9911796707
TMI Blog2012 (6) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... hotalal Gulabchand, Pukhraj Chhotalal and Kaveriben Pukhraj to the total income of the Appellant though investment of shares was not made in the name of the Appellant and some of the persons are assessed to income-tax. 3. The Learned Assessing Officer has erred in law and on facts of the case in making addition of Rs. 45,000/- by way of unexplained household expenditure for the block year 01/04/1994 to 31/03/1995 though no evidence of incurring such expenditure was found during the search. 4. The Learned Assessing Officer has erred in law and on facts of the case in making addition of Rs. 20,000/- by way of investment in NSC for the block period 01/04/1995 to 12/12/1995 though no evidence in respect of such investment from undisclosed source was found during the period search. 5. The Learned Assessing Officer has erred in law and on facts of the case in making addition of Rs. 2,90,000/- in respect of payment of on-money for purchase of flat and addition of Rs. 1,25,000/- in respect of unaccounted investment in furniture during the block period 01/04/1995 to 12/12/1995 though no such evidences were found during the search. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- 4. Expenditure in marble 45,000/- 5. Unaccounted cash 40,000/- Ans. to Q.8 6. Unaccounted expenditure 30,000/- Ans.to Q.22 & 23 Total 6,20,700/- 3.2 Since the aforesaid disclosure was made as per the statement u/s.132(4) therefore a show-cause was issued as to why the stated undisclosed total income of Rs. 6,20,700/- be not assessed for the block period. Our attention has been drawn by ld.AR that assessee vide letter dated 19/11/1996 retracted,(annexed an affidavit dt.1.10.96), the said statement which was recorded u/s.132(4) dt.12.12.95 during the course of search. 4. At this juncture, it is worth to deal with the vehement contention of ld.AR Mr. M.G. Patel that no addition should have been made merely on the basis of a statement recorded u/s.132(4) when there was no evidence or incriminating material discovered at the time of search. Ld.AR has also contested that through an Affidavit dated 01/10/1996 the said statement was retracted. In the said Affidavit the deponent, i.e. the assessee has affirmed that a copy of the statement was not provided to him directly but somewhere in the month of September his brother and one of his frie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cials had made lot of pressure and tactics and had tortured me. To give an example, my father who is 85 years old, and is staying Sabarmati D-Cabin was forcefully asked to come to my house. Though they had no search warrant, they had gone to my father's house and forcefully brought him at my house. I was grilled and questioned on hundred of points and I recollect clearly that an Officer was writing the question and answer on his own and only those questions and answers which he was thinking worth was written. As soon as a page was over he was writing on the next page and after writing about 10 to 15 pages he obtained my signatures on all pages without even permitting to read fully. Only on the last page I was able to read that the statement has been given by me willingly and without any pressure etc., but this is not the correct state of affairs. In the name of God I am able to clarify the correctness of this affidavit because I was not mentally fit to give correct and truthful statement of various questions. I was having lot of trouble in my neck and in the first week of December the Doctors doubted something like Cancer and advised me to do Biopsy. I was very much nervous becaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailable at the time of search. As against that, in the present appeal, there was no gap between the date of the search and the statement recorded of this appellant on 12/12/1995. As per the copy of the statement u/s.132(4) it is evident that the same was recorded at 12'O clock on the day of search on 12/12/1995. We have also noticed an another distinction that in the cited decision of Rajesh Jain (supra) the alleged confessional statement was recorded by DDIT(Investigation) u/s.131 of the I.T. Act, 1961. As against that in the assessee's case the statement which was relied upon by the Revenue Department for the additions in question was recorded u/s.132(4) of the I.T. Act. Hence, according to us even this decision do not help the assessee. 4.2 Likewise the decision of Chand Soni v. Dy. CIT [IT Appeal No. 479 (Jodh.) of 1999, dated 6-1-2006] was altogether on different facts because the said statement was recorded u/s.132(4) of the Act in respect of an addition regarding bogus capital but that bogus capital was not supported by any incriminating document. Rather this decision is relevant because vide paragraph No. 44, it was observed that no addition could be made under Chapter XIV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e science has not yet invented any instrument to test the reliability of the evidence placed before a Court. It was further observed that the Court has to judge any evidence by applying the test of humane probabilities. There was an ad hoc disclosure which remained unsubstantiated, hence, deleted. Contrary to this, here in the present appeal, there is no ad hoc disclosure but specific question in respect of a specific asset/expenditure was asked and thereafter on account of point-wise admission/surrender the additions in question were made. 4.6 A strong reliance was placed on the decision of Hon'ble Madras High Court pronounced in the case of CIT v. K. Bhuvanendran [2008] 303 ITR 235. Facts have revealed that the said assessee reached Chennai at 6.a.m. on 19/03/1999 and soon after his arrival after train journey search officials raided his premises at 7.30 a.m. There were two police officers with guns alongwith the Revenue Officers. It was told to that assessee that the search proceedings would be completed smoothly had he agreed for the existence of on-money payment of Rs. 23 lakhs. Unaware of the consequences, the assessee had admitted. On 08/02/2001, the said admission was retr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any function are comes out or not? A.21. In the year 1994 dtd. 4.12.1994 my daughter namely Minaben's marriage function I have done. Q.22. In marriage ceremony how much tola ornaments you have given? A.22 In my daughter's marriage ceremony I have given seven tola gold ornaments to her. Q.23 In marriage ceremony how much expenses you have done? A.23 In marriage ceremony I have done the expenses as narrated below:- (1) 500 Nos. of Invitation card 1200/- (2) Cook's charges 4000/- (3) Mandap decoration exp. (Bhavani Decorators, Ramnagar) 21000/- (4) Cooking materials exp. 30000/- (5) Clothes exp. 25000/- (6) Icecream expenses 7000/- (7) Miscellaneous. Exp.(including Majuri) 19000/- (8) Gold expenses 30000/- (9) Silver expenses 500/- Total exp 130700/- Q.24. The above mentioned amount of Rs. 130700/- expenses you have done in the marriage ceremony whether you have accounted in the accounts books or not? A.24 Rs. 1,30,700/- amounts of marriage expenses I have not made any entry in the books of accounts. This is my unaccounted income. I have also not obtain any bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As noted above, though at the close of the statement recorded it was duly verified that the same was made without any pressure but it was so alleged in the impugned retraction. Had there been any pressure or torture as alleged, the assessee would have complained the same to the Commissioner or to any other Authority. No such attempt was ever made. Law in respect of admissibility of a retraction is very well settled. There must be some convincing and effective evidence in the hands of the assessee through which he could demonstrate that the said statement was factually incorrect. An assessee is under strict obligation to demonstrate that the statement recorded earlier was incorrect, therefore, on the basis of those specific evidences later on retracted. Further there should also be some strong evidence to demonstrate that the earlier statement recorded was under coercion. In the present case, the retraction is general in nature and lacking any supportive evidence. Rather assessee took several months to retract the initial statement, which by itself created a serious doubt. A simple question was asked that whether any marriage in the family had solemnized and the assessee on his own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the impugned investment except that the statement recorded u/s.132(4) of the Act was retracted and that apart from the said statement no other evidence was found at the time of search. 7.1 In this regard, we have first examined the statement of the assessee and the relevant questions were as under: "Q.31. In your name as well as in your family members how much amount you have invested in shares ? A.31. I have invested money in shares are as below:- (1) Divaliben Chhotalal, (2) Chhotalal Gulabchand (3) Pokhraj Chhotalal (4) Kiranben Pokhraj (5) Savitaben Kantilal (6) In the name of H.U.F. as well as individual name I have invested in share business. The approximately share investment comes to Rs. 3,50,000/- to 4,00,000/-. Q.32 The above share investment amount is narrated and mentioned in the books of account or not? A.32 In the name of Savitaben Kantilal approximately amount of Rs. 50,000/- entry made in the books of account. Moreover my HUF as well as Individual there are no entry passes in the books of account. Moreover in the share transaction my family members four names are there. There are no entry in the books of account. Approximately amount are Rs. 2,00,000/-. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the submissions of both the sides, even in respect of this amount we have noticed that no supporting evidence either about the source or about the non-existence of the said asset was placed from the side of the assessee, therefore, the addition is hereby affirmed and this ground of the assessee is dismissed. 9. Apropos Ground No.4, the observation of the AO was that while explaining the cash of Rs. 45,700/- found at the time of search the assessee has explained that a sum of Rs. 20,120/- was received from encashment of N.S.C. taken during the A.Y. 1989-90. Regarding balance amount, the explanation of the assessee was that it was a savings out of the withdrawals as a partner. The assessee was asked to furnish the evidence but no proof of such withdrawal from the capital account in the Firm was rendered therefore after granting a part relief, a sum of Rs. 20,000/-was taxed. The statement of the assessee was specific that the cash found during the course of search was not recorded in the books of account. Rather, he has stated that the said cash was out of his unaccounted income and there was no entry in the books of account. The only explanation of the assessee that out of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. My wife Savitaben is also holding one Apartment in Sumeru Apartment Block No. C-12. My mother namely Diwaliben is also holding one Apartment Block No. B-5 at Sumeru Apartment, where I am living with her. Q.6. You have purchased apartment in the name of your wife as well as you have also purchased one apartment in your mother's name. Inform the purchasing cost individually. A.6. In the Sumeru Apartment Block No. C-12 is in the name of Savitaben Kantilal. This block's total cost of purchasing price is Rs. 3,25,000/- out of which Rs. 2,00,000/- I have given by cheque and remaining amount of Rs. 1,25,000/- I have given by cash. In Block No. B-5, in Sumeru Apartment in the name of Diwaliben Chotalal. Its total cost of purchasing price is Rs. 3,25,000/- out of which I have given it by cheque amount of Rs. 2,00,000/- and remaining amount of Rs. 1,25,000/- I have given it by cash transaction. I have also given Rs. 40,000/- cash for the Marble construction separately. Q.7. For Block No. B-5 and C-12 which you have given it by cash transaction worth of Rs. 2,50,000/- (both the block) Whether you have made any entry in the books of account or can you inform the money when you have pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to certain facts which were in the exclusive knowledge of the assessee. Those facts were disclosed to the Revenue Deptt. Thereupon those were accepted by the Revenue Department. Those facts were of such nature that there was no scope of existence of any other evidence. Affirmation of facts at best can only be done by the assessee in his own volition. If the assessee wanted to correct the said statement, then it was open for him to show the evidences to retract those facts. But no such evidence was furnished though an another chance was granted by this Tribunal while restoring the entire issues back to the assessment stage which means that the assessee had no evidence at all in his possession. We may like to clarify that the statute prescribes the power to the Revenue Authorities for recording a statement on the day of search operation. In this context, ld.AR has cited few decisions wherein there was a discussion of retraction of a statement or the legal sanctity of statement in the eyes of Income-tax Laws. We want to clarify that there is a difference in a statement recorded under the proceedings carried out u/s.133A of the Act. As per section 133A(3)(iii) of the Act it enables ..... X X X X Extracts X X X X X X X X Extracts X X X X
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