Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2011 (3) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2011 (3) TMI 1676 - AT - Income TaxAssessment u/s 153A - Papers found in search u/s.132 - Addition of ‘on-money’ - calculation of year wise ‘on money’ receipt based on loose papers - relevance of statement recorded u/s.132(4) -the search was conducted and the statement was recorded not only on the date of the search and but later on several statements were recorded u/s.131 - also Affidavit which was sworn however placed before the Revenue authorities later those statements were retracted. HELD THAT:- The admitted factual position is that consequence upon the search u/s.132 of the Act conducted on 18/06/2003 no unaccounted cash, no unaccounted asset, no unaccounted jewellery or incriminating material of like nature was seized. The question of incriminating material has also been addressed by ld. AR. In the present case, the incriminating material on which the Revenue has placed reliance are three loose papers In the present case, the AO has proceeded to extrapolate the ‘on-money’ of ₹ 180/- for rest of the flats in respective years. But there was no material in his possession to conclusively demonstrate that in respect of the other flats the assessee had in fact charged ‘on-money’ from the customers. Once the Revenue Department has taken the extreme step of conducting a raid on this assessee, then it is expected to unearth every penny of unrecorded money, but the fact is that neither any unaccounted money was recovered nor any such document was found in possession of the assessee through which it could be held that the assessee was in the practice of charging on-money on other facts as well. As far as the general principle is concerned,an admission can be said to be an extremely important piece of evident, if made as per the prescribed law. But such an admission cannot be said to be conclusive. It is open for the assessee to show that the said admission was incorrect. The said retrieval is termed as“retraction”in legal terminology.A retraction is admissible but it must be within a reasonable time and the onus is on that person to establish that the impugned admission was incorrect. He has to place convincing reason or evidence to show that the earlier admission was not the correct position of fact but the correct position was as per the retracted statement.as far as the present case is concerned, since the statement is not by the partner of the firm and moreover the same was retracted by filing an affidavit, coupled with the fact that no incriminating material was found, therefore, the view taken by the AO could not said to be permissible in the eyes of law. Therefore, we hereby hold that the extrapolation was incorrect. The AO is empowered to confine himself on the incriminating material found during the course of search and material is to be treated as true and correct. Meaning thereby the AO is expected to confine himself in respect of the sale transaction of Flat No.A/204, alleged to be purchased by one Smt. Saralaben M.Patel. Therefore, we are not of the opinion that no addition at all is warranted in respect of all the flats. We are not with the view taken by the ld.CIT(A) that the entire addition is to be deleted. We, therefore, direct AO to reinvestigate the transaction in respect of Flat No.A/204, purchased by Smt. Saralaben and if the explanation offered by the assessee is found unsatisfactory, then the consequential action can be taken as per law but only in respect of that solitary transaction. With the result, rest of the addition pertaining to other flats as deleted by Ld. CIT(A) is hereby affirmed. For this year the said ground of the Revenue is partly allowed.
|