Sh. Rakesh Jain, Chandigarh V. ACIT, Chandigarh

ITA 773/CHANDI/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8916 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 09-08-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 03-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Retraction; Documents seized
• Section: 143(3); 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO.773/CHD/2014 (ASSESSMENT YEAR : 2008-09) SH.RAKESH JAIN, VS. THE A.C.I.T., SCO 24, SECTOR 17-E, CENTRAL CIRCLE-1, CHANDIGARH. CHANDIGARH. PAN: ABBPJ3253G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VINEET KRISHAN RESPONDENT BY : SHRI SUSHIL KUMAR, CIT DR DATE OF HEARING : 27.09.2016 DATE OF PRONOUNCEMENT : 16.12.2016 O R D E R PER ANNAPURNA GUPTA, A.M . : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)(CENTRAL), GURGAON DATED 6.6.2014 RELATING TO ASSESSMENT YEAR 2008-09. 2. BRIEF FACTS RELATING TO THE CASE ARE THAT SEARC H WAS CONDUCTED ON THE RESIDENTIAL PREMISES OF THE AS SESSEE ON 28.11.2007. CASH AMOUNTING TO RS.4,75,000/- AND SOME INCRIMINATING DOCUMENTS WERE SEIZED. NO DISCL OSURE WAS MADE BY THE ASSESSEE WHILE RECORDING STATEMENT DURING THE SEARCH OPERATION. ON 30.11.2007, THE AS SESSEE 2 SURRENDERED THE FOLLOWING , BY WAY OF LETTER ADDRES SED TO THE DDIT(INVESTIGATION), PANCHKULA : A) RS.10 LACS TO COVER DISCREPANCIES IN DOCUMENTS SEIZED. B) RS.6,30,000/- ON ACCOUNT OF AMOUNT INVESTED BY THE WIFE IN SHARES, MUTUAL FUNDS, UNITS ETC. 3. THUS, A TOTAL SURRENDER OF RS.16,30,000/- WAS MADE BY THE ASSESSEE IN HIS INDIVIDUAL CAPACITY. THEREAFTER RETURN WAS FILED AND THE DISCLOSURE MAD E WAS NOT CONSIDERED IN THE SAME. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE RETRACTED THE SURRENDER MADE VIDE LETTER DATED 29.12.2009 STATING THAT THE REASON FOR RETRACTION IS THAT THE SURRENDER WAS OBTAINED UNDER COERCION AND UNDUE PRESSURE AND NO INVESTMENTS WERE MADE BY HIM. THE ASSESSING OFFICE R REJECTED THE RETRACTION OF SURRENDER SINCE NO EVIDE NCE OF UNDUE PRESSURE EXERCISED WAS FILED BY THE ASSESSEE AND ALSO FOR THE REASON THAT HAVING ADMITTED TO THE INVESTMENTS MADE BY HIM ON ACCOUNT OF HIS WIFE TH E DENIAL BY THE ASSESSEE OF HAVING HIMSELF MADE NO INVESTMENTS HAD NO MEANING. THE ASSESSING OFFICER THEREAFTER MADE ADDITION ON ACCOUNT OF SURRENDER MA DE BY THE ASSESSEE OF RS.16,30,000/-. 4. THE LD. CIT (APPEALS) UPHELD THE ORDER OF THE ASSESSING OFFICER. 3 5. AGGRIEVED BY THE SAME, THE ASSESSEE HAS NOW COME UP IN APPEAL BEFORE US, RAISING FOLLOWING GROU NDS : 2. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE , THE ID. COMMISSIONER OF INCOME TAX (APPEALS) GRAVELLY ERRED IN SUSTAINING THE ADDITION OF RS.16,33,000/- MADE BY T HE ASSESSING OFFICER SOLELY ON THE BASIS OF SURRENDER MADE BY THE ASSESSEE UNDER DURESS, COERCION WHICH WAS RETRACTED BY THE ASSESSEE. 3. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) GRAVELLY ERRED IN SUSTAINING THE ADDITION OF RS. 10,00,000/- MADE BY THE LD ASSESSING OFFICER ON THE BASIS OF ALLEGED DISCREPANCY IN DOCUMENTS, WHEN NO UNEXPLAINED OR IN CRIMINATING DOCUMENT WAS FOUND DURING SEARCH AND SEIZURE OPERAT IONS. 4. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ID. COMMISSIONER OF INCOME TAX (APPEALS) GRAVELLY ERRED IN SUSTAINING THE ADDITION OF RS.6,30,000/- MADE BY TH E ASSESSING OFFICER ON ACCOUNT OF ALLEGED INVESTMENT IN SHARES, UNITS OR MUTUAL FUNDS WHEN NO SUCH INVESTMENT WAS MADE IN SHARES, UNITS OR MUTUAL FUNDS. 5. THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ID. COMMISSIONER OF INCOME TAX (APPEALS) GRAVELLY ERRED IN SUSTAINING THE ADDITIONS MADE BY THE ASSESSING OFFI CER SOLELY ON THE BASIS OF SURRENDER MADE BY THE ASSESSEE UNDER D URESS, COERCION WHICH WAS RETRACTED BY THE ASSESSEE. 6. IN THE ABOVE GROUNDS RAISED, THE ASSESSEE HAS CHALLENGED THE REJECTION OF RETRACTION OF SURRENDER MADE BY HIM AS ALSO THE ADDITION MADE ON THE BASIS OF INCRIMINATING DOCUMENTS FOUND DURING THE COURSE OF SEARCH. 4 7. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT THE RETRACTION WAS VALID SINCE THE SURRENDER HAD BEEN MADE UNDER PRESSURE AND FURTHER SINCE NO INCRIMINATING DOCUMENTS AS SUCH WERE FOUND TO SUPPORT THE ADDITION. THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT ALL DOCUMENTS FOUND WERE TOTAL LY EXPLAINED BEFORE THE LD. CIT (APPEALS) AND, THEREFO RE, THE RETRACTION WAS VALID FOR THIS REASON ALSO. 8. THE LD. DR, ON THE OTHER HAND, STATED THAT SINC E NO EVIDENCE OF EXERCISE OF COERCION OR UNDUE PRESSU RE HAS BEEN BROUGHT ON RECORD THE ARGUMENTS OF THE ASSESSE E CANNOT BE ACCEPTED. THE LD. DR STATED THAT THE FAC T THAT RETRACTION TOOK PLACE 11 MONTHS AFTER THE SURRENDER ITSELF, MAKES THE RETRACTION INVALID. THE LD. DR RELIED UP ON THE FOLLOWING CASE LAWS IN SUPPORT OF ITS ABOVE CONTENT IONS : A) NAVDEEP DHINGRA VS. CIT, 56 TAXMANN.COM 75 (P&H) B) B.KISHORE KUMAR VS. DCIT 52 TAXMANN.COM 449 (MAD) C) B.KISHORE KUMAR VS. DCIT 62 TAXMANN.COM 215 (SC) 9. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOTH THE PARTIES, PERUSED THE FINDINGS OF THE AUTHO RITIES BELOW AND CONSIDERED THE MATERIAL AVAILABLE ON RECO RD. IT IS NOT DISPUTE THAT THE ASSESSEE HAD SURRENDERED AN AMOUNT OF RS.16.33 LACS, TWO DAYS AFTER THE CONCLUS ION OF SEARCH AS FOLLOWS : 5 A) RS.10 LACS TO COVER DISCREPANCIES IN DOCUMENTS SEIZED. B) RS.6,30,000/- ON ACCOUNT OF AMOUNT INVESTED BY THE WIFE IN SHARES, MUTUAL FUNDS, UNITS ETC. 10. THE SAME IS THEREFORE, TO BE TREATED AS ADMISSION OF UNDISCLOSED INCOME OF THE ASSESSEE WIT H EVIDENTIARY VALUE AT PAR WITH THE DISCLOSURE MADE U NDER OATH UNDER SECTION 132(4) OF THE ACT. 11. THEREAFTER THE ASSESSEE HAS RETRACTED THE SURRENDER AFTER 11 MONTHS CITING EXISTENCE OF PRESS URE AND COERCION AND ABSENCE OF ANY INCRIMINATING MATER IAL AS THE REASON FOR RETRACTION. 12. THE FIRST ISSUE BEFORE US IS WHETHER THE STATEMENT MADE ON OATH CAN BE RETRACTED. WHILE THE LEARNED COUNSEL FOR THE ASSESSEE HAS STATED THAT SI NCE THE STATEMENT WAS EXTRACTED UNDER PRESSURE AND THERE WA S NO INCRIMINATING MATERIAL RELATING TO THE SURRENDER MA DE, THE SAME COULD BE RETRACTED. THE LD. DR, ON THE OTHER HAND, HAS STATED THAT THE RETRACTION OF SURRENDER AFTER L ONG TIME GAP CANNOT BE MADE. THE LD. DR RELIED UPON JUDICIA L DECISIONS IN THIS REGARD. 13. ON THIS ISSUE, WE FIND THAT THE HON'BLE SUPREM E COURT IN THE CASE OF PULLANGODE RUBBER PRODUCE CO. VS. STATE OF KERALA AND ANR. (1973) 91 ITR 18 (SC) HAS STATED THAT THE RETRACTION FROM SURRENDER OF INCOME MADE U NDER 6 SECTION 132(4) OF THE ACT MAY BE ACCEPTED ON THE FA CTS OF THE CASE. THE HON'BLE APEX COURT HELD AS UNDER : AN ADMISSION IS AN EXTREMELY IMPORTANT PIECE OF EVIDENCE BUT IT CANNOT BE SAID THAT IT IS CONCLUSIVE.IT IS OPEN TO THE PERSON WHO MADE THE ADMISSION TO SHOW THAT IT IS INCORRECT . 14. THIS PROPOSITION WAS REITERATED BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF KRISHAN L AL SHIV CHAND VS. CIT (1973) 88 ITR 293 WHEREIN THE HON'BLE HIGH COURT HELD AS UNDER : IT IS AN ESTABLISHED PRINCIPLE OF LAW THAT A PARTY IS ENTITLED TO SHOW AND PROVE THAT THE ADMISSION MADE BY HIM PREVIOUSLY IS IN FACT NOT CORRECT AND TRUE. 15. THEREFORE, IT IS SETTLED LAW THAT IF THE FACTS SO WARRANT EVEN A SURRENDER MADE ON OATH UNDER SECTION 132(4) OF THE ACT MAY BE RETRACTED. THE RELIANCE P LACED BY THE LD.DR ON THE DECISION IN THE CASE OF B.KISHORE KUMAR (SUPRA), WITH REFERENCE TO RETRACTION FROM STATEMEN T AFTER A LONG TIME GAP, WE FIND IS MISPLACED SINCE IN THAT CASE THE HONBLE COURT HAD FOUND THAT THERE WAS A CLEAR AND CATEGORICAL ADMISSION OF UNDISCLOSED INCOME WHICH W AS NOT DEMONSTRATED AS INCORRECT OR MISTAKE OF FACT AN D THEREFORE WAS HELD TO CONSTITUTE A GOOD PIECE OF EV IDENCE. 16. HAVING SAID SO, THIS RATIO HAS TO BE APPLIED T O THE FACTS OF THE PRESENT CASE. WE FIND THAT THE CO NTENTION OF THE ASSESSEE THAT THE SURRENDER WAS MADE UNDER 7 COERCION, IS UNACCEPTABLE AS HELD BY THE LD. CIT (A PPEALS) ALSO. IT IS TRUE THAT THE ASSESSEE HAS NOT BEEN AB LE TO DEMONSTRATE THE EXISTENCE OF ANY COERCION OR PRESSU RE WHILE MAKING THE SURRENDER. IN FACT, AS RIGHTLY PO INTED OUT BY THE LD. CIT (APPEALS) THE ASSESSEE HAS MADE THE SURRENDER TWO DAYS AFTER CONCLUSION OF THE SEARCH A ND NOT DURING THE CONTINUATION OF SEARCH. WHILE THE SEARCH WAS CONDUCTED ON 20.11.2007, THE ASSESSEE HAD MADE SURRENDER VIDE LETTER DATED 30.11.2007. THE ASSESS EE HAS NOT DEMONSTRATED, LEAST OF ALL WITH ANY EVIDENCE, AS TO HOW AFTER THE SEARCH TEAM HAD LEFT, PRESSURE WAS EX ERCISED ON HIM TO MAKE THE SURRENDER. IF AT ALL THERE WAS ANY PRESSURE, THE ASSESSEE OUGHT TO HAVE BROUGHT THE SA ME TO THE NOTICE OF THE DEPARTMENT IMMEDIATELY AFTER THE SURRENDER BRINGING OUT THE CIRCUMSTANCES AND MANNER IN WHICH THE PRESSURE WAS EXERCISED. THE ASSESSEE, WE FIND, HAS NOT DONE THE SAME BUT HAS IN FACT TAKEN 11 MONT HS TO STATE THAT THE SEARCH WAS MADE UNDER PRESSURE AND E VEN NOW HE HAS NOT DEMONSTRATED THE CIRCUMSTANCES AND MANNER IN WHICH THE STATEMENT WAS GIVEN UNDER PRESS URE. WE, THEREFORE, CONCUR WITH THE LD. CIT (APPEALS) TH AT THERE WAS NO PRESSURE OR COERCION AT THE TIME OF MAKING SURRENDER. 17. HAVING SAID SO, WE FIND THAT IT IS THE CONTENT ION OF THE ASSESSEE THAT THE SURRENDER WAS BEING RETRAC TED SINCE NO INCRIMINATING MATERIAL WAS FOUND DURING SE ARCH AND THE DOCUMENTS FOUND WERE ALL EXPLAINED TO THE L D. CIT 8 (APPEALS) AS MOST OF THEM RELATED TO THE PRECEDING YEAR AND SOURCE OF EXPENSE INCURRED WAS EXPLAINED. IT I S THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT IN THE ABSENCE OF ANY INCRIMINATING MATERIAL, THERE WA S NO REASON TO MAKE ANY SURRENDER AT ALL. LD.COUNSEL FOR THE ASSESSEE POINTED OUT THAT SURRENDER AND CONSEQUENT ADDITION WAS MADE TO THE EXTENT OF RS.10 LACS ON AC COUNT OF CERTAIN INCRIMINATING DOCUMENTS FOUND. THE LEAR NED COUNSEL FOR THE ASSESSEE TOOK US THROUGH EACH DOCUM ENT REFERRED BY THE ASSESSING OFFICER IN HIS ORDER AND EXPLAINED WHY IT COULD NOT BE TREATED AS INCRIMINAT ING AS FOLLOWS : EXPLANATION OF INCRIMINATING DOCUMENTS: ANNEXURE DESCRIPTION OF P.B. ASSESSEE' P.B . A-2 DOCUMENT EXPLANATION PAGE 4 DEPOSIT SLIP OF MAX 23 (A )CASH WITHDRAWN FROM 27 NEW YORK LIFE INSURANCE ANDHRA BANK ON 17.3.06 FOR RS.6000/- & 24.3.06. RS.1,30,000 DATED 26.12.06 (B) TRANSACTION DOES NOT PERTAIN TO THE YEAR. PAGE 5 DEPOSIT SLIP OF MAX 26,28 (A)CASH WITHD RAWN FROM 29 NEW YORK LIFE INSURANCE ANDHRA BANK ON FOR RS.6000/- 17.3.06, 24.3.2006 DATED 26.12.06 RS.1,30,000/- (B) TRANSACTION DOES NOT PERTAIN TO THE YEAR. PAGE 6 FEE DEPOSIT SLIP MAYO COLLEGE, 31 (A) THROUGH BANK 29,32 AJMER DATED 1.4.06 (B) TRANSACTION DOES PERTAIN TO THE YEAR PAGE 3 MAX NEW YORK LIFE 43 PAID BY ASHWANI BANSA L 43,44 INSURANCE RS.24,000 DT.7.8.07 18. SUBMISSIONS TO THE ABOVE EFFECT EXPLAINING THE ABOVE DOCUMENTS WAS FILED BEFORE THE LD.CIT(A) REPRODUCED AT PARA 5 OF THE ORDER AS FOLLOWS: 9 IN THE CASE OF THE APPELLANT THE ADDITION HAS BEEN MADE ONLY ON THE BASIS OF THE ALLEGED SURRENDER AND NOT ON THE BASIS OF THE EVIDENCE OR MATERIAL GATHERED DURING THE SEARCH/SEIZURE OPERATI ONS. THE ID. ASSESSING OFFICER HAS ALLEGED AT PAGE NUMBER 11 AN D 12 OF THE ASSESSMENT ORDER THAT INCRIMINATING DOCUMENTS WERE FOUND DURING THE SEARCH OPERATIONS BUT NO SUCH DOCUMENT HAS BEEN POINTED OUT. THE ANNEXURE A-2 TO WHICH THE ID. ASSESSING OFFICER HAS REFERRED TO AT PAGE 12 OF THE ASSESSMENT ORDER ARE NOT INCRIMINATING DOCUMENTS AND MOST OF THE TRANSACTIONS PERTAIN TO EARLIER AS SESSMENT YEARS. THE ASSESSING OFFICER HAS ALLEGED THAT THE APPELLAN T INCURRED EXPENSES IN CASH. THERE IS NO BAR/RESTRICTION UNDER THE INCOME TAX ACT THAT PERSONAL EXPENSES CANNOT BE INCURRED IN CA SH. THE ONLY THING WHICH THE ASSESSING OFFICER CAN PROBE IS THE SOURCE OF SUCH EXPENSE. IN THE CASE OF THE APPELLANT FOR EACH EXPE NSE INCURRED HE HAD SUFFICIENT CASH AND WAS INCURRED AFTER MAKING W ITHDRAWAL FROM BANK. THE DOCUMENTS/EXPENSES MENTIONED AT PAGE N UMBER 11 AND 12 OF ASSESSMENT ORDER PERTAINING TO ANNEXURE A -2 PAGE ARE EXPLAINED WITH EVIDENCE, THE SAME WERE INCURRED AFT ER WITHDRAWING THE AMOUNT FROM BANK ACCOUNT. ANNEXURE A-2 PAGE NO.4: IS A DEPOSIT SLIP ISSUED BY M/S MAX NEWY ORK LIFE INSURANCE CO. LTD. FOR RS.6,000/- DATED 26.12.2006. THE AMOUN T OF RS. 9,612/- AS ON 26.12.2007 IS MARKET VALUE OF FUND ON THAT DATE. THE SAID PAYMENT WAS MADE BY SH. RAKESH JAIN BY WITHDRAWING THE CASH FROM HIS SAVING BANK ACCOUNT NO. 18089 WITH ANDHRA BANK,,SECTOR 17, CHANDIGARH. THE BANK STATEMENT FROM WHERE THE WITHDRAWAL WAS MA DE IS ATTACHED AS ANNEUXRE-L. FURTHER THE TRANSACTION DOES NOT PER TAIN TO THE A.Y. 2008-09. PAGE NO.5: IS A DEPOSIT SLIP ISSUED BY M/S MAX NEWY ORK LIFE INSURANCE CO. LTD. FOR RS.6,000/- DATED 26.12.2006. THE AMOUN T OF RS. 9,612/- AS ON DATED 26.12.2006 IS MARKET VALUE OF FUND ON THAT DATE. THE SAID PAYMENT WAS MADE BY SH. RAKESH JAIN BY WITHDRAWING THE CASH FROM SAVING BANK ACCOUNT NO. 18089 WITH ANDHRA BANK,SECT OR 17, CHANDIGARH. THE BANK STATEMENT IS ATTACHED AS ANNEU XRE-II . FURTHER THE TRANSACTION DOES NOT PERTAIN TO THE A.Y. 2008-0 9. 01.04.2006 FOR RS. 1,12,625/. THE AMOUNT FOR PAYMEN T OF FEES WAS WITHDRAWN FROM SAVING BANK ACCOUNT NO. 18089 WITH A NDHRA BANK, SECTOR 17, CHANDIGARH. THE BANK STATEMENT IS ATTACH ED AS ANNEXURE-LLL.. FURTHER THE TRANSACTION DOES NOT PERTAIN TO A, Y. 2 008-09. PAGE NO. 3: IS A PREMIUM DEPOSIT SLIP ISSUED BY M/S MAX NEWYORK LIFE INSURANCE CO. LTD. FOR RS. 24,000/- DATED 7.8.2007, THE AMOUNT WAS PAID BY MR. ASHWANI BANSAL (BROTHER-IN-LAW OF SH. R AKESH JAIN) RESIDENT OF HOUSE NO. 1308, SECTOR 19, CHANDIGARH. THE ADDRESS MENTIONED ON THE DEPOSIT SLIP IS THAT OF MR. ASHWAN I BANSAL. THE CONFIRMATION OF SHRI ASHWANI BANSAL IS ATTACHED. 10 FURTHER RS. 82,967/- WAS PAID BY ASSESSEE ON 31-01- 2007 AND NOT 21- 05-2007 TO MAYO COLLEGE AS FEES OF HIS SON THE PAYM ENT WAS MADE AFTER WITHDRAWING RS. 80,000/- 24-01-2007 FROM ANDH RA BANK. THE DETAILS OF TRANSACTION, BANK STATEMENT AND SCHOOL F EES DEPOSIT STATEMENT ARE ATTACHED AS ANNEXURE 4. FURTHER THE DEPOSIT SLI P BEARING NUMBER 10 AND 11 AMOUNTING TO RS. 43,702/- RS. 49,000/- HA VE DULY BEEN WITHDRAWN FROM ASSESSEE'S SAVING BANK ACCOUNT NUMBE R 22914 WITH ANDHRA BANK, SECTOR 17, CHANDIGARH. THE DETAILS OF WHICH ARE ATTACHED AS ANNEXURE-IV. THE ASSESSEE HAS DEPOSITED RS. 40,000/- ON 16.6.200 6 AND RS. 40,230/- ON 17.06.2006 AS FEES IN MAYO COLLEGE. THE SE AMOUNTS HAVE BEEN WITHDRAWN BY THE ASSESSEE FROM HIS SAVING BANK ACCOUNT NO. 18091 WITH ANDHRA BANK, SECTOR 17, CHANDIGARH. THE DETAILS OF WHICH ARE ATTACHED AS ANNEXURE-V. THE TRANSACTIONS DO NOT PERTAIN TO A.Y. 2008-09. THE COPY OF THE DOCUMENT AND COPY OF BANK ACCOUNT F ROM WHERE THE WITHDRAWALS WERE MADE ARE ATTACHED. EACH AND EVERY EXPENSE HAS SOURCE DULY SUPPORTED BY EVIDENCE IN TH E SHAPE OF WITHDRAWAL FROM BANK ACCOUNT. THERE IS NO TRANSACTION WHICH REMAINED UNEXPLAINED. IN VIEW OF THE ABOVE SUBMISSIONS IT IS HUMBLY PRAYE D THAT THE ADDITION OF RS. 16,33,000/- MADE BY THE ASSESSING M AY KINDLY DELETED. 19. THE LD. DR, WE FIND HAS NOT CONTROVERTED THE ABOVE FACTS. CLEARLY, WHAT EMERGES FROM THE ABOVE THEREFORE, IS THAT THE DOCUMENTS AT ANNEXURE A-2 PA GES 4, 5, AND 6 DO NOT RELATE TO THE YEAR AT ALL. THEREFO RE, FOR THIS REASON ALONE, THEY CANNOT BE TREATED AS INCRIM INATING DOCUMENTS FOR THE PURPOSE OF MAKING ADDITION OR EVE N SURRENDER FOR THE YEAR. AS FOR DOCUMENTS AT ANNEXU RE-2, PAGE 3 THOUGH UNDENIABLY THE SAME PERTAINS TO THE IMPUGNED YEAR, IT HAS BEEN EXPLAINED AS HAVING BEEN PAID BY MR.ASHWANI BANSAL, THE BROTHER-IN-LAW OF THE ASS ESSEE, WHICH FACT IS EVIDENCED FROM HIS NAME BEING MENTION ED IN THE DEPOSIT SLIP ISSUED BY MAX NEW YORK LIFE INSURA NCE AND FURTHER BY THE AFFIDAVIT SUBMITTED BY MR.ASHWAN I BANSAL IN THIS REGARD. THESE FACTS, WE FIND, HAVE NOT BEEN 11 CONTROVERTED BY THE LD. DR. FOR THIS REASON, THE AFORESTATED DOCUMENTS CANNOT TREATED AS INCRIMINATI NG FOR THE PURPOSE OF MAKING EITHER ADDITION OR SURRENDER IN THE HANDS OF THE ASSESSEE DURING THE YEAR. THE OTHER DOCUMENTS FOUND RELATING TO CASH PAYMENTS MADE HAVE ALSO BEEN DULY EXPLAINED AS SOURCED FROM THE ASSESS EE BANK ACCOUNTS AND DUE EVIDENCES WERE ALSO FILED BEF ORE THE CIT (APPEALS). THE CIT (APPEALS) HAS NOT CONTR OVERTED THESE FACTS. 20. THUS TO THE EXTENT STATED ABOVE, THE ASSESSEE HAS PROVED WITH EVIDENCE THAT THE SURRENDER MADE BY HIM WAS WRONG/INCORRECT ON FACTS AND, THEREFORE, RETRAC TION MADE TO THIS EXTENT WAS VALID AND AS A CONSEQUENCE NO ADDITION COULD BE MADE ON THIS ACCOUNT. THE ADDITI ON MADE TO THE EXTENT OF RS.10 LACS ON ACCOUNT OF THE SURRENDER MADE BY THE ASSESSEE IS, THEREFORE, DELET ED. 21. AS FAR AS THE SURRENDER OF RS.6.30 LACS MADE O N ACCOUNT OF INVESTMENT MADE BY THE WIFE OF THE ASSES SEE, WHICH WAS LATER ON RETRACTED, THE LEARNED COUNSEL F OR THE ASSESSEE STATED THAT THE ASSESSEES WIFE HAD HER OW N SOURCES FOR MAKING THE INVESTMENT. THE LEARNED COU NSEL FOR THE ASSESSEE FILED THE ASSESSMENT ORDER OF ASSE SSEES WIFE FOR THE IMPUGNED ASSESSMENT YEAR AND POINTED O UT THAT HER RETURNED INCOME FOR THE IMPUGNED YEAR WAS RS.9,23,100/- WHICH HAS BEEN ASSESSED AS SUCH UNDER SECTION 143(3) OF THE ACT. COPY OF THE SAME WAS FIL ED BEFORE US. THE LEARNED COUNSEL FOR THE ASSESSEE CO NTENDED 12 THAT THE INVESTMENTS WERE MADE OUT OF THE FUNDS AVA ILABLE WITH ASSESSEES WIFE AND COULD NOT BE TREATED AS MA DE BY THE ASSESSEE. 22. THE LD. DR, ON THE OTHER HAND, ARGUED THAT SINCE THE ASSESSEE HAD SURRENDERED THE IMPUGNED AMO UNT IN HIS OWN HANDS THE SAME HAD BEEN RIGHTLY INCLUDED IN THE INCOME OF THE ASSESSEE AND THE SAME COULD NOT B E RETRACTED NOW BY THE ASSESSEE. 23. WE FIND THAT IT HAS BEEN DEMONSTRATED BEFORE U S THAT THE ASSESSEES WIFE HAD SUFFICIENT RESOURCES\F UNDS TO MAKE THE IMPUGNED INVESTMENTS OF RS.6.30 LACS HAVIN G FILED RETURN OF INCOME AT RS.9.25 LACS DURING THE Y EAR. THE EXPLANATION OF THE ASSESSEE THAT THE INVESTMENT S WERE MADE BY THE WIFE OF THE ASSESSEE IS, THEREFORE, REA SONABLE ENOUGH. FURTHER THERE IS NOTHING ON RECORD TO PROV E THAT THE IMPUGNED INVESTMENTS WERE MADE BY THE ASSESSEE HIMSELF IN THE NAME OF HIS WIFE OTHER THAN THE STAT EMENT OF THE ASSESSEE WHICH HE HAS LATER ON RETRACTED. T HE BASIS FOR RETRACTION HAVING BEEN EXPLAINED AND FOUND TO B E REASONABLE ENOUGH BY US, WE HOLD THE RETRACTION TO BE VALID AND DIRECT THAT NO ADDITION BE MADE ON ACCOUN T OF SURRENDER OF RS.6.30 LACS MADE BY THE ASSESSEE. 24. IN VIEW OF THE ABOVE, WE HOLD THAT THE RETRACT ION MADE BY THE ASSESSEE OF THE SURRENDER OF RS.16.30 L ACS IS VALID AND, THEREFORE, DELETE THE ADDITION MADE ON A CCOUNT 13 OF THE SAME. THE GROUNDS RAISED BY THE ASSESSEE AR E, THEREFORE, ALLOWED. 25. IN THE RESULT, THE APPEAL OF THE ASSESSEE STAN DS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (BHAVNESH SAINI) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 16 TH DECEMBER, 2016 *RATI* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE DR ASSISTANT REGISTRAR, ITAT, CHANDIGARH