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TMI Blog2019 (9) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. At the same time, such statement can be used to corroborate other materials before the assessing authority, including the contents of any document. In our view, the dictum laid down in Paul Mathews [ 2003 (2) TMI 25 - KERALA HIGH COURT] and Hotel Samrat [ 2009 (11) TMI 269 - KERALA HIGH COURT] and Travancore Diagnostics (supra) can be harmonised in this manner without any conflict. Thus, the substantial questions of law raised as items (1) and (3) are answered in favour of the assessee and against the revenue. Addition u/s 69 - The assessment of tax made by the authority concerned is not solely based on the sworn statement of the appellant given to the income tax authority. The basis of the assessment is the agreement executed by the appellant for purchase of property and also the circumstance that the appellant failed to establish his plea regarding the investment made. The sworn statement of the appellant only corroborates those materials. The fact that the assessing authority gave emphasis to the sworn statement of the appellant while passing the order of assessment does not change this fact situation. Tribunal has adverted to the factual aspects an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the appellant regarding the nature and source of the amount. The assessing officer found that the books of accounts of the company did not reveal that the amount of 95 lakhs rupees was invested by the company in such a deal. Therefore, the aforesaid amount was brought to tax by the assessing authority as unexplained investment. 4. The appellant took up the matter in appeal before the Commissioner of Income Tax (Appeals). The appellate authority agreed with the view taken by the assessing officer and dismissed the appeal. The appellant filed further appeal before the Income Tax Appellate Tribunal. The Tribunal confirmed the findings made by the assessing officer and the appellate authority and dismissed the appeal. The aforesaid order of the Tribunal is under challenge in this appeal filed by the assessee. 5. We have heard Sri. Arun Raj. S, learned counsel for the appellant and also Sri. Jose Joseph, learned Standing Counsel for the department. 6. Learned counsel for the appellant contended that the agreement for purchase of property was executed by the appellant in his capacity as the Managing Director of the company and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with survey proceedings. Section 133A(3)(iii) of the Act provides that an income-tax authority acting under Section 133A may record the statement of any person which may be useful for, or relevant to, any proceeding under the Act. It is evident from this provision that, during survey proceedings, the incometax authority has got power to record the statement of any person. The expression any person in this provision includes an assessee. 10. Learned counsel for the appellant relied upon the decision of a Division Bench of this Court in Paul Mathews and Sons v. Commissioner of Income Tax : (2003) 263 ITR 101 in support of his contention that the income tax authority has got no power to examine on oath any person or to record any sworn statement of a person. Learned counsel has also pointed out that the decision in Paul Mathews (supra) has been relied upon by the Madras High Court in Commissioner of Income Tax v. Khader Khan Son : (2008) 300 ITR 157 . 11. In Paul Mathews (supra), the Division Bench has held as follows: Section 133A(3)(iii) enables the authority to record the statement of any person which may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect position of law because, in our view, statement recorded under Section 133A(3)(iii) though cannot be treated as independent evidence like evidence recorded under Section 132(4), has corroboratory value in assessment and statement recorded under the said provision can be even relied on by the assessee. In other words, the decision of this Court that the statement recorded under the above provision does not have evidentiary value, in our view, does not lay down the correct law. However, since counsel for the respondent assessee does not rely on the above decision, we proceed to consider these cases on the merits without referring the matter for consideration to a Full Bench because by the operation of the latter part of the section, such statement has relevance for assessment and other proceeding under the Act . 14. Another Division Bench of this Court considered the issue in Travancore Diagnostics (P) Limited v. Assistant Commissioner of Income Tax: 2016 (5) KHC 580 : 2016 (4) KLT 350 . In that case, the Division Bench clarified the dictum laid down in Paul Mathews (supra) as follows: For the purpose of this case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by an assessee to the income tax authority during the survey proceedings under Section 133A of the Act is not conclusive. The assessee can explain or withdraw the admission, if any, made by him in such statement. Assessment of tax cannot be made solely on the basis of such sworn statement made by the assessee under Section 133A(3)(iii) of the Act. At the same time, such statement can be used to corroborate other materials before the assessing authority, including the contents of any document. In our view, the dictum laid down in Paul Mathews (supra) and Hotel Samrat (supra) and Travancore Diagnostics (supra) can be harmonised in this manner without any conflict. Thus, the substantial questions of law raised as items (1) and (3) are answered in favour of the assessee and against the revenue. The substantial question of law raised as item No. (2) is answered in favour of the revenue and against the assessee. 16. Section 69 of the Act provides that, where in the financial year immediately preceding the assessment year, the assessee has made investments which are not recorded in the books of account, if any, maintained by him for any source of income, and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced records or materials to show that the amount was actually invested by the company and not by him in his personal capacity. In the absence of any such materials produced, the assessing officer was justified in rejecting the explanation given by the appellant and in bringing the amount to tax as unexplained investment. 19. The assessment of tax made by the authority concerned is not solely based on the sworn statement of the appellant given to the income tax authority. The basis of the assessment is the agreement executed by the appellant for purchase of property and also the circumstance that the appellant failed to establish his plea regarding the investment made. The sworn statement of the appellant only corroborates those materials. The fact that the assessing authority gave emphasis to the sworn statement of the appellant while passing the order of assessment does not change this fact situation. 20. The Tribunal has adverted to the factual aspects and confirmed the findings made by the assessing authority and the appellate authority. The conclusion reached by the Tribunal on a finding of fact cannot be interfered with by this Court unle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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