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Income Tax Appellate Tribunal, ‘B’ (SMC
Before: SHRI A.MOHAN ALANKAMONY & SHRI DUVVURU RL REDDY
आदेश / O R D E R
Per A. Mohan Alankamony, AM:-
This appeal by the assessee is directed against the order
passed by the learned Commissioner of Income Tax(Appeals)-19,
Chennai, dated 27.10.2017 in ITA No.19/16-17 for the assessment
year 2009-10 passed U/s. 250(6) r.w.s. 143(3) of the Act.
The assessee has raised four grounds in his appeal however
the crux of the issue is that the Ld.CIT(A) has erred in confirming the
2 ITA No.2764/Chny/2017 addition made by the Ld.AO amounting to Rs.25,00,000/- towards
undisclosed income.
The brief facts of the case are that the assessee is an individual
earning income from salary, house property and other sources.
Consequent to search in the case of M/s. Apollo Group on
05.01.2016, the assessee’s case was reopened U/s.148 of the Act. In
response to notice U/s.148 of the Act, the assessee filed a letter on
01.06.2016, stating that the return U/s.139 of the Act may be treated
as return in response to the notice U/s.148 of the Act.
During the course of search action U/s.132 of the Act at the
assessee’s premises on 6.01.2016, a statement U/s.132(4) of the Act
was recorded wherein the assessee admitted that he had paid an
amount of Rs.25 lakhs for his son’s admission to a professional
course during the month of June 2008 from his unaccounted earning.
Based on the sworn statement, the Ld.AO made an addition of Rs.25
lakhs in the hands of the assessee. On appeal the Ld.CIT(A)
confirmed the order of Ld.AO by relying on the decision of the
following higher judiciary:- “Pullongode Rubber Produce Co Lid vs. State of Kerala (1973) 91 TTR 18 (SC) - An admission is an extremely important piece of evidence but it cannot be said
3 ITA No.2764/Chny/2017 that it is conclusive. It is open to the assessee who made the admission to show that it is incorrect.”
Nagubai Ammal vs. B Sharma Rao AIR 1956 SC 100 – “An admission is not conclusive as to the truth of the matters stated there-in. It is only a piece of evidence, the weigh to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue."
Sarwan Singh Rattan Singh vs. State of Punjab (1957) SC 637 – “In law it is always open to the court to convict an accused on its confession itself though he has retracted it at a later stage. Nevertheless usually courts require some corroboration to the confessional statement before convicting an accused person on such a statement. What amount of corroboration would be necessary in such a case would always be a question of fact to be determined in the light of the circumstances in his case.”
Narayan Bhagwantrao Gosavi Balajiwale vs. Gopal Vinayak Gosavi AIR 1960 SC 100 – “An admission is the best evidence than an opposite can rely upon and though not conclusive could be decisive of the matter, unless successfully withdrawn or proved erroneous.”
Avadh Kishore Dass vs. Ram Gopai AIR 1979 SC 861 – “Admission” “Evidentiary admissions” are not conclusive proof of the facts admitted and may be explained or shown to be wrong; but they do raise an estoppels and shift the burden of proof on to the person making them or his representative in interest. Unless shown or explained to be wrong, they are efficacious proof of the facts admitted.”
Before us the Ld.AR vehemently argued by stating that the
admission was made by the assessee out of duress and coercion and
not based on any materials having evidential value. He therefore
pleaded that the addition made by the Ld.AO may be deleted. The
Ld.AR further relied on various case laws more so in the decision of
the Hon’ble Jurisdictional High Court in the case CIT Vs. S. Khader
Khan Sons reported in 300 ITR 157 which was subsequently
4 ITA No.2764/Chny/2017 confirmed by the Hon’ble Apex Court. The Ld.DR on the other hand
relied on the orders of the Ld.Revenue Authorities and argued in support of the same.
We have heard the rival submissions and carefully perused the materials on record. From the facts of the case, it is apparent that the Ld.Revenue Authorities had made addition of Rs.25 lakhs in the
hands of the assessee only based on his admission. We fail to understand as to why the assessee has admitted Rs.25 lakhs as amount paid to his son’s admission from his undisclosed income
when there were no materials to suggest the same. The Ld.Revenue Authorities has also not gathered any evidence to substantiate the admission of the assessee. Further it is evident that the Ld.CIT(A) has relied on various decision of higher judiciaries wherein it was
categorically held that an admission is not a conclusive evidence and some collaborative evidence is further required to pin the assessee on the confession. In the case of the assessee there is no
corroborative evidence or any material to suggest that the assessee had paid Rs.25 lakhs out of his undisclosed income to secure admission for his son in a professional college. In this situation, the
decision relied by the Ld.AR is more appropriate. The Hon’ble
5 ITA No.2764/Chny/2017 Jurisdictional Madras High Court in the case CIT Vs. S. Khader Khan
Son cited supra, it was held that
“An admission is an extremely an important piece of evidence but it cannot be said that it is conclusive and it is open to the person who made the admission to show that it is incorrect. The word "may" used in section 133A(3)(iii) of the Act, viz., " record the statement of any person which may be useful for, or relevant to, any proceeding under this Act", makes it clear that the materials collected and the statement recorded during the survey under section 133A are not conclusive piece of evidence by themselves. the statement obtained under section 133A would not automatically bind upon the assessee. Section 133A does not empower any ITO to examine any person on oath. In contradistinction to the power under section 133A, section 132(4) enables the authorized officer to examine a person on oath and any statement made by such person during such examination can also be used in evidence under the Income- tax Act. On the other hand, whatever statement is recorded under section 133A is not given an evidentiary value. The statement obtained under section 133A would not automatically bind upon the assessee.” Further the Hon’ble Apex Court in the above case has dismissed the
appeal filed by the Revenue in Civil Appeal No.13224 of 2008 & 6747 of 2012 vide order dated 20th Sept, 2012 reported in 25 taxmann.com
413 (SC). Respectfully following the above decision of the Hon’ble
Jurisdictional High Court and the Hon’ble Apex Court and considering
the facts of the case of the assessee, we hereby hold that in the case
of the assessee, addition cannot be sustained because there are no
material evidence or any corroborative evidence to show that the
assessee had paid a sum of Rs.25 lakhs to secure his son’s admission
to professional course from his undisclosed income. Accordingly we
6 ITA No.2764/Chny/2017 hereby direct the Ld.AO to delete the addition made by the Ld.AO amounting to Rs.25 lakhs in the hands of the assessee.
In the result the appeal of the assessee is allowed.
Order pronounced on the 18th September, 2018 at Chennai.
Sd/- Sd/- (धु�वु� आर.एल रे�डी) (ए. मोहन अलंकामणी) ( Duvvuru RL Reddy ) ( A. Mohan Alankamony ) �या�यक सद�य /Judicial Member लेखा सद�य / Accountant Member चे�नई/Chennai, �दनांक/Dated 18th September, 2018 RSR आदेश क� ��त�ल�प अ�े�षत/Copy to: 1. अपीलाथ�/Appellant 2. ��यथ�/Respondent 3. आयकर आयु�त (अपील)/CIT(A) 4. आयकर आयु�त/CIT 5. �वभागीय ��त�न�ध/DR 6. गाड� फाईल/GF