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2016 (11) TMI 1308 - ITAT AHMEDABAD

2016 (11) TMI 1308 - ITAT AHMEDABAD - TMI - Refund of amount offered for taxation conditionally - Held that:- 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 not be refunded. - The amount disputed by the present assessee has also been mentioned at Sr.No.3 on page no.3 of the order, while taking note of the details in tabular form. There .....

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: Shri Sumit Kumar Verma, DR ORDER Assessee is in appeal against order of the ld.CIT(A)-II, Ahmedabad dated 19.10.2011 passed for the Asstt.Year 2009-10. 2. Though grounds of appeal taken by the assessee are not in consonance with Rule 8 of Income Tax (Appellate) Rules, 1963 - they are descriptive and argumentative in nature. In brief her grievance is that the ld.AO ought to have granted a refund of ₹ 5,28,801/- in respect of amount of ₹ 15 lakhs, which was offered for taxation condi .....

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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, both these appeals were heard together and are being disposed of by this common order for the sake of convenience. 3. The common grievance in both these appeals relate to the non- granting of refund in respect of the amount conditionally offered by the asessees as their income for the ye .....

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hich was subsequently increased to ₹ 2.25 crores covering all the assessees of Manish Group. 5. Before transmitting the return of income electronically, the assessee filed explanatory notes before the A.O. stating that the explanatory notes so filed should be considered as forming part of the computation of income. 6. The contents of the explanatory notes can be appreciated by the following chart:- Sr. No. Name of the assessee Ass. Year Status Preliminary voluntary disclosure amt. Identifi .....

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he 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 ₹ 10 lacs and that of Shri M.K. Patel was appropriated at ₹ 25 lacs. We are considering the appeals of these two persons. 9. The claims of the appellants are that the disclosu .....

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03 in reference to the confession of income made during the course of search proceedings is reproduced herein below: Instances have come to the notice of the Board where assesses have claimed that they have been forced to confess the undisclosed income during the course of the search and seizure and survey operations. Such confessions, if not based upon credible evidence, are later retracted by the concerned assessee while filing returns of income. In these circumstances, on confession during th .....

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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 appella .....

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set aside the findings of the ld. CIT(A) and direct the A.O. to issue refunds on such additions of income disclosed but not shown in the return of income. 14. Before parting, in one of the lead cases of the group namely Manish Packaging Pvt. Ltd., the Co-ordinate Bench in ITA Nos. 78 & 973/Ahd/2012 had considered similar facts and thus held:- 8. The Assessing Officer framed a regular assessment on 31-12-2010 inter alia treating the above extracted disclosures as voluntary, unconditional, une .....

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to account all these conclusions for rejecting assesee's retraction qua the impugned sum of ₹ 1.48 lacs and held that the entire sum of ₹ 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 ev .....

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d dividend amount was finally disclosed as of ₹ 31,15,897/- only. It refers to Board's circular No. 286/02/2003 dated 10-03-2003 dealing with the issue of disclosure made in searches and seizures thereby directing the revenue authorities to keep focus and concentration on collection of evidence of income leading to information on what has not been disclosed or is not likely to disclose before the department. The assessing authority in pending assessments have also been directed to rely .....

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t the investigation authorities nowhere pin point any specific incriminating evidence during search to Shri Patel. Nor is there any question in this regard. It accordingly reiterates its earlier submissions. 13. We have heard both the parties. Case records and judicial precedents stand perused. We come to admitted facts first. The department commenced the impugned search operation in assessee's business preemies. And concluded the same on 03-10-2008. This time span of 10 days involves four s .....

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ary books and records. The relevant array of questions forming part of the paper book are found to be not throwing light on any specific material with contents thereof; whatsoever. The same factual position continues in assessment, lower appellate order and in the course of arguments before us. It is not out of place to reiterate that we are dealing with the issue of impugned unaccounted business income of ₹ 1,48,00,000/-. We observe in these peculiar circumstances that there is no specifi .....

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ed. The first one (2010) 328 ITR 411 (Guj) Kailashben Manohar Choksi vs. CIT. The department had recorded disclosure statement at midnight hours. The same stood retracted after two months. There was no evidence collected in support of the said disclosures. We find that their lordships accepted retraction since the statement was recorded in very much odd hours. It has been held thereafter that the additions in question are not sustainable since no material evidence supporting the same are forthco .....

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