2014 (4) TMI 124 - HC - Income Tax

Reliability of statement u/s 133A of the Act Statement recorded on oath cash receipts had been suppressed for the purposes of taking care of corruption at various - Held that - Even u/s 133A of the Act dealing with survey proceedings, the revenue authorities are entitled to record the statement of any person which may be useful or relevant to proceedings under the Act - a statement u/s 133A of the Act does not lose its evidentiary value merely because it is made on oath - the statement is one of the evidences being relied upon and not the sole evidence - the Tribunal has recorded that the addition of income is based not only on the statement of the assessee - the appellant assessee has not been able to show that the statement made is not correct and/or unbelievable thus, there is no substantial question of law arises for consideration Decided against Assessee. Reliability of statement u/s 133A of the Act Statement recorded after midnight Held that - The Tribunal has rendered a finding of fact to the effect that there is no evidence to show that the statement u/s 133 A of the Act was recorded during the middle of the night - This is a finding of fact and the appellants have not been able to demonstrate that the finding of fact as recorded by the Tribunal is perverse and/or arbitrary - no ground has been raised before the Tribunal regarding the statement being recorded in the middle of the night, thus, it cannot be relied upon - thus, there is no substantial question of law arises for consideration Decided against Assessee. Shift made in onus to prove not appreciated Held that - The Tribunal rightly held that the explanation offered later is clearly an afterthought as also been held by the lower authorities - during the survey proceedings, the assessee in his statement recorded on 6 September 2007 has categorically stated that the discrepancy in the figures of receipts shown in the books of accounts and actual collection of figures are required to meet corruption at various levels - with regard to loose Page No.17 the assessee had stated that he will offer the same as additional income - there was certain additional undisclosed income was further substantiated by the AO pointing out certain undisclosed income being invested in property at lower value than that of its value for the purpose of stamp on the property - thus, there is no substantial question of law arises for consideration Decided against Assessee. Affidavit ignored by the Tribunal Explanation of Loose paper provided in affidavit Held that - Tribunal was of the view that the affidavit of Mr. Ramesh Shetty is not credit worthy to be examined - on the basis that there was no evidence to show Mr. Ramesh Shetty s appointment as consultant or any evidence of fees being paid to him - no credence can be given to the affidavit filed by Mr. Ramesh Shetty thus, there is no substantial question of law arises for consideration Decided against Assessee. Undisclosed receipts treated as income - Adhoc net profit rate of 90% applied Held that - The Tribunal was of the view that whatever extra expenses had been incurred by the appellant assessee out of its undisclosed receipts have already been booked as expenses in his Income and Expenditure Account - in any case the appellant has not shown any evidence in support of his claim for the cash expenses incurred which were not recorded in the regular books of account of the appellant the explanation of the appellant assessee that the cash receipts had been suppressed for the purposes of taking care of corruption at various levels also disentitles them for claiming expenditure - the expenditure incurred to make payments of bribe etc. cannot be allowed as an expenditure incurred for the purpose of business or profession in view of the Explanation to Section 37 of the Act - the appellant had not led any evidence before the authorities and/or even before the Tribunal to show that any expenditure was incurred out of undisclosed income which was not recorded in his books of account thus, there is no substantial question of law arises for consideration Decided against Assessee.

Issues Involved:

1. Reliance on a statement under Section 133A of the Income Tax Act.
2. Timing of the statement recorded during survey proceedings.
3. Onus of evidence regarding "Page No.17".
4. Consideration of an affidavit explaining "Page No.17".
5. Treatment of receipts as income and determination of net profit rate.

Detailed Analysis:

Issue 1: Reliance on a statement under Section 133A of the Income Tax Act

The appellant argued that the Tribunal erred in relying on a statement recorded under Section 133A of the Act during survey proceedings, as it was recorded on oath, contrary to the Apex Court's decision in CIT vs. S. Khader Khan Son. The Tribunal noted that Section 133A allows recording statements useful for proceedings under the Act, and the statement's evidentiary value is not diminished because it was made on oath. The Tribunal relied on both the statement and "Page No.17" as evidence. The court found no substantial question of law in this issue, distinguishing the case from CIT vs. S. Khader Khan Son, where the sole evidence was a statement on oath.

Issue 2: Timing of the statement recorded during survey proceedings

The appellant contended that the statement recorded after midnight during survey proceedings should not be relied upon. The Tribunal found no evidence that the statement was recorded during the middle of the night and noted that this issue was not raised in the grounds of appeal before the Tribunal. The court upheld the Tribunal's finding as a matter of fact, with no demonstration of arbitrariness or perversity, thus not entertaining this question.

Issue 3: Onus of evidence regarding "Page No.17"

The appellant claimed that the Tribunal failed to appreciate that the onus of proof shifted to the respondent once "Page No.17" was explained. The Tribunal found that "Page No.17" contained monthly receipts from April 2003 to June 2006, and the appellant initially admitted these figures during survey proceedings. Later, the appellant attributed the figures to a consultant, Mr. Ramesh Shetty, for a bank loan project. The Tribunal found no evidence of Mr. Shetty's appointment or fees paid, deeming the explanation an afterthought. The court saw no substantial question of law, affirming the Tribunal's concurrent findings of fact.

Issue 4: Consideration of an affidavit explaining "Page No.17"

The appellant argued that the Tribunal ignored Mr. Ramesh Shetty's affidavit explaining "Page No.17". The Tribunal and CIT(A) found the affidavit not credible, noting no evidence of Mr. Shetty's appointment or fees paid, and no mention of the consultant during survey proceedings. The court upheld these findings, stating that the affidavit was self-serving and not creditworthy, and found no substantial question of law. The decision in CIT vs. Mehta Parikh was deemed inapplicable as Mr. Shetty's identity as a consultant was not established.

Issue 5: Treatment of receipts as income and determination of net profit rate

The appellant contested the Tribunal's treatment of undisclosed receipts as income and the arbitrary net profit rate of 90%. The Tribunal held that expenses were already booked in the appellant's Income and Expenditure Account and no evidence supported additional cash expenses. The explanation of suppressed receipts for corruption was also rejected as non-deductible under Section 37 of the Act. The Tribunal modified the CIT(A)'s order, reducing the net profit to 90% of undisclosed receipts. The court found this a factual determination based on evidence, with no substantial question of law arising.

Conclusion:

The court concluded that none of the questions raised by the appellant constituted substantial questions of law, and accordingly, dismissed the appeal with no order as to costs.

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