TMI Blog2022 (9) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... produced before the Bench despite the specific direction. We note that the search team has not found any cash, money and not other assets corroborating the said addition in the hands of the assesse. Therefore presumption of section 292CA of the Act cannot be applied in this case. So far as the another plea of the income tax authorities is concerned that the retraction was made only in the return of income, we are not satisfied with the said plea as the assessee has retracted the disclosure in the return of income itself and the case is supported by the decision of Co-ordinate Bench in the case of Shri Lalji Khimjibhai Patel [ 2019 (10) TMI 998 - ITAT RAJKOT] - Appeal of assessee Allowed. - I.T.A. No. 1447/Kol/2018 - - - Dated:- 30-8-2022 - Shri Sanjay Garg , Judicial Member And Shri Rajesh Kumar , Accountant Member For the Appellant : Shri K .M. Roy , CA For the Respondent : Md. Ghyas Uddin , CIT DR ORDER Per Shri Rajesh Kumar , AM : This is the appeal preferred by the assessee against the order of the Ld. Commissioner of Income Tax (Appeals), Central-I, Kolkata (hereinafter referred to as the Ld. CIT(A) ] dated 01.11.2013 for the AY 2010-11. 2. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not relate to him at alldespite the fact the disclosure annexure-05 of the disclosure petition was signed by the assessee also. 5. Aggrieved the assessee filed an appeal before the Ld. CIT(A) challenging the said addition of Rs. 1.00crore and the appeal of the assessee was partly allowed by ld. CIT(A) sustaining the addition to the tune of Rs. 89,02,110/- whereas the addition of Rs. 10,97,890/- was deleted. The assessee has challenged the said confirmation of addition of Rs. 89,02,110/- before us. The operative part of the Ld. CIT(A) is reproduced as under: 9. I have perused the assessment order. I have also considered the submissions of the assessee and the judicial decisions relied upon. I find that the facts are not disputed in this case. It is admitted that Shri Sambhunath Agarwal in his disclosure petition dated 14.11.2009 made total disclosure of Rs. 7.5 crores in the name of the family members which included disclosure of Rs. 1 crore on behalf of the assessee. It is also admitted that the assessee signed the schedule-5 containing admission of undisclosed income of Rs. 1 crore for the assessment year 2010-11 comprising commission income of Rs. 89,02,110/- and Misc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther ,the Ld. Counsel for the assessee also submitted that on the direction of the Bench on 23.12.2021, he visited the office of Ld. D.R. on 28.12.2021 at 12 O clock for inspection of file which was duly allowed by the Ld. D.R. however the said document was not found in the assessment folder which was also admitted by the Ld. D.R at the time of hearing of the case. The Ld. Counsel for the assessee submitted that the addition on the basis of document which was not even available with the department and department has expressed his inability to place the same before the Bench is wrong and against the provisions of the Act. The Ld. Counsel of the assessee submitted the search team has not found any money or assets or undisclosed expenditure justifying the said addition during the course of search proceedings and mere fact that the document was found in the post search proceedings would not be suffice to make the addition in the hands of the assessee as such documents represented the dumb document and therefore the presumption drawn by the authorities below u/s 292C of the Act that the document belonged to the assessee is not correct and the assessee has duly rebutted the said docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion receipt which was admitted by the assessee in the disclosure petition made by Shri Sombhunath Agarwal who is the key person of the group who disclosed Rs. 7.5 crores in the name of various family members including Rs. 1 crore in the hands of the assessee in the instant assessment year comprising of Rs. 89,02,110/- as commission income and miscellaneous and other income of Rs. 10,97,890/-. We also note that though it figured in the disclosure petition however the assessee did not disclose the said income in the income tax return filed in the instant assessment year and AO added the same to the income of the assessee on the ground that the disclosure was made which was also signed by the assessee on the basis of BSA/1 the seized document at the time of search. The Ld. CIT(A) confirmed the petition stating the same as rightly made by the AO on the basis of document BSA/1 on the presumption of Section 292C as the assessee has failed to discharge its onus qua the said document and the same belonged to the assessee only. Now the issue before us is whether the addition could be made on the basis of statement made by the key person of the group Shri Sombhunath Agarwal after approximate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being declaration against an interest are good evidence, but they are not conclusive, and a party is always at liberty to withdraw the admission by demonstrating that they are either mistaken or untrue. In law, the retracted confession even may form the legal basis of admission, if the AO is satisfied that it was true and was voluntarily made. But the basing the addition on a retracted declaration solely would not be safe. It is not a strict rule of law, but only rule of prudence. As a general rule, it is unsafe to rely upon a retracted confession without corroborative evidence. Due to this grey situation, CBDT has issued Circular No.286/2/2003 prohibiting the departmental officials from taking confession in the search. The CBDT is of the view that often the officials used to obtain confessions from the assessee and stop further recovery of the material. Such confessions have been retracted and then the addition could not withstand thescrutiny of the higher appellate authority, because no material was found supporting such addition. 14. In the light of the above, let us examine the facts. The stand of the assessee before the AO was that no incriminating material was found. Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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