TMI Blog2013 (12) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... ugust 3, 2009 passed for the assessment year 200506. The following grounds of appeal project the grievance of the assessee as under : "1. That the learned Commissioner of Income-tax (Appeals) has erred in law and on the facts in confirming addition of Rs. 2,00,00,000 being additional income declared on account of survey operation and assessed as undisclosed income as per statement on oath recorded without any material on records of the Assessing Officer as well as no defects were found in the books of account. 2. That the learned Commissioner of Income-tax (Appeals) has erred in law and on facts in confirming the Rs. 5,52,595 disallowed on under section 40(a)(ia) without appreciating the retrospective change under the Income- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 2 crores. The appeal to the learned Commissioner of Income-tax (Appeals) did not bring any relief to the assessee. Before us while impugning the orders of the learned Revenue authorities below, learned counsel for the assessee pointed out that during the course of survey, the Department was unable to lay its hands on any incriminating material. The learned Assessing Officer in the assessment order has not referred to any evidence collected during the course of survey or any discrepancy noted in the position of stock available at the premises vis-a-vis available in the books of account. He has not pointed out any defect in the books of account also. The learned Assessing Officer is simply harping upon the reply of the assessee vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue. The assessee has voluntarily came forward and disclosed an income of Rs. 2 crores. He has handed over the cheques to the Department which were duly encashed. Thus, in a way, the assessee has stopped the Department from carrying out further investigation. In such circumstances, the Law of Estoppels would come in the way of the assessee from retracting his earlier admission. For buttressing his contentions, he relied upon the decision of hon'ble Karnataka High Court in the case of T. P. Indrakumar v. ITO reported in [2010] 322 ITR 454 (Karn). He pointed out that in this case, the case of the assessee was taken up for scrutiny assessment. The learned Assessing Officer found a gift of Rs. 10 lakhs, in order to avoid probe doubly. The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the various provisions of Incometax Act will be initiated against me. This surrender is made without any force and pressure. In view of the surrender I hereby present the cheques for payment of taxes as per the details given below : Cheque No. Drawn on Amount 1. 908461 dated February 7, 2006 IDBI Bank KG Marg, New Delhi Rs. 35,00,000 against the tax of the assessment year 2005-06 2. 980462 dated February 28, 2006 do Rs. 30,34,738 of the assessment year 2005-06 3. 980463 dated March 11, 2006 do Rs. 25,00,000 of the assessment year 2006-07 (as advance tax) Apart from this stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to confer such power to examine a person on oath, the same has been expressly provided whereas section 133A does not empower any Income-tax Officer to examine any person on oath. Thus, in contradistinction to the power under section 133A, section 132(4) of the Income-tax Act enables the authorised 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 it 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee had made voluntary disclosure and filed a revised return. In the present case, the Department failed to collect any material during the course of survey and the Assessing Officer is simply harping upon the statement of the assessee, extracted supra. According to the authoritative pronouncement of the hon'ble Supreme Court in the case of CIT v. S. Khader Khan Son [2013] 352 ITR 480 (SC) as well as the hon'ble Kerala High Court, this statement does not carry any evidentiary value and, therefore, no addition is sustainable on the strength of this statement. In view of the above discussion, we find force in the first ground of appeal raised by the assessee and delete the addition of Rs. 2 crores. As far as other grounds are concern ..... X X X X Extracts X X X X X X X X Extracts X X X X
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