SHRI SWATI ATIT AGARWAL,MUMBAI vs. DCIT CC-5(2), MUMBAI

Before us, the Ld. counsel for the assessee submits that nothing incriminating was found during the course of search and the only addition pertains to cash deposited in the bank account which was reflected in the Annual Information Return (AIR) and on the basis of which, the statement of the appellant and her father-in-law Shri Omprakash Agarwal was recorded u/s 132(4) of the Act. It is argued that the evidence of cash deposited in the bank account and the Smt. Swati Atit Agarwal 3 & 2605/Mum/2018 statement recorded did not constitute incriminating evidence. Further, it is contended that on the date of search i.e. on 26.11.2014, the time limit for issue of notice u/s 143(2) of the Act had expired and no notice u/s 148 was issued before the initiation of search and therefore, the return processed u/s 143(1) had attend finality. Thus it is argued that the assessment can only be made if incriminating documents were found in the course of search. In this regard reliance is placed by him on the decision in CIT v. SKS Ispat & Power Ltd. (ITA No.1874 of 2014 & 58 of 2015) (Bom.), CIT v. Raj Pal Bhatia (2011) 10 taxman.com 191 (Delhi), Pr. CIT v. Best Infrastructure (India) Pvt. Ltd (2017-TIOL-1496- DEL-IT), & CIT v. RRJ Securities Ltd (2015), 62 taxmann.com 391 (Delhi).

Smt. Swati Atit Agarwal 4 & 2605/Mum/2018 Thus the Ld. DR explains that there was incriminating material before the AO to make an assessment u/s 153A and thus the order passed by the Ld. CIT(A) on the above issue be affirmed.

Here, we discuss the case laws relied on by the Ld. counsel. In SKS Ispat & Power Ltd (supra), it is held that section 153A does not make any distinction between the assessment conducted u/s.143(1) & 143(3) of the Act. Further, it is held that the scope of assessment after search u/s.153A would be limited to the incriminating evidence found during the search and no further.

In Raj Pal Bhatia (supra), it is held that the statement recorded during the course of search would not qualify the expression ‘documents’ having been seized during search.

In Best Infrastructure India Pvt. Ltd (supra), it is held that statements recorded u/s.132(4), by themselves do not constitute incriminating materials and when there was no incriminating materials found during course of search, assumption of jurisdiction by revenue authorities u/s.153A is unsustainable.

In RRJ Securities Ltd. (supra), it is held that where in the course of search carried out at premises of Chartered Accountant, a hard disk containing working papers belonging to assessee was seized, since said disk did not contain any incriminating material, rather it supported

Smt. Swati Atit Agarwal 5 & 2605/Mum/2018 returns filed by assessee, proceedings u/s.153C could not be initiated against the assessee on the basis of said hard disk.

6.1 We abide by the ratio laid down in the above case laws. Only we have to see the application of the above ratio to the instant case.

As mentioned earlier, it was found during the course of search that cash deposits were made in the bank account No. 00851000059396 of the assessee in HDFC Bank at Colaba Branch. The dates of such cash deposits are as under :

Date of Deposit Amount (Rs.) 04.02.2011 4,00,000 31.03.2012 3,00,000 22.03.2012 2,50,000 30.03.2012 8,00,000

Total 17,50,000 Subsequently, statement of the assessee was recorded u/s 132(4) of the Act on 28.11.2014. She was shown the bank statement reflecting the cash deposits amounting to Rs.17,50,000/- and was asked to explain the source of these cash deposits. In response to it, she stated that her father-in-law Shri Omprakash Agarwal was the right person to answer the question. Shri Omprakash Agarwal, the CFO of the Responsive group was confronted with the statement of the assessee. Even Shri Agarwal was not able to explain the source of cash deposits of Rs.17,50,000/- in Smt. Swati Atit Agarwal 6 & 2605/Mum/2018 the account of the assessee. Shri Agarwal in his statement recorded u/s 132(4) on 29.11.2014 admitted that he was unable to explain the same and accordingly, offered the cash deposits of Rs.17,50,000/- as income in the hands of the assessee during the respective financial years.

The statement of Shri Agarwal was shown to the assessee, and her statement was recorded again on 29.11.2014 u/s 132(4) of the Act. The assessee admitted that Rs.17,50,000/- cash deposited in her account was out of unexplained sources. Two month later, statement of Shri Agarwal was again recorded u/s 132(4) on 21.01.2015. Shri Agarwal once again accepted that the cash deposit of Rs.17,50,000/- in the account of the assessee was unaccounted income and would be offered to tax in the relevant financial years.

Thus, the instant case is distinguishable on facts from the above case laws relied on by the ld. counsel.

6.2 In order to appreciate the above issues in proper perspectives, we reproduce below the relevant extracts of the statements recorded u/s.132(4) of the Act.

In the statement dated 28.11.2014 recorded u/s.132(4) on oath, the assessee in response to question no.13 has replied as under:

“Q.13 On perusal of the bank statement, it is seen that there are actual cash deposit of Rs.17,00,000/- (since there are repetition of entry at Sr. no. 5,6 & 7 of above table) on various dates during the F.Y. 2010-2011 and 2011-12. In this connection, you are requested to explain the source of cash deposits of Rs.17,00,000/-.

Smt. Swati Atit Agarwal 7 & 2605/Mum/2018 Ans: Sir, I am not able to explain the source of above cash deposit of Rs.17,00,000/-. My father in law is the right person to answer the above question.”

In this statement dated 29.11.2014 recorded u/s.132(4) on oath, Shri Omprakash Agarwal in response to Question No.42 & 43, has stated as under:

“Q.42 I am showing you the statement of Mrs. Swati Atit Agarwal recorded u/s.132(4) of the I.T. Act, 1961 on 28.11.2014. Please go through the same and confirm.

Ans: Sir, I do not remember the same. I will verify the books of account and produce the details in 15 days.

Q.43 On being asked about the cash deposit amounting to Rs.17,50,000/- deposited in her account during the F.Y. 2010-11 & 2011-12, she has stated that she is a housewife and she is not aware of cash deposits in her account. As per her statement you will be able to give explanation with regard to the cash deposits made in her account. You are requested to explain the same.

Ans: Sir, I have gone through the statement of Mrs. Swati Atit Agarwal and also gone through the account maintained in the office. I am unable to explain the same since the deposit was made 3 years back. Thus, this deposit of Rs.17,50,000/- is offered as income in the hands of Mrs. Swati Atit Agarwal during the respective financial years.”

In this statement dated 29.11.2014 recorded u/s.132(4) on oath, the assessee further stated in response to Question no.2 that :

“Q.2 In response to Q no 18 of your statement dt 28-11-2014, you have replied that your Father in law i.e Shri O P Agarwal will be the right person to answer the source of cash deposit of Rs.17,00,000/- made in your bank

Smt. Swati Atit Agarwal 8 & 2605/Mum/2018 account. I am showing you the statement of Shri O P Agarwal taken at the office premises, wherein he has admitted that the deposit of Rs.17,00,000/- is out of unexplained sources. Kindly offer your explanation?

Ans: Sir, have gone through the statement of Shri O P Agarwal. I am not able to explain the source of above cash deposit of Rs.17,00,000/-. I admit that the above money deposited is out of unexplained sources.”

Also in this statement dated 21.01.2015, recorded u/s.132(4) on oath, Shri Omprakash Agarwal has stated in response to Question no.4 & 5 that:

“Q.4 You are being shown certain bank statement seized from this premise as Annexure A1 loose paper folders Pages 1-56. Kindly confirm the same and explain the contents therein and specifically page No. 32 & 33.

Ans: I confirm that I have been shown certain bank statement seized from this premises as Annexure A1 loose paper folders Pages 1-56. The said bank statement pertains to Ms. Swati Agarwal. The bank statements pertains to her bank account held with HDFC Bank (A/C. No. 00851000059396) for the period 01.03.2010 to 19.06.2014. Page No. 57 is the Bank reconciliation statement of Ms. Swati Agarwal for the period 01.04.2013 to 31.03.2014. The page No. 32 & 33 contains bank statement for the period 04.02.2011 to 01.04.2012. In this bank statement there are cash deposit amount to Rs.17,50,000/-.

Q.5 Please confirm it the above cash deposit is reflected in the books of account. If yes, please produce the evidence of the same.

Ans: Sir, the above cash deposit is not reflected in the books of account of my daughter-in-law Ms. Swati Atit Agarwal. In my statement dated 29.11.2014 I

Smt. Swati Atit Agarwal 9 & 2605/Mum/2018 have already offered Rs.17.5 lakhs as income in the hands of Ms. Swati Atit Agarwal during the respective financial years.”

6.3 The question arises what constitutes ‘incriminating materials’. In Merriam Webster Dictionary, ‘incriminate’ also means to charge with or show evidence or proof of involvement in a fault.

Thus, as evident from above, there was incriminating materials before the AO to initiate proceedings by issuing notice u/s 153A and then frame an assessment. Therefore, we affirm the order of the Ld. CIT(A) on the above ground of appeal. Thus, the 1st ground of appeal is dismissed.

Smt. Swati Atit Agarwal 10 & 2605/Mum/2018 in the bank account with HDFC Bank, Colaba Branch. There was a cash withdrawal of Rs.5,00,000/- on 25.10.2010 and it was the same cash out of which Rs.4,00,000/- was again deposited on 04.02.2011. Similarly, as regards Rs.13,50,000/- in the FY 2011-12, it was submitted that the assessee had an opening cash balance of Rs.9,55,602/-, an amount of Rs.2,00,000/- was received from Shri Rishabh Agarwal by account payee cheque as loan which was deposited in the same bank account with HDFC Bank and was withdrawn on the same date. On 29.02.2012, an amount of Rs.5,77,700/- was received from M/s Gaurishankar Investment Pvt. Ltd. by account payee cheque towards the repayment of loan given. Thereafter, there was a cash withdrawl of Rs.5,75,000/- on 01.03.2012 and there was a cash balance available of Rs.14,20,397/-. It is out of this cash balance of Rs.2,50,000/-, Rs.3,00,000/- and Rs.8,00,000/- were again deposited on 22.03.2012, 30.03.2012 and 31.03.2012.

However, the AO was not convinced with the above explanation of the assessee for the reason that prior to the withdrawal of Rs.5,00,000/- on 25.10.2010, the assessee had already withdrawn cash of Rs.9,00,000/- and Rs.2,00,000/- on 14.10.2010 and 15.10.2010 respectively. Thus there was a cash withdrawal of Rs.16,00,000/- in the month of October 2010. As compared to the opening balance in the cash book of Rs.42,500/- as on 01.04.2010, the assessee did not withdraw even a single rupee from 01.04.2010 to 14.10.2010. Almost the entire withdrawal of cash in FY 2010-11 was made only in the month of October 2010. Similarly, prior to the withdrawal of this Rs.2,00,000/- on Smt. Swati Atit Agarwal 11 & 2605/Mum/2018 07.12.2011, the assessee had a cash balance of Rs.6,43,602/-. Therefore, the AO came to finding that the assessee was having cash balance of Rs.8,45,396/- on 31.12.2011. The reasons given by the assessee before the AO for keeping such amount of cash at her disposal were that she had received the possession of flat in Pune in December 2010 and the cash was withdrawn for the purpose of the interior work on the said property. It was further stated before the AO that this work could not be done, therefore, the excess cash was re-deposited in the bank account. However, the AO was not convinced with the said explanation of the assessee for the reason that it was highly unusual for someone to keep idle cash for such a long period and not earn any interest by keeping it in the bank. In FY 2010-11, the deposit of the cash of Rs.4,00,000/- on 03.02.2011 was followed by the issuance of cheque of Rs.7,50,000/- on the same day to her husband Shri Atit Agarwal. Similarly, in FY 2011-12, the cash deposits on 22.03.2011, 30.03.2011 and 31.03.2011 were followed by issuance of cheque either to Shri Atit Agarwal as loan repayment or as share application money to M/s Mavi Business Ventures Ltd. The AO noted that it is the trend of issuance of cheque which is preceded by the deposit of cash on the same date which points towards the fact that the assessee had deposited her unaccounted cash in the bank account. Regarding the retraction statement filed by the assessee and Shri Omprakash Agarwal on 14.09.2016, the AO observed that the retraction was more than 18 months after the recording of statement u/s 132(4) of the Act and there was no evidence of pressure or coercion while recording the statement in December 2014.

Smt. Swati Atit Agarwal 12 & 2605/Mum/2018 Because of the above facts, the AO made an addition of Rs.4,00,000/- in AY 2011-12 and Rs.13,50,000/- in AY 2012-13.

Further, it is observed by the Ld. CIT(A) that Shri Agarwal had a direct involvement with M/s Ananya Impex Pvt. Ltd. and its books of accounts were certified by Shri K.K. Kedia, auditors of M/s Ananya Impex Pvt. Ltd., without any actual verification on the direction of Shri Omprakash Agarwal. It is also noted by the Ld. CIT(A) that cash on hand as per the books was Rs.1,82,57,353/- but actual cash found was a meagre amount of Rs.11,84,590/-. A group concern M/s Krishiraj had claimed exempt income of Rs.81,07,60,078/- primarily on account of capital gains on sale of shares of M/s Responsive Industries Ltd. It was found and admitted by Shri Omprakash Agarwal that the gains were short term capital gains and not exempt. Certain cash on hand deals and gain on sale of shares were offered as additional income.

During the course of appellate proceedings, the Ld. CIT(A) put a query to the assessee regarding the assessment and appellate orders in Smt. Swati Atit Agarwal 13 & 2605/Mum/2018 respect of these entities and he was informed that these were subject matter of application before the Income Tax Settlement Commission.

The Ld. CIT(A) further observed that the assessee clearly admitted in her statement recorded that she is a sleeping director in the group concerns and it is her father-in-law, who can explain the cash deposits in her bank account (Ref. Q.10 & 13 of the statement of the assessee recorded on 28.11.2014). Though the appellant has been filing tax returns, no balance sheet was prepared nor were books of account audited. It is further observed by him that since balance sheets are not prepared and books of accounts are not audited, the veracity and explanation of deposits cannot be explained.

The Ld. CIT(A) has further mentioned that as per the cash book, the cash on hand with the assessee as on the date of search on 26.11.2014 was Rs.6,14,437/-. The total cash found from the residence of the assessee, which includes her husband and father-in-law also was only Rs.1,86,070/- as seen from the copy of panchnama and inventory dated 26.11.2014. Thus the cash book is not reliable. Also the assessee failed to file any evidence to corroborate where cash was kept and purpose of cash withdrawals.

Finally, the Ld. CIT(A) observed that the plea that the statement of admission in the courses of search was given under pressure is unbelievable since it was confirmed even as late as 21.01.2015 in the statement recorded, which is clearly two months after the date of search. Further, Shri Omprakash Agarwal has admitted that the source cannot be explained and offered the same in the hands of the assessee

Smt. Swati Atit Agarwal 14 & 2605/Mum/2018 after verification of books of accounts (Q.43 of his statement recorded on 29.11.2014 and Q.5 of his statement recorded on 21.01.2015).

In view of the above reasons, the Ld. CIT(A) dismissed the 2nd ground of appeal.

10. Before us, the Ld. counsel submits that statement u/s 132(4) in the present case has been recorded solely on AIR information and contended that such statement has no evidentiary value. It is further argued that addition cannot be based on mere statement recorded u/s 132(4) of the Act. It is explained that the transactions were nearly three years prior to the date of search and hence, the assessee could not recollect the source of cash deposits at that point of time and the offer of income was merely to buy peace of mind. It is further explained that the books of accounts were maintained in the Tally ERP System which was seized during the course of search and all the cash transactions were reflected in the bank statement and cash books of the appellant. It is further stated that the statement was recorded under gross misunderstanding, duress and mental pressure.

The ld. counsel relied on the decision in CIT v. Ramanbhai Patel (TA No.207, 208 & 210 of 2008), Chetnaben J. Shah v. ITO (TA No.1437 of 2007) and the CBDT Circular dated 18.12.2014.

The Ld. counsel states that in the submission filed on 04.11.2016 the assessee had explained that she had received Rs.5,55,000/- from M/s Wellknown Business Ventures Pvt. Ltd. towards dividend on 19.10.2010 in HDFC Bank, Colaba Branch and the details are as under :

Smt. Swati Atit Agarwal 15 & 2605/Mum/2018 Date Withdrawal Deposit Remarks 19.10.2010 5,55,000 Received Dividend from Wellknown Business Ventures Pvt. Ltd. 25.10.2010 5,00,000 Withdrawn for the purpose of interior decoration of Pune flat. 03.02.2011 4,00,000 Funds withdrawn for Pune flat were not utilized and therefore deposited back in bank account. 04.02.2011 7,50,000 Advanced to Atit Agarwal.

The Ld. counsel submits that the cash books was available in the Tally Account seized during the search, which corroborates the explanation and as such cannot be ignored.

At this moment, we discuss the case laws relied on by the ld. counsel. In Ramanbhai B Patel (supra), it is held that the finding of the Tribunal that the admission made by the assessee is not a conclusive proof and such admission can be used as an evidence unless it is not retracted, is correct.

In Chetnaben J Shah (supra), it is held that addition to the income cannot be made merely based on speculation and it should be justified with some material substance.

Smt. Swati Atit Agarwal 16 & 2605/Mum/2018 In Circular dated 18.12.2014, the CBDT has emphasized upon the need to focus on gathering evidences during search/survey and to strictly avoid obtaining admission of undisclosed income under coercion/undue influence.

We abide by the ratio laid down in the above case laws. Only we have to see the application of the above ratio to the instant case.

12.1 In the instant case, the statements recorded u/s.132(4) on oath from the assessee and Shri Omprakash Agarwal invariably contain the following:

Whatever stated above is true and correct to the best of my knowledge and belief. The above statement is given by me voluntarily, without any force, threat, coercion, any inducement, promise, or any other undue influence was brought to bear on me. I further affirm that oath was administered to me before recording the statement. Further, I declare that I have read, understood its contents and of agreeing that it had been correctly recorded.

The search and seizure action took place on 26.11.2014. The retraction statements were filed by the assessee and Shri Omprakash Agarwal on 14.09.2016, which is more than 18 months after the recording of the statement in December 2014. Thus there has been laches on the part of the assesses as well as Shri Omprakash Agarwal in retracting the statement.

The plea of the assessee that statement of admission in the course of search was under pressure is not tenable for the reason that the same was confirmed even as late as 21.01.2015 in the statement recorded,

Smt. Swati Atit Agarwal 17 & 2605/Mum/2018 which is nearly two months after the date of search. As per Q. 43 of his statement recorded on 29.11.2014 and Q.5 of his statement recorded on 21.01.2015, Shri Omprakash Agarwal has admitted that the source cannot be explained and offered the same in the hands of the assessee after verification of the books of accounts.

Section 132(4) authorizes a search officer to record a statement on oath. Such statement has evidentiary value. But where the assessee tries to retract from the same, he has to establish it. The Hon’ble Supreme Court in Pullangode Rubber Produce Co. Ltd v. State of Kerala (1973) 91 ITR 18 (SC), has pointed out that an admission is an extremely important piece of evidence, though it cannot be conclusive.

In view of the above facts and position of law, the contentions of the assessee vide retraction that the statement of admission in the course of search was given under mental pressure and duress is rejected.

Also the contentions of the Ld. counsel that the books of accounts were maintained in Tally ERP System which was seized during the course of search and all the cash transactions were reflected in the bank statements and cash book of the appellant need examination.

Smt. Swati Atit Agarwal 18 & 2605/Mum/2018 A proper hearing must always include a fair opportunity to those who are parties in the controversy for correcting or contradicting anything prejudicial to their view. Cross-examination is allowed by procedural rules and evidently also by the rules of natural justice. Any witness who has been sworn on behalf of any party is liable to be cross- examined on behalf of the other party to the proceedings.

The Hon'ble Supreme Court in State of Kerala vs. K.T. Shaduli Grocery Dealer AIR 1977 SC 1627, recognised the importance of oral evidence by holding that the opportunity to prove the correctness or completeness of the return necessarily carry with it the right to examine witnesses and that includes equally the right to cross-examine witnesses.

Therefore, to arrive at a proper finding, we set aside the order of the Ld. CIT(A) in respect of addition of Rs.4,00,000/- in AY 2011-12 and Rs.13,50,000/- in AY 2012-13 and restore the matter to the file of the AO to make an order afresh after providing the relevant seized materials and giving reasonable opportunity of being heard to the assessee. To address the grievance of the assessee, the AO may give opportunity of cross examination in suitable cases. We direct the assessee to file the relevant documents/evidence before the AO. Thus the 2nd ground of appeal is partly allowed for statistical purposes.

13.1 Facts being identical, our decision for the AY 2011-12 applies mutatis mutandis to AY 2012-13.

Smt. Swati Atit Agarwal 19 & 2605/Mum/2018 14. In the result, the appeals are partly allowed for statistical purposes.