TMI Blog2015 (3) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect. Once this was done by the assessee, the onus was on the Revenue to make enquiries and only then some addition could have been made on the basis of such enquiries. The submissions clearly show that no address is mentioned. It does not indicate that the amount is receivable. If the assessee admitted during the survey that these amounts represent receivables, the Revenue should have at least extracted address of such persons and when the assessee retracted from the surrender then the statements of these persons should have been recorded which has not been done. There is a clear cut overwriting in the inventory of notes of ₹ 500. Further there is no mention about any note found in the denomination of ₹ 50. These features also create doubt regarding the genuineness of the survey. Thus addition has been made without any evidence and is merely on the basis of statement recorded during the survey which cannot be sustained. Accordingly we set aside the order of the learned Commissioner of Income-tax (Appeals) and delete the addition. - Decided in favour of assessee. - ITA No. 1342/Chd/2012 - - - Dated:- 20-3-2014 - SHRI T.R. SOOD, A.M AND MS. SUSHMA CHOWLA , JJ. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me-tax, Khanna Range, Khanna. This surrendered sum was not included in the return of income. During the course of assessment proceedings a show-cause notice dated September 6, 2011, was issued requiring the assessee to show cause as to why the amount of ₹ 75 lakhs surrendered during the course of survey conducted on February 11, 2009, should not be included in the income. The assessee again reiterated the surrender was obtained under intimidation and coercion and was also based on forged documents. Since the assessee has already retracted from the surrender therefore this amount cannot be included in the assessment. The assessee also sought copies of surrender documents which were supplied. Another letter was written on December 7, 2011, by which the assessee was asked to file reply to the show-cause notice dated September 6, 2011. The assessee again filed detailed reply stating that surrender was illegal which the assessee has retracted therefore same cannot be included. Thereafter the Assessing Officer discussed various questions and answers in the statement recorded during survey and how meticulously statement was recorded and same being in the nature of an admission there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner of Income-tax (copy of which is available at page 26 of paper book) but no enquiries were conducted by the Additional Commissioner of Income-tax. Thereafter the assessee also wrote a letter to the Commissioner of Income-tax (copy of which is available at pages 27 to 28 of paper book). Verbally the Commissioner of Income-tax assured the assessee that no cognizance of the surrender would be taken but the Assessing Officer has not followed the assurances. 7. Learned counsel for the assessee further submitted that the assessee has replied to all the notices issued under section 143(2) as well as questionnaire issued to him (copies available in the paper book). No defect was found in the same and addition has been made merely on the basis of surrender statement which has already been retracted and therefore such addition is not maintainable. He also pointed out that the persons against whose name some slips were planted showing receivables never existed and that is why the assessee wanted to furnish evidence that these persons did not exist but the learned Commissioner of Income-tax (Appeals) wrongly refused to admit such additional evidence. In fact such original slips which we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve the income as per books of account : 1. Cash ₹ 5,00,000 2. Stock ₹ 1,00,000 3. Receivables ₹ 69,00,000 Total ₹ 75,00,000 The above amount of ₹ 75 lakhs is surrendered as additional income for the financial year 2008-09 over and above any regular income as per books of account subject to no penal action under sec tion 271(1)(c) of Income-tax Act, 1961. The above surrender of income has been made voluntarily without any fear and pressure from the Department. Three cheques of ₹ 23,17,500 (detail of which is given below have been given as in lieu of tax payable on additional surrendered income of ₹ 75,00,000). Sl.No. Cheque No. Amount (Rs.) Date of cheque 1. 0232968 5,00,000 20-02-2009 2. 0232969 9,00,000 15-03-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tening to lock the premises and black list the firm so that no businessman may have the dare to deal with our firm. They further threatened to put me behind bars if the surrender is not made and ultimately at about 7 a.m. the next day, i.e., on February 12, 2009, the family was so much frightened that the officers of the Department got prepared forged papers of imaginary and non-existent debtors (receivables). Not only this the officers intimidated me to sign papers wherein cash in hand was shown to be ₹ 5 lakh more than the actual figure to get surrender of ₹ 75,00,000 only (Rs. seventy-five lakh) only. Even though the papers were got signed on February 12, 2009, at about 7 a.m. but the date mentioned was February 11, 2009. In view of the facts stated above I hereby request you to look into the matter and not to take any cognizance of my surrender letter which was taken under intimidation and coercion and based on forged documents got prepared under threat by the survey party. I further request you to please reduce the surrender value by ₹ 74,00,000 (seventy-four lakh) being the value of receivable (Rs. 69,00,000) which is based on forged papers and ₹ 5,00, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvised the operation. When nothing incriminating was found he threshed us and the officers on duty. It was at the behest of Sh. Brar Sahib that the officers on duty got prepared forged papers in which non-existent and imaginary debtors (receivables) amounting to ₹ 69,00,000 (sixty-nine lakh) were shown and cash in hand was increased by ₹ 5,00,000 (Rs. five lakh) to get surrender of ₹ 75,00,000 (Rs. seventy-five lakh). A request letter was written to the Additional Commissioner of Income-tax, Khanna (copy enclosed) to reconsider the surrender. Inever wanted to complaint the higher authorities and have been thinking that with the passage of time good sense will prevail on the Additional Commissioner of Income-tax, Sh. Brar. But on receipt of the application Mr. Brar, Additional Commissioner of Income-tax, called Sh. Naresh Aggarwal, advocate, who was present at the time of survey and Sh. J. S. Lotey to his office and told them to call the asses see and withdraw the application failing which Mr. Brar threatened of serious consequences. In view of the abovesaid facts and the behaviour of Mr. Brar I have no hope that I will get my justice at the hands of Sh. Brar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the statement recorded during the survey under section 133A does not have evidentiary value. There was difference between the statement recorded under sections 132(4) and 133A. In this case also the reference was made to the decision of the hon'ble Supreme Court in the case of Pullangode Rubber Produce Co. Ltd. v. State of Kerala [1973] 91 ITR 18 (SC). Incidentally this decision has also been relied on by the learned Commissioner of Income-tax (Appeals). The court pointed out that in this case the hon'ble apex court clearly held that admission is extremely important piece of evidence but it cannot be said that it is conclusive and is still open to the person who made admission to show that it is incorrect. For ready reference headnote of this discussion reads as under : Entries made by the assessee in the account books treating a portion of the general expenditure as expenses towards immature plants and capitalising such portion amount to an admission that the amount in question was laid out or expended for the cultivation, upkeep or maintenance of immature plants from which no agricultural income was derived during the previous year for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclose the correct state of facts, vide decision of the apex court in Pullangode Rubber Produce Co. Ltd. [1973] 91 ITR 18 (SC) ; (ii) In contradistinction to the power under section 133A, section 132(4) of the Income-tax Act enables the authorised officer to examine a person on oath and any statement made by such person during such examination can also be used in evidence under the Income-tax Act. On the other hand, whatever statement is recorded under section 133A of the Income-tax Act is not given any evidentiary value obvi ously for the reason that the officer is not authorised to administer oath and to take any sworn statement which alone has evidentiary value as contemplated under law, vide Paul Mathews and Sons v. CIT [2003] 263 ITR 101 (Ker) ; (iii) The expression 'such other materials or information as are available with the Assessing Officer' contained in section 158BB of the Income tax Act, 1961, would include the materials gathered during the survey operation under section 133A, vide CIT v. G. K. Senniappan [2006] 284 ITR 220 (Mad) ; (iv) The material or information found in the course of survey proceeding could not be a basis for making any addition i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how that no address is mentioned. It does not indicate that the amount is receivable. If the assessee admitted during the survey that these amounts represent receivables, the Revenue should have at least extracted address of such persons and when the assessee retracted from the surrender then the statements of these persons should have been recorded which has not been done. Further, page 92 gives the inventory of cash in hand which is as under. 16. There is a clear cut overwriting in the inventory of notes of ₹ 500. Further there is no mention about any note found in the denomination of ₹ 50. These features also create doubt regarding the genuineness of the survey. We have also perused the details of the return filed in the earlier years and chart is as under: Chart showing the income as assessed by the Department in the last few years Assessment year Returned income by the assessee (Rs.) Assessed income under section 143(3) of Income-tax Act, 1961 (Rs.) Assessed income under section 143(1) of Income tax Act, 1961 (Rs.) 2005-06 2,00,430 3,20,4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
