ORDER : Harsha Devani, J. 1. By this appeal, the appellant - revenue has challenged the common order dated 19.03.2015 made by the Income Tax Appellate Tribunal by proposing the following three common questions : "[A] Whether the ITAT has erred in law and on facts in accepting the view of the assessee that the disclosure at the time of search had no basis even though the retraction was an afterthought? [B] Whether the ITAT has erred in law and on facts in deleting the addition of Rs. 2,87,75,583/- made on account of suppression of profits by the assessee company by way of client code modification by the broker (which is a group concern) in a large number of commodity transaction? [C] Whether the ITAT has erred in law in holding that the AO was not justified in invoking provisions of section 145(3) of the I.T. Act?" 2. As regards the proposed Question-A, during the course of search, the main person of the group Shri Nayan Thakkar had voluntarily admitted unaccounted income of Rs. 12,00,00,000/-vide his letter dated 10.04.2008, in which he gave a break up of Rs. 8,00,00,000/- on behalf of M/s. Kunwarji Finance Pvt. Ltd. and Rs. 4,00,00,000/- on behalf of individuals of the group like Nayan Thakkar, Chetan Thakkar and other group entities. When the assessee company filed returns of income for assessment year 2002-03 to assessment year 2007-08 in response to notice under section 153A of the Income Tax Act, 1961 and return under section 139 of the Act for assessment year 2008-09, it did not offer the unaccounted income disclosed during the search operation. Along with the returns, the assessee company filed affidavit retracting the earlier disclosure made by the Director of the Company. The Assessing Officer made addition on account of suppressed profit on account of Modification in Client Code in respect of assessment year 2005-06, 2006-07, 2007-08 and 2008-09 to the tune of Rs. 17,71,02,750/-. As the suppression of profits worked out for different years was arrived at Rs. 17.71 crores, which was in excess of the amount of Rs. 12,00,00,000/- disclosed by "Kunwarji Group" during the search proceedings, no separate addition was made on account of voluntary disclosure in the case of the assessee. 3. 17,71,02,750/-. As the suppression of profits worked out for different years was arrived at Rs. 17.71 crores, which was in excess of the amount of Rs. 12,00,00,000/- disclosed by "Kunwarji Group" during the search proceedings, no separate addition was made on account of voluntary disclosure in the case of the assessee. 3. In the appeal at the instance of the assessee, the Commissioner (Appeals) observed that there was no dispute that during the course of search, Shri Nayan Thakkar disclosed income of Rs. 12,00,00,000/- and this disclosure was subsequently confirmed by filing a letter wherein, the amount of disclosure was also bifurcated. However, upon consideration of all relevant facts, he found that when the statement of Shri Nayan Thakkar was being recorded during the course of search, no specific incriminating papers or documents were available and were confronted to him. As a matter of fact, voluminous records in the form of loose papers, documents, books of account and digital record were found and seized, the contents of which were never ascertained at the time of search, nor the assessee of the group were specifically informed about such contents. At the time of recording the statement under section 132(4) of the Act, the departmental authorities referred to Annexure-I, which was made the basis of disclosure. However, there seemed to be lack of clarity and uncertainty with respect to Annexure-A and subsequently, it was informed to the assessee that the said Annexure-I should be construed as Annexure-A, and that the said Annexure-A contained a list of 65 items of books/documents/papers. The Commissioner (Appeals) recorded that on the basis of Annexure-A, the statement under section 132 of the Act was recorded. However, the said Annexure was not made the basis of addition. The Commissioner (Appeals) found that the assessee company was never allowed adequate opportunity to inspect or go through voluminous seized records and even the copy of the statement recorded on 25th/26th March, 2008 was given to the assessee company on 20th March, 2009, after one year of the search. However, the said Annexure was not made the basis of addition. The Commissioner (Appeals) found that the assessee company was never allowed adequate opportunity to inspect or go through voluminous seized records and even the copy of the statement recorded on 25th/26th March, 2008 was given to the assessee company on 20th March, 2009, after one year of the search. The Commissioner (Appeals) also found that there was nothing on record to prove there that was any such irregularity, defect or mistake either in the record keeping or seized material and that during the course of entire assessment proceedings, the Assessing Officer has been unable to refer to any seized material, on the basis of which unaccounted income could be proved or established, which proved that whatever additions had been made by the Assessing Officer, were not based on any seized documents and the same were made on the basis of various data collected by the department from the commodity exchanges which reflected client code modifications. 4. The Tribunal, in the appeals preferred by the revenue, noted that in the assessment order, the Assessing Officer has not pointed out any defect or discrepancy in any of the seized documents from the business premises of the assessee. The addition made by the Assessing Officer is an account of Client Code Modification, which has also been computed on the basis of the information collected from the Commodity Exchange in post search inquiry. Thus, both the Tribunal and the Commissioner (Appeals) have found that except for the statement made by Shri Nayan Thakkar, which came to be subsequently retracted, there is no material on record to establish unaccounted income of Rs. 12,00,00,000/-. 5. Mr. M.R. Bhatt, Senior Advocate, learned counsel for the appellant, submitted that the statement of Mr. Nayan Thakkar was a voluntary statement which was followed by a letter showing bifurcation of the disclosed amount. Moreover, such statement had been made with the approval of other directors. The retraction is not made on affidavit, but along with the return of income. It was submitted that therefore, having regard to the statement made by main person of the assessee, which was reiterated by a letter issued subsequently, the Tribunal was not justified in holding that the disclosure made at the time of search had no basis. The retraction is not made on affidavit, but along with the return of income. It was submitted that therefore, having regard to the statement made by main person of the assessee, which was reiterated by a letter issued subsequently, the Tribunal was not justified in holding that the disclosure made at the time of search had no basis. In support of such submissions, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Commissioner of Customs (Preventive) v. Vijay Dashrath Patel, 2007 (3) GLR 2672, the decision of the Punjab and Haryana High Court in the case of Commissioner of Income Tax v. Lekh Raj Dhunna, (2012) 344 ITR 352 (P&H) and the decision of the Kerala High Court in the case of Commissioner of Income Tax v. O. Abdul Razak, (2013) 350 ITR 71 (Ker). 6. On the other hand, Mr. S.N. Soparkar, Senior Advocate, learned counsel for the respondents submitted that there is nothing on record to establish as to how the assessee has taken Rs. 12,00,00,000/- out of books. Referring to the findings recorded by the Commissioner (Appeals), it was pointed out that the statement under section 132(4) of the Act was made under duress. Upon retraction of the statement, no independent finding has been recorded by the Assessing Officer, nor is there any corroborative material to make the addition of Rs. 10,00,00,000/-. Reliance was placed upon the decisions of this court in the case of Deputy Commissioner of Income Tax v. Ratan Corporation, (2005) 145 Taxman 503 (Gujarat), in the case of Commissioner of Income Tax-IV v. Radhe Associates, (2013) 37 taxmann.com 336 (Gujarat) as well as in the case of Commissioner of Income Tax v. Chandrakumar Jethmal Kochar, (2015) 55 taxmann.com 292 (Gujarat). 7. Thus, while it is true that on behalf of the assessee Mr. Nayan Thakkar had admitted unaccounted income of Rs. 12,00,00,000/- which was subsequently reiterated by a letter dated 10.04.2008. However, the facts reveal that the statement had been recorded under circumstances which clearly disclose that the admission could not have been recorded voluntarily. The subsequent letter and the retraction which has been made much later have to be seen in the backdrop of the facts of the case, which clearly show that the relevant documents which were seized by the Department were not made available to the assessee for a long time. The subsequent letter and the retraction which has been made much later have to be seen in the backdrop of the facts of the case, which clearly show that the relevant documents which were seized by the Department were not made available to the assessee for a long time. Moreover, the Commissioner (Appeals) and the Tribunal have recorded concurrent findings of fact that the additions have no reference to the seized material and that there is no material or evidence to support the additions made by the Assessing Officer. In other words, the addition is sought to be made solely on the basis of the statement recorded under section 132(4) of the Act which has been subsequently retracted, without such statement being corroborated by any material on record. In the decisions on which reliance has been placed upon by the learned counsel for the appellant, the statement of the assessee, though subsequently retracted, was corroborated by the material seized during the search, whereas in the present case the Tribunal has recorded a categorical finding to the effect that in the assessment order, the Assessing Officer has not pointed out any defect or discrepancy in any of the documents seized from the business premises of the assessee and that the addition has been made only on account of client modification code. Under the circumstances, the conclusion arrived at by the Tribunal that the disclosure at the time of the search had no basis being based upon findings of fact recorded after appreciation of the material on record, does not give rise to any question of law. The ground of appeal raised vide question [A] is, therefore, rejected. 8. As regards proposed Question-B, having heard the learned counsel for the respective parties, the court is of the view that the same requires consideration, hence, Admit. The following substantial question of law arises for consideration: "Whether the Income Tax Appellate Tribunal has erred in law and on facts in deleting the addition of Rs. 2,87,75,583/- made by the Assessing Officer on account of suppression of profits by the assessee company by way of client code modification by the broker (which is a group concern) in a large number of commodity transactions?" It is clarified that Question-C stands included in Question-B.