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Income Tax Appellate Tribunal, MUMBAI “I” BENCH, MUMBAI
Before: SHRI SHAILENDRA KUMAR YADAV, JUDICIAL & SHRI RAJESH KUMAR.
This appeal has been filed by assessee against the order of Commissioner of Income-Tax (Appeals)-I, Thane, dated 25.01.2012 for A.Y. 2008-09 on following ground:
“The learned CITA (I) Thane, has upheld the order of lower authority & confirmed the addition u/s.68 of Rs.30,00,000/- not proper.”
A.Y. 08-09 [Imteyaz Ahmed Khan vs. DCIT] Page 2
In this case, survey u/s.133A of the Act was carried out and certain incriminating documents were found. The statement of Shri Imteyaz Ahmed B Khan was recorded in respect of various discrepancies and incriminating material found during survey. Assessee disclosed an amount of Rs.80,00,000/- as undisclosed/unaccounted income and agreed to pay the taxes thereon. However, subsequently, he filed an affidavit admitting income of Rs.50,00,000/- only in the name of various family persons and filed the return of income accordingly. The income disclosed is as under:
Name Stock Machinery Adv. For shed Total Imteyaz Ahmed 5,00,000 4,84,000 - 09,84,000 Badruddin Khan (myself) Noorjahan Imteyaz 4,50,000 4,56,000 - 09,06,000 Khan (wife) Akmal Imteyaz 10,00,000 4,60,000 1,50,000 16,10,000 Khan (son) Ajmal Imteyaz 10,00,000 4,60,000 1,00,000 15,00,000 Khan (son) Total 29,50,000 18,00,000 2,50,000 50,00,000 Since income disclosed was less by Rs 30,00,000/-, Assessing Officer required the assessee to explain the same and also explain as to why the addition of Rs 30,00,000/- be not made. In this regard, assessee submitted that during the course of survey, due to pressure of circumstances and confusion, he had given a statement of undisclosed income of Rs.80,00,000/- over & above to the regular income but next day, when he thought with fresh mind, he found that whatever was accepted at the time of survey was only due to confusion / stressful mind and wrong calculation. He further A.Y. 08-09 [Imteyaz Ahmed Khan vs. DCIT] Page 3 submitted that his income including the income of family members worked out to Rs 50,00,000/- only over & above the regular income. The explanation of assessee was not found satisfactory by the Assessing Officer and he observed that assessee indirectly retracted the addition of Rs.30,00,000/- out of the admitted unaccounted income. Assessing Officer mentioned that statement u/s.133A was recorded voluntarily and without any coercion, threat or duress. The statement was recorded after a length of time during which various incriminating documents evidences and discrepancies found were confronted with the assessee. Only after confrontation of various discrepancies and incriminating materials, assessee admitted Rs.80,00,000/- as unaccounted income which cannot be said that the disclosure was made due to confusion and stressful mind. Accordingly, addition was made and same was confirmed by CIT(A).
Before us through written submission, assessee submitted that addition in question should be deleted and on the other hand, ld. Departmental Representative supported the orders of authorities below.
After going through rival submissions and material on record. We find that assessee and his family members were running the business of power looms at Bhiwandi. As stated above, department have taken the action u/s. 133A of Act and assessee made a declaration of income at Rs. 80,00,000/- over and above their regular income. The A.Y. 08-09 [Imteyaz Ahmed Khan vs. DCIT] Page 4 alleged addition has been made on the basis of loose paper, diaries etc., which was not provided to assessee. The stand of assessee has been that after survey, assessee filed affidavit before the Assessing Officer modifying his declaration restricted to Rs. 50,00,000/- inspite of Rs.80,00,000/-. It is undisputed fact that assessee has honored his disclosure of Rs.50,00,000/- out of Rs.80,00,000/- and tax thereon has been paid. Assessee has tried to modify his statement declaring not retract the same.
4.1 Regarding addition of Rs.18,88,182/- out of Rs.30,00,000/-, cheques had not been deposited in bank. Assessing Officer had option to call upon the concerned person and record the statement of them that no cash had been given to assessee, assessee declined such cash payment received from them. Regarding its assertion of assessee has not been looked in the light of his deposit and partial retraction which is not justified.
4.2 Regarding addition of Rs.11,65,500/-, the stand of assessee has been that there was agreement for purchases of plot and shed. Assessee purchased the said plot on behalf of those persons and build up the shed through him or through builder for them and money being supplied from those parties for the purpose to build up power loom. Such money being supplied by them being nearest relative of them for their future activity. In this situation, addition in hand of assessee was not justified. Clarification as deposed by A.Y. 08-09 [Imteyaz Ahmed Khan vs. DCIT] Page 5 assessee in its affidavit, which is not in dispute. The contents of affidavit should not be rejected without confronting the content of same to deponent which has not been done in this case. It is also not in dispute that assessee has honoured his declaration to the extent of Rs.50,00,000/- and paid tax thereon. Assessee has clarified its stand with regards to retraction as discussed above. It is settled law that assessee can retract from declaration partially or completely by given cogent reasoning for same. Cogent reasoning for partial retraction has been approved by us. Taking all facts and circumstances into consideration including owner of Rs.50,00,000/- out of Rs.80,00,000/- disclosure, addition of Rs.30,00,000/- is directed to be deleted as discussed above.
As a result, appeal filed by assessee is allowed.
Pronounced in the open Court on this the 28th day of June, 2016.