ACIT, Jaipur V. SURESH KUMAR MITTAL, Jaipur

ITA 947/JPR/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99325 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 03-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KR GAUD
• Assessee Lawyers: MRIDUL GOYAL ADV DH R
• Keywords: Unexplained investment; Source of fund; Retraction
• Section: 143(3); 153A; 131; 132; 12

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. 947/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2009-10. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-3, JAIPUR. CUKE VS. SURESH KUMAR MITTAL, B-18, CHOMU HOUSE, SARDAR PATEL ROAD, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. ACCPM 1183 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI NARENDRA KR. GAUD (CIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI VIJAY GOYAL (CA) & SHRI MRIDUL GOYAL (ADV) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 22/09/2015. MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 24/09/2015. VKNS'K@ ORDER PER T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 01/10/2013 OF THE LEARNED C.I.T.(A), CENTRAL, JAIPUR FOR A.Y. 2009-10. THE SOLE GROUND OF APPEAL IS REPRODUCED AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A), CENTRAL, JAIPUR HAS ERRED IN DELETING THE 2 ITA NO. 947/JP/2013 ACIT VS SURESH KUMAR MITTAL ADDITION OF RS. 15,00,000/- ON ACCOUNT OF THE UNDISCLOSED INCOME ADMITTED IN THE STATEMENT RECORD ED U/S 132(4) OF THE I.T. ACT, 1961 DURING THE COURSE O F SEARCH ON 28/08/2008 AND THIS STATEMENT WAS ALSO CONFIRMED BY SH. RADHEY SHYAM MITTAL, KEY PERSON OF THE GROUP INITIALLY DURING THE COURSE OF SEARCH AND AGAIN REVENUE-AFFIRMED DURING POST SEARCH PROCEEDINGS ON 05/09/2008. FURTHER, THE STATEMENT WAS NOT RETRACTED TILL 31/03/2009. 2. THE SOLE GROUND OF THE APPEAL IS AGAINST DELETING THE ADDITION OF RS. 15 LACS ON ACCOUNT OF UNDISCLOSED INCOME ADMITTED I N THE STATEMENT RECORDED U/S 132(4) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). THE ASSESSEE IS A COMMISSION AGENT AND CNF AGENT OF MED ICINE AND HAVING INTEREST INCOME. THE ASSESSEE FILED HIS RETURN ON 30 /09/2009 DECLARING TOTAL INCOME OF RS. 2,50,620/-. A SEARCH WAS CONDUCT ED ON 27/08/2008. VARIOUS ASSETS/BOOKS OF ACCOUNT AND DOCUMENTS WERE F OUND AND SEIZED AS PER ANNEXURE PREPARED DURING SEARCH. THE CASE WAS SC RUTINIZED U/S 153A READ WITH SECTION 143(3) OF THE ACT. THE LD ASSESSIN G OFFICER OBSERVED THAT DURING COURSE OF SEARCH, STATEMENT OF ASSESSEE WAS RECORDED U/S 132(4) OF THE ACT ON 28/08/2008. THE ASSESSEE HAD O FFERED ADDITIONAL INCOME OF RS. 15 LACS IN HIS INDIVIDUAL CAPACITY EA RNED FROM MEDICINE BUSINESS. THE RELEVANT PORTION OF THE STATEMENT IS R EPRODUCED BELOW:- 3 ITA NO. 947/JP/2013 ACIT VS SURESH KUMAR MITTAL JH LQJS'K FERY IQ= LO% JH ENY YKY FERY }KJK FNUKAD 28-08-2008 DKS VK;DJ VF/KFU;E DH /KKJK 1324 DS VURXZR FN;S X;S C;KU DK VA'K IZ'U 3% D`I;K CRK;S FD D;K VKIDH VK; DK VU; DKSBZ T FJ;K HKH GS \ MRRJ% GEKJS IFJOKJ ESA NOKBZ;KSA DH [KJHN FCH LS L ECFU/KR O;KIKJ GKSRK GSA M/S SURESH MEDICAL AGENCY DS VYKOK ESA VIUH O;FDRXR CAPACITY ESA NOKBZ;KSA DH [KJHN FCH DJRK GWWA ,OA BL IZDKJ LS ESUSA PKYW FOR RH; OKZ ESA YXHKX 15 YK[K :I;S DH VK; VFTZR DH GSA BLS ESA PKYW FORRH; OKZ DH VK; DJ FOOJ.KH HKJRS ODR VFRFJDR VK; N'KKZ NWWAXKA THE SURRENDER OF INCOME WAS RECONFIRMED BY SHRI RADHE Y SHYAM MITTAL ON BEHALF OF THE ASSESSEE IN THE STATEMENT RECORDED U/S 131 OF THE IT ACT ON 05/09/2008. THE RELEVANT PORTION OF THE STATEMEN T IS REPRODUCED AS UNDER: IZ'U 6% FNUAKD 27-08-2008 DKS RYK'KH DK;ZOKGH DS NK SJKU JH LQJS'K FERRY US VIUS C;KUKSA ESA LOHDKJ FD;K GS FD ES LQJS'K ESFMDY ,TSU LH DS VYKOK O;FDRXR :I LS NOKBZ;KSA DH [KJHN FCH DK DK;Z FD;K GS FTLDK FDLH HKH YS[KK IQLRDKSA ESA BUNZKT UGHA GS BLLS 15 YK[K :I;S DH V?KKSFKR VK; GQBZ GS FTL I J PKYW FOR OKZ ESA V?KKSFKR VK; EKURS GQ, DJ NSUK LOHDKJ FD;K GS BL IJ VKIDKS D;K D GUK GS++\ MRRJ% JH LQJS'K FERRY ESJK HKRHTK GS ,OA GEKJS O;KO LKF;D IZFRBKUKSA DK DKE NS[KRK GS FTLLS ESA LOHDKJ DJRK GWWA FD JH LQJS'K FERRY VI UH O;FDRXR GSFL;R LS HKH NOKBZ;KSA DH [KJHN FCH DJRS GSA FTLS FDLH HKH IZFR BKU DH YS[KK IQLRDKSA ESA NTZ UGHA DJRS VR% BLLS GKSUH OKYH V?KKSFKR VK; YXHKX 15 YK[ K :I;S IJ PKYW FOR OKZ ESA 4 ITA NO. 947/JP/2013 ACIT VS SURESH KUMAR MITTAL V?KKSFKR VK; EKURS GQ;S MLDS DJ PQDKUS IJ LGER GWW AA BL VK; IJ JH LQJS'K FERRY DJ PQDK NSXSAA ON VERIFICATION OF THE RETURN, IT IS FOUND THAT THE ASSESSEE HAS NOT DISCLOSED ADDITIONAL INCOME ADMITTED DURING THE COU RSE OF SEARCH. HE FURTHER OBSERVED THAT THE ASSESSEE GROUP HAS GENERA TED THE CASH FROM MEDICAL BUSINESS AND HAD OFFERED TO TAX A SUM OF RS . 2 CRORES IN THE HANDS OF VARIOUS PERSONS OF THE GROUP AS PER STATEM ENT RECORDED U/S 132(4) OF THE ACT DURING THE COURSE OF SEARCH ON TH E OTHER HAND IN THE RETURNS OF INCOME ONLY A SUM OF RS. 69.86 LACS HAS BEEN OFFERED TO TAX.. THAT TOO HAS BEEN CLAIMED AS SET OFF AS CASH GIVEN T O VARIOUS PERSONS WAS RECEIVED BACK AND INVESTED/SPENT IN UNACCOUNTED ASS ETS/UNEXPLAINED EXPENSES. THIS GROUP HAD RETRACTED THE DISCLOSURE MA DE U/S 132(4 OF THE ACT BY FILING THE AFFIDAVIT SUBSEQUENTLY DURING THE COURSE OF ASSESSMENT PROCEEDINGS GIVING THE REASONS THAT THIS SURRENDER WAS MADE DUE TO PRESSURE, MENTAL TENSION AND DURESS IS AN AFTERTHOU GHT TO ESCAPE THE PAYMENT OF TAXES AND PENALTY PROCEEDINGS. HE FURTHE R OBSERVED THAT THE PRESSURE AND DURESS CLAIMED BY THE ASSESSEE DURING THE COURSE OF SEARCH WAS UNFOUNDED BECAUSE EVEN AFTER THE CONCLUSION OF S EARCH, DURING POST SEARCH ENQUIRIES, THE STATEMENT ON OATH OF SHRI R.S . MITTAL, THE MAIN 5 ITA NO. 947/JP/2013 ACIT VS SURESH KUMAR MITTAL PERSON OF THE GROUP RECORDED U/S 131 ON 05/09/2008 IN WHICH HE HAS CATEGORICALLY ACCEPTED AND REITERATED THAT THIS SUR RENDER MADE BY HIM AND HIS FAMILY MEMBERS WAS CORRECT AND TRUE. THIS FACT IT SELF PROVES THAT THE ADMISSION MADE BY THE PERSONS DURING THE COURSE OF SEARCH WAS VOLUNTARY AND WITHOUT ANY THREAT OR COERCION. THE ASSESSEE ALS O FILED REPLY DATED 04/08/2010 WHICH HAS BEEN REPRODUCED BY THE ASSESSIN G OFFICER ON PAGE NOS. 4 AND 5 OF THE ASSESSMENT ORDER. AFTER CONSIDE RING THE ASSESSEES REPLY, THE LD ASSESSING OFFICER HELD THAT THE STATE MENT WAS NOT GIVEN UNDER THE DURESS AND PRESSURE AS SHRI R.S. MITTAL H AD HAD CONFIRMED THE DISCLOSURE AFTER TEN DAYS OF SEARCH. THE AFFIDAVIT WA S FILED ON 31/3/2009 AFTER SEVEN MONTHS FROM THE DATE OF SEARCH. FURTHER THE ASSESSEES SUBMISSION THAT THE ASSESSEE DOES NOT HAVE LICENSE IN THE BUSINESS OF MEDICINES, WAS NOT FOUND ACCEPTABLE BY THE ASSESSING OFFICER ON THE GROUND THAT THIS GROUP HAS DISCLOSED UNDISCLOSED IN COME AND ALL FAMILY MEMBERS ARE DOING THE BUSINESS OF MEDICINES. THE INC OME TAX LAW DOES NOT VERIFY THE CONDUCT OF THE BUSINESS BUT IT ASSES SED THE TAX ON INCOME EARNED BY THE ASSESSEE. THE ASSESSEES ARGUMENT IS WEIRD AND UNACCEPTABLE AND AFTERTHOUGHT SPECIALLY IN THE LIGH T OF THE FACT THAT IT WAS A SUO MOTU ADMISSION IN REPLY TO A VERY SIMPLE AND INITIAL QUESTION WHAT 6 ITA NO. 947/JP/2013 ACIT VS SURESH KUMAR MITTAL ARE YOUR SOURCES OF INCOME. FURTHER THE FACT THAT THE ASSESSEE GROUP HAD MADE HUGE INVESTMENT IN REAL-ESTATE/PROPERTIES BEAR S TESTIMONY TO THE ABOVE ADMISSION. HE RELIED ON THE FOLLOWING DECISION S: (I) STERLING MACHINE TOOLS VS. CIT 122 ITR 926 (ALL) (II) CIT VS. DURGA PRASAD 82 ITR 540 (SC). (III) DR. S.C. GUPTA VS. CIT 248 ITR 782 (ALL). (IV) SURJIT SINGH CHHABA 135 TAXMAN 711, 712 (SC). (V) HOTEL KIRAN VS. ACIT 82 ITD 453 (PUNE). (VI) 89 ITD (AHM) (T.M.) RAMESH PATEL. (VII) PARM ANAND BUILDERS P LTD. VS. ITO 59 ITD 29. IT IS FURTHER HELD THAT THE STATEMENT GIVEN U/S 132 (4) HAS EVIDENTIARY VALUE AND ASSESSEES RETRACTION WAS NOT VALID AS MAD E AFTER SEVEN MONTHS FROM THE DATE OF SEARCH, WHICH IS AFTERTHOUGHT. THE LD ASSESSING OFFICER THUS MADE ADDITION OF RS. 15 LACS IN THE INCOME OF THE ASSESSEE. 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE THE MATTER BEFORE THE LD CIT(A), WHO HAD DELETED THE ADDITION BY OBSERVING AS UNDER:- 4.4 I HAVE CAREFULLY PERUSED THE ORDER OF THE A.O. , SUBMISSIONS OF THE AR AND EVIDENCE AVAILABLE ON RECORD AND CONC UR WITH THE SUBMISSIONS OF THE AR ON THE FOLLOWING GROUNDS: 7 ITA NO. 947/JP/2013 ACIT VS SURESH KUMAR MITTAL THE HONBLE ITAT IN ITS ORDER IN THE CASE OF SHRI RA DHEY SHYAM MITTAL VS. DCIT CC-3 (SUPRA) HAS OBSERVED AS FOLLOWS:- THE RELIANCE PLACED BY THE ASSESSEE ON THE JUDGMEN T BY HONBLE APEX COURT IN THE CASE OF PULLANGODE RUBBER PRODUCE CO. LTD. (SUPRA) AND HONBLE RAJASTHAN HIGH COURT IN THE CAS E OF ASHOK KUMAR SONI (SUPRA) ARE WELL PLACED AS THE ASSESSEE HAS SUCCESSFULLY DEMONSTRATED THAT THE ADMISSION MADE D URING THE COURSE OF SEARCH IS NOT CORRECT. THE INGREDIENT FOR RETRACTION OF STATEMENT MADE DURING THE SEARCH, THEREFORE, STAND DULY SATISFIED AS THE ASSESSEE IS FOUND TO HAVE MADE RETRACTION WI THIN A REASONABLE TIME IMMEDIATELY AFTER THE COPIES OF STA TEMENT WERE PROVIDED TO HIM. FURTHERMORE, THERE BEING NO MATERI AL OR EVIDENCE ON RECORD TO SHOW THAT APPELLANT HAS CARRIED ANY BU SINESS OUTSIDE THE BOOKS FOR SALE AND PURCHASE OF ITEMS OF PHARMAC EUTICAL COMPANIES THAT COULD GIVE RISE TO INCOME TO THE EXT ENT OF RS. 30,00,000/- ADDITION MERELY ON THE BASIS OF SUCH ST ATEMENT WHICH STOOD VALIDLY RETRACTED COULD NOT HAVE BEEN MADE. O N SIMILAR BASIS AND REASONING IN THE CASE OF SURESH MEDICAL AGENCY ANOTHER ASSESSEE OF THE GROUP WHO WERE ALSO SEARCHED ON THE SAME DAY ALONGWITH THIS APPELLANT, VIDE OUR ORDER DATED 21/0 8/2013 IN ITA NO. 443/JP/2012 HAVE FOUND THE RETRACTION MADE AS V ALID AND ALSO DELETED THE ADDITION. WE, THEREFORE, FIND NO FACTUA L OR LEGAL JUSTIFICATION IN SUSTENANCE OF ADDITION BY LD. CIT( A) IN THIS REGARD. AS A RESULT, THE ADDITION SUSTAINED BY THE LD. CIT (A) IS DELETED AND GROUND NO. 1 RAISED IN APPEAL IS ALLOWED. CONSIDERING THAT THE HONBLE ITAT HAS ADJUDICATED ON IDENTICAL FACTS IN THE RELATED CASE OF THE GROUP OF THE APPELLANT, ITS FINDING IS APPLICABLE TO THE FACTS O F THE CASE OF THE APPELLANT. THEREFORE, THE ADDITION OF RS. 15 LAK H MADE ON THE BASIS OF THE STATEMENT OF THE APPELLANT WITHO UT ANY OTHER CORROBORATING INCRIMINATING EVIDENCE FOUND DU RING 8 ITA NO. 947/JP/2013 ACIT VS SURESH KUMAR MITTAL SEARCH IS COVERED BY THE FINDING OF THE HONBLE ITA T IN FAVOUR OF THE APPELLANT AND SO IS DELETED. 4. NOW THE REVENUE IS IN APPEAL BEFORE US. THE LD SR. DR HAS CONTENDED THAT THE STATEMENT RECORDED U/S 132(4) HA S EVIDENTIARY VALUE AS HELD BY THE VARIOUS COURTS. THERE WAS NO DURESS AN D PRESSURE ON THE ASSESSEE DURING THE COURSE OF SEARCH BY THE AUTHORI ZED OFFICER AS THE STATEMENT WAS GIVEN IN PRESENCE OF WITNESS AND VARIOU S OFFICERS OF THE DEPARTMENT. THE ASSESSEE HAD ADMITTED THAT HE WAS IND ULGING IN UNAUTHORIZED MEDICINE BUSINESS AND EARNED UNDISCLOS ED INCOME. THE LD CIT(A) BY RELYING ON THE DECISION OF HONBLE ITAT IN THE CASE OF SHRI RADHESHYAM MITTAL VS. DCIT IN ITA NO. 420/JP/2012 FO R A.Y. 2009-10 HAD ALLOWED THE APPEAL IN FAVOUR OF THE ASSESSEE WITHOUT COMPARING THE FACTS AND CIRCUMSTANCES OF THE CASE AND EVIDENCE FILED DU RING THE COURSE OF SEARCH. THEREFORE, HE PRAYED TO CONFIRM THE ORDER OF THE ASSESSING OFFICER. HE FURTHER RELIED ON THE DECISION IN THE V .KUNHAMBU & SONS VS. CIT (1996) 219 ITR 235 (KER) WHEREIN THE HON'BLE HIGH COURT HAS HELD THAT AUTHORIZED OFFICER COULD RECORD STATEMENT ON O ATH ON ALL MATTERS PERTAINING TO THE SUPPRESSED INCOME. STATEMENT COUL D NOT BE CONFINED ONLY TO THE BOOKS OF ACCOUNT. EXPLANATION TO SUB-SE CTION (4) INSERTED 9 ITA NO. 947/JP/2013 ACIT VS SURESH KUMAR MITTAL W.E.F. 1 ST APRIL, 1989 SEEKS TO CLARIFY THE NECESSARY IMPORT OF THE MAIN PROVISION. IT HAS NEITHER CHANGED THE SUBSTANTIVE P ROVISION NOR DOES IT PROVIDE A DIFFERENT METHOD OF USING THE STATEMENT R ECORDED U/S 132(4). THE TRIBUNAL HAD REJECTED FOR VALID REASONS THE ASSES SEES PLEA THAT STATEMENT U/S 132(4) WAS OBTAINED BY COERCION OR INT IMIDATION. THIS WAS A FINDING OF FACT. THE STATEMENT HAD BEEN RELIED ON IN PART ONLY NOT BECAUSE IT WAS TAKEN ON THREAT OR COERCION BUT BECAU SE PRESUMPTION OF UNEXPLAINED INVESTMENT. THEREFORE, ADDITION MADE BY THE ASSESSING OFFICER IS JUSTIFIED. ACCORDINGLY, THE LD DR ARGUED THAT THE SURRENDER IS TO BE HONOURED BY THE ASSESSEE AS PER STATEMENT RECORD ED U/S 132(4) OF THE ACT. 5. AT THE OUTSET, THE LD AR OF THE ASSESSEE HAS REI TERATED THE ARGUMENTS MADE BEFORE THE LD CIT(A) THAT THE STATEME NT WAS RECORDED UNDER DURESS, MENTAL TENSION AND UNDER PRESSURE OF DEPARTMENT ON 27/08/2008 AND 28/08/2008. DURING THE COURSE OF SEA RCH, NO INCRIMINATING DOCUMENTS/CASH/UNACCOUNTED ASSETS WERE FOUND AND SEIZED BY THE DEPARTMENT. THERE IS NO CORRELATION BETWEEN DI SCLOSURE MADE BY THE ASSESSEE AND UNACCOUNTED ASSETS FOUND. THE ASSE SSEE HAS RETRACTED ON 31/03/2009 BEFORE CLOSE FINANCIAL YEAR AND RETUR N FILED U/S 153A OF THE 10 ITA NO. 947/JP/2013 ACIT VS SURESH KUMAR MITTAL ACT. THE DEPARTMENT HAD CONDUCTED SEARCH OPERATION N OT ONLY ASSESSEE BUT HIS RELATIVE AND ON ALL THE BUSINESS PREMISES B UT DID NOT FIND ANY EVIDENCE THAT THE ASSESSEE WAS INDULGED IN UNDISCLOS ED MEDICAL BUSINESS IN HIS INDIVIDUAL CAPACITY AND HAD EARNED UNACCOUNT ED INCOME FROM UNDISCLOSED MEDICINE BUSINESS IN INDIVIDUAL CAPACIT Y. HE FURTHER RELIED ON THE DECISION OF HONBLE ITAT, JAIPUR BENCH, JAIPUR I N THE CASE OF SHRI PAWAN KUMAR LASHKARY IN ITA NO. 808/JP/2011 WHEREIN IT HAS BEEN HELD THAT INCOME CANNOT BE ASSESSED MERELY ON THE BASIS OF STATEMENT. HE FURTHER ARGUED THAT THE COPY OF STATEMENT HAD NOT B EEN PROVIDED BY THE DEPARTMENT BUT PROVIDED ON 13/3/2009 WHEREAS SEARCH WAS CONDUCTED ON 28/08/2008. THERE WAS NO POSITIVE EVIDENCE BEFORE TH E ASSESSING OFFICER TO PROVE THE AFFIDAVIT FILED BY THE ASSESSEE IS WRON G AND FALSE, FOR WHICH HE RELIED ON THE FOLLOWING CASE LAWS:- (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). STATEMENT OF SH RADHEY SHYAM MITTAL, GROUP HEAD OF THE FAMILY HAS NO EVIDENTIARY VALUE AS THE ASSESSEE IS COMPETENT TO G IVE STATEMENT. HE FURTHER RELIED ON THE FOLLOWING DECISIONS:- 11 ITA NO. 947/JP/2013 ACIT VS SURESH KUMAR MITTAL (I) PULLANGODE RUBBER PRODUCE CO. LTD. VS. STATE OF KERALA & ANR (1973) 91 ITR 18 (SC) (II) CIT VS. ASHOK KUMAR SONI 291 ITR 172 (RAJ.) (III) CIT VS. G. KRISHNAN (1994) 210 ITR 707 MAD. (IV) GARGIDIN JWALA PRASAD VS. CIT (1974) 96 ITR 97 ( ALL) (V) CHITRA DEVI VS. ACIT (2002) 28 TAXWORLD 454 (ITAT JP) HE FURTHER VEHEMENTLY RELIED ON THE ORDER OF THE LD CIT(A) AND PRAYED TO CONFIRM THE ORDER OF THE LD CIT(A). 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS UND ISPUTED FACT THAT BESIDES STATEMENT U/S 132(4), NO INCRIMINATING DOCU MENTS WERE FOUND DURING THE COURSE OF SEARCH INCLUDING UNDISCLOSED C ASH/ASSETS AS REVEALED FROM THE ASSESSMENT ORDER OF THE ASSESSEE. THE SEARC H WAS CONDUCTED ON 27-28/08/2008 AND STATEMENT WAS RECORDED U/S 132(4) ON 28/08/2008. COPY OF STATEMENT WAS PROVIDED BY THE ASSESSING OFFI CER ON 13/3/2009 EVEN VARIOUS REQUESTS HAD BEEN MADE BY THE ASSESSEE BEFORE THE DDIT(IN) TO PROVIDE THE COPY OF STATEMENT. AFTER CON SIDERING THE ASSESSEES OWN STATEMENT AND COPY OF SEIZED MATERIAL , HE DECIDED TO RETRACT THE STATEMENT GIVEN U/S 132(4) ON 31/3/2009 , WHICH WAS SUPPORTED BY THE AFFIDAVIT FILED BY THE ASSESSEE DA TED 31/3/2009. THE COORDINATE BENCH HAS CONSIDERED THE STATEMENT RECOR DED U/S 132(4) IN 12 ITA NO. 947/JP/2013 ACIT VS SURESH KUMAR MITTAL CASE OF SHRI RADHEY SHYAM MITTAL (SUPRA) IN GROUP CASES AND HELD THAT DISCLOSURE TAKEN U/S 132(4) OF THE ACT DURING COURS E OF SEARCH UNDER PRESSURE OR DURESS WHERE NO INCRIMINATING DOCUMENTS/ UNRECORDED VALUABLES WERE FOUND IS TO BE HELD INVALID AND CANNO T BE SUSTAINED. THE ASSESSEE FILED AFFIDAVIT ON 31/3/2009 BEFORE THE AS SESSING OFFICER BUT HE REMAINED SILENT ON THE FACE OF IT AND HAD NOT CARRI ED OUT ANY INQUIRY TO VERIFY THE CORRECTNESS OF THE AFFIDAVIT. THE LD ASS ESSING OFFICER ALSO HAD NOT CROSS EXAMINED ON THE POINTS OF RETRACTION AND NOT ASKED TO PRODUCE ANY EVIDENCE. IT IS HELD BY THE VARIOUS HON'BLE HI GH COURTS AS WELL AS HON'BLE SUPREME COURT THAT THE STATEMENT RECORDED U /S 132(4) HAS EVIDENTIARY VALUE BUT REBUTTABLE. IN CBDT CIRCULAR NO. F.NO. 286/2/2003- IT(INV) DOES NOT SUPPORT ANY DISCLOSURE MADE U/S 132 (4), IN ABSENCE OF ANY INCRIMINATING DOCUMENT/UNDISCLOSED ASSETS. THERE FORE, WE UPHELD THE ORDER OF THE LD CIT(A). 7. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 24/09/2015. 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:- 24/09/2015 13 ITA NO. 947/JP/2013 ACIT VS SURESH KUMAR MITTAL RANJAN* VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ACIT, CIRCLE-3, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- SHRI SURESH KUMAR MITTAL, 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.947/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR