TMI Blog2014 (1) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... r of assessee. - ITA No. 1247/Rjt/2010, ITA No. 639/Rjt/2012 - - - Dated:- 1-1-2014 - Shri T. K. Sharma JM And Shri B. R. Jain AM,JJ. For the Petitioner : Shri Kalpesh Doshi Shri G.C. Domadia, C.As. For the Respondent : Dr. J.B. Jhaveri, D.R. ORDER Per B. R. Jain, A. M. These two appeals arise from the orders dated 09/10/2012 of Shri Yogesh Pandey, Ld. Commissioner of Income Tax (Appeals)-IV, Rajkot in the case of Shri Kishore Mohanlal Karia and order dated 04th August, 2010 of Shri Prem Prakash, Ld. Commissioner of Income Tax (Appeals)-IV, Rajkot in the case of M/s M.P. Scrap Traders for the assessment year 2007-08 by raising grounds in respective appeals as under: "The grounds of appeal mentioned herein under are without prejudice to each another. 1. That order of the learned CIT(A) is bad in law and on the facts of the case and is based on the surmises and conjecture only and without considering the facts and submission made. 2. The ld. CIT(A) erred in law in confirming addition of Rs. 6 lacs as disclosed in statement under section 133A of the Act but retracted thereafter. 3. On the facts and in the circumstances of the case, the Ld CIT(A) has er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified, improper and bad in law. Thus, the retraction should be considered as valid and true". 2. Briefly the facts are that an action u/s 133A of the I.T. Act, 1961 (hereinafter to be referred as the Act) was carried on 04th January, 2007 at the business premises of the partnership firm namely M/s M.P. Scrap Traders, Rajkot, in which, Shri Kishorebhai Mohanlal Karia, one of the appellant, is also a partner. During the course of survey proceedings, statement of said Shri Kishorebhai Mohanlal Karia was taken in which, fixed deposits and bank transactions in the name of various family members and partners found stood surrendered as undisclosed income in various years i.e. assessment years 2000-01 to 2004-05. In his statement, Shri Kishorebhai Mohanlal Karia also admitted of unexplained investment in construction of house property and furniture etc. purchased by him. He also admitted to make surrender of Rs. 6 lacs on this account over and above the amount of aforesaid investments of Rs. 96,38,410/-. The assessee acted upon his statement and surrendered an income of Rs. 96,38,410/-. The same stood disclosed as his income in the return of income filed for assessment years 2000-01 to 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement obtained during the survey proceedings. The partner Shri Kishorebhai Mohanlal Karia, who is also the appellant before this Tribunal, however, has acted on the basis of the surrender made during the survey proceedings and disclosed the said amount as his income in the returns of income filed for the assessment years 2000-01 to 2004-05. Therefore, there remains nothing with the revenue authorities to say that the assessee has retracted the statement. Resting their conclusion by the A.O. as well as by the Ld. CIT(A) is thus on erroneous assumption of facts on record. In so far as second affidavit of the assessee of the even date i.e. on 23rd January, 2007 is concerned, the said affidavit is in consonance with the assessee's reply to question No. 9 regarding application of the amount realized of the undisclosed investment to which the assessee at that time had answered that at the relevant time, he is not able to exactly state as to where the said disclosed amount of Rs. 96,38,410/- has been applied. He, therefore, took time to come with the application of said amount on a later date. It is through this affidavit dated 23/1/2007, which was just after about 19 days of the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect to retraction of statement to the effect that the statement elucidated during the survey proceedings do not have any evidentiary value and the same should not be used against the assessee, even though, he had made a correct disclosure of investments of Rs. 96,38,410/- in the returns of income filed for the aforesaid five years. The Hon'ble Apex Court in the case of CIT Vs. S. Khader Khan Sons, (2013) 352 ITR 480 (SC) clearly admitted the principle that Section 133A of the I.T. Act does not empower any I.T. authority to examine any person on oath and therefore any admission made in survey cannot by itself be made a basis for addition. As the appellant Shri Kishorebhai Mohanlal Karia in appeal before us has acted on the surrender of Rs. 96,38,410/-, the retraction made through such an affidavit dated 23/1/2007 was of no consequence. His retraction otherwise with respect to any other offer of surrender contained in the statement was not acted upon by him as the same were stated to have been explained out of application of the realization of the aforesaid fixed deposits. For this purpose, his affidavit was filed before the authorities below. There was no material found as a result ..... X X X X Extracts X X X X X X X X Extracts X X X X
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