9911796707
TMI Blog2016 (11) TMI 1308X X X X Extracts X X X X X X X X Extracts X X X X ..... , which was offered for taxation conditionally. 3. The ld.counsel for the assessee, at the very outset, submitted that an identical issue was heard in the Division Bench in the case of ITA No.81 & 82/Ahd/2012 dated 6.9.2016 and outcome of those appeals is to be followed in the present appeal. The ld.DR was unable to controvert this contention of the ld.counsel for the assessee. 4. I find that Division Bench has decided those appeals vide order dated 6.9.2016. The order reads as under: " 1. ITA Nos.81 & 82/Ahd/2012 are appeals by two different Assessees directed against the order of Ld. CIT(A)-II, Ahmedabad dated 18.10.2011 pertaining to A.Y. 2009-10. 2. As common grievance is involved in both these appeals, though quantum may differ, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 009- 10 Company 1,75,00,000 27,00,000 1,48,00,000 2 Kanaiyalal B. Patel 2009- 10 Individual 10,00,000 -- 10,00,000 3 Vasantiben K. Patel 2009- 10 Individual 15,00,000 -- 15,00,000 4 Manish K. Patel 2009- 10 Individual 25,00,000 -- 25,00,000 Total 2,25,00,000 27,00,000 1,98,00,000 7. While filing the aforementioned chart, the assessees specifically stated that the aforementioned chart may also be treated for registering retraction of the preliminary disclosure made to the extent it remains unidentified during assessment. 8. Thus, the unidentified disclosure of Shri Kanaiyalal B. Patel was appropriated at Rs. 10 lacs and that of Shri M.K. Patel was appropriated at Rs. 25 lacs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd seizures and survey operations no attempt should be made to obtain confession as to the undisclosed income. Any action on the contrary shall be viewed adversely. Further, in respect of pending assessment proceedings also, assessing officers should rely upon the evidences / materials gathered during the course of search / survey operations or thereafter while framing the relevant assessment orders 11. If the facts of the cases in hand are to be considered in the light of the aforementioned CBDT Circular, in our considered opinion, since there is no co-relation between the alleged disclosures of the appellants qua the seized material, we do not find any reason why addition should be made and why the tax paid on such disclosure should n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entire sum of Rs. 1.75 crores (supra) was its unaccounted income. 9. The CIT(A) has upheld the Assessing Officer's action under challenge. 10. The learned authorized representative invites our attention to the above extracted statement for terming the same as a conditional disallowance and not a categoric one. He submits that the same lacks any supportive evidence as well i.e. the four basic ingredients of the concerned assessee's identity out of the above stated four entities (supra), corresponding assessment year, source thereof along with its application and unexplained expenditure is nowhere forthcoming. The assessee pleads that both the alleged sums of Rs. 2.25 crores and deemed dividend amount of Rs. 4 crores (supra) stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p;assessee's business preemies. And concluded the same on 03-10-2008. This time span of 10 days involves four statements being obtained from Shri Patel (supra) inter alia disclosing unaccounted business income of Rs. 2.25 crores along with deemed dividend of Rs. 4 crores. We have extracted relevant portions thereof in preceding paragraphs. The same do not reveal any specific incriminating material unearthed in the course of search or thereafter highlighting unaccounted business income. The above stated disclosure statements are very much vague ones and conditional as well without verifying necessary books and records. The relevant array of questions forming part of the paper book are found to be not throwing light on & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Board's circular (supra) quoted therein. When we apply this ratio vis-a- vis facts before us, it is apparent that there is no incriminating material or evidence available with the Revenue which could support the impugned addition. 15. The next case law is DCIT vs. Shri Vivekanand Sharma ITA 1748/Kol/2012 decided on 01-08-2014. This search is dated 26-023- 2010 followed a disclosure statement u/s. 132(4) on 06-05-2010 subsequently retracted on 02-09-2011 i.e. almost one and half years thereafter. The learned co-ordinate bench quotes absence of specific material evidence supporting the disclosure statement for deciding the issue against the Revenue. We have afforded the Revenue due opportunity to point out any distinction on fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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