TMI Blog2017 (5) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the CIT(A) - appeal allowed - decided in favor of Revenue. - ITA 935/2016 - - - Dated:- 1-5-2017 - S. Muralidhar And Chander Shekhar, JJ. For the Appellant : Mr. Zoheb Hossain, Senior Standing Counsel For the Respondent : Mr. Inder Paul Bansal and Mr. Vivek Bansal, Advocates ORDER Dr. S. Muralidhar, J. 1. This is an appeal by the Revenue under Section 260A of the Income Tax Act, 1961 ( Act ) against the order dated 28th April, 2016 passed by the Income Tax Appellate Tribunal ( ITAT ), Delhi in ITA No. 1787/Del/2014 for the Assessment Year ( AY ) 2009-10. 2. While admitting the appeal on 22nd February, 2017 the following question of law was framed: Did the ITAT fall into error in holding that the surrend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax Act} as well as the prosecution proceedings shall not be initiated against me or any of my concern in which I have interest. 4. However, when the Assessee filed his return of income on 26th September, 2009 for the AY 2009-10, he did not include the aforementioned amount as part of his income. He made no reference to the declaration made by him on 18th December, 2008. Nearly two years after the above declaration, the Assessee submitted the following letter dated 16th December, 2010: Withdrawal dated 16.12.2010 of declaration dated 18.12.2008 Sir, Re:- In the matter of Sh. Avinash Kumar Setia withdrawal of surrender declaration made during survey operation conducted u/s 133 A of the Income Tax Act 1961 This is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce and Company affairs, Department of Revenue, CADT which is reproduced as under: (omitted) ...... Further as informed earlier, that there was no incriminating documents seized/found during the course of suggesting the undisclosed income of ₹ 1.25 crore and a/so no such incriminating documents has been pointed out by your goodself in the questionnaire issued by you to suggest that there was undisclosed income earned by the assessee during the captioned assessment year. It is submitted that as per instruction of CBDT on the captioned subject and also based on the various judgements, it is a well established precedence that in the absence of any evidence, no addition is required to be made for any adhoc declaration made by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvey, when confronted with questions that were inconvenient , the Assessee gave an assurance that details would be provided later and, therefore, succeeded in getting an immediate reprieve. But at the time of declaring the unaccounted income, the Assessee changed his stand and filed a letter of retraction. It was noted that in the self-serving affidavit, the Appellant attempted to seek refuge in the wording of the admission, claiming that it referred to his companies, firms and also his individual status. Thus at each stage the Appellant has been employing a ruse to escape from the rigours of law. By not providing the basic details in a coherent manner, the Appellant has prevented the Revenue from examination of his affairs. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee company. The assessment proceedings were carried out under Section 143(3) of the Act and completed on 18th March, 2013. In the above context it was held by the ITAT that the statement recorded under Section 133 A of the Act could not be relied upon since in view of the CBDT Circular dated 1st March, 2003 such a statement had to be corroborated by other material. 11. The facts of the case on hand are plainly different. Here, there was no statement of the Assessee recorded during the survey under Section 133A of the Act. As observed by the CIT(A), the Assessee voluntarily made a declaration two months after the survey. There was absolutely no compulsion on the Assessee to make such a declaration. The Assessee waited for two years to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to distinguish the said case from the case on hand. 14. The learned counsel for the Assessee relied upon the decision of the Madras High Court in CIT v. Khader Khan Son (2008) 300 ITR 157 (Mad.). In the said case, during the search action, one of the partners of the Assessee made a statement under Section 133A of the Act offering additional income. Less than 10 days thereafter, on 3rd August, 2001, the statement was resiled from in writing. This again, therefore, makes the case distinguishable from the case in hand where the Assessee has waited for 2 years to resile from the declaration earlier made. 15. On the side of Revenue, reliance was placed on the decision in Raj Hans Towers Pvt. Ltd. v. Commissioner of Income Tax-V (2015) 373 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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