TMI Blog2021 (9) TMI 1223X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the course of search - even otherwise the assessee has shown that the Maruti Zen Car was purchased on 01.03.2005 and therefore, could not have been added in the hands of the assessee even otherwise for Assessment Year 2004-05. Thus no addition can be made in the case of concluded assessment pursuant to search in absence of any incriminating material. No incriminating material is shown to us by the learned departmental representative and not referred by the learned assessing officer in the assessment order. Addition on account of purchase of one Maruti car - HELD THAT:- As in the present case the learned assessing officer was having a power to make an addition based on examination of the return of income by the assessee. In the present case, the learned AO recorded the statement of the assessee on 11/12/2008 by issue of summons u/s 131 of the act - AO was having almost seven vehicles out of which the assessee could not give the adequate evidence with respect to the purchase of Maruti 800 car - AO made the addition of the above sum estimating the cost of the vehicle of ₹ 185,000. As before the lower authorities the assessee could not furnish any explanation with respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of ₹ 1,85,000/- in the hands of the assessee. 3. The brief facts of the case show that the assessee is an individual. A search and seizure operation was conducted on 12.12.2006 in case of the assessee along with other parties. Certain documents were found and therefore, proceedings u/s 153A was initiated. The notice was issued on 05.09.2008. on 21.10.2008 the assessee filed return of income declaring income of ₹ 7,02,000/- and no undisclosed income was shown in return. 4. During the course of assessment, statement on oath was recorded u/s 131 on 11.12.2018 wherein, the assessee was asked to furnish the details of vehicles maintained by him. The assessee submitted that it has several cars. The ld AO therefore presumed that the assessee is owner of the above vehicle. He therefore, held that Maruti 800 car is not available in the asset of the assessee and therefore, he estimated the cost of such vehicle for Assessment Year 2002-03 and therefore, made an addition of ₹ 1,85,000/-. The assessment order was passed on 29.12.2008. The assessee preferred an appeal before the ld CIT(A) who confirmed the above addition as assessee did not produce that the purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment proceedings and there is no reference of any incriminating material found during the course of search. Therefore, the issue is squarely covered in favour of the assessee by the decision of the honourable Delhi High Court in case of CIT versus Kabul Chawla 380 ITR 573. Furthermore, the fact also shows that the assessee has not purchased this vehicle during the impugned assessment year. Therefore, we reverse the order of the lower authorities and direct the ld AO to delete the addition of ₹ 1,85,000/- in the hands of the assessee because of unexplained investment on estimated basis of ₹ 1,85,000/- for purchase of Maruti 800 car. 7. The appeal of the assessee for Assessment Year 2003-04 in ITA No. 838/Del/2011 is allowed. Assessment year 2004 05 8. ITA No. 839/Del/2011 is for Assessment Year 2004-05 .This is appeal is filed by the assessee against the order of the ld CIT(A)-1, New Delhi dated 27.10.2010 for Assessment Year 2004-05 where the addition because of purchase of car is partly confirmed. 9. There is no change in the facts as stated in Assessment Year 2003-04 wherein, the addition has been made on the basis of statement on oath recorded on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted the order of the ld AO. 12. We have carefully considered the rival contentions and found that the addition has been made in the hands of the assessee based on statement recorded during the course of assessment proceedings. There is no reference of any incriminating material found during the course of search. Therefore, the issue is squarely covers in favour of the assessee by the decision of the Hon'ble Delhi High Court in case of CIT Vs. Kabul Chawla (supra) even otherwise the assessee has shown that the Maruti Zen Car was purchased on 01.03.2005 and therefore, could not have been added in the hands of the assessee even otherwise for Assessment Year 2004-05. Thus, respectfully following the decision of the honourable Delhi High Court that no addition can be made in the case of concluded assessment pursuant to search in absence of any incriminating material. No incriminating material is shown to us by the learned departmental representative and not referred by the learned assessing officer in the assessment order. Therefore, this addition deserves to be deleted. 13. Accordingly, The appeal for Assessment Year 2004-05 is allowed. Assessment year 2005 06 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te for issue of notice was available before the learned assessing officer till 30/9/2007 and therefore the assessment for assessment year 2005 06 was not a concluded assessment but abated assessment and the learned assessing officer could have made the addition in the hands of the assessee on the basis of material found during the course of search as well as on basis of inquiries made the return of income filed by the assessee. Therefore, in the present case the learned assessing officer was having a power to make an addition based on examination of the return of income by the assessee. In the present case, the learned AO recorded the statement of the assessee on 11/12/2008 by issue of summons u/s 131 of the act. The AO was having almost seven vehicles out of which the assessee could not give the adequate evidence with respect to the purchase of Maruti 800 car. Therefore, the learned assessing officer made the addition of the above sum estimating the cost of the vehicle of ₹ 185,000. As before the lower authorities the assessee could not furnish any explanation with respect to the source of the fund available for purchasing the above car, no evidences are also furnished bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t those are not agitated before us though raised in the grounds of appeal. In addition of ₹ 68,500 was also made on account of the Singapore tour of the son of the assessee Consequently the assessment order was passed on 29/12/2008 determining the total income of the assessee at ₹ 6,320,333/ . 23. Assessee preferred an appeal before the learned CIT A wherein the assessee was granted substantial relief however the addition to the extent of ₹ 15 lakhs which is disputed before us was confirmed. The learned CIT A deleted ₹ 18,500 out of the total addition of ₹ 68,500 on account of foreign tour of the minor son of the assessee. Therefore assessee is in appeal before us. 24. The learned authorised representative submitted that the addition has been made without any corroborative evidence found during the course of search. Even the flat which is alleged to be renovated was not purchased in the year Under reference but was purchased during the assessment year 2003 04, a fact which is stated in the income tax order of the assessee s wife Mrs Pooja Gotham assessed by the same officer. He submitted that the assessee staying in that flat since assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11/12/2008. The assessee once again confirmed the same. There is no evidence of any retraction made by the assessee. Merely because the assessee has not offered the above income in the return of income, it cannot be stated that the assessee has retracted the above statement. No evidences produced before us that the statement given by the assessee during the course of search as well as during the course of assessment proceedings was because of any threat/coercion. Therefore it can be merely an argument for deletion of the addition which needs to be brushed aside. 27. The learned CIT A has considered the arguments of learned authorised representative and decided the issue in paragraph number 9 of his order. He has also considered that why the addition has been deleted in the case of the wife of the assessee for the reason that assessee stated that he has financed the above expenditure. 28. There is no similarity between the facts of the case cited before us of the decision of the ordinary bench as well as of the honourable Gujarat High Court. In view of this, we do not find any infirmity in the orders of the lower authorities. 29. In view of this ground number 1 3 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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