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TMI Blog2016 (5) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... 142(1)/143(2) alongwith questionnaire dated 25.10.2010 for fixing the case of the assessee for 1.11.2010. In response to the same, Authorised Representative of the assessee appeared from time to time and filed requisite information / documentary evidence. The AO summoned the assessee as to why this information was not declared in the return. The assessee in his statement has submitted that the return of income was filed on the basis of the books of accounts based on actual facts and figures. Assessee further stated that the part declaration was given to the Investigation Department under pressure. It was also stated by him that no incriminating documents were found during the course of survey and therefore, he retracted from his declaration at that time and also at the time of filing the return. The AO considered the reply filed by the assessee alongwith other documentary evidence and held that the assessee has not shown any valid reason for not including Rs. 1.25 crores which he has voluntary surrendered in his return of income during the survey. The AO further held that the documents were found during survey and in response to the document, assessee has made a declaration after s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Kerala (1973) 91 ITR 18 (SC) - Ravinder Kumar vs. Deputy Commissioner of Income Tax (2008) 33 SOT 25 (Delhi High Court) - TDI Marketing (P) Ltd. vs. ACIT (2008) 28 SOT 215 (Delhi High Court) - Mahesh Ohri vs. ACIT (2013) 23 ITR 522 154 - CIT vs. P. Balasubramanian (2013) 33 taxmann.com 130 (Madras High Court) - ITO vs. Surrender Kumar Jain ITA No. 3871/Del/2011 - Gajjam Chinna Yellappa vs. ITO (2015) 370 ITR 671 (T&AP) (HC) - CIT vs. Uttam Chand Jain (2010) 320 ITR 554 - R. Arun vs. ITO, 2016 (3) TMI 321 ITAT, Chennai. 6. On the contrary, Ld. DR relied upon the orders of the authorities below and stated that the same may be upheld and the Appeal of the assessee may be dismissed accordingly. 7. We have heard both the parties and perused the records available with us, especially the orders passed by the revenue authorities alongwith the statement recorded u/s. 133A of the I.T. Act and the case law cited by the Ld. Counsel of the Assessee as well as CBDT Instruction No. 286/2/2006/IT/(Inv) dated 10.3.2003; Declaration dated 18.12.2008 made during the proceedings u/s. 133A of the I.T. Act of estimated income; Withdrawal dated 16.12.2010 of surrender / decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This is to inform you that during survey operation conducted u/s 133A of the Income Tax Act 1961, declaration was made vide letter dated 18/12/2008 making an surrender of Rs. 1.25 crore in my Individual case as well as any other associate concern in which ihad Interest. That the said declaration was made u/s 133(A) of the Income Tax Act ~1961. In this connection it is submitted that letter for declaration was given to Investigation Department under the pressure of Income Tax Authorities and to include additional estimated income in the return on the basis seized documents. This letter was filed to remove the pressure of the Income Tax Authorities and it does not represent true and correct picture of the affairs. Further it is also submitted. that there was no incriminating documents seized/found during the course of suggesting the undisclosed income of Rs. 1.25 crore in the hands of asseesse. This fact is also proved from the seized documents and books of accounts regularly maintained by the assesse. Keeping this factual position into consideration and background, no such income is declared in the returns filed for A. Y 2009-10. Further the assessment has to be made on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e earned by the assesse during the captioned assessment year. It is submitted that as per instruction of CBDT on the captioned subject and also based on the various judgements, it is a well established precedence that in the absence of any evidence, no addition is required to be made for any adhoc declaration made by the assesse. And for this proposition of law we rely on the judgement :- b) Paul Mathew & Sons Vs CrT 263 ITR 10 I (KER) c) Sanjeev Kumar Pandhi Vs CIT 305 ITR 101(P&H) d) Abhi Developers Vs ITa. 12 SOT 444 (Ahm) In view of the above facts as informed earlier , no incriminating documents seized/found during the course of suggesting the undisclosed income nor any such documents were confronted by the assessing officer which can result into an addition of additional income of Rs. 1.25 crore. Hence no such income was included and in view of the above facts, no Adverse inference may kindly be drawn in this regard. Any other clarification if needed, the same shall be given at your convenience. Sd/- (Avinash Kumar Setia) CONTENTS OF THE AFFIDAVIT Before the Assessing Officer Affidavit in the matter of assessment proceedings under Income Tax Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that in the present case an addition of Rs. 70 lacs was made by the AO on the basis of statement of Mr. Ajay Singhal at the time of survey recorded u/s. 133A of the I.T. Act. We find considerable cogency in the Ld. Counsel of the assessee's submissions that addition cannot be made on the basis of the statement recorded during the survey under section 133A of the Act, in view of the various judicial decisions wherein, it has been held that such statement does not have any evidentiary value, especially the decision of the Hon'ble Madras High Court in the case CIT vs. S. Khakder Khan son reported in {2008) 300 ITR 157 (Madras) wherein, it has been held that "Addition on the basis of statement recorded during survey under section 133A-Sect. 133A does not empower any IT Authority to examine any person on oath, hence, any such statement has no evidentiary value and any admission made during such statement cannot, by itself, be made the basis for addition" and the decision of the Hon'ble High Court of Jharkhand delivered in the case of CIT, Ranchi vs. Ravindra Kumar Jain reported in (2009) 33 SOT 251 (Delhi) wherein, it has been held that "addition made by the lower authorities merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered opinion that the addition made on the basis of the statement in the present case recorded u/s. 133A is not sustainable in the eyes of law, hence, we delete the addition of Rs. 70 lacs made by the AO and confirmed by the Ld. CIT(A) and allow the Appeal of the Assessee accordingly. 7.2 We also find that the decision of the Hon'ble Madras High Court in the case of CIT vs. Khader Khan Sons (2008) 300 ITR 157 has been confirmed by the Hon'ble Supreme Court and the Appeal of the Department has been dismissed reported in (2012) 25 taxmann.com 413 (SC). 8. In the background of the aforesaid discussions and respectfully following the precedents of the Hon'ble Supreme court, High Courts, ITAT, Delhi Bench decision dated 8.3.2016, as aforesaid and in view of the CBDT's Letter dated 10.3.2003, we are of the considered opinion that the addition made on the basis of the statement in the present case recorded u/s. 133A is not sustainable in the eyes of law, hence, we delete the addition of Rs. 1.25 crores made by the AO and confirmed by the Ld. CIT(A) and allow the Appeal of the Assessee accordingly. 9. In the result, the Appeal filed by the Assessee stands allowed. Order pronounced ..... 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