Shri Sanjay Kumar Sudarania, Surat V. The Income Tax Officer, Ward-3(1), Surat

ITA 34/AHD/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 2111 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-04-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 04-01-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R P RASTOGI
• Assessee Lawyers: RASESH SHAH
• Keywords: Reopening of assessment; Income from undisclosed sources; Search and seizure; Principle of natural justice; Corroborative evidences; Assessment record; Retraction; Reason to believe; Reassessment proceedings
• Section: 69; 143(3); 133A

Judgement Text

SHRI SANJAY KUMAR SUDARANIA / ITA NO.34/AHD/2016/SRT /A.YS.:2006-07 PAGE 1 OF 17 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT . . , . . , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./ I.T. A NO.34/AHD/2016/SRT / A.YS.:2006-07 SHRI SANJAY KUMAR SUDARANIA, 1004, ABHINANDAN COMPLEX, GHOD DOD ROAD, SURAT. PAN: AEDPS 0951B V S . INCOME TAX OFFICER, WARD-3(1), SURAT. APPELLANT /RESPONDENT /ASSESSEE BY SHRI RASESH SHAH, CA /REVENUE BY SHRI R.P.RASTOGI , SR.DR / DATE OF HEARING: 17 .04 .2018 /PRONOUNCEMENT ON 26 .04.2018 /O R D E R PER O. P. MEENA, ACCOUTANT MEMBER: 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD.COMMISSIONER OF INCOME TAX(APPEALS)-II, SURAT DATED 12.11.2015 FOR THE ASSESSMENT YEAR 2006-07 AGAINST ORDER PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN ITA NO.341/AHD/2016 AS FOLLOWS : 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF ASSESSING OFFICER IN REOPENING THE ASSESSMENT U/S.147 OF THE ACT BY ISSUING NOTICE U/S.148 AND SUBSEQUENTLY PASSING THE ASSESSMENT U/S.143(3) R.W.S 147 WITHOUT APPRECIATING THE FACT THAT NO INCOME HAD ESCAPED ASSESSMENT. 2. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF ASSESSING SHRI SANJAY KUMAR SUDARANIA / ITA NO.34/AHD/2016/SRT /A.YS.:2006-07 PAGE 2 OF 17 OFFICER IN MAKING THE ADDITION OF RS.45,78,092/- WITHOUT APPRECIATING THE FACT THAT THE SAME WAS NOT THE INCOME OF THE ASSESSEE. 3. IT IS THEREFORE PRAYED THAT ABOVE ASSESSMENT PASSED U/S.143 R.W.S. 147 MAY PLEASE BE QUASHED AND/OR ADDITION CONFIRMED BY CIT(A) MAY PLEASE BE DELETED. 3. GROUND NO.1 RELATES TO REOPENING OF ASSESSMENT U/S.147 AND MAKING ASSESSMENT U/S.143(3) R.W.S. 147 OF THE ACT. 4. SUCCINCTLY, FACTS AS CULLED OUT FROM ASSESSMENT RECORDS ARE THAT THE ASSESSEE IS ONE OF THE DIRECTORS IN M/S.RAMESHWAR TEXTILE MILLS LTD., WHICH IS RUNNING A PROPRIETARY CONCERN IN THE NAME OF KIRTIDA SILK MILLS. A SURVEY U/S.133A WAS CONDUCTED IN THE CASE OF SUCH COMPANY WHEREIN A FILE NO. B-65 WAS IMPOUNDED. 5. IN REPLY TO QUESTION NO.29 OF STATEMENT ON OATH RECORDED U/S.133A ON 03.03.2008 FROM SHRI SANJAY KUMAR SUDARANIA HAS ADMITTED THAT THE AMOUNT OF RS.45,78,092/- WRITTEN ON PAGE NO.38 OF FILE NO.B-65 IN FRONT OF WHICH DATE IS WRITTEN AS 15.06.2005 HAD BEEN HIS UNACCOUNTED INCOME AND HE HAD OFFERED THE SAME FOR TAXATION. THEREFORE, THE CASE WAS REOPENED BY ISSUING A NOTICE U/S.148 OF THE ACT DATED 21.03.2013. THE ASSESSEE FURNISHED A LETTER DATED 22.04.2013 STATING THAT RETURN FILED FOR ASSESSMENT YEAR 2006-07 ON 29.12.2006 SHOULD BE CONSIDERED AS HIS RETURN OF INCOME(ROI) FILED IN RESPONSE TO THE NOTICE U/S.148 OF THE ACT. THE LD.COUNSEL CONTENDED THAT THE CASE OF THE ASSESSEE WAS REOPENED PURELY ON THE BASIS OF HIS STATEMENT RECORDED ON OATH WHICH HAD NO EVIDENTIARY VALUE AND NO ASSESSMENT COULD BE MADE ON THE BASIS OF STATEMENT AS HELD BY THE HON'BLE KERALA HIGH COURT IN THE CASE OF PAUL MATHEWS AND SONS VS. CIT 263 ITR 201 AND MADRAS HIGH COURT IN THE CASE OF CIT VS. S. KADER KHAN 300 ITR 157 IN WHICH SLP IS DEPARTMENT IS ALSO DISMISSED BY THE HON'BLE SUPREME COURT. SHRI SANJAY KUMAR SUDARANIA / ITA NO.34/AHD/2016/SRT /A.YS.:2006-07 PAGE 3 OF 17 6. IT WAS ALSO CONTENDED THAT SEIZED MATERIAL BEARING PAGE NO.38 OF B-65 GIVES NO INDICATION OR SUGGESTION OF ANY INCOME OF THE ASSESSEE AS THERE IS NO NAME OR ANY INDICATION OF THE ASSESSEE, BY WHICH IT CAN BE HELD THAT THE SUM OF RS.45,78,092/- BELONG TO THE ASSESSEE AND IT WAS REPRESENTING ANY UNACCOUNTED INCOME OF THE ASSESSEE. AGAINST THE AMOUNT OF RS.45,78,092/-, ONLY THE DATE HAS BEEN MENTIONED WITHOUT ANY NARRATION OR NAME OF ANY PERSON AND SO IT IS PURELY A DUMB FIGURE. MOREOVER, THE ASSESSEE HAD IMMEDIATELY RETRACTED HIS STATEMENT BY SWORN IN AN AFFIDAVIT ON 12.03.2008 I.E. AFTER A FEW DAYS OF THE ORIGINAL STATEMENT WHEREBY HE HAD CLARIFIED THAT THE ORIGINAL STATEMENT GIVEN BY HIM WAS UNDER MENTAL STRESS AND INCOHERENT STATE OF MIND AND HE HAD ERRONEOUSLY ADMITTED THIS AMOUNT AS HIS INCOME. 7. HOWEVER, THE CIT (A) OBSERVED THAT THE REOPENING OF ASSESSMENT IN THE INSTANT CASE HAS BEEN DONE IN ACCORDANCE WITH THE GUIDELINES LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF G.K.N.DRIVESHAFTS (INDIA) LTD. VS. INCOME TAX OFFICER (2003) 259 ITR 19/(2002) 125 TAXMANN 963 (SC). FURTHER, THE CIT (A) OBSERVED THAT AT THE STAGE OF THE OPENING THE ASSESSING OFFICER (AO) HAS TO RECORD REASON TO BELIEVE ON THE BASIS OF INFORMATION AVAILABLE WITH HIM. HE NEED NOT FINALLY ASCERTAIN THE FACTS AT THE STAGE OF REOPENING. THE WORD REASON IN THE PHRASE REASON TO BELIEVE TO MEAN CAUSE OR JUSTIFICATION, IF THE AO HAS A CAUSE OR JUSTIFICATION TO THINK OR SUPPOSE THAT INCOME HAD ESCAPED ASSESSMENT, HE CAN BE SAID TO HAVE REASON TO BELIEVE THAT SUCH INCOME HAD ESCAPED ASSESSMENT. IF, AT THIS STAGE INCOME HAS ESCAPED ASSESSMENT, THE AO NOT REQUIRED TO BASE HIS BELIEF ON ANY FINAL ADJUDICATION OF THE MATTER. THE CIT (A), FURTHER PLACED RELIANCE ON THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF AGR INVESTMENT LTD. VS. SHRI SANJAY KUMAR SUDARANIA / ITA NO.34/AHD/2016/SRT /A.YS.:2006-07 PAGE 4 OF 17 ADDL. CIT, 197 TAXMANN 177 (DEL) WHEREIN IT WAS HELD THAT JUSTIFICATION FOR HIS BELIEF IS NOT TO BE JUDGED FROM THE STANDARDS OF PROOF REQUIRED FOR COMING TO A FINAL DECISION. A BELIEF THOUGH JUSTIFIED FOR THE PURPOSE OF INITIATION OF THE PROCEEDINGS U/S.147, MAY ULTIMATELY STAND ALTERED AFTER THE HEARING AND WHILE REACHING THE FINAL CONCLUSION ON THE BASIS OF THE INTERVENING ENQUIRY . THE LD.CIT (A) FURTHER SUPPORTED HIS VIEW BY PLACING RELIANCE ON THE DECISIONS OF RAYMOND WOOLLEN MILLS LTD. VS ITO 236 ITR 34 (SC) AND OTHERS AS MENTIONED IN PARA 6.1.6 OF APPELLATE ORDER AND ACCORDINGLY, UPHELD THE GROUND OF REOPENING OF ASSESSMENT. 8. BEING AGGRIEVED WITH THE AO, ASSESSEE IS IN FURTHER APPEAL BEFORE THIS TRIBUNAL. 9. THE LD.COUNSEL REITERATED THE SUBMISSIONS AS MADE BEFORE THE APPELLATE AUTHORITIES AND PLACED RELIANCE ON THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF SHARDABEN K. MODI [(2014) 365ITR 169 (GUJ)] WHEREIN IT WAS FOUND THAT THE ASSESSMENT REOPENED BY ISSUANCE OF NOTICE U/S.148 PURELY ON THE BASIS OF ASSESSEES STATEMENT U/S.133A WITHOUT ANY OTHER INDEPENDENT MATERIAL CANNOT BE SUSTAINABLE. THE LD.COUNSEL, FURTHER RELIED IN THE CASE OF UNITED ELECTRICAL COMPANY PVT. LTD., VS. CIT (2002) 258 ITR 317 (DEL) WHEREIN IT WAS HELD THAT A GENERAL STATEMENT MADE BY DIRECTOR OF CREDITOR COMPANY THAT IT WAS INDULGING IN LANDING ITS NAME TO CERTAIN PARTIES WITHOUT NAMING ANY PARTY DID NOT CONSTITUTE REASON TO BELIEVE THAT THE PETITIONERS LOAN TRANSACTIONS WITH THE SAID COMPANY WAS NOT GENUINE AND ITS INCOME HAD ESCAPED ASSESSMENT ON THAT ACCOUNT, IMPUGNED NOTICE U/S.147 WAS QUASHED. SHRI SANJAY KUMAR SUDARANIA / ITA NO.34/AHD/2016/SRT /A.YS.:2006-07 PAGE 5 OF 17 10. ON THE OTHER HAND, THE LD.SENIOR DEPARTMENTAL REPRESENTATIVE (SR.DR) SUPPORTED THE ORDER OF THE LOWER AUTHORITIES AND SUBMITTED THAT PAGE NO.38 OF IMPOUNDED FILE NO.B-65 HAS CLEARLY MENTIONED AN AMOUNT OF RS.45,78,092/- ON WHICH DATE IS ALSO MENTIONED AS 15.06.2005. THIS AMOUNT WAS ADMITTED TO BE UNACCOUNTED INCOME OF THE ASSESSEE BY ASSESSEE HIMSELF IN HIS STATEMENT RECORDED ON OATH IN REPLY TO QUESTION NO.29OF HIS STATEMENT. IT IS WORTHWHILE TO MENTION THAT THE ASSESSEE ALSO ASSURED THAT HE WILL PAY THE DUE TAXES BEFORE FILING OF HIS RETURN OF INCOME OF THE RELEVANT YEAR. THEREFORE, THERE WAS A STATEMENT ON OATH RECORDED FROM THE ASSESSEE AS WELL AS THERE WAS IMPOUNDED MATERIAL IN POSITION OF THE AO. HENCE, THE AO HAS RIGHTLY BELIEVED THAT THE INCOME OF THE ASSESSEE HAS ESCAPED ASSESSMENT. THE CIT (A) HAS RIGHTLY RELIED ON THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF A.G.R. INVESTMENTS LTD. VS. ADDL.CIT (SUPRA) AND R.DALMIA VS. UO INDIA 84 TIR 616 (DEL), PHOOLCHAND BAJRANG LAL VS. ITO 203 ITR 456 (SC) AND OTHERS HAS MENTIONED IN PARA 6.1.6. IT IS CRYSTAL CLEAR THAT AT THE STAGE OF REOPENING OF ASSESSMENT THE AO IS REQUIRED TO BASE HIS REASON TO BELIEF AND SUFFICIENCY OF MATERIAL IS NOT REQUIRED TO BE ADJUDICATED AT THE STAGE. THEREFORE, THE LD.CIT(A) HAS RIGHTLY UPHELD THE ACTION OF THE AO IN REOPENING OF ASSESSMENT U/S.147 OF THE ACT. 11. WE HAVE CONSIDERED THE FACTS AND CIRCUMSTANCES AND PERUSED THE MATERIAL ON RECORD. SECTION 147 AUTHORISES AND PERMITS THE ASSESSING OFFICER TO ASSESS OR REASSESS INCOME CHARGEABLE TAX IF HE HAS REASON TO BELIEVE THAT INCOME FOR ANY ASSESSMENT YEAR HAS ESCAPED ASSESSMENT. THE WORD REASON IN THE PAGE, REASON TO BELIEVE WOULD MEAN CASE FOR JUSTIFICATION IF THE AO HAS CAUSE OR JUSTIFICATION TO SHRI SANJAY KUMAR SUDARANIA / ITA NO.34/AHD/2016/SRT /A.YS.:2006-07 PAGE 6 OF 17 KNOW OR SUPPOSE THAT INCOME HAD ESCAPED ASSESSMENT IT CANNOT BE SAID TO HAVE REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT. THE EXPRESSION CANNOT BE READ TO MEAN THAT THE AO SHOULD HAVE FINALLY ASCERTAINED THE FACTS BY THE LEGAL EVIDENCES OR CONCLUSION. THE FUNCTION OF THE AO IS TO ADMINISTER THE STATUTE WITH SOLITUDE FOR THE PUBLIC EX-CHEQUER WITH AN INBUILT IDEA OF FAIRNESS TO TAX PAYERS. WE FIND THAT BASED ON THE STATEMENT ON OATH RECORDED UNDER SURVEY ACTION, WHEREIN THE ASSESSEE HIMSELF HAD ADMITTED THE AMOUNT OF RS.45,78,092/- WRITTEN ON PAGE NO.38 OF FILE NO.B-65 IN FRONT OF WHICH DATE AS 15.06.2005 AS HIS UNACCOUNTED INCOME AND HE HAD OFFERED THE SAME FOR TAXATION. SINCE THE ASSESSING OFFICER HAVING DETAILED RECORD OF SURVEY ACTION IN HIS HAND. THEREFORE, THE AO WAS JUSTIFIED IN REOPENING THE CASE BY WAY OF ISSUE A NOTICE U/S.148 OF THE ACT. THE AO HAS ALSO FOLLOWED DUE PROCEDURE OF LAW IN ACCORDANCE WITH THE GUIDELINES LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF G.K.N.DRIVESHAFTS (INDIA) LTD. VS. INCOME TAX OFFICER (2003) 259 ITR 19/(2002) 125 TAXMANN 963 (SC). THE HON'BLE SUPREME COURT IN THE CASE OF RAYMOND WOOLLEN MILLS LTD., VS. ITO 236 ITR 34 (SC) HELD THAT IN DETERMINING WHETHER COMMENCEMENT OF REASSESSMENT PROCEEDINGS WAS VALID, IT HAS ONLY TO BE SEEN WHETHER THERE WAS A PRIMA-FACIE MATERIAL ON THE BASIS OF WHICH THE DEPARTMENT COULD REOPEN THE CASE. THE SUFFICIENCY OR CORRECTNESS OF THE MATERIAL IS NOT A THING TO BE CONSIDERED AT SUCH STAGE. IN THE INSTANT CASE, SINCE A PAGE 38 OF FILE B-65 WAS IMPOUNDED DURING THE COURSE OF SURVEY WHICH CONTAINED SAME ENTRY AT PAGE NO.38 AND HAD BEEN ADMITTED BY THE ASSESSEE HIMSELF AS HIS BUSINESS TRANSACTIONS AND OFFERED THE SAME FOR TAXATION. THEREFORE, THERE WAS SUFFICIENT MATERIAL AVAILABLE WITH THE ASSESSING OFFICER TO FORM AN OPINION THAT THE INCOME HAS SHRI SANJAY KUMAR SUDARANIA / ITA NO.34/AHD/2016/SRT /A.YS.:2006-07 PAGE 7 OF 17 ESCAPED ASSESSMENT. THE LD.CIT(A) WHILE REJECTING THE CLAIM OF THE ASSESSEE HAS PLACED RELIANCE IN THE CASE OF A.G.R. INVESTMENTS LTD. VS. ADDL. CIT (SUPRA) WHEREIN IT WAS HELD THAT JUSTIFICATION FOR HIS BELIEF IS NOT TO BE JUDGED FROM THE STANDARD OF PROOF REQUIRED FOR COMING TO A FINAL DECISION OF BELIEF THOUGH JUSTIFIED FOR THE PURPOSE OF INITIATION OF THE PROCEEDINGS U/S.147, MAY ULTIMATELY STANDS ALTERED AFTER HEARING AND WHILE REACHING THE FINAL CONCLUSION ON THE BASIS OF THE INTERVENING ENQUIRY. THE DECISION RELIED BY THE LD.AUTHORISED REPRESENTATIVE (AR) IN THE CASE OF UNITED ELECTRICAL AND COMPANY (SUPRA) IS NOT APPLICABLE IN THE INSTANT CASE AS IN THE PRESENT CASE THE ASSESSEE HAS GIVEN HIS STATEMENT ON THE BASIS OF IMPOUNDED PAGE FOUND DURING THE COURSE OF SURVEY. THE DECISION IN THE CASE OF CIT VS. SHARDAKABEN K. MODI (SC) OF HON'BLE HIGH COURT IS ALSO DISTINGUISHED ON FACTS AS ASSESSEE AN INDEPENDENT MATERIAL FOUND DURING THE COURSE OF SURVEY CARRIED OUT IN THE CASE OF COMPANY IN WHICH THE ASSESSEE IS THE DIRECTOR AND THE ASSESSEE HAS ADMITTED THE SAID PAGE AS HIS UNACCOUNTED BUSINESS TRANSACTIONS AND ALSO OFFERED THE SAME FOR THE TAX. THEREFORE, THE REOPENING NOT ONLY BASED UPON THE SURVEY STATEMENT, BUT ALSO THE MATERIAL IMPOUNDED DURING THE COURSE OF SURVEY. THE OTHER DECISION RELIED ON BY THE LD.CIT(A) HAS MENTIONED IN THE APPEAL ORDER PARA 6.1.6 OF VARIOUS HIGH COURTS ALSO SUPPORTED THE CASE OF REVENUE. IN THE LIGHT OF THESE FACTS, WE UPHOLD THE VALIDITY OF JURISDICTION U/S.147 INTERALIA FINDINGS RECORDED BY LD.CIT(A), HENCE, THE GROUND NO.1 OF THE ASSESSEE IS ACCORDINGLY DISMISSED. 12. GROUND NO.2 RELATES TO CONFIRMING THE ADDITION OF RS.45,78,092/- BY THE ASSESSING OFFICER. SHRI SANJAY KUMAR SUDARANIA / ITA NO.34/AHD/2016/SRT /A.YS.:2006-07 PAGE 8 OF 17 13. SHORT FACTS ARE THAT THE ASSESSEE IN HIS STATEMENT RECORDED ON OATH ON 03.03.2008 DURING THE SURVEY PROCEEDINGS HAS ADMITTED THAT AMOUNT OF RS.45,78,092/- WRITTEN ON PAGE NO.38 OF IMPOUNDED FILE NO.B-65 AS HIS UNACCOUNTED INCOME AND AGREED TO PAY THE TAX ON IT. HOWEVER, SUBSEQUENTLY THE ASSESSEE HAS RETRACTED FROM HIS STATEMENT AND FILED AN AFFIDAVIT DATED 12.03.2008 AND SUBMITTED THAT THIS AMOUNT OF RS.45,00,000/- WAS RECEIVED AND AFTER TAKING INTO ACCOUNT THE INTEREST PAYABLE THE TOTAL AMOUNT TO BE PAID BY THE ASSESSEE TO SHRI MOHD. IMRAN WAS AT RS.45,78,092/- AS ON 15.06.2005. HOWEVER, THE AO DID NOT ACCEPT THIS CONTENTION AS ACCORDING TO HIM THE FINANCIAL CAPACITY OF SHRI MOHD. IMRAN COULD NOT BE PROVED. 14. BEING DIS-SATISFIED WITH THE ORDER OF AO, THE ASSESSEE WENT IN APPEAL BEFORE CIT(A), WHEREIN IT WAS CLAIMED THAT STATEMENT RECORDED ON OATH IN SURVEY PROCEEDINGS HAS NO EVIDENTIARY VALUE HAS HELD BY THE HON'BLE KERALA HIGH COURT IN THE CASE OF PAUL MATHEWS AND SONS VS. CIT [263 ITR 201] AND HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. S. KADER KHAN [300 ITR 157]. THE SAID STATEMENT WAS ALSO RETRACTED BY THE ASSESSEE ON 12.03.2008 BY FILING AN AFFIDAVIT. HOWEVER, THE CIT(A) RELYING ON THE DECISION IN THE CASE OF SILK MUSEUM VS. CIT 257 ITR 22 (GUJ) HELD THAT AFFIDAVIT IS A PIECE OF EVIDENCE WHICH ALONG WITH OTHER MATERIAL ON RECORD HAS TO BE TAKEN FOR THE CONSIDERATION BEFORE ARRIVING AT A FINDING ON STATEMENT OF THE DEPONENT HAS HELD TO BE UNRELIABLE EITHER ON THE BASIS OF CROSS EXAMINATION OR BY REFERENCE TO OTHER MATERIAL ON RECORD. THEREFORE, THE CIT(A) OPINED THAT RETRACTION FROM STATEMENT ON OATH IS AN AFTERTHOUGHT TO ESCAPE THE TAX LIABILITY AND ALSO OBSERVED THE HON'BLE SUPREME COURT IN THE CASE OF SHRI SURJIT SINGH CHHABRA 135 TAXMANN 711 HELD THAT THE CONFESSION THOUGH RETRACTED SHRI SANJAY KUMAR SUDARANIA / ITA NO.34/AHD/2016/SRT /A.YS.:2006-07 PAGE 9 OF 17 IS AN ADMISSION AND BINDS THE PETITIONER. ACCORDINGLY, HELD THAT THE TRANSACTIONS FOUND RECORDED IN THE IMPOUNDED PAPER COULD NOT BE EXPLAINED, HENCE, THE ADDITION MADE BY THE AO WAS CONFIRMED. 15. BEING AGGRIEVED, THE ASSESSEE FILED THIS APPEAL BEFORE THE TRIBUNAL. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD FURNISHED THE CONFIRMATION LETTER DATED 03.02.2014 FROM ONE SHRI MOHD. IMRAN OF DAUDPUR, AZAMGARH, U.P. ON 06.06.2014 IT WAS CLAIMED BY THE ASSESSEE THAT HE HAD RECEIVED A SUM OF RS.45,00,000/- BEFORE 31.03.2005 FROM SHRI MOHD. IMRAN AS LOAN AND INCLUDING THE AMOUNT OF INTEREST ON THE AFORESAID SUM TO TOTAL AMOUNT TO BE PAYABLE BY THE ASSESSEE OF RS.45,78,092/- AS ON 15.06.2005 AS REFLECTED AT PAGE NO.38 OF ANNEXURE-B OF THE IMPOUNDED FILE. IT WAS CONTENDED THAT THE STATEMENT ON OATH RECORDED DURING THE COURSE OF SURVEY PROCEEDINGS IS NOT A RELIABLE EVIDENCE AND HAS NO EVIDENTIARY VALUE. THE ASSESSING OFFICER RELIED ON THE SEIZED MATERIAL, EVEN THOUGH THE STATEMENT ON OATH WAS RETRACTED BY WAY OF AN AFFIDAVIT FILED ON 12.03.2008 I.E. WITHIN THE 9 DAYS OF THE SURVEY BY STATING THAT THE SURVEY PROCEEDINGS WERE STARTED ON 03.03.2008 AND CONCLUDED ON 04.03.2008 AND ALL OTHER DIRECTORS, STAFF MEMBERS AND ASSESSEE HIMSELF WERE UNDER TREMENDOUS PRESSURE DURING THAT TIME AND PHYSICAL OR MENTALLY DISTURBED DUE TO PROLONG SURVEY PROCEEDINGS. HIS STATEMENT WAS RECORDED BY TIME TO TIME DURING THE SURVEY PROCEEDINGS AND HE WAS INCOHERENT AND DISTURBED STATE OF MIND DURING THAT PROCEEDINGS DUE TO MENTAL FATIGUE AND THEREFORE, WAS NOT ABLE TO UNDERSTAND THE QUESTION IN RIGHT PERSPECTIVE. IT WAS ALSO DEPOSED THAT THE SUCH SEIZED PAPER PARA NO.38 WAS RECORDED TO THE FINANCE MONEY RECEIVED FROM SHRI MOHD. IMRAN, S/O MR.MOHD. USMAN, AN INDIAN INHABITANT AGED ABOUT 58 YEARS SHRI SANJAY KUMAR SUDARANIA / ITA NO.34/AHD/2016/SRT /A.YS.:2006-07 PAGE 10 OF 17 AND RESIDING AT DAUDPUR, POST SANJARPUR, AZAMGARH, IN THE STATE OF U.P. THE SAID AMOUNT PAPER SHOWING AMOUNT RECEIVED FROM HIM BEFORE 15.06.2005 AND OUTSTANDING AMOUNT PAYABLE TO HIM AS ON 15.06.2005 WAS OF RS.45,78,092/-. THE LD.COUNSEL FURTHER CONTENDED THAT THE ASSESSEE HAS FILED A CONFIRMATION FROM SHRI MOHD. IMRAN ALONG WITH THE COPY OF PAN CARD BEFORE THE AO AND SHRI MOHD. IMRAN HAD ALSO FILED CONFIRMATION IN RESPONSE TO THE NOTICE U/S.133(6) OF THE ACT. SINCE THE RETRACTION OF STATEMENT ON OATH WAS BACKED BY THE CONFIRMATION, THE AO SHOULD HAVE ACCEPTED THE SAME. IF THE AO HAS ITSELF BELIEVED THAT THE CONTENTION OF THE ASSESSEE THAT EVIDENCES ARE FABRICATED AND CONCOCTED WITHOUT ANY DOCUMENTARY EVIDENCE AND HIS LAND HOLDING. THE LD.COUNSEL CONTENDED THAT SHRI MOHD. IMRAN IS A FARMER AND HIS MAIN SOURCE OF INCOME WAS AGRICULTURAL INCOME ONLY, HE HAD NOT MAINTAINED ANY BOOKS OF ACCOUNTS FOR ASSESSMENT YEAR 2006-07 AS HE WAS NOT HAVING TAXABLE INCOME. THUS, THE ASSESSEE HAS FULLY DISCHARGED ONUS OF EXPLAINING THE SOURCE OF AMOUNT REFLECTED AT PAGE NO.38 ON A-B65 ALONG WITH NECESSARY CONFIRMATION LETTER AND IDENTITY OF THE SAID PERSON. THE LD.AO FAILED TO APPRECIATE THE FACT THAT THE SAID PERSON HAS GIVEN CONFIRMATION OF AN INDEPENDENT ENQUIRY MADE BY THE AO AND HE HIMSELF HAD ADMITTED THE FACT THAT MONEY GIVEN TO THE ASSESSEE, THERE WAS NO REASON FOR AO TO DISBELIEVE. STATEMENT OF THE THIRD PERSON WHO HAD GIVEN THE MONEY. THE SAID PERSON SHRI MOHD. IMRAN HAD ALSO SWORN IN AN AFFIDAVIT IN THIS REGARD AND ALSO RESPONDED TO THE LETTER SENT TO HIM U/S.133(6) OF THE ACT AND SENT HIS CONFIRMATION LETTER IN THE COURSE OF ASSESSMENT. THE ASSESSEE ALSO FILED THE DETAILS OF LAND HOLDING OF SHRI MOHD. IMRAN DURING THE APPELLATE PROCEEDINGS. THUS, THE LD.COUNSEL CONTENDED THAT THE STATEMENT GIVEN BY THE ASSESSEE WAS UNDER WRONG IMPRESSION AND MISUNDERSTANDING THE STATEMENT SHRI SANJAY KUMAR SUDARANIA / ITA NO.34/AHD/2016/SRT /A.YS.:2006-07 PAGE 11 OF 17 RECORDED DURING THE SURVEY PROCEEDINGS EVIDENCE HAS HELD BY THE MADRAS HIGH COURT IN THE CASE OF S. KADER KHAN [300 ITR 157] (SUPRA). FURTHER, THE ENTRY APPEARING ON THE IMPOUNDED PAGE NO.38 CONTAINS THE DUMB DESCRIPTION, NO NAME HAS BEEN WRITTEN NOR IT IS CO-RELATED WITH THE REPAYMENT MADE BY THE ASSESSEE TO SHRI MOHD. IMRAN TO THE PERSONS NAMED ON THE LEFT HAND SIDE IN PROPOSITION NO ADDITION CAN BE MADE ON THE BASIS OF DUMB FIGURE. THE AR HAS PLACED RELIANCE IN THE CASE OF CIT VS. P.V.KALYANA SUNDARAM [294 ITR 49 (SC)], CIT VS. GIRISH CHAUDHAR [296 ITR 619 (DEL)], ASST. CIT VS. SHARAD CHAUDHARY [165 ITR 145 (DEL)] AND NISHANT CONSTRUCTION PVT. LTD. VS. ASST. CIT [49 CCH 100 (AHD)]. THE PRESUMPTION THAT THE DOCUMENT BELONGS TO PERSON FROM WHOM IT WAS RECORDED U/S.292C IS NOT APPLICABLE WHEN THE DOCUMENTS ARE DUMB AND NO INFERENCE CAN BE DRAWN ON THE BASIS OF DUMB DOCUMENT REGARDING ITS CONTENT. FOR MAKING ADDITION U/S.69, IT IS NECESSARY TO SHOW THAT INVESTMENT HAVING MADE IN THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE RELEVANT ASSESSMENT YEAR AND THE SAME ARE NOT RECORDED IN THE BOOKS. THE LD.COUNSEL PLACED RELIANCE ON THE CASE OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF USHAKANT N. PATEL VS.CIT [282 ITR 553 (GUJ)] WHEREIN SIMILAR FINDING WAS GIVEN IN RESPECT TO SECTION 69 AND SECTION 132(4A). IT IS TO BE NOTED SECTION 292C, SECTION 132(4A) ARE SIMILAR. THE RELIANCE BY LD.CIT(A) IN THE CASE OF SILK MUSEUM VS. CIT 257 ITR 22 (GUJ) (SUPRA) THAT AFFIDAVIT IS AN PIECE OF EVIDENCE WHICH ALONG WITH OTHER MATERIAL ON RECORD HAS TO BE TAKEN FOR THE CONSIDERATION BEFORE ARRIVING AT A FINDING IS CONCERNED. HOWEVER, A STATEMENT OF THE DEPONENT CAN BE HELD TO BE UNRELIABLE EITHER ON THE BASIS OF CROSS EXAMINATION OF THE DEPONENT OR BY REFERENCE TO OTHER MATERIAL ON RECORD. SIMILAR VIEW HAS BEEN TAKEN BY SMT.GUNAWANTIBAI RATILAL VS. CIT 146 ITR SHRI SANJAY KUMAR SUDARANIA / ITA NO.34/AHD/2016/SRT /A.YS.:2006-07 PAGE 12 OF 17 140 (MP). SINCE THE ASSESSING OFFICER HAS NOT ALLOWED CROSS EXAMINATION OF THE DEPONENT, THEREFORE SAME CANNOT BE HELD RELIABLE IN THE LIGHT OF DECISION OF HON'BLE SUPREME COURT IN THE CASE OF MRS. MEHTA PARIKH & CO. VS. CIT (1956) 30 ITR 181 (SC) WHICH THAT THE AFFIDAVIT IS A VALID DOCUMENT UNLESS IT IS CROSS EXAMINED. 16. ON THE OTHER HAND, THE LD.SENIOR DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES AND SUBMITTED THAT THE DECISION IN THE CASE OF SARDABEN K. MODI OF HON'BLE GUJARAT HIGH COURT (SUPRA) SUPPORTS THE CASE OF REVENUE AS THE STATEMENT GIVEN BY THE ASSESSEE WAS VOLUNTARILY. 17. WE HAVE CONSIDERED THE FACTS AND PERUSED THE MATERIAL ON RECORD. IT IS SEEN THAT THE SURVEY U/S.133A OF THE ACT WAS CONDUCTED IN THE BUSINESS PREMISES OF M/S.RAMESWAR TEXTILE MILLS PVT. LTD., SURAT IN WHICH THE ASSESSEE IS ONE OF THE DIRECTORS. DURING THE COURSE OF SURVEY PROCEEDINGS A STATEMENT ON OATH OF SHRI SANJAY KUMAR SUDARANIA WAS RECORDED ON 03.03.2008 WHEREIN IN RESPONSE TO THE QUESTION NO.29, THE ASSESSEE HAS ADMITTED THAT PAGE NO.38 HAD BEEN HIS UNACCOUNTED INCOME AND HE OFFERED THE SAME FOR TAXATION. HOWEVER, IT IS NOTICED THAT THE SAID STATEMENT WAS RETRACTED BY THE ASSESSEE BY WAY OF FILING AN AFFIDAVIT DATED 12.03.2008 (PAPER BOOK, PAGE NO.23 TO 27) ON THE GROUND THAT THE STATEMENT WAS GIVEN UNDER TREMENDOUS PRESSURE DURING THE COURSE OF SURVEY AND THE ASSESSEE WAS PHYSICALLY AND MENTALLY DISTURBED DUE TO PROLONGED SURVEY PROCEEDINGS WHICH WERE STARTED ON 03.03.2008 AND CONCLUDED ON 04.03.2008. IT WAS FURTHER DEPOSED IN THE SAID AFFIDAVIT THAT THE AMOUNT FOR SAID PAGE WAS THE AMOUNT RECEIVED BY HIM FROM SHRI MOHD. IMRAN OF AZAMGARH BEFORE 15.06.2005 SHRI SANJAY KUMAR SUDARANIA / ITA NO.34/AHD/2016/SRT /A.YS.:2006-07 PAGE 13 OF 17 AND SAID AMOUNT TOGETHER WITH INTEREST WAS PAYABLE TO HIM AS ON 15.06.2005 AT RS.45,78,092/-. THE LD.COUNSEL HAS PLACED RELIANCE ON THE DECISION OF HON'BLE KERALA HIGH COURT IN THE CASE OF PAUL MATHEWS AND SONS VS. CIT (SUPRA) WHEREIN IT WAS HELD THAT A POWER OF EXAMINE A PERSON ON OATH IS SPECIFICALLY CONFERRED ON THE AUTHORISED OFFICER ON THE U/S.132(4) OF THE INCOME TAX ACT IN THE COURSE OF ANY SEARCH AND SEIZURE. THUS, THE INCOME TAX ACT, WHENEVER IT THOUGHT FIT TO EXAMINE ANY PERSON ON OATH, THE SAME HAS BEEN EXPRESSLY PROVIDED, WHEREAS SECTION 133A DOES NOT EMPOWER ANY INCOME TAX OFFICER TO EXAMINE ANY PERSON ON OATH. 18. ON THE OTHER HAND, WHATEVER STATEMENT RECORDED U/S.133A OF THE ACT IS NOT GIVEN ANY EVIDENTIARY VALUE, OBVIOUSLY FOR THE REASON THAT THE OFFICER IS NOT AUTHORISED TO ADMINISTER ON OATH TO TAKE ANY SWORN IN THE STATEMENT WHICH ALONE HAS AN EVIDENTIARY VALUE AS CONTEMPLATED UNDER THE LAW. THEREFORE, THERE IS MUCH FORCE IN THE ARGUMENT OF THE LD.COUNSEL FOR THE ASSESSEE THAT THE STATEMENT, ELICITED DURING THE SURVEY OPERATION HAS NO EVIDENTIARY VALUE AND THE INCOME TAX OFFICER IS AWARE OF THIS. SIMILARLY IN THE CASE OF CIT VS. S. KADER KHAN SON (2008) 300 ITR 157 (MAD) UPHELD BY THE HON'BLE SUPREME COURT CASE RELATED IN (2013) 352 ITR 480 (SC) WHEREIN IT WAS HELD THAT SECTION 133A DOES NOT EMPOWER INCOME TAX OFFICER TO EXAMINE ANY PERSON ON OATH, SO STATEMENT RECORDED U/S.133A HAS NO EVIDENTIARY VALUE AND ANY ADMISSION MADE DURING THE COURSE OF SAID STATEMENT CANNOT BE MADE BASIS OF ADDITION. WE HAVE FURTHER RELIED AND FIND SUPPORT FROM THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF PULLANGODE RUBBER PRODUCE COMPANY LTD. VS. STATE OF KERALA (1973) 91 ITR 18 (SC) WHEREIN IT WAS HELD THAT AN ADMISSION IS AN EXTREMELY A PIECE OF EVIDENCE, BUT IT CANNOT BE SAID THAT IT IS SHRI SANJAY KUMAR SUDARANIA / ITA NO.34/AHD/2016/SRT /A.YS.:2006-07 PAGE 14 OF 17 CONCLUSIVE. IT IS OPEN TO THE PERSON WHO MADE THE ADMISSION TO SHOW THAT IT IS INCORRECT. IN THE INSTANT CASE, WE FIND THAT THE ASSESSEE HAS WITHIN THE 9 DAYS OF RECORDING OF HIS STATEMENT U/S.133A HAS RETRACTED FROM THE SAID STATEMENT FOR THE FILING AN AFFIDAVIT DATED 12.03.2008 WHEREIN HE EXPLAINED THAT THE ENTRIES RECORDED IN THE SEIZED MATERIAL WERE UNANIMOUSLY ADMITTED BY HIM AS HIS INCOME, EVEN THOUGH THE SAID AMOUNT WAS RECEIVED AS LOAN FROM SHRI MOHD. IMRAN AND AFTER MAKING THE ADDITION OF RS.45,00,000/- AND INTEREST ON THE SAID SUM IS TOTAL AMOUNT TO BE PAID BY THE ASSESSEE TO SHRI MOHD. IMRAN HAS BECOME RS.45,78,092/- ON 15.06.2005. IT WAS ALSO DEPOSED BY HIM THAT THE STATEMENT WAS GIVEN UNDER THE TREMENDOUS PRESSURE AND INCOHERENT ATMOSPHERE. HENCE, SAID STATEMENT CANNOT BE TREATED AS CONCLUSIVE EVIDENCE FOR MAKING ADDITION IF THE SAME IS SUPPORTED BY THE PERSON WHO MADE THE ADMISSION TO SHOW THAT IT IS INCORRECT. WE FIND THAT THE ASSESSEE HAS FURNISHED A CONFIRMATION LETTER DATED 03.02.2014 FROM ONE SHRI MOHD. IMRAN OF DAUDPUR, AZAMGARH, UP ON 06.03.2014 IN WHICH IT HAS BEEN CLAIMED THAT THE ASSESSEE HAS RECEIVED A SUM OF RS.45,00,000/- FROM SHRI MOHD. IMRAN AFTER MAKING ADDITIONS TO THE SAID AMOUNT INTEREST ON THE ASSESSEE SUM THE TOTAL AMOUNT PAYABLE BY THE ASSESSEE TO SHRI MOHD. IMRAN WAS AT RS.45,78,092/- AS ON 15.06.2005. IT IS FURTHER CORROBORATED BY THE FACT THAT SHRI MOHD. IMRAN HAS RESPONDED TO THE NOTICE ISSUE BY THE AO U/S.133(6) OF THE ACT AND SENT HIS CONFIRMATION LETTER DIRECTLY TO THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THUS, THE RETRACTION OF THE STATEMENT BY THE ASSESSEE RECORDED DURING THE COURSE OF SURVEY IS BACKED BY THE CONFIRMATION LETTER RECEIVED FROM SHRI MOHD. IMRAN AND ALSO CONFIRMATION LETTER DATED 13.03.2014 PLACED AT PAPER BOOK, PAGE NO.16 IN THE FORM OF AN AFFIDAVIT WHEREIN HE HAS SHRI SANJAY KUMAR SUDARANIA / ITA NO.34/AHD/2016/SRT /A.YS.:2006-07 PAGE 15 OF 17 CATEGORICALLY ADMITTED THAT HE HAD GIVEN A SUM OF RS.45,00,000/- TO SHRI SANJAY KUMAR SUDARANIA AND THE OUTSTANDING AMOUNT RECEIVABLE BY HIM AS ON 15.06.2005 AT RS.45,78,092/-. WE FURTHER OBSERVED THAT THE AO HAS NOT CROSS EXAMINED THE ASSESSEE AS WELL AS SHRI MOHD. IMRAN BEFORE REBUTTING THE CONTENTION OF THE ASSESSEE. THEREFORE, IN THE LIGHT OF DECISION OF HON'BLE SUPREME COURT IN THE CASE OF ANDAMAN TIMBER INDUSTRIES VS. COMMISSIONER OF CENTRAL EXCISE (2015) 13 STD 805 (SC) WHEREIN IT HAS BEEN HELD THAT NOT ALLOWING THE ASSESSEE TO CROSS EXAMINE THE WITNESS IS A SERIOUS LAW WHICH MAKES THE ORDER NULLIFY IN AS MUCH AS VIOLATES THE PRINCIPLE OF NATURAL JUSTICE. THE LD.COUNSEL HAS ALSO PLACED RELIANCE ON CBDT CIRCULAR FILE 282/2/2003-IT, INVESTIGATION DATED 10 TH MARCH 2003 WHEREIN IT WAS STATED THAT THE INSTANCES HAVE COME TO THE NOTICE OF THE BOARD WHERE ASSESSEE HAVE CLAIMED THAT THEY HAVE BEEN FORCED TO CONFESS THE UNDISCLOSED INCOME DURING THE COURSE OF SURVEY AND OPERATIONS SUCH CONFESS, IF NOT BASED UPON THE CREDIBLE EVIDENCES ARE LATER RETRACTED BY THE CONCERN ASSESSEE WHILE FILING THE RETURN OF INCOME. IN THESE CIRCUMSTANCE ON CONFESSION DURING THE COURSE OF SEARCH AND SEIZURE OPERATIONS DO NOT SERVE ANY USEFUL PURPOSE. THEREFORE, THE AO SHOULD HAVE PLACED RELIANCE ON THE COGENT EVIDENCES SUPPORTED BY CORROBORATIVE EVIDENCES WHEREAS IN THE CASE OF THE ASSESSEE HAS DULY FILED THE COPY OF CONFIRMATION LETTER OF PAN AND AFFIDAVIT AND ENQUIRY U/S.133(6) . THE AO HAS ALSO RECEIVED REPLY FROM THE SAID CONCERN PERSON SHRI MOHD. IMRAN HAS ALSO FILED DETAILS OF AGRICULTURAL LAND HOLDING, HENCE, HIS STATEMENT AND CONFIRMATION CANNOT BE DISBELIEVED UNLESS HE HAS BEEN EXAMINED ON HIS CONFESSION BY THE AO BY HIM CROSS EXAMINATION OF THE DEPONENT AS HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF MEHTA PARIKER AND COMPANY 30 ITR 181 (SC). THE RELIANCE BY THE SHRI SANJAY KUMAR SUDARANIA / ITA NO.34/AHD/2016/SRT /A.YS.:2006-07 PAGE 16 OF 17 LD.COUNSEL ON THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF USHAKANT N. PATEL VS. CIT 282 ITR 553 (GUJ) WHEREIN IT WAS HELD THAT FOR MAKING ADDITION U/S.69 IT IS NECESSARY TO SHOW THAT THE INVESTMENT HAS BEEN MADE IN THE FINANCIAL YEAR AND SAME HAS NOT BEEN RECORDED IN THE BOOKS OF ACCOUNTS AND THEN PRE- REQUISITE THAT FOR MAKING THE ADDITION IT CANNOT BE PRESUMED TO HAVE BEEN ESTABLISHED ON THE BASIS SECTION 292(C). AS WE DISCUSSED ABOVE, DURING SURVEY ACTION THE ASSESSEE HAD CONFIRMED IN RESPONSE TO QUESTION NO.30 AT PAGE NO.13 OF HIS STATEMENT ON OATH BY DISCLOSING HIS UNACCOUNTED INCOME OF RS.45,78,092/- OTHER THAN HIS REGULAR INCOME. AND ALSO ASSURED AND AGREED TO PAY THE TAX WHICH WAS DULY RECORDED BY THE REVENUE. MOREOVER, ASSESSEE HAVE NOT PAID ANY TAX ON THE ADMITTED UNACCOUNTED INCOME TILL SURVEY ACTION, BESIDES FAILED TO DISCLOSE THE UNACCOUNTED INCOME OF RS.45,78,092/- IN HIS RETURN OF INCOME. 19. HOWEVER, DURING THE COURSE OF PRESENT ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS FURNISHED A CONFIRMATION LETTER DATED 03.03.2014 FROM ONE SHRI MOHD. IMRAN OF DAUDPUR, AZAMGARH, UP ON 06.03.2014 IN WHICH IT HAS BEEN CLAIMED THAT THE ASSESSEE HAS RECEIVED A SUM OF RS.45,00,000/-. AFTER MAKING THE ADDITION OF THE AMOUNT OF INTEREST ON THE AFORESAID SUM, THE TOTAL AMOUNT TO BE PAID BY HIM TO SHRI MOHD. IMRAN HAS BECOME RS.45,78,092/-. 20. IN THE LIGHT OF ABOVE DISCUSSION AND AFTER CAREFUL CONSIDERATION OF THE FACTS WERE OF THE CONSIDERED OPINION LOWER AUTHORITIES ARE NOT JUSTIFIED IN MAKING THE ADDITION ON THE BASIS ON STATEMENT RECORDED OR DURING THE COURSE OF SURVEY WHICH WAS LATER RETRACTED WITHIN WEEK TIME AND ALSO BACKED BY THE NECESSARY DOCUMENTARY EVIDENCES IN SUPPORT OF SAID RETRACTION. ACCORDINGLY, THE ADDITION OF SHRI SANJAY KUMAR SUDARANIA / ITA NO.34/AHD/2016/SRT /A.YS.:2006-07 PAGE 17 OF 17 RS.45,78,092/- MADE BY THE AO SUSTAINED BY THE CIT(A) IS THEREFORE DIRECTED TO BE DELETED. THIS GROUND NO.2 OF APPEAL IS THEREFORE ALLOWED. 21. GROUND NO.3 RELATES TO PASSING ASSESSMENT ORDER U/S.143(3) R.W.S 147 IS GENERAL IN NATURE, HENCE, TREATED AS DISMISSED. 22. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26-04-2018. SD/- SD/- ( . . /C.M. GARG) ( . . / O.P.MEENA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER / SURAT, DATED: 26 TH APRIL , 2018 S.GANGADHARA RAO COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / / / ASSISTANT REGISTRAR, SURAT