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07-01-2019, A.M. Exports , Section 153A(1), 132, 153, 68, Tribunal Jaipur

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5 months 1 week ago #8294 by amit
Section - 153A(1), 132, 153, 68
Order Date - 07-01-2019
Favouring - Assessee
Court - Tribunal Jaipur
Appellant - DCIT
Respondent - A.M. Exports
Justice - VIJAY PAL RAO, JM & VIKRAM SINGH YADAV, AM
Citation - 119Taxpundit91
Appeal No. - ITA No. 561/JP/2018
Asstt. Year - 2010-11

Order

PER : VIJAY PAL RAO

This appeal by the evenue is directed against the order dated 21/02/2018 of ld. CIT(A)-4, Jaipur for the A.Y. 2010-11. The revenue has raised following grounds of appeal:

“(i) Whether on the facts and in the circumstances of the case the ld. CIT(A) was right in deciding that no addition can be made during assessment U/s 153A, in the absence of incriminating documents.

(ii) Whether on the facts and in the circumstances of the case, the Id. CIT(A) was right in deleting the addition of Rs. 4,82,00,000/- U/s 68 of the IT Act.”

The appellant craves, leave or reserves the right to amend, alter, add or forego any ground(s) at any time before or during the hearing of this appeal.”

2. The assessee is a partnership firm and engaged in the business of manufacturing and trading of gold and silver ornaments, precious/semi precious and coloured stones etc. The assessee filed its return of income U/s 139(1) of the Income Tax Act, 1961 (in short the Act) on 11/10/2010 declaring total income of Rs. 19,72,000/-. Subsequently there was a search and seizure action U/s 132 of the Act on 03/4/2013 at the business premises of the assessee. During the course of search from 03/04/2013 to 05/04/2013, statement of the assessee was recorded on three days. Even during the post search investigation, the statement of the assessee was again recorded on 30/5/2013. Consequently, the Assessing Officer issued notice U/s 153A of the Act and completed the reassessment by making the addition on account of loan taken by the assessee from 12 parties, total amounting to Rs. 4,82 00,000 - U/s 68 of the Act.

3. The assessee challenged the action of the Assessing Officer before the ld. CIT(A). The ld. CIT(A) deleted the addition made by the Assessing Officer on two aspects viz (i) there was no incriminating material either found or seized during the search and seizure action and further the assessee has established the claim of genuineness of the transaction, creditworthiness and identity of the creditors by producing the evidence.

4. Aggrieved by the order of the ld. CIT(A), the revenue has filed the present appeal.

5. Before us, the ld CIT-DR has submitted that during the statement recorded on oath U/s 132(4) of the Act, the managing partner Shri Mahendra Kumar Agarwal admitted to have received accommodation entries of loan. The ld CIT-DR has referred to the question No. 77 of the statement recorded U/s 132(4) of the Act on 04/4/2013, therefore, the admission of the assessee in the statement recorded U/s 132(4) is an admissible evidence for establishing the fact that the alleged loans were taken by the assessee as accommodation entries. The assessee has also explained that the loans were only book entries taken by it to adjust his unaccounted cash. Therefore, once the transaction itself was bogus deducted during the course of search, then the addition made by the Assessing Officer U/s 68 of the Act while completing assessment U/s 153A of the Act is justified. The ld CIT-DR has further contended that though the assessee has reiterated its earlier statement, however, the statement given on oath is an admissible evidence and the retraction of the assessee will not affect the evidentiary value of the statement. In support of his contention, he has relied upon the decision dated 13/5/2016 of the Hon’ble Jurisdictional High Court in the case of CIT vs Ravi Mathur in DBIT No. 67/2012 wherein the Hon'ble High Court has held that the statement recorded U/s 132(4) of the Act have great evidentiary value and it cannot be discarded by simply on the basis of the retracted statement given by the assessee. Further the payment of interest claimed by the assessee was

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