M/S RADHE ASSOCIATES, Ahmedabad V. THE DCIT,S.R.-5, Ahmedabad

ITSSA 53/AHD/1998

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 8746 (ITAT-AHMEDABAD)
• Duration Of Justice: 14 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-02-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 27-09-2012
• Assessment Year: misc
• Appeal Filed On: 27-04-1998
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained expenditure; Income from undisclosed sources; Search and seizure; Loose papers; Principle of natural justice; Block assessment; Tax effect; Retraction
• Section: 131; 15

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , .. , '# ' $ BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI T.R.MEENA, ACCOUNTANT MEMBER APPEAL(S) BY SL.NO(S) IT(SS)A NO(S) BLOCK PERIOD APPELLANT(S) RESPON- DENT(S) 1. 53/AHD/1998 1.4.85 TO 31.3.95 AND 1.4.95 TO THE DATE OF SEARCH M/S.RADHE ASSOCIATES & OTHERS 1 ST FLOOR CHUNIBHAI CHAMBERS B/H.CITY GOLD CINEMA OPP.PUNAM PALACE HOTEL ASHRAM ROAD AHMEDABAD-380 009 PAN/GIR NO. 31-126-FN-5359 DY.CIT SPL. RANGE-5 AHMEDA- BAD & CIT GUJARAT- III, AHMEDA- BAD 2. 54/AHD/1998 -DO- M/S.RADHE CONSTRUCTION ADDRESS SAME PAN/GIR NO. 31-109-FT-9205 -DO- 3. 55/AHD/1998 -DO- M/S.RADHE ESTATE DEVELOPERS ADDRESS SAME PAN/GIR NO. 31-118-FV-0306 -DO- 4. 56/AHD/1998 -DO- M/S.RADHE ESTATE DEVELOPERS DY.CIT SPL. RANGE-5 AHMEDA- BAD ASSESSEES BY : SHRI S.N.SOPARKAR, SR.ADV. WITH SHRI P.M.MEHTA REVENUE BY : SHRI A.TIRKEY AND SHRI Y.P.VERMA SR. D.RS. / DATE OF HEARING : 10/01/2013 / DATE OF PRONOUNCEMENT : 22/2/13 IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 2 - / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : ALL THESE FOUR APPEALS ARE THE DIRECT APPEALS AGAI NST THE ORDER OF THE AO PASSED U/S.158BD R.W.S.158BA/ U/S.113. IN THE C ASE OF M/S.RADHE ASSOCIATES AND M/S.RADHE CONSTRUCTION THE ASSESSME NT ORDERS ARE IDENTICALLY DATED I.E. 27.3.1998. FOR THE SAKE OF CONVENIENCE, WE SHALL TAKE UP THE FACTS FROM THE LEAD CASE OF M/S.RADHE A SSOCIATES. 2. SINCE IN THE MAIN THREE APPEALS THE ISSUE RAIS ED IN THE MAIN CASE OF M/S.RADHE ASSOCIATES, THE FOLLOWING GROUNDS WERE RA ISED:- THE BLOCK ASSESSMENT ORDER PASSED BY THE DY.COMMISS IONER OF INCOME-TAX, SPL. RANGE-5, AHMEDABAD UNDER SECTION 1 58BA R.W.S.158BD AND 113 OF THE I.T. ACT ON 27-03-1998 I S ARBITRARY AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE, BASE D ON ASSUMPTIONS, SURMISES AND CONJECTURES, IGNORING ALL WRITTEN AS WELL AS ORAL SUBMISSIONS MADE IN THE COURSE OF ASSESSMEN T PROCEEDINGS. THE SAID ASSESSMENT ORDER IS, THEREFORE, ILLEGAL AN D BAD IN LAW. 2. THE BLOCK ASSESSMENT ORDER PASSED BY THE DY.COM MISSIONER OF INCOME-TAX, SPL RANGE-5, AHMEDABAD UNDER SECTION 15 8BA R.W.S. 158BD AND 113 AFTER THE PREVIOUS APPROVAL OF THE CO MMISSIONER OF INCOME-TAX, GUJARAT-III, AHMEDABAD AS PROVIDED U NDER SECTION 158BG OF THE I.T.ACT, 1961 IS ARBITRARY AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE INASMUCH AS THE SAID APPROVAL HA S BEEN GIVEN BY THE LEARNED COMMISSIONER OF INCOME-TAX ACTING ARBIT RARILY INSTEAD OF ACTING FAIRLY, JUSTLY AND REASONABLY, IGNORING A ND WITHOUT TAKING INTO CONSIDERATION THE ORAL AS WELL AS WRITTEN SUBM ISSIONS FILED BY THE APPELLANT BEFORE ASSESSING OFFICER ON 6.1.98, 2 1.2.98 AND FULL AND COMPLETE SUBMISSIONS DATED 20.3.98 MADE BY THE APPELLANT AT THE TIME OF HEARING BEFORE THE COMMISSIONER OF INCO ME-TAX ON IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 3 - 21.3.98. THE SAID ASSESSMENT ORDER IS, THEREFORE, ILLEGAL AND BAD IN LAW. 3. THE ASSESSING OFFICER AND THE COMMISSIONER OF I NCOME-TAX ERRED ON FACTS AND IN LAW IN ASSUMING THAT THE APPE LLANT HAD SUPPRESSED/UNDERSTATED UNDISCLOSED INCOME OVER AND ABOVE AS REFLECTED IN THE INVESTMENTS, ASSETS, EXPENDITURE, ETC. FOUND AT THE TIME OF SEARCH, CONTRARY TO THE PROVISIONS CONTAINE D IN SECTIONS 158B, 158BA, 158BB, AND 158BC OF THE ACT. 4. THE ASSESSING OFFICER ERRED ON FACTS AND IN LAW IN MAKING THE FOLLOWING ADDITIONS BY WAY OF UNDISCLOSED INCOME AR BITRARILY, WITHOUT TAKING INTO CONSIDERATION THE DETAILED WRIT TEN SUBMISSIONS DATED 6.1.98, 21.2.98 AND 20.3.98 DULY SUPPORTED WI TH ALL THE AVAILABLE EVIDENCE AS WELL AS ORAL SUBMISSIONS MADE BEFORE THE ASSESSING OFFICER AS WELL AS BEFORE THE COMMISSIONE R OF INCOME- TAX, AT THE TIME OF HEARING BEFORE HIM:- NAME OF SCHEMES BOOKED AREA AVERAGE RATE AMOUNT (RS) OF ON-MONEY --------------------- --------------- ---- ----------- ------------ GANESH PLAZA 83434 SQ.FT. RS.150 SQ .FT. 1,25,15,100 M.FLOOR, SHOP 5056 SQ.FT. RS.400 SQ.FT. 20,22,400 -------------- TOTAL 1,45,37,500 ======= A) FACTS IN SHORT 2.1. A SEARCH WAS CONDUCTED U/S.131 ON 14.3.1996 AT RADH E GROUP BUSINESS PREMISES. SEARCH WAS ALSO CARRIED AT A RE SIDENTIAL PREMISES OF A PARTNER. ONE OF THE PARTNERS STATEMENT, NAMELY SHRI ASHISH P. PATEL , A WORKING PARTNER, WAS RECORDED ON VARIOUS OCCASIONS/DATES. IT WAS NOTED THAT THE ASSESSEE HAD CONSTRUCTED AN OFFI CE-CUM-SHOP PREMISES NAMED AS GANESH PLAZA. THE ALLEGATION WAS THAT T HE ASSESSEE HAD IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 4 - CHARGED ON-MONEY OVER AND ABOVE THE DOCUMENTED PR ICE ON SALE OF THE PREMISES OF THE SAID PROJECT. IT WAS NOTED BY THE AO THAT A NOTICE U/S.158BD R.W.S.158BA WAS ISSUED AND IN COMPLIANCE A NIL RETURN FOR THE SAID BLOCK PERIOD WAS FILED. AT THIS JUNCTURE, LD.AR HAS VEHEMENTLY CONTESTED THAT ALTHOUGH THE AO HAS MENTIONED THAT T HERE WERE DETECTION OF INCRIMINATING DOCUMENTS BUT IN THE IMPUGNED ASSE SSMENT ORDER, THERE WAS NO MENTION OF THE NATURE OF THE INCRIMINATING D OCUMENTS AND WHAT WAS FOUND IN THOSE DOCUMENTS ? RATHER, HE HAS INFORMED THAT ONLY A STATEMENT OF SHRI ASHISH P.PATEL WAS MADE THE BAS IS OF THE IMPUGNED ADDITIONS NOW UNDER CHALLENGE. ACCORDING TO AO, A STATEMENT WAS RECORDED ON 1.5.1996 , WHEREIN THE SAID PARTNER HAS ADMITTED A CONCEALMENT OF RS.18.19 CRORES . AS PER THE ALLEGATION OF THE AO, THE SAID PARTNER ADMITTED THE CHARGING OF ON-MONEY. THE AO HAS EXTRACTED A PORTION OF THE STATEMENT RECORDED ON 1. 5.1996; RELEVANT PORTION IS REPRODUCED BELOW:- EXTRACT FROM THE STATEMENT OF SHRI ASHISH P.PATEL DATED 1.5.1996 Q.NO.26 - I AM SHOWING YOU THE LOOSE PAPER FILE FO UND DURING THE SURVEY OPERATION ON 14.3.1996 AT THE SITE OFFIC E OF YOURE THE SCHEME TIRTH BHOOMI. PLEASE PERUSE THE SAME AND EX PLAIN THE CONTENTS THEREOF. ANS. IT CONTAINS DETAILS OF EXTRA WORK DONE ON DIF FERENT UNITS IN TIRTH BHOOMI. THE EXTRA WORK HAS BEEN DONE AT THE INSTRUCTION OF UNIT HOLDERS. WE RECEIVED THE AMOUNT IN CASH WHICH IS NOT RECORDED IN THE BOOKS. THE TOTAL OF SUCH RECEIPT C OMES TO RS.19,19,791/-. Q.NO.27 LIKE TIRTH BHOOMI, HAVE YOU COLLECTED UNA CCOUNTED CASH FOR EXTRA WORK DONE IN OTHER SCHEME DEVELOPED BY YOU ? IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 5 - ANS. YES WHENEVER THE UNIT HOLDER DESIRES, WE DO EXTRA WORK ACCORDINGLY. BUT I DO NOT HAVE THE DETAILS OF SUCH EXTRA WORK DONE. Q.NO.28 DURING THE COURSE OF SEARCH AT THE RESIDE NTIAL AND OFFICE PREMISES OF YOUR GROUP, YOUR LEGAL OFFICER AND ACCO UNTANT ON 14.3.1996 AND 15.3.1996, BOOKS OF ACCOUNTS, EVIDENC ES AND LOOSE PAPERS WERE FOUND AND SEIZED AND STATEMENTS DATED 1 4.3.1996, 15.3.1996, 15.4.1996, 18.4.1996, 25.4.1996 AND 30.4 .1996 WERE RECORDED. IT IS APPARENT FROM THE EVIDENCES AND ST ATEMENT THAT THE FOLLOWING ENTRIES/PAYMENTS/INVESTMENTS/TRANSACTIONS /EXPENDITURE ARE NOT REFLECTED IN ANY OF THE BOOKS OF ACCOUNTS O F YOUR GROUP. 2.1. THEREAFTER, THE AO HAS ALSO REPRODUCED THE ALL EGED AMOUNT OF CONCEALED INCOME OF RS.18 CRORES (APPROX.) AS PER T HE FOLLOWING DETAILS:- SR.NO. AMOUNT (RS.) PARTICULARS QUE.NO. DATE OF STATEMENT -------- ---------------- -------------- ---------- ------------ 1. 1,27,000 PERSONAL EXPENSES 12 1 4.3.1996 2. 3,20,000 SILVER ARTICLES/UTENSILS 23 1.5.1996 3. 2,65,000 VALUABLE ARTICL ES 25 1.5.1996 4. 12,80,00,000 PAYMENT FOR SHELA 20 15.3.1996 LAND TO MANOJ 7 15.4.1996 VADODARIA & VASANT ADANI 5. 5,00,00,000 PROFIT TO GAUTAM ADANI 20 15.3.1995 FOR LAL BUNGLOW LAND 5 15.4.1996 6. 2,02,000 INTEREST PAID TO JA YANTI N.PATEL 22 18.4.1996 7. 5,50,000 PAYMENT TO UJIN CARDILIO 6 1.5.1996 8. 24,48,000 ON MONEY PAYMENT FOR SWAGAT BUILDING OFFICE 15 1.5.1996 9. 15,000 CASH PAID TO BIPINBH AI SHAH 19 1.5.1996 --------------- 18,19,27,900 TOTAL IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 6 - 2.2. THEREFORE, THE AO HAS ASKED TO EXPLAIN THE SOU RCE OF THE EXPENDITURE/INVESTMENT. THE AO HAS AGAIN NARRATED QUESTION AND ANSWERS, WHEREIN IN ONE OF THE ANSWER IT WAS SAID T HAT NONE OF THE ENTRIES WERE REFLECTED IN THE BOOKS OF ACCOUNTS AND THE AMO UNT IN QUESTION WAS A NET UNACCOUNTED INCOME. IT HAS ALSO BEEN SAID THAT THERE WAS NO FIXED RATE FOR COLLECTING ON-MONEY. THE COLLECTION OF ON-MONEY HAD DEPENDED UPON VARIOUS FACTORS, I.E. PERSONAL BARGAI N, SITUATION OF THE UNIT AND STATUS OF THE PURCHASER. 2.3. ON ONE HAND, THE AO HAS RECORDED THE UNACCOUN TED INVESTMENT/EXPENDITURE AND ON THE OTHER HAND, THE A O HAS ALSO REPRODUCED A PORTION OF THE STATEMENT WHEREIN THE S AID PARTNER HAS GIVEN THE DETAILS OF THE UNACCOUNTED NET INCOME EARNED IN THE FOLLOWING MANNER:- SR.NO. NAME OF THE AREA SOLD/ RATE TOTA L AMOUNT SCHEME BOOKED (AV ERAGE) (ON MONEY) -------- -------------- ------------- ------------ ----------------- 1. GANESH PLAZA A) OFFICE 83434 SQ,FT. 150/ SQ.FT. 1,25,15,000 B)M.FLOOR SHOPS 5056 SQ.FT. 400/SQ.FT. 20,22,400 2. TIRTHBHOOMI FLATS 23840 SQ.YD. 700/-SQ.YD . 1,66,88,000 3. R.TRADE CENTRE A) OFFICE 55070 SQ.FT. 200 /- SQ.FT. 1,01,14,000 42720 SQ.FT. - - B) GR.FLOOR SHOPS 4386 SQ.FT. 400/-SQ.FT. 17,54,400 M.FLOOR SHOPS 6700 SQ.FT. 300/- SQ.FT. 20,10,000 IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 7 - 4. RADHE ACRES I & II 484733 SQ.FT. 250 TO 300 PER SQ.YD. 12,80,00,000 5. TAKSHASHILA (AS PER DIARY ANNEX-A/1 AND OTHER PAPERS) - - 25,00,000 6. EXTRA WORK RECEIPTS OF TIRTHBHOOMI (AS PER LOOSE PAPER BUNCH X/22 FOUND AT TIRTHBHOOMI SITE OFFICE DURING SURVEY ON 14.3.1996) - - 19,20,000 7. OTHER RECEIPTS AND MISCELLANEOUS INCOME - - 34,27,100 8. INCOME FROM CRICKET BETTING (NET INCOME) - - 1,49,000 TOTAL NET UNACCOUNTED INCOME 18,20,00,000 =========================================== 2.4. ON THE BASIS OF THE SAID STATEMENT, THE AO HAS CONCLUDED THAT THE FACT OF EARNING OF ON-MONEY HAD BEEN ADMITTED BY THE ASSESSEE. IT HAS BEEN SHORT-LISTED BY THE AO THAT THE FOLLOWING RATE WAS APPLIED FOR THE PURPOSE OF EARNING OF ON-MONEY, (I) ASSESSEE HAS COLLECTED ON MONEY AT THE RATE OF RS.150/- PER SQ.FOOT ON OFFICE IN GA NESH PLAZA(83434 SQ.FEET) AND (II) ASSESSEE HAS COLLECTED ON MONEY A T THE RATE OF RS.400/- PER SQ.FOOT ON SHOPS IN GANESH PLAZA (5056 SQ.FEET) . AFTER APPLYING THE RATE OF THE ALLEGED ON-MONEY ON THE AREA WHICH WA S SUSPECTED TO BE SOLD BY THE ASSESSEE, THE AO HAS THEN CALCULATED TH E QUANTUM OF THE ON- MONEY ALLEGED TO HAVE BEEN RECEIVED BY THE ASSESSE E, AS FOLLOWS:- IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 8 - SR.NO. NAME OF SCHEME BOOKED AREA AVERAGE RATE O F AMOUNT(RS.) ON MONEY -------- -------------------- ---------------- ------------------ ----------------- 1. GANESH PLAZA 83434 SQ.FT. RS.150 SQ.FT. 1,25,15,100 OFFICE 2. M.FLOOR, SHOP 5056 SQ.FT. RS.400 SQ.FT. 20,22,400 ------------------- RS.1,45,37,500 =========== 2.5. THERE IS A MENTION THAT ONE OF THE PAPER WHICH WAS FOUND WAS IN RESPECT OF A LAND AND THAT WAS PREPARED FOR PROJEC TIONS TO AVAIL THE FINANCE. IT WAS NOTHING BUT ESTIMATED FIGURES; WAS THE EXPLANATION OF THE ASSESSEE. ACCORDING TO ASSESSEE, OTHERWISE THERE WAS NO EVIDENCE OF HAVING COLLECTED ON-MONEY. THOSE WERE DIFFERENT NATURE OF CALCULATIONS AND NOTINGS AS ALSO THE FIGURES OF TH E PROJECTION WERE ALSO DIFFERENT AND WRITTEN BY DIFFERENT PERSONS ON VARIO US PAGES. IT WAS STRONGLY CONTESTED THAT THE SAID PARTNER WAS CORNER ED AND A CONFESSION WAS EXTRACTED. HE HAS CONFESSED THAT AN AMOUNT OF RS.5 CRORES WAS PAID TO ONE SHRI GAUTAM ADANI. IT WAS INFORMED DURING THE ASSESSMENT PROCEEDINGS THAT THE STATEMENT WAS RECORDED FOR HOU RS AND LASTED AS LONG AS UPTO 36 HOURS. THE ASSESSEE HAS THEREAFTER DEN IED THE PAYMENT OF RS.5 CRORES TO ONE SHRI GAUTAM ADANI IN RESPECT OF LAL BUNGALOW LAND. THE CONCLUSION OF THE AO WAS THAT THE RETRACTION WAS MADE AFTER TWO YEARS OF RECORDING OF THE STATEMENT. A FACT HAS AL SO BEEN POINTED OUT TO US THAT ADMITTEDLY IT WAS NOTED BY THE AO VIDE PAR A 3.4 OF THE ASSESSMENT ORDER THAT THE SEARCH WAS CONDUCTED IN T HE MONTH OF MARCH- 1996 AND THE IMPUGNED STATEMENT WAS RECORDED AFTER TWO MONTHS IN MAY-1996 IN WHICH HE HAD ADMITTED THE COMPONENT OF ON-MONE Y RECEIVED. THE SAID PARTNER HAD ADMITTED THE COLLEC TION OF ON-MONEY IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 9 - AND RATHER GIVEN A DETAILED CHART OF ONE-MONEY CO LLECTED WAS MAIN ALLEGATION OF THE REVENUE DEPARTMENT. IN RESPECT OF THE RETRACTION AFTER A LAPSE OF TWO YEARS, THE AO HAS CITED A DECISION O F HONBLE KERALA HIGH COURT IN THE CASE OF V.KUNHAMBU & SONS VS. CIT 219 ITR 235 (KER.). IN HIS OPINION, THE ASSESSEE SHOULD NOT HAVE ANY GR IEVANCE IN RESPECT OF THE UNACCOUNTED INCOME WHICH WAS TAXED AS PER THE W ORKING OF THE ASSESSEE HIMSELF. THE AO HAS THEREFORE CONCLUDED THAT THE AMOUNT OF RS.1,45,37,500/- WAS THE UNDISCLOSED INCOME OF THE ASSESSEE FOR THE AY 1996-97 UPTO THE DATE OF SEARCH FALLING WITHIN THE BLOCK PERIOD. THE SAID ADDITION WAS CHALLENGED. 2.6. IN RESPECT OF M/S.RADHE CONSTRUCTION (IT(SS)A NO.54/AHD/1998) THE FACTS WERE IDENTICAL AND THE TOTAL UNDISCLOSED INCOME WAS COMPUTED AT RS.60,92,800/-. IN THIS CA SE, THE CONSTRUCTION WAS IN RESPECT OF A RESIDENTIAL COMPLEX (TAKSHASHIL A APARTMENT). VIDE PARA 3 OF THE ASSESSMENT ORDER DATED 27.3.1998 THER E WAS A MENTION OF A STATEMENT RECORDED ON 1.5.1996 OF MR.ASHISH P.PATEL WHERE HE HAD ADMITTEDLY AN AMOUNT OF RS.18.19 CRORES. IN PARA 3.2, THE AO HAS ALSO MADE A MENTION OF AN ANOTHER SEARCH CONDUCTED ON TH E GROUP IN 1992 AND AT THAT TIME A STATEMENT OF ONE OF THE PARTNER SHRI APURVA SHAH WAS RECORDED ON 12.11.1992 AND HE HAD ADMITTED THE COLL ECTION OF ON- MONEY AT THAT TIME ALSO. THAT STATEMENT OF THE Y EAR 1992 HAS ALSO BEEN MADE A PART OF THE ASSESSMENT ORDER. THERE IS A M ENTION OF ANNEXURE A- 1, I.E. A DIARY MAINTAINED FOR TAKSHASHILA SCHEME. THERE IS ALSO A MENTION OF A STATEMENT OF SHRI ASHISH P.PATEL RECOR DED ON 18.4.1996. ON THE BASIS OF THE SAID STATEMENT AND THE DIARY, IT W AS CONCLUDED BY THE AO IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 10 - THAT THE ASSESSEE HAS SOLD 17,408 SQ.YARDS OF LAND AT THE RATE OF RS.350/- PER SQ.YARD AND THAT MONEY WAS COLLECTED AS AN UNDISCLOSED INCOME ; COMPUTED AT RS.60,92,800/- AND ACCORDINGLY TAXED . 2.7. IN RESPECT OF M/S.RADHE ESTATE DEVELOPERS (IT(SS) A NO.55/AHD/1998) , IT WAS NOTED BY THE AO THAT THE OFFICE-CUM-SHOP CONSTRUCTION WAS MADE FOR THE PROJECT, NAMELY RA TRADE CENTRE AND TIRTH BHOOMI COMPLEX. THE AO HAS SIMILARLY MENTION ED THE STATEMENT OF SHRI ASHISH P.PATEL. ON THE BASIS OF THE SAID S TATEMENT, THE AO HAS COMPUTED THE AVERAGE RATE OF ON-MONEY AND THEN WO RKED OUT THE TOTAL ON-MONEY IN RESPECT OF THE SAID PROJECT AT RS.3,3 3,86,400/-. OUT OF WHICH CERTAIN AMOUNT WAS FOUND TAXED IN THE PAST, T HEREFORE THE BALANCE AMOUNT OF RS.3,14,66,400/- WAS ASSESSED. IN RESPEC T OF THESE THREE APPEALS, THE AFORESAID WAS THE BRIEF FACTS LEADING TO THE CONTROVERSY IN HAND. B) ARGUMENTS OF THE APPELLANT 3. FROM THE SIDE OF THE APPELLANT-ASSESSEES, LD.ARS MR.S.N.SOPARKAR AND MR.P.M.MEHTA APPEARED AND OPENED THE ARGUMENT THAT MERELY ON THE BASIS OF THE STATEMENT DATED 1.5.1996 OF ONE O F THE PARTNER, THE IMPUGNED ADDITIONS WERE RESPECTIVELY MADE. OTHERWI SE, THERE WAS NO EVIDENCE IN THE POSSESSION OF THE REVENUE DEPARTMEN T EVEN AFTER A SEARCH WAS MADE U/S.132 OF THE ACT ON 14.3.1996. L D.AR HAS RAISED THREE ISSUES ; ONE WAS IN RESPECT OF THE JURISDICTION OF THE ASSESSM ENT MADE U/S.158BD OF THE IT ACT, SECOND , ADDITIONS MADE ONLY ON THE BASIS IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 11 - OF STATEMENT AND NOT ON THE BASIS OF INCRIMINATING EVIDENCE AND THIRD THAT THE COMPUTATION OF UNDISCLOSED INCOME WAS AGAINST T HE VIEW ALREADY TAKEN BY THE TRIBUNAL IN THE CASES OF RADHE DEVELOP ERS (INDIA) LTD. BEARING IT(SS)A NO.103/AHD/1997 DATED 15.1.1999 AND AN ANOTHER ORDER OF THE TRIBUNAL IN THE CASE OF ASHISH P.PATEL BEARI NG IT(SS)A NO.16/AHD/2007 DATED 31.3.2010. 3.1. THE PROVISIONS OF SECTION 158BD ARE VERY SPEC IFIC AND REVOLVE AROUND A SPECIFIC SITUATION WHERE AN UNDISCLOSED IN COME IS TO BE TAXED IN THE HANDS OF AN ANOTHER PERSON ADMITTEDLY NOT SEARC HED. THE PROCEDURE IS THAT WHERE THE AO IS SATISFIED THAT AN UNDISCLOSED INCOME BELONGS TO ANY PERSON, OTHER THAN THE PERSON WITH RESPECT TO WHOM SEARCH WAS MADE U/S.132 AND THE BOOKS OF ACCOUNTS OF THE SAID OTHER PERSON WERE FOUND THEN THOSE REQUISITIONED INFORMATION SHALL BE HANDE D OVER TO THE AO HAVING JURISDICTION OVER SUCH OTHER PERSON. 3.2. HE HAS ARGUED THAT THERE WAS NO MENTION OF AN Y SATISFACTION IN THE IMPUGNED ASSESSMENT ORDER AND THAT THERE IS ALSO NO MENTION OF ANY INCRIMINATING MATERIAL WHICH WAS HANDED OVER TO THE AO HAVING THE JURISDICTION ON THESE APPELLANTS. IN SUPPORT OF THIS ARGUMENT, HE HAS PLACED RELIANCE ON MANISH MAHESHWARI VS. ACIT 289 ITR 341 (SC), ACIT VS. HARI SINGH 169 TAXMAN MAGAZINE 31 AND CIT VS. RAJPAL BHATIA 333 ITR 315. HE HAS ALSO REFERRED FEW TRIBU NAL DECISIONS: (1) VEDPRAKASH SANJAYKUMAR VS. ACIT 76 ITD 107 (CH ANDIGARH) (2) VISHWANATH PRASAD VS. ACIT 86 ITD 516 (ALL.) (3) NEW DELHI AUTO FINANCE P.LTD. VS. JT.CIT 300 ITR 83. IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 12 - 3.3. THE NEXT PLANK OF ARGUMENT IS THAT THE IMPUGNE D ADDITIONS WERE MADE MERELY ON THE BASIS OF A STATEMENT , THAT TOO RECORDED AFTER THE COMPLETION OF THE SEARCH OPERATION. HE HAS QUESTIO NED THAT WHETHER A STATEMENT CAN LEAD TO AN ASSESSMENT OF UNDISCLOSED INCOME SPECIALLY IN THE ABSENCE OF ANY MENTION OF SINGLE INCRIMINATING DOCUMENT? THE ADMITTED FACTUAL POSITION WAS THAT THE SEARCH WAS C ARRIED OUT ON 14.3.1996 BUT THE STATEMENT WHICH WAS RELIED UPON B Y THE AO WAS DATED 1.5.1996. ACCORDING TO THE ARGUMENT OF THE LD.AR THAT STATEMENT WAS A BALD STATEMENT HAVING NO EVIDENTIARY VALUE. IN S UPPORT OF THIS LEGAL ARGUMENT, CASE LAW CITED ARE:- A) HONBLE GUJARAT HIGH COURT DECISION IN THE CASE OF CIT VS. SHAMBHULAL C.BACHKANIWALA 245 ITR 488. B) HONBLE DELHI HIGH COURT DECISION IN THE CE OF CIT VS. GIRISH CHAUDHARY, 296 ITR 619. C) HONBLE CALCUTTA HIGH COURT DECISION IN THE CASE OF CIT VS. ASHIM KRISHNA MONDAL, 270 ITR 160. D) HONBLE MADRAS HIGH COURT DECISION IN THE CASE O F CIT VS. K.BHUVANENDRAN, 303 ITR 235 E) DELHI HIGH COURT DECISION IN THE CASE OF CIT VS. BALAJI WIRE PVT.LTD., 304 ITR 393. F) GUJARAT HIGH COURT DECISION IN THE CASE OF CIT V S. MAULIKKUMAR K.SHAH, 307 ITR 137. IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 13 - C) ARGUMENTS OF THE RESPONDENT-REVENUE 3.4. LD.AR HAS ALSO INFORMED THAT A RETRACTION HAD ALSO BEEN MADE BY THE ASSESSEE. EVEN OTHERWISE, THERE WAS NO EVIDENT IARY VALUE OF THE SAID STATEMENT AS HELD IN THE CASE OF (I) KAILASHBEN MAN HARLAL CHOKSI VS. CIT 328 ITR 411, (II) DCIT VS. PRAMUKH BUILDERS 112 ITD 179 AND (III) ASHOK MANILAL THAKKAR 97 ITD 361. 3.5. FURTHER, ELABORATING THE MANNER IN WHICH THE S TATEMENTS WERE RECORDED, LD.AR HAS INFORMED THAT THE SEARCH WAS CO MMENCED IN THE EARLY MORNING OF 14.3.1996 AND AT AROUND 7.30 A.M. ON THAT DAY A STATEMENT OF SHRI ASHISH P.PATEL WAS RECORDED AT VI THALBHAI COLONY NAVRANGPURA. THAT STATEMENT CONTINUED UPTO 3.00 PM . AGAIN, STATEMENT WAS RECORDED IN THE EVENING WHICH CONTINUED UPTO 10 PM ON THE DAY OF SEARCH. AROUND AT 11.PM, ON THAT VERY DAY, SHRI PA TEL WAS TAKEN TO THE OFFICE OF RADHE DEVELOPERS AT SWAGAT BUILDING, CG R OAD. THE STATEMENT THEN CONTINUED UPTO 1.00 AM I.E. 15.03.19 96. THEN AGAIN, HE WAS TAKEN TO PATEL COLONY AND THE STATEMENT WERE RE SUMED AT 2.00AM ON 15.3.1996 AND THAT STATEMENT CONTINUED UPTO 4.00 AM . AGAIN, HE WAS TAKEN TO SWAGAT BUILDING AND THE STATEMENT WAS RESU MED WHICH CONTINUED UPTO 8.00 AM ON 15.3.1996. ON 15.3.1996, THE STATEMENT WAS RECORDED FROM MORNING TILL EVENING UPTO 9.00 PM. S HRI PATEL WAS GRILLED BY THE REVENUE DEPARTMENT BY MORE THAN 36 YEARS AS PER THE ALLEGATIONS OF LD.AR. BUT THERE WAS NO CONFESSION ON THE PART OF SHRI PATEL IN RESPECT OF THE ALLEGED ON-MONEY. ACCORDING TO LD.AR, IN FACT, THE CONFESSION WAS EXTRACTED ONLY ON 1.5.1996 BY THE ADI OF THE IN COME TAX IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 14 - DEPARTMENT. BUT WHETHER SUCH AN EXTRACTION OF CON FESSION AFTER TWO MONTHS OF THE RAID HAD ANY EVIDENTIARY VALUE IS FUL L OF DOUBT, LD.AR HAS QUESTIONED. 3.5. THE THIRD PLANK OF ARGUMENT OF LD.AR IS THAT T HE TRIBUNAL HAD ALREADY GRANTED SUBSTANTIAL RELIEF WHILE DECIDING T HE CASE OF RADHE DEVELOPERS(SUPRA) ORDER DATED 15.1.1999 AND THE CAS E OF ASHISH P.PATEL(SUPRA) ORDER DATED 31.3.2010. HE HAS THERE FORE CONCLUDED THAT THE ENTIRE ADDITION ON ACCOUNT OF THESE THREE REASO NS ARE REQUIRED TO BE DELETED. 4. ON THE OTHER HAND, FROM THE SIDE OF THE REVENUE, LD.DRS MR. A.TIRKEY AND MR.Y.P.VERMA APPEARED. FROM THE SIDE OF THE REVENUE, THE ORDER OF THE AO WAS VEHEMENTLY SUPPORTED. IT I S PLEADED THAT SHRI ASHISH PATEL BEING THE MANAGING PARTNER HAPPENED TO BE AWARE OF THE AFFAIRS OF THE FIRM AS ALSO THE DAY-TO-DAY FUNCTION ING; WHICH CONSISTED THE INVOLVEMENT OF ON-MONEY. THE SEQUENCE OF STATE MENT AS MENTIONED DURING THE ARGUMENT THUS CLEARLY REVEALED THAT THE REVENUE DEPARTMENT HAD SYSTEMATICALLY RECORDED THE STATEMENT AND AFTER A THOROUGH INVESTIGATION THE SAID PARTNER WAS CORNERED TO THAT EXTENT BUT TO SURRENDER THE CONCEALED UNACCOUNTED MONEY. HE HAS CATEGORICA LLY GIVEN THE COMPUTATION OF THE UNACCOUNTED INCOME. THE STATE MENT RECORDED ON 1.5.1996 WAS HEAVILY RELIED UPON BY THE LD.DR. BEF ORE US, CERTAIN QUESTIONS AND THE RESPECTIVE ANSWERS OF THE SAID ST ATEMENT HAVE ALSO BEEN PERUSED. IT HAS ALSO BEEN ARGUED THAT IN A SITUATI ON WHEN THE ASSESSEE HAS HIMSELF OFFERED AN INCOME WITH COMPLETE DETAILS AS ALSO COMPUTATION, IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 15 - THEN SUCH ASSESSEE SHOULD NOT HAVE ANY GRIEVANCE IF TAXED ON THE BASIS OF THAT WORKING. LD.DRS HAVE ALSO REFERRED ANNEXURE A-1, 2 AND 3 AND ARGUED THAT THE NATURE OF THE TRANSACTION WAS SUCH THAT THE COMPONENT OF ON-MONEY COULD NOT BE RULED OUT. THEREFORE THE V EHEMENT CONTENTION IS THAT THE STATEMENT WAS NOT A BALD STATEMENT BUT DULY EVIDENCED BY INCRIMINATING MATERIAL. SUCH A STATEMENT HAS EVIDE NTIARY VALUE AS HELD IN THE CASE LAWS; ALTHOUGH RELIED UPON BY THE ASSESSEE . LD.DR HAS ALSO MENTIONED THAT THE PROCEEDINGS U/S.158BD WERE VERY MUCH VALID AND AS PER LAW, BECAUSE THE INFORMATION WAS IN POSSESSION OF THE REVENUE DEPARTMENT WHICH WAS MADE THE BASIS FOR THE ASSESSM ENTS IN QUESTION. HENCE, IT WAS PLEADED TO UPHOLD THE ADDITION. D) CONCLUSION / FINDING: 5. WE HAVE HEARD BOTH THE SIDES AT LENGTH. WE HAV E ALSO PERUSED THE COMPILATION IN RESPECT OF ALL THE THREE APPEALS FIL ED BEFORE US IN THE LIGHT OF THE ASSESSMENT ORDERS IN QUESTION. WE SHALL FI RST DEAL WITH THE QUESTION OF THE JURISDICTION INVOKED U/S.158BD OF T HE ACT. THE AO IS EMPOWERED TO PROCEED WITH THE CASE IN THE CASE OF A TAXPAYER ALTHOUGH NOT SEARCHED. THIS SECTION IS APPLICABLE IN A PECU LIAR SITUATION WHEN AN INCOME TAX OFFICER RECEIVES AN INFORMATION ALONG WI TH THE RECORDS FROM HIS COLLEAGUE, I.E. AN OFFICER HAVING JURISDICTION OVER THE SEARCHED MATERIAL. THE OFFICER WHO HAS JURISDICTION OVER S EARCHED MATERIAL IF SATISFIED THAT THERE IS SEIZED MATERIAL WHICH BELON GED TO OR PERTAINED TO AN ANOTHER PERSON AND ON THAT BASIS AN UNDISCLOSED INC OME IS TO BE ASSESSED, THEN HE PASSES THAT INFORMATION ALONG-WITH SUCH SEI ZED MATERIAL TO THAT AO HAVING JURISDICTION OVER SUCH OTHER PERSON. WE HAVE NOTED THAT IN IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 16 - THIS CASE THE ASSESSEES ALLEGATION IS NOT THERE WA S LACK OF ANY SATISFACTION RECORDED BY THE AO HAVING THE JURISDICTION OVER THE SEARCHED MATERIAL. THIS IS NOT THE CASE OF THE ASSESSEE THAT THE PROCE EDINGS U/S.158BD HAVE BEEN STARTED OR INVOKED IN THE ABSENCE OF ANY SATIS FACTION OF THE CONCERNED AO. SINCE THIS QUESTION HAS NOT BEEN RA ISED, THEREFORE WE ARE NOT ADJUDICATING ON THIS ISSUE. AS PER THE GROUN DS OF APPEAL, THE OBJECTION OF THE APPELLANT IS THAT THE PROVISIONS O F SECTION 158BD WERE INITIATED MERELY ON ASSUMPTION AND CONJECTURES. FU RTHER, THE WORDINGS OF THE GROUND, I.E. GROUND NO.2 ARE SUCH THE BLOCK ASSESSMENT ORDER WAS PASSED U/S.158BA R.W.S. 158BD AFTER THE APPROVAL OF THE CIT-III AHMEDABAD BUT THE ORDER IS ARBITRARY AND AGAINST TH E PRINCIPLE OF NATURAL JUSTICE AND THAT THE SAID APPROVAL IS ARBITRARY. SUCH A GRIEVANCE IS A GENERAL OBJECTION NOT ASSIGNING ANY SPECIFIC REASON THAT HOW THE PRINCIPLE OF NATURAL JUSTICE HAVE NOT BEEN FOLLOWED. THE GRI EVANCE AS RAISED IN GROUND NO.2 IS NOTHING BUT A GENERAL REMARK, ACCORD ING TO US, BECAUSE NO SPECIFIC REASON HAS BEEN GIVEN AND MERELY STATED TH AT SOME OF THE WRITTEN SUBMISSIONS HAVE NOT BEEN CONSIDERED BEFORE GRANTIN G APPROVAL. RATHER, WE ARE OF THE VIEW THAT THERE IS NO MANDATE TO PROV IDE A REASONABLE OPPORTUNITY TO THE ASSESSEE BEFORE GRANTING OF APPR OVAL. WE THEREFORE CANNOT HOLD THAT GROUND NO.2 IS SUSTAINABLE IN THE EYES OF LAW, HENC E HEREBY REJECT THIS GROUND . EVEN GROUND NO.3 IS ALSO GENERAL IN NATURE WITHOUT SPECIFYING THAT HOW THE INCOME ASSES SED AS UNDISCLOSED INCOME, IF ANY, WAS OVER AND ABOVE OF THE DISCLOS URE OF THE EXPENDITURE FOUND AT THE TIME OF SEARCH. IN THE ABSENCE OF ANY CALCULATION IN SUPPORT OF THIS GROUND, WE HEREBY HELD THAT THIS GROUND IS ALSO VERY MUCH GENERAL IN NATURE HENCE, BEING COMMON IN NATURE, DISMISSED. IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 17 - 6. NOW WE ARE LEFT WITH REST OF THE GROUNDS THROUGH WHICH THESE APPELLANTS HAVE CHALLENGED THAT THE IMPUGNED ADDITIONS HAVE MERELY BEEN MADE ON THE BASIS OF AN ORAL STATEMENT WHICH W AS TOTALLY LACKING THE PRESENCE OF CORROBORATIVE EVIDENCE . AS FAR AS THE DATES AND TIMES MENTIONED BY LD.AR AND RAISED THE OBJECTI ON THE MANNER IN WHICH ALLEGED GRILLING HAVE BEEN MADE OF ONE OF THE PARTNER MR.ASHISH PATEL, WE HEREBY REFRAIN OURSELVES TO COMMENT BECAU SE THIS ASPECT IS AN ADMINISTRATIVE MATTER TO BE ADDRESSED AND RESOLVED BY THE ADMINISTRATIVE COMMISSIONER OF THE REVENUE DEPARTMENT AND NOT WITH IN THE DOMAIN OF APPELLATE JURISDICTION OF THE TRIBUNAL. WE THER EFORE CONFINE OURSELVES TO THE MATERIAL EVIDENCE; IF ANY PLACED BEFORE US; WHICH WAS GATHERED AT THE TIME OF SEARCH AND WHETHER THAT EVIDENCE OR INC RIMINATING MATERIAL WAS CONFRONTED TO THE SAID PARTNER WHILE RECORDING HIS STATEMENT. IN THIS REGARD, OUR ATTENTION HAS BEEN DRAWN ON CERTAIN QUE STIONS FROM THE SIDE OF THE REVENUE. BUT BEFORE THAT; IT IS NOT ONLY RELE VANT BUT IMPORTANT TO CONSIDER AN ASPECT THAT THE STATEMENTS RECORDED AT THE TIME OR DURING THE CONTINUANCE OF SEARCH, I.E. ON 14.3.1996 & 15.3.199 6 WERE NOT THE STATEMENTS ON THE BASIS OF WHICH THE IMPUGNED ADDIT IONS HAVE BEEN MADE. IN OTHER WORDS, A STATEMENT RECORDED U/S.132 (4)/131 ON 14.3.1996 AND 15.3.1996 WERE NOT TREATED BY THE AO AS AN EVI DENCE FOR INVOKING THESE ADDITIONS. THE AO HAS NOT REFERRED THOSE STA TEMENTS FOR THE PURPOSE OF MAKING THE IMPUGNED ADDITIONS, RATHER T HE AO HAS ONLY REFERRED THE STATEMENT WHICH WAS RECORDED ON 01/05/ 1996. THIS STATEMENT IS PLACED IN THE COMPILATION. SIGNIFICAN TLY THE COLUMN AT THE TOP OF THE STATEMENT OF 132(4)/133A WAS CANCELLED A ND THE ONLY SECTION IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 18 - UNDER WHICH THE STATEMENT WAS RECORDED WAS MENTIONE D AS SECTION 131 OF IT ACT . THIS STATEMENT WAS RECORDED WHEN TWO MONTHS HAVE PASSED FROM THE DATE OF THE SEARCH OPERATION . THIS STATEMENT HAS ACTUALLY BEEN RECORDED ON 1.5.1996 U/S.131 OF IT ACT . AS PER THE PROVISIONS OF SECTION 131(1A) IF THE DIRECTOR, ETC. OF THE REVENU E DEPARTMENT HAS REASON TO SUSPECT THAT ANY INCOME HAS BEEN CONCEALE D OR LIKELY TO BE CONCEALED, THEN FOR THE PURPOSE OF MAKING ANY ENQUI RY OR INVESTIGATION SHALL BE COMPETENT TO ENFORCE THE ATTENDANCE OF ANY PERSON AND EXAMINE HIM ON OATH. THE PURPOSE OF THE SECTION IS THEREFO RE TO FACILITATE THE INVESTIGATION SO AS TO ENABLE THE OFFICER OF THE RE VENUE DEPARTMENT TO COLLECT THE INFORMATION AND TO INVESTIGATE THE MATT ER. THE POWERS U/S.131 IS FOR ENFORCING ATTENDANCE OF A PERSON, ON THE OTH ER HAND, POWER U/S.132 IS INTEND TO GIVE POWER TO SEARCH. AS FAR AS THE P ART SEARCH ENQUIRY IS CONCERNED, IN OUR OPINION, NOTICE U/S.131(1A) CAN BE ISSUED AND THERE IS NO ILLEGALITY. BUT THE QUESTION IS THAT WHETHER TH E RECORDING OF STATEMENT U/S.131 CAN BE TREATED AT PAR WITH A STATEMENT RECO RDED U/S.132(4) OF IT ACT? A STATEMENT RECORDED U/S.132(4) IS A STATEMEN T ON OATH AND, THEREFORE, IN THE CASE OF PAUL MATHEW & SONS 263 I TR 101 (KER.) IT WAS HELD THAT SUCH A STATEMENT CAN BE USED AS AN EVIDEN CE. SIDE BY SIDE, A LOGICAL VIEW HAS CONSISTENTLY BEEN TAKEN BY SEVERAL HONBLE COURTS THAT EVEN IN A CASE OF AN ADMISSION, IT WILL BE OPEN TO THE DEPONENT TO SHOW THAT THE ALLEGED ADMISSION WAS NOT CORRECT BEING NO T BASED UPON CORROBORATIVE EVIDENCE AND SO CANNOT PROVE THE AUTH ENTICITY OF SUCH A BALD STATEMENT. AN ADMISSION CAN BE AN IMPORTANT PIECE OF EVIDENCE BUT THAT ADMISSION IS NOT CONCLUSIVE IF NOT SUPPORTED B Y CORROBORATIVE EVIDENCE. SIMULTANEOUSLY, THE HONBLE COURTS ARE A LSO AWARE THAT WHERE IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 19 - AN ASSESSEE HAD MADE A STATEMENT OF FACTS, THEN HE CANNOT HAVE ANY GRIEVANCE IF THE TAXING AUTHORITY HAVE TAXED IN ACC ORDANCE WITH THAT STATEMENT. THIS PLEADING WAS FROM THE SIDE OF THE REVENUE/LD.DR, HENCE VEHEMENTLY RAISED THIS ARGUMENT. HOWEVER, IT IS IM PERATIVE IF THE ASSESSEES CASE IS THAT THE STATEMENT HAS BEEN RECO RDED UNDER A MISTAKEN BELIEF OF FACT OR WRONG KNOWLEDGE OF LAW. UNDER SU CH CIRCUMSTANCES, SUCH A DEPONENT IS ENTITLED FOR RETRACTION. BUT THAT RETRACTION SHOULD BE LOGICAL AND AGAIN BASED UPON SOME EVIDENCES. IN TH E PRESENT CASE, THE RETRACTION HAS BEEN MADE BUT WE ARE NOT INCLINED TO PROCEED MERELY ON THE BASIS OF THE AVAILABILITY OF RETRACTION ON RECO RD. BUT WE ARE ADDRESSING THE PROBLEM AS RAISED BEFORE US ON THE B ASIC ISSUE THAT WHETHER THE STATEMENT RECORDED ON 1.5.1996 WAS A CONFESSIO N BASED UPON SOME SPECIFIC EVIDENCES WHICH HAVE REVEALED THAT THE INC OME SO DISCLOSED WAS THE CONCEALED INCOME UNEARTHED CONSEQUENT UPON THE DETECTION OF ANY SEARCH MATERIAL. IN FACT, THE STATEMENT WHICH WAS RECORDED AFTER THE LAPSE OF TWO MONTHS ITSELF HAS SOME INHERENT DOUBTS THAT WHY THE REVENUE DEPARTMENT IS NOT IN A POSITION TO EXTRACT THAT CONFESSION AT THE TIME OF SEARCH ITSELF WHEN SO MANY STATEMENTS WERE RECORDED CONTINUOUSLY ON 14 TH & 15 TH OF MARCH-1996. THEN THE QUESTION IS THAT WHAT WAS THE MATERIAL EVIDENCE WHICH WAS MADE THE B ASIS OF AN OFFER WHICH WAS MADE AS PER THE STATEMENT RECORDED U/S.13 1 DATED 1/5/1996. EVEN AS PER QUESTION 28, IT WAS NOTED THAT ON THE B ASIS OF SEVERAL STATEMENTS, IT WAS FOUND THAT CERTAIN TRANSACTIONS/ EXPENDITURE HAS BEEN MADE WHICH WERE NOT RECORDED IN THE BOOKS OF ACCOUN TS. AT THIS JUNCTURE, IT IS WORTH TO MENTION THAT LD.AR MR.SOPA RKAR HAS ALSO POINTED OUT THAT THE IRONY WAS THAT ON ONE HAND, THE REVENU E DEPARTMENT HAS IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 20 - CALCULATED AN UNACCOUNTED INCOME OF RS.18.20 CRORE S AND ON THE OTHER HAND, THEY HAVE ALSO CALCULATED AN UNACCOUNTED EXPE NDITURE OF RS.18,19,27,900/-. SO, LD.AR HAS RAISED AN ALTERN ATIVE ARGUMENT THAT IF IT IS NOT THE CASE OF THE REVENUE THAT THE EXPENDITURE WAS NOT FOR THE PURPOSE OF THE BUSINESS, THEN A SIMPLE CONCLUSION CAN BE DRAWN THAT THE IMPUGNED UNACCOUNTED INCOME WAS UTILIZED TOWARDS IM PUGNED UNACCOUNTED EXPENDITURE. WE HAVE NOTED THAT EVEN THAT PROCEDURE HAS NOT BEEN FOLLOWED IN THE CASE BEFORE US, IE. M/S.RA DHE ASSOCIATES. FROM THE SIDE OF THE REVENUE, IT WAS CLARIFIED THAT THE POSITION OF THE UNACCOUNTED INCOME OF RS.18.20 CORES WAS THE OVERAL L POSITION OF THE GROUP AND THAT WAS THE ISSUE IN THE CASE OF M/S.RAD HE DEVELOPERS (INDIA) LTD. DULY ADDRESSED VIDE ORDER DATED 15.1.1999. WE THEREFORE LIKE TO CLARIFY THAT THE IMPACT OF THE STATEMENT U/S.131 DA TED 1/5/96 WAS ON OTHER CASES OF THE GROUP AND THOSE CASES HAVE BEEN DECIDE D ON THE MERITS OF EACH CASE, THEREFORE, NONE OF OUR OBSERVATION IN TH ESE CASES SHALL BE UTILIZED IN THOSE COMPLETED OTHER CASES. THE BASIS REASON IS THAT THIS DECISION OF OURS IS PURELY BASED UPON THE FINDINGS OF THE AO; WHICH COULD BE DIFFERENT IN REST OF THE GROUP CASES. 6.1. SO THE CRUX OF THE DISCUSSION IS THAT IN THE CASE OF THE ASSESSEE, THE AO HAD PROCEEDED TO COMPUTE THE UNACCOUNTED INCOME OF RS.1.45 CRORES ON THE BASIS OF THE CALCULATION THAT THE OFFICE-CUM -SHOPS OF GANESH PLAZA HAVE EARNED ON-MONEY OF RS.150/- PER SQ.FT. AND R S.400/- PER SQ.FT. WHAT WAS THE BASIS OF CALCULATION OF ON-MONEY IS NOT EMERGING FROM THE ASSESSMENT ORDER. RATHER, THE IMPUGNED ASSESSM ENT ORDER IS REFERRING ONLY QUESTION-ANSWERS WHICH WERE RECORDED AS PER TH E STATEMENT DATED IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 21 - 1.5.1996. THE ORDER IN QUESTION IS NOT REFERRING A NY INCRIMINATING MATERIAL THROUGH WHICH IT COULD BE ESTABLISHED THAT THE IMPUGNED RATE OF SQUARE FOOT WAS FACTUALLY RECEIVED BY THE ASSESSEE AND THAT EVIDENCE WAS COLLECTED AT THE TIME OF SEARCH. WE THEREFORE HOLD THAT SUCH AN ADDITION WHICH IS LACKING A CORROBORATIVE EVIDENCE IS NOT SU STAINABLE IN THE EYES OF LAW. THE AO HAS MENTIONED THAT THERE WAS CLINCHIN G DOCUMENTARY EVIDENCE BUT WHAT WAS THAT EVIDENCE IS NOWHERE MENT IONED. EVEN NOWHERE IT IS MENTIONED THAT WHAT WAS THE NATURE OF THE IMPUGNED CLINCHING DOCUMENTARY EVIDENCE. WE THEREFORE HOLD THAT IN THE ABSENCE OF ANY COGENT INCRIMINATING MATERIAL THE ADDITION W AS BAD IN LAW, HENCE DIRECT TO DELETE THE SAME. 6.2. THE VIEW EXPRESSED HEREINABOVE CAN BE BUTTRESS ED BY AN ORDER OF HONBLE DELHI HIGH COURT PRONOUNCED IN THE CASE OF CIT VS. BALAJI WIRES PVT.LTD. (2008)304 ITR 393 (DEL), WHEREIN ALM OST ON IDENTICAL SITUATION, THE HONBLE COURT HAS HELD THAT IRRESPEC TIVE OF THE STATEMENT UNLESS IT COULD BE DIRECTLY CONNECTED WITH THE RECO VERY OF ANY INCRIMINATING MATERIAL DURING THE SEARCH, IT COULD NOT BE USED AGAINST THE ASSESSEE. 6.3. LIKEWISE, IN THE CASE OF CIT VS. K.BHUVANENDRA N AND OTHERS (2008)303 ITR 235 (MAD.), THE OBSERVATION OF THE CO URT IS THAT THE TRIBUNAL HAD FOUND THAT THERE WAS NO EVIDENCE OR MA TERIAL FOUND DURING THE COURSE OF SEARCH OPERATIONS. THE STATEMENT REC ORDED FROM THE ASSESSEE WAS SUBSEQUENTLY RETRACTED AND REBUTTED. FURTHERMORE, THE STATEMENT WAS NOT RELATABLE TO ANY SEIZED MATERIAL. THEREFORE, EVEN THE IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 22 - STATEMENT COULD NOT BE THE BASIS FOR MAKING ANY ADD ITION. THE REASONS GIVEN BY THE TRIBUNAL WERE BASED ON VALID MATERIAL. THE DELETION OF ADDITION WAS JUSTIFIED. 6.4. THERE IS A DECISION OF THIRD MEMBER OF AHMEDAB AD BENCHES IN THE CASE OF DCIT VS. PRAMUKH BUILDERS (2008)112 ITD 179 (TM)(AHD.), WHEREIN AS WELL AN ADDITION WAS BASED UPON A STATEM ENT U/S.132(4), HOWEVER IT WAS HELD THAT THERE BEING NO SPECTRE OF EVIDENCE REGARDING UNDISCLOSED INCOME, ADDITION MADE ONLY ON THE BASIS OF STATEMENT RECORDED U/S.132(4) COULD NOT BE SUSTAINED. 6.5. AN ANOTHER ASPECT WHICH WAS BROUGHT TO OUR NOT ICE IS WHETHER THE INCOME IN QUESTION HAD FALLEN WITHIN THE DEFINITION AS PRESCRIBED U/S.158B(B) OF UNDISCLOSED INCOME. THIS DEFINITI ON IS TO BE READ ALONG WITH THE PROCEDURE PRESCRIBED IN THE STATUTE FOR C OMPUTATION OF UNDISCLOSED INCOME OF THE APPLICABILITY AS PER SEC TION 158BB. THE COMPUTATION IS TO BE MADE OF THE UNDISCLOSED INCOME OF THE APPLICABILITY ON THE BASIS OF EVIDENCE FOUND AS A RESULT OF SEARC H OR SUCH OTHER MATERIAL RELATABLE TO UNDISCLOSED INCOME. THESE PROVISIONS HAVE BEEN DISCUSSED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. GIRISH CHAUDHARY (2008)296 ITR 619 (DELHI) AND HELD THAT THE DEFINIT ION OF UNDISCLOSED INCOME SPECIFIES SUCH INCOME WHICH IS BASED UPON E VIDENCE FOUND AS A RESULT OF SEARCH. RATHER, IN THE CASE OF CIT VS. M AULIKKUMAR K.SHAH (2008) 307 ITR 137 (GUJ.), A VIEW HAS BEEN EXPRESS ED THAT IF A DIFFERENTIAL AMOUNT IS NEARLY BASED SUSPICION AND S URMISES AND THERE WAS NO MATERIAL TO SUPPORT THAT THE ASSESSEE HAD IN FAC T RECEIVED ANY ON- IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 23 - MONEY, THEN THERE IS NO SCOPE FOR ESTIMATION OF AL LEGED SALE PRICE FOR THE PURPOSE OF UNDISCLOSED INCOME. THESE CASE ALONG WITH FEW OTHERS AS LISTED SUPRA HAVE BEEN CONSIDERED BY US AND THERE U PON WE HAVE ARRIVED AT THE CONCLUSION THAT THE IMPUGNED ADDITION BEING NOT CORROBORATED BY ANY DIRECT INCRIMINATING MATERIAL, HENCE NOT TO BE SUSTAINED. 7. FURTHER TO RESOLVE THIS ISSUE, NOW WE HAVE TO EX AMINE THAT IN THE GROUP CASES WHICH ARE CONNECTED WITH THE RAID CONDU CTED ON 14.3.1996 WHAT THE TRIBUNAL HAS HELD WHILE CONSIDERING THE CO NSEQUENCE OF THE INVESTIGATION. THE ITAT B BENCH AHMEDABAD IN THE CASE OF M/S.RADHE DEVELOPERS (INDIA) LTD. BEARING IT(SS)A NO.103/AHD/1997 IN THE ORDER DATED 15.1.1999 HAS CONSIDERED ANNEXU RE A-1, ETC. AND THEREUPON RECORDED A FINDING THAT THE THEORY OF PROJECTION SHALL HAVE TO BE ACCEPTED IN THE FOLLOWING MANNER:- 21. IN OUR OPINION, THE THEORY OF PROJECTION SHA LL HAVE TO BE ACCEPTED FOR VARIOUS REASONS. IT IS A MATTER OF FA CT ON RECORD THAT SHRI ASHISH AT THE TIME OF HIS FIRST DEPOSITION HAD STATED THAT THE DOCUMENT REPRESENTED PROJECTIONS. SHRI ASHISH FURT HER GAVE EXPLANATION TO THE ENTRIES IN A CONSISTENT MANNER W HICH ARE CORRELATED WITH CORRESPONDING INVESTMENTS MADE BY C HEQUES AND RECORDED IN SEIZED BOOKS OF ACCOUNTS. THE NOTING O F 96 END HAS TO BE INTERPRETED AS THE END OF THE CALENDAR YEAR I N VIEW OF ANSWER TO QUESTION NO.2 OF STATEMENT DATED 14-03-1996. TH EREFORE, IN ANY CASE THE NOTINGS ON PAGE NOS.66 AND 67 DRAWN ON THE BASIS OF RELATED PAGES OF ANNEXURE A1 SEIZED FROM THE RESIDE NCE OF SHRI ASHISH P.PATEL CANNOT BE TREATED AS ACTUAL RECEIPT AND PAYMENT BUT FUTURE BUDGETARY PROJECTIONS ONLY. WE ARE ENCL OSING AS ANNEXURE TO THIS ORDER XEROX COPIES OF THE DOCUMENT S ON THE BASIS OF WHICH ADDITIONS HAD BEEN MADE. COPIES OF THE DO CUMENTS ARE ATTACHED AS A PART OF THIS ORDER TO SHOW THAT THESE DOCUMENTS CANNOT BE CONSIDERED AS AN EVIDENCE AS PER SEC.93 O F THE EVIDENCE ACT WHICH SAYS THAT WHEN THE LANGUAGE USED IN A DOC UMENT IS, ON IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 24 - ITS FACE, AMBIGUOUS OR DEFECTIVE, EVIDENCE MAY NOT BE GIVEN ON FACTS WHICH WOULD SHOW ITS MEANING OR SUPPLY ITS D EFECTS. IT WILL BE PERTINENT TO NOTE THAT EVEN THE AO DID NOT CONSI DER ALL THE ENTRIES NOTED IN THE DOCUMENTS. WHILE GOING THROUG H THE DOCUMENTS WE FIND THAT THE AO HAD ONLY CONSIDERED T HREE ITEMS VIZ. MANOJ 1.5 (AT PAGE 1 OF ANNEXURE-A1), SHIKHAR .7 0(AT PAGE 2 OF ANNEXURE-A1) AND 154 4.51 (AT PAGE 18 OF ANNEX URE-A1) IN THE CASE OF ASSESSEE AND THE FOLLOWINGS WERE CONSID ERED IN THE CASE OF ASHISH P.PATEL FOR THE BLOCK PERIOD:- ANNEXURE A1 PAGE 1 ANNEXURE A1 PAGE 18 ------------------------- ----------------------- --- 1. 111 2.50 162. 2.33 2. 148 3.20 387 11.61 3. ETC. 2.00 82 2.50 4. CHEKLA 2.00 5. 1742 NET 2.00 6. 4800 (21) 2.50 7. MAKARBA 1.00 IT IS SURPRISING THAT HE HAD IGNORED THE NOTING MAD E IN THE DOCUMENTS AGAINST BARODA TRANSACTION 96 END. IF THE SEARCH WAS CONDUCTED IN 1996 MARCH THE DOCUMENT WHICH NOT ES THE DATE 96 END CANNOT BE TREATED AS A DOCUMENT HAVING TRA NSACTION WHICH HAD BEEN ALREADY DONE. IT CAN ONLY ARISE WH EN THE DOCUMENT IS ACCEPTED AS PROJECTION UPTO END OF 19 96 AS THE ASSESSEE SUBMITTED. FURTHER, IT MAY BE NOTED THAT THE AO HAD ACCEPTED SOME OF THE TRANSACTIONS WERE BELONGING TO THE ASSESSEE ON THE BASIS OF INFORMATION GIVEN BY SHRI ASHISH PA TEL, IN SPITE OF THE FACT THAT DOCUMENTS WERE FOUND WITH SHRI ASHISH PATEL ONLY. THIS WAS DONE WITH REFERENCE TO THE BOOKS OF ACCOUN TS WHICH WERE SEIZED BY THE DEPARTMENT. IN SHORT, THE ASSESSEES EXPLANATION WAS ACCEPTED ABOUT OWNERSHIP OF THE ENTRIES WHEREAS THE EXPLANATION GIVEN OF PROJECTIONS WAS NOT ACCEPTED WHICH, ACCORD ING TO US, IS CONTRADICTORY TO EACH OTHER. IT IS ALSO NOTED THAT THOUGH THE AO CONSIDERED THE ENTRY AGAINST LAND AT BARODA (VILLAG E SANOLI), HE HAD ADDED ONLY RS.47 LACS IN SPITE OF THE DOCUMENT SHOWING 50.00 AND ACCORDING TO HIM, IT SHOULD BE RS.50 C RORES. THIS SHOWS THAT THE AO HIMSELF WAS NOT SURE ABOUT THE CO RRECTNESS OF THE DIGITS AS WELL AS THE CORRECT AFFAIRS OF THE T RANSACTIONS NOTED IN IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 25 - THE DOCUMENTS. IN THIS VIEW OF THE MATTER, WE ARE NOT ABLE TO SUSTAIN THE THREE ADDITIONS OF RS.1.50 CRORES, RS. 70 LACS AND RS.4.51 CRORES. THESE ADDITIONS ARE ACCORDINGLY DE LETED. 7.1. THE RESPECTED COORDINATE BENCH WAS OF THE VI EW THAT THE RECEIPTS OR PAYMENTS WERE NOTHING BUT FUTURE BUDGETARY PROJECTIONS ONLY, THEREFORE VIDE PARA-21 IT WAS FINALLY HELD THAT THO SE THREE ADDITIONS WERE NOT SUSTAINABLE, HENCE DELETED. OUR ATTENTION HAS ALSO BEEN DRAWN ON AN ANOTHER DECISION OF THE PARTNER SHRI ASHISH P.PATEL DECIDED BY ITAT A BENCH AHMEDABAD BEARING IT(SS)A NO.16/AHD/2007 DATED 31.3.2010 AND IN THAT ORDER AS WELL THE ADDITION BASED UPON T HE SAID STATEMENT WAS DELETED IN THE FOLLOWING MANNER:- WE FIND FROM THE ABOVE DECISION OF THE HONBLE ALL AHABAD HIGH COURT AND SUPREME COURT CLEARLY HOLDING THAT THE AD MISSION IS AN IMPORTANT PIECE OF EVIDENCE BUT THE ASSESSMENT CANN OT BE MADE SOLELY ON THE BASIS OF ADMISSION. ADMISSION CANNOT BE THE FOUNDATION FOR ASSESSMENT. FROM THE ABOVE SAID TWO DECISIONS, IT IS CLEAR THAT IN CASE INCOME WAS SHOWN IN RETURN OF INCOME AND ENTRY WAS IN ACCOUNTS, YET COURTS HELD ASSESSMENT C ANNOT BE MADE SOLELY ON THAT REASONS. EXCEPT ADMISSION, WHICH IS UNDER MISCONCEPTION AND INCORRECT, THERE IS NO OTHER INDE PENDENT EVIDENCE TO SHOW THAT THE A HAS PAID RS.5 CRORE TO SHRI GAUTAM ADANI. THEREFORE, THE ADMISSION MADE UNDER SUCH CI RCUMSTANCES IS TO BE CONSIDERED WITH GREAT CAUTION AND CIRCUMST ANCES IN WHICH THE ADMISSION WAS MADE PARTICULARLY UNDER THE TEMPT ATION THAT IF ADMISSION IS MADE, IT WOULD BE ALLOWED AS EXPENDITU RE AND THERE WOULD BE NO TAX EFFECT SHOULD BE SUPPORTED BY MATER IAL AND EVIDENCE. THE ASSESSEE THEREFORE CONTENDS THAT NO ADDITION CAN BE MADE ON THE BASIS OF STATEMENT RECORDED ON 15.04.19 96 WHERE ASSESSEE HAS STATED THAT UNACCOUNTED PAYMENT OF RS. 5 CRORE HAS BEEN MADE BUT FACT IS THAT NO SUCH PAYMENT HAS BEEN MADE. IN VIEW OF THESE FACTS, NOW WE WILL CONSIDER THE STATE MENT DATED 15.04.1996, WHEREIN THE ASSESSEE STATED AT Q.NO.4 A S UNDER:- IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 26 - I AM CHAIRMAN OF M/S.GANGA CO-OPERATIVE HOUSING SOCIETY LTD. THIS SOCIETY HAS MADE A BANAKHAT OF 1 80000 SQ. YARDS LAND WHICH SITUATED BEHIND THE NAVRANGPUR A TELEPHONE EXCHANGE. THE FINANCE FOR THE LAND HAS C AME FROM M/S.ARVIND MILLS LTD. AHMEDABAD. NO SCHEMES H AS BEEN STARTED ON THIS LAND. WE HAVE NOT GET THE COM PLETE POSSESSION OF THE LAND. ONLY WE HAVE GOT POSSESSIO N IN THE RANGE OF 30% TO 40%. WE HAVE PAID RS.21 CRORE TILL NOW BY CHEQUES AND CASH OUT OF WHICH RS.16 CRORES ARE ACCO UNTED AND APPROXIMATELY RS.5 CRORE ARE UNACCOUNTED. IT CAN BE SEEN FROM THE ABOVE FACTS THAT AT THE TIM E OF STATEMENT RECORDED DURING THE COURSE OF SEARCH ON 15.3.1996, ASSESSEE HAS CATEGORICALLY DENIED THAT NO PAYMENT ON BEHALF OF A FORESAID CO- OPERATIVE SOCIETY WAS MADE AND IN THE STATEMENT REC ORDED AFTER THE PERIOD F SEARCH AND PRESENT ASSESSMENT PROCEEDINGS AND EVEN AFTER ONE MONTH ON 15.4.1996, AS HAS STATED, TILL THAT DA TE, ASSESSEE HAS PAID UNACCOUNTED MONEY, EVEN IF ANY UNACCOUNTED PAY MENT IS MADE, SAME IS MADE BETWEEN THE PERIOD OF 15.03.1996 , I.E. AFTER THE DATE OF PRESENT BLOCK PERIOD AND BEFORE 15.4.19 96, HENCE EVEN IF ASSESSING OFFICER CAN MAKE ANY ADDITION, THAT CA N BE MADE IN REGULAR ASSESSMENT PROCEEDINGS AND NOT IN CURRENT B LOCK ASSESSMENT PROCEEDINGS IN VIEW OF THE ABOVE FACTS A ND DISCUSSIONS, WE ARE OF THE CONSIDERED VIEW THAT THIS ADDITION CA NNOT BE MADE IN THE HANDS OF THE ASSESSEE AND ACCORDINGLY WE DELETE THE SAME. 8. IN THE LIKE MANNER, IN RESPECT OF IT(SS)A NOS.54 &55/AHD/1998 THE ADDITIONS BEING WORKED OUT PRIMARILY ON THE BAS IS OF THE STATEMENT WITHOUT REFERRING THE INCRIMINATING EVIDENCE, WE HE REBY HOLD THAT CONSIDERING THE TOTALITY OF THE FACTS, CIRCUMSTANCE S AND LAW AS DISCUSSED SUPRA, SUCH AN ADDITION IS REQUIRED TO BE DELETED. IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 27 - 8.1. IN THE LIGHT OF THE DISCUSSIONS MADE HEREINABO VE AS ALSO CONSIDERING THE VIEW TAKEN BY THE RESPECTED CO-ORDI NATE BENCHES, RELEVANT PARAS REPRODUCED ABOVE AS ALSO FOLLOWING T HE LAW LAID DOWN BY THE HONBLE COURTS IN THE PRECEDENTS CITED SUPRA, W E ARE OF THE CONSCIENTIOUS VIEW THAT THE IMPUGNED ADDITIONS IN R ESPECT OF THESE THREE APPEALS BEING SOLELY BASED UPON A STATEMENT OF ONE OF THE PARTNER RECORDED AFTER THE LAPSE OF 2 MONTHS (APPROX.) FROM THE DATE OF SEARCH, SUCH ADDITIONS ARE NOT SUSTAINABLE IN THE EYES OF L AW BEING NOT CORROBORATED WITH ANY INCRIMINATING MATERIAL. WE T HEREFORE DIRECT TO DELETE THE ADDITION. GROUND RAISED IN THIS REGARD IS HEREBY ALLOWED. IN THE RESULT, THESE THREE APPEALS ARE PARTLY ALLOWED . 9. THE ASSESSEE HAS FILED AN APPEAL BEARING IT(SS)A 56/AHD/1998 AGAINST AN ORDER PASSED U/S.154 DATED 30.04.1998. IN THIS ORDER, IT WAS NOTED BY THE AO THAT THE ASSESSMENT ORDER OF M/S.RA DHE ESTATE DEVELOPERS WAS PASSED U/S.158BD ON 27.3.1998, HOWEV ER THERE WAS A DISCLOSURE OF THE ASSESSEE AS PER STATEMENT U/S.131 DATED 1.5.1996 WHEREIN IN RESPONSE TO QUESTION NO.30, THE ASSESSEE HAS ALSO MENTIONED EXTRA-WORK RECEIPTS OF TIRTH BHOOMI SITE OF RS.19,2 0,000/-. SO, THE AO HAS HELD THAT THE SAID INCOME WAS MISTAKENLY NOT TA XED AND THE MISTAKE WAS THUS RECTIFIED BY FURTHER MAKING AN ADDITION OF RS.19,20,000/- IN THE ORIGINALLY ASSESSED INCOME OF RS.3.14 CRORES, THUS REVISED TOTAL INCOME WAS TAXED AT RS.3.33 CRORES. DURING THE COURSE OF HEARING, LD.ARS MR.S.N.SOPARKAR, & MR.P.M.MEHTA HAVE STATED THAT TH E RECEIPT ON ACCOUNT OF EXTRA WORK OF TIRTH BHOOMI OF RS.19,20,0 00/- WAS BASED UPON A LOOSE-PAPER DETECTED DURING THE COURSE OF SEARCH OPERATION. IN FACT, THIS IT(SS)A NOS.53 TO 56/ AHD/1998 M/S.RADHE ASSOCIATES AND OTHERS VS. DY.CIT BLOCK PERIOD 1.4.85 TO 31.3.95 & 1.4.95 TO THE DATE OF SEARCH - 28 - AMOUNT SHOULD NOT HAVE BEEN CONTESTED BEING BASED U PON THE INCRIMINATING MATERIAL. HE HAS EXPRESSED NOT TO PR ESS THIS APPEAL WHICH IS FILED BY THE ASSESSEE AGAINST THE ORDER PASSED U /S.154 SUPRA. CONSIDERING THE ADMISSION OF THE ASSESSEE AND THE P RESENCE OF AN INCRIMINATING MATERIAL, THE ADDITION MADE BY THE AO WHILE PASSING THE ORDER U/S.154 IS HEREBY CONFIRMED. RESULTANTLY, GR OUND IS DISMISSED AND APPEAL IS DISMISSED. 10. IN THE RESULT, ALL THE THREE APPEALS BEARING I T(SS)A NOS.53, 54 AND 55/AHD/1998 ARE PARTLY ALLOWED, WHEREAS IT(SS)A NO.56/AHD/1998 IS DISMISSED. SD/- SD/- ( .. ) ( ) ( T.R. MEENA ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 22/ 2 /2013 .., . ../ T.C. NAIR, SR. PS '& ' ()* +'*, / COPY OF THE ORDER FORWARDED TO : 1. '#$% / THE APPELLANT 2. &'$% / THE RESPONDENT. 3. ()(*+ , / CONCERNED CIT 4. , ('#) / THE CIT(A)-CONCERNED 5. /01 & *+, '# '*+, '2) / DR, ITAT, AHMEDABAD 6. 134 5 / GUARD FILE. '&- / BY ORDER, '/# & //TRUE COPY// ./ / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD