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TMI Blog2025 (5) TMI 352X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. 3. That the said addition of Rs. 10,05,000/- is wholly inconsistent with the facts of the case on record and has been made without appreciating the same. 4. That the learned AO has erred in law and on facts in making the said addition of Rs. 10,05,000/- in an arbitrary manner. 5. That the impugned assessment is contrary to provisions of law and principles of natural justice equity and fair play. 6. That the assessee craves leave to modify any grounds of appeal herein before or take additional ground(s) during pendency of this appeal." (2) In this case, assessment order dated 28.12.2017 was passed by the Assessing Officer, under section 143(3) of the Income Tax Act, 1961 ("the Act", for short) whereby assessee's total income was determined at Rs. 47,01,960/- (Rounded off to Rs. 47,01,960/-) as against returned income of Rs. 36,96,955/-. This case pertains to Shri Deepak Kothari Group of cases in which search under section 132 of the Act was carried out on 16.12.2015. At the time of search at residential premises of the assessee, items of jewellery were found in addition to silver bars of the value of Rs. 10,05,000/-. The Assessing Officer accepted the assessee's ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o his younger' brother Shri Shatrushan Man Singh were recorded u/s 132(4) of the Income Tax Act, 1961 on 16/12/2015, Copy of the aforesaid statements are enclosed as Annexure and Annexure-2 respectively. 3. That during the course of search cash aggregating to Rs. 346,85,400/- together with jewellery and silver bars were allegedly fund from the possession of the assessee at his residence, 4. The assessee in his statement u/s 132/d) stated that they are allowing six brother staying in a joint family at the aforesaid/searched residence i Jagdish Naravan ii Dines Mapsingh (assessee) iii. Sharvan Kumar iv, Rajendra Kumar v, Bharath lal vi, Shatrughan Lal Man Singh (the other searched person) (Kindly refer Q & A NO.2) That assessee also explained that the jeweller belongs to various family members but-way kept in his custody by them, as he is the head o the family, and is duly recorded in the Wealth Tax Return of respective family members (kind] refer Q & A 9). The assessee in response stated that the silver bars weighting 30 Kg were not disclosed in the Wealth Tax Return, In response to Q & A No, 10 the assessee explained that source of cash will be explained by his y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n u/s 132(4A) has been resolved by the Hon'ble Supreme Court in the case of P.R Metrani v, CIT (2006) 287 ITR 209 by pointing out that the presumption for seizure u/s 132(4A) is a rebuttable one, since the expression used is "may be presumed". Further the Hon'ble Apex Court has held that since section 132 is a self contained code confined search and seizure, the presumption for purpose of seizure cannot be held good for a regular assessment, there is no provision in the statue to carry over such presumption to a regular assessment. Your kindself will further appreciate that where a search u/s 132(1) of the Act is made on a premises occupied by several individual person of a family staying jointly, it is generally a practice to make surrender of undisclosed income/assets in case of one person assessee in statement recorded u/s 132(4) to avoid pletharo of cases and this practice s also generally accepted by the department. In the present case too surrender of income was made by Shatrughan Man Singh considering all assets found and it was the manner and inadvertent lack of clarity in which statement u/s 1 32(4) was recorded that the confusion has arisen. It is also a fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. vs, State of Kerala 91 ITR 18 have held that it would be open to the assessee making admission to show that it is incorrect. (ii) Separate additions cannot be made by assessing officer on account of investment in moveable property, source of which was already subjected to tax, even if the addition was made on the basis of statement of assessee recorded by ADI ws 132(4). -Dy. CIT vs, Sanmukhdas Wadhwani 85 ITD 734 (Nag). (iii) Decision of Hon'ble (ITAT Jabalpur Bench in the case of ACIT v, Satyapal Wassan (2007) 295 ITR (AT) 352. In the aforesaid case while deciding on presumption and its rebuttal the Hon'ble ITAT held as follows: "That the document was bereft of necessary details about the year of transaction, ownership, nature of transaction, necessary code for deciphering the figures. The Assessing Officer presumed that the transaction belonged to the financial year 1988-89 relevant to the assessment year 1959-90, that the figures mentioned in the document were advances made by the assessee, that the transaction belonged to the assessee, and that the transactions were in a code of Lakhs and that the unit was the rupee. The Assessing Officer did not carry out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ownership of such Silver Bars. Moreover, at the time of surrender nowhere the ownership of Silver Bars were stated by Shri Satrughan Man Singh. Shri Satrughan Man Singh clearly explained the sources of income what he had surrendered. There is no mentioned in of these Silver Bars Silver Bars were found from the ownership of the appellant, it can be safely presumed that ownership of Silver Bar belongs to the appellant and it was the duty of the appellant to substantiate its source of acquisition with cogent evidence. In the present factual matrix of the case, appellant has failed to do so. Therefore, submission of Id, A.R, lack merit at this score. Further, the contention that in the assessment proceedings of his brother A.O, has accepted the Silver Bars owned by Shri Satrughan Man Singh is totally baseless and incorrect because, if A.O. had accepted such Silver Bars explained in the hands of Shri Satrughan Man Singh then certainly A.O. will not add the same: in the hands of appellant. It would be most - important to mention here that A.O. for the both the brother is same. Therefore, it appears, Id. A.R. tried to create an story to deviate the revenue from real facts. All submissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Commissioner of Income Tax (OSD)-II, Central Circle-7, Mumbai (2017) 88 Taxmann.com 408 15 Copy of decision of Hon'ble ITAT Bench Bangalore in the case of Gopal S. Pandith vs Deputy Commissioner of Income Tax Central Circle, Mangalore (2016) 74 Taxmann.com 273 16 Copy of decision in the case of Sri Satyapal Wassan L/H Sri Naresh vs ACIT (2007) 295 ITR (AT) 352. (2.3) At the time of hearing before us, the Ld. Counsel for the assessee repeated the same submissions and arguments as were raised by the assessee in the course of appellate proceedings in the office of the Ld. CIT(A). Further, he placed reliance on the paper books [already mentioned in foregoing paragraph no. (2.2) of this order]. The Ld. Departmental Representative strongly relied on the assessment order as well as impugned appellate order of the Ld. CIT(A). In particular, he drew our attention to the following portion of the order of the Ld.CIT(A) which is reproduced below for the ease of reference:- "5.3 The undersigned has carefully gone through the assessment order, written submission as well as verbal arguments of the Id. A.R. It is seen that A.O. added Rs. 10,50,000/- as unexplained investment in Sil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion that A.O. has correctly made the addition in respect of Silver Bars, which is hereby confirmed. Grounds of appeal of the appellant are dismissed." (3) We have heard both sides. We have perused the materials available on record. It is not in dispute that silver bars valued at Rs. 10,05,000/- were found at the residential premises of the assessee, at the time of search under section 132(4) of the Act. It is also not in dispute that the aforesaid silver bars have not been disclosed in Wealth Tax Returns of either the assessee or any of his family members. Further, the claim of the assessee that the aforesaid silver bars should be considered as part of disclosure of Rs. 5 Cr. made by the assessee's brother Shri Satrughan Man Singh, is based on affidavit of assessee's brother (Shri Satrughan Man Singh) made on 05.12.2017 which is after substantial lapse of time since date of search. However, neither the assessee nor his brother Shri Satrughan Man singh in his earlier statements made any mention of the aforesaid silver bars being either owned by the assessee's brother or being part of the aforesaid disclosure of Rs. 5 Cr. There is no supporting evidence for the claim that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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