TMI Blog2019 (1) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... well as repayment of the loan alongwith payment of interest which was subjected to TDS, we do not find any error or illegality in the finding of the CIT(A) qua this issue, hence, we uphold the same. - Decided in favour of assessee. - ITA No. 561/JP/2018 - - - Dated:- 7-1-2019 - SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SINGH YADAV, AM For The Revenue : Shri Ranjan Kumar (CIT-DR) For The Assessee : Shri Vijay Goyal And Shri Gulshan Agarwal (CA). ORDER PER: VIJAY PAL RAO, J.M.: This appeal by the revenue is directed against the order dated 21/02/2018 of ld. CIT(A)-4, Jaipur for the A.Y. 2010-11. The revenue has raised following grounds of appeal: ( i) Whether on the facts and in the circumstances of the case the ld. CIT(A) was right in deciding that no addition can be made during assessment U/s 153A, in the absence of incriminating documents. ( ii) Whether on the facts and in the circumstances of the case, the Id. CIT(A) was right in deleting the addition of ₹ 4,82,00,000/- U/s 68 of the IT Act. The appellant craves, leave or reserves the right to amend, alter, add or forego any ground(s) at any time before or during the hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terated its earlier statement, however, the statement given on oath is an admissible evidence and the retraction of the assessee will not affect the evidentiary value of the statement. In support of his contention, he has relied upon the decision dated 13/5/2016 of the Hon ble Jurisdictional High Court in the case of CIT vs Ravi Mathur in DBIT No. 67/2012 wherein the Hon'ble High Court has held that the statement recorded U/s 132(4) of the Act have great evidentiary value and it cannot be discarded by simply on the basis of the retracted statement given by the assessee. Further the payment of interest claimed by the assessee was not found to be shown as income in the hands of the recipient. All the loan creditor companies are paper/shell companies without any actual business transactions, therefore, the ld. CIT(A) has committed an error in deleting the addition made by the Assessing Officer. 6. On the other hand, the ld AR of the assessee has submitted that the loans were received in the month of March, 2010 and were already repaid by the assessee prior to the date of search on 03/4/2013. Therefore, there was no outstanding of any loan as on the date of search. During all th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U/s 131 and again ask to explain about the loans in which the assessee has explained that the statement made in question No. 77 was mistakenly given by the assessee due to consistent pressure. The ld AR has thus, contended that when there is no incriminating material found or seized during the search and seizure action and the assessee was not pending or abated by virtue of the search then no addition can be made to the total income of the assessee while passing the assessment U/s 153A of the Act. In support of his contention, he has relied upon the decision of the Hon ble Delhi High Court in the case of Pr.CIT Vs. Best Infrastructure (India) Pvt. Ltd. 397 ITR 82 (Del) and submitted that the Hon'ble High Court has followed the earlier decision in case of Pr.CIT Vs. Meeta Gutgutia (2017) 395 ITR 526 and the SLP filed by the revenue against the decision in the case of Pr.CIT Vs. Meeta Gutgutia has already been dismissed by the Hon'ble Supreme Court. The ld AR has submitted that the decision in the case of CIT Vs. Kabul Chawla 380 ITR 573 (De) has been followed in the case of Meeta Gutgutia, the SLP which has been dismissed by the Hon'ble Supreme Court reported in 257 tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmissions as well as relevant material on record. The first aspect involved in the matter is sustainability of the addition made by the Assessing Officer without any incriminating material found or seized during the course of search and seizure action. There is no dispute that the original return of income filed by the assessee U/s 139(1) of the Act on 11/10/2010 was not pending assessment as on the date of search on 03/4/2013. Therefore, the assessment was completed U/s 143(1) and it was not abated due to the search and seizure action U/s 132 of the Act on 03/4/2013. The order of the Assessing Officer is based on the statement of the assessee recorded U/s 132(4) of the Act and specifically the question No. 77. It is pertinent to note that during the course of search and seizure action, the statement of the assessee was being recorded from 04/4/2013 to 05/4/2013 and as many as 78 questions were put to the assessee. The statement of the assessee recorded U/s 132(4) runs into about 50 pages. The statement of the assessee was recorded from 12.00 noon on 04/4/2013 and continued up to 1.00 a.m. on 05/4/2013. After the break, the recording of statement again resumed at 7.50 a.m. on 05/4/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ______________________do _________________________ (vi) Tara Vinimay Pvt. Ltd., 101, Balaram Dey Street, G. Floor, Kolkata (vii) Victor Project Pvt. Ltd., 2 Mullick Street, Ist Floor, Kolkata (viii) Yatan Traders Pvt. Ltd., 62/1, Hriday Krishna Banerjee Lane, Howrah. In reply to the question No. 34, the assessee has clearly stated that the transaction of loan from all the parties were taken on interest in the F.Y. 2009-10 and these were repaid in the F.Y. 2011-12. Thereafter a specific question was put to the assessee regarding the loan taken from M/s Dipnarayan Vyapar Pvt. Ltd. as question No. 39 and in reply to the same, the assessee stated that the loan was taken about three years back on interest but the assessee was not able to remember the person through whom the loan was taken. Therefore, there was no ambiguity in the reply to question No. 39 except that the assessee was not able to tell the name of the person who helped the assessee in procuring the loan. Since the Investigation Wing was not satisfied with the answers of the assessee as they could not extract the statement which can be used against the assessee, therefore, question were cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that cannot be applied to the entire transactions of loan taken from 12 parties. Therefore, except the statement of the assessee to question No. 77, which was subsequently clarified in question No. 12, there was nothing in the shape of any material or document much less incriminating material with the Assessing Officer to make the addition to the total income of the assessee. If the statement of the assessee is read in toto then there will be no admission regarding any of the loan transactions being an accommodation entry. Therefore, the question arises whether in absence of any incriminating material, the Assessing Officer can make any addition to the total income of the assessee when the assessment was not abated due to the search and seizure action. The Hon ble Delhi High Court in the case of CIT Vs. Kabul Chawla (supra) has considered and observed in para 37 and 38 as under: 37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A(1) will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38. The present appeals concern AYs, 2002-03, 2005-06 and 2006-07.On the date of the search the said assessments already stood completed. Since no incriminating material was unearthed during the search, no additions could have been made to the income already assessed. Thus, the Hon'ble High Court has ruled that the Assessing Officer while making the assessment U/s 153A of the Act can make the addition only on the basis of some incriminating material unearthed during the course of search or requisition of documents, which were not produced or not already disclosed or made known in the course of original assessment. In the case in hand, all the transactions were duly recorded in the books of account. Even the loans were already paid during the F.Y. 2011-12 and therefore, these transactions were disclosed and known in the course of original assessment/return of income. Hence in absence of any incriminating material, the Assessing Officer cannot make any addition to the total income of the assessee. In the subsequent decision, the Hon ble Delhi High Court in the case of Pr.CIT Vs. Meeta Gutgutia (supra) has held in para 57 to 72 as under: 57. The question wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 369 of 2015 (Pr. Commissioner of Income Tax v. Kurele Paper Mills P. Ltd.), this Court declined to frame a question of law in a case where, in the absence of any incriminating material being found during the search under Section 132 of the Act, the Revenue sought to justify initiation of proceedings under Section 153A of the Act and make an addition under Section 68 of the Act on bogus share capital gain. The order of the CIT (A), affirmed by the ITAT, deleting the addition, was not interfered with. 59. In Kabul Chawla (supra), the Court referred to the decision of the Rajasthan High Court in Jai Steel (India) v. Asstt. CIT [2013] 36 taxmann.com 523/219 Taxman 223. The said part of the decision in Kabul Chawla (supra) in paras 33 and 34 reads as under: '33. The decision of the Rajasthan High Court in Jai Steel (India), Jodhpur v. ACIT (supra) involved a case where certain books of accounts and other documents that had not been produced in the course of original assessment were found in the course of search. It was held where undisclosed income or undisclosed property has been found as a consequence of the search, the same would also be taken into consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra), the Court also took note of the decision of the Bombay High Court in CIT v . Continental Warehousing Corpn (Nhava Sheva) Ltd. [2015] 58 taxmann.com 78/232 Taxman 270/374 ITR 645 (Bom.) which accepted the plea that if no incriminating material was found during the course of search in respect of an issue, then no additions in respect of any issue can be made to the assessment under Section 153A and 153C of the Act. The legal position was thereafter summarized in Kabul Chawla (supra) as under: 37. On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 crores against declared income of ₹ 3.44 crores. The ITAT deleted the additions on the ground that it was not based on any incriminating material found during the course of the search in respect of AYs under consideration i.e., AY 2006-07. The Gujarat High Court referred to the decision in Kabul Chawla (supra), of the Rajasthan High Court in Jai Steel (India) (supra) and one earlier decision of the Gujarat High Court itself. It explained in para 15 and 16 as under: '15. On a plain reading of section 153A of the Act, it is evident that the trigger point for exercise of powers thereunder is a search under section 132 or a requisition under section 132A of the Act. Once a search or requisition is made, a mandate is cast upon the Assessing Officer to issue notice under section 153A of the Act to the person, requiring him to furnish the return of income in respect of each assessment year falling within six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made and assess or reassess the same. Since the assessment under section 153A of the Act is linked with search and requisition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment in case of search and requisition. When the very purpose of the provision is to make assessment In case of search or requisition, it goes without saying that the assessment has to have relation to the search or requisition, in other words, the assessment should connected With something round during the search or requisition viz., incriminating material which reveals undisclosed income. Thus, while in view of the mandate of sub-section (1) of section 153A of the Act, in every case where there is a search or requisition, the Assessing Officer is obliged to issue notice to such person to furnish returns of income for the six years preceding the assessment year relevant to the previous year in which the search is conducted or requisition is made, any addition' or disallowance can be made only on the basis of material collected during the search or requisition, in case no incriminating material is found, as held by the Rajasthan High Court in the case of Jai Steel (India) v. Asst. CIT (supra), the earlier assessment would have to be reiterated, in case where pending assessments have abated, the Assessing Officer can pass assessment orders for each of the six years determinin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Kabul Chawla (supra). As far as Karnataka High Court is concerned, it has in IBC Knowledge Park (P.) Ltd.(supra) followed the decision of this Court in Kabul Chawla (supra) and held that there had to be incriminating material qua each of the AYs in which additions were sought to be made pursuant to search and seizure operation. The Calcutta High Court in Salasar Stock Broking Ltd. (supra), too, followed the decision of this Court in Kabul Chawla (supra). In Gurinder Singh Bawa (supra), the Bombay High Court held that: 6. . . . . . once an assessment has attained finality for a particular year, i.e., it is not pending then the same cannot be subject to tax in proceedings under section 153A of the Act. This of course would not apply if incriminating materials are gathered in the course of search or during proceedings under section 153A of the Act which are contrary to and/or not disclosed during the regular assessment proceedings. 63. Even this Court has in Mahesh Kumar Gupta (supra) and Ram Avtar Verma (supra) followed the decision in Kabul Chawla (supra). The decision of this Court in Kurele Paper Mills (P.) Ltd. (supra) which was referred to in Kabul Chawla ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction in the accounts of the Assessee for the AYs in question. On the contrary, the Assessee herein stated that, he is regularly maintaining the books of accounts. The disclosure made in the sum of ₹ 1.10 crores was only for the year of search and not for the earlier years. As already noticed, the books of accounts maintained by the Assessee in the present case have been accepted by the AO. In response to question No. 16 posed to Mr. Pawan Gadia, he stated that there was no possibility of manipulation of the accounts. In Smt. Dayawanti Gupta (supra), by contrast, there was a chart prepared confirming that there had been a year-wise non-recording of transactions. In Smt. Dayawanti Gupta (supra), on the basis of material recovered during search, the additions which were made for all the years whereas additions in the present case were made by the AO only for AY 2004-05 and not any of the other years. Even the additions made for AYs 2004-05 were subsequently deleted by the CIT (A), which order was affirmed by the ITAT. Even the Revenue has challenged only two of such deletions in ITA No. 306/2017. 68. In para 23 of the decision in Smt. Dayawanti Gupta (supra), i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessee and against the Revenue. It is held that in the facts and circumstances, the Revenue was not justified in invoking Section 153A of the Act against the Assessee in relation to AYs 2000-01 to AYs 2003-04? ( ii) Question (ii) is answered in the affirmative i.e., in favour of the Assessee and against the Revenue. It is held that with reference to AY 2004-05, the ITAT was correct in confirming the orders of the CIT (A) to the extent it deleted the additions made by the AO to the taxable income of the Assessee of franchise commission in the sum of ₹ 88 lakhs and rent payment for the sum of ₹ 13.79 lakhs? The said decision of Hon'ble High Court was challenged by the revenue before the Hon'ble Supreme Court, however, the SLP of the revenue was dismissed vide order dated 02/7/2018 reported supra. Thus, the Hon'ble High Court has reiterated its view as taken in the case of CIT Vs. Kabul Chawla (supra) and specifically held that once the assessment has attained the finality i.e. is not pending then the same cannot be subject to tax in proceedings U/s 153A of the Act except some incriminating material are gathered in course of search or during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, resulting in multiple assessments. Under Section 153A, however, the Assessing Officer has been given the power to assess or reassess the 'total income' of the six assessment years in question in separate assessment orders. This means that there can be only one assessment order in respect of each of the six assessment years, in which both the disclosed and the undisclosed income would be brought to tax. 20. A question may arise as to how this is sought to be achieved where an assessment order had already been passed in respect of all or any of those six assessment years, either under Section 143(1)(a) or Section 143(3) of the Act. If such an order is already in existence, having obviously been passed prior to the initiation of the search/requisition, the Assessing Officer is empowered to reopen those proceedings and reassess the total income, taking note to the undisclosed income, if any, unearthed during the search.For this purpose, the fetters imposed upon the Assessing Officer by the strict procedure to assume jurisdiction to reopen the assessment under Sections 147 and 148, have been removed by the non obstante clause with which sub-section (1) of Section 153A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as well as the undisclosed income, if any, unearthed during the search or requisition. The position thus emerging is that the search is initiated or requisition is made, they will abate making way for the Assessing Officer to determine the total income of the assessee in which the undisclosed income would also be included, but in case where the assessment or reassessment proceedings have already been completed and assessment orders have been passed determining the assessee's total income and such orders subsisting at the time when the search or the requisition is made, there is no question of any abatement since no proceedings are pending. In this latter situation, the Assessing Officer will reopen the assessments or reassessments already made (without having the need to follow the strict provisions or complying with the strict conditions of Sections 147, 148 and 151) and determine the total income of the assessee. Such determination in the orders passed under Section 153A would be similar to the orders passed in any reassessment, where the total income determined in the original assessment order and the income that escaped assessment are clubbed together and assessed as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a harmonious construction of the entire provision would lead to an irresistible conclusion that the word 'assess' has been used in the context of an abated proceedings and reassess has been used for completed assessment proceedings, which would not abate as they are not pending on the date of initiation of the search or making of requisition and which would also necessarily support the interpretation that for the completed assessments, the same can be tinkered only based on the incriminating material found during the course of search or requisition of documents. Thus, the Hon'ble High Court has held that for the completed assessments, the same can be tinkered only based on the incriminating material found during the course of search or requisition of documents. The ld. CIT(A) has decided this issue in para 7 to 7.7 as under: 7. I have perused the order of the AO and submissions made in this regard. I have also gone through the various case laws cited by the AR. For the sake of convenience the legal ground is adjudicated 1st as it goes to the root of the matter. 7.2 In support of the additional ground taken/ contention raised detailed written submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seen in para 37 38 of order, same is reproduced below: Para 37. On a conspectus of Section 153A (1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A (1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the Aos as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the total income of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only one assessment order in respect of each of the six AYs in which both the disclosed and the undisclosed income would be brought to tax . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of also taken in the following judgments, including by Hon'ble Jaipur ITAT Hon'ble ITAT Jaipur in many cases: a. Continental warehousing Corporation 374 ITR 645 b. PCIT vs. Meeta Gutgutia 152 DTR 153 c. Vijay Kumar D Agarwal V/s DCIT in IT(SS)A Nos. 153,154,155 156/Ahd/2012 d. Ratan Kumar Sharma vs. DCIT ITA 797 798 /Jaipur/2014 e. Vikram Goyal vs. DCIT ITA 174/Jaipur/2017 etc f. Jadau Jewellers Manufacturer PL Vs ACIT (686/Jaipur/2014) g. Prateek Kothari Vs. ACIT (312/Jaipur/2015. 7.7 Considering the above I am of the view that as the additions made by AO are without any reference to the seized material, they are not legally tenable. The same are therefore directed to be deleted. The legal ground taken by the appellant is thus allowed. The appellant succeeds on legal ground. In view of the above facts and circumstances as well as in the light of binding precedents as discussed in the forgoing paragraphs, we do not find any error or illegality in the impugned order of the ld. CIT(A) qua this issue. 8.1 On merits, the stand of the revenue is that the statement made on oath U/s 132(4) of the Act is an admissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and Profit Loss a/c along with all annexure of 31.03.2010. Copy of bank statement showing the entry of payment made to assessee. Zenith Tradecom Pvt. Ltd Confirmation of party of loan taken. PAN Card Copy of Party. The copy of ITR for AY 2010-11. The copy of director report, audit report, Balance Sheet and Profit Loss a/c along with all annexure of 31.03.2010. Copy of bank statement showing the entry of payment made to assessee. Regency Devcon Pvt. Ltd Confirmation of party of loan taken. PAN Card Copy of Party. The copy of ITR for AY 2010-11. The copy of director report, audit report, Balance Sheet and Profit Loss a/c along with all annexure of 31.03.2010. Copy of bank statement showing the entry of payment made to assessee. Victor Projects Pvt. Ltd Confirmation of party of loan taken. PAN Card Copy of Party. The copy of ITR for AY 2010-11. The copy of director report, audit report, Balance Sheet and Profit Loss a/c along with all annexure of 31.03.2010. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de to assessee. b) Pertaining to AY 2011-12: - Confirmation of party of loan taken. PAN Card Copy of Party The copy of ITR for AY 2011-12. The copy of director report, audit report, Balance Sheet and Profit Loss a/c along with all annexure of 31.03.2011. Copy of bank statement showing the relevant entry. c) Pertaining to AY 2012-13: - Confirmation of party of loan taken. PAN Card Copy of Party. The copy of ITR for AY 2012-13. The copy of director report, audit report, Balance Sheet and Profit Loss a/c along with all annexure of 31.03.2012. Copy Sri Ram Tie Up Pvt. Ltd a) Pertaining to AY 2010-11: - Confirmation of party of loan taken. PAN Card Copy of Party The copy of ITR for AY 2010-11. The copy of director report, audit report, Balance Sheet and Profit Loss a/c along with all annexure of 31.03.2010. Copy of bank statement showing the entry of payment made to assessee. b) Pertaining to AY 2011-12: - Confirmation of party of loan taken. PAN Card Copy of Party The copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence filed by the assessee either in the bank account statement or in the financial statement of the loan creditors. Once the loan creditors have accepted the transactions and which is also established from the relevant record then the said documentary evidence cannot be rejected merely on the basis of the statement recorded U/s 132(4) of the Act, which is also not an admission on the part of the assessee. We further note that the assessee also established the fact that all the loan creditors were having sufficient funds and reserve to give the loan to the assessee even the share capital and reserve and surplus of all the creditors were much more than the loan amount as is evident from the balance sheets of the relevant assessment year as on 31/3/2010. Thus, once the assessee has established the transaction by producing the documentary evidence then in absence of any contrary material or record, this addition made by the Assessing Officer is not sustainable. The ld. CIT(A) has considered this issue in para 8 and 9 as under: 8. I have pursued the assessment order and submission made in this regard. I have also gone through the various judgements cited by the Ld A/R, it is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s company. The relevant question and its answer is reproduced as under: - At this juncture it is important to point out that the mere statement u/s 132[4] per se does not constitute incriminating material for the purposes of assessment u/s 153A. Judgments of Hon ble Delhi High court in the case of Best Infrastructure [84 taxmann.com 287] is the case in the point. The head note of the judgment is as under: II. Section 153A of the Income-tax Act, 1961 - Search and seizure - Assessment in case of (General) - Assessment years 2005-06 to 2009-10 - Whether where during search proceeding one of directors of assessee company surrendered a certain sum as undisclosed income only for assessment year in question and not for each of six assessment years preceding year of search, said submission could not be said to be incriminating material qua each of preceding assessment years and, consequently, assumption of jurisdiction under section 153A and consequent additions made by Assessing Officer were not justified - Held, yes [Para 36][ln favour of assessee] 8.3 Section 68 is attracted where an entry relating to a sum is found to have been credited in the books kept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ources from where the creditor had accumulated the amount which he had advanced in the form of loan to the assessee and section 68 cannot be read to show that in the case of failure of sub-creditors to prove their creditworthiness the amount advanced as loan to the assessee by the creditor shall have to be read as corollary as the income from undisclosed source of the assessee himself. ( iii) In the case of Shankar Industries vs CIT (1978) 114 ITR 689 (Cal.): Observed that that mere establishing identity of the creditor and nothing more is not sufficient and something more is to be proved by the assessee and in the aforesaid case, the assessee was unable to prove beyond identity and, therefore, the Calcutta High Court upheld the findings of the Tribunal. However, in the present case, I notice that not only the identity of the creditor has been proved but from the facts which have been culled out, the assessee has been able to prove the genuineness also. ( iv) In the case of Kanhailal Jangid vs ACIT (2008) 217 CTR 354 (Raj): Held that the burden does not go beyond to put the assessee under an obligation to further prove that where from the creditor has got or procured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and addresses of the alleged creditors. It was in the knowledge of the Revenue that the said creditors were income-tax assessees. Their index numbers were in the file of the Revenue. The Revenue, apart from issuing notices under s. 131 at the instance of the assessee, did not pursue the matter further. The Revenue did not examine the source of income of the said alleged creditors to find out whether they were credit-worthy or were such who could advance the alleged loans. There was no effort made to pursue the so-called alleged creditors. In those circumstances, the assessee could not do any thing further. In the premises, if the Tribunal came to the conclusion that the assessee has discharged the burden that lay on him, then it could not be said that such a conclusion was unreasonable or perverse or based on no evidence. If the conclusion is based on some evidence on which a conclusion could be arrived at, no question of law as such arises. 12. In the case of CIT v. Chandra Prakash Rana [2001] 48 DTR 271 (Raj.), this Court noticed similar nature grounds urged on behalf of the revenue and found the same not leading to any substantial question of law. This Court noticed, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formulation of substantial question of law' on such finding can be said to have been made out. 11. In our view, no such error could be noticed by us in the impugned order because as observed supra, the Tribunal did go into the details of explanation offered by assessee and then accepted the explanation by placing reliance on the documents filed by assessee. As a consequence thereof, the additions made by AO came to be deleted. 13 In CIT v. Shree Barkha Synthetics Ltd. [2004] 270 ITR 477 (Raj.), in a similar nature matter, this Court observed that the Tribunal having found that the companies from which the share application money had been received by the assessee-company were genuinely existing and the identity of the individual investors were also established and they had confirmed the fact of making investment, the finding that assessee had discharged initial burden and addition under Section 68 could not be sustained, was essentially a finding of fact. This Court said,- 19. A perusal of the aforesaid finding goes to show that deletion has been made on appreciation of evidence, which was on record Finding that there was existence of investors and their confirmati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal in a summary or in a cryptic manner. Statements recorded under Section 132(4) cannot be discarded by simply observing that the assessee retracted the statements. One has to come to a definite finidng as to the manner in which retraction takes place. On perusal of the facts noticed hereinbefore, we have noticed that while the statements were recorded at the time of search on 09/11/1995 and onwards but retraction is almost after an year and that too when the assessment proceedings were being taken up in November 1996. We may observe that retraction should be made as soon as possible and immediately after such a statement has been recorded, either by filing a complaint to the higher officials or otherwise brought to the notice of the higher officials, either by way of a duly sworn affidavit or statements supported by convincing evidence through which an assessee could demonstrate that the statements initially recorded were under pressure/coercion and factually incorrect. In our view, retraction after a sufficient long gap or point of time, as in the instant case, looses its significance and is an afterthought. Once statements have been recorded on oath, duly signed, it h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat has been reached that once there is no incriminating material in support of the addition and brought on record by the Revenue, then, the earlier view of this Court binds the Revenue even on this addition. Thus, even this question cannot be termed as substantial question of law in the light of the two judgments of this Court in Continental Warehousing Corpn. and All Cargo Global Logistics Ltd. (supra) followed by SKS Ispat Power Ltd. (supra). 35. As a result of the above discussion and the question being common to all the Appeals, we dismiss all the Appeals of the Revenue. There will be no order as to costs. Thus, the statement recorded U/s 132(4) of the Act cannot be considered as an incriminating material found and seized during the search. Accordingly, in view of the facts and circumstances as discussed above and further the documentary evidence produced by the assessee which established the fact of transaction of loan taken by the assessee, their identity, capacity and genuineness being routed through the banking channel at the time of receipt as well as repayment of the loan alongwith payment of interest which was subjected to TDS, we do not find any err ..... 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