SMT GEETA AGARWAL, Jaipur V. DCIT, Alwar

ITA 392/JPR/2013

• Counselvise Citation: 39223114 RSA 2013
• Duration Of Justice: 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 11-04-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A K KHANDELWAL
• Assessee Lawyers: S L PODDAR
• Keywords: Gift; Income from undisclosed sources; Retraction

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR ( BEFORE SHRI HARI OM MARATHA AND SHRI N.K. SAINI ) ITA NOS. 392 & 865/JP/2013 ASSESSMENT YEARS: 2005-06 & 2009-10 PAN: ACOPA 8344 H SMT. GEETA AGARWAL VS. THE DCIT 5/2, PUNJABI BAGH EXTN CENTRAL CIRCLE CLUB ROAD, DELHI ALWAR (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.L. PODDAR DEPARTMENT BY : SHRI A.K. KHANDELWAL DATE OF HEARING : 29.01.2014. DATE OF PRONOUNCEMENT : 05.03.2014 ORDER PER HARI OM MARATHA, J.M. BOTH THESE APPEALS HAVE BEEN FILED BY THE ASSESSEE AGAINST TWO DIFFERENT ORDERS OF THE LD CIT(A), CENTRAL, JAIPUR DATED 25-03-2013 FOR THE A.Y. 2005-06 AND ORDER OF THE LD CIT(A), ALWAR DAT ED 18-10-2013 FOR THE A.Y. 2009-10. 2.0 FIRST OF ALL, WE TAKE UP THE APPEAL OF THE ASSE SSEE FOR THE A.Y. 2005 - 05 IN ITA NO.392/JP/2013. 2 3.1 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE HAS NOT PRESSED THE GROUND NO. 1. HENCE, THE SAME IS DISMIS SED BEING NOT PRESSED. 4.1 THE GROUND NO.3 OF THE ASSESSEE IS GENERAL IN N ATURE WHICH NEEDS NO ADJUDICATION. 5.1 THE GROUND NO. 2 OF THE ASSESSEE RELATES TO CON FIRMATION OF ADDITION OF RS. 19.02 LACS ON ACCOUNT OF GIFT RECEIVED BY HER. 5.2 THE FACTS OF THIS GROUND ARE THAT TOTAL GIFT RE CEIVED BY THE ASSESSEE TO THE TUNE OF RS. 19.02 LACS CAN BE WELL UNDERSTOOD B Y THE FOLLOWING CHART. S.NO. PARTY NAME PAN NO. AMOUNT REMARKS 1 DEEPAK KUMAR AHHPK0772H 551000 1. GIFT HAS BEEN RECEIVED BY WAY OF CHEQUE. 2. DONOR IS IT ASSESSEE. COPY OF ACKNOWLEDGE OF RETURN FILED. 3. COPY OF AFFIDAVIT FILED. 4. COPY OF BALANCE SHEET. 2 KARAM CHAND ABRPC8158R 600000 1. GIFT HAS BEEN RECEIVED BY WAY OF CHEQUE. 2. DONER IS IT ASSESSEE. 3. COPY OF ACKNOWLEDGE OF RETURN FILED. 4. GIFT DEED HAS BEEN FILED. 5. COPY OF AFFIDAVIT FILED. 6. COPY OF BANK ACCOUNT IS FILED. 7. EVIDENCE OF HIS SERVICE IN NTC FILED. 3 REKHA GOYAL AAHPG1052F 200000 1. GIFT HAS BEEN RECEIVED 3 BY WAY OF CHEQUE. 2. DONER IS IT ASSESSEE. 3. GIFT DEED HAS BEEN FILED. 4. COPY OF AFFIDAVIT FILED. 4 RAJESH BANSAL AAHPB3204G 551000 1. GIFT HAS BEEN RECEIVED BY WAY OF CHEQUE. 2. DONER IS IT ASSESSEE. 3. GIFT DEED HAS BEEN FILED. 4. COPY OF AFFIDAVIT FILED. 5. COPY OF ACKNOWLEDGE OF RETURN FILED. 6. COPY OF BANK A/C. TOTAL 1902000 IN THE ABOVE CHART, THE NAMES OF THE PARTIES ALNGWI TH DIFFERENT EVIDENCE GIVEN ARE ALSO MENTIONED IN THE COLUMN MARKED AS R EMARKS. THE CASE OF THE LD. AR IS THAT THE ASSESSEE HAS FURNISHED ENOUG H PROOF OF GENUINITY OF THESE GIFTS BUT THE A.O. HAS SIMPLY REJECTED THEM O N THE BASIS OF THE FOLLOWING REASONS. (A) NO RELATIONSHIP HAS BEEN UPHELD WITH THE DONO R. (B) NO SPECIFIC OCCASION WARRANTING THE GIFT HAS BEEN STATED. THERE IS NO JUSTIFICATION OF GIFTS ON GROUNDS O F HUMAN PROBABILITY AND FINANCIAL CAPACTY 5.3 THE LD. AR HAS PUT FORTH THE WRITTEN SUBMISSION IN WHICH HE HAS EXPLAINED IN DETAIL THE REASON TO UPHOLD THE GIFTS AS GENUINE. FOR READY REFERENCE, WE INCORPORATE THE RELEVANT PORTION OF T HE SUBMISSION AS UNDER:- 4 (1) GIFT OF RS. 5,51,000/- RECEIVED FROM SHRI DEE PAK KUMAR THE LEARNED CIT(A) HAS QUOTED CERTAIN DECISIONS WHI CH HOLD THAT FOR PROVING THE GENUINENESS OF GIFT THE FINANC IAL CAPACITY OF THE DONOR IS RELEVANT. THE LEARNED CIT(A) HAS FURTH ER HELD THAT IN THIS CASE NO RELATIONSHIP WITH THE DONOR HAS BEE N ESTABLISHED NOR ANY OCCASION OF THE GIFT HAS BEEN MENTIONED. TH E LEARNED CIT(A) HAS FURTHER HELD THAT THE CREDITWORTHINESS O F THE DONOR WAS NOT PROVED. THE LEARNED CIT(A) HAS ACTED IN PRE SUMING THAT NOBODY WOULD PART WITH 25% OF HIS CAPITAL IN G IFT. THIS IS GUESS WORK OF THE LEARNED CIT(A). THE MAIN THING IS THAT THE ASSESSEE WAS HAVING FOUR TIME CAPITAL OF THE GIFT A MOUNT. HIS FINANCIAL CAPACITY IS PROVED BEYOND DOUBT. IT IS SU BMITTED THAT IN THE CASE OF ZAFA AHMAD AND COMPANY VS. CIT (2013 ) 214 TAXMAN 440 THE ALLAHABAD HIGH COURT HAS HELD THAT T HE GIFT COULD NOT BE TREATED AS BOGUS MERELY BECAUSE THE DO NORS WERE WEAVERS OWNING ONLY ONE LOOM. IN THIS REGARD IT IS SUFFICIENT TO SAY THAT THE DONOR IS INCOME TAX PAYER. A COPY OF T HE AFFIDAVIT REGARDING GIFT HAS BEEN FILED, HIS PAN NUMBER HAS B EEN GIVEN. THE GIFT WAS MADE THROUGH BANKING CHANNEL. COPY OF ACKNOWLEDGEMENT OF RETURN OF THE DONOR AND COPY OF BALANCE SHEET HAVE BEEN FILED. IT IS SUBMITTED THAT FOR THE ASSESSMENT YEAR 2003-0 4 THE DONOR SHRI DEEPAK KUMAR FILED RETURN DECLARING INCOME OF RS. 1,95,430/- WHICH WAS NOT A MEAGER INCOME. AS ALREAD Y SUBMITTED THE GENUINENESS OF A GIFT IS AT PAR WITH GENUINENESS OF CASH CREDIT. IN THE FOLLOWING CASES THE JURISDICTIO NAL HIGH COURT OF RAJASTHAN HAS HELD THAT ONCE CONFIRMATION IS FIL ED, EXISTENCE OF THE CREDITOR IS PROVED, THE PERSON IS HAVING PAN AND THE TRANSACTION IS THROUGH BANKING CHANNEL THEN NOTHING MORE IS REQUIRE FOR PROVING THE GENUINENESS OF THE CASH CRE DIT. IT IS NOT FOR THE ASSESSEE TO PROVE THE SOURCE OF THE SOURCE (A) MANGILAL AGARWAL VS. ACIT REPORTED IN 300 ITR 372. 5 (B) CIT VS. PADAM SINGH 215 CTR 303 (C) ARAWALI TRADING CO. ITO 8 DTR 199 (D) KANHAIYA LAL JANGIR VS. CIT (2008) 217 CTR 354 IN THE CASE OF CIT VS. PADAM SINGH THE HON'BLE HIGH COURT HAS HELD THAT EXISTENCE OF A RELATIONSHIP WITH THE DONO R IS NOT RELEVANT FOR DECIDING THE GENUINENESS OF A GIFT. (I) GIFT OF RS. 6,00,000/- RECEIVED FROM SHRI KARAM CHA ND THE LEARNED CIT(A) HAS HELD THAT IN THIS CASE NO RE LATIONSHIP WITH THE DONOR HAS BEEN ESTABLISHED NOR ANY OCCASIO N OF THE GIFT HAS BEEN MENTIONED. THE LEARNED CIT(A) HAS FURTHER HELD THAT IN THE NORMAL CIRCUMSTANCES NOBODY WILL PART AWAY W ITH THE RETIREMENT BENEFITS. THUS THE LEARNED CIT(A) HAS AC TED ON GUESS WORK. IN THIS REGARD IT IS SUBMITTED THAT SH RI KARAM CHAND WAS AN EMPLOYEE OF NATIONAL TEXTILE CORPORATI ON AND SOUGHT VRS. IT WAS OUT OF THESE RETIREMENT BENEFITS THAT THE GIFT WAS MADE. THUS EXISTENCE OF FUNDS AND FINANCIAL CAP ACITY WAS PROVED BEYOND DOUBT. THE DONOR IS INCOME TAX PAYER. A COPY OF THE AFFIDAVIT REGARDING GIFT HAS BEEN FILED, HIS PA N NUMBER HAS BEEN GIVEN. THE GIFT WAS MADE THROUGH BANKING CHANN EL. COPY OF BANK ACCOUNT OF THE DONOR HAS BEEN GIVEN. DESPIT E ALL THIS THE LEARNED CIT(A) HAS DISBELIEVED THE GIFT MERELY ON T HE GUESS WORK THAT IT WAS NOT POSSIBLE IN THE NORMAL CIRCUMS TANCES THAT RETIREMENT BENEFITS WOULD BE GIVEN IN GIFT. THE LEA RNED CIT(A) HAS ACTED AGAINST THE FACTS IN EXISTENCE. FURTHER T HE LEARNED CIT(A) HAS REPEATED THE SAME GROUND OF RELATIONSHIP AND OCCASION WHICH ARE NOT RELEVANT FOR DECIDING THE GE NUINENESS OF THE GIFT. THUS THE GIFT IN THIS CASE IS GENUINE. (II) GIFT OF RS. 2,00,000/- RECEIVED FROM REKHA GOYAL THE LEARNED CIT(A) HAS HELD THAT IN THIS CASE NO RE LATIONSHIP WITH THE DONOR HAS BEEN ESTABLISHED NOR ANY OCCASIO N OF THE GIFT HAS BEEN MENTIONED. THE LEARNED CIT(A) HAS FURTHER HELD THAT IN THE BANK ACCOUNT OF THE DONOR THERE WAS USUALLY MODEST BALANCE. THE DONOR IS INCOME TAX PAYER. A COPY OF T HE AFFIDAVIT REGARDING GIFT HAS BEEN FILED, HIS PAN NUMBER HAS B EEN GIVEN. 6 THE GIFT WAS MADE THROUGH BANKING CHANNEL. COPY OF GIFT DEED HAS ALSO BEEN FURNISHED. THE LEARNED CIT(A) HAS ACT ED AGAINST THE FACTS IN EXISTENCE. FURTHER THE LEARNED CIT(A) HAS REPEATED THE SAME GROUND OF RELATIONSHIP AND OCCASION WHICH ARE NOT RELEVANT FOR DECIDING THE GENUINENESS OF THE GIFT. THUS THE GIFT IN THIS CASE IS GENUINE. (III) GIFT OF RS. 5,51,000/- RECEIVED FROM SHRI RAJESH BA NSAL THE LEARNED CIT(A) HAS HELD THAT IN THIS CASE NO RE LATIONSHIP WITH THE DONOR HAS BEEN ESTABLISHED NOR ANY OCCASIO N OF THE GIFT HAS BEEN MENTIONED. THE LEARNED CIT(A) HAS FURTHER HELD THAT THE CREDITWORTHINESS OF THE DONOR WAS NOT PROVED. T HE LEARNED CIT(A) HAS ACTED IN PRESUMING THAT NOBODY WOULD PAR T WITH 25% OF HIS CAPITAL IN GIFT. THIS IS GUESS WORK OF T HE LEARNED CIT(A). THE MAIN THING IS THAT THE ASSESSEE WAS HAV ING FOUR TIME CAPITAL OF THE GIFT AMOUNT. HIS FINANCIAL CAPA CITY IS PROVED BEYOND DOUBT. THE ASSESSEE WAS HAVING CAPITAL OF MO RE THAN 21 LACS. THE GIFT AMOUNT IS FULLY COVERED IN THIS. IT IS SUBMITTED THAT IN THE CASE OF ZAFA AHMAD AND COMPANY VS. CIT (2013) 214 TAXMAN 440 THE ALLAHABAD HIGH CO URT HAS HELD THAT THE GIFT COULD NOT BE TREATED AS BOGUS ME RELY BECAUSE THE DONORS WERE WEAVERS OWNING ONLY ONE LOOM. IN TH IS REGARD IT IS SUFFICIENT TO SAY THAT THE DONOR IS INCOME TA X PAYER. A COPY OF THE AFFIDAVIT REGARDING GIFT HAS BEEN FILED, HIS PAN NUMBER HAS BEEN GIVEN. THE GIFT WAS MADE THROUGH BANKING CHANN EL. COPY OF ACKNOWLEDGEMENT OF RETURN OF THE DONOR AND COPY OF BALANCE SHEET HAVE BEEN FILED. IT IS SUBMITTED THAT FOR THE ASSESSMENT YEAR 2003-0 4 THE DONOR SHRI RAJESH KUMAR FILED RETURN DECLARING INCOME OF RS. 1,95,500/- WHICH WAS NOT A MEAGER INCOME. AS ALREAD Y SUBMITTED THE GENUINENESS OF A GIFT IS AT PAR WITH GENUINENESS OF CASH CREDIT. IN THE FOLLOWING CASES THE JURISDICTIO NAL HIGH COURT OF RAJASTHAN HAS HELD THAT ONCE CONFIRMATION IS FIL ED, EXISTENCE OF THE CREDITOR IS PROVED, THE PERSON IS HAVING PAN AND THE TRANSACTION IS THROUGH BANKING CHANNEL THEN NOTHING MORE IS 7 REQUIRE FOR PROVING THE GENUINENESS OF THE CASH CRE DIT. IT IS NOT FOR THE ASSESSEE TO PROVE THE SOURCE OF THE SOURCE (E) MANGILAL AGARWAL VS. ACIT REPORTED IN 300 ITR 372. (F) CIT VS. PADAM SINGH 215 CTR 303 (G) ARAWALI TRADING CO. ITO 8 DTR 199 (H) KANHAIYA LAL JANGIR VS. CIT (2008) 217 CTR 354 IN THE CASE OF CIT VS. PADAM SINGH THE HON'BLE HIGH COURT HAS HELD THAT EXISTENCE OF A RELATIONSHIP WITH THE DONO R IS NOT RELEVANT FOR DECIDING THE GENUINENESS OF A GIFT. IN VIEW OF THE AFORESAID SUBMISSION AND FACTS OF TH E CASE IT IS PRAYED THAT THE GIFT MAY KINDLY BE HELD AS GENUINE AND THE ADDITION SUSTAINED BY THE LEARNED CIT(A) MAY KINDLY BE DELETED. 5.4 PER CONTRA, THE LD DR HAS RELIED ON THE ORDERS OF THE AUTHORITIES BELOW AND HAS SPECIFICALLY INSISTED ON THE ABOVE MENTIONE D THREE REASONS WHICH ACCORDING TO HIM ARE ENOUGH TO HOLD THAT THE GIFTS ARE NOT GENUINE. 5.5 AFTER CONSIDERING THE RIVAL SUBMISSIONS AND IN THE LIGHT OF THE REASONS GIVEN IN THE CASE OF SHRI PRADEEP AGARWAL VS DCIT (IN ITA NOS.395/JP/13 & 397/JP/2013 FOR THE A.Y. 2005-06 & 2009-10), WE A RE OF THE CONSIDERED OPINION THAT THE ASSESSEE HAS FILED ENOUGH EVIDENCE TO PROVE THE GENUINITY OF THESE GIFTS. THE HON'BLE RAJASTHAN HIGH COURT AND A NOTHER HIGH COURTS HAVE HELD THAT THERE NEEDS NOT BE ANY BLOOD RELATION BET WEEN THE DONOR AND THE DONE TO HOLD THE GIFT AS GENUINE. REGARDING OTHER A SPECTS OF A.O.S REASONING 8 THAT THERE WAS NO SPECIFIC OCCASION WARRANTING THE GIVING THE GIFT AND NO JUSTIFICATION ON THE GROUND OF HUMAN PROBABILITY AN D CAPACITY OF DONORS ALSO STAND EXPLAINED IN VIEW OF THE REASONS GIVEN IN THE CASE OF SHRI PRADEEP AGARWAL, SUPRA. IN THIS CASE ALSO, THE A.O. HAS NOT BROUGHT ANY CONTRARY MATERIAL TO DISCARD THE PHENOMENAL OVERWHELMING PIE CES OF EVIDENCE PRODUCED BY THE ASSESSEE. ACCORDINGLY, WE ORDER TO DELETE THE IMPUGNED ADDITION ON MERITS SINCE THE LEGAL GROUND HAS NOT B EEN PRESSED. THUS THE APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED. ITA NO.865/JP/2013 A.Y. 2009-10 6.1 DURING THE COURSE OF HEARING, THE LD. AR OF THE ASSESSEE HAS NOT PRESSED T GROUND NO. 1. HENCE, THE SAME IS DISMISSE D BEING NOT PRESSED. 7.1 THE GROUND NO.3 OF THE ASSESSEE IS GENERAL IN N ATURE WHICH NEEDS NO ADJUDICATION. 8.1 THE ONLY SURVIVING GROUND IS GROUND NO.2 WHICH PERTAINS TO CONFIRMATION OF ADDITION OF RS. 15,45,312/- ADDED O N ACCOUNT OF UNACCOUNTED INCOME SURRENDERED BY THE ASSESSEE BY I NITIATING PENALTY PROCEEDINGS U/S 271AAA OF THE ACT. 8.2 THE ARGUMENTS OF THE LD. AR IN THIS REGARD ARE MUTATIS MUTANDIS, SAME AND SIMILAR AS TAKEN IN THE CASE OF SHRI PRADEEP AG ARWAL, (SUPRA). HOWEVER, FOR READY REFERENCE, WE INCORPORATE THEM AS UNDER:- 9 1. IN THIS CASE SEARCH WAS CONDUCTED ON 17.09.2 008. THE ASSESSMENT UNDER CONSIDERATION IS FOR THE PERIOD WH EN SEARCH WAS CONDUCTED. THE LEARNED ASSESSING OFFICER HAS NOT DI SCUSSED OR SPECIFIED ANY INCRIMINATING MATERIAL FOUND DURING S EARCH RELATING TO THE ASSESSEE FOR THE ASSESSMENT YEAR UNDER CONSIDER ATION. THE ONLY BASIS ON WHICH ADDITION HAS BEEN MADE IS ALLEGED SU RRENDER OF RS. 2.5 CRORE BY SHRI PRADEEP AGARWAL HUSBAND OF THE ASSESS EE BEFORE THE INVESTIGATION WING. THIS IS MENTIONED BY THE LEARNE D ASSESSING OFFICER IN PARA 8(I) APPEARING ON PAGE 3 OF THE ASS ESSMENT ORDER. THIS SURRENDER OF RS. 2.5 CRORE INCLUDED AN AMOUNT OF RS . 15,45,312/- PERTAINING TO THE ASSESSEE. HOWEVER THE ASSESSEE WH ILE FILING THE RETURN OF INCOME DID NOT DISCLOSE THIS AMOUNT. HENC E THE ADDITION HAS BEEN MADE. 2. NO SURRENDER BY THE ASSESSEE THE ADDITION MADE BY THE LEARNED ASSESSING OFFICER IS UNLAWFUL AND ILLEGAL AND WITHOUT ANY FOUNDATION. THE LEARNED ASS ESSING OFFICER HAS REFERRED TO SURRENDER OF RS. 15,45,312/- (TOTAL SURRENDER OF RS. 83,07,825/-) FOR ASSESSMENT YEAR 2009-10 BY SHRI PR ADEEP AGARWAL HUSBAND OF THE ASSESSEE. THE TOTAL SURRENDER REFERR ED IS OF RS. 2.5 CRORES. IT IS SUBMITTED THAT NO SURRENDER WAS MADE BEFORE THE LEARNED ASSESSING OFFICER BY THE ASSESSEE OR BY THE HUSBAND OF THE ASSESSEE. THE ASSESSEE DID NOT MAKE ANY SURRENDER EVEN BEFORE THE INVESTIGATION WING OF THE DEPARTMENT. THE ASSESSEE IS INDEPENDENT OF HER HUSBAND SO FAR AS INCOME TAX AND OTHER LEGAL MATTERS ARE CO NCERNED. IT IS NOT THE CASE OF THE LEARNED ASSESSING OFFICER THAT THE ASSE SSEE AGREED EITHER BEFORE HIM OR BEFORE THE INVESTIGATION WING WHERE T HE SURRENDER WAS MADE BY HER HUSBAND. HENCE THE LEARNED ASSESSING OF FICER WAS NOT JUSTIFIED IN MAKING ADDITION ON THE BASIS OF ALLEGE D SURRENDER BY HER HUSBAND WITHOUT EXAMINING THE ASSESSEE ON THIS ISSU E. HENCE THE ADDITION MADE REQUIRES TO BE DELETED. 3. NO INVESTMENT IN M/S RAGHUVEER METAL INDUSTRIES LTD . THE LEARNED ASSESSING OFFICER HAS OBSERVED ON PAGE 3 OF THE ASSESSMENT ORDER PARA FIRST AS UNDER 10 'AS SUCH AMOUNT OF RS. 15,45,312/- WAS THE UNACCOUN TED INCOME OF SMT. GEETA AGARWAL WHICH WAS INVESTED IN M/S RAGHUV EER METAL INDUSTRIES LTD. IN THE FORM OF UNSECURED LOAN AND C APITAL. HOWEVER, THE ASSESSEE HAS NOT INCLUDED IN HIS INCOME FOR THE YEAR 2008-09 RELEVANT TO ASSESSMENT YEAR 2009-10'. THE OBSERVATIONS OF THE LEARNED ASSESSING OFFICER ARE PURELY ON GUESS WORK. HE HAS NOT BOTHERED TO VERIFY THE FACTS FROM THE BALANCE SHEET FILED ALONG WITH THE RETURN OF INCOME. THE PE RUSAL OF THIS BALANCE SHEET REVEALS THAT THE ASSESSEE HAS DULY DI SCLOSED HIS INVESTMENT IN THE BALANCE SHEET IN HER INDIVIDUAL B ALANCE SHEET. THUS THE LEARNED ASSESSING OFFICER HAS WRONGLY OBSERVED THAT THE ASSESSEE INTRODUCED AN AMOUNT OF RS. 15,45,312/- AS UNSECURE D LOAN AND CAPITAL IN M/S RAGHUVEER METAL INDUSTRIES WHICH WAS NOT DIS CLOSED BY HER. THE ADDITION HAS THEREFORE BEEN MADE ON A WRONG GRO UND AND UNDER A WRONG NOTION THE SAME DESERVES TO BE DELETED. THE LEARNED ASSESSING OFFICER HAS NOT REFERRED TO A NY SEIZED MATERIAL INDICATING INVESTMENT OF THE ASSESS EE WITH M/S RAGHUVEER METAL INDUSTRIES. HE HAS REFERRED SIMPLY TO THE LETTER OF SURRENDER WRITTEN BY THE HUSBAND OF THE ASSESSEE. S UCH LETTERS ARE WRITTEN PURELY ON ESTIMATE BASIS AND SOMETIMES JUST TO PLEDGE THE EGO OF THE INVESTIGATION WING SO AS TO ESCAPE FROM THE UNCALLED FOR HARASSMENT. FOR MAKING ADDITIONS IN THE ASSESSMENT ORDER IT IS THE DUTY OF THE LEARNED ASSESSING OFFICER TO SPECIFY AN D POINT OUT THE RELEVANT MATERIAL AND BASIS FOR SUCH ADDITION. THE LEARNED ASSESSING OFFICER HAS FAILED IN DISCHARGING HIS JOB AND HENCE THE ADDITION HAS BEEN MADE PURELY WITHOUT ANY BASIS. THE SAME THEREF ORE DESERVES TO BE DELETED. 4. ADDITION MADE WITHOUT ANY INCRIMINATING MATERIAL THE LEARNED ASSESSING OFFICER HAS REFERRED TO SURR ENDER OF INCOME OF RS. 15,45,312/- BY SHRI PRADEEP AGARWAL HUSBAND OF THE ASSESSEE. IT IS SUBMITTED THAT ADDITION CANNOT BE MADE SIMPLY ON TH E BASIS OF SURRENDER. A BLANK SURRENDER WITHOUT REFERENCE TO T HE SOURCES FROM WHICH THE INCOME WAS EARNED AND WITHOUT SPECIFICATI ON OF THE ASSETS IN WHICH THE SAME WAS INVESTED OR THE DETAILS OF EX PENDITURE THE SAME WAS CONSUMED, IS OF NO AVAIL. IT IS COMMON KNOWLEDG E THAT BEFORE THE INVESTIGATION WING ASSESSEE IS FORCED TO MAKE SURRE NDER UNDER THREAT, 11 DURESS AND FEAR. THE ASSESSEE IN ORDER TO GET RID O FF FROM THE HARASSMENT BOWS BEFORE THE AUTHORITIES. THUS SUCH F ORCED SURRENDER CANNOT BE A BASIS FOR MAKING THE ADDITION. THE LEAR NED ASSESSING OFFICER SHOULD HAVE MADE THE ADDITION AFTER MAKING REFERENCE TO SOME INCRIMINATING MATERIAL INDICATING SUCH INCOME CONCE ALED BY THE ASSESSEE. THE LEARNED ASSESSING OFFICER HAS NOT REF ERRED TO ANY SUCH MATERIAL. THE ADDITION HAS NOT BEEN MADE BASED ON A NY INCRIMINATING MATERIAL FOUND DURING SEARCH OR FOUND IN POST SEARC H INQUIRIES OR FROM THE EXAMINATION OF THE REGULAR BOOKS OF ACCOUNTS. T HE SAME DESERVES TO BE DELETED. THE LEARNED ASSESSING OFFICER HAS NO T DISCHARGED HIS JOB. HE HAS NOT POINTED THE PARTICULAR OF UNDISCLOS ED INCOME FOR WHICH ADDITION HAS BEEN MADE. ADDITION CANNOT BE MADE SIM PLY ON THE BASIS OF A FORCED SURRENDER. THE FOLLOWING CASE LAWS ARE QUOTED IN SUPPORT (I) CIT VS. BHASKAR MITTAL 73 TAXMAN 437 (CAL) WHAT IS NOT OTHERWISE TAXABLE CANNOT BECOME TAXABLE BECAUSE OF THE ADMISSION OF THE ASSESSEE. 5. NO RETRACTION BY THE ASSESSEE THE LEARNED ASSESSING OFFICER HAS REFERRED IN LAST PARA ON PAGE 4 OF THE ASSESSMENT ORDER THAT THE SURRENDER HAS BEEN RE TRACTED BY THE ASSESSEE. THE OBSERVATION OF THE LEARNED ASSESSING OFFICER ARE QUOTED BELOW 'EVEN IF, THE SURRENDER HAS BEEN RETRACTED BY SMT. GEETA AGARWAL, IT WOULD STILL BE BINDING ON THE ASSESSEE IN VIEW OF F OLLOWING DECISIONS OF SUPREME COURT OF INDIA & HIGH COURTS' IN THE ABOVE REGARD IT IS SUBMITTED THAT AT FIRST THE ASSESSEE DID NOT MAKE ANY SURRENDER AND AS SUCH THE QUESTION OF RETR ACTION DOES NOT ARISE. THEREFORE THE RATIO OF CASE LAWS QUOTED IS N OT APPLICABLE. NOTWITHSTANDING THIS ANY FORCED SURRENDER CAN BE RE TRACTED BY THE ASSESSEE IF SUCH RETRACTION IS SUPPORTED BY MATERIA L. THE APEX COURT AND OTHER COURTS OF THE COUNTRY HAVE HELD AS UNDER (A) PULLANGUEGODE RUBBER & PRODUCE CO. LTD. VS. STA TE OF KERALA 91 ITR 18 (SUPREME COURT) 12 AN ADMISSION IS EXTREMELY AN IMPORTANT PIECE OF EVI DENCE BUT IT CANNOT BE SAID THAT IT IS CONCLUSIVE AND IT IS OPEN TO THE PERSON WHO MADE THE ADMISSION TO SHOW THAT IT IS INCORRECT. (B) KAILASH BEN MOHANLAL CHOKSI V/S CIT (2008) 14 DTR (GUJ) 257 IT IS TOO MUCH TO GIVE CREDIT TO A STATEMENT RECORD ED AT MIDNIGHT WHERE A PERSON MAY NOT BE IN A POSITION TO MAKE ANY CORRECT AND CONSCIOUS DISCLOSES DISCLOSURE STATEMENT RECOR DED AT ODD HOURS CANNOT BE CONSIDERED TO BE A VOLUNTARY STATEM ENT. (C) AJIT CHINTAMAN KARVE V/S I.T.O. (2009) 311 ITR (AT) 66 (PUNA) ITAT BRANCH THAT MERELY BECAUSE AN OFFER WAS MADE HAVING NO COG ENT BASIS OR APPROVAL OF LAW THAT SHOULD NOT STOP A TAXPAYER FROM CORRECTING HIS MISTAKE. IT WAS THE DULY OF THE A.O. TO TAX ONLY THE LEGITIMATE AMOUNT FROM A TAXPAYER. IN VIEW OF THE AFORESAID FACTS NO ADDITION IS REQUI RED TO BE MADE ON THE BASIS OF STATEMENT RECORDED DURING THE COURSE OF SE ARCH OR ON THE BASIS OF SURRENDER MADE DURING THE COURSE OF SEARCH THAT TOO NOT BY THE ASSESSEE BUT BY HER HUSBAND. THUS THE LEARNED ASSES SING OFFICER WAS NOT JUSTIFIED IN MAKING THE ADDITION THE SAME DESER VES TO BE DELETED. EVEN THE LEARNED CIT(A) HAS NOT GIVEN ANY COGENT RE ASONS FOR REJECTING THE PLEA OF THE ASSESSEE. HE DID NOT BRIN G ANY EVIDENCE ON RECORD TO JUSTIFY THE ADDITION IN THE HANDS OF THE ASSESSEE PARTICULARLY WHEN THE ASSESSEE HAS DULY DISCLOSED HER INVESTMENT WITH M/S RAGHUVEER METAL INDUSTRIES IN HER PERSONAL BALANCE SHEET. THEREFORE THE WHOLE ADDITION DESERVES TO BE DELETED. 8.3 ON THE OTHER HAND, THE LD DR HAS RELIED ON THE ORDERS OF THE AUTHORITIES BELOW AND HAS FURTHER SUBMITTED SIMILAR ARGUMENTS A S WERE TAKEN IN THE CASE OF SHRI PRADEEP AGARWAL (SUPRA). 13 8.4 AFTER CONSIDERING THE RIVAL SUBMISSIONS AND WRI TTEN SUBMISSION OF THE LD. . AR, WE HOLD THE SAME VIEW AS WE HAVE TAKEN IN THE CASE OF SHRI PRADEEP AGARWAL (SUPRA). THUS IN VIEW OF THE SIMILAR REASON INGS AS TAKEN IN THE CASE OF SHRI PRADEEP AGARWAL, (SUPRA), WE ORDER TO DELET E THE IMPUGNED ADDITION OF RS. 15,45,312/- AND ALLOW GROUND NO.2 OF ASSESSE E'S APPEAL. THUS THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 9.0 IN THE RESULT, APPEALS OF THE ASSESSEE ARE PART LY ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 05-0 3-2014. SD/- SD/- ( N.K. SAINI ) (HARI OM MARATHA ) ACCOUNTANT MEMBER JUDICIAL MEMBER *MISHRA COPY FORWARDED TO :- 1. SMT. GEETA AGARWAL, DELHI 2. THE DCIT, CENTRAL CIRCLE, ALWAR 3. THE LD.CIT(A) 4. THE LD CIT 5. THE D/R 6. GUARD FILE (ITA NO.392/JP/2013) BY ORDER, AR ITAT, JAIPUR 14