TMI Blog2019 (3) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... counts. Therefore, the amount of cash received by the assessee of ₹ 24,25,000/- was rightly added to the total income of the assessee as unexplained income of the assessee and the same was rightly confirmed by the Ld. CIT(A), which does not need any interference on our part, hence, we uphold the action of the Ld. CIT(A) on the issues in dispute and reject the grounds raised by the Assessee. - ITA No. 3083/Del/2012 - - - Dated:- 21-2-2019 - SH. H.S. SIDHU, JUDICIAL MEMBER And SHRI L.P. SAHU, ACCOUNTANT MEMBER Assessee by: Sh. Sanjay Kumar, CA Sh. Akarsh Garg, Adv. Revenue by: Smt. Sulekha Verma, CIT(DR) ORDER PER H.S. SIDHU, JM The Assessee has filed the Appeal against the Order dated 06.3.2012 of the Ld. CIT(A)-XIII, New Delhi pertaining to assessment year 2009-10 on the following grounds:- i) Because the Ld. CIT(A) has erred in law and on facts in sustaining the addition of ₹ 24,25,000 on erroneous assumption of facts and law. ii) Because the addition sustained by the Ld. CIT(A) is wholly erroneous as no matching assets or cash was found from the possession of the appellant. iii) Because the income shown in the return filed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that income shown in the return filed fully matches with the appointment letter found and seized during the course of search und section 132(1) of the Act from the office of employer of the assessee namely M/s Zoom Developers (P) Ltd. It was further submitted that the document impounded from the premises of the Employer of the assessee clearly states that the sum of ₹ 10 lakhs was paid for IRCTC (Indian Railway Catering and Travel Corporation)!.e. for the purposes where the Company s projects were going on and nowhere in the said entry at SI. No. 6 or otherwise name of the appellant appears. Therefore, Id. CIT(A) was wholly unjustified to assume that the sum in question had been paid to the appellant and that too by way of salary taxable in his hands, simply on the ground that appellant-assessee has not stated that where and how this amount was utilized. He further submitted that Ld. CIT(A) failed to appreciate and missed to note that page 29 of Annexure A-27 was not impounded or found from the possession of the assessee but from the business premises of his employer and no corroborative evidence so as to allege that sums found noted in the loose papers impounded were recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer s questionnaire dated 9.11.2010; Ack. for filing ITR for AY 2009-10 dated 15.12.2010; Ack. for filing ITR for AY 2009-10 dated 16.12.2010; Assessee s reply dated 11.12.2010; Assessee s reply dated 16.12.2010 alongwith increment letter dated 30.11.2008, as was received from the employer i.e. M/s Zoom Developers Pvt. Ltd. and written submission dated 23.2.2012 as were during hearing before the Ld. CIT(A). He also filed the copy of synopsis in support of his contention, which are reproduced as under:- Present appeal is against the assessment for the search year framed under section 153A/143(3) of the IT Act, wherein addition of ₹ 24,65,000 was made by the AO on account of undisclosed income from salary, out of which ₹ 24,25,000 has been sustained by the CIT(A). Facts: 2. The assessee is an individual deriving income from salary mainly. During the year under appeal he was under the employment of M/s Zoom Developers Pvt. Ltd. (a company engaged in the development of real estate), in the capacity of CEO (Chief Executive Officer) at their office at Thapar Farms, Behind D-3 Pocket, Shantikunj, New Delhi. 3. A search and seizure action U/s 132 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... increment letter has also been recovered during the raid. The same has been stated by the assessee. However, by the end of the year, the assessee received a total salary of ₹ 80.59 lakhs only. 8. However, Assessing Officer found the aforesaid explanation to be not tenable, solely for the reason that the assessee himself admitted his annual salary is ₹ 1.31 crore and finally in para 4.2 of the assessment order observed and held as under: 4.2 The reply furnished by the assessee has been considered but not found to be tenable in view of the fact that the assessee himself accepted that his annual salary income was ₹ 1.31 Crs. instead of ₹ 80.59 Crs. as declared by the assessee. This fact also hold grounds on the fact that the assessee has got an increment from the company according to which his salary amounted to ₹ 1.31 Crs. as stated by the assessee, this letter was also recovered from his possession. So this fact cannot be denied that the assessee has tried to conceal his income just to avoid tax liability. In view of the above it is held that the above said cash amounts were paid by the company to the assessee in lieu of salary in cash wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company s projects were going on and nowhere in the said entry at SI. No. 6 or otherwise name of the appellant appears. Therefore, Id. CIT(A) was wholly unjustified to assume that the sum in question had been paid to the appellant and that too by way of salary taxable in his hands, simply on the ground that appellant-assessee has not stated that where and how this amount was utilized. 12. The Id. CIT(A) failed to appreciate and missed to note that page 29 of Annexure A-27 was not impounded or found from the possession of the assessee but from the business premises of his employer and no corroborative evidence so as to allege that sums found noted in the loose papers impounded were received by the appellant-assessee and the same were received by him against his salary emoluments or for personal benefit of the assessee and the said sum of ₹ 10.00 lakhs could not have been added to the income of the assessee/appellant even by raising presumption. 13. In spite of search on the assessee, no matching undisclosed asset or cash was found from the possession of the assessee. 14. Similarly, the transaction appearing at SI. No. 1, for ₹ 2,50,000/- is dated 19.03. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendra Kumar Sharma vs. DCIT [ITA No. 3137 to 3141/Del/2009, order dated 12.04.2010] and also recently on 22.12.2016 by the Hon ble ITAT, Chandigarh in the case of Rajiv Kumar vs. ACIT since reported in (2017) 186 TTJ (Chd) 522. 19. For the reasons mentioned in paras 17 18 hereinfore, whole of the variation between returned income and assessed income deserves to be vacated and the assessee/appellant prays for the same. 4. On the other hand, Ld. CIT(DR) submitted that assessee has originally filed return of income of ₹ 55,56,222/- on 15.12.2010 which was revised on 16.12.2010 at ₹ 81,76,615/-. This shows that the salary receipt of the assessee were not properly managed by him and he has not filed any Form No. 16 alongwith return of income till date. She further submitted that in the statement recorded on 5.2.2009 the assessee has himself has mentioned vide rely to question no. 3 that his total salary was ₹ 1.31 crores. All these facts indicate that assessee was receiving salary in cash which was not being recorded by M/s Zoom Developers Pvt. Ltd. and as well as by the assessee in their books of accounts. Therefore, the amount of cash received by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the above case, statement on oath of the assessee was recorded u/s 132(4) of I.T. Act during the course of search on 04.02.2009 in which he admitted annual salary of ₹ 1.31 crores (please refer question no 3 of the statement). Further incriminating documents have been found relating to the cash payment by the company to the appellant (please refer question no 22 and 23 of the statement) It is humbly submitted that the following decisions also may kindly be considered with regard to validity of statement recorded u/s 132(4) of I.T.Act: 1. Kishore Kumar Vs CIT (62 taxmann.com 215, 234 Taxman 771) Where Hon ble Supreme Court dismissed SLP against High Court's order where it was held that since assessee himself had stated in sworn statement during search and seizure about his undisclosed income, tax was to be levied on basis of admission without scrutinizing documents. B Kishore Kumar Vs CIT (52 taxmann.com 449) Madras High Court confirmed 2. In the case of Bhagirath Aggarwal vs. CIT 31 Taxmann.com 274 Hon'ble Delhi High Court has held that - In the present case no material has been produced by the appellant/assessee to show that the adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The plea of bifurcation had not been taken by the appellant/assessee before the authorities below. In any event, the letter dated 9-1-2006 was written one-and-a-half-months after the recording of the statement on 21-11-2005 and was clearly an afterthough. The letter dated 9-12006 cannot be treated as a statement u/s 132(4) of the said Act and only the statements recorded on 10-11/11/2005 and 21-11-2005 which are statements u/s 132(4) which have evidentiary value. [Para 15] The letter dated 9-1-2006 was an afterthought as there was no mention of any documents in the letter dated 9-1-2006. [Para 16] Therefore, the appeal is to be dismissed. [Para 17] 3. Raj Hans Towers (P.) Ltd. Vs CIT (56 taxmann.com 67, 230 Taxman 567, 373 ITR 9) Where Hon ble Delhi High Court held that where assessee had not offered any satisfactory explanation regarding surrendered amount being not bona fide and it was also not borne out in any contentions raised before lower authorities, additions so made after adjusting expenditure were justified (SURVEY CASE) 4. Further, in the case of Hiralal and Maganlal Co. vs. DCIT 96 ITD 113(Mum.) Hon ble ITAT Mumbai Bench has held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis for effective retraction of the declaration made under section 132(4). For that reason, also, the Assessing Officer was justified in rejecting the retraction filed by the assessee on the ground that it was an afterthought. [Para 28] Statements in the nature of declarations covered by provisions of section 115, are binding on the declarant. They can neither be retracted nor do they require any corroboration. Such declarations can form the sole basis of assessment. The declaration made by P , the partner in the assessee-firm through his statement recorded under section 132(4), fell squarely within the ambit of section 115 and, hence, the same was neither open to retraction nor required any further corroboration. The Assessing Officer could, therefore, base the impugned addition on the said declaration. Statements, which are not in the nature of declarations under section 115, are also binding and can form the sole basis for assessment if they are not effectively retracted. Effective retraction is possible in two situations. First situation is where it is not voluntarily made. A statement, however, cannot be said to be involuntarily made merely because it is subsequently s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made voluntary and was not alleged to have been obtained under threat or coercion, onus was on assessee to prove that said declaration was made under any misconception of facts - Since assessee had not taken any steps to rectify its declaration before authorities before whom such declaration was made, there was no valid reason for retraction of same after a gap of about two and a half months. Carpenters Classics (Exim) (P) Ltd. vs DCIT (ITAT, Bang.) 108 ITD 142. D. In view of the above facts, it is humbly requested that appeal of the assessee may be dismissed. 5. We have heard both the parties and perused the records especially the impugned order as well as the written submissions filed by both the parties and the Paper Book filed by the assessee. We find that during the course of search loose papers were seized vide Annexure A-27 from the office premises of M/s Zoom Developers Pvt. Ltd. As per page 29 of Annexure A-27 cash payment of ₹ 24,65,000/- to various persons were made on different dates (as mentioned at page no. 6 7 of Ld. CIT(A) s order). We note that all these payments have been made in cash and the same were not found recorded in the books of accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opers Pvt. Ltd. and as well as by the assessee in their books of accounts. Therefore, the amount of cash received by the assessee of ₹ 24,25,000/- was rightly added to the total income of the assessee as unexplained income of the assessee and the same was rightly confirmed by the Ld. CIT(A), which does not need any interference on our part, hence, we uphold the action of the Ld. CIT(A) on the issues in dispute and reject the grounds raised by the Assessee. Our aforesaid view is fortified by the decision of the Hon ble Supreme Court of India in the case of Kishore Kumar vs. CIT (62 taxmann.com 215, 234 Taxman 771) wherein it has been that since assessee himself had stated in sworn during search and seizure about his undisclosed income, tax was to be levied on basis of admission without scrutinizing documents. However, the case laws relied upon by the Ld. AR of the assessee are distinguished to the facts of the present case and deals with the legal issue i.e. wrongly invoking the provision of section 153A of the Act, which ground has not been raised by the Assessee in the grounds of appeal, before the Tribunal, as aforesaid, hence, the same are not applicable in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X
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