TMI Blog2014 (7) TMI 561X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore any admission made in survey cannot by itself be made a basis for addition - the AO had no other material and / or corroborative material to justify the additions except the confessional statement of Shri Kishorbhai Karia recorded on 4.1.2007 which was subsequently retracted within a period 19 days and the same came to be explained with respect to additions – there was no reasons to interfere with the judgment and order passed by the Tribunal – Decided against Revenue. - Tax Appeal No. 525 of 2014, Tax Appeal No. 553 of 2014 - - - Dated:- 1-7-2014 - M. R. Shah And K. J. Thaker,JJ. For the Appellant : Mr. Pranav G. Desai, Advocate ORDER (Per : Honourable Mr. Justice M. R. Shah) 1.0. Leave to amend the proposed question no. 2(C) by correcting figure as ₹ 7,00,500/instead of ₹ 7,50,500/. 2.0. As common question of law and facts arise in both the appeals and as such arise out of the common impugned judgment and order passed by the learned Income Tax Appellate Tribunal (hereinafter referred to as the Tribunal ), both these appeals are decided and disposed of by this common order. 3.0. Feeling aggrieved and dissatisfied with impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (hereinafter referred to as the Act) was carried on 4.1.2007 at the business premises of the partnership firm namely M/s. M.P. Scrap Traders, Rajkot in which Shri Kishorebhai Mohanlal Karia, was also partner. During the course of survey proceedings, statement of said Shri Kishorebhai Mohanlal Karia was taken in which, fixed deposits and bank transactions in th name of various family members and partners found stood surrendered as undisclosed income in various years i.e. assessment years 2000-01 to 2004-05. In the said statement, Shri Kishorebhai Mohanlal Karia also admitted of unexplained investment in construction of house property and furniture etc. purchased by him. He also admitted to make surrender of ₹ 6 lacs on this account over and above the amount of aforesaid investment of ₹ 96,38,410/. Thus, the assesseeShri Kishorebhai Mohanlal Karia acted upon his statement and surrendered an income of ₹ 96,38,410/. The same stood disclosed as his income in the return of income filed for assessment years 2000-01 to 2004-05. He, however, did not act on the surrender so made during the course of survey with respect to unexplained investment in house property a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in hands of M/s. M.P. Scrap Traders, both the assesseeShri Kishorbhai Mohanlal Karia as well as M/s. M.P. Scrap Traders preferred two appeals before the learned Tribunal and by impugned judgment and order the learned Tribunal has allowed the aforesaid appeals and has deleted the aforesaid additions. 4.3. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the learned Tribunal, the Revenue has preferred present Tax Appeals with the aforesaid proposed questions of law. 5.0. We have heard Shri Desai, learned advocate for the Revenue. We have considered the orders passed by the learned Assessing Officer, learned CIT(A) and common judgment and order passed by the learned Tribunal. At the outset, it is required to be noted that while making the aforesaid additions in the hands of Shri Kishorbhai Mohanlal Karia as well as in the hands of firm, the AO solely relied upon the statement of Shri Kishorbhai Mohanlal Karia recorded at the time of search on 4.1.2007 which subsequently came to be retracted and / or explained within the period of 19 days i.e. 23.01.2007. It is required to be noted that as such except aforesaid statement recorded at the tim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n survey cannot by itself be made a basis for addition. As the appellant Shri Kishorebhai Mohanlal Karia in appeal before us has acted on the surrender of ₹ 96,38,410/, the retraction made through such an affidavit dated 23/1/2007 was of no consequence. His retraction otherwise with respect to any other offer of surrender contained in the statement was not acted upon by him as the same were stated to have been explained out of application of the realization of the aforesaid fixed deposits. For this purpose, his affidavit was filed before the authorities below. There was no material found as a result of survey indicating unexplained investment in the construction of house property or purchase of furniture thereof for ₹ 6 lacs except that there was admission by the assessee in his statement. Likewise the itemwise stock inventory is not shown to have been taken physically by the survey party. Merely in his statement, the excess stock found in the hands of the partnership firm stated in the said statement was taken as surrender thereof separately over and above the excess cash found. The assessee in his reply to the show cause notices placed heavy reliance on the affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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