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2022 (2) TMI 518 - ITAT SURATUndisclosed investment u/s.69 - unaccounted payment on purchase of impugned land - Recording of the statement by survey team - survey action was carried out at the premises of the assessee-firm, during the survey, the statement of partner was recorded under section 131 who disclosed that he sold the land admeasuring 76,788 square yard in the year 2007 @ ₹ 550 per square yard to the assessee-firm and received consideration of ₹ 4.22 crore - HELD THAT:- We find that the lower authorities while making addition made more reliance on the statement of the partners instead of considering the documentary evidence and the effect of legal fiction under section 45(3) of the Act. Documentary evidence placed on record by assessee, fully corroborate the submissions of assessee that there is no sale of land by Gobarbhai Gondalia to the assess-firm, rather the said land was introduced as capital contribution, and that no money is paid by the assessee firm to the partner. There is no evidence on record about the unexplained investment by the assessee-firm in the impugned land rather it is a part of capital contribution by partner. If there was any remote chance of unexplained investment in the land, it might have been made by partner who had purchased the land in his individual capacity in FY 2007-08. No such investigation is carried out either by the AO or by ld CIT(A). No addition is made in the hand of purchaser of land, though; it was informed to the AO at the initial stage that the said land was purchased by individual partner. It is settled law that statement recorded during the survey action has no evidentiary value unless it is corroborated with material evidence, when the statement made during the survey stand retracted. We find that in Pawan Kumar Goel [2019 (6) TMI 52 - PUNJAB AND HARYANA HIGH COURT] held that provision of section 133A(4) prohibits the income tax authority to remove cash, stock or other valuable article and it is only upon non-cooperation or refusal by the person under search that power under section 131(1) can be resorted. Recording of the statement by survey team under section 131(1) is not valid. Thus, no cognizance of such statement could be taken. Hence, the addition which is solely based on the stamen is not legally sustainable. Thus, the assessee also succeeded on this submission as well. Considering the fact that we have allow the appeal of assessee on two primary submissions of ld AR for the assessee, therefore, the consideration and adjudication of other submissions has become academic. In the result, the ground of appeal raised by the assessee is allowed. Appeal of the assessee is allowed.
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