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TMI Blog2012 (7) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... T MEMBER. This appeal is filed by the assessee against the order of Ld. CIT (A)- V, Surat dated 2-3-2010 for the assessment year 2007-08. 2. The assessee has raised following grounds in the present appeal:- 1. That the Ld. CIT (A) was not justified in contending that the assessment on the assessee was correctly made even though the assessee retracted from the disclosure. 2. That the Ld. CIT (A) was not correct in confirming the assessment of the sum of Rs.25,07,000 which was retracted by the assessee. 3. That the Ld. CIT (A) Surat s order is entirely contradictory to law and facts of the case to the extent he confirmed the addition of Rs.25,07,000/- which may please be deleted. 4. That the Commissioner of Income tax (Appeals) grossly erred in not adjudicating Circular No.F.286/2/2003-IT(Inv.) no confession can be extorted, Budget speech of Minister of Finance for 2003-04 para No.151 (1) (2003) 260 ITR (St.) 29 statement u/s. 133A of the Act was recorded at odd hours, the statement u/s. 133A of the Act was not recorded at the registered address of the assessee, the partner was examined on oath which is bad in law, the assessee has shown 25% of net profit as against 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd half, the assessee failed to produce any supporting evidence that the statement was extorted out of the partner. He further held that the assessee had voluntarily disclosed a sum as its undisclosed income and the same was also corroborated by evidence in the form of entries found in the diary that was impounded during the survey, thus the disclosure emanated from material found during the course of survey proceedings. He further held that the assessee failed to discharge its obligation in respect of disproving any of the findings on the nature of entries in the diary found during the course of survey. He thus upheld the decision of the A.O. 5. Aggrieved by the decision of the CIT (A), the assessee is now in appeal before us. 6. Before us, the Ld. A.R. submitted that the statement of Mr. Rajesh Ghayal, a partner of the firm was recorded at night and at the time when the last rites of the mother of other partners were in progress. It was stated that the assessee at that time was not in a proper frame of mind. Subsequently on 12-4-2007, Mr. Rajaeh Ghayal, has retracted the statements made during the course of the survey by means of a sworn affidavit. The copy of the affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee to prove that the statement of the assessee was recorded after exerting pressure on the assessee and that it was obtained under duress. Apart from the retraction made in the form, of an affidavit, the assessee has not taken any other action to corroborate his stand. The assessee has also not filed any complaint with respect to the allegations made in his affidavit. The affidavit of the assessee is afterthought, self-serving and devoid of any merits because at the time of recording of the statement of Mr. Rajesh he was made aware of the consequence of giving false statement on oath. At the time of conclusion of the statement Mr. Rajesh admitted that the statement as given with stable mind, without any threat, coercion or under undue influence. It was further stated that affidavit retracting the statement recorded u/s.133A has been filed after 15 days from the date of survey proceedings. In such a case the affidavit needs to be ignored. He also pointed out to the decision of Madhya Pradesh High Court in the case of Smt. Gunwantibai Ratilal vs. CIT (1984) 149 ITR 140, where the Hon ble High Court has analysed the decision of the Apex Court in the case of Mehta Parikh Co. vs. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mother of the other partners was in progress. It was further stated that the confessional statement was extorted under coercion and duress. In the case of Paul Mathews (supra) the Hon ble Kerala High Court has held that section 133A does not empower any Income Tax Officer to examine any person on oath. Whatever statement is recorded u/s. 133A is not given any evidentiary value for the reason that the officer is not authorized to administer oath and to take any sworn statement which alone has evidentiary value as contemplated under law. 10. From the balance sheet of the assessee it is evident that there are no sales during the year under appeal and the advance received from the buyers is reflected as its liability. In the case of CIT vs. Ashaland Corporation (supra), the Hon ble Gujarat High Court has held as under: In order to partake the character of income, a receipt must be a part of the profits earned by the assessee. The receipt must assume the character of income before it becomes exigible to income tax. An agreement to sell does not create any interest in favour of the purchaser. It is on completion of the transaction of purchase and sale culminating in the extingu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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