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TMI Blog2023 (9) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... urvey u/s 133A of the Income Tax Act, 1961 (hereinafter "the Act") was conducted on 06.01.2012 at the business premises of the assessee (M/s. Rastogi Sarraf Jewellery Shop). According to the AO, the survey party incharge Shri K. N. Sonkar ACIT reported that during the survey proceedings, the proprietor/assessee Shri Shambhu Prasad Rastogi admitted on oath of stock of Silver to the tune of 200 Kgs as on 06.01.2012. However, according to the AO, when the physical inventory of silver was being carried out, mob of locals/association of traders came inside the shop and disrupted the survey operation; and in the ruckus created by the unruly mob, the physical inventory couldn't be completed and the papers prepared by them, were torn and resultantl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the explanation given by assessee and instead took note of the statement given by the assessee during the survey wherein he admitted stock of silver at 200kgs, and in his books stock of 113.198 Kgs only, AO asked the assessee to explain the difference of quantity of the silver to the tune of 86.072 kilograms (200 Kg - 113.198 Kgs) valued at Rs. 1,84,080/-, which according to AO, assessee failed to explain, so AO considered it as excess stock as on 06.01.2012 which he added i.e, Rs. 1,84,080/-. Aggrieved, the assessee preferred an appeal before the Ld. CIT(A) who was pleased to confirm the action of the AO. Aggrieved by the aforesaid impugned action of the Ld. CIT(A), the assessee is before this Tribunal. 5. I have heard both the parties an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of CIT Vs. S. Khader Khan Son (2013) 352 ITR 480 (SC) wherein the Hon'ble Supreme Court upheld the view of Hon'ble High Court of Madras in that case [ i.e reported in 300 ITR 157 (Mad)] wherein it was held that section 133A of the Act does not empower any Income Tax Authority to examine any person on oath in contradistinction to power given to authorities u/s 132 of the Act [ i.;e. search proceedings] to record statements under oath and which have evidentiary value. And that the statement recorded during survey cannot be equated with that of the statement recorded u/s 132 of the Act (search) and therefore cannot be given the weight of evidence as that has been recorded u/s 132(4) of the Act, And that any admission made during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achittar Singh Vs. CIT (2010) 328 ITR 400 (P & H) * Navdeep Dhingra Vs. CIT (2010) 56 taxmann.com 75 (P&H) * Bhagirath Aggarwal Vs. CIT (2013) 31 taxmann.com 274 * Smt. Dayawanti Vs. CIT (2016) 75 taxmann.com 308 (Del) * ITO vs. B. D. Dal & Oil Ind. (1992) 40 ITD 1480 (Jaipur) * Kunhambu Vs. CIT (1996) 86 taxman 477 (Kerala) * Hiralal Maganlal & co. V. DCIT (2005) 96 ITD 113 (Mumbai) 6. I take note that during survey on 06.01.2012 assessee's statement was made to the effect that silver stock was to the tune of 200 Kgs and thereafter due to disruption of survey operation as noted (supra), the survey team could not take physical stock of the silver as on that date. However, AO had acknowledged the fact that assessee's statement w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as on 06.01.2012, the difference of stock of 86.072 Kgs valued at Rs. 1,84,080/-] cannot be countenanced. As per the decision of the Hon'ble Madras High Court and upheld by Hon'ble Supreme Court in the case of S. Khader Khan Son in civil Appeal No. 13224 of 2008 and 6747 of 2012 (supra) the statement of assessee recorded during survey cannot be given the same weight in contradistinction to statement recorded us/ 132(4) of the Act. However, as held by Hon'ble Jurisdictional High Court in Dr. S. C. Gupta & Sanjeev Agrawal (supra), admission voluntarily made u/s 133A of the Act can be the basis of the assessment. But in this case, it is noted that assessee while recording the statement on oath on 23.01.2013 before the AO us/ 131 of the Act ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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