TMI Blog2016 (6) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... red by the Assessing Officer that the expenses claimed and commission paid is bogus on the basis of seized material. Whatever addition made by the Assessing Officer on the basis of statement recorded during the course of search U/s 132(4) which have evidentiary value but it is rebuttable. The CBDT also issued instruction on forced disclosure during the survey and search, which has been referred by the ld CIT(A) wherein it has clearly directed by it to the authorized officer, no attempt should be made to obtain the confession, which is not based on incriminating document/assets found during the course of search. The ld DR has not controverted the findings given by the ld CIT(A) - Decided against revenue. - ITA No. 352/JP/2013 - - - Dated:- 15-6-2016 - Shri T. R. Meena, AM And Shri Laliet Kumar, JM For the Revenue : Ms. Roshanta Meena (JCIT) For the Assessee : Shri S.L. Poddar (Adv) ORDER Per T. R. Meena, A. M. This is an appeal filed by the revenue against the order dated 04/01/2013 of the learned C.I.T.(A) (Central), Jaipur for A.Y. 2009-10. The effective grounds of appeal are reproduced as under:- 1. On the facts and in the circumstances of the case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crore. The company derived income from business of advertisement making and publicity work. The assessee company is working as an agent for collecting the advertisement business and preparing the advertisement for publishing in the news paper etc. In lieu of these services is getting commission. All the grounds raised by the revenue are against disallowance made by the Assessing Officer at ₹ 2.00 crores and deleted by the ld CIT(A). The ld. Assessing Officer observed that the assessee had declared advertisement purchases of ₹ 43,80,83,444/- against advertisement sales of ₹ 45,27,70,370/-. In addition to this administrative expenses of ₹ 1,13,99,630/- which includes consultancy charges, sales promotion and travelling expenses. These expenses were incurred on purchase of advertisement sites, making of hoarding, installment and commission paid to brokers. The assessee had claimed total advertisement expenses at ₹ 2,18,28,737/- and other expenses of ₹ 41,62,54,706/-. He gave show cause notice to verify the purchases made. In response to this query, the assessee submitted that the list of creditors, copy of accounts in case of few persons having trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on account of inflated expenses outstanding in the books, out of which a surrender of ₹ 1.00 cores was alone made. Further it was mentioned that persons owing M/s Sixth Sense Communication and Kritika Advertisement, Mumbai were dummy concerns in the name of an employee of the assessee and his wife. In the statement recorded during the survey at Mumbai office of the assessee, the persons have admitted doing no business and only expenses of the assessee firm was routed through their account. A sum of ₹ 31,37,023/- is appearing outstanding as on 31/3/2009. Similarly a sum of ₹ 89,36,231/- was appearing outstanding in the name of Sixth Sense Communication. Shri Ballabh Das Maheshwari in his statement referred to above has admitted bogus expenses booked in the name of above mentioned concerns. Besides this, there are number of companies whose names, liability had been shown by the assessee, which has been tabulated on page 7 of the assessment order. The total such parties were identified 12 in numbers. It is further held that this list of bogus persons was only an illustration not exhaustive. Required confirmation had not been submitted during the assessment proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the director statement of Shri Chapperwal particularly of question/answer No. 13. The appellant has accordingly claimed that even the statement of surrender of the director in respect of inflation of expense and surrender of income of ₹ 2.97 crore was recorded in the background wrong facts of statement of Shri Chapperwal. However, there is no doubt for dispute on the issue that in respect of A.Y. 2009-10 as regards the specific surrender of ₹ 2.97 crores on account of inflation of expenses there was no specific surrender of ₹ 2.97 crores on account of inflation of expenses and there was no specific sized record for any other relevant material to support such surrender. In this connection, it may be noted that it is a settled law that the statement recorded U/s 132(4) are definitely having evidentiary value but the same cannot said to be a conclusive evidence and the assessee has right to retract from the same in specific circumstances. He relied upon the following case laws:- (i) Alapaty Venkata Ramiah Vs. CIT 57 ITR 185 (SC). (ii) Pullangode Rubber Produce Company Ltd. Vs State of Kerala and anr. 91 ITR 0018 (SC). (iii) CIT Vs. Ashok Kumar So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pperwal has not been controverted by the ld. Assessing Officer. The copy of retraction letter and affidavit had been filed before the ld CIT(A) during the appellate proceedings. He further relied on the case laws referred by the ld CIT(A), which strongly support the assessee s case. Accordingly, he has prayed to uphold the order of the ld CIT(A). 6. We have heard the rival contentions of both the parties and perused the material available on record. During the course of search, statement U/s 132(4) was recorded by the authorized officers. Shri Ballabh Das Maheshwari had admitted additional income at ₹ 2.97 crores on the basis of loose papers and documents found at the business premises at Delhi, Mumbai and Ahmadabad as he was not able to get verification from the regular books of account from the family members and business concerns. However, in return, he has admitted additional income of ₹ 1.00 crore, which includes disclosure of ₹ 75 lacs on account of unaccounted investment in house property constructed at 4-5, Shubham Enclave, C-Scheme, Jaipur. The addition made by the Assessing Officer on the basis of statement recorded U/s 132(4) are not on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
