TMI Blog2019 (2) TMI 1832X X X X Extracts X X X X X X X X Extracts X X X X ..... justifiable reasons to disturb the detailed and well-reasoned findings so given by the AO and the ld CIT(A). Ground of appeal is dismissed. Undisclosed investment of the assessee in the house - HELD THAT:- The statement of the assessee, Vijay Kumar Makhija was also recorded during post-search investigation u/s 131 wherein he has confirmed the purchase of the house and also confirmed the surrender of ₹ 6 lacs so made by his brother Prakash Makhija on his behalf. Shri Ramesh Chand Jain in his statement recorded u/s 131 on 09.11.2011 has also admitted that he managed the sale of the property to the assessee for a consideration of ₹ 20.75 lacs. The existence and contents of the said agreement found at the premises of the assessee during the course of search therefore remain undisputed. The retraction so made during the course of assessment proceedings after a considerable lapse of time is clearly an afterthought and there is nothing which support such retraction so made by the assessee. We see no justifiable reasons to disturb the detailed and well-reasoned findings so given by the AO and the ld CIT(A). In the result, the ground of appeal is dismissed. - ITA. No. 345 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d mine from Devkaran Sharma and he has made the investment of ₹ 40,00,000/- in the said mines. It was submitted that surrender so made by the assessee is completely against the facts mentioned in the agreement and neither the assessee nor his brother Shri Vijay Makhija were the owner of the said mines and they did not make any investments in the said mines. It was further submitted that it was subsequently learned by the assessee that even Shri Jagdish Panjwani who has claimed in the agreement to the owner of the mines was never the owner and Shri Devkaran Sharma continued to be the owner and in such a situation, it was impossible to implement the said agreement and hence, it was never acted upon. It was further submitted that it is a common experience that during the course of search, the assessee would be under great mental stress, tension and fear and the statement given by him at the time of search cannot be accepted as a conclusive or clinching evidence. Therefore, if the assessing authority gives his assertion only to the statement recorded during the course of the search, then the same cannot be used as a conclusive evidence or final accord of the assessee. It is well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. CIT(A) stated that the said Ikararnama was duly notarized, registered by the notary Mr. Nand Kishore Saini and it contains valid signature of Shri Prakash Makhija his brother Shri Vijay Makhija and of executer Shri Jagdish Panjwani and therefore, the onus lies on the assessee to prove that contents recorded therein are not correct and it is a dumb document. The ld. CIT(A) held that the assessee during the search operation has not raised any objection with regard to the correctness of the contents mentioned in the seized Ikaranama dated 17.09.2010. The assessee has not controverted this fact even at the present appellate proceedings. Till date the assessee has also not specified the motive or intent behind this Ikaranama dated 17.09.2010 which is duly notarized and registered. It was held by the ld CIT(A) that in all, 13 questions have been asked and point wise those were answered by the assessee and from the statements so recorded, it is very much clear that Shri Prakash Makhija has made voluntary disclosure and his statement was recorded without any coercion or threat. Shri Prakash Makhija in his sworn statement recorded on oath has admitted to have contributed ₹ 20,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K.V.Narasimhan vs. Income Tax Officer (1994) 209 ITR (Mad) wherein the Hon ble High Court held as under:- If it is true that confession statements had been obtained under coercion, the accused would not have simply kept quite without immediately or at least within a reasonable time retracting them. That is, retraction can be made only within a reasonable time. 7. The ld CIT(A) accordingly held that in view of the confessional statements and during the post search investigation by the ADIT, which was recorded on the date of search and subsequently, had evidentiary value, therefore, the existence of the undisclosed investment by the assessee as confessed, cannot be ruled out. The confessional statement being recorded u/s 132(4) of the Act and also being corroborated by the sworn statement recorded on oath of Sh Jagdish Panjwani, therefore, rightly relied upon by the AO and correctly made the basis for the impugned addition of undisclosed investment of ₹ 20 lakhs each in the hands of Sh Prakash Makhija and Sh Vijay Makhija. The retraction being general and vague, therefore, deserves to be ignored and was rejected. 8. During the course of hearing, the ld. AR submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, prayed that the addition of 20,00,000 so made by the ld. AO and confirmed by the ld. CIT (Appeals) may kindly be deleted. 9. The ld DR is heard who has vehemently argued the matter and has relied on the findings of the Assessing officer as well as ld CIT(A) which we have already noted above. 10. We have heard the rival contentions and purused the material available on the record. The assessee in his statement recorded u/s 132(4) during the course of search has admitted that he and his brother, Vijay Kumar Makhija had made an investment of ₹ 40,00,000 in the said mines and surrendered a sum of ₹ 20,00,000 each in his and Vijay Kumar Makhija's hands. The statement of Vijay Kumar Makhija was also recorded during post-search investigation u/s 131 wherein he has confirmed the surrender so made by his brother Prakash Makhija. Further, during the course of search, an original Ikarnama dated 17.09.2010 has been found which has been executed by Shri Jagdish Panjwani with the assessee, his brother Shri Vijay Makhija, and Kapil Marwah wherein the latter three persons have joined hands as partners in running of the mine owned by Shri Jagdish Panjwani and share of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 4 to 5 of Exhibit-1 of Annexure-AS is an agreement between Shri Ramesh Kumar Jain and Shri Prakash Makhija made an 16.09.2008 for purchase of house at 8/213, Swami Vivekanand Yojna, Kota. In this agreement the sale consideration of this property is clearly mentioned as ₹ 20,75,000/- and it is also mentioned that advance of ₹ 6,00,000/- given by the assessee. The assessee himself admitted of giving ₹ 6,00,000/- as advance to Shri Ramesh Kumar Jain. Therefore, the assessee has partly admitted this agreement. When the fact of advance is found to be correct then there is no reason to disbelief the remaining fact of this document. Moreover, Shri Ramesh Chand Jain in his statement on oath recorded u/s 131 on 09.11.2011 admitted that he managed the sale of this property from Shri Prahlad Mehra to Shri Vijay Makhija for a consideration of ₹ 20,75,000/- and received the commission of ₹ 8,000/- to ₹ 10,000/-. All these facts clearly prove that the actual sale consideration of this property was ₹ 20,75,000/- and not ₹ 8,90,000/- is taken as undisclosed investment of the assessee in purchase of house No. 8/213, Swami Vivekanand Yojna, Kota. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to show cause as to why the cost of the purchase of the house may not be taken at ₹ 20,75,000/-, as mentioned in the Agreement and the remaining amount of ₹ 12,25,000/- may not be treated as undisclosed investment. The assessee made elaborate submissions vide letter dated 18.03.2014, which are reproduced at pg Nos. 2 3 of the Assessment Order and it was contended that the amount of ₹ 12,25,000/- could not be treated as undisclosed investment. However, the learned assessing officer did not accept the submissions of the assessee and made an addition of ₹ 12,25,000/- as undisclosed investment. The ld. CIT(A) has confirmed the addition of ₹ 12,25,000/-. A perusal of the material referred to above will show that the addition of ₹ 12,25,000/- as undisclosed investment of the assessee is wrong. It is, therefore, prayed that the addition of ₹ 12,25,000/- so made by the ld. AO and confirmed by the ld. CIT (Appeals) may kindly be deleted. 16. We have heard the rival contentions and perused the material available on record. The assessee s brother Prakash Makhija in his statement recorded u/s 132(4) during the course of search has admitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
