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TMI Blog2014 (5) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee is not valid without giving any reason. We also find that the ld.CIT(A) has not taken into account the decision of CIT vs. Khader Khan Son reported at (2007 (7) TMI 182 - MADRAS HIGH COURT) and the appeal filed by the Revenue before the Hon’ble Apex Court [2013 (6) TMI 305 - SUPREME COURT] . Therefore, ld.CIT(A) was not justified in confirming the action of the AO and moreover the Revenue has not placed any independent material on record to substantiate the addition. Under these facts, the addition to the extent of ₹ 2,95,000/- only (Rs.4,75,000 – ₹ 1,80,000) is hereby sustained and the AO is directed to delete the balance amount of ₹ 29,75,000/-. - Decided partly in favour of assessee. - I.T.A. No.3032/Ah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion u/s.133A of the Act was carried out on 09/03/2005 at the business premises of the assessee. During the course of survey proceedings, the authorized officer recorded a statement on oath of Shri Rashmin Mahendra Abhoti, who had purchased a shop in the name of his wife Smt.Ranjanben R.Abhoti. In the statement recorded, Shri Rashmin admitted that he has paid an amount of ₹ 4,75,000/- to the assessee for purchase of Shop No.77 of Amidhara Complex. As against this payment, the receipt of ₹ 1,80,000/- only is issued by the assessee-company. A statement on oath was also recorded of Shri Jay Chandrakant Patel, one of the directors of he company in which he admitted that the sale consideration of the shops is recorded in the books to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct during the course of survey has no evidentiary value. In support of this contention, the ld.counsel for the assessee relied on the judgement of Hon ble Supreme Court rendered in the case of CIT vs. Khader Khan Son in Civil Appeal Nos.13224 of 2008 6747 of 2012; whereby the Hon ble Apex Court has dismissed the appeal filed by the Revenue. The ld.counsel for the assessee has also relied on the decision of Co-ordinate Bench (ITAT D Bench Ahmedabad) rendered in the case of Shri Abbas Nabi Shaikh vs. Asst.CIT in ITA No.366/Ahd/2009 for AY 2005-06. He submitted that the AO has not placed any independent material on record in support of his contention. He submitted that in the absence of independent evidence, the addition made by the AO can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as relied on the decision of the Coordinate Bench rendered in ITA No.366/Ahd/2009 for AY 2005-06 in the case of Shri Abbas Nabi Shaikh vs. ACIT. We find that the Coordinate Bench in paragraph Nos.11 12 has observed as under:- 11. In the case of CIT vs. Khader Khan Son (supra) the Hon ble High Court has held that Sec. 133A does not empower any I.T. authority to examine any person on oath, hence, ay such statement has no evidentiary value and any admission made during such statement cannot by itself be made the basis for addition. Further the Hon ble High Court has held as under:- 7. In the decision of Pullangode Rubber Products Co.Ltd. vs. State of Kerala (1973) 91 ITR 18, the Apex Court held that an admission is extremely an impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in respect of various purchasers of shops has been made by the assessing officer based on the statement recorded on oath of a third party of his wife s affair and one of the Directors of the appellant company. The assessing officer has not confronted the appellant regarding receipt of money in cash and merely assumed that the appellant has received cash from each and every purchaser. The assessing officer has not made any enquiry against any of the purchases that gave rise to an inference that the addition has been made on the basis of presumption. On the other hand the appellant has also not proved to the satisfaction of the assessing officer that part of the consideration has not been obtained in cash as admitted in the statement recor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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