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TMI Blog2019 (12) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the company. As stated by the Assessing Officer, the Rohan Group has re-developed over 50 buildings through various group entities. In the course of search operation, unaccounted cash and jewellery as well as incriminating documents indicating suppression of sales were found and seized. Statements were recorded on oath under section 132(4) of the Act from one of the directors (now deceased), wherein, he admitted undisclosed income of Rs. 100 crore at the hands of various entities of the group and break-up of such disclosures were also submitted subsequently before the Departmental Authorities. As per the said disclosure, undisclosed income of Rs. 34 crore was offered at the hands of the present assessee in the assessment year 2011-12 towards profit from development of real estate project. On verifying the material on record, the Assessing Officer found that the assessee during the year under consideration was engaged in the construction of a commercial project named "The Ruby" at Dadar, Mumbai. He observed, in the return of income filed for the impugned assessment year on 30th September 2012, the assessee had declared total income of Rs. 4,49,57,147. Referring to the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its own case in the assessment year 2011-12, vide ITA no.4027/Mum./2016, dated 31st May 2019. Further, he submitted, identical issue has been decided by the Tribunal in favour of other group entities/sister concerns. In this context, he drew our attention to the relevant orders of the Tribunal passed in case of sister concerns. Thus, he submitted, the decisions of the Tribunal in assessee's own case as well as in case of other sister concerns have to be followed as facts are identical. 6. The learned Departmental Representative, though, agreed that similar issue has been decided in favour of the assessee as well as sister concerns in some other assessment years by the Tribunal, however, he relied upon the observations of the Assessing Officer. 7. We have considered rival submissions and perused the material on record. On a careful reading of the impugned assessment order, we find that the addition made on account of on-money is founded on the statements recorded under section 132(4) of the Act from one of the directors as well as certain employees of the assessee company. Besides the statements, the only other incriminating material referred to by the Assessing Officer is Page-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner (Appeals). On reading of Para-5.2.5 of the learned Commissioner (Appeals)'s order, it becomes clear that the said seized material refers to the following projects and entities:- Sr. no. Name of Project Entity of Rohan Group 1. Siddhesh Darshan Meridian Construction Pvt. Ltd. 2. Mayuresh Apartment Rohan Developers Pvt. Ltd. 3. Lifescapes Kshitij RoxinaReal Estate Pvt. Ltd. 4. Siddesh Jyoti Manav Builders Pvt. Ltd. 8. Thus, it is patent and obvious that the seized material referred to by the Assessing Officer neither has assessee's name nor refers to any project built by it. Therefore, it can be said that the seized material in no way establishes receipt of on-money by the assessee. Further, learned Commissioner (Appeals) on factual examination has found that the sale consideration received by the assessee in some instances is more than the stamp duty value. 9. It is relevant to observe, while dealing with identical addition made by the Assessing Officer in assessee's own case on account of on-money in the assessment year 2011-12 by referring to Page-114 of Annexure A-1, as well as the statements recorded from one of the directors and certain employees, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directors clearly established the fact of receipt of on-money, it is very essential to infer that the group as a whole was indulging in this kind OF modus operandi and accordingly he estimated 30% on total sales declared for the year towards on-money receipt and made addition to the total income. 15. The facts with regard to declaration of undisclosed income in various group companies names towards omissions / errors, etc. are not disputed. It is also not in dispute that during the course of search cash and other unaccounted income pertaining to the group was found and seized. But, the AO, nowhere in his assessment order, had brought out facts to the effect that the seized material found during the course of search has a direct nexus with the assessee and its project carried out during the year under consideration. Although, the AO has referred to the seized material page 114 of Annexure A-1, to argue that there are seized materials, which indicated collection of on- money from sale of flats, but the assessee has rebutted the allegation of the AO with necessary evidence and also proved that seized material page 114 of Annexure A-i is nothing to do with business activity of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale of flats. Even in respect of statements of employees of group, nowhere they have specifically attribute the name of the assessee with reference to receipt of on-money while answering questions to statement recorded during the course of search. All along the director as well as the employees made a general statement about receipt of on-money with reference to a question posed by the Investigation wing without any reference to particular seized material found as a result of search. Similarly, the AO has taken circumstantial evidence of cash and unexplained jewellery found during the course of search to argue that the assessee is in the habit of suppression of sales by showing under valuation which was used in its business, but on perusal of cash and other assets found during the course of search it was very clear that the cash was found from 112-122, Hira Bhavan, Rajaram Mohan Roy Road, Prarthana Samaj, Mumbai, which was common premises for four entities of the assessee group and that the total cash found from various premises was almost equivalent to cash balance maintained in the books of account. Although, there is a difference of cash balance of Rs. 25,86,687, the same has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is fortified by the decision of Hon'ble Supreme Court in the case of CIT vs S Kader Khan Sons (2013) 352 ITR 480(SC) where it was categorically held that admission is a best piece of evidence, but that by itself is not a conclusive evidence unless it is supported by further evidence in the form of incriminating materials. This legal proposition is further fortified by the decision of ITAT, Amritsar Bench in the case of ACIT vs Janakraj Chauhan (supra) where it was held that admission at the time of search is important, but not conclusive. The Tribunal further held that addition should be considered on merits, rather than on the basis of sworn statement made by the assessee. The Hon'ble Bombay High Court in the case of CIT vs Uttamchand Jam (supra) had considered the admission and subsequent retraction of the assessee and held that a retracted confession can be relied upon only if there is independent and cogent evidence to corroborate the statement. In this case, the AO has failed to bring any corroborative evidence to support the statement of directors as well as employees in order to support his action of estimation of on-money on sales declared by the assessee for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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