2016 (7) TMI 1620 - AT - Income Tax

Survey u/s 133A - Addition based on loose papers found - non disclosure of donation receipt - HELD THAT - Statement of the individual case has to be seen and it has to be used independently. In the statement recorded some of the students admitted that they have paid donation but this statement of the third party cannot be used against the assessee who has denied to have made any payment. There are 1000s of reasons for appearing her name in the code but it cannot be used against the assessee unless proper opportunity of making cross examination is given to the assessee after giving a copy of statement to the assessee and thereafter this statement can be used, but I am of the view that the statement recorded of the some persons is in their individual capacity but cannot be used against the assessee. Therefore, this will not serve the purpose for making the addition in the hands of the assessee. Moreover, the assessee s books of accounts are subject to audit. The assessee also denied to have made any payment then unless some incriminating material is found from the medical college, no addition can be made - Decided in favour of assessee.

Summary

Issues:
Assessment of undisclosed income based on unverified statements during a survey u/s 133A - Validity of notice u/s 148 without tangible material - Reliability of third-party statements against the assessee - Admissibility of statements recorded behind the back of the assessee - Use of audit books as evidence - Requirement of incriminating material for addition to income - Precedents on the use of statements in assessment proceedings - Corroboration of statements with seized material - Validity of statements recorded u/s 131 vs. u/s 132(4) - Circumstantial evidence in income tax matters - Application of legal principles in absence of direct evidence.

Analysis:
The judgment pertains to an appeal against the assessment order where the Assessing Officer added an amount to the total income of the assessee based on a survey u/s 133A. The survey revealed loose papers suggesting undisclosed donations for MBBS admissions. The Assessing Officer issued a notice u/s 148, alleging that the income of the assessee had escaped assessment. The assessee challenged this, arguing lack of tangible material to support the addition. The Tribunal examined the case, emphasizing the importance of proper evidence before making additions to income. It noted that the statements of third parties, recorded behind the back of the assessee, were unreliable and should not be used against the assessee, especially when denied. The Tribunal highlighted the need for incriminating material or corroborative evidence to support such additions, citing precedents for reference.

The Tribunal also discussed the significance of audit books as evidence, stating that unless incriminating material was found, no addition could be made solely based on unverified statements. It differentiated between statements recorded u/s 131 and u/s 132(4), emphasizing the latter's validity and relevance as evidence. The judgment underscored the importance of corroborating statements with seized material to establish a valid basis for income additions. It further highlighted the need for circumstantial evidence and the application of legal principles in income tax matters, especially in the absence of direct evidence.

Ultimately, the Tribunal relied on legal precedents and the principles of evidence to rule in favor of the assessee, deleting the addition made by the Assessing Officer. The judgment emphasized the requirement of concrete evidence and proper procedure in assessments, safeguarding the assessee's rights against arbitrary additions to income.