOT CARRIED OUT ANY BUSINESS IN PE RSONAL CAPACITY IS NOT VERIFIABLE. FURTHER, WHILE CONFIRMING THE ADDITIO N, HE HAS SOLELY RELIED ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 17 UPON THE CONTENTS OF THE DIARY AND HAS OBSERVED THA T SINCE THE DIARY BELONGED TO THE ASSESSEE, WHEREIN, IT WAS SHOWN TH AT THE SURRENDERED AMOUNT WAS RECEIVABLE BY THE ASSESSEE FROM VARIOUS PERSONS. THE LD. CIT(A) HAS ALSO OBSERVED THAT THERE IS NO EVIDENCE THAT ANY FORCE OR COERCION WAS APPLIED BY THE DEPARTMENT TO EXTRACT T HE AFORESAID STATEMENT OF THE ASSESSEE. 13. HOWEVER, IN OUR VIEW, THE ABOVE FINDINGS OF TH E LD. CIT(A) ARE NOT LEGALLY SUSTAINABLE. THE ASSESSEE IN HIS PLEAD INGS NOT ONLY BEFORE THE ASSESSING OFFICER BUT ALSO BEFORE THE CIT(A) HA D SPECIFICALLY CONTENDED THAT NEITHER THE ASSESSEE HAD CARRIED OUT ANY BUSINESS IN PERSONAL CAPACITY NOR THERE WAS ANY AMOUNT RECEIVAB LE FROM ANY PERSON. IT WAS SPECIFICALLY CONTENTED BEFORE THE ASSESSING OFFICER THAT, IN FACT, THE ALLEGED DOCUMENTS WERE TRAPPED DURING THE SURVE Y ACTION ONLY AS PER THE INSTRUCTIONS OF THE SURVEY PARTY. THAT THE PERS ONS MENTIONED IN THE DIARY WERE IMAGINARY PERSONS AND DID NOT EXIST AT A LL. THAT THE SURRENDER WAS OBTAINED FROM THE ASSESSEE IN HIS NAME AS WELL AS IN THE NAMES OF HIS TWO BROTHERS AND WIFE OF ONE BROTHER FORCIBLY U NDER COERCION AND THREAT. THE ASSESSING OFFICER HAS REPRODUCED THE CO PY OF THE REPLY DATED 30.12.2013 IN THE ASSESSMENT ORDER WHICH FOR THE SA KE OF REFERENCE IS REPRODUCED AS UNDER:- 'THIS HAS REFERENCE TO ASSESSMENT PROCEEDINGS IN CA PTIONED CASE. IN THIS CONNECTION, WE RESPECTFULLY SUBMIT TH AT THE ASSESSEE HAS NOT ADDED IN INCOME TAX RETURN ON ACCO UNT OF RECEIVABLE. THE ASSESSEE HAS NOT GIVEN ANY ADVANCE OR SOLD ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 18 GOODS TO ANY PERSONS MENTIONED IN THE DIARY SEIZED DURING THE COURSE OF SURVEY. IN FACT THE DOCUMENTS IMPOUNDED W ERE PREPARED AS PER INSTRUCTION OF PARTY WHO CONDUCTED SURVEY. THE PERSONS MENTIONED IN DIARY ARE IMAGINARY PERSON S & DO NOT EXIST. THE ASSESSEE HAS NOT RECEIVED BACK ANY S UM FROM THESE PERSONS AT ANY POINT OF TIME AS NOTHING IS RE CEIVABLE FROM THESE PARTIES. THE ASSESSEE HAS MADE SURRENDER UNDER GREAT MENTAL TENSION DURING THE COURSE OF SURVEY. T HE FACTUAL POSITION IS THAT THERE WAS GREAT RECESSION WHEN THE SURVEY HAS BEEN CONDUCTED BY THE DEPARTMENT. FURTHER, THE ASSE SSEE HAS NO RESOURCES & PASSING THROUGH VERY BAD FINANCIAL S TAGES & NOT IN A POSITION TO PAY TAXES ON THE INCOME WHICH WAS NOT EARNED AT ANY STAGE.' 14. IN OUR VIEW, WHEN THE ASSESSEE HAD CATEGORICALL Y DENIED BEFORE THE ASSESSING OFFICER THAT NEITHER HE CARRIED OUT ANY B USINESS IN HIS INDIVIDUAL CAPACITY NOR HE HAD GIVEN ANY ADVANCE OR SOLD GOODS TO ANY PERSON MENTIONED IN THE DIARY AND THAT THE PERSONS MENTIONED IN THE DIARY DID NOT EXIST AT ALL, THEN A DUTY WAS CAST U PON THE ASSESSING OFFICER TO MAKE NECESSARY INQUIRIES INTO THIS FACT OR AT ATLEAST TO BRING SOME CIRCUMSTANTIAL EVIDENCE TO SUPPORT THE CASE OF THE REVENUE THAT THE SURRENDER WAS GIVEN BY THE ASSESSEE VOLUNTARIL Y IN HIS OWN NAME AS WELL AS IN THE NAME OF HIS TWO BROTHERS AND IN THE NAME OF WIFE OF ONE BROTHER. WE HAVE ALSO PERUSED THE PHOTOSTAT COPIES OF THE ALLEGED DIARY PRODUCED ON THE FILE WHICH SHOWS THAT ONLY THE AMO UNT AND NAMES OF THE ALLEGED PERSONS FROM WHOM THE SAID AMOUNT WAS RECEIVABLE HAS BEEN MENTIONED, SUCH AS, PYM, AND, HPY, NRD, MDL, RD, TD, NG,TJ, R4. ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 19 THE SURVEY PARTY DID NOT MAKE ANY EFFORT TO GET THE NAMES AND DETAILS OF THE PERSONS WHOSE NAMES WERE ALLEGEDLY WRITTEN IN C ODE WORDS IN THE SAID DIARIES. NO INQUIRIES WERE MADE AS TO THE NATU RE OF THE RECEIVABLES AND AS TO WHETHER THE AMOUNT IN QUESTION WAS PAID T O THE ALLEGED PERSONS IN CASH OR THE SAME WAS RECEIVABLE ON ACCOUNT OF AN Y BUSINESS TRANSACTIONS. THE SURVEY PARTY WAS SIMPLY SATISFIED BY OBTAINING THE STATEMENT OF SURRENDER FROM THE ASSESSEE. NO INQUIR IES OF EFFORTS WERE MADE TO CORROBORATE THE STATEMENT OF THE ASSESSEE A ND THE CONTENTS OF THE DIARY BY BRINING FURTHER EVIDENCE IN THIS RESPECT. NEITHER ANY INQUIRY TO CORROBORATE THE GENUINENESS OF THE SURRENDER OR TO SAY THAT THE SURRENDER WAS VOLUNTARILY MADE BY THE ASSESSEE WERE MADE DURI NG SURVEY NOR DURING THE ASSESSMENT PROCEEDINGS. THE PLEA OF THE ASSESSEE THAT SURRENDER WAS EXTRACTED FORCEFULLY AND UNDER COERCI ON GETS WEIGHTAGE WHEN THE ASSESSEE HAS ALSO PLEADED THAT IN FACT, TH ERE ARE NO PERSONS EXISTING WITH THE NAMES AS MENTIONED IN THE DIARIES . THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS HAS MADE STRONG ALLEGATI ONS THAT THE AFORESAID DIARIES WERE GOT PREPARED BY THE SURVEY T EAM DURING THE SURVEY ACTION ITSELF. UNDER THE CIRCUMSTANCES, IT WAS INC UMBENT UPON THE ASSESSING OFFICER TO MAKE NECESSARY INQUIRES IN THI S RESPECT. THE KOLKATA BENCH OF THE TRIBUNAL IN THE CASE OF NIRMA L FASHIONS PVT. LTD. VS. DCIT (2008) 25 SOT 387 (KOL.) HAS HELD THAT SE CTION 292C IS A PRESUMPTIVE PROVISION BUT SAME IS A REBUTTABLE PRES UMPTION AND THE DOCUMENT FOUND DURING THE SEARCH ACTION HAS TO BE C ONSIDERED, ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 20 CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE. THE DEEMING PROVISION CANNOT BE APPLIED MECHANICALLY IGNORING THE FACTS O F THE CASE AND THE SURROUNDING CIRCUMSTANCES OF THE FACTS ARE TO BE CO NSIDERED BEFORE THE DRAWING AN INFERENCE OF UNDISCLOSED INCOME ON THE B ASIS OF LOOSE PAPERS. THE CO-ORDINATE KOLKATA BENCH (SUPRA) HAS F URTHER OBSERVED THAT WHERE THE REVENUE HAD SEARCHED THE BUSINESS PREMISE S AS WELL AS RESIDENTIAL PREMISES OF THE FIRM/PARTNERS AND NOT A SINGLE EVIDENCE OF PURCHASE OR SALE OUTSIDE THE BOOKS OF ACCOUNT WAS F OUND, AND, UNDER THE CIRCUMSTANCES, IT SEEMED IMPOSSIBLE FOR THE ASSESSE E TO CARRY ON BUSINESS ON A HUGE SCALE OUTSIDE THE BOOKS UNLESS T HERE WERE SOME UNRECORDED STOCK, CASH, DEBTORS ETC. WHEN NO SIGNIF ICANT ASSET OUTSIDE THE BOOKS OR NO EVIDENCE OF OSTENSIBLE EXPENDITURE IS FOUND OUTSIDE THE BOOKS, UNDER SUCH CIRCUMSTANCES, ADDITIONS MADE ON THE BASIS OF LOOSE PAPERS BY MAKING CERTAIN PRESUMPTIONS, WHICH WERE F OUND TO BE UNTENABLE OR CONTRARY TO OTHER EVIDENCE ON RECORD, CANNOT BE HELD TO BE JUSTIFIED AND DESERVED TO BE DELETED. THE CO-ORDINA TE NAGPUR BENCH OF THE TRIBUNAL IN THE CASE OF ACIT VS. BULDANA URBAN CO-OPERATIVE CREDIT SOCIETY LTD. (2013) 153 TTJ (NAG) 728 IN SO MEWHAT SIMILAR CIRCUMSTANCES HAS OBSERVED THAT PRESUMPTION GIVEN U NDER SECTION 292C IS NOT CONCLUSIVE BUT IS REBUTTABLE. THE ASSESSEE, SINCE, IN THE BEGINNING HAS DENIED THAT THE LOOSE PAPERS FOUND TO BE BELONG ED TO HIM AND THE SAME WERE NOT IN THE HANDWRITING OF ANY OF THE EMPL OYEES; THERE BEING NO CORROBORATIVE EVIDENCE AVAILABLE ON RECORD OR FO UND DURING THE ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 21 COURSE OF SEARCH WHICH MAY PROVE WRONG THE CONTENTI ON OF THE ASSESSEE THAT THE SAID PAPER DOES NOT BELONG TO HIM AND THE ASSESSEE OFFERS A PLAUSIBLE EXPLANATION REGARDING THE RECOVERY OF SUC H A DOCUMENT IN HIS PREMISES, THEN UNDER THE CIRCUMSTANCES THE ADDITION S IN THE ABSENCE OF ANY CORROBORATIVE EVIDENCE CANNOT BE HELD TO BE JUS TIFIED. THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF SATNAM SINGH CHHABRA VS. DCIT (2002) 74 TTJ 976 (LUCKNOW) HAS HELD THAT THE UNCOR ROBORATED LOOSE PAPERS FOUND DURING SEARCH ACTION CANNOT BE TAKEN A S A SOLE BASIS FOR THE DETERMINATION OF UNDISCLOSED INCOME. THE CIRCUMSTAN TIAL EVIDENCES, SUCH AS THERE BEING NO SOFT COPY/DATA AVAILABLE IN THE COMPUTER SYSTEMS OF THE ASSESSEE IN RELATION TO THE ALLEGED DOCUMENT OR CORRELATING ANY TRANSACTION AS MENTIONED IN THE SAID DOCUMENT; NO R ECOVERY OF ANY VALUABLE ASSET, BULLION MONEY OR JEWELLERY OR ANY O THER EVIDENCE OF ANY INVESTMENT AT THE PREMISES OF THE ASSESSEE; NO DISC OVERY OF ANY INCRIMINATING EVIDENCE DESPITE THOROUGH INVESTIGATI ONS OF THE BOOKS OF ACCOUNT, BANK ACCOUNTS AND OTHER EVIDENCES DURING T HE SURVEY ACTION, POST SURVEY ACTION AND DURING THE ASSESSMEN T PROCEEDINGS; THE FACT THAT THE ASSESSEE DURING HIS STATEMENT RECORDE D DURING THE SURVEY ACTION AND POST SURVEY ACTION, THOUGH, OFFERED ADDI TIONAL INCOME OF RS.4 CRORE, BUT, HAS SPECIFICALLY DENIED HIS RELATION OR LINK OR ENTERING INTO ANY TRANSACTION DEPICTED IN THE SAID DOCUMENT; THE ASSESSEE HAS NOT BEEN FOUND IN RELATION OR IN CONTACT WITH ANY OF THE PER SON NAMED IN SUCH DOCUMENT; NO CONNECTION OF THE ASSESSEE WITH ANY OF THE BANK ACCOUNTS ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 22 MENTIONED IN THE RECOVERED DOCUMENTS AND FURTHER TH E FACT THAT THE ASSESSEE HAS NOT INTRODUCED ANY CASH IN HIS BOOKS O F ACCOUNTS ON ACCOUNT OF ADDITIONAL INCOME, FOR WHICH HE HAD ALRE ADY PAID TAX ALSO, TOGETHER CONSTITUTE GOOD REBUTTAL TO THE INITIAL PR ESUMPTION U/S 292C IN THIS CASE. 15. AT THIS STAGE, RELIANCE CAN BE PLACED ON THE CB DT CIRCLUAR NO.286/2/2003-IT(INV) DATED OCT 3, 2003 IN THIS RE SPECT, WHICH READS AS UNDER: TO THE CHIEF COMMISSIONERS OF INCOME TAX, (CADRE CONTRA)&ALL DIRECTORS GENERAL OF INCOME TAX INV. SIR, SUBJECT: CONFESSION OF ADDITIONAL INCOME DURING THE COURSE OF SEARCH & SEIZURE AND SURVEY OPERATION REGARDING INSTANCES HAVE COME TO THE NOTICE OF THE BOARD WHERE ASSESSEES HAVE CLAIMED THAT THEY HAVE BEEN FORCED TO CONFESS THE UNDISCLOSED INCOME DURING THE COURSE OF THE SEARCH & SEIZURE AND SURVEY OPERATIONS. SUCH CONFESSIONS, IF NOT BASED UPON CREDIBLE EVIDENCE, ARE LATER RETRACTED BY THE CONCERNED ASSESSEES WHILE FILING RETURNS OF INCOME. IN THESE CIRCUMSTANCES, ON CONFESSIONS DURING THE COURSE OF SEARCH & SEIZURE AND SURVEY OPERATIONS DO NOT SERVE ANY USEFUL PURPOSE. IT IS, THEREFORE, ADVISED THAT THERE SHOULD BE FOCUS AND CONCENTRATION ON COLLECTION OF EVIDENCE OF INCOME WHICH LEADS TO INFORMATION ON WHAT HAS NOT BEEN DISCLOSED OR IS NOT LIKELY TO BE DISCLOSED BEFORE T HE INCOME TAX DEPARTMENTS. SIMILARLY, WHILE RECORDING STATEMENT DURING THE COURSE OF SEARCH IT SEIZURES AND SURVEY OPERATIONS NO ATTEMPT SHOULD ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 23 BE MADE TO OBTAIN CONFESSION AS TO THE UNDISCLOSED INCOME. ANY ACTION ON THE CONTRARY SHALL BE VIEWED ADVERSELY. FURTHER, IN RESPECT OF PENDING ASSESSMENT PROCEEDINGS ALSO, ASSESSING OFFICERS SHOULD RELY UPON THE EVIDENCES/MATERIALS GATHERED DURING THE COURSE OF SEARCH/SURVEY OPERATIONS OR THEREAFTER WHILE FRAMING THE RELEVANT ASSESSMENT ORDERS YOURS FAITHFULLY, 16. A PERUSAL OF THE ABOVE CIRCULAR ALSO SHOWS THAT IT IS IN THE NOTICE OF THE STATUTORY CONTROLLING BODY OF THE INCOME TAX AUTHORITIES THAT THE REVENUE OFFICIALS ARE USED TO TAKE CONFESSIONAL STA TEMENTS FROM THE PERSON SEARCHED UNDER FORCE, PRESSURE OR THREAT AND THAT IS WHY THEY HAVE MADE IT MANDATORY THAT ADDITIONS SOLELY ON THE BASIS ON SUCH STATEMENTS SHOULD NOT BE MADE AND THAT CORROBORATIV E EVIDENCES SHOULD BE COLLECTED OR OBTAINED BEFORE MAKING SUCH ADDITIO NS. THE CIRCULAR OF THE CBDT IS BINDING ON THE REVENUE OFFICIALS. IN THE FACTS AND CIRCUMSTANCES OF THIS CASE, WHEN S EEN IN THE LIGHT OF ABOVE CASE LAWS AND CBDT CIRCULAR, ADDITIONS IN THIS CASE CANNOT BE SAID TO BE JUSTIFIABLY MADE. 17. SO FAR SO, THE LEGAL SANCTITY OF A STATEMENT M ADE UNDER SECTION 133A DURING THE SURVEY ACTION IS CONCERNED, THE VARIOUS COURTS HAVE HELD TIME AND AGAIN THAT SUCH STATEMENTS DO NOT HAVE ANY EVID ENTIARY VALUE. THE HON'BLE MADRAS HIGH COURT IN THE CASE OF 'CIT VS. S . KHADERKHAN SON' (2008) 300 ITR 0157 HAS OBSERVED THAT AN OFFER OF A DDITIONAL INCOME ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 24 MADE IN A STATEMENT DURING THE COURSE OF SURVEY ACT ION UNDER SECTION 133A OF THE ACT HAS NO EVIDENTIARY VALUE ESPECIALLY WHEN THERE WAS NO MATERIAL ON RECORD TO PROVE THE EXISTENCE OF SUCH D ISCLOSED INCOME OR EARNING OF SUCH INCOME IN THE HANDS OF THE ASSESSEE . THE HON'BLE HIGH COURT FURTHER OBSERVED THAT SECTION 133A OF THE ACT DOES NOT EMPOWER ANY INCOME TAX AUTHORITY TO EXAMINE ANY PERSON ON O ATH, HENCE, ANY SUCH STATEMENT HAS NO EVIDENTIARY VALUE AND ANY ADM ISSION MADE DURING SUCH STATEMENT CANNOT, BY ITSELF, BE MADE THE BASIS FOR ADDITION. THE ABOVE FINDINGS OF THE HON'BLE HIGH COURT HAVE BEEN UPHELD BY THE HON'BLE SUPREME COURT AS THE APPEAL AGAINST THE SAI D ORDER HAS BEEN DISMISSED BY THE HON'BLE SUPREME COURT VIDE ORDER D ATED 20.09.12 REPORTED IN (2012) 25 TAXMAN.COM 413. SIMILAR VIEW HAS BEEN ADOPTED BY THE HON'BLE DELHI HIGH COURT IN THE CASE OF 'CIT VS. DHINGRA METAL WORKS' (2010) 328 ITR 0384 AND BY THE HON'BLE KERAL A HIGH COURT IN THE CASE OF 'PAUL MATHEWS & SONS VS. CIT' (2003) 26 3 ITR 0101. EVEN THE HON'BLE A.P. HIGH COURT IN THE CASE OF 'NARESH KUMAR AGARWAL' (2015) 53 TAXMANN.COM 306 (ANDHRA PRADESH) HAS OBSE RVED THAT WHERE, IN THE ABSENCE OF ANY INCRIMINATING MATERIAL ETC. F OUND FROM THE PREMISES OF THE ASSESSEE DURING THE COURSE OF SEARC H, STATEMENT OF ASSESSEE RECORDED UNDER SECTION 132(4) WOULD NOT HA VE ANY EVIDENTIARY VALUE. SIMILAR VIEW HAS BEEN ADOPTED BY THE JAIPUR BENCH OF THE TRIBUNAL IN THE CASE OF 'SHREE CHAND SONI VS. DCIT' (2006) 101 TTJ 1028 (JODHPUR). IN THE CASE OF 'COMMISSIONER OF IN COME TAX VS. SUNIL ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 25 AGARWAL' (2015) 64 TAXMAN.COM 107 (DELHI-HC), THE A SSESSEE THEREIN, DURING THE COURSE OF SEARCH, MADE A CATEGORICAL ADM ISSION UNDER SECTION 132(4) THAT THE CASH AMOUNT SEIZED BELONGED TO HIM AND IT REPRESENTED UNDISCLOSED INCOME NOT RECORDED IN THE BOOKS OF ACC OUNTS. THE ASSESSEE DID NOT IMMEDIATELY RETRACT FROM THE ABOVE ADMISSIO N BUT ONLY DURING THE ASSESSMENT PROCEEDINGS AT A BELATED STAGE. IN H IS RETRACTION, THE ASSESSEE STATED THAT THE SURRENDER WAS MADE UNDER A MISTAKEN BELIEF AND WITHOUT LOOKING INTO BOOKS OF ACCOUNT AND WITHOUT U NDERSTANDING LAW AND THAT HE HAD BEEN COMPELLED AND PERTURBED BY EVE NTS OF SEARCH AND THAT THE PRESSURE OF SEARCH WAS BUILT SO MUCH THAT HE HAD TO MAKE THE SURRENDER WITHOUT HAVING ACTUAL POSSESSION OF THE A SSETS OR UNEXPLAINED INVESTMENTS OR EXPENSES INCURRED AND THAT THERE WAS NO SUCH INCOME AS UNDISCLOSED. THE HON'BLE DELHI HIGH COURT, AFTER CO NSIDERING THE FACT AND CIRCUMSTANCES OF THE CASE, WHILE DISMISSING THE APPEAL OF THE REVENUE, OBSERVED THAT THOUGH THE FACT THAT THE ASS ESSEE MAY HAVE RETRACTED HIS STATEMENT BELATEDLY, YET, IT DID NOT RELIEVE THE AO FROM EXAMINING THE EXPLANATION OFFERED BY THE ASSESSEE W ITH REFERENCE TO THE BOOKS OF ACCOUNT PRODUCED BEFORE HIM. THAT ALTHOUGH , A STATEMENT UNDER SECTION 132(4) OF THE ACT CARRIES MUCH GREATER WEIG HT THAN THE STATEMENT MADE UNDER SECTION 133A OF THE ACT, BUT A RETRACTED STATEMENT EVEN UNDER SECTION 132(4) OF THE ACT WOULD REQUIRE SOME CORROBORATIVE MATERIAL FOR THE AO TO PROCEED TO MAKE ADDITIONS ON THE BASIS OF SUCH STATEMENT. IN THE CASE OF 'BASANT BANSAL VS. ACIT' REPORTED IN (2015)63 ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 26 TAXMANN.COM 199 (JAIPUR TRIB.), HAVING SOMEWHAT SIM ILAR FACTS, THE ASSESSEE THEREIN, DURING THE SEARCH AND SEIZURE ACT ION U/S 132 OF THE ACT, OFFERED A SUMMARY DISCLOSER OF INCOME AS UNDISCLOSE D AND THE DEPARTMENT ACCEPTED THE SUMMARY SURRENDER OF INCOME AND THEREAFTER ADVANCE TAX FOR THE SAID SURRENDERED OF INCOME WAS ALSO DEPOSITED, BUT THEREAFTER IT WAS CONTENDED BY THE ASSESSEE THAT TH E SURRENDER WAS MADE UNDER THREAT AND COERCION AND THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH ACTION. THE STAND OF THE DEPARTME NT WAS THAT THE ADMISSION WAS VOLUNTARY AND WAS NOT UNDER A MISTAKE N BELIEF OF FACT OR LAW AND THAT THE ASSESSEES HAD ENOUGH TIME TO GO TH ROUGH THE FACTS OF THEIR CASE, LAW APPLICABLE IN THEIR CASE AND TAKE A DVICE FROM THEIR COUNSELS AND ADVISORS BEFORE FILING THE LETTER OF S URRENDER OF UNDISCLOSED/UNACCOUNTED INCOME AND THAT THE ADMISSI ON BY THEM WAS FINAL AND BINDING ON THEM; THE CO-ORDINATE JAIPUR B ENCH OF THE TRIBUNAL, AFTER OVERALL APPRECIATION OF THE FACT AN D EVIDENCES BEFORE IT, OBSERVED THAT THE ASSESSEE'S SURRENDER WAS NOT BASE D ON ANY INCRIMINATING MATERIAL AND THAT THE DISCLOSER BEING NOT VOLUNTARY AND EXTRACTED BY THE DEPARTMENT IN CREATING A COERCIVE SITUATION CANNOT BE RELIED SOLELY TO BE BASIS OF ADDITION AS UNDISCLOSE D INCOME. THE CO- ORDINATE BENCH OF THE TRIBUNAL WHILE RELYING UPON V ARIOUS CASE LAWS OF THE HIGHER AUTHORITIES OBSERVED THAT IT IS WELL SET TLED LEGAL POSITION THAT MERELY A STATEMENT WHICH IS NOT SUPPORTED BY THE DE PARTMENT WITH COGENT CORROBORATIVE MATERIAL, CANNOT BE A VALID BA SIS FOR SUSTENANCE OF ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 27 SUCH AD-HOC ADDITION. THE CO-ORDINATE JAIPUR BENCH OF THE TRIBUNAL (SUPRA) FURTHER OBSERVED THAT THE ISSUE OF EXISTENC E OF PRESSURE, THREAT, COERCION DURING SEARCH PROCEEDINGS IS TO BE JUDGED BY REFERENCE TO THE EXISTING FACTS AND CIRCUMSTANCES, HUMAN CONDUCT AND PREPONDERANCE OF POSSIBILITIES. DURING THE SEARCH PROCEEDINGS, RECOR D RELATING THERETO BEING IN EXCLUSIVE CUSTODY OF THE SEARCHING OFFICER S, IT IS THEIR WISH AND WILL WHICH PREVAILS DURING THE FATEFUL PERIOD. THAT IT IS ALMOST IMPOSSIBLE FOR THE ASSESSEE TO ADDUCE DEMONSTRATIVE EVIDENCE OF EXERTION OF SUCH PRESSURE. THE CO-ORDINATE BENCH OF THE TRIBUNAL (SUPRA) WHILE HOLDING SO, APART FROM RELYING UPON VARIOUS D ECISIONS OF THE HIGHER COURTS HAS ALSO RELIED UPON THE DECISION OF THE AHMEDABAD BENCH OF THE TRIBUNAL IN THE CASE OF 'DY CIT VS. PRAMUKH BUILDERS' (2008) 112 ITD 179 (AHD.) WHEREIN IT HAS BEEN HELD THAT MERELY IN THE ABSENCE OF PROOF OF PRESSURE, THREAT, COERCION OR INDUCEMENT, THE STATEMENT CANNOT BE HELD AS CONCLUSIVE AND ADDITIONS CANNOT BE MADE BY SOLELY RELYING ON A STATEMENT OR A LETTER. 18. THE CASE OF THE ASSESSEE, BEFORE US, IS ON BETT ER FOOTING AS IN THIS CASE, THE STATEMENT RECORDED OF THE ASSESSEE WAS UN DER SECTION 133A [NOT UNDER SECTION 132(4)], WHICH BEING WITHOUT OATH HAS A VERY WEAK/ LOW EVIDENTIARY VALUE AS COMPARED TO THE STATEMENT MADE U/S 132(4) OF THE ACT. IT HAS BEEN HELD BY THE VARIOUS HIGH COURTS AN D THE HON'BLE SUPREME COURT THAT A STATEMENT MADE UNDER SECTION 1 33A ON STAND ALONE BASIS, HAS NO EVIDENTIARY VALUE. ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 28 IN VIEW OF THE ABOVE DISCUSSED LEGAL POSITION AND ALSO IN THE LIGHT OF THE ABOVE REPRODUCED CBDT CIRCULAR NO.286/2/200 3-IT(INV) DATED OCT 3, 2003 , THE REVENUE HAS FAILED TO BRING WIT H CORROBORATE EVIDENCE THAT SURRENDER WAS VOLUNTARILY DONE BY THE ASSESSEE . WE DO NOT FIND ANY JUSTIFICATION ON THE PART OF THE CIT(A) IN CONFIRMI NG THE IMPUGNED ADDITIONS AND THE SAME ARE ACCORDINGLY ORDERED TO B E DELETED. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS HEREBY ALLOWED. ITA NO. 128, 129 & 131/CHD/2015:- 19. IN THESE CASES, ADMITTEDLY NO SURRENDER WAS MAD E BY THE ASSESSEE / APPELLANTS. THE ADDITIONS HAVE BEEN MADE IN THE CAS E OF THESE APPELLANTS ON THE BASIS OF STATEMENT OF SHRI SANDHU RI LAL MITTAL, WHO HAPPENED TO BE THE BROTHER OF TWO ASSESSEES NAMELY SHRI BRIJ LAL MITTAL AND SHRI RAM BHAJ MITTAL AND BROTHER-IN-LAW ( HUSBA NDS BROTHER) OF SMT. KAMLESH MITTAL. APART FROM THE POINTS TAKEN A BOVE IN THE CASE OF THE APPELLANT SHRI SUNDHARI LAL MITTAL, THE ASSESSE ES IN THESE APPEALS HAVE TAKEN A SPECIFIC ARGUMENT THAT NEITHER THE DIA RY BELONGS TO THEM NOR THE CONTENTS OF THE SAME ARE IN THE HANDWRITI NG OF ANY OF THE ASSESSEES AND FURTHER THAT THE ASSESSEES / APPELLAN TS IN THESE CASES DID NOT MAKE ANY STATEMENT OF SURRENDER DURING THE SURV EY ACTION CARRIED OUT U/S 133A OF THE ACT. THAT THE ALLEGED STATEMENT OF SHRI SANDHURI LAL MITTAL CANNOT BIND THE ASSESSEES IN THEIR INDIVIDUA L CAPACITIES. MOREOVER, IT IS ALSO A SPECIFIC STAND IN ALL THE CA SES THAT NO INCRIMINATING MATERIAL WAS FOUND DURING THE SURVEY ACTION AND THAT THE ITA NOS. 128 TO 130/CHD/2015- SHRI SANDHURI LAL MITTAL & ORS., BALTANA, ZIRAKPUR 29 SURRENDER WAS EXTRACTED FROM SHRI SANDHURI LAL MIT TAL UNDER FORCE AND COERCION. 20. IN VIEW OF OUR DISCUSSION MADE ABOVE AND ALSO CONSIDERING THE FACT THAT EVEN OTHERWISE THE STATEMENT OF SHRI SANDHURI LAL MITTAL, IN INDIVIDUAL CAPACITY, CANNOT BIND THE OTHER ASSESSEE S IN THESE APPEALS IN THEIR INDIVIDUAL CAPACITIES ESPECIALLY IN THE ABSEN CE OF ANY INCRIMINATING CORROBORATING EVIDENCE, THE ADDITIONS MADE IN THE H AND OF APPELLANTS ARE NOT LEGALLY SUSTAINABLE. IN VIEW OF OUR FINDINGS GIVEN ABOVE, THE ADDITIONS MADE IN ALL THE CAPTIONED APPEALS CANNOT BE HELD JUSTIFIED AND THE SAME ARE ACCORDINGLY ORDERED TO BE DELETED. IN THE RESULT, ALL THE APPEALS OF ASSESSEE ARE HERE BY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.01.2020. SD/- SD/- ( # $ % &' / ANNAPURNA GUPTA) '( / ACCOUNTANT MEMBER ( / SANJAY GARG) / JUDICIAL MEMBER DATED : 28.01.2020 .. '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR