9911796707
TMI Blog2023 (1) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... hat, on the facts & in the circumstances of the case Ld.CIT (A)-XXVIII, New Delhi was not justified in confirming additions of surrendered amount of Rs. 9,78,800/- as excess cash during the survey proceedings which have been retracted by the appellant. 4. That, on the facts & in the circumstances of the case Ld.CIT (A)-XXVIII ,New Delhi was not justified in confirming additions of surrendered amount of Rs.8,50,000/- as unexplained investments during the survey proceedings which have been retracted by the appellant. 5. That, on the facts & in the circumstances of the case Ld. CIT(A)-XXVIII was not justified in confirming the addition of Rs.96,000/- made by ACIT ,Circle 39(1),New Delhi on account of rent paid in respect of Property No. A-2/106,Milan Vihar Apartment, 72, I.P. Extn. Patparganj, Delhi by invoking provisions of section 40A(2)(b) of the I.T. Act, 1961. 6. The appellant craves his right to add new ground or amend any ground during the Appellate Proceedings." 3. The assessee moved an application dated 26.10.2021 under Rule 11 of Income Tax (Appellate Tribunal) Rules 1963 for admission of the following additional grounds:- "a. On the facts and circumstances of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f cash alleged that cash of Rs. 10,01,000/- was available. The Ld. AO wrote back to the assessee on 15.12.2010 denying all the allegations made by the assessee. The assessee had filed his return for AY 2008-09 on 27.09.2008 declaring loss of Rs. 1,00,930/- and without considering the voluntary surrender made during the course of survey operation. The case was picked up for thorough compulsory scrutiny. During the course of assessment proceedings, the Ld. AO issued a show cause notice dated 22.12.2010 to the assessee which was duly replied by the assessee vide letter submitted on24.12.2010. The submissions of the assessee were not acceptable to the Ld. AO. According to the Ld. AO the assessee voluntarily surrendered the amount of Rs. 75,00,400/- and deposited tax also. This statement was recorded on oath. The assessee retracted the disclosure made in the statement recorded on oath on 19.09.2007 and 20.9.2007 after 27 days of the survey and that the retraction had no merit. The Ld. AO completed the assessment on total income of Rs. 74,95,470/- on 31.12.2010 under section 143(3) of the Act including therein the impugned additions. 6. Aggrieved, the assessee appealed before the Ld. CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have perused the section 133A as amended from time to time. We find that sub-section (3)(iii) of section 133A does not authorise the survey officer to record the statement of any person which may be useful for, or relevant to any proceeding under the Act. However, such statement recorded cannot have any evidentiary value. In CIT vs. S. Khader Khan & Son (supra) the Hon'ble Madras High Court held that a power to examine a person on oath is specifically conferred on the authorities only under section 132(4) in the course of any search or seizure. The Act, whenever it thought fit and necessary to confer such power to examine a person on oath, has specifically provided for it, whereas section 133A does not empower any ITO to examine any person on oath. Statement recorded under section 133A is not given any evidentiary value obviously for the reason that the officer is not authorised to administer oath and to take any sworn statement which alone has evidentiary value as contemplated under law. The Hon'ble Madras High Court further held that the word "may" used in section 133A(3)(iii) makes it clear that the materials collected and the statement recorded during the survey under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mittal, at A-2/106, Milan Vihar Apartments, 72, I.P. Extension, Delhi-110 092 and at A-28, Sector-8, Noida U.P.-201301. PAN NO. - AADPM 6092R Dear Sir, Most respectfully it is submitted that through my letter dated 17.10.2007 addressed to Hon'able Chief Commissioner and copy to your goodself I have retracted from my statement recorded on 19-09-2007/20-09-2007. On my request dated 24.9.2007 and subsequent reminder dated 11-02- 2008 a copy of the said statement was provided tame on 20-02-2008.On going through the said statement my comments are as under: On the very first page of the statement your good self has taken my signature on oath on 19-09-2007 whereas your signatures have been put at the fag end of the survey on 20.9.2007. Secondly, on the last page i.e. page no. 12 of the statement under reference, while concluding the alleged survey you have written "recorded in my presence" which shows that yourself stood in both the positions of witness as well as administrator which cannot be the case. 3. Further in the said statement upto Question no. 30 (i.e. page 8) were dictated by your goodself to your subordinate and I was directed to write their answers in my ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ck prepared during the course of survey at your premises, the Stock of the value of Rs. 1,10,78,223/- has been found. Thus the stock is found in excess to the tune of Rs.56,71,600/-Please reconcile and explain this discrepancy.* It may be pointed out that the item in question is heavy paper reels weighing in average about 300 Kgs. - 400 Kgs. per reel. Neither the survey team had taken reels of paper for weighment nor did they have any equipment to check or to verify the weight or value of the stock at Rs. 1,10,78,223/- without any basis or physical inventory and I was forcibly made to accept the same under pressure. Likewise there was no cash available in the business premises beyond Rs.22,143/- However, the survey team without making any physical inventory of the cash, alleged that a cash of Rs. 10,01,000/- was available in the business premises and claimed excess cash of Rs. 9,78,857/-, though no such amount of cash was available in the business premises. The survey team also assumed an imaginary figure of Rs. 8,50,000/- being the approx. Amount spent on renovation and interior decoration. It is submitted that certain renovations were carried outby me in the premises in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in reply to question No. 34 has stated that he is not maintaining any stock register because it involves various sizes, weight and quality of the paper. This statement of the assessee has completely been ignored by the Revenue Authorities. We, therefore, hold that the excess stock as worked out by the survey team does not rest on solid foundation as it has been arrived at by incorrect assumptions. 14. As to the excess cash, in the letter of retraction, the assessee submitted that there was no cash available in the business premises beyond Rs. 23,143/-. It was explained to the Ld. AO/CIT(A) that for payment of tax the assessee was made to collect money from his relatives and friends. Complete details i.e. name of the party, address, PAN, amount were furnished (pages 49-52 of Paper Book). The total of such cash collection by the assessee amounted to Rs. 10,02,000/-. Apart from this, the assessee arranged Rs. 8,50,000/- vide cheque No. 137414 from Ajay Kumar Aggarwal & Sons (HUF); Rs. 1,50,000/- vide cheque No. 000004 from Girraj Kishore Aggarwal & Sons (HUF) and Rs. 5,45,799/- through overdraft Account No. 06304010000150 maintained at Oriental Bank of Commerce. It was out of the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
