TMI Blog2012 (6) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... retraction do not cover at all the impugned addition of Rs. 2 lakhs. This is also not the case of the assessee that no shares at all in the name of those four persons were ever purchased Revenue Department had no option but to assess the amount which was offered by the assessee himself. We find no fallacy in the said addition of Rs. 2 lakhs. ground dismissed Whether Assessing Officer has erred in law in making addition of Rs. 45,000/- by way of unexplained household expenditure though no evidence of incurring such expenditure was found during the search – Held that:- there was an investment of Rs. 45,000/- in marble. Once an investment was witnessed by the Search Party and the assessee had not furnished any source of the said investment then a deponent must not be excused of his own offer. no supporting evidence either about the source or about the non-existence of the said asset was placed from the side of the assessee, addition is hereby affirmed and this ground of the assessee is dismissed Whether Assessing Officer has erred in law in making addition 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome-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. 2. Before we proceed to decide the merits of the case, it is worth to place on record that in the past, as well, this appellant had gone in appeal before the Tribunal and at that time contested that proper opportunity of hearing was not granted. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 friends have received a copy of the said statement. So, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Department from me. I, in the name of my God state that during the raid the Income-tax Officials 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 Docto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it was found by the Respected Coordinate Bench that the ad hoc disclosure as per the belated confessional statement was not based upon the material available 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rawar Singh M. Rathod [2005] 148 Taxman 35 (Ahd.)(Mag.) also do not assess much this assessee because as per the highlighted portion it was observed that the 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 agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see's daughter, relevant question were from Question No.21 to Question No.26 were asked and now reproduced below: "Q.21. In the last two years in your family 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/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich appears to be general in nature and there is no specific mention of a particular admission which was claimed to be retracted. There was a mention of ill-health or mental disturbance. In the said retraction, there was also a mention of some pressure tactics applied by the revenue but remained unsubstantiated. There was no reference or mention of any evidence. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Out of which some investment was found to be explained by the assessee. However, the investment made in the name of Diwaliben Chhotalal, Chhotalal Gulabchand, Kukara Chhotalal, Kaveriben Upraj etc. totalling to Rs. 2 lacs was stated to be out of unaccounted income. Accordingly, the addition was made. 7. Nothing specific is now argued before us about the source 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 accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e explanation of the assessee was accepted by the A.O. to the extent of household withdrawal shown by the assessee. However, it was found that there was an investment of Rs. 45,000/- in marble. Once an investment was witnessed by the Search Party and the assessee had not furnished any source of the said investment then a deponent must not be excused of his own offer. On hearing 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 ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dential premises on 12/12/1995, it was found that the assessee was residing in a flat, therefore, on that very day in the following manner certain questions were asked: "Q. 5. Inform whether your family members are holding in their movable as well as immovable property or not? A.5 In the Abunagar Society, Nr. D. Cabin, my father is holding one building which was given on rented. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement recorded u/s.132(4) of the Act is no more res integra. When an assessee had made a statement of facts, he can have no grievance if he is taxed in accordance with that statement. The reasonableness of the AO's approach, as appreciated by us, is that he had not made any enhancement or substitution in the amounts as offered/disclosed in the said statement. It was a statement pertaining 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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