TMI Blog2018 (9) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... ena of case law to this effect as well that such an addition is not sustainable in absence of any incriminating material found or seized during the course of search or survey carrying presumption u/s 292C. No reason to interfere with the CIT(Appeals) detailed conclusion in deleting the impugned addition of additional income amounting to ₹ 10 crores. - Decided against revenue. - I.T.A No. 689/Kol/2015 - - - Dated:- 14-9-2018 - Shri S.S. Godara, JM And Dr. A.L. Saini, AM For The Appellant : Shri G. Hangshing, CIT DR For The Respondent : Shri A.K. Tulsiyan, FCA ORDER Per S.S. Godara, JM 1. This Revenue s appeal for assessment year 2012-13 arises against the Commissioner of Income Tax (Appeals)-20, Kolkata s order passed in case No.117/CIT(A)-20/CC- 2(3)/14-15 dated 26.03.2015 involving proceedings under section 143(3) of the Income Tax Act, 1961; in short the Act . Heard both the parties. Case file perused. 2. Both the learned representatives take up to the CIT(A) detailed discussion on the sole issue of additional income addition of ₹ 10crores made in the course of assessment and deleted in lower appellate proceedings as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material representing its undisclosed income was found in the search. The assessee had also submitted at the assessment stage that Sri Kailash Prasad Agarwalla had already retracted his admission through sworn affidavit and there was no corroborative material to support the admission. The AO therefore could not lawfully rest his assessment solely on the disclosure made by Sri Kailash Prasad Agarwalla. The Ld AR concluded by submitting that the assessee had never earned any undisclosed income and therefore there was no question of declaring undisclosed income in its return. 6. The Ld AR contended that the case of the assessee was covered by judicial decisions wherein it was clearly held by various courts that admission made u/s 132(4) had no evidentiary value in as much as it cannot be made the sole basis for making addition when such admission was later retracted and there was no material on record to support the admission. The Hon'ble Supreme Court in the case of Pullangode Rubber Produce Co Ltd vs State of Kerala [1073] 91 ITR 18 noted that an admission is an important piece of evidence but it cannot be said that it is conclusive and it is open to the person who made t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble High Court of Madras in case of CIT vs Khader Khan Son [2008] 300 ITR 157 wherein it has referred to the said Circular dated 10-03-2003 issued by the CBDT. In its order dated the 4th July, 2007, the Hon'ble High Court quoted from the said circular which is extracted hereunder : What is more relevant, in the. instant case, is that the attention of Commission and Tribunal was rightly invited to the circular of the Central Board of Direct Taxes dated March 10,2003, with 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 income. In these circumstances, confessions during the course of search and seizure and survey operation do not serve any useful purpose. It is, therefore, advised that there should be focus and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... walla had no legal sanction or authority to make a disclosure on behalf of the assessee and consequently the disclosure made by him was no legal binding on the assessee; I secondly, no incriminating material supporting the disclosure of undisclosed income in the case of the assessee was found in the search. The case of the assessee is duly supported by various judicial pronouncements wherein it has been held by various courts that admission made at the time of the search cannot be made the sole basis for making addition when such admission was later retracted and there was no corroborative material to support the admission. The Hon'ble Supreme Court m the case of Pullangode Rubber Produce Co Ltd vs State of Kerala [1073J 91 ITR 18 noted that an admission is an important piece of evidence but it cannot be said that it is conclusive and it is open to the person who made the admission to show that It IS incorrect. In the case of CIT vs Ravindra Kumar Jain [2011] 12 taxman.com 257, the Hon'ble High Court of Jharkhand held that no addition can be made on the basis of the statement recorded u/s 132(4) if the assessee retracted later and surrender was not corroborated by independe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Case file including a detailed compilation of judicial precedents as well as documentary evidence has been perused. The Revenue s sole argument during the course of hearing is that the Assessing Officer had rightly made the impugned additional income addition of ₹ 10 crores as per Shri K.P. Agarwala s statement recorded during the search. It is strongly emphasized that the CIT(Appeals) has erred in law as well as on facts in deleting the impugned additional income in lower appellate proceedings. We find no merit in the Revenue s sole grievance. Two basic facts emerge from the rival pleadings. First one is that the Revenue has based its case on Shri K.P. Agarwala s search statement. The CIT(appeals) has held that Shri Agarwala was never the authorized person to depose or to offer any income at assessee s behest. We reiterate that this assessee is a company. It was very much imperative for the Revenue s to place on record the corresponding details to reverse this clinching finding. There is no such evidence on record. Equally significant is the latter fact; in our considered opinion, that there is no incriminating material found or seized during the course of search which co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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