Shri Gyansingh Jitsing Chauhan, Surat V. The ACIT.,Cent.Circle-2, Surat

ITSSA 112/AHD/2012

• Counselvise Citation: [2016] 122 COUNSELVISE.COM (IT) 1609 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 26-02-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 16-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Assessee Lawyers: SHAH
• Keywords: Income from undisclosed sources; Search and seizure; Corroborative evidences; Retraction; Documents seized
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE SHRI SHAILENDRA YADAV, JM, & SHRI MANISH BORAD, AM. IT(SS)A NO.112 TO 114/AHD/2012 ASST. YEAR: 2004-05 TO 2006-07 GYANSINGH JITSING CHAUHAN, PROP. M/S GANESH SECURITY SERVICES, UPPER FLOOR, SHOP NO.7, KESHARTBA MARKET, KATARGAM, SURAT. VS. ACIT, CC-2, SURAT. APPELLANT RESPONDENT PAN ABOPC 4282F APPELLANT BY SHRI M. R. SHAH, AR RESPONDENT BY SMT. SONIA KUMAR, SR.DR DATE OF HEARING: 26.2.2016 DATE OF PRONOUNCEMENT: 22/03/2016 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . THESE THREE APPEALS OF ASSESSEE ARE DIRECTED AT TH E INSTANCE OF ASSESSEE AGAINST THE CONSOLIDATED ORDER OF LD. CIT( A)-II, AHMEDABAD DATED 19/12/2011 FOR ASST. YEARS 2004-05 TO 2006-07 IN APPEAL NO.CIT(A)-II/CC.2/42 TO 44/2010-11, WHICH WAS PASSE D AGAINST THREE SEPARATE ORDERS OF ACIT, CC-2, SURAT, ON 30.3.2010 FRAMED U/S 271(1)(C) OF THE IT ACT, 1961 (IN SHORT THE ACT). S INCE THE GROUNDS OF APPEAL ARE SIMILAR AND THE ASSESSEE IS THE SAME, TH ESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON O RDER FOR THE SAKE IT(SS)A NO.112-114/AHD/2012 ASST. YEAR 2004-05 TO 2006-07 2 OF CONVENIENCE. GROUNDS OF APPEAL RAISED BY THE ASS ESSEE ARE REVOLVING ROUND THE SOLITARY ISSUE OF LEVYING PENAL TY UNDER SECTION 271(1)(C) OF THE ACT AND CONFIRMED BY LD. CIT(A) AS UNDER :- I) ASST. YEAR 2004-05 RS.1,00,000/- II) ASST. YEAR 2005-06 RS.3,00,000/- III) ASST. YEAR 2006-07 RS.5,00,000/- 2. BRIEFLY STATED FACTS ARE THAT ASSESSEE IS AN IND IVIDUAL RUNNING SOLE PROPRIETARY CONCERN IN THE NAME OF M/S GANESH SECURITY SERVICES, SURAT. A SEARCH AND SEIZURE ACTION U/S 13 2 OF THE ACT WAS CARRIED OUT AT THE RESIDENCE OF ASSESSEE ON 16.3.20 06 AND ACCORDINGLY NOTICE U/S 153A(A) OF THE ACT WAS ISSUE D AND SERVED UPON THE ASSESSEE ON 20.2.2007. IN REPLY TO QUESTIO NNAIRE ASSESSEE FILED HIS RETURN OF INCOME ON 8.11.2007 SHOWING TOT AL INCOME AT RS.2,10,020/- INCLUDING AGRICULTURAL INCOME OF RS.6 5,500/-. SUBSEQUENTLY, NOTICE U/S 143(2) OF THE ACT WAS ISSU ED ON 19.11.2007 AND SERVED UPON THE ASSESSEE. ASSESSMENT WAS FRAMED U.S 143(3) R.W.S. 153A OF THE ACT AND ON THE BASIS OF SURRENDE R MADE BY ASSESSEE DURING THE COURSE OF SEARCH ADMITTED AN AM OUNT OF RS.7,00,000/- AS UNACCOUNTED INCOME, ASSESSING OFFI CER MADE AN ADDITION OF RS.6,00,000/- OUT OF RS.7,00,000/- BECA USE RS.1,00,000/- WAS INCLUDED IN THE RETURN OF INCOME FURNISHED BY A SSESSEE AND THE SAME WAS DULY VERIFIED BY THE ASSESSING OFFICER. LD . CIT(A) VIDE HIS ORDER DATED 6.2.2009 CONFIRMED THE ADDITION MADE BY LD. ASSESSING OFFICER AND THEREAFTER ASSESSEE WENT IN APPEAL BEFR E THE TRIBUNAL WHICH VIDE ITS ORDER DATED 23.7.2010 IN ITA NO.1228 TO IT(SS)A NO.112-114/AHD/2012 ASST. YEAR 2004-05 TO 2006-07 3 1232/AHD/2009 FOR ASST. YEARS 2002-03 TO 2006-07 PA RTLY ALLOWED THE APPEAL OF ASSESSEE AND SUSTAINED THE ADDITION OF RS .1,00,000/- AS AGAINST RS.6,00,000/- CONFIRMED BY LD. CIT(A). IN O THER WORDS, ASSESSEE WAS GIVEN A RELIEF OF RS.5,00,000/- BY THE CO-ORDINATE BENCH. 3. ON THE OTHER HAND, HAVING RECEIVED THE ORDER OF LD. CIT(A) CONFIRMING THE ADDITION OF RS.6,00,000/- LD. ASSESS ING OFFICER WENT AHEAD TO IMPOSE PENALTY U/S 271(1)(C) OF THE ACT AT RS.1,80,000/- VIDE HIS ORDER DATED 30.3.2010 WHICH WAS SUSTAINED AT RS .1,00,000/- BY LD. CIT(A) IN HIS ORDER DATED 19.2.2011. 4. AGGRIEVED, ASSESSEE IS NOW IN APPEAL BEFORE THE TRIBUNAL AGAINST THE CONFIRMATION OF PENALTY OF RS.1,00,000/ - BY LD. CIT(A). 5. LD. AR SUBMITTED THAT DURING THE COURSE OF SEARC H CARRIED OUT ON ASSESSEES PREMISES ON 16.3.2006, ASSESSEE DECLA RED UNACCOUNTED INCOME OF RS.40,00,000/- U/S 132(4) OF THE ACT FOR FOLLOWING YEARS :- ASSESSMENT YEAR UNACCOUNTED INCOME (IN RS.) 2001-02 1,00,0007- 2002-03 2,00,0007- 2003-04 5,00,0007- 2004-05 7,00,0007- 2005-06 10,00,0007- 2006-07 15,00,0007- IT(SS)A NO.112-114/AHD/2012 ASST. YEAR 2004-05 TO 2006-07 4 LD. AR SUBMITTED THAT ABOVE SURRENDER OF RS.40,00,0 00/- IS PARTLY MADE ON ESTIMATE BASIS AND THEREAFTER AT THE TIME O F FILING RETURN OF INCOME PURSUANT TO SEARCH THEY WERE FILED ON ACTUAL BASIS AND TAX WAS PAID ACCORDINGLY. DURING THE YEAR UNDER APPEAL ASST. YEAR 2004- 05 AS THERE WAS NO UNDISCLOSED INCOME CALCULABLE ON THE BASIS OF STATEMENT MADE DURING SEARCH WITH REFERENCE TO NUMB ER OF SECURITY GUARD, GUARD SUPERVISOR WORKING UNDER THE PROPRIETA RY CONCERN OF THE ASSESSEE. LD. AR ALSO SUBMITTED THAT DURING THE COU RSE OF ASSESSMENT PROCEEDINGS COMPLETE DETAILS FOR WORKING OUT GROSS PROFIT FOR GUARD AS WELL AS GROSS PROFIT MARGIN FOR EACH G UARD WERE SHOWN BUT THE ASSESSING OFFICER MADE ADDITION OF RS.6,00, 000/- WITHOUT POINTING OUT ANY DEFECT IN THE SUBMISSIONS MADE BY THE ASSESSEE, NOR ANY WORKING WAS MADE BY LD. ASSESSING OFFICER ON TH E BASIS OF DOCUMENTS SEIZED DURING SEARCH PROCEEDINGS AND THE ADDITION WAS SIMPLY MADE ON THE BASIS OF STATEMENT GIVEN BY ASSE SSEE AND EVEN OUT OF THE STATEMENT OF UNACCOUNTED INCOME, SURREN DERED BY ASSESSEE IN HIS STATEMENT AT RS.7,00,000/- FOR ASST . YEAR 2004-05, ASSESSING OFFICER MADE AN ADDITION OF RS.6,00,000/- BY OBSERVING THAT ASSESSEE HAS ALREADY SHOWN AMOUNT OF RS.1,00,0 00/- IN HIS RETURN OF INCOME. IN OTHER WORDS, LD. AR SUBMITTED THAT CONCLUSIVELY THERE WAS NO SUPPORTING EVIDENCES AVAILABLE WITH TH E ASSESSING OFFICER EXCEPT THE STATEMENT MADE U/S 132(4) OF THE ACT AND THEREFORE, NO PENALTY U/S 271(1)(C) WAS IMPOSABLE O N THE ASSESSEE. 6. ON THE OTHER HAND, LD. DR SUPPORTED THE ORDERS O F LOWER AUTHORITIES. IT(SS)A NO.112-114/AHD/2012 ASST. YEAR 2004-05 TO 2006-07 5 7. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. WE OBSERVE THAT OUT OF THE ADDITION OF RS.6 ,00,000/- MADE BY ASSESSING OFFICER, CO-ORDINATE BENCH VIDE ITS ORDER DATED 23.07.2010 IN ITA NO.1228 TO 1232/AHD/2009 IN THE CASE OF ASSE SSEE RESTRICTED THE ADDITION TO RS.1,00,000/- AS AGAINST RS.6,00,00 0/- MADE BY ASSESSING OFFICER BY OBSERVING AS UNDER :- ASSESSMENT YEAR : 2004-05 : IN THIS ASSESSMENT YEAR, IN THE RETURN OF INCOME , THE ASSESSEE HAS DECLARED TOTAL INCOME OF RS.2,10,020/- INCLUDING AGRICULTURAL INCOME OF RS.65,500/-. AT THE TIME OF SEARCH, UNDISCLOSED INC OME ADMITTED BY THE ASSESSEE FOR THIS ASSESSMENT YEAR IS RS.7 LAKHS. HOWEVER, THE AS SESSING OFFICER MADE THE ADDITION OF RS.6 LAKHS BECAUSE ACCORDING TO HIM, THE ASSESS EE HAS ALREADY DECLARED ADDITIONAL INCOME OF RS.L LAKH IN THE RETURN OF INCOME FILED I N RESPONSE TO NOTICE UNDER SECTION 153A. IN THE BOOKS OF ACCOUNTS, THE ASSESEE HAS ALR EADY REFLECTED THE CHEQUE RECEIPTS OF RS.24,50,795/- AND CASH RECEIPTS OF RS.20,794/-. FURTHER CASH RECEIPT (AS PER ASSESSMENT YEAR 2006-07) WORKS OUT AT RS.7,97,489/- @ 32.54%. ON THIS BASIS, THE ASSESSEE HAS COMPUTED ITS INCOME. ACCORDING TO ASSE SSEE, FOR THIS YEAR FURTHER ADDITION SHOULD BE RESTRICTED TO RS.79,260/-. IT IS PERTINENT TO NOTE THAT FOR THIS ASSESSMENT YEAR, THE ASSESSEE MADE A DISCLOSURE OF RS.7 LACS. OUT OF THIS, RS.L LAC HAS ALREADY BEEN DECLARED IN THE RETURN OF INCOME. AS P ER THE ASSESSEE'S WORKING, FURTHER ADDITION TO BE MADE IS ONLY RS.79,260/-. KEEPING IN VIEW THE TOTALITY OF THE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT IT WILL MEET THE END OF JUSTICE, IF FURTHER ADDITION IS RESTRICTED TO RS.1,00,0007- AS AGAINST RS.6,00,0007- MADE BY THE ASSESSING OFFICER. 8. FROM GOING THROUGH THE ABOVE FACTS DISCUSSED IN THE ORDER OF CO-ORDINATE BENCH, WE UNDERSTAND THAT ASSESSING OFF ICER MADE ADDITION ONLY ON THE BASIS OF STATEMENT MADE DURING SEARCH PROCEEDINGS U/S 132(4) OF THE ACT, WHEREAS CO-ORDIN ATE BENCH AFTER EXAMINING THE FACTS OF THE CASE IN RELATION TO RECE IPT BY CHEQUE AND CASH HAS GIVEN A FINDING THAT ADDITION AT RS.1,00,0 00/- SHOULD HAVE BEEN MADE AS AGAINST RS.6,00,000/- MADE BY ASSESSIN G OFFICER. NOW TURNING TO THE AMOUNT OF PENALTY U/S 271(1)(C) WHIC H HAS BEEN WORKED OUT AT RS.1,80,000/- BY THE ASSESSING OFFICER ON TH E ADDITION AT IT(SS)A NO.112-114/AHD/2012 ASST. YEAR 2004-05 TO 2006-07 6 RS.6,00,000/- CONFIRMED BY LD. CIT(A), THE SAME ALR EADY STANDS REDUCED TO RS.30,000/- AS THE ASSESSING OFFICER OUG HT TO HAVE REVISED THE ORDER OF PENALTY PURSUANT TO PRONOUNCEM ENT OF ORDER OF THE TRIBUNAL REDUCING THE QUANTUM OF ADDITION FROM RS.6,00,000/- TO RS.1,00,000/-. AS FAR AS IMPOSITION OF PENALTY U/S 271(1)(C) ON THE SUSTAINED ADDITION OF RS.1,00,000/- IS CONCERNED, T HERE HAVE BEEN SERIES OF JUDICIAL PRONOUNCEMENTS WHICH SAY THAT TH E ADDITION MADE ON ESTIMATE BASIS AND NOT SUPPORTED BY CORROBORATIV E EVIDENCES AND ALSO IN SITUATION WHEN QUANTUM ADDITION HAS BEEN SC ALED DONE, THEN SUCH CASE IS NOT A FIT CASE FOR IMPOSITION OF PENAL TY U/S 271(1)(C) OF THE ACT. 9. IN THE CASE OF ASSESSEE ALSO THE INCOME SHOWN PU RSUANT TO SEARCH HAS BEEN DULY SUPPORTED BY FINANCIAL DETAILS OF RECEIPTS IN CHEQUE AND CASH AND PROPER WORKING HAS BEEN GIVEN F OR CALCULATION OF TOTAL INCOME FOR THE YEAR AND NO DEFECT HAS BEEN CALLED FOR BY THE REVENUE IN THE RETURN OF INCOME AND DETAILS SHOWN T HEREIN WHICH HAVE BEEN DULY APPRECIATED BY THE CO-ORDINATE BENCH IN THE DECISION IN ASSESSEES OWN CASE REFERRED ABOVE AS PER WHICH THE ESTIMATED ADDITION MADE BY ASSESSING OFFICER ON THE BASIS OF STATEMENT GIVEN U/S 132(4) OF THE ACT WITHOUT PLACING ANY CORROBORA TIVE EVIDENCE ON RECORD WAS SLASHED DOWN FROM RS.6,00,000/- TO RS.1, 00,000/-. THIS PROVES THAT THERE WAS NO CONCEALMENT OF PARTICULARS OF INCOME NOR ANY INACCURATE PARTICULARS WERE FURNISHED BY ASSESS EE IN THE RETURN OF INCOME FILED PURSUANT TO SEARCH. IT(SS)A NO.112-114/AHD/2012 ASST. YEAR 2004-05 TO 2006-07 7 10. FURTHER WE FIND THAT IN THE CASE OF KAILASHBEN MANHARLAL CHOKSHI VS. CIT IN IT REFERENCE NO.111 OF 1997, HON . JURISDICTIONAL HIGH COURT VIDE THEIR ORDER DATED 1 ST SEPTEMBER, 2008 HAS DEALT WITH SIMILAR ISSUE IN WHICH ADDITION WAS MADE BY LD. ASS ESSING OFFICER MERELY BASED ON THE STATEMENT RECORDED DURING THE C OURSE OF SEARCH U/S 132(4) OF THE ACT WITHOUT SUPPORTING OF ANY COR ROBORATIVE EVIDENCES AND THEIR LORDSHIPS HAVE DECIDED THE SAME IN FAVOUR OF ASSESSEE BY OBSERVING AS UNDER :- WE HAVE HEARD LEARNED COUNSEL APPEARING FOR THE RES PECTIVE PARTIES AT GREAT LENGTH AND CONSIDERED THE SUBMISSIONS. WE HAVE ALSO GONE T HROUGH THE ORDERS PASSED BY THE AUTHORITIES BELOW. IT IS TRUE THAT IN NORMAL CI RCUMSTANCES THIS COURT WOULD NOT INTERFERE IN THE FINDING OF FACT ARRIVED AT BY THE AUTHORITIES. IT IS, HOWEVER, TO BE SEEN AS TO WHETHER THE EXPLANATION TENDERED BY THE ASSESSEE WOULD BE CONSIDERED BY THE AUTHORITIES BELOW. IT IS ALSO TO BE SEEN AS TO WHETHER AN ADDITION MADE IS MERELY BASED ON THE STATEMENT RECORDED BY THE AO UN DER S. 132(4) OF THE ACT AND WHETHER ANY COGNIZANCE MAY BE TAKEN OF THE RETRACTE D STATEMENT. SO FAR AS CASE ON HAND IS CONCERNED, THE GLARING FACT REQUIRED TO BE NOTED IS THAT THE STATEMENT OF THE ASSESSEE WAS RECORDED UNDER S. 132(4) OF THE ACT AT MIDNIGHT. IN NORMAL CIRCUMSTANCES, IT IS TOO MUCH TO GIVE ANY CREDIT TO THE STATEMENT RECORDED AT SUCH ODD HOURS. THE PERSON MAY NOT BE IN A POSITION TO M AKE ANY CORRECT OR CONSCIOUS DISCLOSURE IN A STATEMENT IF SUCH STATEMENT IS RECO RDED AT SUCH ODD HOURS. MOREOVER, THIS STATEMENT WAS RETRACTED AFTER TWO MO NTHS. THE MAIN GRIEVANCE OF THE AO WAS THAT THE STATEMENT WAS NOT RETRACTED IMMEDIATELY AND IT WAS DONE AFTER TWO MONTHS. IT WA S AN AFTERTHOUGHT AND MADE UNDER LEGAL ADVISE. HOWEVER, IF SUCH RETRACTION IS TO BE VIEWED IN LIGHT OF THE EVIDENCE FURNISHED ALONG WITH THE AFFIDAVIT, IT WOU LD IMMEDIATELY BE CLEAR THAT THE ASSESSEE HAS GIVEN PROPER EXPLANATION FOR ALL THE I TEMS UNDER WHICH DISCLOSURE WAS SOUGHT TO BE OBTAINED FROM THE ASSESSEE. SO FAR AS AMOUNT INVESTED IN HOUSE PROPERTY IS CONCERNED, THE ASSESSEE HAS SPECIFICALL Y STATED IN HIS EXPLANATION DT. 28TH FEB., 1989, THAT THERE WAS ABSOLUTELY NO BASIS FOR MAKING THE DISCLOSURE ON ACCOUNT OF BUNGALOW AT 68, SARJAN SOCIETY, ATHWA LI NES, SURAT. IT WAS IN THE YEAR 1964 THAT THE ASSESSEE TOOK ONE PLOT NO. 68 IN SARJ AN CO-OPERATIVE HOUSING SOCIETY WHICH WAS ALSO CONSTRUCTING THE BUNGALOW FO R WHICH THE ASSESSEE CLAIMED TO HAVE BEEN MADE CONTRIBUTION FROM TIME TO TIME. T HE ASSESSEE TOOK POSSESSION OF THE BUNGALOW IN 1974 WHEN ONLY GROUND FLOOR WAS CONSTRUCTED. SINCE THEN HE HAS BEEN LIVING THERE. THE ASSESSEE HAS CONSTRUCTED FIRST FLOOR DURING 1986 TO 1988 AND HE HAS INCURRED THE EXPENSES FOR FIRST FLOOR ST RUCTURE TO THE TUNE OF RS. 2,03,185.65 BUT THIS AMOUNT HAS BEEN WITHDRAWN FROM THE ACCOUNT OF THE FIRM IN IT(SS)A NO.112-114/AHD/2012 ASST. YEAR 2004-05 TO 2006-07 8 WHICH THE ASSESSEE IS A PARTNER. AS PER SAY OF MR. SHAH EVEN DVO HAS ALSO ACCEPTED THAT THE COST OF CONSTRUCTION OF FIRST FLO OR WORKED OUT TO RS. 2,06,060. THERE WAS, THEREFORE, NO REASON FOR MAKING ADDITION OF RS. 4 LACS ON THE BASIS OF ALLEGED DISCLOSURE MADE BY THE ASSESSEE IN HIS STAT EMENT RECORDED UNDER S. 132(4) OF THE ACT. IN SUPPORT OF THIS STATEMENT THE REVENU E HAS NOT BROUGHT ANY EVIDENCE WHATSOEVER WHICH WOULD ESTABLISH THAT THE ASSESSEE HAD IN FACT INCURRED AN AMOUNT OF RS. 4 LACS ON THE CONSTRUCTION OF THE FIR ST FLOOR AND THAT AMOUNT WAS INVESTED OUT OF THE UNDISCLOSED INCOME. HENCE THERE IS NO JUSTIFICATION FOR MAKING ACCOUNT (SIC-ADDITION) OF RS. 4 LACS MERELY ON THE BASIS OF STATEMENT RECORDED UNDER S. 132(4). NONE OF THE AUTHORITIES HAVE CONSI DERED THIS EXPLANATION AND THE CIT(A) AS WELL AS TRIBUNAL BOTH HAVE PROCEEDED ON T HE FOOTING THAT THE AO HAS CONSIDERED THE EXPLANATION. SO FAR AS THE ADDITION ON ACCOUNT OF GOLD ORNAMENTS TO THE TUNE OF RS. 1 LAC IS CONCERNED, THE ASSESSEE HAS GIVEN THE EXPLANATION T HAT WAS REPRODUCED BY THE AO IN HIS ASSESSMENT ORDER WHICH SAYS THAT DURING THE COURSE OF SEARCH AND SEIZURE PROCEEDING, STATEMENT OF ASSESSEE'S WIFE, SMT. KAIL ASHBEN CHOKSHI WAS RECORDED AND ACCORDING TO WHICH SHE HAD RECEIVED ABOUT 25 TO LAS OF GOLD EACH FROM HER PARENTS AND FROM HER PARENTS-IN-LAW SIDE AT THE TIM E OF HER MARRIAGE IN THE YEAR 1960. SHE HAD GIVEN 15 TOLAS OF GOLD ORNAMENTS TO H ER DAUGHTER RITABEN AT THE TIME OF HER MARRIAGE IN THE MONTH OF MARCH, 1988. I F THE TOTAL JEWELLERY FOUND DURING THE COURSE OF SEARCH IS TAKEN INTO CONSIDERA TION, IN LIGHT OF THE INSTRUCTIONS ISSUED BY THE BOARD, ANY MIDDLE CLASS INDIAN FAMILY MAY BE HAVING JEWELLERY AND GOLD ORNAMENTS TO THAT EXTENT. HENCE, NO ADDITION C AN BE MADE ON THAT COUNT. EVEN IF THE BOARD CIRCULAR MAY NOT HAVE RETROSPECTI VE OPERATION, LOOKING TO THE QUANTUM OF HOLDING AND ASSESSEE'S EXPLANATION, WE A RE OF THE VIEW THAT THIS IS A NORMAL HOLDING WHICH CAN BE FOUND IN ANY MIDDLE CLA SS INDIAN FAMILY AND HENCE NO ADDITION COULD HAVE BEEN JUSTIFIED ON THAT COUNT . SO FAR AS ADDITION OF RS. 1 LAC ON ACCOUNT OF UNACC OUNTED INVESTMENT IN FURNITURE IS CONCERNED, IT IS STATED BY THE ASSESSEE THAT ON THE GROUND FLOOR FURNITURE WAS MADE BEFORE 15 YEARS AND ASSESSEE HAD SPENT RS. 25, 000 FOR RENOVATION AFTER MAKING WITHDRAWAL FROM THE FIRM'S ACCOUNT. IT IS FU RTHER SUBMITTED THAT THE FURNITURE ON THE FIRST FLOOR WAS PARTLY RECEIVED AN D PAID OUT OF WITHDRAWALS FROM THE FIRM. AT THE TIME OF THE SEARCH ADDITIONAL FURN ITURE MEANT FOR THE FIRST FLOOR WAS JUST RECEIVED BY WAY OF PARCEL FROM AHMEDABAD AND W AS LYING IN BUNDLES. A DETAILED SOURCE OF INVESTMENT OF FURNITURE PURCHASE D FROM AHMEDABAD WITH A DUE CONFIRMATION FROM THE PARTY CONCERNED HAVE BEEN FIL ED BY THE ASSESSEE BEFORE THE AO. SINCE NO PAYMENT OF THIS ADDITIONAL FURNITURE W AS MADE BY THE ASSESSEE TILL THE DATE OF SEARCH, NO ADDITION COULD HAVE BEEN MAD E ON THIS COUNT. IN VIEW OF WHAT HAS BEEN STATED HERCINABOVE WE ARE OF THE VIEW THAT THIS EXPLANATION SEEMS TO BE MORE CONVINCING, HAS NOT BE EN CONSIDERED BY THE AUTHORITIES BELOW AND ADDITIONS WERE MADE AND/OR CO NFIRMED MERELY ON THE BASIS OF STATEMENT RECORDED UNDER S. 132(4) OF THE ACT. D ESPITE THE FACT THAT THE SAID STATEMENT WAS LATER ON RETRACTED NO EVIDENCE HAS BE EN LED BY THE REVENUE IT(SS)A NO.112-114/AHD/2012 ASST. YEAR 2004-05 TO 2006-07 9 AUTHORITY. WE ARC, THEREFORE, OF THE VIEW THAT MERE LY ON THE BASIS OF ADMISSION THE ASSESSEE COULD NOT HAVE BEEN SUBJECTED TO SUCH ADDI TIONS UNLESS AND UNTIL, SOME CORROBORATIVE EVIDENCE IS FOUND IN SUPPORT OF SUCH ADMISSION. WE ARE ALSO OF THE VIEW THAT THE STATEMENT RECORDED AT SUCH ODD HOURS CANNOT BE CONSIDERED TO BE A VOLUNTARY STATEMENT, IF IT IS SUBSEQUENTLY RETRACTE D AND NECESSARY EVIDENCE IS LED CONTRARY TO SUCH ADMISSION. HENCE THERE IS NO REASO N NOT (SIC) TO DISBELIEVE THE RETRACTION MADE BY THE AO (SIC-ASSESSEE) AND EXPLAN ATION DULY SUPPORTED BY THE EVIDENCE. WE ARE, THEREFORE, OF THE VIEW THAT THE T RIBUNAL WAS NOT JUSTIFIED IN MAKING ADDITION OF RS. 6 LACS ON THE BASIS OF STATE MENT RECORDED BY THE AO UNDER S. 132(4) OF THE ACT. THE TRIBUNAL HAS COMMITTED AN ERROR IN IGNORING THE RETRACTION MADE BY THE ASSESSEE. IN THE ABOVE VIEW OF THE MATTER, ADDITION OF RS. I LAC MADE ON ACCOUNT OF UNACCOUNTED CASH IS CONFIRMED AND THE ADDITION OF R S. 6 LACS IS HEREBY DELETED. IN THE ABOVE VIEW OF THE MATTER, WE ARE OF THE VIEW THAT THE QUESTION REFERRED TO US IS PARTLY ANSWERED IN FAVOUR OF THE ASSESSEE AND AG AINST THE REVENUE. WE, THEREFORE, HOLD THAT THE TRIBUNAL WAS NOT RIGHT IN CONFIRMING ADDITION TO THE EXTENT OF RS. 6 LACS AS DISCLOSED IN STATEMENT UNDER S. 13 2(4) OF THE ACT. THIS REFERENCE IS ACCORDINGLY DISPOSED OF WITHOUT A NY ORDER AS TO COSTS. 11. RESPECTFULLY FOLLOWING THE ABOVE DECISION OF HO N. JURISDICTIONAL HIGH COURT, WE FIND THAT FACTS OF THE CASE ARE SQUA RELY FITTED IN THE FOUR CORNERS OF THE DECISION AND WE ARE OF THE OPIN ION THAT ASSESSEE SHOULD NOT BE VISITED WITH PENALTY U/S 271(1)(C) OF THE ACT. WE, THEREFORE, ALLOW THE APPEAL OF ASSESSEE. 12. IN OTHER TWO APPEALS OF ASSESSEE IN ITA NOS.113 & 114/AHD/2012 FOR ASST. YEARS 2005-06 & 2006-07 THE ISSUES ARE SIMILAR. THEREFORE, APPLYING OUR ABOVE DECISION TO THE FACTS OF THESE APPEALS, WE OBSERVE THAT THE ISSUES ARE SQUARELY CO VERED IN FAVOUR OF ASSESSEE AND WE ARE OF THE VIEW THAT ASSESSEE SHOUL D NOT BE VISITED WITH PENALTY U/S 271(1)(C) OF THE ACT ON THE ADDITI ONS PARTLY SUSTAINED IT(SS)A NO.112-114/AHD/2012 ASST. YEAR 2004-05 TO 2006-07 10 BY THE CO-ORDINATE BENCH WHILE ADJUDICATING THE APP EAL ON QUANTUM ISSUE. ACCORDINGLY, COMMON GROUND NO.1 IN ALL THE T WO APPEALS IS ALLOWED. 13. GROUND NOS. 2 & 3 COMMON IN ALL THE THREE APPEA LS ARE GENERAL IN NATURE, WHICH NEED NO ADJUDICATION. 14. WE ALSO OBSERVE THAT ASSESSEE HAS FORWARDED REQ UEST DATED 26/2/2016 FOR ADMITTING COMMON ADDITIONAL GROUND FO R ALL THE THREE YEARS I.E. ASST. YEARS 2004-05 TO 2006-07 WHICH REA DS AS UNDER :- ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT,- THE ID. CIT(A) HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO ALSO LEVY PENALTY ON ADDITIONAL INCOME SHOWN IN RETURN FILED IN RESPO NSE TO SEC 153A APPLYING THE DECISION OF ACIT VS KIRIT DAHYABHAI PATEL 121 I TD 159 (AHD) (TM) WHEN THE SAME IS REVERSED BY GUJARAT HIGH COURT IN TAX A PPEAL 1182-85 OF 2010. 15. AS WE HAVE ALREADY ALLOWED THE APPEALS OF ASSES SEE ON THE GROUND RAISED AT THE TIME OF FILING OF APPEALS, NO NEED ARISES FURTHER TO ADMIT AND ADJUDICATE ADDITIONAL GROUND WHICH HAS BE EN RAISED ON THE DATE OF HEARING OF THE APPEALS. WE ACCORDINGLY DISM ISS THIS ADDITIONAL GROUND OF APPEAL(S) RAISED IN ALL THE THREE APPEALS FOR ASST. YEARS 2004-05 TO 2006-07. IT(SS)A NO.112-114/AHD/2012 ASST. YEAR 2004-05 TO 2006-07 11 16. IN THE RESULT, ALL THE THREE APPEALS OF ASSESSE E ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/03/2016 SD/- SD/- (SHAILENDRA YADAV) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 22/03/2016 MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 2/316 & 16/03/2016 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 17/03/2016 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 22/3/16 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: