TMI Blog2015 (10) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... e case laws referred by the assessee are squarely applicable. Therefore, interest charged under section 234B is not justified as assessee’s cash was lying with the department in P.D. account. The assessee had made request to adjust the advance tax from the cash seized and lying in P.D. Account, from time to time. - Decided in favour of assessee. - ITA No. 145/JP/2013, C.O. NO. 09/JP/2013 - - - Dated:- 7-9-2015 - SHRI R.P. TOLANI, JM SHRI T.R. MEENA, AM For The Revenue : Shri Kalika Singh (CIT) For The Assessee : Shri P.C. Parwal (C.A.) ORDER PER: T.R. MEENA, A.M. This is an appeal by the Revenue and the Cross Objection is by the assessee against the order dated 16.11.2012 passed by the learned CIT (A)(Central), Jaipur for A.Y. 2010-11. The effective grounds of appeal are as under (1) On the facts and in the circumstances of the case, the ld. CIT (A), Central, Jaipur has erred in deleting the addition on account of unexplained advances amounting to ₹ 29,23,937/- without appreciating the fact that the AO has made the impugned addition based on the evidence that assessee has admitted in the search proceedings and further in the post search procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al income of ₹ 1,09,99,050/-. The case was scrutinized under section 143(3) of the IT Act. During the course of search, the assessee in his statement recorded on oath under section 132(4) of the Act on 20.10.2009 admitted to an undisclosed income which was advanced by him as loans through his relatives and acquaintances. In reply to question no. 18, the assessee stated that he has no account of the amounts of loans advanced to persons which according to him was done only on the basis faith and confidence of his close relatives as well as friends. This fact was again admitted by the assessee in reply to question no. 19 in which he additionally stated that he has discussed the matter of surrender with his wife. The AO further observed that the assessee vide his letter dated 10.11.2009 submitted to the Income Tax Department and gave details of the surrender under various heads and reiterated the surrender made by him in his above referred statement. The assessee surrendered an amount of ₹ 34,60,400/- on account of the loans advanced to peoples as well as to cover up discrepancies found during the course of search. While examining the return of income for the year under con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.2009 under section 132(4) of the IT Act :- Particulars Amount Cash found 98,39,600/- Advances given by Rajul Sodhani through Manish Tambi 10,00,000/- Advance through Anil Maheshwari Ann. A-9 pg.77 10,00,000/- Payment for cash purchases as per annexure A-5 pg. 3-8 10,00,000/- Construction of factory at Kartapura Ind. Area 22,00,000/- Construction of house in front of shop of Sodhani Sweets 10,00,000/- Investment in Jewellery 5,00,000/- Balance advanced on interest through relatives 34,60,400/- Total 200,00,000/- Subsequently, by letter dated 01.12.2009 and 15.12.2009 submitted to the DDIT(Inv.), income sought to be surrendered at ₹ 2,00,00,000/- was stated to be not correct. The correct income was determined at ₹ 96,15,124/-. Finally, such surrendered income was enhanced to &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple in the original surrender, cash amounting to ₹ 9839600/- was found and the same was admitted as income (though in the subsequent statement part of the cash surrender was also retracted). The surrender on account of cash was based on account of availability of cash. Another disclosure of ₹ 10 lacs was made on account of advances given by Rajul Sodhani and Manish Tambi and this disclosure is also specific in as much as very specific names are given. Another surrender of ₹ 10 lac was made on account of advances through Sh. Anil Maheshwari which is based on incriminating document. Surrender of ₹ 10 lacs on account of cash purchases was also based on incriminating documents. Surrender of construction of factories at Kartar Pura Industrial areas at ₹ 22 lacs and on account of constriction of house in front of shop of Sodhani Sweets for ₹ 10 lacswere also based on specific investment made by the appellant. Another surrender of ₹ 5 lacs on account investment in jewellery is also very specific. However the surrender of ₹ 34.60 lacs which is stated to be on account of loan advanced through relatives etc. is definitely not specific in as muc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances i.e. when the statement was obtained under coercion threat duress or undue interest, or the statement has been given under mistaken belief either of fact or law etc. Therefore even in this judgment it has been stated that the statement made u/s 132(4) can always be retracted by the person who make such statement. Keeping in view the proposition of law laid down by Hon ble Supreme Court and Hon ble Jurisdictional High Court it is noted that surrender and admission may be a strong piece of evidence but the same can be explained by the person who makes such confession. The facts and circumstances of the appellant s case indicate that whatever was surrendered in totality was not found correct. The appellant surrendered cash amounting to ₹ 9845770/- but finally part of such surrender was retracted and admission to the extent of ₹ 2163520/- was only found to be correct. The retraction of such surrendered income was not objected by the AO. The appellant also surrendered ₹ 3460400/- on account of loan and advances through relatives but retracted the same by stating that such surrender was obtained under duress to make total surrender of ₹ 2 Cr. And that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DCIT 34 Tax World 201 (JP) - Statement given under duress and to buy peace but no such investment in plot was there. DCIT vs. Pramukh Builders (2008) 112 ITD 179 (Ahd. TM) - Statement under section 132(4). No evidence of charging of onmoney. First Global Stock Broking (P) Ltd. vs. ACIT (2008) 115 TTJ 173 (Mum.)(Trib.) - Admission under section 132(4), but not a conclusive evidence. Thus the ld. A/R prayed to confirm the order of ld. CIT (A). 7. We have heard rival contentions and perused the material on record. The ld. CIT (A) has decided the case categorically and assessee has not honoured the disclosure in the return because no incriminating documents were found during the course of search. The ld. CIT (A) had given various reasons of retraction and also has considered the evidence for not honouring the statement made under section 132(4) of the IT Act. The ld. D/R had not controverted the findings given by ld. CIT (A). It is a legal proposition that statement recorded under section 132(4) has evidentiary value but is rebuttable presumption. The assessee has produced the evidence before ld. CIT (A) and he came to the conclusion that addition made by the AO w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o adjust the self assessment tax of ₹ 34,51,200/- out of amount lying in P.D. account of CIT Central Jaipur. The AO, however, made adjustment on 06.12.2010. Thus interest on ₹ 34,51,200/- for the period from 1.4.2010 to 6.12.2010 i.e. for 9 months is not attributable to the assessee. This was due to delay on the part of the department in making the adjustment. The ld. A/R relied on the following decisions CIT vs. Arun Kapoor (2011) 334 ITR 351 (P H) CIT vs. Ashok Kumar 334 ITR 355 (P H) Satya Prakash Sharma vs. ACIT 20 DTR 561 (Delhi ITAT) Anand Shankar Mittal vs. DCIT 34 DTR 589 (JP) Vishwanath Khanna vs. Union of India Ors. (2011) 61 DTR 318. 10. The ld. CIT (A) called for a report from the AO on this issue. The AO submitted the report to the ld. CIT (A) which has been reproduced on pages 16 17 of his order. A copy of the report was also given to the assessee and held that as per section 132B the said cash can only be appropriated against the existing liability determined on completion of assessment. Further, the CBDT Instruction No. 11/2006 dated 1.12.2006 has again emphasized that seized assets are to be adjusted for recovery of any ..... X X X X Extracts X X X X X X X X Extracts X X X X
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