TMI Blog2015 (4) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee on the basis of mere presumption or suspicion. It is not the case of the Revenue that such alleged profit has actually been received by the assessee. In view of the totality of the above facts, we do not find any justification to interfere with the order of the CIT(A) in this regard and the same is sustained - Decided against revenue. Disclosure made by the appellant cannot be assumed to be voluntary and based on seized documents as held by CIT(A) - Held that:No defects or discrepancies in any of the seized documents have been pointed out by the Assessing Officer in the assessment order or by the ld. DR at the time of hearing before us. During the course of search also the officer recording the statement of Shri Nayan Thakkar has not specified any discrepancy or defect in any of the seized documents but made a general statement that there were defects and discrepancies in the various documents seized from the assessee’s premises. Such assertion by the authorize officer is found to be factually incorrect. In the affidavit of Shri Nayan Thakkar furnished before the Assessing Officer these facts have been clarified. He stated that after getting the photocopy of the seized do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of the appeal in all the assessment years under consideration is directed against the order of the CIT(A) in deleting the addition of ₹ 35,50,000/- in A.Y.2005-06, ₹ 1,16,70,000/- in A.Y.2006-07, ₹ 44,00,000/- in A.Y.2007-08 and ₹ 3,80,000/- made on account of undisclosed income on the basis of client code modification. 3. Brief facts of the case are that the assessee is a director in Kunwarji Finstock Pvt. Ltd. (KFPL) and is engaged in the business of commodity transaction through the broker, Kunwarji Commodities Brokers Pvt. Ltd. (KCBPL) and is an investor in shares and securities. In the Kunwarji group of cases, a search under section 132(1) of the Act was carried out on 25.3.2008. During the course of search, books of accounts and documents as per Annexures A1 to A65 of the Panchnama were seized from the main office premises of this group and survey were also carried out in the companies of this group. The searches were simultaneously carried out at the residential premises of the director, Shri Nayan Thakkar and his statement was recorded. During the course of assessment proceedings of KCBPL, the AO found that the said broker has done client code m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not carried out and the transactions were closed on the expiry date. While deciding the appeals in the case of KFPL, on similar issues, it was forcefully argued before me that the addition on the basis of Client Code Modifications are only on assumptions and surmises which is not permissible under law and further that the additions are, only notional and bringing to the charge of tax such notional income is repugnant to the concept of real income . For the above propositions reliance was placed on several decided cases. My findings on all these issues as recorded in my order in the case of KFPL have already been reproduced supra. For the same reasons Ground No. 3 for the A.Ys. 2005-06. 2007-08 and 2008-09 is allowed. 5. At the time of hearing both the parties agreed before us that this issue was now covered in favour of the assessee by the decision of the Ahmedabad Bench of the Tribunal in the case of ACIT Vs. M/s.Kunvarji Finance Pvt. Ltd. and Others, in IT(SS)A.Nos.615 to 618/Ahd/2010 Others order dated 19.3.2015. 6. We find that the Tribunal in the said order dated 19.3.2015, on this issue, has held as under: 8. We have carefully considered the arguments of both t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... measure only upto March 31, 2007 and after this date the said facility will be completely stopped. With reference to point C. as referred above, Members may please note that the client code modifications will be allowed only upto 11:55 p.m. in international referenceable commodities (i.e. commodities traded upto 11:55 p.m.) Members are requested to take note of the FMC directives and ensure strict compliance. From the above, it is evident that client code modification is permitted intra-day, i.e. on the same day. As per Commodity Exchange, if client code modification is upto 1% of the total orders, there is no penalty and if it is greater than 1% but less than 5%, the penalty is ₹ 500/-. If it is greater than 5% but less than 10%, penalty is ₹ 1000/- and if it is greater than 10%, then penalty is ₹ 10,000/-. From the above, the only inference that can be drawn is that as per MCX, the client code modification upto 1% is absolutely normal and therefore, the broker is permitted to modify the client code upto 1% without paying any penalty. Even client code modification upto 5% is not considered unusually high because that is also permitted with the token pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period by which the client code modification took place. Even if the view of the Revenue is accepted that the client code modification was with malafide intention, then the profit or loss accrued till the client code modification can be considered in the case of the assessee but by no stretch of imagination the profit/loss arising after the client code modification can be considered in the hands of the assessee. 11. The ld. CIT(A) in paragraph 4.13 of his order has also recorded the findings that all transactions at the Commodities Exchanges have been duly accounted in the books of account maintained by the concerned parties. Such profits/loss has been duly accounted whenever the transactions have been closed. Thus, whatever profits have been generated or accounting of actual trade, have been offered and brought to the charge of tax in the cases of concerned assessees. These findings of fact recorded by the ld. CIT(A) has not been controverted by the Revenue at the time of hearing before us. When the transaction has been duly accounted for and the profit/loss has accrued to the concerned parties in whose names transactions have been closed, there cannot be any basis or justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which were never ascertained at the time of search nor the assesses of this Group were specifically informed about such contents. It is true that the search continued non-stop for a period of 36 hours and the statement of Shri Nayan Thakkar was commenced at about 11 O'clock in the-night and continued upto 5.00 AM next day. I have also observed that at the time of recording the statement u/s.132(4), the authorities referred to Annexure- 1, which was made the basis of disclosure. However, there seemed to be lack of clarity and uncertainty with respect to 'Annexure-A'. Subsequently, it was informed to the assessee that the said Annexure-1 should be constituted as Annexure-A and that the said Annexure-A contained a 1st of 65 items of books/documents/papers. It is also observed that on the basis of this AnnexurerA, statement u/s.132 was recorded; however, the said Annexure was not made the basis of addition. Moreover, the Assessing Officer has not been able to deal with the contents' of affidavit in a convincing manner. Regarding ;the delay in retraction, the facts and circumstances have been explained before me in detail. The appellant company was never allowed adequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned, even the Assessing Officer has admitted that there is no such quantum of disclosure on the basis of the seized material, alleged incriminating documents or Annexure-1. So far as Code modification is concerned, it has been dealt with by me on merits while dealing with the grounds relating to the addition. Accordingly, the statement recorded u/s. 132(4) had no basis of arriving at the disclosure of ₹ 12 crores which did not contain any year or which did not even refer to any assets -and it is a known fact that any undisclosed income found during the course of search should also simultaneously be reflected in some valuables, assets or expenditure. In spite of exhaustive inquiries at the time of search and during the post search inquires and also at the time of assessment proceedings no undisclosed assets or expenditure were ever found out or referred to which can correspond to the alleged undisclosed income and accordingly, the view of the appellant that the disclosure at the time of search had no basis has to be accepted. 8. For the same reasons in the present case also I hold that the disclosure made by Shri Nayan Thakkar cannot be assumed to be voluntary and based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of search would be called for; otherwise the ITAT should sustain the addition of ₹ 8 crores which was voluntarily declared by Shri Nayan Thakkar at the time of search without any pressure or coercion from the Department. In support of this contention, he relied upon the following decisions:- (i) Rameschandra Co. vs. CIT : (1988) 168 ITR 375 (Bom.) (ii) Ramesh T. Salve vs. ACIT : (2000) 75 ITD 75 (Mum.) (iii) Dr. S.C. Gupta vs. CIT : (2001) 248 ITR 782 (iv) Garibdas Chandrika Prasad vs. CIT : 230 ITR 771 (MP) (v) Hotel Kiran vs. CIT : 82 ITD 453 (Pune) 14. The ld. Counsel for the assessee, on the other hand, stated that during the course of search, statement of Shri Nayan Thakkar was recorded for almost 36 hours. His grandfather was ill and was hospitalized. Therefore, Shri Nayan Thakkar was physically and mentally perturbed. The authorized officer who recorded his statement has told him that the various papers and documents seized from their office premises as per Annexure-1 indicated various defects and discrepancies. He was asked to explain the same without giving the copy of such Annexure-1. In that background, he offered some additional income. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not accept the assessee s affidavit and the submissions made during the course of assessment proceedings; however, since the total addition made by him was more than undisclosed income offered in the statement, he did not make any addition in respect of income disclosed at the time of search. The relevant finding of the Assessing Officer reads as under:- In view of the above, the claims made by the assessee in his affidavit and submissions made during the course of assessment proceedings are not acceptable and it is hereby rejected. However, since the total suppression of profits, which reflects the irregularities in the business affairs of the company and discrepancy in income, and worked out for different years (A.Y. 2005-06 to 2008-09) is ₹ 17.71 Crores, which is in excess of the amount of ₹ 12 crores voluntarily disclosed by the Kunwarji Group , no separate addition is being made on this issue in the case of the assessee. The CIT(A) was of the opinion that no addition is required to be made on account of disclosure made at the time of search. The relevant finding of the CIT(A) in this regard reads as under:- 3.6 I have given a careful consideration to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter, he has clearly stated that he was allowed inspection of seized material only for about 3 hours and that for proper verification of the same, the copies there of may be provided. He has also stated that the disclosure was made on account of certain irregularities, defect and mistakes in record keeping and business affairs. However, there is nothing on record to prove that there was any such irregularity, defect or mistake either in the record keeping or seized material. The entire position was also explained before the Assessing Officer by filing detailed letter dated 2nd September, 2009. During the course of entire assessment proceedings, the Assessing Officer has been unable to refer to any seized material, on the basis of which unaccounted income could be proved or established. It proves that whatever additions have been made by the Assessing Officer are not based upon any seized documents and the same have been made on the basis of various data collected by the Department from Commodity Exchanges which reflected client code modifications. 3.7 From the above referred .letter dated 2nd September, 2009 addressed to the Assessing Officer and the statement recorded u/s. 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision in the case of Rameschandra Co. vs. CIT, (1988) 168 ITR 375 (Bom.). In the said case, during the course of assessment proceedings, the Assessing Officer came across the discrepancy in Sarki account. He asked the assessee for explanation. In response, the assessee filed a letter submitting that the discrepancy could not be explained and value thereof could be added to the firm s income. Thereafter, the Assessing Officer made the addition of ₹ 18,052/-. The assessee filed appeal before the First Appellate Authority. The AAC admitted the appeal and deleted the addition. On appeal by the Revenue, the Tribunal held that AAC was wrong in entertaining the appeal. On a reference, the Hon ble High Court has held that the Appellate Assistant Commissioner had no jurisdiction to consider the ground of appeal against the addition of ₹ 18,052 relating to alleged suppressed sales of Sarki . 18. In the case of Dr. S.C. Gupta vs. CIT, (2001) 248 ITR 782, the Hon ble Allahabad High Court has held as under:- that a statement made voluntarily by the assessee could form the basis of assessment. The mere fact that the assessee retracted the statement could not make the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Tribunal had found that there was non evidence or material found during the course of search operations. The statement recorded from the assessee was subsequently retracted and rebutted. Furthermore, the statement was not relatable to any seized material. Therefore, even the statement could not be the basis for making any addition. When the sale deed discloses a sale consideration, it si for the Revenue to show that what was disclosed in the sale deed is not the correct sale consideration. In this case the Revenue could not bring on record any material to show that the assessee had paid on-money of ₹ 23,00,000. The reasons given by the Tribunal were based on valid material. The deletion of addition was justified. 22. In the case of DCIT vs. Ratan Corporation, (2005) 145 Taxman 503 (Guj.), the Hon ble Jurisdictional High Court held as under:- As noticed hereinbefore, the Tribunal has observed that, in light of the retraction by Shri Pravinbhai Rupawala from the statement, it was the duty of the Assessing Officer to make further inquiry in respect of shop owners. In the Assessment Order, in paragraph No.6(1), while referring to the explanation tendered by the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the ITAT and the aforesaid three decisions, we see no reason to interfere with the impugned judgment and order passed by the learned ITAT in deleting the addition of ₹ 1,45,37,500/- as unaccounted income as on-money alleged to have been received by the assessee. The decision of the ITAT is on appreciation of material on record and on facts. No substantial question of law arise in the present appeal. Hence, present Tax Appeal deserves to be dismissed and is, accordingly, dismissed. 24. Now we revert back to the facts of the assessee s case under the appeal before us so as to reach to the conclusion that the ratio of which of the above decisions would be applicable to the facts of the assessee s case. Xerox copy of the statement of Shri Nayan Thakkar is placed at page no.296 onwards of the assessee s paper-book. From the first page of the said statement, it is clear that the statement began on 25th March 2008 at 11.30 pm. Thus, recording of the statement was started at almost midnight of 25th March 2008. From the last page of the statement, it is evident that it was concluded on 26th March 2008. No time was mentioned on the conclusion of the statement. However, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Directors of Kunvarji Commodities Brokers Pvt. Ltd. The admitted unaccounted income pertains to Kunvarji Commodities Brokers Pvt. Ltd., Kunvarji Finstock Pvt. Ltd., Kunvarji Finance Pvt. Ltd., Kunvarji Commodities Pvt. Ltd. 26. From the above, it is evident that the authorized officer who was recording the statement informed Shri Nayan Thakkar that various papers and documents have been seized from their office which are listed in Annexure-1. From such papers and documents, various discrepancies and defects have been observed. He has also stated about the client mode modification. In response to these inputs from the authorized officer Shri Nayan Thakkar admitted unaccounted income of ₹ 12 crores. The statement has to be read as a whole; the unaccounted income was offered in response to the information given by the authorized officer that various defects and discrepancies were observed in the seized documents. Now the question remains whether there were any defect and discrepancy in the seized documents as per Annexure-1. It was stated by the ld. Counsel that there was no Annexure-1 at all, and in response to the assessee s letter during the assessment proceedings, the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -tax Central Circle 1(1), Ahmedabad 27. Thus, there was no Annexure-1 as referred to in question No.21. Still the question remains whether there were any defects or discrepancies in the seized papers and documents as mentioned by the Officer recording the statement vide question no.21. In the assessment order, the Assessing Officer has not pointed out any defect or discrepancy in any of the seized documents from the business premises of the assessee. The addition made by the Assessing Officer is on account of client code modification which has also been computed on the basis of information collected from the Commodity Exchange in post search enquiry. The CIT(A) has found the addition on account of client code modification to be untenable and while disposing of ground No.1 of the Revenu s appeal, we have concurred with the findings of the CIT(A). No defects or discrepancies in any of the seized documents have been pointed out by the Assessing Officer in the assessment order or by the ld. DR at the time of hearing before us. During the course of search also the officer recording the statement of Shri Nayan Thakkar has not specified any discrepancy or defect in any of the seize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... binding upon the ITAT functioning within the jurisdiction of Gujarat High Court. In view of above, we, respectfully following the decisions of Hon ble Jurisdictional High Court in the cases of Kailashben Manharlal Chokshi (supra), Ratan Corporation (supra) and Radhe Associates (supra), uphold the order of the CIT(A) and reject ground No.2 of the Revenue s appeal. Respectfully following the above quoted order of the Tribunal, we dismiss this ground of appeal of the Revenue for all the years under consideration. 11. The ground no.2 of the appeal in A.Y.2006-07, and Ground no.2 in the Asstt.Year 2007-08 is directed against the order of the CIT(A) deleting the addition of ₹ 2,03,270/- made on account of suppressed profit due to client code modification. 12. The AO made addition of ₹ 2,03,270/- in the Asstt.Year 2006-07 and 2007-08 on the basis of client code modification specific to the case of the assessee as done by the broker KCBPL. 13. On appeal, the CIT(A) observed that the facts of the case were identical as in the case of KFPL wherein appeals were decided by him and held that no addition could be made on the basis of client code modification. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
