TMI Blog2014 (8) TMI 1083X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Appellant: Shri A. K. Das, JCIT, Sr. DR For the Respondent: Shri Rajeeva Kumar, Advocate ORDER Per Shri Mahavir Singh, JM : This appeal by revenue is arising out of order of CIT(A), Central-II, Kolkata in Appeal No. 265/CC-XIII/CIT(A)C-II/11-12 dated 14.09.2012. Assessment was framed by JCIT(OSD), C.C-XIII, Kolkata u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as the Act ) for Assessment Years 2010-11 vide his order dated 28.12.2011. 2. The only issue in this appeal of revenue is against the order of CIT(A) deleting the addition made by AO in view of disclosure made by assessee for an amount of ₹ 1 cr. during search u/s. 132 of the Act. For this, revenue has raised following two grounds: 1. That on the facts and circumstances of the case and in law the Ld. CIT(A) has erred in deleting the addition made by the AO as per disclosure made by the assessee. 2. That on the facts and circumstances of the case and in law the Ld. CIT(A) erred in relying upon various case laws which are against the revenue, and not considering the case laws in favour of revenue. 3. Briefly stated facts leading to the above issue are that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aggrieved, assessee preferred appeal before CIT(A), who deleted the addition vide para 5 of his appellate order as under: 5. I have considered the submission of the appellant and perused the assessment order. I have also gone through the various judicial pronouncements relied upon by the appellant. On perusal of assessment order, it is apparent that search seizure operation was conducted in the case of Shyam Steel Power Ltd. Group on 26.03.2010. Consequently the search was also conducted on 06.05.2010 in the bank accounts held in the name of M/s. Manomay Distributors Pvt. Ltd. and M/s. Omni Trexim Pvt. Ltd. The appellant was one of the Directors in the above mentioned companies, however, no search operation was conducted in his case. In the course of search operation in the bank accounts, the appellant submitted a letter dated 06.05.2010 before the DDIT (Inv), Unit- 1(4), Kolkata having subject disclosure of income u/s 132(4) of the Income Tax Act, 1961 . In the said letter, it was stated by the appellant that he is associated with M/s. Manomay Distributors Pvt. Ltd. and M/s. Omni Trexim Pvt. Ltd. as Director. He had earned commission income on various financial transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with collect on of other evidence. On careful considerat on of the facts and in law, I am of the opinion that the AO was not just fied making addition of ₹ 1. crore solely on the basis of statement petition dated 06.05.2010 filed by the appellant. In the course of assessment proceedings, the appellant filed an affidavit retracting the disclosure made by him for the reason that there was no basis of such disclosure and same is not supported or corroborated by any evidence or incr minating documents found by the search party. It is observed that the AO has not denied the facts ment oned above in the affidavit. In the assessment order, no where, it is mentioned that the claim of appellant is not correct and that evidences were found in the case of appellant supporting the disclosure of ₹ 1 crore as undisclosed ncome earned on account of commission. In the assessment order, not even a s ngle piece of incriminating evidence/document has been discussed by the AO which may suggest that the appellant had earned undisclosed income or which may support and corroborate the disclosure made by the appellant. I find no substance in the statement of AO that by making disclosure of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndue emphasis should not be placed on the statements recorded. In fact, it had given a mandate not to obtain confession as to the undisclosed income. 5.1 The similar view was expressed by the Hon ble Madras High Court in the case of CIT vs. Khader Khan Son reported in 300 ITR 157 wherein it has referred to the said Circuiar dated 10.03.2003 issued by the CBDT. In ts order dated 04.07.2007, the Hon ble High Court has quoted from the said C rcular which is extracted as under What is more relevant, in the instant case, is that the attention of the Commissioner and the Tribunal was rightly invited to the circular of the Central Board of Direct Taxes dated March 10, 2003, w th regard to the confession of additional income during the course of search and seizure and survey operations. The said circular dated March 10, 2003, reads as follows : 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 and seizure and survey operations. Such confessions, if not based upon credible evidence, are later retracted by the concerned assessees while filing returns of inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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