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TMI Blog2016 (5) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... on 133A was ignored, then, there is a further disclosure by the payer. We find that his statement was recorded from the back of the assessee, and no opportunity to cross-examine the deposer was given to the assessee. Hence, this statement cannot be used against the assessee. We find support from the decision of Hon’ble Supreme Court in the case of Kishanchand Chellaram (supra) wherein it was held that any material not confronted to the assessee would not constitute as admissible evidence and consequently addition made on the basis of such evidence is liable to be deleted. In the present case PSP was not subjected cross-examination. His statement was not recorded in the assessment proceeding of the assessee. It was in post-survey inquiry of his own case. Therefore, this piece of evidence is to be excluded. Loose papers and small diaries impounded during the course of survey carried at the premises of PSP - even at the premises of PSP, no search was conducted. There was no common documents executed between PSP and the assessee was found, which bears the signatures of both the parties. To the extent common document was found i.e. last entry where assessee has confirmed receipt and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey as well as in the post-survey inquiry that he had made various payments to the assessee which are inventorised in Annexure A/1 to Annexure A/7. The ld.AO has noticed the details of the payments as under: (a) Annexures-A-1 to A-7 are written by Shri Pranav S. Patel himself (b) Page No.9 of Annexure-A-1 is about payment of ₹ 20,00,000/- to the assesses on 18/12/2009 against the land of there new project known as Dev Shikar. (c) Page No. 7 of Annexure-A-1 is about payment of ₹ 3046000/-on 04/01/2010 and of ₹ 454000/- to the assessee on 04/01/2010 against the land of there new project known as Dev Shikhar. (d) Page No.3 of Annexure-A-1 is about payment of ₹ 2400000/- to the assessee on 30/01/2010 against the land of there new project known as Dev Shikhar. (e) Page No.1 of Annexure-A-1 is about payment of ₹ 600000/- to the assessee on 12/02/2010 against the land of there new project known as Dev Shikhar. (f) Page No.1 of Annexure-A-6 is about payment of ₹ 4000000/- to the assessee on 22/01/2010 and of ₹ 3500000/- on 05/02/2010. You had put your signatures on this page against both the entries in token of hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee that burden to prove, demonstrating the fact that the assessee has received payment was on the Revenue. Merely on the basis of documents found from the premises of a third party in the hand writing of the third party, without any cross-confirmation at end of the assessee, it cannot be assumed that the payment was made to the assessee. The assessee further contended that only statement was supplied to the assessee. PSP was not put to cross-examination, and therefore, statement recorded from the back of the assessee cannot be used against the assessee. 7. The ld.CIT(A) has gone through all these aspects, and thereafter, confirmed the addition. The ld.CIT(A) has assigned two reasons. In his first fold of reasoning, he observed that if assessee has admitted one of the entries, recorded in the impounded document, then, it is to be presumed that the assessee has received payments mentioned in all other entries. In the opinion of the ld.CIT(A), if genuineness of one entry was accepted by the assessee, then, he cannot challenge other entries. In the second fold of reasoning, the ld.CIT(A) has made reference to the order of the ITAT in the case of Dhunjibhoystud and Agricultural fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al contentions and gone through the record carefully. The first evidence or circumstances referred by the AO for making the addition is that statement of PSP was recorded during the course of survey. The contention of the ld.counsel for the assessee on this set of evidence is that this statement has no evidentiary value, hence, it cannot be used against the assessee, because, on the basis of the statement given by PSP even, addition cannot be made in his hand. The issue regarding evidentiary value of the statement taken during the course of survey, has fallen for consideration before the Hon ble Kerala High Court in the case of Paul Mathews and Sons (2003) 263 ITR 101 (Ker). According to the Hon ble Kerala High Court, during the course of survey, the officer could record the statement of a person under sub-section 3(iii) of section 133A of the Income Tax Act. This clause authorizes the authority to record a statement of any person which may be useful for or relevant to any proceedings under the Act. However, the officer is not authorized to record the statement on oath, and hence, the statement taken during the course of survey, has no evidentiary value. It is simply an information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement recorded under section 133A was ignored, then, there is a further disclosure by the payer. We find that his statement was recorded from the back of the assessee, and no opportunity to cross-examine the deposer was given to the assessee. Hence, this statement cannot be used against the assessee. We find support from the decision of Hon ble Supreme Court in the case of Kishanchand Chellaram (supra) wherein it was held that any material not confronted to the assessee would not constitute as admissible evidence and consequently addition made on the basis of such evidence is liable to be deleted. In the present case PSP was not subjected cross-examination. His statement was not recorded in the assessment proceeding of the assessee. It was in post-survey inquiry of his own case. Therefore, this piece of evidence is to be excluded. 12. The next set of evidence possessed by the Revenue is loose papers and small diaries impounded during the course of survey carried at the premises of PSP. The explanation of the assessee qua this set of evidence is that it was not found from the possession of the assessee. It was found from the possession of a third person, therefore, the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect. The AO has taken the entries of PSP as a gospel truth, and assumed that it is the assessee who has to disprove them, whereas the position of the law is all together otherwise. It is the AO who has to first prove the payments alleged to have been received by the assessee, and only then, explanation of the assessee can be sought. From entries of PSP referred by the AO, this aspect has not been proved. The ld.CIT(A) has heavily relied upon the order of the ITAT, Third Member decision in the case of Dhunjibhoystud. This decision has been reproduced extensively from page nos.26 to 35 of the impugned order. As far as the decisions relied upon by the ld.CIT(A), the facts in that cases are quite distinguishable with the facts of the present case. In that case search was carried out at the premises of Dr.Tanna. He made disclosure under section 132(4) of the Act. He has made payment through account payee cheques as well as in cash. In the present case, even at the premises of PSP, no search was conducted. There was no common documents executed between PSP and the assessee was found, which bears the signatures of both the parties. To the extent common document was found i.e. last entry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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