2017 (10) TMI 873 - AT - Income Tax

Addition on basis of statement recorded under oath of one of the partners of the assessee firm which did not exist on the date of survey - department s survey u/s. 133A - Discontinued business - whether the discrepancy in the stock of pig iron, scrap and cash can be assessed in the hands of the assessee firm, when undisputedly it has been taken-over from 01.09.2008 by a Private Limited Company? Held that - Admittedly, when the survey was conducted on 29.09.2008, the assessee firm s business including the stock in trade has been taken-over by the company and if any discrepancy is found when physical verification is done on 29.09.2008 it should have been answered by the company which is an artificial juristic person and is assessed as a separate assessee. When the department was aware of the takeover when the survey has happened, we do not understand why the company was not proceeded against. We note that the entire addition has been based on the statement given by the one of the partner of the firm which has been taken on oath. There are two deficiencies/flaw for this. Firstly, the partner is not there in the eyes of law, when the firm is not existing . Secondly, the survey team does not have power to record statement on oath. The Hon ble Supreme Court in CIT Vs. S. Kader Khan & Son (2013 (6) TMI 305 - SUPREME COURT) has held that during survey the statement cannot be taken on oath and, therefore, there is no evidentiary value given on the recorded statement on oath during survey and additions cannot be made solely on the basis of statement recorded under oath. We find that the sole basis of addition is the statement recorded under oath of one of the partners of the assessee firm which did not exist on the date of survey on 29.09.2008 cannot be the basis for making the addition. Therefore, we find force in the grounds raised by the assessee and we allow the appeal of the assessee.

Summary

Issues:
Assessment of discrepancies in stock of pig iron, scrap, and cash in the hands of the assessee firm after it was taken over by a Private Limited Company.

Analysis:
The appeal was filed against the order of Ld. CIT(A)-10, Kolkata for AY 2009-10, concerning discrepancies in stock and cash found during a survey. The assessee, a firm trading iron and steel, was taken over by a company on 01.09.2008. Discrepancies in stock were noted during a survey on 29.09.2008, leading to additions in income by the AO. The AO added amounts for undisclosed purchases, profit on sales, and unexplained cash. The CIT(A) confirmed these additions, prompting the appeal. The central issue was whether these discrepancies could be assessed in the hands of the assessee firm post its takeover.

The Tribunal considered the legal position and facts. The Hon’ble Supreme Court's precedent emphasized taxing the right person, right year, and right income. The assessee filed returns till 31.08.2008, while the company took over from 01.09.2008. The Tribunal noted the business takeover agreement and that the firm ceased operations post-takeover. The contention that the survey was illegal was dismissed, as the firm did not inform the department of the takeover. Even if the survey was deemed illegal, collected evidence was admissible. The Tribunal highlighted that the company, as the new entity, should have been held accountable for any discrepancies found post-takeover.

Further, the Tribunal pointed out flaws in the additions based on a partner's statement under oath during the survey. The partner's statement lacked evidentiary value as the firm did not exist during the survey, and statements under oath during surveys are not legally binding. Citing a Supreme Court ruling, the Tribunal emphasized that additions cannot solely rely on such statements. Ultimately, the Tribunal allowed the appeal, stressing that income should be taxed correctly, in the right hands, and on the right income.

In conclusion, the Tribunal allowed the assessee's appeal, emphasizing the importance of taxing income accurately and in the hands of the appropriate entity. The judgment highlighted legal precedents and factual inconsistencies to support its decision, ensuring fairness and adherence to legal principles.