Rumneek Bawa, New Delhi V. ACIT, New Delhi

ITA 3083/DEL/2012

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3535 (ITAT-DELHI)
• Duration Of Justice: 6 year(s) 8 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 22-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 18-06-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SULEKHA VERMA
• Keywords: Search and seizure; Salary income; Loose papers; Retrospective amendment; Question of law; Retraction; Revised return; TDS
• Section: 271(1)(c); 143(3); 133A; 153A; 132

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: F, NEW DELHI BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 3083/DEL/2012 ASSESSMENT YEAR: 2009-10 RUMNEEK BAWA, VS. ACIT, CIRCLE-10(1), C/O SANJAY & SANJAY, NEW DELHI CHARTERED ACCOUNTANTS, A1-A/13B, JANAKPURI, NEW DELHI 110 058 (PAN: AAJPB2393Q) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. SANJAY KUMAR, CA & SH. AK ARSH GARG, ADV. REVENUE BY : SMT. SULEKHA VERMA, CIT(DR) ORDER PER H.S. SIDHU, JM THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDE R DATED 06.3.2012 OF THE LD. CIT(A)-XIII, NEW DELHI PERTAIN ING TO ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS:- I) BECAUSE THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN SUSTAINING THE ADDITION OF RS. 24,25,000 ON ERRONEOUS ASSUMPTION OF FACTS AND LAW. II) BECAUSE THE ADDITION SUSTAINED BY THE LD. CIT(A) IS WHOLLY ERRONEOUS AS NO MATCHING ASSETS OR CASH WAS FOUND FROM THE POSSESSION OF THE APPELLANT. III) BECAUSE THE INCOME SHOWN IN THE RETURN FILED FULLY MATCHES WITH THE APPOINTMENT LETTER FOUND 2 AND SEIZED DURING THE COURSE OF SEARCH UNDER SECTION 132(1) FROM THE OFFICE OF EMPLOYER OF THE APPELLANT NAMELY M/S ZOOM DEVELOPERS (P) LTD. IV) THE APPELLANT CRAVES LAVE TO AMEND, MODIFY, ALTER, ADD OR FOREGO ANY GROUND OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. 2. THE BRIEF FACTS OF THE CASE ARE THAT IN THIS CA SE SEARCH U/S. 132A OF THE INCOME TAX ACT, 1961 (IN SHORT ACT) WAS CONDU CTED ON 04.02.2009. DURING THE COURSE OF SEARCH VARIOUS INCRIMINATING D OCUMENTS WERE FOUND AT THE OFFICE AS WELL AS RESIDENTIAL PREMISES OF TH E ASSESSEE AND SEIZED. IN THIS CASE ORIGINAL RETURN OF INCOME WAS FILED O N 15.12.2010 DECLARING AN INCOME OF RS. 54,56,222/- AND REVISED RETURN OF INCOME WAS FILED ON 16.12.2010 DECLARING AN INCOME OF RS. 80,76,615/-. DURING THE COURSE OF SEARCH, LOOSE PAPER FILED ANNEXURE A-27 WAS SEIZ ED FROM THE OFFICE PREMISES OF M/S ZOOM DEVELOPERS PVT. LTD. AS PER PA GE 29 OF THIS FILE PAYMENT TO THE TUNE OF RS. 24,65,000/- WERE MADE IN CASH TO THE ASSESSEE DURING THE FY 2008-09. THESE PAYMENTS WERE NOT FOUND RECORDED IN THE BOOKS OF M/S ZOOM DEVELOPERS PVT. LTD. AS WELL AS IN THE BOOKS OF THE ASSESSEE. THE ASSESSEE HAS SPECIFICA LLY ASKED DURING THE COURSE OF RECORDING OF STATEMENTS ON 05.2.2009 ABOU T THE SOURCE OF THIS CASH PAYMENT AND ULTIMATE USE OF THE SAME VIDE QUES TION NO. 22 ND AND 23 RD OF THE STATEMENTS. HOWEVER, THE ASSESSEE FAILED TO GIVE ANY REPLY ABOUT THE CASH RECEIVED FROM THE COMPANY ON VARIOUS DATES. THEREFORE, AO TREATED THE ENTIRE CASH RECEIVED OF RS. 24,65,00 0/- AS UNEXPLAINED INCOME OF THE ASSESSEE AND ADDED THE SAME TO THE TO TAL INCOME AND 3 ASSESSED THE INCOME OF THE ASSESSEE AT RS. 1,05,41, 620/- U/S. 153A/143(3) OF THE ACT VIDE ORDER DATED 27.12.2010. AGAINST THE ASSESSMENT ORDER, ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE HIS IMPUGNED ORDER DATED 06.3.2018 HAS PARTLY ALLOWED THE APPEAL OF THE ASSESSEE BY CONFIRMING THE ADDITION IN DISPUTE. AGG RIEVED WITH THE IMPUGNED ORDER, ASSESSEE IS IN APPEAL BEFORE THE TR IBUNAL. 3. DURING THE HEARING, LD. COUNSEL FOR THE ASSESSEE HAS STATED THAT LD. CIT(A) HAS WRONGLY SUSTAINED THE ADDITION OF RS. 24 ,25,000/- ON ERRONEOUS ASSUMPTION OF FACTS AND LAW. HE FURTHER SUBMITTED THAT IN THIS CASE NO MATCHING ASSETS OR CASH WAS FOUND FROM THE POSSESSION OF THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT INCOME SHOW N IN THE RETURN FILED FULLY MATCHES WITH THE APPOINTMENT LETTER FOUND AN D SEIZED DURING THE COURSE OF SEARCH UND SECTION 132(1) OF THE ACT FROM THE OFFICE OF EMPLOYER OF THE ASSESSEE NAMELY M/S ZOOM DEVELOPERS (P) LTD. IT WAS FURTHER SUBMITTED THAT THE DOCUMENT IMPOUNDED FROM THE PREM ISES OF THE EMPLOYER OF THE ASSESSEE CLEARLY STATES THAT THE SU M OF RS. 10 LAKHS WAS PAID FOR IRCTC (INDIAN RAILWAY CATERING AND TRAVEL CORPORATION)!.E. FOR THE PURPOSES WHERE THE COMPANYS PROJECTS WERE GOIN G ON AND NOWHERE IN THE SAID ENTRY AT SI. NO. 6 OR OTHERWISE NAME OF THE APPELLANT APPEARS. THEREFORE, ID. CIT(A) WAS WHOLLY UNJUSTIFIED TO ASS UME THAT THE SUM IN QUESTION HAD BEEN PAID TO THE APPELLANT AND THAT TO O BY WAY OF SALARY TAXABLE IN HIS HANDS, SIMPLY ON THE GROUND THAT APP ELLANT-ASSESSEE HAS NOT STATED THAT WHERE AND HOW THIS AMOUNT WAS UTILI ZED. HE FURTHER SUBMITTED THAT LD. CIT(A) FAILED TO APPRECIATE AND MISSED TO NOTE THAT 4 PAGE 29 OF ANNEXURE A-27 WAS NOT IMPOUNDED OR FOUND FROM THE POSSESSION OF THE ASSESSEE BUT FROM THE BUSINESS PR EMISES OF HIS EMPLOYER AND NO CORROBORATIVE EVIDENCE SO AS TO ALL EGE THAT SUMS FOUND NOTED IN THE LOOSE PAPERS IMPOUNDED WERE RECEIVED B Y THE APPELLANT- ASSESSEE AND THE SAME WERE RECEIVED BY HIM AGAINST HIS SALARY EMOLUMENTS OR FOR PERSONAL BENEFIT OF THE ASSESSEE AND THE SAID SUM OF RS. 10.00 LAKHS COULD NOT HAVE BEEN ADDED TO THE IN COME OF THE ASSESSEE/APPELLANT EVEN BY RAISING PRESUMPTION. IN SPITE OF SEARCH ON THE ASSESSEE, NO MATCHING UNDISCLOSED ASSET OR CASH WAS FOUND FROM THE POSSESSION OF THE ASSESSEE. IT WAS FURTHER INF ORMED THAT SIMILARLY, THE TRANSACTION APPEARING AT SI. NO. 1, FOR RS. 2,50,00 0/- IS DATED 19.03.2008, THEREFORE, NO ADDITION FOR THE SAME CAN BE MAD IN THE IMPUGNED ASSESSMENT YEAR I.E. 2009-10, MOREOVER, IT SHOWS NON- APPLICATION OF MIND TO THE FACTS OF THE CASE. SO FAR AS THE VARIATION IN THE RETURN FILED ON 15.12.2010 AND REVISING THE SAM E ON THE VERY NEXT DATE I.E. ON 16.12.2010 IS CONCERNED, IT IS SUBMIT TED THE VARIATION IS MAINLY DUE TO THE FACT THAT IN THE RETURN FILED ON 15.12.2010, ONLY NET SALARY RECEIVED I.E. NET OF TDS WAS SHOWN [AS FORM 16 FOR THE TAX DEDUCTED AT SOURCE FROM SALARY WAS NOT RECEIVED FRO M THE EMPLOYER], HOWEVER ON REALIZING THE MISTAKE, REVISED RETURN WA S FILED IMMEDIATELY. THEREFORE, ADVERSE INFERENCE DRAWN BY THE LD. CIT(A ) ON THIS SCORE IS UNWARRANTED. FURTHER, IT WAS SUBMITTED THAT IN THE PRESENT CASE AS THE SEARCH ON THE ASSESSEE TOOK PLACE ON 04.02.2009 WHI CH FELL IN THE PREVIOUS YEAR 2008-09. THEREFORE, ASSESSMENT YEAR 2 009-10 (YEAR UNDER 5 APPEAL HERE) IS NOT COVERED BY THE PROVISION CONTAI NED IN SECTION 153A THEREFORE, ASSESSMENT MADE BY INVOKING THE PROVISIO N OF SECTION 153A FOR THE ASSESSMENT YEAR 2009-10 IS NOT VALID AND VOID A B INITIO. IN SUPPORT OF HIS CONTENTION, HE FILED A PAPER BOOK CONTAINING P AGES 1-42 IN WHICH HE HAS ATTACHED THE COPY OF PANCHNAMA DRAWN AT HIS RES IDENCE 3, AVALON APARTMENT, MEHRAULI GURGAON ROAD, NEW DELHI IN THE NAME OF SHRI RUMNEEK BAWA, PRESIDENT AND CEO ZOOM DEVELOPERS DA TED 4.2.2009 INCLUDING ANNEXURE A; ANNEXURE O; ANNEXURE 2 TO 5; COPY OF PANCHNAMA OF LOCKER NO. 57, AT SOUTH INDIAN BANK, B-9, VASANT KUNJ, NEW DELHI DATED 13.2.2009 (ANNEXURE 2, INVENTORY OF JEWELLERY RS. 4,54,350/-); COPY OF PANCHANAMA OF LOCKER NO. 47 AT P& S BANK RA JINDER PLACE, NEW DELHI DATED 13.2.2009 (FOUND VACANT); STATEMENT OF SH. RUMNEEK BAWAN SON OF SH. SS BAWA U/S. 132(4)/133A ON OATH ON 4/5. 2.2009 AT THAPAR FARMS, BEHIND D-3, POCKET, SHANTIKUNJ, NEW DELHI IN THE CASE OF M/S ZOOM DEVELOPERS PVT. LTD.; ASSESSING OFFICERS QUES TIONNAIRE DATED 9.11.2010; ACK. FOR FILING ITR FOR AY 2009-10 DATED 15.12.2010; ACK. FOR FILING ITR FOR AY 2009-10 DATED 16.12.2010; ASSESSE ES REPLY DATED 11.12.2010; ASSESSEES REPLY DATED 16.12.2010 ALONG WITH INCREMENT LETTER DATED 30.11.2008, AS WAS RECEIVED FROM THE E MPLOYER I.E. M/S ZOOM DEVELOPERS PVT. LTD. AND WRITTEN SUBMISSION D ATED 23.2.2012 AS WERE DURING HEARING BEFORE THE LD. CIT(A). HE ALSO FILED THE COPY OF SYNOPSIS IN SUPPORT OF HIS CONTENTION, WHICH ARE REPRODUCED AS UNDER:- PRESENT APPEAL IS AGAINST THE ASSESSMENT FOR THE SEARCH YEAR FRAMED UNDER SECTION 153A/143(3) OF 6 THE IT ACT, WHEREIN ADDITION OF RS. 24,65,000 WAS MADE BY THE AO ON ACCOUNT OF UNDISCLOSED INCOME FROM SALARY, OUT OF WHICH RS. 24,25,000 HAS BEEN SUSTAINED BY THE CIT(A). FACTS: 2. THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM SALARY MAINLY. DURING THE YEAR UNDER APPEAL HE WAS UNDER THE EMPLOYMENT OF M/S ZOOM DEVELOPERS PVT. LTD. (A COMPANY ENGAGED IN THE DEVELOPMENT OF REAL ESTATE), IN THE CAPACITY OF CEO (CHIEF EXECUTIVE OFFICER) AT THEIR OFFICE AT THAPAR FARMS, BEHIND D-3 POCKET, SHANTIKUNJ, NEW DELHI. 3. A SEARCH AND SEIZURE ACTION U/S 132 TOOK PLACE ON 04.02.2009 ON M/S ZOOM DEVELOPERS PVT. LTD. AND OTHER CONCERNS OF THE GROUP AT INDORE AND OTHER PLACES AND ALSO U/S 132A AT THE RESIDENCE OF THE APPELLANT AT 3, AVALON APARTMENT, MEHRAULI GURGAON ROAD, NEW DELHI. 4. IN THE PANCHNAMAS DRAWN AT HIS RESIDENCE AND TWO LOCKERS, NO UNACCOUNTED CASH, BANK ACCOUNT, ASSETS OR INCRIMINATING MATERIAL OR 7 DOCUMENT WAS FOUND AND ALL HIS AFFAIRS WERE FOUND TO BE IN ORDER. 5. FURTHER, THE VALUE OF ASSETS FOUND AND INVENTORIED IN THE THREE PANCHNAMAS DRAWN AT HIS RESIDENCE AND LOCKERS WAS MERELY RS. 7,42,175/-, MADE UP AS UNDER: S. NO. PARTICULARS AMOUNT (I) CASH FOUND BUT NOT SEIZED (ANN.-2 AT PG. 7 OF P B) 31,000 (II) JEWELLERY - AT RESIDENCE (ANN.-3 AT PG. 8 OF P B) 79,825 (III) HOUSEHOLD GOODS- 9 ITEMS (ANN.-5 AT PG. 10 OF PB) 1,77,000 (IV) JEWELLERY IN LOCKER (ANN.-2 AT PG. 15 OF PB) 4,54,350 TOTAL RS. 7,42,175 6. SIMULTANEOUSLY ON 04.02.2009 ITSELF, SURVEY UNDER SECTION 133A WAS CONDUCTED IN THE OFFICE OF M/S ZOOM DEVELOPERS PVT. LTD. AT THAPAR FARMS, BEHIND D-3 POCKET, SHANTIKUNJ, NEW DELHI AND STATEMENT OF APPELLANT-ASSESSEE WAS RECORDED AS CEO, COPY APPEARING AT PAGE 20-30 OF PB, WHEREIN, IN RESPONSE TO Q. NO.3 HE STATED THAT HIS EMOLUMENTS ARE RS. 1.31 CRORE PER ANNUM (PAGE 21 OF PB). FURTHER, IN RESPONSE TO Q. NO. 22 8 PERTAINING TO VARIOUS PAYMENTS TO EMPLOYEES (INCLUDING THE NAME OF THE APPELLANT) AND OTHERS, HE STATED THAT ACCOUNTS TEAM WILL CLARIFY IT (PAGE 29 OF PB). AOS ORDER 7. DURING ASSESSMENT PROCEEDINGS, ALL THE REQUISITE INFORMATION AND EXPLANATION, AS WERE CALLED FOR BY THE ASSESSING OFFICER WAS FURNISHED AND IN RELATION TO THE STATEMENT ON 04.02.2009 ABOUT HIS SALARY OF RS.1.31 CRORE PER ANNUM, IT WAS STATED AND CLARIFIED VIDE REPLY DATED 16.12.2010 (COPY AT PAGE 38-39 OF PB) AS UNDER: REPLY 1 THE ASSESSEE, IN THE MONTH OF NOVEMBER 2008, GOT AN INCREMENT FROM THE COMPANY ACCORDING TO WHICH HIS SALARY AMOUNTED TO RS. 1.31 CRORE PER ANNUM. THIS INCREMENT LETTER HAS ALSO BEEN RECOVERED DURING THE RAID. THE SAME HAS BEEN STATED BY THE ASSESSEE. HOWEVER, BY THE END OF THE YEAR, THE ASSESSEE RECEIVED A TOTAL SALARY OF RS. 80.59 LAKHS ONLY. 9 8. HOWEVER, ASSESSING OFFICER FOUND THE AFORESAID EXPLANATION TO BE NOT TENABLE, SOLELY FOR THE REASON THAT THE ASSESSEE HIMSELF ADMITTED HIS ANNUAL SALARY IS RS. 1.31 CRORE AND FINALLY IN PARA 4.2 OF THE ASSESSMENT ORDER OBSERVED AND HELD AS UNDER: 4.2 THE REPLY FURNISHED BY THE ASSESSEE HAS BEEN CONSIDERED BUT NOT FOUND TO BE TENABLE IN VIEW OF THE FACT THAT THE ASSESSEE HIMSELF ACCEPTED THAT HIS ANNUAL SALARY INCOME WAS RS. 1.31 CRS. INSTEAD OF RS. 80.59 CRS. AS DECLARED BY THE ASSESSEE. THIS FACT ALSO HOLD GROUNDS ON THE FACT THAT THE ASSESSEE HAS GOT AN INCREMENT FROM THE COMPANY ACCORDING TO WHICH HIS SALARY AMOUNTED TO RS. 1.31 CRS. AS STATED BY THE ASSESSEE, THIS LETTER WAS ALSO RECOVERED FROM HIS POSSESSION. SO THIS FACT CANNOT BE DENIED THAT THE ASSESSEE HAS TRIED TO CONCEAL HIS INCOME JUST TO AVOID TAX LIABILITY. IN VIEW OF THE ABOVE IT IS HELD THAT THE ABOVE SAID CASH AMOUNTS WERE PAID BY THE COMPANY TO THE ASSESSEE IN LIEU OF SALARY IN CASH WHICH IS NOT BEING REFLECTED INTO THE 10 SALARY DETAILS OF THE ASSESSEE. THE SAME IS TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION. IN VIEW OF ABOVE, AN ADDITION OF RS. 24,65,000/- WHICH IS DIFFERENCE OF SALARY DECLARED AND ACCEPTED BY THE ASSESSEE. PENALTY PROCEEDING UNDER SECTION 271(1)(C) OF THE I.T. ACT, ARE BEING INITIATED SEPARATELY FOR CONCEALMENT OF INCOME. (ADDITION: RS. 24,65,000/-) 9. IN THIS MANNER, FINALLY ASSESSMENT WAS FRAMED VIDE ORDER DATED 27.12.2010UNDER SECTION 153A/ 143(3) OF THE INCOME TAX ACT, 1961. CIT(A)S ORDER 10. THE FINDING OF THE ID. CIT(A) ARE CONTAINED IN PARA 7.3 (PAGE 6-8) OF HIS ORDER, WHEREIN FIRST HE NOTED DOWN THE NARRATION OF ENTRIES AS APPEARING IN Q. NO. 22 OF THE STATEMENT RECORDED BY THE DIT (INV.), READING AS UNDER: (C) PAGE-29 OF ANNEX : A-27 11 (1) PAID TO MR. R. BAWA ON 19.03.08 = RS. 2,50,000/ - (2) PAID TO MR. R. BAWA ON 30.07.08 = RS. 5,00,000/ - (3) PAID TO MR. R. BAWA ON 30.07.08 = RS. 3,00,000/ - (4) PAID TO MR. VIKASH AGGARWAL ON 31.07.08 = RS. 4 0,000/- (5) PAID TO MR. R. BAWA ON 07.08.08 = RS. 1,00,000/ - (6) PAID FOR IRCTC PURPOSE ON 26.08.2008=RS. 10,00, 000/- (7) PAID TO MR. BAWA ON 26.08.08 = RS. 2,75,000/- TOTAL = RS. 24,65,000/- AND THEN HELD THAT- (I) IN RELATION TO ENTRY AT SI. NO. 4 ABOVE, FOR RS . 40,000/- DATED 31.07.2008, ID. CIT(A) ALLOWED RELIEF BY HOLD ING AS UNDER: IT IS TRUE THAT ENTRY OF RS. 40,000/- DATED 31.07.2008 HAS BEEN RECORDED IN THE NAME OF SH. VIKAS AGGARWAL AND HE WAS PAID RS. 40,000/-, THEREFORE, THIS AMOUNT CANNOT BE ADDED IN THE HANDS OF THE APPELLANT. (II) IN RELATION TO ENTRY AT S. NO. 6 ABOVE, FOR RS . 10,00,000/- DATED 26.08.2008, LD. CIT(A) REJECTED THE APPELLANT CONTENTION BY HOLDING 12 THE AMOUNT OF RS. 10,00,000/- WAS RECEIVED FOR IRCTC PURPOSES BY THE APPELLANT, HOWEVER WHERE AND HOW THIS AMOUNT WAS UTILIZED, THE APPELLANT DID NOT FILE ANY RELY FOR THE SAME. (III) SO ALSO ALL OTHER PLEADINGS OF THE APPELLANT WERE REJECTED. APPELLANTS SUBMISSION 11. THE DOCUMENT IMPOUNDED FROM THE PREMISES OF THE EMPLOYER OF THE APPELLANT CLEARLY STATES THAT THE SUM OF RS. 10 LAKHS WAS PAID FOR IRCTC (INDIAN RAILWAY CATERING AND TRAVEL CORPORATION) I.E. FOR THE PURPOSES WHERE THE COMPANYS PROJECTS WERE GOING ON AND NOWHERE IN THE SAID ENTRY AT SI. NO. 6 OR OTHERWISE NAME OF THE APPELLANT APPEARS. THEREFORE, ID. CIT(A) WAS WHOLLY UNJUSTIFIED TO ASSUME THAT THE SUM IN QUESTION HAD BEEN PAID TO THE APPELLANT AND THAT TOO BY WAY OF SALARY TAXABLE IN HIS HANDS, SIMPLY ON THE GROUND THAT APPELLANT-ASSESSEE HAS NOT STATED THAT WHERE AND HOW THIS AMOUNT WAS UTILIZED. 12. THE ID. CIT(A) FAILED TO APPRECIATE AND MISSED TO NOTE THAT PAGE 29 OF ANNEXURE A-27 13 WAS NOT IMPOUNDED OR FOUND FROM THE POSSESSION OF THE ASSESSEE BUT FROM THE BUSINESS PREMISES OF HIS EMPLOYER AND NO CORROBORATIVE EVIDENCE SO AS TO ALLEGE THAT SUMS FOUND NOTED IN THE LOOSE PAPERS IMPOUNDED WERE RECEIVED BY THE APPELLANT-ASSESSEE AND THE SAME WERE RECEIVED BY HIM AGAINST HIS SALARY EMOLUMENTS OR FOR PERSONAL BENEFIT OF THE ASSESSEE AND THE SAID SUM OF RS. 10.00 LAKHS COULD NOT HAVE BEEN ADDED TO THE INCOME OF THE ASSESSEE/APPELLANT EVEN BY RAISING PRESUMPTION. 13. IN SPITE OF SEARCH ON THE ASSESSEE, NO MATCHING UNDISCLOSED ASSET OR CASH WAS FOUND FROM THE POSSESSION OF THE ASSESSEE. 14. SIMILARLY, THE TRANSACTION APPEARING AT SI. NO. 1, FOR RS. 2,50,000/- IS DATED 19.03.2008, THEREFORE, NO ADDITION FOR THE SAME CAN BE MAD IN THE IMPUGNED ASSESSMENT YEAR I.E. 2009-10, MOREOVER, IT SHOWS NON-APPLICATION OF MIND TO THE FACTS OF THE CASE. 15. SO FAR AS THE VARIATION IN THE RETURN FILED ON 15.12.2010 AND REVISING THE SAME ON THE VERY NEXT DATE I.E. ON 16.12.2010 IS CONCERNED, IT IS 14 SUBMITTED THE VARIATION IS MAINLY DUE TO THE FACT THAT IN THE RETURN FILED ON 15.12.2010, ONLY NET SALARY RECEIVED I.E. NET OF TDS WAS SHOWN [AS FORM 16 FOR THE TAX DEDUCTED AT SOURCE FROM SALARY WAS NOT RECEIVED FROM THE EMPLOYER], HOWEVER ON REALIZING THE MISTAKE, REVISED RETURN WAS FILED IMMEDIATELY. THEREFORE, ADVERSE INFERENCE DRAWN BY THE LD. CIT(A) ON THIS SCORE IS UNWARRANTED. 16. FURTHER, IT IS SUBMITTED THAT IN THE PRESENT CASE AS THE SEARCH ON THE ASSESSEE TOOK PLACE ON 04.02.2009 WHICH FELL IN THE PREVIOUS YEAR 2008- 09. THEREFORE, ASSESSMENT YEAR 2009-10 (YEAR UNDER APPEAL HERE) IS NOT COVERED BY THE PROVISION CONTAINED IN SECTION 153A THEREFORE, ASSESSMENT MADE BY INVOKING THE PROVISION OF SECTION 153A FOR THE ASSESSMENT YEAR 2009-10 IS NOT VALID AND VOID AB INITIO. 17. RELIANCE IS PLACED ON THE DECISION OF A.N. RANGASWAMY VS. ACIT (2010) 134 TTJ 723 (BANGALORE-TRIB) WHEREIN, IT WAS HELD AS UNDER: 8. ................ACCORDING TO CL. (B) OF SUB-S. ( 1) OF THE SECTION, THE AO IS EMPOWERED TO ASSESS OR 15 REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SEARCH IS CONDUCTED. THE SEARCH WAS CONDUCTED ON 4TH JULY, 2003 WHICH FALLS IN THE ACCOUNTING YEAR RELEVANT TO THE ASST. YR. 2004-05. THE ASST, YR. 2004-05 IS THUS OUTSIDE THE PURVIEW OF S. 153A BECAUSE THE SECTION DOES NOT SAY THAT THE ASSESSMENT YEAR RELEVANT TO THE ACCOUNTING YEAR IN WHICH THE SEARCH TOOK PLACE SHALL ALSO BE RECKONED FOR ASSESSMENT UNDER THAT SECTION. THE ASST. YR. 2004-05 THEREFORE STANDS EXCLUDED FROM THE PURVIEW OF S. 153A. THIS ADDITIONAL GROUND FOR THE ASST. YR. 2004-05 IS ACCEPTED AND THE ASSESSMENT ORDER FOR THAT YEAR IS CANCELLED ON THAT SHORT GROUND. THE ADDITIONAL GROUNDS FOR THE OTHER YEARS ARE REJECTED ON MERITS THOUGH THEY ARE ADMITTED FOR ADJUDICATION SINCE THEY RAISE A PURE QUESTION OF LAW WHICH DOES NOT INVOLVE ANY INVESTIGATION INTO FACTS NOT ALREADY ON RECORD. 18. SIMILAR VIEW HAS BEEN TAKEN BY THE HONBLE F BENCH OF ITAT, DELHI IN THE CASE OF UPENDRA KUMAR SHARMA VS. DCIT [ITA NO. 3137 TO 3141/DEL/2009, ORDER DATED 12.04.2010] AND ALSO 16 RECENTLY ON 22.12.2016 BY THE HONBLE ITAT, CHANDIGARH IN THE CASE OF RAJIV KUMAR VS. ACIT SINCE REPORTED IN (2017) 186 TTJ (CHD) 522. 19. FOR THE REASONS MENTIONED IN PARAS 17 & 18 HEREINFORE, WHOLE OF THE VARIATION BETWEEN RETURNED INCOME AND ASSESSED INCOME DESERVES TO BE VACATED AND THE ASSESSEE/APPELLANT PRAYS FOR THE SAME. 4. ON THE OTHER HAND, LD. CIT(DR) SUBMITTED THAT AS SESSEE HAS ORIGINALLY FILED RETURN OF INCOME OF RS. 55,56,222/ - ON 15.12.2010 WHICH WAS REVISED ON 16.12.2010 AT RS. 81,76,615/-. THIS SHOWS THAT THE SALARY RECEIPT OF THE ASSESSEE WERE NOT PROPERLY MANAGED BY HIM AND HE HAS NOT FILED ANY FORM NO. 16 ALONGWITH RETURN OF INCOM E TILL DATE. SHE FURTHER SUBMITTED THAT IN THE STATEMENT RECORDED ON 5.2.200 9 THE ASSESSEE HAS HIMSELF HAS MENTIONED VIDE RELY TO QUESTION NO. 3 T HAT HIS TOTAL SALARY WAS RS. 1.31 CRORES. ALL THESE FACTS INDICATE THAT ASSESSEE WAS RECEIVING SALARY IN CASH WHICH WAS NOT BEING RECORDED BY M/S ZOOM DEVELOPERS PVT. LTD. AND AS WELL AS BY THE ASSESSEE IN THEIR B OOKS OF ACCOUNTS. THEREFORE, THE AMOUNT OF CASH RECEIVED BY THE ASSES SEE OF RS.24,25,000/- DURING THE YEAR WAS RIGHTLY ADDED TO THIS TOTAL INCOME AS UNEXPLAINED INCOME OF THE ASSESSEE AND LD. CIT( A) RIGHTLY CONFIRMED THE ADDITION, WHICH DOES NOT NEED ANY INTERFERENCE. HENCE, SHE REQUESTED TO CONFIRM THE ACTION OF THE LD. CIT(A) A ND REJECT THE GROUNDS 17 RAISED BY THE ASSESSEE. IN SUPPORT OF HER CONTENT ION, SHE FILED THE COPY OF WRITTEN SUBMISSIONS, WHICH READ AS UNDER:- A. AS IN JUDICIAL PROCEEDINGS IN COURTS, THE EVIDE NCES BOTH ORAL AND DOCUMENTARY, ARE RELEVANT IN DECIDING THE ISSUES IN THE INCOME-TAX PROCEEDINGS. ORAL EVIDENCE S, INCLUDE STATEMENTS WHICH ARE MADE BEFORE THE INCOME - TAX AUTHORITIES IN RELATION TO MATTER OF INQUIRY, S EARCH AND SURVEY PROCEEDINGS AND MAY ALSO INCLUDE EXAMINATION OF THE ASSESSEE OR RELATED PARTIES. DOCUMENTARY EVIDENCES INCLUDE ALL DOCUMENTS PRODUCE D BEFORE THE INCOME-TAX AUTHORITY FOR HIS VERIFICATION/INSPECTION. ORAL AND DOCUMENTARY EVIDENCES, INTER ALIA, DEPENDING UPON THE CIRCUMSTA NCES INCLUDE 'ADMISSIONS' WHICH PLAY A CRUCIAL ROLE IN A NY JUDICIAL PROCEEDING. THERE IS CONSIDERABLE IMPORTAN CE OF STATEMENTS RECORDED DURING SEARCH AND SEIZURE OPERATIONS, WHICH IS CLEAR FROM THE INTENT OF LEGIS LATURE AS IT THOUGHT FIT TO INCLUDE A SEPARATE SECTION 132 (4) FOR RECORDING OF STATEMENT DURING A SEARCH OPERATION. FURTHER SECTION 292C HAS BEEN INSERTED BY THE FINAN CE ACT, 2007 WITH RETROSPECTIVE EFFECT FROM 1-10-1975 ALLOWING PRESUMPTION AS TO ASSETS, BOOKS OF ACCOUNT , ETC. FOUND DURING SEARCH UNDER SECTION 132 AND REQUISITION UNDER SECTION 132A. LATER ON BY FINANCE ACT, 18 2008 THE AMBIT OF SECTION 292C HAS BEEN ENLARGED BY INCLUDING PRESUMPTION IN CASE OF SURVEY PROCEEDINGS UNDER SECTION 133A WITH RETROSPECTIVE EFFECT FROM 1 -6- 2002. THE WORDS 'MAY BE USED IN EVIDENCE IN ANY PROCEEDINGS' APPEARING IN SECTION 132(4) ARE OF GRE AT SIGNIFICANCE. UNDER SECTION 132(4) AN AUTHORIZED OFFICER DURING SEARCH CAN EXAMINE ON OATH ANY PERSON WHO IS FOUND TO BE IN POSSESSION OF ANY BOOKS OF ACCOUNT, DOCUMENTS , MONEY, BULLION, JEWELLERY, ETC. STATEMENT MADE BY S UCH PERSON DURING SUCH EXAMINATION MAY THEREAFTER BE US ED IN EVIDENCE IN ANY PROCEEDINGS. UNDER THE INCOME-TAX ACT ALSO ADMISSIONS BIND THE MAKER WHEN THESE ARE NOT REBUTTED OR RETRACTED. THE STATEMENT RECORDED UNDER SECTION 132(4) HAS EVIDENTIARY VALUE, AS PROVIDED IN THE ACT ITSELF TH AT IT CAN BE USED IN EVIDENCE. IN THE ABOVE CASE, STATEMENT ON OATH OF THE ASSESSEE WAS RECORDED U/S 132(4) OF I.T. ACT DURING THE COURSE OF SEARCH ON 04.02.2009 IN WHICH HE ADMITTED ANNUAL SALARY OF RS. 1.31 CRORES (PLEASE REFER QUES TION NO 3 OF THE STATEMENT). FURTHER INCRIMINATING DOCUM ENTS HAVE BEEN FOUND RELATING TO THE CASH PAYMENT BY THE 19 COMPANY TO THE APPELLANT (PLEASE REFER QUESTION NO 22 AND 23 OF THE STATEMENT) IT IS HUMBLY SUBMITTED THA T THE FOLLOWING DECISIONS ALSO MAY KINDLY BE CONSIDER ED WITH REGARD TO VALIDITY OF STATEMENT RECORDED U/S 1 32(4) OF I.T.ACT: 1. KISHORE KUMAR VS CIT (62 TAXMANN.COM 215, 234 TAXMAN 771) WHERE HONBLE SUPREME COURT DISMISSED SLP AGAINST HIGH COURT'S ORDER WHERE IT WAS HELD THAT S INCE ASSESSEE HIMSELF HAD STATED IN SWORN STATEMENT DURI NG SEARCH AND SEIZURE ABOUT HIS UNDISCLOSED INCOME, TA X WAS TO BE LEVIED ON BASIS OF ADMISSION WITHOUT SCRUTINIZING DOCUMENTS. B KISHORE KUMAR VS CIT (52 TAXMANN.COM 449) MADRAS HIGH COURT CONFIRMED 2. IN THE CASE OF BHAGIRATH AGGARWAL VS. CIT 31 TAXMANN.COM 274 HON'BLE DELHI HIGH COURT HAS HELD THAT - IN THE PRESENT CASE NO MATERIAL HAS BEEN PRODUCED BY THE APPELLANT/ASSESSEE TO SHOW THAT THE ADMISSION MADE BY HIM WAS INCORRECT IN ANY WAY. ON THE OTHER HAND, IT 20 IS THE ASSESSEE WHO IS INSISTING THAT IT IS FOR THE DEPARTMENT TO CORROBORATE THE STATEMENT OF ADMISSION MADE BY HIM AND UNTIL AND UNLESS THE DEPARTMENT CORROBORATES THE SAME, THE STATEMENT CANNOT BE RELIED UPON. ADMISSION ONCE MADE CAN CERTAINLY BE RETRACTED, IF THE CIRCUMSTANCES PERMIT, AND IT CAN ALSO BE SHOWN TO HAVE BEEN MADE UNDER SOME MISTAKE OR TO BE OTHERWISE INCORRECT. BUT, THE ONUS WOULD BE ON THE MAKER OF THAT ADMISSION. IN THIS CASE IT IS THE APPELLANT/ASSESSEE WHO HAS ADMITTED AND SURRENDERED A SUM OF RS. 1.75 CRORES AS HIS UNDISCLOSED INCOME. IT WAS INCUMBENT UPON HIM TO SHOW THAT HE HAD MADE A MISTAKE IN MAKING THAT ADMISSION AND THAT THE SAID ADMISSION WAS INCORRECT. HE HAD ACCESS TO ALL THE DOCUMENTS WHICH HAS BEEN SEIZED IN AS MUCH AS THE COPIES HAD BEEN SUPPLIED TO HIM. HOWEVER, HE DID NOT PRODUCE ANYTHING TO ESTABLISH THAT THE ADMISSION WAS INCORRECT IN ANY WAY. THAT BEING THE POSITION, THE 21 APPELLANT/ASSESSEE CANNOT RESILE FROM HIS EARLIER STATEMENT. [PARA 11] THE APPELLANT/ASSESSEE HAS NOT PRODUCED ANY MATERIAL TO SHOW THAT THE ADMISSIONS MADE BY HIM WERE INCORRECT. THE STATEMENTS RECORDED UNDER SECTION 132 (4) OF THE SAID ACT ARE CLEARLY RELEVANT AND ADMISSIBLE AND THEY CAN BE USED AS EVIDENCE. IN FACT, ONCE THERE IS A CLEAR ADMISSION, VOLUNTARILY MADE, ON THE PART OF THE ASSESSEE, THAT WOULD CONSTITUTE A GOOD PIECE OF EVIDENCE AT THE HANDS OF THE REVENUE. [PARA 12] AS PER THE CIRCULAR, DATED 11-3-2003 THERE IS AN OBSERVATION OF THE BOARD THAT THE FOCUS OF THE SEARCH PARTY SHOULD BE ON COLLECTION OF EVIDENCE OF INCOME WHICH LEADS TO INFORMATION ON WHAT HAS NOT BEEN DISCLOSED OR IS NOT LIKELY TO BE DISCLOSE D BEFORE THE INCOME TAX DEPARTMENT. THERE IS A FURTHER OBSERVATION THAT, WHILE RECORDING STATEMENTS DURING THE COURSE OF SEARCH, SEIZURE AND SURVEY OPERATIONS, NO ATTEMPT SHOULD BE MADE TO OBTAIN CONFESSIONS AS TO UNDISCLOSED INCOME AND THAT ANY ACTION TO THE CONTRARY WOULD BE VIEWED ADVERSELY. [PARA 13] 22 THE INCOME TAX OFFICERS SHOULD NOT TRY TO FORCE A CONFESSION FROM AN ASSESSEE. HOWEVER, IF AN ASSESSEE VOLUNTARILY MAKES A SURRENDER, THE OFFICIALS OF THE INCOME TAX DEPARTMENT ARE BOUND TO RECORD THAT STATEMENT UNDER SECTION 132(4) AND SUCH A STATEMENT, VOLUNTARILY MADE, IS RELEVANT AND ADMISSIBLE AND IS LIABLE TO BE USED AS EVIDENCE. [PARA 14] THE PLEA OF BIFURCATION HAD NOT BEEN TAKEN BY THE APPELLANT/ASSESSEE BEFORE THE AUTHORITIES BELOW. IN ANY EVENT, THE LETTER DATED 9-1-2006 WAS WRITTEN ONE-AND-A-HALF-MONTHS AFTER THE RECORDING OF THE STATEMENT ON 21-11-2005 AND WAS CLEARLY AN AFTERTHOUGH. THE LETTER DATED 9-1- 2006 CANNOT BE TREATED AS A STATEMENT U/S 132(4) OF THE SAID ACT AND ONLY THE STATEMENTS RECORDED ON 10-11/11/2005 AND 21-11-2005 WHICH ARE STATEMENTS U/S 132(4) WHICH HAVE EVIDENTIARY VALUE. [PARA 15] THE LETTER DATED 9-1-2006 WAS AN AFTERTHOUGHT AS THERE WAS NO MENTION OF ANY DOCUMENTS IN THE LETTER DATED 9-1-2006. [PARA 16] 23 THEREFORE, THE APPEAL IS TO BE DISMISSED. [PARA 17] 3. RAJ HANS TOWERS (P.) LTD. VS CIT (56 TAXMANN.COM 67, 230 TAXMAN 567, 373 ITR 9) WHERE HONBLE DELHI HIGH COURT HELD THAT WHERE ASSESSEE HAD NOT OFFERED ANY SATISFACTORY EXPLANATION REGARDING SURRENDERED AMOUNT BEING NOT BONA FIDE AND IT WAS ALSO NOT BORNE OUT IN ANY CONTENTIONS RAISED BEFORE LOWER AUTHORITIES, ADDITIONS SO MADE AFTER ADJUSTING EXPENDITURE WERE JUSTIFIED (SURVEY CASE) 4. FURTHER, IN THE CASE OF HIRALAL AND MAGANLAL & CO. VS. DCIT 96 ITD 113(MUM.) HONBLE ITAT MUMBAI BENCH HAS HELD THAT - THE CBDTS CIRCULAR F. NO. 286/2/2003-IT (INV.), DATED 10-3-2003 RELIED UPON BY THE ASSESSEE IS AN ADVISORY TO THE FIELD OFFICERS THAT THEY SHOULD CONCENTRATE ON COLLECTIONS OF EVIDENCE RELATING TO UNDISCLOSED INCOME AND NOT ON MAKING ATTEMPTS TO OBTAIN CONFESSION. IN THE INSTANT CASE, THE DEPARTMENT WAS NOT FOUND TO HAVE MADE ANY ATTEMPT TO OBTAIN THE CONFESSION OF THE 24 ASSESSEE. THEY, IN FACT, SIMPLY EXAMINED P AND J TO COLLECT EVIDENCE OF UNDISCLOSED INCOME BUT IT WAS P WHO, INSTEAD OF DENYING OR PROVIDING THE INFORMATION WITH REGARD TO THE LOCATIONS WHERE THE UNACCOUNTED STOCK HAD BEEN KEPT, PREFERRED TO MAKE THE CONFESSIONS AS AFORESAID. THUS, THE SAID CIRCULAR ISSUED IN 2003 HAD NO APPLICATION TO THE FACTS OF THE CASE. [PARA 15] THE ASSESSEE HAD NOT PRODUCED ANY CONTEMPORANEOUS RECORD OR EVIDENCE, ORAL OR DOCUMENTARY, TO SUBSTANTIATE THE ALLEGATION. FIFTHLY, THE ANSWERS GIVEN BY HIM WERE QUITE COHERENT AND DID NOT INDICATE THAT HE WAS IN A CONFUSED STATE OF MIND WHEN HIS STATEMENT WAS RECORDED. SIXTHLY, THE SEIZED SHEETS WERE RECOVERED FROM THE RESIDENCE OF P WHO ACTUALLY CARRIED THEM TO THE FIRMS OFFICE SO AS TO RECONCILE THE SAME WITH THE RECORDS IN THE FIRMS OFFICE IN CONSULTATION WITH HIS TRUSTED MEN. SUCH CAUTIONS AND 25 CAREFUL APPROACH ON THE PART OF P ALSO EXCLUDED THE POSSIBILITY OF HIS STATEMENT HAVING BEEN MADE IN A CONFUSED STATEMENT OF MIND OR UNDER ANY PRESSURE OR FORCE. THE ANSWERS GIVEN BY P WITH REGARD TO THE NATURE OR DOCUMENTS AND OTHER RELEVANT MATTERS WERE IN HIS SPECIFIC KNOWLEDGE AND, HENCE, THEY COULD NOT HAVE BEEN DICTATED BY THE SEARCH PARTY. EIGHTHLY, AT THE TIME OF THE HEARING, P DENIED THAT ANY FORCE WAS USED ON HIM WHILE RECORDING HIS STATEMENT OR AT THE TIME OF SEARCH. HENCE, IT COULD NOT BE ACCEPTED THAT 'P' WAS FORCED TO MAKE THE STATEMENT IN QUESTION OR ANY KIND OF UNDUE INFLUENCE OR COERCION WAS EXERCISED ON HIM TO EXTRACT THE SAID DECLARATION/STATEMENT OR HE WAS IN A CONFUSED STATE OF MIND WHILE GIVING THE STATEMENT. ALL THE SUBMISSIONS OF THE ASSESSEE IN THAT BEHALF WERE, THEREFORE, REJECTED. [PARA 16] 26 MERE FILING OF AN AFFIDAVIT OF AN EMPLOYEE OF THE GROUP AND WRITTEN SUBMISSIONS AT A LATER STAGE OF THE PROCEEDINGS WERE SELF-SERVING PIECES OF EVIDENCE AND, THUS, THEY COULD NEITHER NEGATE THE DECLARATION AND DISCLOSURE MADE ON OATH BY V UNDER SECTION 132(4) NOR FORM THE BASIS FOR EFFECTIVE RETRACTION OF THE DECLARATION MADE UNDER SECTION 132(4). FOR THAT REASON, ALSO, THE ASSESSING OFFICER WAS JUSTIFIED IN REJECTING THE RETRACTION FILED BY THE ASSESSEE ON THE GROUND THAT IT WAS AN AFTERTHOUGHT. [PARA 28] STATEMENTS IN THE NATURE OF DECLARATIONS COVERED BY PROVISIONS OF SECTION 115, ARE BINDING ON THE DECLARANT. THEY CAN NEITHER BE RETRACTED NOR DO THEY REQUIRE ANY CORROBORATION. SUCH DECLARATIONS CAN FORM THE SOLE BASIS OF ASSESSMENT. THE DECLARATION MADE BY P, THE PARTNER IN THE ASSESSEE-FIRM THROUGH HIS STATEMENT RECORDED UNDER SECTION 132(4), FELL SQUARELY WITHIN THE AMBIT OF SECTION 115 AND, HENCE, 27 THE SAME WAS NEITHER OPEN TO RETRACTION NOR REQUIRED ANY FURTHER CORROBORATION. THE ASSESSING OFFICER COULD, THEREFORE, BASE THE IMPUGNED ADDITION ON THE SAID DECLARATION. STATEMENTS, WHICH ARE NOT IN THE NATURE OF DECLARATIONS UNDER SECTION 115, ARE ALSO BINDING AND CAN FORM THE SOLE BASIS FOR ASSESSMENT IF THEY ARE NOT EFFECTIVELY RETRACTED. EFFECTIVE RETRACTION IS POSSIBLE IN TWO SITUATIONS. FIRST SITUATION IS WHERE IT IS NOT VOLUNTARILY MADE. A STATEMENT, HOWEVER, CANNOT BE SAID TO BE INVOLUNTARILY MADE MERELY BECAUSE IT IS SUBSEQUENTLY SOUGHT TO BE RETRACTED. THE LAW OF EVIDENCE PRESUMES REGULARITY AND CORRECTNESS OF THE OFFICIAL ACTIONS UNLESS PROVED OTHERWISE AND. HENCE, THE SAID PRINCIPLE WILL ALSO GOVERN THE STATEMENT RECORDED BY A PUBLIC OFFICIAL AND THAT IS MORE PARTICULARLY SO WHEN IT IS RECORDED IN PURSUANCE OF THE STATUTORY PROVISIONS OF LAW. 5. FURTHER, IN THE CASE OF DEWAN BAHADUR SETH GOPAL DAS MOHTA VS. UOI 26 ITR 722 HON'BLE SUPREME COURT HAS HELD THAT - 28 WHATEVER TAX THE PETITIONER HAD ALREADY PAID, OR WHATEVER WAS STILL RECOVERABLE FROM HIM, WAS RECOVERED ON THE BASIS OF THE SETTLEMENT PROPOSED BY HIM AND ACCEPTED BY THE CENTRAL GOVERNMENT. BECAUSE OF HIS REQUEST FOR A SETTLEMENT NO ASSESSMENT WAS MADE AGAINST HIM BY FOLLOWING THE WHOLE OF THE PROCEDURE OF THE INCOME-TAX ACT. IN THIS SITUATION UNLESS AND UNTIL THE PETITIONER COULD ESTABLISH THAT HIS CONSENT WAS IMPROPERLY PROCURED. 6. M/S PEBBLE INVESTMENT AND FINANCE LTD VS ITO (2017-TIOL-238-SC-IT) WHERE HONBLE SUPREME COURT DISMISSED SLP CHALLENGING THE JUDGMENT, WHEREBY THE HIGH COURT HAD HELD THAT STATEMENT MADE U/S 133A COULD BE RELIED UPON FOR PURPOSES OF ASSESSMENT, IN ABSENCE OF ANY CONTRARY EVIDENCE OR EXPLANATION AS TO WHY SUCH STATEMENT MADE WAS NOT CREDIBLE. M/S PEBBLE INVESTMENT AND FINANCE LTD VS ITO (2017-TIOL-188-HC-MUM-IT) BOMBAY HIGH COURT CONFIRMED. 29 7. PCIT VS AVINASH KUMAR SETIA [2017] 81 TAXMANN.COM 476 (DELHI) WHERE HONBLE DELHI HIGH COURT HELD THAT WHERE ASSESSEE SURRENDERED CERTAIN INCOME BY WAY OF DECLARATION AND WITHDRAW SAME AFTER TWO YEARS WITHOUT ANY SATISFACTORY EXPLANATION, IT COULD NOT BE TREATED AS BONA FIDE AND, HENCE, ADDITION WOULD SUSTAIN (SURVEY CASE) B. NO RETRACTION WAS FILED BY THE ASSESSEE TILL FILING OF RETURN OF INCOME, WHICH PREVENTED THE DEPARTMENT FROM MAKING FURTHER INQUIRIES. FOR RETRACTION TO BE VALID, THREAT OR COERCION HAS TO B E PROVED WHICH HAS NOT BEEN DONE IN THE PRESENT CASE: MANOHAR LAL KASTURCHAND CHOKSHI VS ACIT (ITAT, AHD.) 61 ITD 55 PARAMANAND BUILDERS VS ITO (ITAT, MUM.) 59 ITD 29 WORKS OF ART (P) LTD. VS ACIT (ITAT, JP.) 65 ITD 40 AMRITLAL BHAGWANDAS SONI VS DCIT (ITAT, AHD.) 59 TTJ 418 30 HIRALAL MAGANLAL & CO. VS DCIT (ITAT, MUM.) 96 ITD 113 AIRPORT AUTHORITY OF INDIA VS CBEC (DEL) 207 CTR 196 RAVINDRA D. TRIVEDI VS CIT (RAJ.) 215 CTR 313 C. WHEN STATEMENT WAS MADE VOLUNTARY AND WAS NOT ALLEGED TO HAVE BEEN OBTAINED UNDER THREAT OR COERCION, ONUS WAS ON ASSESSEE TO PROVE THAT SAID DECLARATION WAS MADE UNDER ANY MISCONCEPTION OF FACTS - SINCE ASSESSEE HAD NOT TAKEN ANY STEPS TO RECTIFY ITS DECLARATION BEFORE AUTHORITIES BEFORE WHOM SUCH DECLARATION WAS MADE, THERE WAS NO VALID REASON FOR RETRACTION OF SAME AFTER A GAP OF ABOUT TWO AND A HALF MONTHS. CARPENTERS CLASSICS (EXIM) (P) LTD. VS DCIT (ITAT, BANG.) 108 ITD 142. D. IN VIEW OF THE ABOVE FACTS, IT IS HUMBLY REQUESTED THAT APPEAL OF THE ASSESSEE MAY BE DISMISSED. 31 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS ESPECIALLY THE IMPUGNED ORDER AS WELL AS THE WRITTEN SUBMISSIO NS FILED BY BOTH THE PARTIES AND THE PAPER BOOK FILED BY THE ASSESSEE. WE FIND THAT DURING THE COURSE OF SEARCH LOOSE PAPERS WERE SEIZED VID E ANNEXURE A-27 FROM THE OFFICE PREMISES OF M/S ZOOM DEVELOPERS PVT. LTD . AS PER PAGE 29 OF ANNEXURE A-27 CASH PAYMENT OF RS. 24,65,000/- TO VA RIOUS PERSONS WERE MADE ON DIFFERENT DATES (AS MENTIONED AT PAGE NO. 6 & 7 OF LD. CIT(A)S ORDER). WE NOTE THAT ALL THESE PAYMENTS HAVE BEEN MADE IN CASH AND THE SAME WERE NOT FOUND RECORDED IN THE BOOKS OF AC COUNTS OF M/S ZOOM DEVELOPERS PVT. LTD. AS WELL AS IN THE BOOKS OF APP ELLANT. THE ASSESSEE WAS SPECIFICALLY ASKED TO EXPLAIN THE RECEIPT OF CA SH ON VARIOUS DATES VIDE QUESTION NO. 20,21,22 AND 23 OF HIS STATEMENTS RECO RDED ON 05.02.2009. THE ASSESSEE WAS SPECIFICALLY ASKED ABOUT THE CASH PAYMENT RECEIVED IN QUESTION NO. 22. HOWEVER, ASSESSEE STATED THAT HE W ILL NOT ABLE TO REPLY AND ACCOUNTS PERSONS WILL CLARIFY THE SAME. HOWEVER , NO CLARIFICATION ABOUT CASH PAYMENTS RECEIVED WAS FILED BY THE ASSES SEE SUBSEQUENTLY BEFORE THE ASSESSING OFFICER. THE AR OF THE ASSESSE E SUBMITTED THAT THIS PAPER WAS NOT SIGNED AND CONFIRMED BY ANYONE, THERE FORE, SAME CANNOT BE RELIED UPON. THE AR FURTHER STATED THAT ENTRY OF RS.40,000/- OF DATED 31.07.2008 PERTAINS TO SH. VIKAS AGGARWAL AND ENTRY OF RS. 10,00,000/- DATED 26.08.2008 WERE NOT RECORDED IN THE NAME OF A SSESSEE. IT IS TRUE THAT ENTRY OF RS.40,000/- DATED 31.07.2008 HAS BEEN RECORDED IN THE NAME OF SH. VIKAS AGGARWAL AND HE WAS PAID RS.40,00 0/-, THEREFORE, THIS AMOUNT CANNOT BE ADDED IN THE HANDS OF THE ASSESSEE . AS REGARDS THE 32 AMOUNT OF RS. 10,00,000/- IT IS MENTIONED THAT THIS AMOUNT OF RS. 10,00,000/- WAS PAID FOR IRCTC PURPOSE ON 26.08 .2008 TO THE ASSESSEE. THE ASSESSEE WAS SPECIFICALLY ASKED VIDE HIS STATEMENTS RECORDED ON 05.02.2009 TO EXPLAIN THE RECEIPT OF TH E CASH AND THEIR ULTIMATE USE. BUT THE ASSESSEE DID NOT GIVE ANY REP LY TO QUESTION NO. 22 AND 23 OF THE SAID STATEMENTS. THE AMOUNT OF RS. 10 ,00,000/- WAS RECEIVED FOR IRCTC PURPOSES BY THE ASSESSEE, HOWEVE R WHERE AND HOW THIS AMOUNT WAS UTILIZED, THE ASSESSEE DID NOT FILE ANY REPLY FOR THE SAME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, ALSO T HE ASSESSEE WAS SPECIFICALLY ASKED ABOUT THIS HOWEVER NO REPLY WAS FILED BY THE ASSESSEE. IT WAS FURTHER NOTED THAT ASSESSEE HAS ORIGINALLY FILED RETURN OF INCOME OF RS.55,5.6,222/- ON 15.12.2010 WHICH WAS REVISED ON 16.12.2010 AT RS.81,76,615/-. THIS SHOWS THAT THE SALARY RECEIPT OF THE ASSESSEE WERE NOT PROPERLY MANAGED BY HIM AND HE HAS NOT FILED AN Y FORM NO. 16 ALONGWITH THE RETURN OF INCOME. IT IS ALSO SEEN THA T IN THE STATEMENT RECORDED ON 05.02.2009 THE ASSESSEE HIMSELF HAS MEN TIONED VIDE REPLY TO QUESTION NO. 3 THAT HIS TOTAL SALARY WAS RS.1.31 CR ORES. ALL THESE FACTS INDICATE THAT ASSESSEE WAS RECEIVING SALARY IN CASH WHICH WAS NOT BEING RECORDED BY M/S ZOOM DEVELOPERS PVT. LTD. AND AS WE LL AS BY THE ASSESSEE IN THEIR BOOKS OF ACCOUNTS. THEREFORE, TH E AMOUNT OF CASH RECEIVED BY THE ASSESSEE OF RS. 24,25,000/- WAS RIG HTLY ADDED TO THE TOTAL INCOME OF THE ASSESSEE AS UNEXPLAINED INCOME OF THE ASSESSEE AND THE SAME WAS RIGHTLY CONFIRMED BY THE LD. CIT(A), W HICH DOES NOT NEED ANY INTERFERENCE ON OUR PART, HENCE, WE UPHOLD THE ACTION OF THE LD. 33 CIT(A) ON THE ISSUES IN DISPUTE AND REJECT THE GROU NDS RAISED BY THE ASSESSEE. OUR AFORESAID VIEW IS FORTIFIED BY THE DE CISION OF THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF KISHORE KUMAR VS. CIT (62 TAXMANN.COM 215, 234 TAXMAN 771) WHEREIN IT HAS BEE N THAT SINCE ASSESSEE HIMSELF HAD STATED IN SWORN DURING SEARCH AND SEIZURE ABOUT HIS UNDISCLOSED INCOME, TAX WAS TO BE LEVIED ON BASIS O F ADMISSION WITHOUT SCRUTINIZING DOCUMENTS. HOWEVER, THE CASE LAWS RELIED UPON BY THE LD. AR OF THE ASSESSEE ARE DISTINGUISHED TO THE FACTS OF THE PRESENT CASE AND DEALS WITH THE LEGAL ISSUE I.E. WRONGLY INVOKING THE PROVISION OF SECTION 153A OF THE ACT, WHICH GROUND HAS NOT BEEN RAISED B Y THE ASSESSEE IN THE GROUNDS OF APPEAL, BEFORE THE TRIBUNAL, AS AFORESAI D, HENCE, THE SAME ARE NOT APPLICABLE IN THE PRESENT CASE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 21-02-2019. SD/- SD/- [L.P. SAHU] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE:21/02/2019 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. D R, ITAT BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES