TMI Blog2016 (5) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... ts to review of its own order by the Tribunal, which is not permissible in law. The Tribunal has passed an elaborate and speaking order after considering the entire facts on record, the declaration made during the course of search/survey and the return filed in response to notice u/s.153A and has given reasons as to how & why the amount of ₹ 17,23,824/- has to be sustained. In our opinion, there is no apparent mistake in the order passed by the Tribunal. We therefore do not find any merit in the Miscellaneous Application filed by the assessee and accordingly dismiss the same. - Decided against assessee. - MA No.41/PN/2015, Arising out of ITA No.589/PN/2014 - - - Dated:- 11-4-2016 - SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM For The Applicant : Shri S.N. Doshi For The Respondent : S Shri Hitendra Ninawe ORDER PER R.K. PANDA, AM : The assessee through this Miscellaneous Application requests the Tribunal to rectify certain mistakes that have crept in the order of the Tribunal. 2. Facts of the case, in brief, are that the assessee is an individual and in response to notice u/s.153A dated 30-11-2007 had filed his return of income on 28-12-2007 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecorded in the books of account on account of sundry debtors. We find the AO made addition of ₹ 28 lakhs since the same was not declared by the assessee in the return filed in response to notice u/s.153A although the assessee has declared the cash found during the course of search and the unrecorded sundry debtors and a part of the unaccounted stock in the return of income. We find the CIT(A) confirmed the addition of ₹ 28 lakhs made by the AO on the ground that the assessee could not substantiate with concrete evidence to show that the statement given during the course of search was based on wrong facts. According to the CIT(A) the admission by the assessee during the course of search is a good piece of evidence and by making such statement the assessee prevented the AO from making further investigation on this issue. It is the submission of the Ld. Counsel for the assessee that since the assessee has already declared the cash found during the course of search amounting to ₹ 45,05,779/- and the net addition on account of sundry debtors is ₹ 10,76,176/- on account of unexplained sundry debtors, therefore, the amount of ₹ 28 lakhs declared during the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laring the amount of ₹ 28 lakhs the assessee has not retracted the statement immediately or thereafter. Only in the return filed in response to notice u/s.153A the assessee has not included the same in his total income although he had accepted the cash of ₹ 45,00,484/- and the debtors of ₹ 18,11,873/-. By making a declaration during the course of search the assessee prevented the department from making further enquiries. It has been decided in various decisions that admission by a person is a good piece of evidence because the person making a statement stops the opposite party from making further investigation. A statement recorded u/s.132(4)of the I.T. Act stands on an even stronger footing. Since nothing has been brought before the lower authorities as well as before us that the statement given during the course of search was on wrong assumption of facts or that the statement given during the course of search is untrue or false, therefore, we do not find any merit in the arguments of the Ld. Counsel for the assessee that addition of the same will amount to double taxation. However, as already mentioned earlier, the AO himself has noted in para 4.8 of his order t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me that represented the excess cash found in the course of search again this amount of ₹ 28 Lakhs was not required to be offered. iii. Therefore having found two declarations one of ₹ 45,00,484/- for excess cash found and another amount of ₹ 28 Lakhs utilised in effecting the unaccounted sales and purchases, Appellant submitted that the amount of ₹ 28 Lakhs that has been utilised in effecting unaccounted sales and purchases obviously was out of the same excess cash found of ₹ 45,00,484/-. Therefore this addition of ₹ 28 lakhs gets covered in the amount of ₹ 45,00,484/- and consequently its separate offering was not warranted. iv. It was not a case of retraction of the declaration but was an explanation that the said amount of ₹ 28 Lakhs gets covered in ₹ 45,00,484/- and therefore declaration stands. It is not withdrawn. v. Therefore appellant submitted that separate addition of ₹ 28 Lakhs constituted taxation of the same amount twice. vi. Therefore at the outset there was no retraction of the declaration of ₹ 28 Lakhs as agreed by the appellant. vii. The Assessing Officer's version that the said am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for debtors at ₹ 10,76,176/- and for cash ₹ 17,23,824/- which is already included in the cash of ₹ 45,00,484/- duly offered. Therefore, there is no retraction and in fact declaration has been duly offered. Therefore in appellant's considered and humble opinion it is not correct to observe that department was prevented from making further enquiry . Therefore all the observations which are made in Para 15 based on the understanding that declaration has retracted are not correct. It is true that in the appellant's case issue is addition of peak investment in unaccounted transactions and that peak investment of ₹ 28 Lakhs does get covered in cash of ₹ 45,00,484/- to the extent of ₹ 17,23,824/- and debtors of ₹ 10,76,176/- offered. x. The applicant therefore submits that there being no retraction of the declaration of ₹ 28 Lakhs the decision of the Hon'ble Tribunal with the assumption that applicant has retracted the declaration and sustaining the addition of ₹ 17,23,824/- is not correct on facts. This in the humble and considered opinion of the applicant being the mistake of appreciation of: facts it does const ..... X X X X Extracts X X X X X X X X Extracts X X X X
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