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TMI Blog2012 (11) TMI 1167X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent accordingly. - HELD THAT:- Merely on the basis of statement recorded during the survey u/s 133A, such addition could not have been made. To make such addition, some corroborating evidence against undisclosed income was required, which could not be found by the AO. Decision in the case of COMMISSIONER OF INCOME-TAX VERSUS DHINGRA METAL WORKS [ 2010 (10) TMI 29 - DELHI HIGH COURT] , relied upon. - ITA No. 198 of 2012 - - - Dated:- 19-11-2012 - KRISHN KUMAR LAHOTI and SMT. VIMLA JAIN, JJ. Sanjay lal, for the Appellant. JUDGMENT 1. This appeal is directed against an order dated 13/06/2012 passed by Income Tax Appellate Tribunal, Jabalpur Bench, Jabalpur, in ITA No. 114/Jab/2010 Assessment Year 2007-08, by whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. During the assessment proceedings, he had refuted the surrendered on the ground that there was no undisclosed income. The Assessing Officer on the basis of statement found that the assessee was liable for further addition of ₹ 40 lakhs and assessed the respondent accordingly. 5. An appeal was preferred by the assessee against such an order before the Commissioner of Income Tax. In the appeal, it was stated that in absence of any material against assessee, addition could not have been made, merely on the basis of the statement recorded under Section 133A of the Income Tax Act. The aforesaid addition required corroboration by some cogent evidence. 6. The CIT (A) in the order has recorded facts, which reads thus: It was vehe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer had also not doubted the surrender of the assessee in the return but he added a sum of ₹ 40 lakhs based only on the statement recorded during the course of survey. While doing so he never even considered the surrender actually made by the assessee in the return of income which clear goes to show that the Assessing Officer had not properly appreciated the facts of the case and made the addition for addition sake. The detailed submission those were made before the Assessing Officer was again submitted and it was argued that the Assessing Officer had quoted several decisions but the sum and substance of the decisions were that addition cannot be made merely on alleged confession of the assessee unless it is corroborated by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders passed by the CIT(A), an appeal was filed before the Tribunal and Income Tax Appellate Tribunal, Jabalpur Bench, Jabalpur vide order dated 13/06/2012 has reconsidered the matter and found that CIT(A) was right in directing such deletion and dismissed the appeal. This order is under challenge. 8. We have perused the record and found that merely on the basis of statement under Section 133A of the Income Tax Act, which was recorded during the survey, such addition could not have been made. To make such addition, some corroborating evidence against undisclosed income was required, which could not be found by the Assessing Officer. The Assessing Officer had made an addition merely on the basis of a statement recorded during survey unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the disclosed income was assessable as lawful income of the assessee. Since there was no material on record to prove the existence of such disclosed income or earning of such income in the hands of the assessee, it could not be said that the Revenue had lost lawful tax payable by the assessee. A power to examine a person on oath is specifically conferred on the authorities only under s.132(4) in the course of any search or seizure. Thus, the IT Act, whenever it thought fit and necessary to confer such power to examine a person on oath, has expressly provided for it, whereas s.133A does not empower any ITO to examine any person on oath. Thus, in contradistinction to the power under s.133A, s.132(4) enables the authorized officer to examine a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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