9911796707
TMI Blog2013 (12) TMI 1364X X X X Extracts X X X X X X X X Extracts X X X X ..... as 'income from other source' as against the assessee declaring the same as 'business income'. 2.1 Briefly stated, the assessee, an individual, a partner in M/s. Savant Transport Ltd in which an action u/s 133A was conducted. During the course of the survey, two rough sheets were impounded. The impounded two rough sheets contained/indicated the figures of Rs.1.25 crores and Rs.75 lakhs in the names of Nayant Savani (one of the partners) and in the name of the assessee respectively. The survey team also recorded the statement of Shri Nayant Savani. According to the statement, Shri Nayant Savani agreed ITA No. 2339/Mum/2012 2 Mr. Hansat Maneklal Savani Assessment Year: 2008-09 that the amounts figuring in the impounded sheets would be offer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in the case of J.C. Thakkar Vs. CIT [27 ITR 658 (Bom)] and the decision of the High Court of Madras in the case of H.C. Kothari and others Vs. CIT [20 ITR 579 (Mad)] in support of the proposition that if an income falls under more than one head, the assessee has the option of choosing the head of income which makes the burden of the assessee lighter. On the other hand, the Ld.DR has relied on the orders of the AO and the Ld.CIT(A) by drawing our specific attention to the statement recorded during the survey and to the fact that the assessee has not furnished report u/s 44AB. 2.3 We have heard both the sides and perused the material on record. It is pertinent to mention that the statement of Shri Nayant Savani recorded on 09.10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de any rational basis for treating the impugned income under the head 'income from other source' as the said statement does not suggest for the same. Moreover, according to the decision of the Madras High Court in the case of CIT Vs S. Khader Khan Son [2008] 300 ITR 157 (Mad.), which has been confirmed by the Apex Court as reported in [2013] 352 ITR 480 (SC), whatever statement is recorded under section 133A, the same is not given any evidentiary value and the statement obtained under section 133A would not automatically bind upon the assessee. Therefore, even assuming that there is a statement to the effect of admission by the assessee made during the survey, the same cannot be the sole basis for taking a decision by the revenue authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the assessee has the option of choosing for the purpose of income tax, such head which makes the burden on his shoulders lighter. Applying the said ratio to the facts of the assessee, in the absence of any evidence brought by the authorities below to disprove/disbelieve the claim of the assessee treating the impugned receipt under the head 'business income', the authorities below are not justified in treating the same under the head 'income from other sources'. In view of the aforementioned discussions, we are of the considered view that the said income of 75 lacks declared by the assessee during the course of the survey has necessarily to be treated under the head 'business income' as claimed by the assessee. We direct and order accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are also liable to pay interest on the debit balance in capital account on similar basis. It is further submitted that the liability to pay interest arises out of contractual obligation. The perusal of the copy of the Firm's assessment order for Asst. Year 2008-09 available at Paper Book Page 30 reveals that in the case of the firm M/s. MSN Enterprises the said interest has been assessed as income of the firm. Having considered the rival submissions, reasoning of the lower authorities and material on record, we are of the considered view that the claim of the assessee is emanating out of contractual obligation and is in consonance with the provisions of law. We therefore, set aside the order of the lower authorities and assessee succeeds o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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