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TMI Blog2014 (4) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... 133 A of the Act was recorded during the middle of the night - This is a finding of fact and the appellants have not been able to demonstrate that the finding of fact as recorded by the Tribunal is perverse and/or arbitrary - no ground has been raised before the Tribunal regarding the statement being recorded in the middle of the night, thus, it cannot be relied upon - thus, there is no substantial question of law arises for consideration – Decided against Assessee. Shift made in onus to prove not appreciated – Held that:- The Tribunal rightly held that the explanation offered later is clearly an afterthought as also been held by the lower authorities - during the survey proceedings, the assessee in his statement recorded on 6 September 2007 has categorically stated that the discrepancy in the figures of receipts shown in the books of accounts and actual collection of figures are required to meet corruption at various levels - with regard to loose "Page No.17" the assessee had stated that he will offer the same as additional income - there was certain additional undisclosed income was further substantiated by the AO pointing out certain undisclosed income being invested in prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal ( the Tribunal ) for assessment year 2006-007. The impugned order dated 10 April 2012 of the Tribunal was a common order for assessment years 2004-05, 2005-06, 2006-07 and 2007-08. 2) The following questions of law have been raised in this appeal for our consideration: A) Whether in the present facts and circumstances of the case and in law, the Tribunal erred in relying on the statement under Section133A of the Act, recorded on oath, during the survey proceedings, ignoring the ratio laid down by the Apex Court in the cases of CIT vs. S. Khader Khan Son (2012) 254 CTR (SC) 228? B) Whether in the present facts and circumstances of the case and in law, the Tribunal erred by relying on the statement u/s. 133A recorded after midnight in the course of survey proceedings ignoring the ratio laid down in the case of, Kailashben Manharlal Choksi (2008) 220 CTR (Guj) 138? C) Whether in the present facts and circumstances and in law, the Tribunal failed to appreciate that the onus of evidence shifted to the respondent, when the appellant explained Page No.17 , its author, its origin and purpose and the clarification of the statement of the employee of the appellant that is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 15,700 The appellant assessee in the course of his statement during survey proceedings admitted that the amounts collected by the receptionist from patients were being entered in the diary /note book. (b) Besides a loose paper titled Page No.17 was found during the survey. This loose paper Page No.17 recorded the monthly receipts from April 2003 to June 2006. On being confronted with Page No.17 , appellant assessee agreed to offer additional receipts shown in the loose paper Page No.17 to tax. However, thereafter the appellant assessee sought to explain Page No.17 by stating that this page had been prepared by his financial consultant one Mr. Ramesh Shetty who was preparing a project report to obtain funds from Bank for purchase of equipments. Therefore, it was stated that monthly receipts were inflated so as to enable larger finance from the bankers. (c) On 30 December 2008, the Assessing Officer completed the assessment for assessment year 200607 under Section 143(3) of the Act and inter alia enhanced the income from profession declared at Rs.8.68 lacs to Rs.45.15 lacs. The enh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , no appointment letter or fees had been paid to Mr. Ramesh Shetty nor the name of the bank to whom these figures were to be tendered are pointed out nor is the equipment which the appellant assessee proposes to purchase, even mentioned. Thus the affidavit was not credit worthy. (e) Being aggrieved the appellant preferred a second appeal before the Tribunal. The Tribunal by the impugned common order dated 10 April 2012 dismissed the appellant's appeals for assessment years 200405, 2005-06, 200607 and 2007-08. This appeal has been filed by the appellant assessee for the assessment year 200607. 4) We shall now consider the questions as proposed for the appeal relating to assessment years 200607 for our consideration. (a) Regarding Question No.A: ( i) The grievance of the appellant before us is that no reliance can be placed upon the statement made by the appellant during the survey proceedings under Section 133A of the Act for the reason that it was recorded on oath. It is undisputed that even under Section 133A of the Act dealing with survey proceedings, the revenue authorities are entitled to record the statement of any person which may be useful or relevant to proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the middle of the night. This is a finding of fact and the appellants have not been able to demonstrate that the aforesaid finding of fact as recorded by the Tribunal is perverse and/or arbitrary. It is pertinent to note that in the grounds of appeal before the Tribunal raised by the appellant no ground has been raised regarding the statement being recorded in the middle of the night and therefore, cannot be relied upon. Be that as it may, the finding of the Tribunal is a finding of fact and in the absence of the same being shown to be arbitrary and/or perverse, no substantial question of law arises. Therefore, no occasion to entertain Question B arises. (c) Regarding Question C : The grievance of the petitioner is that the impugned order failed to appreciate that the onus of proof had been shifted to the department as Page No.17 has been explained by the appellant. The Tribunal has recorded a finding of fact that document titled as Page No.17 contained monthly receipts from April 2003 to June 2006. During the survey proceedings, the appellant did not dispute the loose paper Page No.17 but merely stated that it may be estimated figure of receipts during the period c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or of any consultant much less about any Mr. Ramesh Shetty being involved for preparing a report to enable the appellant for taking loan from bank. Therefore, affidavit of Mr. Ramesh Shetty and his own affidavit filed subsequently are self serving affidavit. The CIT(A) as well as the Tribunal in the impugned order have reached a finding of fact that the affidavit of Mr. Ramesh Shetty is not credit worthy to be examined. This was on the basis that there was no evidence to show Mr.Ramesh Shetty's appointment as consultant or any evidence of fees being paid to him. Moreover, no details were ever furnished by the appellant of the equipments which they are seeking to purchase for which loan is required or even the name of the banker to whom the appellant was approaching for loan. On the aforesaid finding of fact, the Tribunal by the impugned order concluded that no credence can be given to the affidavit filed by Mr. Ramesh Shetty. The aforesaid finding is one on appreciation of fact and does not give rise to any substantial question of law. The decision of the Apex Court relied upon by the appellant in the case of CIT vs. Mehta Parikh 30 ITR 181 would only apply where identity of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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