TMI Blog2023 (3) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... of statement recorded which was subsequently retracted with evidence, no addition could be made in the absence of any other corroborative material with the Revenue. That such addition was simply on the basis of surmises and conjectures and thus unsustainable in law. Thus we hold that addition made of unexplained investment solely on the basis of admission of the assessee is unwarranted and direct the same to be deleted. Appeal of the assessee is allowed. - ITA No.26/RJT/2019 - - - Dated:- 16-12-2022 - Smt.Annapurna Gupta, Accountant Member And Smt. Madhumita Roy, Judicial Member, Judicial Member For the Assessee : None For the Revenue : Shri V.J. Boricha, ld.DR ORDER PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER Present appeal has been filed by the assessee against order passed by the ld.Commissioner of Income Tax (Appeals)-2, Rajkot [hereinafter referred to as the ld.CIT(A) ] dated 29.11.2018 passed under section 250(6) of the Income Tax Act, 1961 [hereinafter referred to as the Act for short] for the Asst.Year2014-15. 2. None appeared on behalf of the assessee. The assessee has filed an adjournment application stating that they require some more ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 70/- admitted by the assessee in his statement recorded. He accordingly contended that only 1/3rd share relating to the same had been returned to tax in the return of income filed by the assessee amounting to Rs.75,557/-.The AO however did not accept the contentions of the assessee stating that the assessee himself had admitted to the said quantum of investment in the statement recorded during survey and accordingly treated the remaining amount of Rs.3,76,667/- as unexplained investment, and brought the same to tax. 5. Before the ld.CIT(A) the assessee reiterated the contentions made before the AO . The assessee also pointed out this fact was brought to the notice of the AO also and had remained uncontroverted, but that at the same time the AO did not take note of the same and made addition on account of unexplained investment solely on the basis of admission made by the assessee in his statement recorded during the survey. The contention of the assessee in this regard are reproduced at para-5 of the CIT(A) s order as under: In the written submission assessee has contended that:- 12. At the outset, your appellant does not dispute the fact that he had made investment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. 19. Reliance is placed on the Decision of Hon. Gujarat HC in the matter of Commissioner of Income-tax, Rajkot -III v. M.P. Scrap Traders [2015] 60 taxmann.com 205 (Gujarat} wherein it has been held that when the A.O. had no other material and/or corroborative material to justijy additions except the confessional statement of assessee which was subsequently retracted, additions made by the A.O were to be deleted. It is my humble submission that the aforesaid decision is rendered by the Hon. Gujarat High Court in similar circumstances wherein a confessional statement was obtained from the assessee during a survey without any evidence which was retracted later on. The ratio of the said decision is squarely applicable to the present facts and therefore, the addition made by the A.O. deserves to be deleted. 20. Your appellant further relies on the decision of Hon. Gujarat HC in [2016] 72 taxmann.com 355 (Gujarat) Deputy Commissioner of Income Tax v. Narendra Card Ashok Garg (AOP) wherein also it was held that where assessee retracted from disclosure made in statement under section 132(4) which was not accepted by revenue, and if no undisclosed income was found durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retracted his statement to the extent of mistake found therein. - The assessee along with his three brothers has paid almost 18 Lacs as tax liability and interest after the survey. Obviously, the assessee along with his family has not shied away from making payment of due taxes. - In view of the above, it is patently clear that the assessee has not prepared any forged documentary evidence to avoid tax liabilities. b. All the three brothers accepted this disclosure during recording statement under oath - Statement recorded during the course of survey proceedings is not on oath - CIT v. S. Khader Khan Son [2012] 25 taxmann.com 413 (SQ - Your kind attention is drawn to Q. 7 of my statement PB Pg. 81 and Q. 3 of Statement of my brother Mr. Kamlesh Soni PB Pg. 84. On going through the same, it is clear that someone has written same answers to the question regarding the joint investment and got the statement signed from both of us. The tonality, language and even the words and punctuation marks are more or less same in both the cases. - All the three statements were recorded well beyond the midnight and hence cannot be considered to be voluntary - [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unaccounted investment of assessee to extent of his share was Rs.4,52,224/- pertaining to F.Y. 13-14. It is based on these evidences that the impugned addition has been made. During appellate proceeding the assessee has contended that after, peaceful perusal of the said document found during survey it was patently clearly that joint investment in the said property by 3 brother. was only Rs.2,26,670/- and assessee's share was only Rs.75,557/-. It is contended that the statement was recorded under duress and stress and such statement has no evidentiary value. Having considered facts and circumstances of the case I find that in the statement of assessee in the question 7 and answer to it, there is no reference to any specific document or any specific figure in the said document. It was voluntary submission of assessee that 3 brothers had jointly purchased the said property for Rs.13,56,670/-. Therefore the contentions that the statement was recorded under stress and duress has no merit. It is also noteworthy that the said document was not impounded during survey and therefore it is not subject to verification that the document which assessee is now referring are ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidences controverted the statement made by the assessee and nothing is brought on record by the Revenue to pin point any infirmity or falsity in thedocumentary evidence, then relying upon the statement of the assessee rejecting documentary evidence, is against all cannons of law and justice. In the present case, the assessee has, with evidence demonstrated actual investment made in the impugned property. No infirmity has been pointed out by the Revenue in the said documents. Therefore, statement recorded during survey can safely be stated to be retracted duly evidenced with documentary evidence, and in such circumstances, the statement of the assessee recorded u/s 133A of the Act carries no evidentiary value. The decisions cited by the Ld.Counsel for the assessee to the Ld.CIT(A), reproduced above, support our view. The Hon ble apex court in the case of CIT, Salem vs S. Kader Khan (2012) 25 taxmann.com 413(SC) has held that statement recorded u/s 133A of the Act has no evidentiary value and cannot be made basis of addition. Hon ble jurisdictional High Court in series of decisions has held that solely on the basis of statement recorded which was subsequently retracted with evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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