Sajjan Kumar Agarwal , Kolkata V. DCIT, Central Circle - 3(4), Kolkata , Kolkata

ITA 1458/KOL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1352 (ITAT-KOLKATA)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 06-07-2018
• Court: TRIBUNAL

Judgement Text

ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER I.T.A. NO. 1458/KOL/2018 ASSESSMENT YEAR: 2013-2014 SAJJAN KUMAR AGARWAL,.............................. ...........................APPELLANT 49A & 50 TOLLYGUNGE CIRCULAR ROAD, KOLKATA-700 053 [PAN: ADKPA 4768 J] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. ................RESPONDENT CENTRAL CIRCLE-3(4), KOLKATA, AAYAKAR BHAWAN POORVA, 110, SHANTIPALLY, E.M. BYE PASS, KOLKATA-700 107 APPEARANCES BY: SHRI J.P. KHAITAN, SR. ADVOCATE & SHRI RAJARAM CHOW DHURY, ADVOCATE, FOR THE APPELLANT SHRI A.K. NAYAK, CIT, D.R. , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : DECEMBER 19, 2018 DATE OF PRONOUNCING THE ORDER : MARCH 15, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-21, KOLKATA DA TED 22.06.2018 AND THE SOLITARY ISSUE INVOLVED THEREIN RELATING TO THE ADDITION OF RS.18 CRORES MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPEALS) TO THE TOTAL INCOME OF THE ASSESSEE ON ACCOUNT OF UNDI SCLOSED INCOME IS RAISED BY WAY OF THE FOLLOWING GROUNDS:- 1. THAT ON THE FACT AND CIRCUMSTANCES OF THE CASE THE LEARNED CIT(APPEAL) WAS NOT RIGHT IN LAW IN CONFIRMING THE ADDITION OF RS.18,00,00,000 (RUPEES EIGHTEEN CRORES ONLY). 2. THAT ON THE FACT AND CIRCUMSTANCES OF THE CASE T HE LEARNED CIT (APPEAL) ERRED IN CONFIRMING THE ADDITION OF RS . EIGHTEEN CRORES MERELY ON THE GROUNDS OF STATEMENT U/S 132(4 ) ALONE ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 2 WITHOUT CORROBORATIVE EVIDENCE IS BAD, ILLEGAL, UNL AWFUL AND NOT TAXABLE. 3. THAT ON THE FACT AND CIRCUMSTANCES OF THE CASE T HERE WAS NO SUPPRESSION DURING THE YEAR UNDER ASSESSMENT AND IN ABSENCE OF CORROBORATING EVIDENCE ANY LIABILITY CANNOT BE F ASTENED IN THE ASSESSEE. 4. THAT ON THE FACT AND CIRCUMSTANCES OF THE CASE C IT(A) ERRED IS NOT CONSIDERING IN THE RIGHT PRESCRIPTIVE THE LO CKER OPERATION AND ERRED IN CONFIRMING THE ADDITION OF E IGHTEEN CRORES. 5. THAT THE ORDER OF CIT(A) ON THE ABOVE ISSUE SUFF ERS FROM ILLEGALITY AND IS DEVOID OF ANY MERIT. THE SAME SHO ULD BE QUASHED AND YOUR APPELLANT BE GIVEN SUCH RELIEF(S) AS PRAYED FOR. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L. A SEARCH AND SEIZURE ACTION UNDER SECTION 132(1) WAS CONDUCTED I N THE ASSESSEES RESIDENTIAL PREMISES AT 49A & 50 TOLLYGUNGE CIRCULA R ROAD, KOLKATA-700 053 ON 18.09.2012 AND THE SUBSEQUENT DATES. DURING THE COURSE OF THE SAID ACTION, CASH, JEWELLERY AND SILVER UTENSILS WE RE FOUND FROM THE RESIDENTIAL PREMISES OF THE ASSESSEE. DURING THE CO URSE OF THE CONTINUATION OF THE SEARCH ACTION, A STATEMENT OF T HE ASSESSEE WAS RECORDED UNDER SECTION 132(4) ON 10.10.2012, WHEREI N HE OFFERED TO DISCLOSE VOLUNTARILY ADDITIONAL INCOME OF RS.18 CRO RES. DURING THE COURSE OF SEARCH OF THE ASSESSEES BANK LOCKER NO. 5/35 MA INTAINED WITH UNION BANK OF INDIA, NEW ALIPORE BRANCH, KOLKATA ON 08.11 .2012, A DIARY AND LOOSE BUNCH OF PAPERS IDENTIFIED AS SKA/L/1 AND SKA /L/2 WERE SEIZED. THE STATEMENT OF THE ASSESSEE UNDER SECTION 132(4) WAS AGAIN RECORDED ON 08.11.2012, WHEREIN HE WAS REQUIRED TO EXPLAIN T HE ENTRIES APPEARING IN THE SAID DOCUMENTS SEIZED FROM HIS BANK LOCKER. IN REPLY, THE ASSESSEE STATED THAT THE SAID ENTRIES REPRESENTED DETAILS OF HIS UNDISCLOSED TRANSACTIONS AND RECONFIRMED THE DISCLOSURE OF RS.1 8 CRORES MADE ON ACCOUNT OF ADDITIONAL INCOME IN THE STATEMENT EARLI ER RECORDED UNDER SECTION 132(4) ON 10.10.2012 AS BASED ON THE SAID S EIZED DOCUMENTS. THEREAFTER ON 15.12.2012, THE ASSESSEE ALONG WITH S HRI MAHESH AGARWAL SUBMITTED A DISCLOSURE PETITION BEFORE THE DDIT (IN VESTIGATION), UNIT- ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 3 II(2), KOLKATA REITERATING THAT THE DISCLOSURE OF R S.18 CRORES WAS MADE IN GOOD FAITH AND VOLUNTARILY. HE ALSO STATED THAT THE SAID DISCLOSURE WAS MADE ON ESTIMATED BASIS AND GAVE HIS ASSURANCE THAT FULL AND TRUE DISCLOSURE WILL BE MADE IN THE RETURNS OF THE RESPE CTIVE ASSESSEES BY MAKING REQUIRED ADJUSTMENTS AFTER GOING THROUGH DET AILS OF ALL THE IMPOUNDED DOCUMENTS. THEREAFTER THE RETURN OF INCOM E FOR THE YEAR UNDER CONSIDERATION WAS FILED BY THE ASSESSEE ON 25 .07.2013 DECLARING TOTAL INCOME OF RS.29,02,280/-. DURING THE COURSE O F ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS CALLED UPON BY THE AS SESSING OFFICER TO EXPLAIN AS TO HOW THE AMOUNT MENTIONED IN SEIZED DO CUMENTS SKA/L/1 AND SKA/L/2 HAD BEEN TAKEN INTO ACCOUNT FOR THE YEA R UNDER CONSIDERATION, I.E. A.Y. 2013-14 AND HOW THE UNDISC LOSED INCOME OF RS.18 CRORES SURRENDERED BY HIM DURING THE COURSE OF SEAR CH WAS DISCLOSED IN THE ASSESSEES RETURN AS WELL AS THE RETURNS OF THE GROUP CONCERNS. IN REPLY, THE FOLLOWING EXPLANATION WAS OFFERED BY THE ASSESSEE IN WRITING:- DURING THE COURSE OF SEARCH SO MANY DEEDS AND DOCU MENTS WERE SEIZED FROM OUR PREMISES, INCLUDING THE PURPOR TED SHOWN DOCUMENT ID SKA/L/L & SKA/L/2 FROM THE UNION BANK L OCKER. AS ALREADY SAID IN OUR EARLIER LETTER, DURING THE S EARCH PROCEEDINGS BECAUSE OF UNHEALTHY STATE OF MIND WE H AD BEEN FORCED TO GIVE DISCLOSURE TO THE TUNE OF RS.18 CROR E (APPROX). THIS DISCLOSURE WAS MADE ON THE BASIS OF THE ABOVE SAID DOCUMENTS SUCH AS SKA/L/L & SKA/L/2 SEIZED BY THE DEPARTMENT, RETRACTION OF WHICH IS WELL CONVEYED BY MEANS OF THE DISCLOSURE PETITION WHEREIN WE HAVE ALSO MENTIO NED THAT THE DISCLOSURE IS BEING MADE WITHOUT GOING THROUGH THE DETAILS OF THE DOCUMENTS SEIZED BY THE DEPT. WE HAV E ALSO SUBMITTED IN OUR DISCLOSURE PETITION THAT, WE ARE N OT AWARE OF THE CONTENTS OF ALL THE STATEMENTS RECORDED OF VARI OUS PERSONS DURING THE COURSE OF SEARCH & SEIZURE WHICH WERE GI VEN IN A STRESSFUL AND UNHEALTHY STATE OF MIND. ON ANALYSING THE CONTENTS OF THE DOCUMENT ID SKA/L/ L & SKA/L/2 SEIZED FROM THE BANK LOCKER NO.5/35 IN THE NAME OF SAJJAN KUMAR AGARWAL OF UNION BANK OF INDIA, NEW AL IPORE, KOLKATA-700053, IT CAME TO OUR KNOWLEDGE THAT THIS BANK LOCKER HAS NOT BEEN OPERATED SINCE MORE THAN A DECA DE. THE VERY FACT OF NON OPERATION OF THIS BANK LOCKER MAY BE VERIFIED FROM THE CONCERNED BANKER. NON OPERATION OF THE SAI D BANK LOCKER SINCE MORE THAN A DECADE PROVES THE DOCUMENT S SEIZED FROM THIS LOCKER ARE VERY OLD 'AND THE TRANSACTIONS ENTERED IN THE SEIZED DOCUMENTS SUCH AS ID MARK SKA/L/L & SKA/ L/2 ARE RELATED TO VERY OLD PERIOD. AS THE SAME (BANK LOCKE R) WAS NOT ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 4 OPERATED SINCE LONG BACK, WE ARE UNABLE TO CORRELAT E THE NAME OF THE PERSONS WHICH ARE MENTIONED IN THE ALLEGED D OCUMENTS. MOREOVER PURPOSE/NATURE OF TRANSACTIONS ARE NOT DES CRIBING ANY MEANING AND IN NO WAY RAISING FIGURE TOWARDS TH E UNDISCLOSED/SUPPRESSED INCOME. AGAIN SUBMIT THAT WE WERE NOT AWARE OF THE CONTENTS OF BOOKS OF ACCOUNTS, DOCUMENTS GI7D IN ABSENCE OF THE PRECI SE INFORMATION RELATING TO THE MODE OF UTILIZATION OF THE UNDISCLOSED INCOME IF ANY AND ALSO THE CORRECTNESS OF THE DOCUMENTS HAVING ID MARK SKA/L/L & SKA/L/2 COULD NO T BE ASCERTAINED AND THE ENTRIES FOUND IN THESE DOCUMENT S ARE FOUND IN AMBIGUOUS MANNER. ALL THE STATEMENTS OF VARIOUS PERSONS RECORDED DURI NG THE COURSE OF SEARCH & SEIZURE WERE GIVEN IN STRAIN, ST RESSFUL AND UNHEALTHY STATE OF MIND. THESE STATEMENTS MADE BY T HE ASSESSEE DURING THE SEARCH PROCEEDINGS MAY NOT BE R EGARDED AS EVIDENCE TO ADMISSION BECAUSE OF THEIR MENTAL CO NDITION IN WHICH THOSE WERE DELIVERED. AS PER SECTION 31 OF TH E INDIAN EVIDENCE ACT, 1872, ADMISSIONS ARE NOT THE CONCLUSI VE PROOF OF THE MATTERS ADMITTED, YET ADMISSIONS IN THE ABSENCE OF REBUTTAL MAY CONCLUDE AN ISSUE. UNDER INCOME TAX AC T, 1961 ALSO, ADMISSIONS BIND THE MAKER WHEN THESE ARE NOT REBUTTED OR RETRACTED. AS NO CORROBORATIVE EVIDENCE/INCRIMINATING MATERIAL HAS BEEN GATHERED COLLECTED BY THE INVESTIGATING TEAM WHILE SEARCHING OUR PREMISES WHICH PROVES THE SUPPRESSION OF THE IN COME /NON DISCLOSURE OF INCOME. IT IS CLEAR THAT THIS DISCLOS URE OF UNDISCLOSED INCOME TO THE TUNE OF RS.18 CRORE(APPRO X) HAS BEEN MADE ON ADHOC BASIS IN THE UNHEALTHY STATE OF MIND AND JUST TO BUY PEACE. HENCE DISCLOSURE TO THE TUNE OF RS. 18 CRORE(APPROX } IS WRONG I AGAINST LAW AND PREJUDICIAL TO THE INTEREST OF TH E ENTIRE QROUP. 3. KEEPING IN VIEW THE STAND TAKEN BY THE ASSESSEE THAT THE LOCKER NO. 5/35 IN UNION BANK OF INDIA, NEW ALIPORE BRANCH FRO M WHICH THE SEIZED DOCUMENTS IDENTIFIED AS SKA/L/1 AND SKA/L/2 WERE FO UND, WHICH FORMED ON THE BASIS OF DISCLOSURE TO THE TUNE OF RS.18 CRO RES HAD NOT BEEN OPERATED FOR MORE THAN A DECADE, A LETTER UNDER SEC TION 133(6) OF THE ACT WAS ISSUED BY THE ASSESSING OFFICER TO THE BRANCH M ANAGER OF UNION BANK OF INDIA, NEW ALIPORE BRANCH REQUIRING THE RELEVANT DETAILS. ALTHOUGH THE BRANCH MANAGER IN RESPONSE TO THE SAID LETTER FURNI SHED THE RELEVANT ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 5 DETAILS REQUIRED BY THE ASSESSING OFFICER, HE DID N OT FURNISH THE COPY OF LOCKER OPERATION REGISTER FOR THE RELEVANT PERIOD. SUMMONS UNDER SECTION 131, THEREFORE, WAS ISSUED BY THE ASSESSING OFFICER ON 29.08.2014, IN RESPONSE TO WHICH HE FURNISHED A COPY OF LOCKER OPE RATION REGISTER FROM 28.02.2011 AND SUBMITTED THAT THE LOCKER OPERATION REGISTER FOR THE PERIOD PRIOR TO 28.02.2011 WAS NOT TRACEABLE. ALTHO UGH THE BRANCH MANAGER SOUGHT TIME TO TRACE OUT AND PRODUCE THE SA ID REGISTER, HE COULD NOT DO SO DESPITE THE SEVERAL AND SUFFICIENT OPPORT UNITY GIVEN BY THE ASSESSING OFFICER. THE ASSESSEE WAS ALSO ASKED BY T HE ASSESSING OFFICER TO SUPPORT AND SUBSTANTIATE HIS CLAIM REGARDING NON-OP ERATION OF THE BANK LOCKER FOR MORE THAN A DECADE BY PRODUCING THE NECE SSARY DOCUMENTARY EVIDENCE. IN REPLY, THE ASSESSEE FURNISHED A COPY O F CERTIFICATE ISSUED BY THE CHIEF MANAGER OF UNION BANK OF INDIA, NEW ALIPO RE BRANCH ON 10.04.2013 CONFIRMING THAT THE SAID LOCKER WAS SEIZ ED BY THE INCOME TAX COMMISSIONER ON 17.10.2001 AND WAS NOT IN OPERATION TILL IT WAS SEIZED AGAIN BY THE INCOME TAX DEPARTMENT ON 18.09.2012 AN D BROKE OPEN ON 08.11.2012. ON THE BASIS OF THIS CERTIFICATE THE AS SESSEE REITERATED HIS CLAIM THAT THE DOCUMENTS FOUND AND SEIZED FROM HIS LOCKER PERTAINED TO THE PERIOD PRIOR TO 18.10.2001. 3. THE CERTIFICATE STATED TO BE ISSUED BY THE CHIEF MANAGER OF UNION BANK OF INDIA, NEW ALIPORE BRANCH AND FURNISHED BY THE ASSESSEE WAS FOUND TO BE VAGUE AND NOT CLEAR BY THE ASSESSING OF FICER. HE, THEREFORE, ISSUED A SUMMONS UNDER SECTION 131 REQUIRING THE BR ANCH MANAGER, UNION BANK OF INDIA, NEW ALIPORE BRANCH TO APPEAR P ERSONALLY ON 22.01.2015. IN RESPONSE TO THE SUMMONS, THE BRANCH MANAGER APPEARED BEFORE THE ASSESSING OFFICER ON 22.01.2015 AND ADMI TTED IN HIS STATEMENT RECORDED UNDER SECTION 131 THAT IN THE ABSENCE OF L OCKER OPERATION REGISTER FOR THE PERIOD PRIOR TO 28.02.2011, HE WAS NOT IN A POSITION TO GIVE ANY SPECIFIC COMMENTS REGARDING FREQUENCY OF T HE OPERATION OF THE LOCKER OF THE ASSESSEE. HE ALSO STATED THAT THE OPE RATION DETAILS OF THE LOCKER PRIOR TO 28.02.2011 COULD NOT BE PROVIDED SI NCE THE LOCKER ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 6 OPERATION REGISTER WAS NOT TRACEABLE. HE FURTHER ST ATED THAT HE WAS NOT IN A POSITION TO COMMENT ON THE EXACT NATURE OF THE LO CKER AT THE TIME OF BREAKING IT OPEN AS HE WAS NOT PRESENT AT THE TIME OF BREAKING OPEN OF THE SAID LOCKER. HE ACCORDINGLY EXPRESSED HIS INABILITY TO SUPPORT AND SUBSTANTIATE THE CLAIM OF THE ASSESSEE THAT THE LOC KER WAS NOT OPERATED FOR THE PERIOD OF MORE THAN A DECADE. 4. AS REGARDS THE OTHER CLAIM MADE BY THE ASSESSEE THAT THE DISCLOSURE OF ADDITIONAL INCOME OF RS.18 CRORES WAS MADE BY HI M DURING THE COURSE OF SEARCH UNDER PRESSURE AND COERCION, THE ASSESSIN G OFFICER FOUND THAT THE ASSESSEE HAD ON TWO OCCASIONS GIVEN AND RECONFI RMED THE DISCLOSURE OF UNDISCLOSED INCOME THROUGH HIS STATEMENTS RECORD ED ON OATH ON 10.10.2012 AND 08.11.2012. HE ALSO NOTED THAT THIS DISCLOSURE MADE BY THE ASSESSEE WAS AGAIN REITERATED AND RECONFIRMED I N THE DISCLOSURE PETITION FILED BY THE ASSESSEE ON 15.12.2012 BEFORE THE DDIT (INVESTIGATION), UNIT-II(2), KOLKATA. HE HELD THAT SINCE THIS REITERATION AND RECONFIRMATION OF THE DISCLOSURE WAS MADE BY THE AS SESSEE IN A PERIOD OF 2-3 MONTHS AFTER THE DATE OF SEARCH, THE POINT OF I TS BEING GIVEN UNDER ANY KIND OF PRESSURE, COERCION, FORCE, ETC. COULD NOT H OLD GOOD. HE HELD THAT THE ALLEGATION MADE BY THE ASSESSEE OF HAVING MADE SURRENDER/DISCLOSURE UNDER FORCE AND IN A STRESSFUL AND UNHEALTHY STATE OF MIND WAS NOTHING BUT AN AFTER-THOUGHT AND IT WAS FAR FROM THE REALIT Y AS IT WAS GIVEN ON THE BASIS OF MATERIAL EVIDENCE COLLECTED DURING THE COU RSE OF SEARCH REFLECTING UNACCOUNTED TRANSACTIONS. HE NOTED THAT THE RELEVAN T SEIZED DOCUMENTS IDENTIFIED AS SKA/L/1 AND SKA/L/2 CONTAINED NOTINGS RELATED WITH THE DETAILS OF BOTH DEBIT AND CREDIT ENTRIES WORTH RS.1 7,39,47,305/- EACH AND THE SAME REPRESENTED UNACCOUNTED INVESTMENT OF THE ASSESSEE WHICH WAS VOLUNTARILY DISCLOSED BY THE ASSESSEE AS HIS UNDISC LOSED INCOME. HE ACCORDINGLY TREATED THE ENTRIES APPEARING IN THE RE LEVANT SEIZED DOCUMENTS AS REPRESENTING THE UNDISCLOSED INCOME OF THE ASSESSEE AND MADE AN ADDITION OF RS.18 CRORES UNDER SECTION 69A OF THE ACT TO THE TOTAL ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 7 INCOME OF THE ASSESSEE IN THE ASSESSMENT COMPLETED UNDER SECTION 143(3) VIDE AN ORDER DATED 30.03.2015. 5. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEF ORE THE LD. CIT(APPEALS). DURING THE COURSE OF APPELLATE PROCEE DINGS BEFORE THE LD. CIT(APPEALS), A DETAILED SUBMISSION WAS MADE BY THE ASSESSEE CHALLENGING THE ADDITION OF RS.18 CRORES MADE BY TH E ASSESSING OFFICER TO HIS TOTAL INCOME ON ACCOUNT OF UNDISCLOSED INCOME R EPRESENTING UNEXPLAINED INVESTMENT UNDER SECTION 69A. THE ASSES SEE MAINLY REITERATED THE TWO CONTENTIONS RAISED BEFORE THE AS SESSING OFFICER IN SUPPORT OF HIS CASE ON THIS ISSUE. FIRSTLY, HE CONT ENDED THAT THE DISCLOSURE MADE ON ACCOUNT OF UNDISCLOSED INCOME OF RS.18 CROR ES WAS UNDER DURESS AND NOT VOLUNTARILY. THE SECOND CONTENTION RAISED B Y THE ASSESSEE WAS THAT THE RELEVANT SEIZED DOCUMENTS ON THE BASIS OF WHICH THE ADDITION OF RS.18 CRORES WAS MADE, WERE RECOVERED FROM A BANK L OCKER AND SINCE THE SAID LOCKER HAD NOT BEEN OPERATED SINCE 17.10.2001 WHEN IT WAS SEALED AND A PROHIBITORY ORDER WAS ISSUED WHICH WAS IN FOR CE TILL THE NEXT SEARCH CONDUCTED ON 08.11.2012, THE ENTRIES FOUND RECORDED IN THE RELEVANT SEIZED DOCUMENTS BELONGED TO A PERIOD PRIOR TO 17.1 0.2001 AND THE SAME COULD NOT REPRESENT THE UNDISCLOSED INCOME OF THE A SSESSEE FOR THE YEAR UNDER CONSIDERATION I.E. A.Y. 2013-14. 6. THE LD. CIT(APPEALS) DID NOT FIND MERIT IN THE C ONTENTIONS RAISED ON BEHALF OF THE ASSESSEE AND PROCEEDED TO CONFIRM THE ADDITION OF RS.18 CRORES MADE BY THE ASSESSING OFFICER FOR THE FOLLOW ING REASONS GIVEN IN PARAGRAPHS NO. 4 TO 7 OF HIS IMPUGNED ORDER:- 4. I HAVE CAREFULLY CONSIDERED THE STATEMENT GIVE N BY THE ASSESSEE-INDIVIDUAL IN THE COURSE OF THE SEARCH AGA INST THE INCRIMINATING DOCUMENTS AND THE ENTRIES RECORDED TH EREIN. I FIND THAT THERE HAS BEEN AN UNEQUIVOCAL AND VOLUNTA RY DISCLOSURE OF RS.18,00,000/- AGAINST THE INCRIMINAT ING ENTRIES, AND A COMMITMENT TO DISCLOSE THE TRANSACTIONS DULY. I ALSO FIND THAT THE ASSESSEE HAS REITERATES SUCH DISCLOSURE BE FORE THE OFFICERS OF THE INVESTIGATING WING, AND COMMITTED T HAT THE ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 8 DISCLOSURE WAS MADE IN GOOD FAITH AND VOLUNTARILY. IT WAS ONLY BEFORE THE LD. AO THAT FOR THE FIRST TIME THE ASSES SEE HAS RETRACTED FROM THE STATEMENT GIVEN EARLIER. THIS RE TRACTION WAS AFTER A PERIOD OF ABOUT 18 MONTHS, AND HAS TO BE SE EN IN SUCH LIGHT WITH SUSPICION, I AM, THEREFORE NOT INCLINED TO GIVE ANY CREDENCE TO THE RETRACTION OF THE STATEMENTS BY THE ASSESSEE, AS THESE HAVE BEEN MADE BY A WELL THOUGHT OUT STRATEGY , SO THAT THE PROCEEDINGS CAN BE NULLIFIED. IT IS TO BE OBSER VED THAT THE STATEMENTS WERE GIVEN VOLUNTARILY AND HAD BEEN RECO RDED INDEPENDENTLY BEFORE THE OFFICERS OF THE WING. IN M Y CONSIDERED VIEW, MERE RETRACTION BEFORE THE LD. AO BY FILING A SUBMISSION AFTER A PERIOD OF AROUND 18 MONTHS WOULD NOT BE BIN DING ON THE TAXING AUTHORITY. HON'BLE COURTS HAVE HELD THAT ANY ADDITION BASED ON THE STATEMENT OR ADMISSION BY THE ASSESSEE /RELATED PARTY IS QUITE JUSTIFIED [HARA SINGH & CO. VS CIT ( HP) 230 ITR 169.] IT HAS TO BE MENTIONED HEREIN THAT WHERE A PE TITIONER ENTERS INTO A VOLUNTARY SETTLEMENT WITH ANY GOVERNM ENT AGENCY AND THE LIABILITY TO PAY TAX ARISES FROM SUCH SETTL EMENT, HE CANNOT QUESTION THE SETTLEMENT UNLESS AND UNTIL HE CAN ESTABLISH THAT HIS CONSENT WAS IMPROPERLY PROCURED. [DEWAN BAHADUR SETH GOPAL DAS MOHTA VS THE UNION OF INDIA & ORS (SC) 26 ITR 722. SIMILARLY, AND MORE SIGNIFICANTLY, IN THE FOLLOWING JUDICIAL PRECEDENTS, THE RATIO EMERGES TH AT FOR RETRACTIONS TO BE VALID, THE BURDEN HAS BEEN CAST U PON THE PERSON WHO IS RETRACTING FROM HIS STATEMENT OR ADMI SSION THAT COERCION, THREAT OR INCENTIVE WAS THE REASON FOR SU CH STATEMENT WHICH IS BEING RETRACTED. A. MONOHARLAL KASTURCHAND CHOKSI VS ACIT (ITAT, AHD ) 61 ITO 55 B. PARAM ANAND BUILDERS VS ITO ( ITAT, MUM) 59 ITO 29 C. WORK OF ART PVT LTD VS ACIT ( ITAT, JP ) 65 ITO 40 D. AMRITLAL BHAGWANDAS SONI VS DCIT ( ITAT, AHD) 59 TTJ 418 E. HIRALAL MAGANLAL & CO. VS DCIIT (ITAT, MUM) 96 I TD 113 F. AIRPORT AUTHORITY OF INDIA VS CBEC (DEL) 207 CTR 196 G. RAVINDRA D TRIVEDI VS CIT (RAJ) 215 CTR 313 5. IN THE CASE AT HAND, I FIND THAT THE APPELLANT HAS UNABLE TO BRING ON RECORD EVEN AN IOTA OF EVIDENCE THAT. T HE STATEMENT WAS IMPROPERLY PROCURED FROM HIM, OR THAT ANY COERC ION OR DURESS WAS USED AGAINST HIM. 6. IN MY CONSIDERED VIEW THE DISCLOSURE WAS AGAINS T SPECIFIC INCRIMINATING DOCUMENTS, AND THEREFORE THE ASSESSEE- APPELLANT WAS BOUND BY THE SAME. WITH SUCH VIEW OF THE MATTER, I FIND THAT THERE IS NO STRENGTH IN THE ARGUMENTS O F THE APPELLANT THAT HE WAS NOT BOUND BY THE STATEMENT AB OUT ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 9 DISCLOSURE OF RS.18,00,00,000/-, AND I HOLD TO THE CONTRARY, BINDING THE ASSESSEE-INDIVIDUAL WITH SUCH STATEMENT WHICH HAS BEEN MADE AGAINST SPECIFIC INCRIMINATING EVIDENCES CONFRONTED TO HIM BY THE INVESTIGATING OFFICERS DURING THE COU RSE OF THE SEARCH AND SEIZURE PROCEEDINGS. 7. I HAVE ALSO CAREFULLY CONSIDERED THE SUBMISSION S OF THE APPELLANT RELATING TO THE ISSUE OF THE OPERATION OF THE BANK LOCKER. I FIND THAT THE LD. AO HAS RECORDED THE STA TEMENT OF THE CONCERNED BANK MANAGER, AND HE HAS UNDER OATH STATE D THAT IN THE ABSENCE OF THE LOCKER OPERATION REGISTER PRIOR TO THE PERIOD OF 28.02.2011, THE MATTER COULD NOT BE SAID WITH ANY CERTAINTY WHETHER THE BANK LOCKER WAS OPERATED OR N OT. THIS BEING THE FACTUAL SITUATION, I FIND THAT THE MATTER REMAINS UNEQUIVOCAL, AND DOES NOT COME TO THE RESCUE OF THE APPELLANT. IN VIEW OF THESE REASONS I AM NOT INCLINED TO INTER FERE WITH THE FINDINGS OF THE LD. AO AND HIS ACTION IN MAKING THE IMPUGNED ADDITION OF RS.18,00,00,000/-, AND TREATING THE SAI D AMOUNT AS UNDISCLOSED INCOME OF THE ASSESSEE-INDIVIDUAL FOR T HE SUBJECT ASSESSMENT YEAR. SUCH ACTION STANDS CONFIRMED, AND THE GROUNDS OF APPEAL TAKEN BY THE APPELLANT-INDIVIDUAL STAND DISMISSED. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE PROHIBITORY ORDER IN RESPECT OF THE LOCKER OF THE ASSESSEE BEAR ING NO. 5/35 MAINTAINED WITH UNION BANK OF INDIA, NEW ALIPORE BR ANCH WAS ISSUED ON THE DATE OF SEARCH, I.E. 18.09.2012 AND AFTER BREAK ING OPEN THE SAID LOCKER ON 08.11.2012 AND SEIZING THE DOCUMENTS FOUND THERE IN IDENTIFIED AS SKA/L/1 AND SKA/L/2, THE PROHIBITORY ORDER WAS REVO KED ON 08.11.2012. HE INVITED OUR ATTENTION TO THE COPIES OF THE SAID DOCUMENTS SEIZED FROM THE BANK LOCKER OF THE ASSESSEE AT PAGE NOS. 28 TO 33 AND 146 TO 190 OF THE PAPER BOOK AND POINTED OUT THAT THE SEIZED DOCU MENT IDENTIFIED AS SKA/L/1 WAS AN OLD DIARY OF THE YEAR 1992 WHILE THE OTHER SEIZED DOCUMENTS IDENTIFIED AS SLA/L/2 REPRESENTED LOOSE D OCUMENTS WHICH WERE TORN OFF FROM THE SAME OLD DIARY OF 1992. HE A LSO INVITED OUR ATTENTION TO THE COPY OF EXTRACT OF SAFE DEPOSIT LO CKER LEDGER OF UNION BANK OF INDIA, NEW ALIPORE BRANCH PLACED AT PAGE NO . 70 OF THE PAPER BOOK AND POINTED OUT THAT THE LOCKER OF THE ASSESSE E WAS PUT UNDER ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 10 PROHIBITORY ORDER RECEIVED BY THE BANK DURING THE C OURSE OF EARLIER SEARCH AND SEIZURE ACTION TAKEN IN THE CASE OF THE ASSESSEE ON 17.10.2001. HE CONTENDED THAT THE SAID PROHIBITORY ORDER ISSUED ON 17.10.2001 WAS NEVER REVOKED BY THE INCOME TAX DEPARTMENT AND THE ASSESSEE, THEREFORE, COULD NOT AND DID NOT OPERATE THE SAID LOCKER FROM 17.10.2001 TO 18.09.2012. IN THIS REGARD, HE ALSO RELIED ON THE C ERTIFICATE ISSUED BY THE UNION BANK OF INDIA, NEW ALIPORE BRANCH ON 10.04.20 13 (COPY PLACED AT PAGE NO. 61 OF THE PAPER BOOK) CONFIRMING THAT THE LOCKER OF THE ASSESSEE WAS SEIZED BY THE INCOME TAX DEPARTMENT ON 17.10.20 01 AND IT WAS NOT IN OPERATION TILL IT WAS BROKE OPEN ON 08.11.2012 AND THE SECOND PROHIBITORY ORDER ISSUED ON 18.09.2012 WAS REVOKED ON 08.11.2012. HE CONTENDED THAT SINCE THE ASSESSEE WAS NOT IN A POSI TION TO OPERATE THE LOCKER RIGHT FROM 17.10.2001, THE DIARY AND OTHER L OOSE DOCUMENTS FOUND IN THE SAID LOCKER SEIZED ON 08.11.2012 WERE OLD, W HICH WERE LYING IN THE LOCKER RIGHT FROM 17.10.2001. HE CONTENDED THAT THE ENTRIES REFLECTED IN THE SAID DOCUMENTS ALLEGEDLY REPRESENTING UNDISCLOS ED INCOME/INVESTMENT OF THE ASSESSEE THUS WERE PERTAIN ED TO THE PERIOD PRIOR TO 17.10.2001 AND THE ADDITION OF RS.18 LAKHS CANNOT BE MADE ON THE BASIS OF THE SAID DOCUMENTS FOR THE YEAR UNDER CONSIDERATION, I.E. A.Y. 2013-14. 8. AS REGARDS THE DISCLOSURE OF UNDISCLOSED INCOME OF RS.18 CRORES STATED TO BE VOLUNTARILY MADE BY THE ASSESSEE DURIN G THE COURSE OF SEARCH, HE INVITED OUR ATTENTION TO THE COPY OF THE STATEME NT OF THE ASSESSEE RECORDED DURING THE COURSE OF SEARCH ON 19.09.2012 (COPY PLACED AT PAGE NO. 13 TO 17 OF THE PAPER BOOK) AND POINTED OUT THA T THE ASSESSEE WAS ASKED THE QUESTION NO. 30 SEEKING HIS DESIRE TO DIS CLOSE AN ADDITIONAL INCOME AND IN REPLY IT WAS STATED BY THE ASSESSEE T HAT HE WAS NOT IN A POSITION THEN TO DISCLOSE ANY ADDITIONAL INCOME AND THAT IT COULD BE DISCLOSED IN DUE COURSE. HE THEN INVITED OUR ATTENT ION TO THE STATEMENT OF THE ASSESSEE RECORDED UNDER SECTION 132(4) ON 10.10 .2012 (COPY AT PAGE NO. 18 AND 19 OF THE PAPER BOOK) AND SUBMITTED THAT THE ASSESSEE WAS ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 11 MADE TO SURRENDER/DISCLOSE ADDITIONAL INCOME OF RS. 18 CRORES OF THE COMPANIES AND PERSONS BELONGING TO HIS GROUP FOR TH E PREVIOUS YEAR RELEVANT TO A.Y. 2013-14. HE SUBMITTED THAT THE LOC KER OF THE ASSESSEE WITH UNION BANK OF INDIA, NEW ALIPORE BRANCH WAS TH EREAFTER BROKE OPEN ON 08.11.2012 AND IN THE STATEMENT OF THE ASSESSEE RECORDED UNDER SECTION 132(4) ON 08.11.2012 (COPY PLACED AT PAGE N O. 20 AND 21 OF THE PAPER BOOK), THE ASSESSE WAS MADE TO RELY ON THE DO CUMENTS FOUND AND SEIZED FROM THE LOCKER TO JUSTIFY THE DISCLOSURE OF ADDITIONAL INCOME OF RS.18 CRORES MADE ON 10.10.2012. 9. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ALL THE BANK ACCOUNTS OF PERSONS AND ENTITIES BELONGING TO THE A SSESSEES GROUP WERE MEANWHILE ATTACHED BY THE INCOME TAX DEPARTMENT IN THE MONTH OF SEPTEMBER, 2012 ITSELF AND ONLY AFTER THE DISCLOSUR E OF ADDITIONAL INCOME OF RS.18 CRORES MADE BY THE ASSESSEE IN THE STATEME NT RECORDED ON 10.10.2012, THE ATTACHMENTS THERE REVOKED BY THE DE PARTMENT. HE INVITED OUR ATTENTION TO THE COPIES OF REVOCATION ORDERS PL ACED IN HIS PAPER BOOK AT PAGE NO. 108 TO 122 OF THE PAPER BOOK TO POINT O UT THAT THE ATTACHMENT OF THE BANK ACCOUNTS OF THE GROUP MEMBERS WAS REVOK ED BY THE DEPARTMENT ONLY AFTER THE DISCLOSURE OF ADDITIONAL INCOME OF RS.18 CRORES BY THE ASSESSEE ON 10.10.2012. HE CONTENDED THAT TH E ASSESSEE THUS WAS PUT UNDER PRESSURE BY WAY OF ATTACHMENT OF BANK ACC OUNTS OF THE PERSONS AND ENTITIES BELONGING TO HIS GROUP AND AFTER EXTRA CTING THE DISCLOSURE OF ADDITIONAL INCOME OF RS.18 CRORES FROM THE ASSESSEE UNDER THE SAID PRESSURE, THE ATTACHMENT OF BANK ACCOUNTS WAS REVOK ED. HE CONTENDED THAT THE DISCLOSURE OF ADDITIONAL INCOME OF RS.18 C RORES THUS WAS NOT MADE BY THE ASSESSEE VOLUNTARILY AND THE SAME CANNO T BE RELIED UPON TO MAKE ANY ADDITION TO THE TOTAL INCOME OF THE ASSESS EE. 10. THE LD. COUNSEL FOR THE ASSESSEE FURTHER CONTEN DED THAT THE DISCLOSURE OF ADDITIONAL INCOME OF RS.18 CRORES AS MADE BY THE ASSESSEE IN THE STATEMENTS RECORDED UNDER DURESS AND PRESSUR E WAS IN RESPECT OF ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 12 ALL THE PERSONS AND ENTITIES BELONGING TO THE ASSES SEES GROUP AS SPECIFICALLY MENTIONED BY THE ASSESSEE IN HIS STATE MENT. HE SUBMITTED THAT THE ASSESSING OFFICER VIDE A LETTER DATED 17.0 9.2013 ISSUED DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAD ASKED THE ASSESSEE TO FURNISH THE DETAILS OF TAX PAID IN RESPECT OF THE DISCLOSUR E OF RS.18 CRORES MADE DURING THE COURSE OF SEARCH AND IN REPLY TO THE SAI D LETTER, THE RELEVANT DETAILS WERE FURNISHED BY THE ASSESSEE TO SHOW THAT THE PERSONS AND ENTITIES BELONGING TO THE GROUP HAD OFFERED TO TAX IN THEIR RETURNS OF INCOME FOR THE YEAR UNDER CONSIDERATION, TOTAL INCO ME OF RS.15.45 CRORES AS AGAINST THE TOTAL INCOME OF RS.4.40 CRORES OFFER ED FOR THE IMMEDIATELY PRECEDING YEAR I.E. A.Y. 2012-13 AND ALSO PAID A TA X OF RS.3.12 CRORES ON THE INCOME SO DECLARED. HE CONTENDED THAT INSPITE O F THE ADDITIONAL INCOME OF MORE THAN RS.11 CRORES DECLARED BY THE PE RSONS AND ENTITIES BELONGING TO THE ASSESSEES GROUP FOR THE YEAR UNDE R CONSIDERATION, THE ASSESSING OFFICER STILL ADDED THE ENTIRE AMOUNT OF RS.18 CRORES ALLEGEDLY DECLARED BY THE ASSESSEE VOLUNTARILY AS HIS UNDISCL OSED INCOME DURING THE COURSE OF SEARCH TO THE TOTAL INCOME OF THE ASSESSE E FOR THE YEAR UNDER CONSIDERATION BY STATING THAT THE SAID ADDITION WAS SUPPORTED BY THE ENTRIES FOUND RECORDED IN THE LOOSE PAPERS FOUND AN D SEIZED FROM THE BANK LOCKER OF THE ASSESSEE. HE CONTENDED THAT THER E WAS NOTHING WHATSOEVER IN THE SAID DOCUMENTS TO INDICATE THAT T HE TRANSACTIONS ALLEGEDLY REFLECTED THEREIN WERE RELATED TO THE ASS ESSEE AND THE SAME REPRESENTED UNDISCLOSED INCOME OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. HE CONTENDED THAT THE RELEVANT LOOSE DOCUMENTS FOUND AND SEIZED FROM THE BANK LOCKER OF THE ASSESSEE WERE OF THE OLD DIARY OF 1992 AND IN THE ABSENCE OF ANY DATE MENTIONED THEREIN, T HE SAME COULD NOT BE FORMED THE BASIS OF MAKING ANY ADDITION ON ACCOUNT OF UNDISCLOSED INCOME OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERA TION. HE CONTENDED THAT EVEN THE CONCLUSION THAT THE ENTRIES APPEARING IN THE RELEVANT SEIZED DOCUMENTS REPRESENTED LOANS AND ADVANCES GIVEN BY T HE ASSESSEE TO THE DIFFERENT PERSONS, WHOSE NAMES WERE APPEARING IN TH E SAID SEIZED DOCUMENTS, WAS DRAWN BY THE ASSESSING OFFICER WITHO UT MAKING ANY ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 13 ENQUIRY WHATSOEVER WITH THE SAID PERSONS. HE CONTEN DED THAT SECTION 69A OF THE ACT INVOKED BY THE ASSESSING OFFICER TO MAKE THE SAID ADDITION IS ALSO NOT APPLICABLE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 11. TO SUMMARISE HIS ARGUMENTS, THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE ADMISSION/SURRENDER MADE BY THE ASSESSEE REGARDING UNDISCLOSED INCOME OF RS.18 CRORES WAS NOT VOLUNTAR Y AND SINCE THE SAME MADE UNDER COERCION AND DURESS WAS NOT SUPPORTED OR CORROBORATED BY ANY EVIDENCE FOUND DURING THE COURSE OF SEARCH OR B ROUGHT ON RECORD BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSME NT PROCEEDINGS, THE ADDITION OF RS.18 CRORES MADE BY THE ASSESSING OFFI CER AND CONFIRMED BY THE LD. CIT(APPALS) IS NOT SUSTAINABLE. IN SUPPORT OF THIS CONTENTION, HE RELIED ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS:- (I) PULLANGODE RUBBER PRODUCE CO. LIMITED VS.- STA TE OF KERALA & ANOTHER [91 ITR 18 (SUPREME COURT)]; (II) K.T. M.S. MOHAMMED & ANOTHER VS.- UNION OF IN DIA [197 ITR 196 (SUPREME COURT AT PAGE 213)]; (III) SHREE GANESH TRADING CO. VS.- CIT, DHANBAD [ 257 ITR 359 (JHARKHAND)]; (IV) CIT VS.- SMT. S. JAYALAKSHMI AMMAL 390 ITR 18 9 (MADRAS AT PAGE 197); (V) PRINCIPAL COMMISSIONER OF INCOME TAX, CENTRAL-1 , KOLKATA VS.- AJANTA FOOTCARE (INDIA) (P) LIMITED [84 TAXMANN.COM 109 (CALCUTTA)]. 12. THE LD. D.R., ON THE OTHER HAND, SUBMITTED THAT THERE IS NO CONCLUSIVE PROOF TO SHOW THAT THE LOOSE SHEETS FOUN D AND SEIZED FROM THE BANK LOCKER OF THE ASSESSEE WERE FROM THE SAME DIAR Y OF 1992, WHICH WAS ALSO FOUND AND SEIZED FROM THE SAME LOCKER. HE CONT ENDED THAT THE SUMMARY OF THE RELEVANT TRANSACTIONS FOUND TO BE RE CORDED IN THE SAID LOOSE SHEETS WAS GIVEN ON THE SEPARATE PAGE FOUND F ROM THE LOCKER OF THE ASSESSEE AND THE SAME ADMITTEDLY WAS NOT FROM THE O LD DIARY OF 1992. AS ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 14 REGARDS SECTION 69A OF THE ACT INVOKED BY THE ASSES SING OFFICER FOR MAKING THE IMPUGNED ADDITION OF RS.18 CRORES, HE CO NTENDED THAT THE SAME IS APPLICABLE WHERE THE ASSESSEE IN ANY FINANC IAL YEAR IS FOUND TO BE THE OWNER OF ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES WHICH IS NOT RECORDED IN THE BOOKS OF ACCOUNTS AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF ACQUISIT ION THEREOF. HE CONTENDED THAT THE ASSESSEE IN THE PRESENT CASE WAS FOUND TO BE THE OWNER OF ASSETS, WHICH WERE NOT RECORDED IN HIS BOO KS OF ACCOUNT AND SINCE THE ASSESSEE FAILED TO OFFER ANY SATISFACTORY EXPLANATION ABOUT THE NATURE AND SOURCE OF ACQUISITION THEREOF, SECTION 6 9A WAS CLEARLY APPLICABLE. HE ALSO RELIED ON THE PROVISIONS OF SEC TION 292C TO CONTEND THAT WHERE ANY DOCUMENTS ARE FOUND IN THE POSSESSIO N OR CONTROL OF ANY PERSON IN THE COURSE OF SEARCH UNDER SECTION 132, T HERE IS A PRESUMPTION AVAILABLE TO BE DRAWN THAT SUCH DOCUMENTS BELONG TO SUCH PERSON AND THE CONTENTS THEREOF ARE TRUE. 13. AS REGARDS THE CLAIM MADE ON BEHALF OF THE ASSE SESE THAT THE BANK LOCKER WITH UNION BANK OF INDIA, NEW ALIPORE BRANCH WAS NOT OPERATED BY THE ASSESSEE FROM 17.10.2001, THE LD. D.R. CONTENDE D THAT THERE IS NO EVIDENCE TO CONCLUSIVELY PROVE THIS CLAIM MADE BY T HE ASSESSEE. HE SUBMITTED THAT EVEN THE CERTIFICATE OF THE BANK FIL ED INITIALLY BY THE ASSESSEE IN SUPPORT OF THIS CLAIM WAS FOUND TO BE U NRELIABLE IN THE ABSENCE OF BANK LOCKER OPERATION REGISTER FOR THE P ERIOD PRIOR TO 28.02.2011 TO SUPPORT AND SUBSTANTIATE THE SAME. HE CONTENDED THAT THE BANK MANAGER IN HIS STATEMENT RECORDED SUBSEQUENTLY HAS CLEARLY ADMITTED THAT THE RELEVANT BANK LOCKER OPERATION RE GISTER WAS NOT TRACEABLE AND IN THE ABSENCE OF THE SAME, HE WAS UN ABLE TO MAKE ANY COMMENTS REGARDING NON-OPERATION OF LOCKER AS CLAIM ED BY THE ASSESSEE. 14. AS REGARDS THE ALLEGATION MADE BY THE ASSESSEE THAT THE DISCLOSURE OF UNDISCLOSED INCOME MADE BY HIM DURING THE COURSE OF SEARCH WAS UNDER COERCION AND PRESSURE, THE LD. D.R. CONTENDED THAT THERE IS NOTHING ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 15 TO SHOW THAT THERE WAS ANY SUCH COERCION OR PRESSUR E WHICH MADE THE ASSESSEE TO SURRENDER THE UNDISCLOSED INCOME OF RS. 18 CRORES. HE CONTENDED THAT THE DISCLOSURE PETITION REITERATING AND RECONFIRMING THE DISCLOSURE OF UNDISCLOSED INCOME OF RS.18 CRORES MA DE DURING THE COURSE OF SEARCH WAS FILED BY THE ASSESSEE BEFORE THE DDIT (INVESTIGATION), UNIT- II, KOLKATA ON 15.12.2012 AND SINCE THE SAID DISCLO SURE WAS FILED AFTER THE REVOCATION OF BANK ATTACHMENTS OF THE PERSONS AND E NTITIES BELONGING TO THE ASSESSEES GROUP, THE CASE NOW BEING MADE BY TH E LD. COUNSEL FOR THE ASSESESE OF COERCION AND PRESSURE ON THE BASIS OF T HE SAID REVOCATION ORDERS IS ONLY AN AFTER-THOUGHT AND NOT ACCEPTABLE. HE ALSO INVITED OUR ATTENTION TO THE COPY OF LETTER DATED 27.09.2013 SU BMITTED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER DURING THE CO URSE OF ASSESSMENT PROCEEDINGS TO POINT OUT THAT THERE WAS NO CATEGORI CAL RETRACTION EVEN AT THIS STAGE BY THE ASSSSEE OF HIS STATEMENT SURRENDE RING UNDISCLOSED INCOME OF RS.18 CRORES. HE SUBMITTED THAT IN THE CA SE OF PULLANGODE RUBBER PRODUCE CO. LIMITED VS.- STATE OF KERALA & ANOTHER [91 ITR 18] RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE, IT WAS HELD BY THE HONBLE SUPREME COURT THAT TIMING AND FACTS OF RETRACTION N EED TO BE SEEN. HE CONTENDED THAT EVEN THE DECISION OF THE HONBLE SUP REME COURT IN THE CASE OF K.T. M.S. MOHAMMED & ANOTHER VS.- UNION OF INDIA [197 ITR 196] IS NOT APPLICABLE IN THE PRESENT CASE AS THERE IS N O PROOF OF PRESSURE, COERCION OR DURESS AS ALLEGED BY THE ASSESSEE. HE C ONTENDED THAT EVEN THE OTHER CASE LAWS CITED BY THE LD. COUNSEL FOR THE AS SESSEE ARE DISTINGUISHABLE ON FACTS AND ARE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. 15. RELYING ON THE DECISION OF THE HONBLE KERALA H IGH COURT IN THE CASE OF CIT VS.- SHRI NARESH KUMAR AGARWAL [350 ITR 71] , THE LD. D.R. CONTENDED THAT THE BURDEN IS ON THE ASSESESE TO SUC CESSFULLY AND SATISFACTORILY RETRACT THE CONFESSION AND THE ASSES SEE IN THE PRESENT CASE HAS CLEARLY FAILED TO DISCHARGE THE SAME. HE ALSO R ELIED ON THE FOLLOWING ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 16 JUDICIAL PRONOUNCEMENTS IN SUPPORT OF HIS CONTENTIO NS RAISED ON BEHALF OF THE REVENUE:- (I) RAJIV AGGARWAL VS. ACIT 395 ITR 255 (DELHI); (II) ACIT VS.- HUKUM CHAND JAIN [337 ITR 238]; (III) DCIT VS.- GHANSHYAM M. TAMAKLUWALA [217 TAXM ANN 37 (GUJARAT)]; (IV) KISHORE KUMAR VS.- CIT [234 TAXMANN 771 (SUPR EME COURT)]; (V) 214 TAXMANN 221. 16. IN THE REJOINDER, THE LD. COUNSEL FOR THE ASSES SEE SUBMITTED THAT SECTION 69A IS APPLICABLE ONLY IN A CASE WHERE THE ASSESSEE IS FOUND TO BE THE OWNER OF ANY MONEY, BULLION, JEWELLERY OR OTHER VALUABLE ARTICLES, WHICH ARE NOT RECORDED IN THE BOOKS OF ACCOUNT AND THE ASSESSEE OFFERS NO EXPLANATION ABOUT THE NATURE AND SOURCE OF ACQUISIT ION THEREOF. HE CONTENDED THAT THE ASSESSEE IN THE PRESENT CASE WAS NOT FOUND TO BE THE OWNER OF ANY MONEY, BULLION, JEWELLERY OR OTHER VAL UABLE ARTICLES AND SINCE THE IMPUGNED ADDITION OF RS.18 CRORES WAS MAD E ON THE BASIS OF ENTRIES FOUND RECORDED IN THE RELEVANT SEIZED DOCUM ENTS ALLEGEDLY REPRESENTING LOANS AND ADVANCES GIVEN BY THE ASSESS EE, SECTION 69A IS NOT APPLICABLE. IN SUPPORT OF THIS CONTENTION, HE RELIE D ON THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF R. THIAGAR AN VS.-CIT [239 ITR 557] AS WELL AS THE DECISION OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS.- RAVI KUMAR [294 ITR 78]. H E SUBMITTED THAT THE DOCUMENTS FOUND AND SEIZED FROM THE LOCKER OF THE A SSESSEE PERTAINED TO THE OLD TRANSACTIONS AND NO QUESTION WHATSOEVER WAS ASKED TO THE ASSESSEE IN THIS REGARD. HE CONTENDED THAT NO ADDIT ION CAN BE MADE ON THE BASIS OF STATEMENT MADE BY THE ASSESSEE UNLESS THER E IS CORROBORATING EVIDENCE WHICH SUPPORTS THE STATEMENT MADE BY THE A SSESSEE. HE CONTENDED THAT THE STATEMENT ON HIS OWN HAS NO EVID ENTIARY VALUE AND IN THE ABSENCE OF ANY CORROBORATING MATERIAL FOUND IN THE PRESENT CASE, THE ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 17 ADDITION MADE MERELY ON THE BASIS OF THE STATEMENT OF THE ASSESSEE IS NOT SUSTAINABLE. 17. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND AL SO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. BEFORE US, T HE MAIN TWO CONTENTIONS RAISED BEFORE THE AUTHORITIES BELOW HAV E BEEN REITERATED BY THE LD. COUNSEL FOR THE ASSESSEE. THE FIRST CONTENT ION RAISED BY HIM IS THAT THE UNDISCLOSED INCOME OF RS.18 CRORES WAS SURRENDE RED/DISCLOSED BY THE ASSESSEE IN THE STATEMENTS RECORDED UNDER SECTION 1 32(4) UNDER PRESSURE AND DURESS AND THE SAME NOT BEING VOLUNTARY CANNOT BE RELIED UPON TO MAKE ANY ADDITION TO THE TOTAL INCOME OF THE ASSESS EE ON ACCOUNT OF THE ALLEGED UNDISCLOSED INCOME. HE HAS ALSO CONTENDED T HAT THE RELEVANT LOOSE DOCUMENTS FOUND AND SEIZED DURING THE COURSE OF SEA RCH AND RELIED UPON BY THE AUTHORITIES BELOW TO CONFIRM THE ADDITION OF RS.18 CRORES SURRENDERED/DISCLOSED BY THE ASSESSEE IN THE STATEM ENTS UNDER SECTION 132(4) WERE RECOVERED FROM THE BANK LOCKER OF THE A SSESSEE WITH UNION BANK OF INDIA, NEW ALIPORE BRANCH AND SINCE THE SAI D LOCKER WAS NOT OPERATIONAL SINCE 17.10.2001 HAVING BEEN SEALED BY THE INCOME TAX DEPARTMENT, THE ENTRIES FOUND RECORDED IN THE RELEV ANT SEIZED DOCUMENTS PERTAINED TO THE PERIOD PRIOR TO 17.10.2001 WHICH C OULD NOT BE FORMED BASIS TO DETERMINE THE UNDISCLOSED INCOME OF THE AS SESSEE FOR THE YEAR UNDER CONSIDERATION, I.E. A.Y. 2013-14. AT THE TIME OF HEARING BEFORE THE TRIBUNAL, THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO RAISED THE THIRD CONTENTION IN SUPPORT OF THE ASSESSEES CASE BY SUB MITTING THAT THE DISCLOSURE OF RS.18 CRORES WAS MADE BY THE ASSESSEE ON ESTIMATED BASIS IN RESPECT OF ALL THE PERSONS AND ENTITIES BELONGING T O THE ASSESSEES GROUP AND SINCE THE ADDITIONAL INCOME OF ABOUT RS.11 CROR ES WAS DECLARED BY THE PERSONS AND ENTITIES BELONGING TO THE ASSESSEES GR OUP IN THEIR RETURNS OF INCOME FILED FOR THE YEAR UNDER CONSIDERATION, THER E IS NO JUSTIFICATION TO MAKE A SEPARATE ADDITION OF RS.18 CRORES TO THE TOT AL INCOME OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 18 18. FIRST WE SHALL DEAL WITH THE THIRD CONTENTION R AISED BY THE LD. COUNSEL FOR THE ASSESEE FOR THE FIRST TIME BEFORE T HE TRIBUNAL. IT IS OBSERVED THAT AS PER THE RELEVANT DETAILS FURNISHED AT THE PAPER BOOK PAGE NO. 44, TOTAL INCOME OF RS.15.45 CRORES WAS DE CLARED IN THEIR RETURNS OF INCOME BY THE CONCERNED PERSONS AND ENTITIES BEL ONGING TO THE ASSESSEES GROUP AS COMPARED TO THE TOTAL INCOME OF RS.4.40 CRORES DECLARED BY THEM FOR THE IMMEDIATELY PRECEDING YEAR , I.E. A.Y. 2012-13. ON THIS BASIS, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE UNDISCLOSED INCOME OF RS.18 CRORES SURRENDERED BY T HE ASSESSEE DURING THE COURSE OF SEARCH ON ESTIMATED BASIS WAS OFFERED TO TAX BY THE ENTIRE GROUP TO THE EXTENT OF RS.11 CRORES AND THERE WAS N O JUSTIFICATION TO MAKE A SEPARATE ADDITION OF RS.18 CRORES TO THE TOTAL IN COME OF THE ASSESSEE. WE ARE UNABLE TO ACCEPT THIS CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE. NO DETAILS WHATSOEVER ARE FURNISHED BEFOR E US TO SHOW THAT THE INCREASE IN INCOME OF THE PERSONS AND ENTITIES BELO NGING TO THE ASSESSEES GROUP AS DECLARED IN THEIR RETURNS OF INCOME FOR TH E YEAR UNDER CONSIDERATION AS COMPARED TO THAT OF THE IMMEDIATEL Y PRECEDING YEAR WAS ON ACCOUNT OF THEIR UNDISCLOSED INCOME AS DETECTED DURING THE COURSE OF SEARCH. THERE IS NO IOTA OF EVIDENCE TO SHOW THAT T HE ADDITIONAL INCOME RETURNED BY THEM WAS WORKED OUT ON THE BASIS OF ANY MATERIAL FOUND AND SEIZED DURING THE COURSE OF SEARCH. IT IS ALSO OBSE RVED THAT NO SUCH CASE WAS MADE OUT BY THE ASSESSEE DURING THE COURSE OF A SSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFICER OR EVEN DU RING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(APPEALS). THERE CAN BE VARIOUS REASONS FOR THE INCREASE IN THE INCOME OF THE PERSO NS AND ENTITIES BELONGING TO THE ASSESSEES GROUP IN THE YEAR UNDER CONSIDERATION AS COMPARED TO THAT OF THE IMMEDIATELY PRECEDING YEAR AND SUCH INCREASE CANNOT BE TAKEN OR ACCEPTED AS UNDISCLOSED INCOME O F THE SAID ENTITIES SURRENDERED DURING THE COURSE OF SEARCH IN THE ABSE NCE OF ANY RELEVANT DETAILS OR DOCUMENTS TO SUPPORT AND SUBSTANTIATE TH E SAME. ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 19 19. COMING BACK TO THE FIRST CONTENTION RAISED ON B EHALF OF THE ASSESSEE THAT THE SURRENDER/DISCLOSURE OF UNDISCLOSED INCOME OF RS.18 CRORES WAS EXTRACTED FROM THE ASSESESE UNDER DURESS AND PRESSU RE, WE FIND THAT THE SEARCH AND SEIZURE OPERATION IN THE CASE OF THE ASS ESSEE WAS COMMENCED ON 18.09.2012 AND THE FIRST STATEMENT OF THE ASSESS EE WAS RECORDED ON 19.09.2012. IN THE SAID STATEMENT, THE ASSESSEE VID E QUESTION NO. 30 WAS ASKED AS TO WHETHER HE WANTED TO DISCLOSE ANY ADDIT IONAL INCOME IN RESPECT OF THE TOTAL FAMILY BUSINESS AND IT WAS STA TED BY HIM IN REPLY THAT HE WAS NOT IN A POSITION TO DO SO AT THAT STAGE. HE ALSO STATED THAT THE ADDITIONAL INCOME COULD BE DISCLOSED IN DUE COURSE. THE SECOND STATEMENT OF THE ASSESSEE WAS RECORDED UNDER SECTION 132(4) O F THE ACT ON 10.10.2012, WHEREIN HE FIRST TIME WHILE REPLYING TO A QUESTION NO. 8 AGREED TO DISCLOSE ADDITIONAL INCOME OF RS.18 CRORE S STATING THAT HE WAS DOING SO VOLUNTARILY. HE ALSO STATED CLEARLY THAT H IS STATEMENT WAS CORRECTLY RECORDED AS HIS OWN VERSION WITHOUT ANY F EAR, FORCE, THREAT OR COERCION. HE FURTHER STATED THAT THE SAID STATEMENT WAS GIVEN BY HIM IN SOUND STATE OF MIND AND HEALTH. THEREAFTER ON 08.11 .2012, THE BANK LOCKER OF THE ASSESSEE WITH UNION BANK OF INDIA, NE W ALIPORE BRANCH WAS BROKEN OPEN AND ANOTHER STATEMENT OF THE ASSESSEE U NDER SECTION 132 OF THE ACT WAS RECORDED ON THAT DATE. IN THE SAID STAT EMENT, HE RECONFIRMED THE DISCLOSURE OF RS.18 CRORES MADE IN THE EARLIER STATEMENT AND STATED THAT THE SAID DISCLOSURE WAS BASED ON THE DOCUMENTS SEIZED FROM HIS BANK LOCKER AND IDENTIFIED AS SKA/L/1 AND SKA/L/2. AT TH E END OF THIS STATEMENT, HE AGAIN STATED THAT HIS VERSION WAS EXA CTLY RECORDED AND THE STATEMENT WAS GIVEN VOLUNTARILY IN SOUND STATE OF M IND AND HEALTH WITHOUT ANY THREAT, PRESSURE OR COERCION. 20. IN SUPPORT OF THE ASSESSEES ALLEGATION THAT TH E DISCLOSURE/SURRENDER OF THE UNDISCLOSED INCOME WAS EXTRACTED UNDER COERCION AND DURESS, THE LD. COUNSEL FOR THE ASSESS EE HAS SUBMITTED THAT ALL THE BANK ACCOUNTS OF THE PERSONS AND ENTITIES B ELONGING TO THE ASSESSEE S GROUP WERE ATTACHED BY THE INCOME TAX D EPARTMENT AND ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 20 INSPITE OF THE REPEATED REQUEST MADE BY THE ASSESSE E, THE PROHIBITORY ORDERS WERE NOT REVOKED. HE HAS CONTENDED THAT ONLY WHEN THE ASSESSEE SURRENDERED/DISCLOSED THE UNDISCLOSED INCOME OF RS. 18 CRORES ON 10.10.2012, THE BANK ACCOUNTS ATTACHMENTS WERE LIFT ED BY ISSUING REVOCATION ORDERS. HE HAS CONTENDED THAT THE ASSESS EE THIS WAY WAS PRESSURISED BY THE INCOME TAX DEPARTMENT BY ATTACHI NG ALL THE BANK ACCOUNTS OF THE PERSONS AND ENTITIES BELONGING TO T HE ASSESSEES GROUP AND UNDER THIS PRESSURE, THE ASSESSEE WAS LEFT WITH NO OPTION BUT TO SURRENDER/DISCLOSE THE UNDISCLOSED INCOME OF RS.18 CRORES WHICH CANNOT BE SAID TO BE VOLUNTARY. WE FIND IT DIFFICULT TO AC CEPT THIS CONTENTION RAISED ON BEHALF OF THE ASSESSEE. IT IS OBSERVED TH AT THE BANK ACCOUNTS OF THE PERSONS AND ENTITIES BELONGING TO THE ASSESSEE S GROUP WERE ATTACHED CONSEQUENT TO THE SEARCH AND SEIZURE ACTION CONDUCT ED ON 18.09.2012 AND THE REQUEST FOR LIFTING THE SAID ATTACHMENTS WAS MA DE BY THE ASSESEE VIDE VARIOUS LETTERS ISSUED DURING THE PERIOD FROM 22.09 .2012 TO 15.10.2012. AS PER THE REQUEST MADE BY THE ASSESSEE, THE ATTACH MENTS OVER BANK ACCOUNTS WERE LIFTED BY ISSUING REVOCATION ORDERS U NDER SECTION 132(3) BY THE INCOME TAX DEPARTMENT IN THE PERIOD OF ABOUT ON E MONTH STARTING FROM 09.10.2012. IT IS THUS CLEAR THAT THE PROCESS OF LIFTING THE BANK ACCOUNTS ATTACHMENT WAS STARTED BY THE DEPARTMENT E VEN BEFORE THE STATEMENT OF THE ASSESSEE WAS RECORDED ON 10.10.201 2, WHEREIN HE FOR THE FIRST TIME MADE A SURRENDER/DISCLOSURE OF UNDISCLOS ED INCOME OF RS.18 CRORES. IT IS ALSO OBSERVED THAT THERE WAS NO EXTRA -ORDINARY DELAY IN LIFTING OF ATTACHMENTS OVER THE SAID BANK ACCOUNTS SO AS TO SAY THAT THE ASSESSEE WAS PUT UNDER PRESSURE TO THE EXTENT THAT HE WAS LEFT WITH NO OPTION BUT TO SURRENDER THE UNDISCLOSED INCOME OF R S.18 CRORES. IT IS ALSO PERTINENT TO NOTE HERE THAT THE DISCLOSURE PETITION REITERATING AND RECONFIRMING THE DISCLOSURE OF UNDISCLOSED INCOME O F RS.18 CRORES MADE DURING THE COURSE OF SEARCH WAS FILED BY THE ASSESS EE BEFORE THE DDIT (INVESTIGATION), UNIT-II(2), KOLKATA ON 15.12.2012 AND SINCE THE SAID DISCLOSURE WAS FILED AFTER THE REVOCATION OF ALL TH E BANK ACCOUNTS ATTACHMENTS, WE FIND MERIT IN THE CONTENTION RAISED BY THE LD. D.R. THAT ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 21 THE CASE NOW BEING MADE BY THE LD. COUNSEL FOR THE ASSESSEE OF COERCION AND PRESSURE ON THE BASIS OF THE SAID REVOCATION OR DERS IS ONLY AN AFTER- THOUGHT WHICH CANNOT BE ACCEPTED. WE ALSO FIND THAT THERE IS NO MATERIAL THAT IS BROUGHT ON RECORD BEFORE US TO SHOW ANY TYP E OF COERCION, PRESSURE, DURESS, ETC. DURING THE COURSE OF SEARCH AND SEIZURE ACTION. THERE ARE ALSO NO CIRCUMSTANCES THAT ARE SPECIFICAL LY BROUGHT TO OUR NOTICE WHICH CAN LEAD TO THE CONCLUSION THAT THERE WAS SUCH PRESSURE, DURESS OR COERCION COMPELLING THE ASSESSEE TO MAKE SURRENDER/DISCLOSURE OF UNDISCLOSED INCOME OF RS.18 CRORES. ON THE CONTR ARY, IN HIS SUBMISSIONS RECORDED UNDER SECTION 132(4), IT WAS R EITERATED BY THE ASSESSEE TIME AND AGAIN THAT THE DISCLOSURE OF THE SURRENDER OF RS.18 CRORES WAS BEING MADE BY HIM VOLUNTARILY WITHOUT TH ERE BEING ANY PRESSURE, DURESS OR COERCION. MOREOVER, THE SEARCH AND SEIZURE ACTION WAS COMMENCED ON 18.09.2012 WHILE THE STATEMENTS OF THE ASSESSEE DISCLOSING THE UNDISCLOSED INCOME WERE RECORDED ONL Y ON 10.10.2012 AND 08.11.2012. EVEN THE DISCLOSURE PETITION REITERATIN G AND RECONFIRMING THE DISCLOSURE OF UNDISCLOSED INCOME WAS FILED BY THE A SSESSEE BEFORE THE DDIT (INVESTIGATION), UNIT-II(2), KOLKATA ONLY ON 1 5.12.2012. KEEPING IN VIEW ALL THESE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND NO MERIT IN THE CONTENTION RAISED ON BEHALF OF THE ASSESSEE THAT TH E SURRENDER/DISCLOSURE OF UNDISCLOSED INCOME OF RS.18 CRORES WAS MADE UNDE R COERCION, DURESS OR PRESSURE AND IT WAS NOT A VOLUNTARY DISCLOSURE. 21. ANOTHER CONTENTION RAISED ON BEHALF OF THE ASSE SESE IS THAT THE RELEVANT LOOSE DOCUMENTS FOUND AND SEIZED DURING TH E COURSE OF SEARCH AND RELIED UPON BY THE AUTHORITIES BELOW TO CORROBO RATE THE STATEMENT OF THE ASSESSEE SURRENDERING UNDISCLOSED INCOME OF RS. 18 CRORES WERE RECOVERED FROM THE LOCKER OF THE ASSESESE MAINTAINE D WITH UNION BANK OF INDIA, NEW ALIPORE BRANCH, AND SINCE THE SAID BANK ACCOUNT WAS NOT OPERATIONAL FROM 17.10.2001 HAVING BEEN SEALED/SEIZ ED BY THE INCOME TAX DEPARTMENT IN THE EARLIER SEARCH OPERATION, THE ENTRIES FOUND RECORDED IN THE SAID SEIZED DOCUMENTS PERTAINED TO THE PERIOD PRIOR TO ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 22 17.10.2001 AND THE SAME CANNOT CORROBORATE THE STAT EMENT OF THE ASSESSEE SURRENDERING /DISCLOSING THE UNDISCLOSED I NCOME OF RS.18 CRORES. HE HAS CONTENDED THAT THERE IS THUS NOTHING TO CORROBORATE THE STATEMENT GIVEN BY THE ASSESSEE AND THE ADDITION MA DE MERELY ON THE BASIS OF THE STATEMENT IS NOT SUSTAINABLE. AFTER CO NSIDERING THE SUBMISSIONS MADE BY THE LD. D.R. ON THIS ASPECT OF THE MATTER AND CAREFULLY PERUSING THE RELEVANT MATERIAL PLACED ON RECORD, WE FIND THAT THERE ARE MANY DISCREPANCIES, DEFICIENCIES, ANOMALI ES AND INCONSISTENCIES. FIRST OF ALL, THERE IS NO EVIDENCE TO CONCLUSIVELY PROVE THAT THE RELEVANT BANK LOCKER WAS NOT OPERATED BY T HE ASSESSEE FROM 17.10.2001 AS CLAIMED. THE STAND TAKEN BY THE BANK IN THIS REGARD INITIALLY WAS FOUND TO BE UNRELIABLE AND THE POSITI ON THAT FINALLY EMERGED IN THE ENQUIRY CONDUCTED BY THE ASSESSING OFFICER W AS THAT IN THE ABSENCE OF THE RELEVANT BANK LOCKER OPERATIONAL REGISTER AV AILABLE FOR THE PERIOD PRIOR TO 28.02.2011, EVEN THE BANK AUTHORITIES WERE UNABLE TO GIVE ANY CONFIRMATION IN SUPPORT OF THE ASSESSEES STATEMENT THAT THE BANK LOCKER WAS NOT OPERATED BY HIM FROM 17.10.2001. IT IS ALSO NOT CLEAR THAT IF THE SAID BANK LOCKER WAS SEIZED/SEALED BY THE INCOME TA X DEPARTMENT ON 17.10.2001 DURING THE COURSE OF SEARCH CONDUCTED EA RLIER, WHETHER THE SAME WAS BROKEN OPEN OR NOT. IF AT ALL IT WAS BROKE N OPEN AT THAT TIME, WHY THE DIARY AND OTHER LOOSE DOCUMENTS LYING THERE IN WERE NOT SEIZED AND WHY THE PROHIBITORY ORDER WAS NOT REVOKED. NOTH ING HAS ALSO BEEN BROUGHT ON RECORD TO SHOW AS TO WHETHER THE ASSESSM ENTS WERE COMPLETED IN PURSUANCE OF THE SEARCH AND SEIZURE OPERATION CO NDUCTED IN THE YEAR 2001 AS CLAIMED AND HOW THE MATERIAL SEIZED, IF ANY , FROM THE LOCKER OF THE ASSESSEE WAS DEALT IN THE SAID ASSESSMENT. IT I S ALSO NOT CLEAR THAT WHEN THE BANK LOCKER OF THE ASSESSEE WAS SEALED/SEI ZED ON 17.10.2001 AS CLAIMED AND NO PROHIBITORY ORDER WAS ISSUED, HOW TH E INVESTIGATION TEAM, WHICH BROKE OPEN THE LOCKER ON 08.11.2012, DI D NOT REALISE THIS POSITION. IT APPEARS THAT THE ASSESSEE WAS PRESENT WHEN THE BANK LOCKER WAS BROKEN OPEN ON 08.11.2010 BUT HE ALSO DID NOT P OINT OUT THIS POSITION. ON THE CONTRARY, IN HIS STATEMENT RECORDE D UNDER SECTION 132(4) ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 23 ON 08.11.2012, HE ACCEPTED THAT THE ENTRIES FOUND R ECORDED IN THE DOCUMENTS SEIZED FROM THE BANK LOCKER WERE HIS UNDI SCLOSED TRANSACTIONS AND RECONFIRMED THAT THE DISCLOSURE OF RS.18 CRORES ALREADY MADE BY HIM WAS BASED ON THE SAID DOCUMENTS. 22. IN SUPPORT OF THE ASSESSEES CLAIM THAT HIS BAN K ACCOUNT WITH UNION BANK OF INDIA, NEW ALIPORE BRANCH WAS NOT OPERATION AL FROM 17.10.2001 TO 08.11.2012, THE LD. COUNSEL FOR THE ASSESSEE HAS RELIED ON THE EXTRACT OF SAFE DEPOSIT LOCKER LEDGER OF THE BANK, A COPY OF W HICH IS PLACED AT PAGE NO. 70 OF THE PAPER BOOK. AS MENTIONED IN THE SAID LEDGER, STOP OPERATION ORDER WAS RECEIVED BY THE BANK FROM THE INCOME TAX DEPARTMENT ON 17.10.2001 AT 11-30 A.M. IN RESPECT OF THE ASSESSEE S LOCKER. THEREAFTER THERE IS A MENTION OF ANOTHER INCOME TAX PROHIBITOR Y ORDER SERVED ON 18.09.2012, WHICH IS STATED TO BE REVOKED ON 08.11. 2012 AFTER BREAKING OPEN THE LOCKER BY THE INCOME TAX AUTHORITY ON THE SAID DATE, I.E. 08.11.2012. THERE IS, HOWEVER, NO MENTION ABOUT THE REVOCATION OF THE PROHIBITORY ORDER EARLIER ISSUED BY THE INCOME TAX DEPARTMENT ON 17.10.2001 IN THE SAID LEDGER AND RELYING ON THE SA ME, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE ASSESSEE WAS NO T IN A POSITION TO OPERATE THE LOCKER RIGHT FROM 17.10.2001. IN OUR OP INION, THE EXTRACT OF THE SAFE DEPOSIT LOCKER LEDGER BY ITSELF IS NOT CON CLUSIVE TO ARRIVE AT A CONCLUSION THAT THE BANK ACCOUNT OF THE ASSESSEE WA S NOT OPERATIONAL DURING THE RELEVANT PERIOD AS CLAIMED BY THE ASSESS EE KEEPING IN VIEW THE VARIOUS ANOMALIES, DISCREPANCIES AND INCONSISTENCIE S AS ALREADY POINTED OUT BY US IN THE PRECEDING PARAGRAPH IN THIS ORDER. MOREOVER, THE BANK LOCKER OPERATIONAL REGISTER FOR THE RELEVANT PERIOD IS FOUND TO BE UN- TRACEABLE IN THE BANK AND IN THE ABSENCE OF THE SAM E, THE CLAIM OF THE ASSESSEE CANNOT BE ACCEPTED MERELY ON THE BASIS OF THE EXTRACT OF THE SAFE DEPOSIT LOCKER LEDGER ALONE. AS ALREADY MENTIONED B Y US WHILE POINTING OUT THE ANOMALIES, DISCREPANCIES AND INCONSISTENCIE S IN THIS CLAIM OF THE ASSESSEE, THERE ARE CERTAIN OTHER ASPECTS WHICH NEE D VERIFICATION AND THIS MATTER IS REQUIRED TO BE FURTHER EXAMINED/VERIFIED. WE, THEREFORE, RESTORE ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 24 THIS MATTER TO THE FILE OF THE ASSESSING OFFICER FO R VERIFYING THE CLAIM OF THE ASSESSEE THAT HIS BANK LOCKER WAS NOT OPERATION AL RIGHT FROM 17.10.2001 SINCE THE PROHIBITORY ORDER ISSUED ON TH E SAID DATE DURING THE EARLIER SEARCH WAS IN FORCE FROM THE RELEVANT RECOR D, WHICH IS AVAILABLE WITH THE DEPARTMENT IN RESPECT OF THE EARLIER SEARC H CONDUCTED IN THE ASSESSEES CASE IN THE YEAR 2001. THE ASSESSING OFF ICER SHALL VERIFY THE CLAIM OF THE ASSESSEE FROM THE SAID RECORD AND ALSO GIVE PROPER AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO SUPPORT A ND SUBSTANTIATE HIS CLAIM BY FILING THE RELEVANT ASSESSMENT ORDERS PASS ED IN PURSUANCE OF THE EARLIER SEARCH AS WELL AS ANY OTHER DOCUMENTARY EVI DENCE AVAILABLE WITH THE ASSESSEE. IF IT IS FOUND ON SUCH VERIFICATION B Y THE ASSESSING OFFICER THAT THE BANK LOCKER OF THE ASSESSEE WAS NOT OPERAT IONAL FROM 17.10.2001, IT WOULD FOLLOW THAT THE ENTRIES FOUND RECORDED IN THE LOOSE DOCUMENTS SEIZED FROM THE BANK LOCKER OF THE ASSESSEE PERTAIN ED TO THE PERIOD PRIOR TO 17.10.2001 AND THERE BEING NO OTHER EVIDENCE TO CORROBORATE THE STATEMENT MADE BY THE ASSESSEE SURRENDERING THE UND ISCLOSED INCOME OF RS.18 CRORES, THE ADDITION MADE ON THIS ISSUE CANNO T BE SUSTAINED. ON THE OTHER HAND, IF IT IS FOUND BY THE ASSESSING OFFICER ON VERIFICATION THAT THE PROHIBITORY ORDER ISSUED ON 17.10.2001 WAS REVOKED SUBSEQUENTLY AND THE ASSESSEE WAS IN A POSITION TO OPERATE HIS BANK ACCOUNT AFTER SUCH REVOCATION, THE ASSESSING OFFICER SHALL EXAMINE THE ENTRIES FOUND RECORDED IN THE LOOSE DOCUMENTS SEIZED FROM BANK LOCKER OF T HE ASSESSEE TO ASCERTAIN THE EXACT NATURE OF THE TRANSACTIONS REFL ECTED THEREIN AND IF HE FINDS AFTER HEARING THE SIDE OF THE ASSESSEE THAT T HE SAID TRANSACTIONS REPRESENT UNDISCLOSED INCOME OF THE ASSESSEE AND CO RROBORATE THE STATEMENT MADE BY THE ASSESSEE SURRENDERING /DISCLO SING THE UNDISCLOSED INCOME OF RS.18 CRORES, THE ASSESSING OFFICER SHALL TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW. 23. AS REGARDS THE ISSUE OF APPLICABILITY OF SECTIO N 69A OF THE ACT IN THE CASE OF THE ASSESSEE AS RAISED DURING THE COURSE OF HEARING BEFORE US, IT IS OBSERVED THAT A SIMILAR CONTROVERSY WAS INVOLVED IN THE CASE OF CIT VS.- ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 25 AAPKI MARKETING PVT. LTD. (2013) 86 CCH 0138 (DELHI ) AND AFTER TAKING NOTE OF THE FACT THAT THE MATTER WAS REMANDED BY TH E TRIBUNAL TO THE ASSESSING OFFICER, IT WAS HELD BY THE HONBLE DELHI HIGH COURT THAT THE ASSESSING OFFICER COULD EXAMINE IF SECTION 69 WAS N OT APPLICABLE AND WHETHER THE ADDITION COULD BE MADE UNDER ANY OTHER PROVISIONS OF THE ACT. TO THE SIMILAR EFFECT IS THE DECISION OF THE H ONBLE HIGH COURT OF CHHATRISGARH IN THE CASE DHANUSH GENERAL STORES VS .- CIT [339 ITR 651], WHEREIN IT WAS HELD THAT ON THE BASIS OF THE WRONG PROVISION APPLIED IN THE ASSESSMENT ORDER, THE SURRENDERED INCOME CANNOT BE HELD TO BE NOT AN INCOME. KEEPING IN VIEW THE RATIO OF THESE JUDICIAL PRONOUNCEMENTS AND CONSIDERING THAT THE ISSUE RELATING TO THE ADDITION MADE ON ACCOUNT OF INCOME SURRENDERED BY THE ASSESSEE DURING THE COURS E OF SEARCH AS INVOLVED IN THE PRESENT CASE IS REMANDED BY US TO T HE ASSESSING OFFICER, INTER ALIA, FOR ASCERTAINING THE EXACT NATURE OF TRANSACTIONS REFLECTED IN THE ENTRIES FOUND RECORDED IN THE RELEVANT SEIZED D OCUMENTS, WE DIRECT THE ASSESSING OFFICER TO CONSIDER THE ISSUE OF APPL ICABILITY OF THE EXACT PROVISIONS OF THE ACT FOR MAKING ADDITION, IF ANY, TO THE TOTAL INCOME OF THE ASSESSEE ON THE ISSUE REMANDED. 24. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TR EATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 15, 201 9. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE -PRESIDENT (KZ) KOLKATA, THE 15 TH DAY OF MARCH, 2019 COPIES TO : (1) SHRI SAJJAN KUMAR AGARWAL, 49A & 50 TOLLYGUNGE CIRCULAR ROAD, KOLKATA-700 053 (2) DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3(4), KOLKATA, AAYAKAR BHAWAN POORVA, 110, SHANTIPALLY, E.M. BYE PASS, KOLKATA-700 107 ITA NO. 1458/KOL/2018 A.Y. 2013 -2014 SAJJAN KUMAR AGARWAL 26 (3) COMMISSIONER OF INCOME TAX (APPEALS)-21, KOLK ATA, (4) COMMISSIONER OF INCOME TAX , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.