TMI Blog2016 (10) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of Hon'ble Jurisdictional High Court in the case of Dhingra Metal Works (2010 (10) TMI 29 - DELHI HIGH COURT ) and of Hon’ble Apex Court in the case of S. Khader Khan Son (2013 (6) TMI 305 - SUPREME COURT ) as well the Circular of CBDT vide letter F.No.286/2/2003-IT(Inv.II) dated 10th March, 2003, the addition cannot be made only on the basis of surrender made at the time of survey. - Decided in favour of assessee - ITA No. 3918/Del/2013 - - - Dated:- 19-9-2016 - SHRI G.D. AGRAWAL, VICE PRESIDENT AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER Appellant by : Shri S.K. Jain, DR. Respondent by : Shri Ajay Wadhwa, Advocate. ORDER Per G. D. Agrawal, VP :- This appeal by the Revenue for the assessment year 2010-11 is directed against the order of learned CIT(A)-V, New Delhi dated 5th April, 2013. 2. The only ground raised by the Revenue reads as under:- The ld.CIT(A) has erred on facts and in law in deleting the addition made on account of additional income of ₹ 3,50,00,000/- declared in the course of survey u/s 133A on oath. 3. The facts of the case are that the assessee company is engaged in the business of financing of automobiles and allie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application form, KYC documents, proof of identity etc. He also recorded the finding These documents contain full evidence of each and every depositor . After considering these facts and evidences, learned CIT(A) found that the assessee has duly discharged the onus of proving the cash credit u/s 68. Accordingly, he deleted the addition of ₹ 3,50,00,000/-. The Revenue, aggrieved with the order of the CIT(A), is in appeal before us. 4. At the time of hearing before us, it is submitted by the learned DR that the date of survey was 5th November, 2009 while the retraction is made by the assessee on 7th September, 2010 which was almost more than 10 months from the date of survey. That such a long gap itself proves that the retraction was an after-thought and should not be given undue weightage. He stated that the assessee made a voluntary surrender of the income during the course of survey because the assessee was unable to prove the huge credit lying in its books of account. He, therefore, submitted that the order of learned CIT(A) should be reversed and that of the Assessing Officer may be restored. 5. Learned counsel for the assessee, on the other hand, stated that the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be sustained. 6. We have carefully considered the submissions of both the sides and have perused the material placed before us. Though the Assessing Officer has made the addition of ₹ 3,50,00,000/- as unexplained credit u/s 68, apparently, he has made the addition because of the surrender made by the assessee during the course of survey u/s 133A. The Assessing Officer himself has summarized the surrender made by the assessee at page 3 of the assessment order which is reproduced below for ready reference :- To summarize the total surrender made in respect of M/s Bansal Credits Ltd. is given as below :- S. No. Head Amount F.Y. 1. Unsecured Loans (unexplained) Rs.24,66,715/- 2009-10 2. Unexplained debentures Rs.2,85,18,000/- 2009-10 3. Buffer Rs.40,15,285/- 2009-10 7. From the above, it is evident that obviously, the surrender of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he facts under appeal because in the case under appeal before us also, the statement was recorded u/s 133A and not u/s 132(4) and moreover, the assessee has furnished voluminous evidences to discharge the onus of proving the cash credit u/s 68. The Assessing Officer has not specified a single credit which is to be treated as unexplained. In the case of S. Khader Khan Son (supra), Hon ble Madras High Court held :- Dismissing the appeal, that in view of the scope and ambit of the materials collected during the course of survey action under section 133A shall not have any evidentiary value. It could not be said solely on the basis of the statement given by one of the partners of the assessee-firm that the disclosed income was assessable as lawful income of the assessee. 9. That the above decision of Hon ble Madras High Court has been approved by Hon ble Apex Court in [2012] 254 CTR 228 (SC). That CBDT also in its letter F.No.286/2/2003-IT(Inv.II) dated 10th March, 2003 provided as under :- Instances have come to the notice of the Board where assessees have claimed that they have been forced to confess the undisclosed income during the course of the search seizure and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed and it can be said that the assessee has discharged its primary burden under the law . After considering the facts and arguments of both the sides, we do not find any infirmity in the above finding of learned CIT(A). There was a credit in the assessee s books of account of small amounts of below ₹ 20,000/- each from more than 3,000 persons. The assessee has furnished necessary evidences in respect of those creditors, which was more than 7,000 pages. The Assessing Officer acknowledged the furnishing of those evidences but rejected them summarily with the following finding :- In response the assessee company has filed various letters explaining the genuineness of the credits. I have gone through the replies but do not find any force in them. 11. Thus, the Assessing Officer, without discussing the case of a single creditor, rejected all of them. Learned CIT(A) has discussed all those documents from page 5 to 17 of his order. The Assessing Officer made the addition of ₹ 3,50,00,000/- as unexplained credit u/s 68 when admittedly, the sum of ₹ 3,50,00,000/- was the surrender made by the assessee during the course of survey and was not the amount of credit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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