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TMI Blog2008 (10) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... ax (Appeals)-XIX, New Delhi, is against law and facts on the file inasmuch as she was not justified to uphold the action of the Ld. Assessing Officer, Circle 20(1), New Delhi in adding back a sum of Rs. 5,00,000, being the amount surrendered during the course of survey under section 133A but subsequently retracted, to the assessee company's income as income on account of unexplained investment under section 69 of the Income-tax Act, 1961." 3. A survey was conducted at the premises of the assessee on 11-2-2003. During the survey operation the director of the assessee stated to have made an investment of Rs. 5 lakhs in respect of renovation of the premises under occupation of the assessee. However, while filing the return of income, the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cing reasons for retracting from the statement made by the director on oath. A person who has deposed on oath cannot retract to suit his own convenience. There is no proof of undue influence, threat or coercion. He accordingly upheld the addition. The assessee is in further appeal before us. 4. The learned counsel for the assessee Shri Ashwani Kumar reiterated the submissions made before the lower authorities. He submitted that under section 133A, the powers of survey officials are limited only to gather some information. However, there is no prohibition to record a statement on oath, which are otherwise available under section 132(4) or under section 131 of the Act. Thus even if the statement is recorded on oath, the same is without the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee explained that no renovation was actually carried on. Proof in this regard was also filed. An addition is sustainable provided expenditure has been incurred. Income is not computed on the basis of submissions of parties but on the basis of actual earning of income. The assessee has all along been claiming that it has not carried out any renovation, which requires any expenditure to be incurred. This fact should have been verified by the Assessing Officer. Even after filing photographs in this regard the Assessing Officer turned a blind eye to the ground reality and has sought to made addition merely on the basis of statement recorded during the course of survey. The Hon'ble Madras High Court in the case of S. Khader Khan Son (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear that the materials collected and the statement recorded during the survey under section 133A are not conclusive piece of evidence by itself." The power granted under section 133A are limited to place mark of identification on the books of account or other documents inspected, impound and retain any books of account or other documents inspected, make an inventory of any cash, stock or other valuable article or thing checked or verified and record statement of any person which may be useful for, or relevant to, any proceeding under the Act. Section 133A do not compel an assessee to give statement on oath. If the survey officials have recorded the statement on oath, it is an excessive exercise of power. Except the statement of a director ..... X X X X Extracts X X X X X X X X Extracts X X X X
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