ITO,WARD-10(1), NEW DELHI V. GLO-TECH ENTERPRISES PVT. LTD., NEW DELHI

ITA 991/DEL/2023

AI Insights

The case revolves around an appeal by the Income Tax Officer (ITO) against Glo-Tech Enterprises Pvt. Ltd., concerning an addition of Rs. 22,25,00,000 deemed as unexplained investment for the Assessment Year 2017-18. The addition was initially made by the ITO following a survey operation and based on a statement by the company's director and documents seized during the survey. However, the CIT(A) later deleted this addition, leading to the ITO's appeal. The Tribunal's decision to dismiss the appeal was based on the lack of substantial evidence supporting the addition, emphasizing the importance of corroborative evidence in tax assessments.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 23036 (ITAT-DELHI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2025
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2017-2018
• Other Referred Cases: Common Cause (A Registered Society) VS Union of India, Principal CIT, Central Ill Vs. Krutika Land (P) Ltd., CIT Vs. P.V. Kalyanasundaram, Deputy CIT vs. Bhumala Uma Rani, CIT, Central—Ill Vs. Lavanya Land (P) Ltd., CIT, Central — Ill Vs. Arpit Land (P) Ltd.
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Assessee Lawyers: AMOL SINHA
• Keywords: Question of law; Corroborative evidences; Unexplained cash credit; Unexplained investment; Document seized; Documents seized; Retraction; Search and seizure; Loose papers; Assessment record
• Section: 143(2); 143(1); 68; 131; 69; 13; 153C; 133A; 20; 101

Judgement Text

" 1 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises IN THE INCOME TAX APPELLATE TRIBUNAL DELHI DELHI BENCH ‘B’ NEW DELHI BEFORE SHRI YOGESH KUMAR U.S., JUDICIAL MEMBER AND SHRI AVDHESH KUMAR MISHRA, ACCOUNTANT MEMBER ITA No. 991/Del/2023 (A.Y. 2017-18) ITO, Ward-10(1) New Delhi PAN: AADPD6869P Vs. Glo-Tech Enterprises Pvt. Ltd.A-61/1, Okhla Industrial Area Phase-2, New Delhi Appellant Respondent Assessee by Shri Amol Sinha, Adv Revenue by Sh. Surender Pal, CIT, DR Date of Hearing 21/01/2025 Date of Pronouncement 26/03/2025 ORDER PER YOGESH KUMAR, U.S. JM: The present appeal is filed by the Revenue against the order of the CIT(A)/National Faceless Appeal Centre [(‘NFAC’) for short] Delhi dated 27/02/2023 for the Assessment Year 2017-18. 2. The Grounds of Appeal are as under:- “1. \"Whether on the facts and circumstances of the case, Ld. CIT(A) was justified in deleting the addition of Rs. 22,25,00,000/- made on account of unexplained investment made u/s 69 of the I.T Act, 1961 ignoring the statement given by the Sh. Narender Bansal (Director of the assessee company) 2 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises before the authorities of Income Tax Department on 15.12.2016 during the survey operation conducted at the premise of M/s. Intex Technologies India Ltd. situated at D- 18/2, Okhla Industrial Area, Phase-2, New Delhi and the documentary evidence impounded during the survey and corroborated by the Director of the company at the time of statement recording.\" 2. That the appellant craves leave to add, amend, alter or forgo any ground/(s) of appeal either before or at the time of hearing of the appeal.\" 3. Brief facts of the case are that, the Assessee filed e-return for Assessment Year 2017-18 declaring loss of Rs.20,789/- which was processed u/s 143(1) of the Income Tax Act, 1961 (‘Act’ for short). The return was processed u/s 143(1) of the Act. Subsequently, the case was manually selected for security. An assessment order came to be passed on 25/12/2019 by making addition of Rs. 22,25,00,000/- treating the same as unexplained investment and deemed to be the income of the Assessee u/s 69 of the Act. Aggrieved by the assessment order dated 25/12/2019, the Assessee preferred an Appeal before the Ld. CIT(A). The Ld. CIT(A) vide order dated 27/02/2023, allowed the Appeal of the Assessee by deleting the addition made by the A.O. Aggrieved by the order of the Ld. CIT(A) dated 27/02/2023, the Department of Revenue preferred the present Appeal on the grounds mentioned above. 3 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises 4. The ld. D.R. submitted that the Ld. CIT(A) erroneously held that the entry in the impound material is dumb in as much as it does not mentioned the name of the payer or the payee. Further submitted that though the purported parties have denied the transaction, however, the fact remains is the impounded document i.e. spiral pad was impounded during the survey operation carried out at the premises of M/s Intex Technologies India Ltd., wherein the details of expenses of payment made by cheques as well as cash paid was mentioned towards property transaction carried out by the Assessee. 5. The Ld. DR further submitted that the Director of M/S Glotech Enterprises Pvt. Ltd. Sh. Narender Bansal admitted that cash was paid out of the income of the company earned during current financial year, which has not been accounted for and the said amount will be included into the income of M/S Glo-tech Enterprises Pvt. Ltd. for the current financial year and advance tax will be paid accordingly. Further, the retraction of the statement by Sh. Narender Bansal was an afterthought after the gap of 3 months, which should not have been given credential by the Ld.CIT(A). 4 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises 6. The Ld. DRfurther submitted that the assessing officer has established the fact that the transactions mentioned on the seized document have been accepted to be undertaken by the Assessee Company and other parties who have accepted the payments on account of land deal. The parties from whom land deal was finalized were also examined on oath and their statements were recorded under oath. The parties have also confirmed in their statement that the details of land deal which have been found to be reflected on page 3 of annexure A-I of the impounded document has actually being materialized. A development agreement was also signed and registered between the two parties. The names mentioned in the impounded document at page no. 3 was same as mentioned in the agreement and Bank statement of the Assessee company. The only transaction of payment of cash component has been denied by Sh. Narender Bansal, Director of the company after making acceptance for the same on the day of survey, which is merely an afterthought to avoid the tax liability. Therefore submitted that the assessing officer has rightly made addition of Rs. 22,25,00,000/- on account of unexplained investment, after establishing the same with documentary evidence. Therefore submitted that, Ld. CIT(A) has committed error in deleting the Addition, thus sought for allowing the Appeal of the Revenue. 5 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises 7. Per contra, the Assessee’s representative submitted that the Ld. AO failed to gather any discrepancy in the books of account or any further evidences through his independent application of mind to substantiate the income disclosed by the Assessee Company during the survey proceeding u/s 133A of the Act, which was also retracted in the stipulated time frame. 8. The Assessee’s representative further submitted that the statement made by then Director, Sh. Narendra Bansal was under pressure and coercion. The Director himself retracted from the statement within stipulated time and wrote the same to the Pr. Commissioner of' Income Tax-4, New Delhi on 15.12.2016. The then managing director Sh. Narendra Bansal along with other two Directors sworn the affidavit before Add. Sessions Judge, Saket, New Delhi. The other two directors Nidhi Markanday and Sh. Amitabh Khurana have also supported the retraction of Sh. Narendra Bansal through their affidavits and went on to narrate the actual facts of the survey proceeding on the wee hours of 14- 15 September, 2016. 9. TheLd. AR further submitted that the AO examined the land deal made by the Assessee company vide a land development agreement dated 25.11.2015 between M/S Basic Developers Pvt. Ltd., Mr. 6 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises MahavirSingh Dagar, Mr.HariKrishan, Sh. Ajit Singh as \"Land Owners\" and M/S GIO Tech Enterprises Pvt. Ltd. However, none of the parties have admitted and confirmed the alleged cash payment ofRs. 22.25 Crore, which is mere an allegation of the assessing officer which has never been proved by any corroborative evidences. The Ld. AO failed to find any mention of the above said cash payment in the books of the Assessee Company. The parties to the agreement only confirmed that the agreement are genuine with the Assessee company and they have only received the payment other than cash as mentioned in the \"Falcon Spiral Pad' seized during the survey operation. The parties never mentioned about the cash payment and the fact of the admission by the parties have also not been mentioned in the assessment order by the assessing officer. That the Ld. AO should have proved the alleged ‘cash paid of Rs. 22.25 on pro rata basis’ by any contra evidence to dispel the assumption as the statement stood retracted by the director. Therefore relying on several judicial pronouncements, submitted that the Ld. CIT (A) has rightly deleted addition made by the A.O. Thus, sought for dismissal of the Appeal. 10. We have heard both the parties and perused the material available on record. A survey operation u/s 133A of the Act was carried out at the premises of the M/s. Intex Technologies India Ltd. situated at D-18/2, 7 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises Okhla Industrial Area, Phase-2, New Delhi. During the survey operation, a “Falcon premium spiral pad” was found in the Director’s room. The said spiral pad containing three written pages and impounded u/s 133A(3)(ia) of the Act. For the sake of ready reference the same is reproduced as under:- 11. The above mentioned impounded document was confronted to the then Director of the Assessee company Sh. Narendra Bansal and his statement was also recorded during the survey on 14-15/09/2016 pertaining to the payment made. In the statement the director of the Assessee admitted the payments made in cash for the property, also it 8 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises was admitted that the said cash made out of the income of the company earned during the financial year which has not been accounted for. 12. The directors of the Assessee Company vide an affidavit retracted from the statement made during the survey on 14-15 September, 2016 and the said affidavit has been sworn before the Add. Sessions Judge. Saket, New Delhi. The other Directors NidhiMarkanday and Sh. Amitabh Khurana solemnly affirmed and confirmed the averments made in the above stated affidavit of Sh. Narendra Bansal by retracting from the statement made during the survey u/s 133A of the Act on wee hours of night of 14-15 September, 2016 and stated that the statement was result of forced confession.The other two directors have also supported the statement of Sh. Narendra Bansal in their affidavit and stated that the survey team concluded an invasive action and went about examining each and every document present at the premises including but limited to the books of accounts and when they found nothing, the survey team extracted a forced confession of alleged undisclosed income to create a tax liability. They further stated that the survey teamthreatened to convert the survey into search if the said impounded papers were not prepared as instructed. Further, other two directors stated in the affidavit stated that the dumb document only relying upon which the team may give it a colour of genuineness with intent to extract incorrect 9 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises make belief surrender on pressure, threat and coercion from Sh. Narendra Bansal. 13. It is a matter of fact that, after receipt of the retraction affidavit the Department of revenue has not taken any action to support the confession or to act against the said retraction made by Sh. Narendra Bansal. Apart from the retraction, the Assessee has also filed e-return for Assessment Year 2017-18 on 27/10/2017 by not including the income confessed during the survey proceedings which has been retracted later. The Department issued notice on 26/06/2018 u/s 143(2) of the Act. On finding that the income disclosed during the survey has not been mentioned by the ITR for the Assessment Year 2017-18. On 17/12/2019 the A.O. issued summons to Sh. Narendra Bansal Ex-director of the Assessee Company for recording statement on oath u/s 131 of the Act and the said Sh. Narendra Bansal appeared before the A.O. and specifically stated that he was forced to prepare to some documents which was later shown as impounded. The Ld. A.O has also recorded the statement of the ‘beneficiaries’ who have denied having received any cash. 14. As per the AO,theimpounded material undisclosed cash payments to the tune of Rs.22.25 crores and thesaid p ay m en t of cashwhenconfronted to Shri NarendraKumar director of 10 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises Assessee company during the survey proceedings, it was admitted by h i m inhisoathstatementi nanswertoquestion No. 10 & 11 recordedon 14. 09. 2 01 6.2017and also as answertoquestionNo. 5 &6 in his statement recorded on 17.12.2019. The AR has argued that the AO grossly ignored the audited financials filed through the e-filing portal. The Assesseebeing a Company incorporated under the Companies Act and its books of account were audited under the provisions of Companies Act as well as under the provisions of the Income tax Act. Further, the books of account were prepared in accordance with the Accounting Standards issued by the Institute of Chartered Accountants of India and also, the Revenue is recognized based on the said Accounting Standard and uniform accounting policy consistently adopted by the Assessee. The allegation of the A.O. that the additional income over and above the consideration was made in cash by the Assessee is purely on assumptions and presumptions and the same is made onmaterialsfound during the course of survey conducted under Section 133Aofthe Act. Infact,thereisnosuch p ay m en t m a de b y t h e A s se ss e e. Further, theAOhascompletelyfailed to bring even iota of evidence on record to prove any generation of unaccounted 11 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises money and also transfer of such money to the Assessee. Also, such unaccounted cash payments as alleged by AO, who has failed to substantiate /outflow of the money. To substantiate the above claim of the Assessee, the Assessee has also produced the audited financials for the assessment year under consideration. 15. It is found from the record that theL d. A.O.made addition on the basis of loose papers found in the premises of a third party and ba se d o n t h e statement of the third party. F ur t h er , t he statement recorded underSection 131 of the Act was also retracted later by Shri Narendra Bansal. Further, the loose sheets found in the premises of the third party were not even signed by the Assessee or any of its staff and the loose sheets found in the premises of the third party were not corroborated by the AO with any further evidence or investigation. 16. The Hon'ble Apex Court in the case of Common Cause (A Registered Society) VS Union of India [TS-5012SC-2017-01,(2017) 245 Taxman 214(SC),(2017)394 ITR 220 (SC) held as under: “Loose paper-sheets \"irrelevant, inadmissible\" evidence; Rejects investigationpleainSahara/Birlacase- SCdismissespetitionfiledbyShantiBhushan&PrashantBhushan,seekingcons titutionof Special Investigation Team, directing investigation of the allegedly incriminating material seized in CBI/tax department raids conducted on Birla & Sahara group of companies; Mr. Bhushan argued that during 12 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises the raids, e-mail sand excel sheets were found that showed payment of cash to several important public figures; Apex Court cites ratio in V.C. Shukla/Jain Hawala diaries case, wherein the court held that entries in loose papers/sheets are irrelevant and not admissible under Sec. 34 of Evidence Act and only where entries are in books of accounts/regularly kept, those are admissible; Further citesV.C. Shukla ratio to drive home the point that entries in books of account alone shall not constitute sufficient evidence to implicate a person since the same is only \"corroborative\" evidence; SC observes that the judiciary ought to be cautious while ordering investigation against any important constitutional functionary/officers in the absence of \"prima facie reliable/legally cognizable material\" which are not supported by 'other circumstances'; Holds that “In case we do so, the investigation can be ordered as against any person whosoever high in integrity on the basis of irrelevant or inadmissible entry falsely made, by any unscrupulous person or ess house that too not kept in regular books of accounts but on random papers at any given point of time.”; As for Sahara raids, SC refers to Settlement Commission order dated November 11, 2016 wherein the Commission recorded a finding that transactions noted in the documents were not genuine and did not attach any evidentiary value to the pen drive, hard disk, computer loose papers, computer printouts; SC concludes\" it would not be legally justified, safe, just and proper to direct investigation, keeping in view principles laid down in the cases of Bhajan Laland V.C. Shukla.\" 17. The Hon'ble Apex Court in the case of Principal CIT, Central Ill Vs. Krutika Land (P) Ltd.103taxmann.com9 (SC), wherein it was held that: “Where seized documents were not in the name of the assessee, no action could be undertaken in case of assessee under sec. 153C and further entire decision being based on huge amounts revealed from seizeddocuments, not being supported by actual cash passinghands, additions under sec.69C were not sustainable.” 18. Similar ratio have been laid down in the following judicial pronouncements: a. CIT Vs. P.V. Kalyanasundaram(164Taxman78)(SC) b. Deputy CIT vs. Bhumala Uma Rani (2019) Taxpub (DT)2432 (ITAT Visakhapatnam) 13 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises c. Principal CIT, Central Vs. Krutika Land (P) d.CIT, Bangalore vs. IBC Knowledge Park (P) Ltd. (69 Taxmann.com 108 (Kar) e.CIT, Central—Ill Vs.Lavanya Land (P) Ltd. (83Taxmann.com 161) (Bombay) f.CIT, Central — Ill Vs. Arpit Land (P) Ltd. (78 Taxmann.com 300)(Bombay) 19. On bare reading of the seized document it is found that, there is no heading to describe the nature of transaction that depicts in the spiral pad. There were no correct date with year to suggest that these transactions are pertaining to the assessment year. It does not indicate as to who prepared the documents and whether the figures mentioned therein was in Rupees or in any other currency. There is no signature of the person who prepared it or there was no authentication of these documents.Further, in the loose slip has been interpreted by the ld. AO that these are unaccounted cash payments made by theAssessee without their being any corroborative evidence. At this point it is appropriate to consider few judgments on this issue. 20. In the case of CIT Vs. K.V. Laxmi Savitri Devi Vs. ACIT 60 DTR 148, the Co-ordinate Bench of the Tribunal at Hyderabad held that no addition can be made on the basis of loose papers which does not contain the name and date of payment. The department is precluded in 14 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises drawing inference on the basis of suspicion, conjectures and surmises and no addition can be made on the basis of such document or loose slips. Further in the case of K.V. Laxmi Savitri Devi Vs. ACIT 60 DTR 148 it was held by the ITAT Hyderabad Bench that, no addition can be made on the basis of a loose paper which does not contain the name and the date of payment. The department is precluded in drawing inferences on the basis of suspicion, conjecture and surmises and no addition can be made on the basis of such dump document or loose sheets. 21. The Hon’ble A.P. High Court in the case of K Lakshmi Savitri Devi (Supra) in ITA No. 563 of 2011 has upheld the order of the Tribunal in following manners:- \"We are of the view that the Tribunal has rightly held that the registered document dt. 21.8.2006 under which the respondent purchased the above property showed that only Rs.65. 00 lakhs was paid to the vendor by the respondent: that there was no evidence to show that the respondent had paid Rs.l. 00 crore in cash also to the vendor; that no presumption of such payment of Rs.1.00 crore in cash can be drawn on the basis of an entry found in a diary loose sheet in the premises of C. Radha Krishna Kumar which is not in the respondents handwriting and which did not contain the name of the respondent or any date of payment or the name of the person who made the payment. It rightly held that the Revenue failed to establish the nexus of the seized material to the respondent and had drawn inferences based on suspicion, conjectures and surmises which cannot take the place of proof. We also agree with the Tribunal that the assessing officer did not conduct any independent enquiry relating to the value of the property purchased and the burden of proving the actual consideration in the purchase of the property is on the Revenue and it had failed to discharge the said burden.” 15 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises 22. The Hon’ble Delhi High court in the case of CIT Vs SantLal vide [2020] 118 Taxmann.com 432 held as under:- \"13. In view of the aforesaid facts and the concurrent findings given by the CIT (A) and ITAT, it is evident that the Revenue has not been able to produce any cogent material which could fasten the liability on the respondent. The CIT(A) has also examined the assessment record and has observed that the AO did not make any further inquiry/investigation on the information passed on by the DCIT, Central Circle-19, New Delhi. No attempt or effort was made to gather or corroborate evidence in this relation. 14. In these facts and circumstances, we are not inclined to entertain the present appeal as no substantial question of law arises for our consideration. Accordingly, the present appeal is dismissed\". 23. Before us, ld. D.R. canvassed a contention that Assessee had admitted the transactions in his statement recorded u/s 131 of the Act and that could be the base for addition in the hands of present Assessee and it is not necessary to give any cross examination of the parties involved herein. In our opinion, admission of the third party could not be enforceable against the other party. Further, the ld. AO pressed the assistance of Mr. Narendra Bansal statements recorded u/s 131 of the Act on 14-09-2016 to support his action without providing an opportunity of examining/cross-examining him, which is mandatory requirement under the Evidence Act. The ld. Department's Representative also pressed the service of section 292C of the Act. In our view, the section 292C of the Act only be invoked against such person in 16 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises whose premises/possession, the said incriminating material was found during the course of survey u/s 131 of the Act. 24. The word \"such person\" used in section 292C of the Act is only referable to the person in whose premises the things or materials were found in possession or control at the time of search. Admittedly, the Assessee before us was not person in whose premises, the things were found in possession or control at the time of search action. Therefore, provisions of section 292C of the Act cannot be invoked to assist the department, which is without any basis and contrary to law. In our opinion, if any document is found in the premises/possession/control of such person which belongs to the other person then the said documents can be used for making the addition. However, it is necessary to prove that the said document is incriminating in nature and belong to other person. The presumption u/s 292C of the Act can only be invoked against such/searched person and not against another person like the Assessee herein. The above said proposition is based and relatable to the Evidence Act which casts data of a person in whose possession, a thing or article was found to discharge the burden that it does not belong to him. 17 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises 25. In the present case, the A.O. made impugned addition based on sworn statement of its Managing Director recorded u/s 131 of the Act during the course of survey without their being other corroborative evidence.The Jurisdictional High Court, Delhi in the case of CIT v. Dhingra Metal Works [2010] 328 ITR 324/[2011] 196 Taxman 488 (Delhi) held as under:- “11. From a reading of aforesaid Section, it is apparent that it does not mandate that any statement recorded under Section 133A of the Act would have evidentiary value. In our view, for a statement to have evidentiary value, the survey officer should have been authorised to administer oath and to record sworn statement. This would also be apparent from Section 132(4) of the Act. The said Section is reproduced herein below :- \"132.SEARCH AND SEIZURE. xxx xxxxxxxxxxxx (4) The authorised officer may, during the course of the search or seizure, examine on oath any person who is found to be in possession or control of any books of account, documents, money, bullion, jewellery or other valuable article or thing and any statement made by such person during such examination may thereafter be used in evidence in any proceeding under the Indian Income-tax Act, 1922 (11 of 1922) or under this Act. [Explanation : For the removal of doubts, it is hereby declared that the examination of any person under this sub- section may be not merely in respect of any books of account, other documents or assets found as a result of the search, but also in respect of all matters relevant for the purposes of any investigation connected with any proceeding under the Indian Income-tax Act, 1922 (11 of 1922) or under this Act.\" (emphasis supplied) 12. From the aforesaid, it is apparent that while Section 132(4) of the Act specifically authorizes an officer to examine a person on oath, Section 133A does not permit the same. 13. The Kerala High Court in Paul Mathews & Sons Vs. Commissioner of Income Tax, (2003) 263 ITR 101 (Kerala) and Madras High Court in CIT Vs. 18 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises Kader Khan, (2008) 300 ITR 157 have also taken a similar view. The relevant portion of the Kerala High Court judgment in the case of Paul Mathews & Sons (supra) is reproduced hereinbelow :- \"The provision also enables the income-tax authority to impound and retain in his custody for such period as he thinks fit any books of account or other documents inspected by him, provided the authority records his reasons for doing so and also shall not retain the books of account for a period not exceeding 15 days. Section 133A(3)(iii) enables the authority to record the statement of any person which may be useful for, or relevant to, any proceeding under the Act. Section 133A, however, enables the income-tax authority only to record any statement of any person which may be useful, but does not authorize taking any sworn statement. On the other hand, we find that such a power to examine a person on oath is specifically conferred on the authorised officer only under section 132(4) of the Income-tax Act in the course of any search or seizure. Thus, the Income-tax Act, whenever it thought fit and necessary to confer such power to examine a 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. Thus, in contradistinction to the power under section 133A, section 132(4) of the Income-tax Act enables the authorised officer to examine a person on oath and any statement made by such person during such examination can also be used in evidence under the Income-tax Act. On the other hand, whatever statement is recorded under section 133A of the Income-tax Act it is not given any evidentiary value obviously for the reason that the officer is not authorised to administer oath and to take any sworn statement which alone has evidentiary value as contemplated under law. Therefore, there is much force in the argument of learned counsel for the appellant that the statement elicited during the survey operation has no evidentiary value and the Income-tax Officer was well aware of this.\" 14. Moreover, the word „may‟ used in Section 133A(3)(iii) of the Act clarifies beyond doubt that the material collected and the statement recorded during the survey is not a conclusive piece of evidence by itself. 15. In any event, it is settled law that though an admission is extremely important piece of evidence, it cannot be said to be conclusive and it is open to the person who has made the admission to show that it is incorrect. 16. Since in the present case, the respondent-assessee has been able to explain the discrepancy in the stock found during the course of survey by production of relevant record including the excise register of its associate company, namely, M/s. D.M.W.P. Ltd., we are of the opinion that the AO could not have made the aforesaid addition solely on the basis of the 19 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises statement made on behalf of the respondent-assessee during the course of survey.” 26. In the case of Deputy Commissioner of Income-tax, Circle-2(1) v. Bansal Credits Ltd, [2016] 74 taxmann.com 224 (Delhi - Trib.), the Co- ordinate Bench of the Tribunal at Delhi Benches, by relying on the above decision of Hon’ble Delhi High Court in the case of CIT v. Dhingra Metal Works and also the CBDT Letter F.No.286/2/2003-IT(Inv.II) dated 10th March, 2003, held that the addition cannot be made only on the basis of surrender made at the time of survey in following manners:- “11. Thus, the Assessing Officer, without discussing the case of a single creditor, rejected all of them. Learned CIT(A) has discussed all those documents from page 5 to 17 of his order. The Assessing Officer made the addition of `3,50,00,000/- as unexplained credit u/s 68 when admittedly, the sum of `3,50,00,000/- was the surrender made by the assessee during the course of survey and was not the amount of credit in the assessee's books of account. Credit in the assessee's books of account was only `3,09,84,715/-. Learned CIT(A) has also recorded the finding that the credit to the extent of `1,28,39,715/- was not pertaining to the year under consideration. Thus, it is evident that the Assessing Officer made the addition without considering all the facts and evidences on record merely because the assessee has surrendered the same at the time of search. We have already discussed that in view of the decision of Hon'ble Jurisdictional High Court in the case of Dhingra Metal Works (supra) and of Hon'ble Apex Court in the case of S. Khader Khan Son (supra) as well the Circular of 9 ITA-3918/Del/2013 CBDT vide letter F.No.286/2/2003-IT(Inv.II) dated 10th March, 2003, the addition cannot be made only on the basis of surrender made at the time of survey. In view of the above legal and factual position, we do not find any infirmity in the order of learned CIT(A). Accordingly, the same is upheld and Revenue's appeal is dismissed.” 20 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises 27. In the present case, the assessing officer found nothing incriminating to justify the addition of Rs. 22.25 Crore except the confession made by the then director of the AssesseeCompany (which has been retracted letter ) apart from a loose sheet. As discussed in the above paras, the statement cannot be held as conclusive proof to make an addition. Hence, the ratio laid down in the above decisions in the case of CIT v. Dhingra Metal Works (supra) and Deputy Commissioner of Income-tax, Circle-2(1) v. Bansal Credits Ltd, (supra) are applicable to the case in hand. 28. The Hon'ble Supreme Court in the case of Vinod Solanki v. Union of India [2009] 92 SCL 157wherein observed as under: “22. It is a trite law that evidences brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the Court that it may seek to rely thereupon. We are not oblivious of some decisions of this Court wherein reliance has been placed for supporting such contention but we must also notice that in some of the cases retracted confession has been used as a piece of corroborative evidence and not as the evidence on the basis whereof alone a judgment of conviction and sentence has been recorded.” 29. In the present case the addition has been made by the A.O. relying upon the sole statement, which was retracted, having no evidentiary value in the absence of any corroborative material as per the law laid 21 ITA No. 991/Del/2023 ITO VsGlo-Tech Enterprises down by the Apex Court and followed by High Courts and Tribunals. In absence of any other piece of evidence to make addition of Rs. 22.25 Crore ‘on pro rata basis’ u/s 69 of the Act in the hands of the Assessee, the Ld. CIT(A) rightly deleted the addition. Further it is also found that there is no corresponding addition made in the hands of the alleged cash beneficiaries or even corrective action proposed by the AO in the assessment of the beneficiaries of the alleged cash. By considering the above mentioned settled position of law, we find no error or infirmity in the order of the Ld. CIT (A) in deleting the addition made by the A.O. Finding no merits in the Grounds of Appeal of the Revenue, the Grounds of Appeal of the Revenue are hereby dismissed. 30. In the result Appeal of the Revenue is dismissed. Order pronounced in the open court on 26th March, 2025 Sd/- Sd/- (AVDHESH KUMAR MISHRA) (YOGESH KUMAR U.S.) ACCOUNTANT MEMBER JUDICIAL MEMBER Date: - 26.03.2025 R.N, Sr.P.S* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI "