SHREE RAM BALAJI DEVELOPERS & INFRASTRUCTURE PVT. LTD, Jaipur V. ACIT, Jaipur

ITA 685/JPR/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99581 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 01-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KALIKA SINGHCIT DHK
• Keywords: Retraction
• Section: 142(1); 153A

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA -@ ITA NO. 685/JP/2014 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2011-12. M/S SHREE RAM BALAJI DEVELOPERS & INFRASTRUCTURE PVT. LTD., 71/30, PRATAP NAGAR, SANGANER, JAIPUR. CUKE VS. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AAKCS 1739 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI VIJAY GOYAL (CA)& SHRI GULSHAN AGARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI KALIKA SINGH (CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 27/11/2015. MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 14/12/2015. VKNS'K@ ORDER PER T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 13/08/2014 OF THE LEARNED CIT(A), CENTRAL, JAIPUR F OR A.Y. 2011-12. THE RESPECTIVE GROUND OF APPEAL ARE AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW THE LD CIT(A) CENTRAL, ERRED IN CONFIRMING THE A DDITION 2 ITA NO.685/JP/2014 M/S SHREE RAM BALAJI DEVELOPERS VS. ACIT OF RS. 34,90,000/- ON ACCOUNT OF UNEXPLAINED ADVANC E GIVEN BY THE ASSESSEE COMPANY. 2. THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS O F REAL ESTATE.. SEARCH SEIZURE OPERATION WAS CARRIED OUT BY THE DEPA RTMENT ON 22/09/2010 IN THE CASE OF SHREE RAM GROUP, JAIPUR T O WHICH THE ASSESSEE BELONGS. VARIOUS ASSETS/BOOKS OF ACCOUNT AND DOCUME NTS WERE FOUND AND SEIZED AS PER ANNEXURE PREPARED DURING THE COURSE O F SEARCH. THE CASE WAS SCRUTINIZED U/S 153A/143(3) OF THE INCOME TAX ACT , 1961 (IN SHORT THE ACT). THE LD ASSESSING OFFICER ISSUED NOTICE ON 06/09/2011 U/S 142(1) READ WITH SECTION 153A OF THE ACT FOR FILING OF RETU RN OF INCOME FOR THE YEAR UNDER CONSIDERATION AND IN ITS COMPLIANCE, THE RETURN DECLARED INCOME OF RS. 13,67,790/- WAS E-FILED ON 24/01/2012. DURING THE COURSE OF SEARCH, ONE OF THE MAIN DIRECTOR SHRI RAJ KUMAR MATHUR HAD ADMITTED UNDISCLOSED INCOME IN HIS SWORN STATEMENT RECORDED O N 22/09/2010 U/S 132(4) OF THE ACT TO THE TUNE OF RS. 47 LACS ON ACC OUNT OF UNDISCLOSED ADVANCE MADE TO THE DIFFERENT PERSONS FOR PURCHASE OF LAND BY THE ASSESSEE COMPANY. THE RELEVANT PORTION OF THE STATEM ENT OF THE DIRECTOR HAD BEEN REPRODUCED BY THE ASSESSING OFFICER AS UND ER:- IZ'U 34- VKIDS ;GKWA NKIS DH DK;ZOKGH DS NKSJKU , D UHYS JAX DK UKSV&ISM (CONFERENCE PAD) IK;K X;K FTLESA IST 1 LS 3 GSA RFKK BLDKS 3 ITA NO.685/JP/2014 M/S SHREE RAM BALAJI DEVELOPERS VS. ACIT ANNEXURE-AS-EXHIBIT-14 LWPHC} FD;K X;KA D`I;K I`B LA- 1 LS 3 ESA BUNZKT D H XBZ IZFOFB;KSA DS CKJS ESA FOOJ.K NSA RFKK DEIUH L S YS[KK/KKFJ;KSA ESA LS LR;KIU DJOK;SAA MRRJ VKIDS }KJK FN[KK;H UHYS JAX DH CONFERENCE PAD FTLS ANNEXURE-AS- EXHIBIT-14 LWPHC} FD;K X;K GSA DS I`B LA- 1 LS 3 RD ESAUS NS[ K FY;K GSA BU I`BKSA IJ TKS IZFOFB;KSA DH XBZ GS OG ESJS }KJK DEIUH JH JKE CKYKTH MOYILZ ,OA BUQZKLVSDPJ IZK- FY- FTLESA ESA ,OA ESJH IFRU FUNS 'KD GSA DH RJQ LS TEHU ISVS FOFHKUU O;FDR;KSA DKS FOFHKUU RKJH[KKSA ESA FOFHKUU VFXZE JKF'K;KA NH XBZ FKH FTUDK FOOJ.K FUEU IZDKJ GSA%& -LA- RKJH[K IKVHZ DK UKE JKF'K :I ESA 1 16-07-2010 RSTFLAG 1500]000 2 07-08-2010 FXJKZT 18]00]000 3 09-09-2010 'KADJ TH 8]00]000 4 09-09-2010 JKEPUNZ 6]00]000 MIJKSDR LHKH VXZHE JKF'K;KA TEHU ISVS MDR O;FDR;KS A DKS NH XBZ FKH IJURQ LKSNK IWJK UGHA GKSUS DS DKJ.K MIJKSDR IKFVZ;KSA LS VFXZE JKF'K;KA OKFIL YS YH XBZ FKH BU VFXZE JKF'K;KSA DK LR;KIU BL DEIUH DKS YS[K CGH;KSA LS UGHA UGHA FD;K TK LDRK D;KSAFD ;G JKF'K BL DEIUH DH PKYUW FOR OKZ DH V?KKSFKR VK;S LS FN;K X;K FKK FTLESA DEIUH DK FUNS'KD RFKK IPKL IZFR 'KR 'KS;J/KKJD GKSUS DS UKRS VK;DJ DS FORH; OKZ 2010&11 ESA DJKJKSI.K DS F Y, DEIUH DS V?KKSFKR VK; EKURS GQ, LEFIZR DJ JGK GWWA BL V?KKSFKR VK; IJ YX US OKYS VK;DJ VFXZE JKF'K DS :I ESSA :I;S 15-66 YK[K DS PSD NS JGK GWWA FTLDK FOOJ.K FUEU IZDKJ GSA %& PSD LA- RKJH[K JKF'K 012829@CSAD VKWAQ JKTLFKKU FY- 08-10-2010 3]66]00 0@& 012830 22-11-2010 6]00]000@& 012831 25-03-2010 6]00]000@& DQY :I;S 15]66]000@& 4 ITA NO.685/JP/2014 M/S SHREE RAM BALAJI DEVELOPERS VS. ACIT IZ'U 35 D`I;K ;G CRKB;S FD VKI VIUH RJQ LS VU; DQN DGUK PKGRS GSA\ MRRJ ESA LC DQN CRK PQDK GWWA RFKK ;G DGUK PKGRK G WWA FD ESUSTJ MIJKSDR I`B 25 LS 34 DS MRRJ ESA :I;S 15]66]000@& DEIUH DS GKFK ESA 47]00]000@& VK;DJ DS DJKJKSI.K DS V?KKSFKR VK; LEF IZR DH GSA OG LOSPNK LS FCUK FDLH NCKO DS FN;K GSA RFKK EQ>S BLESA DRBZ DQN HKH VKIFR UGHA RFKK ESA LE; IJ PSDKSA DKS FDY;J DJOKDJ FOHKKX DK IWJK LG;KS X D:AXKA ON VERIFICATION OF RETURN FILED IN RESPONSE TO NOTI CE ISSUED BY THE ASSESSING OFFICER, THE ASSESSEE HAD DECLARED ONLY I NCOME OF RS. 18.6 LACS AS AGAINST ADMITTED BY THE DIRECTOR OF THE COMPANY AT RS. 47 LACS. THE LD ASSESSING OFFICER GAVE REASONABLE OPPORTUNITY OF BE ING HEARD TO THE ASSESSEE, WHICH WAS AVAILED BY THE ASSESSEE BY SUBMI TTING AS UNDER:- THE ASSESSEE HAS SURRENDERED THESE ADVANCES OF RS. 47,00,000/- AS SAYING IN THE SEARCH STATEMENT THAT THESE ADVANCES WERE MADE OUT OF HIS UNDISCLOSED INCOME. AT THE SAME TIME, THE ASSESSEE IN THE SEARCH STATEMENT SAI D THAT THESE ADVANCES WERE RECEIVED BACK. THE AMOUNT OF ADVA NCE OF RS. 15,00,000/- TO TEJ SINGH WAS GIVEN OUT OF UNDISCL OSED INCOME OF THE ASSESSEE. THIS AMOUNT WAS RECEIVED BACK ON 03/8/2010 AS THE DEAL WAS NOT MATERIALIZED. THE ASSES SEE ON THE SAME DATE MADE ADVANCE OF RS. 18.00 LACS TO GIR IRAJ BY UTILIZING RS. 15.00 LACS RECOVERED FROM SHRI TEJ SIN GH AND RS. 3,00,000/- OUT OF UNDISCLOSED INCOME. IN THE ADVANC E GIVEN TO 5 ITA NO.685/JP/2014 M/S SHREE RAM BALAJI DEVELOPERS VS. ACIT SHRI SHANKER AND RAM CHANDRA, THE AMOUNT WHICH THE A SSESSEE RECEIVED BACK FROM SHRI GIRIRAJ WAS UTILIZED. THEREFO RE, IN THE TOTAL ADVANCE OF RS. 47,00,000/- THE UNDISCLOSED MO NEY WAS ROTATED AND RECYCLED AND THE NET TAXABLE INCOME COM ES TO RS. 18.00 LACS WHICH THE ASSESSEE SURRENDERED IN THE RET URN. THE LD ASSESSING OFFICER AGAIN ASKED THE ASSESSEE TO PROVE THE CONTENTION THAT DISCLOSED AMOUNT IS ROTATION OF MONEY. THE LD A SSESSING OFFICER ASKED EITHER TO FILE CONFIRMATION FROM THE PERSON C ONCERNED OR PRODUCE THEM FOR VERIFICATION. THE ASSESSEE FURTHER SUBMITTE D THAT THE ASSESSEE WAS NOT IN TOUCH WITH THEM AND THESE AMOUNTS WERE GIVE N AGAINST LAND TRANSACTION BUT WHICH COULD NOT BE MATERIALIZED, THE REFORE, AMOUNT RECEIVED BACK AND THE ASSESSEE WAS NOT IN POSITION T O PRODUCE THE SAME AS THEY ARE IN THE CONTACT OF ASSESSEE. THE LD ASSES SING OFFICER HELD THAT AS PER SEIZED DIARY ANNEXURE-AS, EXHIBIT 14 SEIZED FROM OFFICE AT F-8, PRATAP PLAZA, JAIPUR, THE DETAILS OF ADVANCES GIVEN WERE DULY MENTIONED THEREIN, BUT THERE WAS NO MENTION OF ALLEGED RETURN ING OF SUCH ADVANCES IN THE DIARY, ALTHOUGH IT IS ALLEGEDLY CLAIMED AS R ETURN BACK TO SOME EXTENT BEFORE THE SEARCH DATE I.E. 22/09/2010. THE LD ASSE SSING OFFICER FOUND THE RETURNING OF THE ADVANCE DIARY IS AN AFTERTHOUGHT A ND CONCOCTED THEORY TO RETRACT FROM THE VOLUNTARY DISCLOSURE MADE DURING T HE COURSE OF SEARCH AND TO REDUCE THE TAX LIABILITY OF THE COMPANY. THE LD ASSESSING OFFICER 6 ITA NO.685/JP/2014 M/S SHREE RAM BALAJI DEVELOPERS VS. ACIT FURTHER HELD THAT THE ASSESSEES STATEMENT RECORDED U/S 132(2) IS BINDING FOR WHICH THE LD ASSESSING OFFICER RELIED ON THE DEC ISION IN THE CASE OF STERLING MACHINE TOOLS VS. CIT 122 ITR 926 (ALL), CIT VS. DURGA PRASAD MORE 82 ITR 540 (SC) AND DR. S.C. GUPTA VS. CIT 248 I TR 782 (ALL). ACCORDINGLY HE MADE ADDITION OF RS. 34,90,000/- ON ACCOUNT OF UNDISCLOSED INCOME NOT DISCLOSED BY THE ASSESSEE IN THE RETURN. 3. BEING AGGRIEVED BY THE ORDER OF THE LD ASSESSING OFFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WH O HAD CONFIRMED THE ADDITION BY OBSERVING THAT THE COMPANY ADVANCED THE SE MONEY FROM THE UNDISCLOSED SOURCE BUT IT CLAIMED THAT HIS ADVANCES WERE RETURNED BACK THEREAFTER SUBSEQUENT ADVANCES WERE GIVEN. THE DIRECT OR OF THE COMPANY FILED AFFIDAVIT BEFORE THE LD CIT(A) AND CLAIMED THA T RS. 15.00 LACS ADVANCED TO TEJ SINGH ON 16/07/2010 WAS RECEIVED BACK ON 03/8/2010 AND TO THIS AMOUNT WAS ADDED RS. 3 LACS IN CASH AND THEN THE AMOUNT OF RS. 18 LACS WAS GIVEN ON 03/8/2010 TO GIRIRAJ WHICH WA S RECEIVED BACK ON 20/08/2010, SINCE THE DEAL DID NOT MATERIALIZE, THE REFORE, RS. 14 LACS WERE ADVANCED (RS. 8 LACS TO SHANKAR AND RS. 6 LACS TO R AMCHANDRA). THE LD CIT(A) HELD THAT THIS AVERMENT IS FUNDAMENTALLY DEFE CTIVE BECAUSE THE AVERMENTS MADE ARE NOT RECONCILIABLE WITH FACTS AVAI LABLE ON RECORD. FIRST OF ALL, IN NONE OF THE PAGES HAS ANY NOTING BEEN MA DE REGARDING RETURN OF 7 ITA NO.685/JP/2014 M/S SHREE RAM BALAJI DEVELOPERS VS. ACIT ANY AMOUNT. BUT IN THE AFFIDAVIT SHRI RAJ KUMAR MAT HUR HAS RELIED ON HIS STATEMENT U/S 132(4) WHEREIN HE HAS MENTIONED THAT T HESE ADVANCES HAD BEEN RETURNED IN WHICH CASE THE ENTIRE AMOUNT OF RS . 47 LACS IN CASH SHOULD HAVE BEEN FOUND DURING THE SEARCH JUST ELEVE N DAYS LATER, BUT THIS WAS NOT FOUND. MOREOVER, NO EVIDENCE WAS FOUND REGAR DING THIS AMOUNT HAVING BEEN REINVESTED ELSEWHERE. SECONDLY THE SAME NOTING WAS FOUND ON ALL THE THREE PAGES WHERE THE DETAILS OF ADVANCE S WERE NOTED BUT NO DETAILS OF RETURN OF THESE ADVANCES WERE NOTED. GIVE N THIS FACT HOW CAN IT BE PRESUMED THAT IN TWO CASES, THE ADVANCES WERE RETU RNED AND IN TWO CASES THE ADVANCES WERE STILL WITH THE LAND HOLDERS. THIS AFFIDAVIT IS CLEARLY A SELF SERVING DOCUMENT THE DEPOSITION IN WHICH IS N OT SUPPORTED BY ANY EVIDENCE AND THEREFORE IT IS HELD TO BE UNRELIABLE EVIDENCE. SUBSEQUENTLY, THE ASSESSING OFFICER AS WELL AS LD CIT(A) ALLOWED THE ASSESSEE TO PRODUCE THE PARTIES FOR VERIFICATION OF AFFIDAVITS/AVERMENT S MADE. NO CONFIRMATION HAD BEEN FILED TO WHOM ADVANCES WERE GIVEN. THE ASSESS EE HAD NOT MENTIONED THE RECEIPT OF THE UNDISCLOSED CASH AS HE IS HABITUAL IN WRITING THE SAME WHICH CAN BE EVIDENT FROM ANNEXURE-AS, EXHI BIT-1 WHERE THE AMOUNT OF RS. 15 LACS WAS RETURNED BY SHRI LAXMAN BA NSAL KUMHER AND GIVEN TO RUDRA DEV SHARMA ON 05/09/2009. SIMILARLY IT HAS BEEN MENTIONED THAT AN AMOUNT OF RS. 2 LACS WHICH RETURNE D BY LAXMAN BANSAL 8 ITA NO.685/JP/2014 M/S SHREE RAM BALAJI DEVELOPERS VS. ACIT AND GIVEN TO VARUN SHARMA ON 25/08/2010. THUS THE AS SESSEE WAS MAKING CLEAR CUT ENTRIES OF ADVANCES GIVEN AND RECE IVED BACK, WHICH FURTHER AFFIRMS THE FINDING THAT SINCE NO NOTING HA D BEEN MADE ON THESE PAGES THAT THESE AMOUNTS WERE RETURNED BACK, IT CAN NOT BE PRESUMED THAT THEY WERE RETURNED ON THE SPECIFIC DATES MENTIO NED BY THE ASSESSEE IN THE AFFIDAVIT. THE ASSESSEE DURING THE COURSE OF APPELLATE PROCEEDINGS WAS ALSO DIRECTED TO FURNISH THE ADDRESSES, PAN IF A NY, BANK STATEMENTS, CONFIRMATIONS AND THE DETAILS OF LAND FOR WHICH ADVA NCES TO THESE PERSONS HAD BEEN MADE. HAD THE DETAILS OF LAND BEEN GIVEN B Y THE ASSESSEE, IT WOULD HAVE ENABLED THE DEPARTMENT TO CONDUCT INQUIRY FROM THE LAND OWNERS AS ITS LEVEL TO CONFIRM THE AVERMENTS MADE IN THE AFFIDAVIT. THE ASSESSEE HAD NOT SUBMITTED ANY INFORMATION AND IN A BSENCE OF ANY INFORMATION, IT IS NOT POSSIBLE TO VERIFY THE AVERM ENTS MADE IN THE AFFIDAVIT FILED BY THE DIRECTOR OF THE APPELLANT COMPANY. SHE FURTHER RELIED ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN TH E CASE OF CIT VS. ASHOK KUMAR SONI, 291 ITR 172 WHEREIN IT HAS BEEN HELD THA T THE ADMISSION IS A RELEVANT AND STRONG PIECE OF EVIDENCE THAT MAY BE U SED AGAINST THE PERSON MAKING SUCH ADMISSION BUT IT IS NOT CONCLUSI VE PROOF OF STATEMENT CONTAINED IN THE ADMISSION AND CAN ALWAYS BE REBUTT ED AND EXPLAINED. THE LD CIT(A) FURTHER HELD THAT IN THE INSTANT CASE, THE ASSESSEE COMPANY 9 ITA NO.685/JP/2014 M/S SHREE RAM BALAJI DEVELOPERS VS. ACIT HAD FAILED TO REBUT THE ADMISSION MADE U/S 132(4) O F THE ACT. THEREFORE, SHE CONFIRMED THE ADDITION OF RS. 34.90 LACS MADE B Y THE LD ASSESSING OFFICER. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE US. THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THERE WAS A SEARCH ON THE BUSINES S PREMISES OF THE ASSESSEE ON 22/9/2010. DURING THE COURSE OF SEARCH, STATEMENT U/S 132(4) OF THE ACT WAS RECORDED AND DIRECTOR OF THE ASSESSEE COMPANY DISCLOSED RS. 47 LACS AS UNDISCLOSED INCOME ON THE BASIS OF SEIZED MATERIAL BUT IN RETURN, THE ASSESSEE HAS DISCLOSED ONLY RS. 18 LACS OUT OF RS. 47 LACS DISCLOSED AND RS. 60,000/- ON ACCOUNT O F CASH SHORTAGE FOUND AT THE TIME OF SEARCH. THE DIRECTOR OF THE COMPANY D URING THE COURSE OF RECORDING OF STATEMENT ADMITTED THAT THESE AMOUNTS HAD RETURNED BACK FROM THESE PERSONS AS LAND TRANSACTIONS HAD NOT BEE N MATERIALIZED. THE LD AR HAS DRAWN OUR ATTENTION ON STATEMENT RECORDED ON 22/09/2010 IN ANSWER TO QUESTION NO. 34 OF THE STATEMENT. AS REGAR DS THE CONFIRMATION FROM THE PARTIES AND TO PRODUCE THE PARTIES PERSONA LLY BEFORE THE LD ASSESSING OFFICER HE ARGUED THAT THE ASSESSEE HAD N O REGULAR DEALING WITH THE PERSONS AS MENTIONED IN THE SEIZED PAPER TO WHOM THE ADVANCE OF RS. 47 LACS WERE GIVEN AND ON THE BASIS OF WHICH SURRENDE R WAS MADE DURING THE COURSE OF SEARCH AND PRESENT WHEREABOUTS/ADDRES SES OF THOSE 10 ITA NO.685/JP/2014 M/S SHREE RAM BALAJI DEVELOPERS VS. ACIT PERSONS ALSO NOT KNOWN TO THE ASSESSEE. THEREFORE, TH E ASSESSEE COULD NOT SUBMIT THE ADDRESSES/PAN OF SUCH PERSONS. THERE WAS NO AGREEMENT MADE WITH THEM. THESE WERE THE ADVANCES GIVEN TO THESE PERSONS. ONLY 20% OF SUCH DEALING MATURED TO THE FINALITY AND IN 80% OF THE CASES THE ADVANCED MONEY IS RETURNED BACK. THE ADVANCES HAD BE EN GIVEN TO THE PROSPECTIVE SELLER TO SECURE AN INTEREST OF THE ASS ESSEE IN THE PROPERTY IN THE DEAL AND WHEN FINAL AGREEMENT IS REACHED THEN ON LY THE PAPER WORK WITH REGARD TO THE TITLE OF THE PROPERTY IS EXECUTED . IT IS FURTHER ARGUED THAT WHEN THE AMOUNT GIVEN WAS UNACCOUNTED MONEY AND IN SUCH CASES IT IS NOT POSSIBLE TO OBTAIN CONFIRMATION ETC. FROM TH E PARTIES AS THEY CAN KNOW THAT THE ASSESSEE HAS BEEN SEARCHED BY THE DEPA RTMENT, THEREFORE, THEIR NON-COOPERATIVE ATTITUDE GENERALLY IS SHOWN BY SUCH TYPE OF PARTIES. DURING THE COURSE OF STATEMENT, THE DIRECTOR CATEGO RICALLY ADMITTED THAT THESE TRANSACTIONS WERE NOT MATERIALIZED AND ADVANCE S WERE RETURNED BACK FOR WHICH THE ASSESSEE HAS FILED AN AFFIDAVIT B EFORE THE ASSESSING OFFICER, WHO HAD REJECTED THE ASSESSEES SUBMISSIONS ON SURMISES AND CONJECTURE. THE LD ASSESSING OFFICER HAD ALSO NOT EX AMINED THE ASSESSEE AFTER FILING THE AFFIDAVIT. AFTER THE AFFIDAVIT WAS FILED BEFORE THE ASSESSING OFFICER HE REMAINED SILENT ON THE FACE OF IT AND CA RRIED NO INQUIRY THEREON TO VERIFY THE CORRECTNESS THEREOF. THE ASSESSEE WAS ALSO NOT CROSS 11 ITA NO.685/JP/2014 M/S SHREE RAM BALAJI DEVELOPERS VS. ACIT EXAMINED ON THE POINT OF RETRACTION. HE RELIED ON T HE FOLLOWING DECISIONS FOR SUBMISSIONS OF AFFIDAVIT:- (I) MEHTA PARIKH & CO. VS. CIT (1958) 30 ITR 181 (SC ). (II) DILIP KUMAR RAO VS CIT (1974) 94 ITR 1 (BOM); (III) MALWA KNITTING WORKS VS CIT (1977) 107 ITR 379, 381 MP (IV) SRI KRISHNA VS CIT (1983) 142 ITR 618 (ALL). THE LD CIT(A) GIVEN THE EXAMPLE IN HER FINDINGS ON TH E BASIS OF ANNEXURE- AS-12 PAGE NO. 1 TO 3 BUT ON WHICH NO DATE AND ADDR ESS HAD BEEN MENTIONED. FURTHER, THE AUTHOR OF THE DOCUMENT AS-1 PAGE 21 AND 22 AND AS 14 PAGE 1 TO 3 IS NOT ONE AND SAME PERSON AS HAN D WRITING IS TOTALLY DIFFERENT. THE CBDT HAD ISSUED INSTRUCTION NO. F.NO. 286/2/2003-IT (INV) DATED 10/03/2003 FOR FORCE CONTENTION DURING THE CO URSE OF SEARCH AND SURVEY PROCEEDINGS. HE FURTHER RELIED ON THE FOLLOWI NG CASE LAWS FOR RETRACTION OF STATEMENT RECORDED U/S 134(4) OF THE ACT. (I) PULLANGODE RUBBER PRODUCE CO LTD V/S STATE OF K ERALA & ANOTHER (1973) 91 ITR 18 (SC). (II) CIT V/S ASHOK KUMAR SONI 291 ITR 172 (RAJ.). (III) JAGDISH NARAIN RATAN KUMAR V/S ACIT 22 TW 209 (JP). (IV) CIT VS. BHANWAR LAL MURWATIYA (RAJASTHAN HIGH COU RT, JODHPUR) 39 TW 214. (V) THE JODHPUR ITAT BENCH IN MAHESHWARI INDUSTRIES V . ASSTT. CIT [2005] 148 TAXMAN 74 (JODH) (MAG.) (VI) RAJESH JAIN VS. DCIT 100 TTJ 929 (ITAT, DELHI ' A' BENCH). (VII) KRISHNA TERINE (P) LTD. VS. ACIT, ITAT, AHMEDAB AD D BENCH 56 DTR, ITAT 395 12 ITA NO.685/JP/2014 M/S SHREE RAM BALAJI DEVELOPERS VS. ACIT VIII) JYOTICHAND BHAICHAND SARAF & SONS (P) LTD. VS . DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE 11(1) IN APPEAL NO. 08(PN) OF 2011 (BOCK PERIOD 1996-97 TO 2002-03) THE I.T.A.T. PUNE BENCH A VIDE ORDER DATED 27-07-2012. IX) SHRI RADHEY SHYAM MITTAL IN ITA NO 420/JP/2012 ORDER DATED 26-08-2013. THE LD AR FURTHER ARGUED THAT REPAYMENT OF ADVANCES ARE RECORDED IN THE BOOKS OF ACCOUNT. THE COPY OF THE LEDGER ACCOUNT OF THE CONCERNED PARTIES WAS PRODUCED BEFORE THE LD A.O.. THE LD A.O. HAS NOT REJECTED THE BOOKS OF ACCOUNT. THEREFORE, THE ENTRIES OF THE REP AYMENT OF ADVANCES SHOULD BE TAKEN AS CORRECT. SINCE THERE WAS ROTATION OF FUNDS, THEREFORE, THE ADDITION SHOULD BE MADE ONLY FOR THE PEAK NOT F OR THE WHOLE AMOUNT, FOR WHICH HE RELIED ON THE FOLLOWING DECISIONS: (I) ANANTHRAM VEERA SINGHAIAH & CO VS CIT [1980] 12 3 ITR 457 (SC). (II) CIT VS THYARYA MAL BAL CHAND [1987] 165 ITR 453 (RAJ.) (III) CIT VS JAWANMAL GEMAJI GANDHI 151 ITR 353 (BOM ). ACCORDINGLY, HE PRAYED TO DELETE THE ADDITION. 5. AT THE OUTSET, THE LD CIT DR HAS VEHEMENTLY SUPPO RTED THE ORDER OF THE LD CIT(A) AND ARGUED THAT THE ASSESSEE MADE DISC LOSURE U/S 132(4) OF THE ACT ON THE BASIS OF SEIZED MATERIAL, WHICH IS B INDING ON THE ASSESSEE. THE ASSESSEE HAS NOT PRODUCED THE CONCERNED PERSONS AND NO 13 ITA NO.685/JP/2014 M/S SHREE RAM BALAJI DEVELOPERS VS. ACIT CONFIRMATION HAS BEEN FILED BY THE ASSESSEE TO REBU T THE CONTENTION OF THE RETURN AS WELL AS AFFIDAVIT. THEREFORE, HE PRAYED THA T THE LD CIT(A)S ORDER MAY PLEASE BE UPHELD. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. DURI NG THE COURSE OF SEARCH, AT THE TIME OF RECORDING OF STATEMENT, THE MAIN DIRECTOR OF THE COMPANY SHRI RAJ KUMAR MATHUR HAD CATEGORICALLY ADM ITTED THAT THE COMPANY HAD MADE UNACCOUNTED PAYMENT TO THESE PERSO NS ON ACCOUNT OF ADVANCE AGAINST THE LAND PURCHASED BUT TRANSACTION COULD NOT BE MATERIALIZED AND ADVANCES RETURNED BACK. THE ASSESSE E BY NOT DISCLOSING THE FULL DISCLOSURE IN THE RETURN OF RS. 47 LACS HA D RETRACTED FROM THE STATEMENT GIVEN U/S 132(4) OF THE ACT. FURTHER AT T HE TIME OF ASSESSMENT PROCEEDINGS THE ASSESSEE FILED AFFIDAVIT TO SUBSTAN TIATE HIS RETURNED INCOME FILED ON ACCOUNT OF DISCLOSURE. IT IS UNDISP UTED FACT THAT THESE TRANSACTIONS WERE UNRECORDED/UNDISCLOSED BUT SAME TI ME THE CASH HAS BEEN RETURNED BACK TO THESE PARTIES AS ADMITTED BY THE DIRECTOR DURING THE COURSE OF RECORDING OF STATEMENT ITSELF. THE AF FIDAVIT WAS THE FURTHER SUPPORT AGAINST THE CONTENTION MADE BY THE ASSESSEE DURING THE COURSE OF SEARCH. IT IS ALSO A FACT THAT WHEN UNRECORDED TRANS ACTIONS ARE MADE, THE CONCERNED PARTIES ALWAYS BECOME NON-COOPERATIVE, THE REFORE, IT IS DIFFICULT 14 ITA NO.685/JP/2014 M/S SHREE RAM BALAJI DEVELOPERS VS. ACIT TO ASSESSEE EITHER FILED THE CONFIRMATION OR PRODUC ED THE CONCERNED PERSONS FOR VERIFICATION WITH WHOM UNACCOUNTED TRANS ACTIONS WERE MADE. THE STATEMENT MADE U/S 132(4) IS BINDING BUT REBUTTA BLE. AS THE DIRECTOR OF THE COMPANY AT THE TIME OF SEARCH IN HIS STATEME NT HAD CLEAR CUT ADMITTED THESE FACTS THAT HE RETURNED BACK THE CASH FROM THESE PARTIES. THE AFFIDAVIT FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS IS ALSO AN EVIDENCE AS PER EVIDENCE ACT. THE CASE LAWS RELIED BY THE ASSESSEE FOR SUBMISSION OF AFFIDAVIT ARE SQUARELY APPLICABLE, TH EREFORE, WE REVERSE THE ORDER OF THE LD CIT(A) AND ADDITION MADE BY THE LD A SSESSING OFFICER AND CONFIRMED BY THE LD CIT(A) IS DELETED. 7. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14/12/2015. SD/- SD/- YFYR DQEKJ VH-VKJ-EHUK (LALIET KUMAR) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 14 TH DECEMBER, 2015 RANJAN* VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- M/S SHREE RAM BALAJI DEVELOPERS & INFRASTRUCTURE PVT. LTD., JAIPUR. 15 ITA NO.685/JP/2014 M/S SHREE RAM BALAJI DEVELOPERS VS. ACIT 2. IZR;FKHZ @ THE RESPONDENT- THE ACIT, CENTRAL CIRCLE-3, JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 685/JP/2014) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR