TMI Blog2018 (12) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... tha Sarathi Chaudhury,Judicial Member For the Assessee : Shri Rakesh Garg, Advocate For the Department : Shri C. K. Singh, D.R. ORDER PER PARTHA SARATHI CHAUDHURY, J.M: The assessee has filed this appeal and stay petition and at the time of hearing ld. A.R. of the assessee submitted before the Bench that if the appeal of the assessee is heard on priority, he will not press for the stay petition. 2. We have perused the grounds of appeal and the stay petition filed by the assessee and in the interest of justice, we proceed to dispose of the appeal on priority, therefore, the stay petition filed by the assessee is dismissed as not pressed. In the appeal filed by the assessee in ITA No.394/LKW/2018 arises from the order passed by the ld. CIT(A)-II, Kanpur dated 11/4/2018, as per the following grounds of appeal:- 1. Because the CIT(A) has erred on facts and in law in not appreciating the facts and circumstances of the case and has arbitrarily upheld the addition of ₹ 1 crore on account of undisclosed income alleged to have been surrendered at the time of survey, which addition being contrary to facts, bad in law be deleted. 2. Because the CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion, which is as under:- The survey was conducted on 19.02.2015 under section 133-A of the Income Tax Act, 1961, at the business premises of the assessee in which statement of one of the Directors Aslam Saeed was recorded on oath at very late hours say about in the mid night under undue pressure. On 23.02.2015 the assesses retracted and stated that the statement of one of the Director Aslam Saeed recorded under duress and undue pressure and therefore, should not be relied upon. As a matter of fact, nothing discriminating was noticed in the books of account maintained by the assessee's company. In this statement, it has been mentioned that certain loose papers were recovered from the cabin of the Director which related to some property transactions. In lieu of these papers, a sum of ₹ 1,00,00,000/- was asked to be surrendered as additional income for the assessment year 2015- 2016. Reference be made to question No. 9 onward of the statement dated 19.02.2015. The same relates to the papers recovered and surrender made. Copy of statement recorded is available at page 11-12, so this second statement recorded on 11.03.2015 at page 13 to 15. It is submitted that all these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income of the assessee company. MOREOVER, ..................matter that at the time of survey/search, a tremendous pressure is on the Department to forcing the tax payer to make some surrender. MOREOVER, the statement recorded at the time of survey have no evidentiary value, in as much as, it is a statement recorded an oath and as per the provisions of the Act, no statement on oath can be recorded at the time of survey u/s. 133-A of the Act. Statement on oath can only be recorded during the course of any proceedings which are pending before the Assessing Officer or any authority or during the course of search and seizure, where there are separate provisions. EVEN the statement recorded at the time of survey an 19.02.2015 is incomplete, in as much as, if the surrender related to advance for purchase of land, the next obvious query should have been as to whom the advance has been given and also, the details of the property for which the advance has been given, should have been extracted from the person whose statement has been recorded in absence of the said queries, the statement as well as surrender leads us no where. In view the above, the addition made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been marked as Diary BK-4. The contention of the ld. A.R. of the assessee is that addition was made solely on the basis of statement of the assessee recorded under section 133A of the Act and on the basis of the amount mentioned on those loose papers assembled as Diary BK-4. There is no corroborating material or supporting evidence to establish that these transactions pertains to the assessee or that assessee has purchased land. Taking into consideration arguments of the ld. A.R. of the assessee and in order to determine the genuineness, in the previous hearing we had directed the ld. D.R. to bring the original record of the case and to depose before the Bench whether addition was solely made on the basis of those loose papers or whether there was some corroborating and supporting evidences in favour of the Revenue to make such addition and to submit it before us on the next date of hearing. The ld. D.R. conceded that on the confession and statement recorded by the assessee entire addition was made, however, nothing in the file to suggest that any corroborating material was present to strengthen the case of the Revenue. On perusal of materials on record, even in the assessment p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is so possible then there is no need to rely on the retracted statement. The said statement can be used as an aid for making additions based on incriminating material on record and if the additions can be independently sustained based on incriminating material on record, then there is no need to call for the forced confessional statement in aid which stood retracted. 10. In the instant case of the assessee, Assessing Officer and even ld. CIT(A) whose powers are co-terminus with that of the Assessing Officer has not conducted any specific enquiry neither at the time of survey or post-survey nor any verification was carried out so as to bring forth other independent materials on record to corroborate and justify alleged transactions found in the diary BK-4. The aforesaid judicial pronouncements brings out the legal principle very clearly that addition cannot be made solely on the basis of statement of the assessee recorded under section 133A of the Act in the absence of corroborating evidences and materials on record. 11. Amritsar Bench of the Tribunal in the case of Manjit Singh vs. ACIT (supra) has held that there was no material with the Department on the basis of which t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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