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TMI Blog2024 (5) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... the income for the Assessment Years 2009-10 to 2016-17. Thus the grounds raised by the Revenue is devoid of merits and the same is hereby dismissed. Appeal filed by the Revenue is hereby dismissed. - SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI T.R. SENTHIL KUMAR, JUDICIAL MEMBER For the Appellant : Shri M.J. Shah Shri Jimi Patel, A.Rs. For the Respondent : Shri Ashok Natha Bhalekar, Sr.D.R. ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:- 1. This appeal is filed by the Revenue as against the appellate order dated 23.01.2017 passed by the Commissioner of Income Tax (Appeals), Gandhingar, Ahmedabad arising out of the assessment order passed under section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ddition of Rs. 3,45,09,500/- as the undisclosed income of the assessee. 3. Aggrieved against the assessment order, the assessee filed an appeal before Commissioner of Income Tax (Appeals). The assessee strongly contended that the impugned loose paper did not depict the real profit of projects developed by the Firm. The assessee submitted the status of each of the projects undertaken by the Firm as follows: a) Samved-I of Visnagar Town This project consisted of one storey tenaments and the contract was awarded to the appellant firm by the plot owners and the project was completed in February, 2011 and related profit was already declared in the relevant assessment years The appellant had acted as contractor only in this project. If the additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spective assessment years. The appellant had acted as contractor only in this project. The project was incomplete as on the date of survey and only 40% of the said project was compinted. Therefore, it was wrong on the part of the A.O. to adopt the profit in respect of all the 50 units. The relevant details are available in the paper book (e) Supath Shopping Centre at Visnagar Town This was the project having 48 commercial units developed by the appellant firm and it was already completed in A.Y.2012-13 and the profit was already disclosed in the relevant assessment years. It has been contended that the project was only for 48 commercial units whereas the profit of 72 units had been taken by the A.O on the basis of disclosure made. It has al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8% is a reasonable profit under the presumptive scheme to taxation and therefore requested to delete the addition made by the Assessing Officer who made the addition merely relying upon the statement recorded during the course of survey which is held by Hon ble Supreme Court in the Case of CIT Vs. S. Khader Khan and Sons that Additions cannot be made based on the statement recorded during the course of survey. Considering the above submissions of the assessee, the Ld. CIT(A) estimated the gross profit at 12.5% and also given direction u/s. 150(1) to telescoping effect to the other Assessment Years 2009-10 to 2016-17 by observing as follows: .5.5 Considering all the facts as brought out by the A.O. in his assessment order, facts as appraise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... several decisions which have not been rebutted by the A.O. who unilaterally held that the retraction was invalid. 5.6 However, at the same time, the evidential value of the impounded loose paper cannot be ignored and therefore, the gross profit is estimated @ 12.5% and the total addition of Rs. 15,99,787/- has been worked out for the entire period and for the assessment year under consideration, the same has been worked out at Rs. 1,82,818/-. The A.O. is accordingly directed to give the telescopic effect to the AYs 2009-10 to A.Y.2016-17 by taking appropriate action as permissible u/s. 150(1) of the Act by re- opening the assessments. 4. Aggrieved against the same, the Revenue is in appeal before us raising the following solitary Ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han and Sons reported in (2013) 352 ITR 480 held as follows: In contradistinction to the power under section 133A, section 132(4) of the Income- tax Act enables the authorized officer to examine a person on oath and any statement made by such person during such examination can also be used in evidence under the Income-tax Act. On the other hand, whatever statement is recorded under section 133A of the Income-tax Act is not given any evidentiary value obviously for the reason that the officer is not authorized to administer oath and to take any sworn statement which alone has evidentiary value as contemplated under law, vide Paul Mathews and Sons v. CIT [2003] 263 ITR 101 (Ker.) 8. Further the assessee by way of an Affidavit dated 08.12.2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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