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2016 (5) TMI 586 - AT - Income TaxAddition to income - scrutiny assessment u/s 143(2) - statement recorded under section 133A - value of the statement taken during the course of survey - Held that:- The issue regarding evidentiary value of the statement taken during the course of survey, has fallen for consideration before the Hon’ble Kerala High Court in the case of Paul Mathews and Sons (2003 (2) TMI 25 - KERALA High Court) held as during the course of survey, the officer could record the statement of a person under sub-section 3(iii) of section 133A of the Income Tax Act. This clause authorizes the authority to record a statement of any person which may be useful for or relevant to any proceedings under the Act. However, the officer is not authorized to record the statement on oath, and hence, the statement taken during the course of survey, has no evidentiary value. It is simply an information, which can be used for corroboration purpose for deciding any issue in favour or against the assessee. Post survey inquiry statement of PSP recorded under section 131which was on oath - if statement recorded under section 133A was ignored, then, there is a further disclosure by the payer. We find that his statement was recorded from the back of the assessee, and no opportunity to cross-examine the deposer was given to the assessee. Hence, this statement cannot be used against the assessee. We find support from the decision of Hon’ble Supreme Court in the case of Kishanchand Chellaram (supra) wherein it was held that any material not confronted to the assessee would not constitute as admissible evidence and consequently addition made on the basis of such evidence is liable to be deleted. In the present case PSP was not subjected cross-examination. His statement was not recorded in the assessment proceeding of the assessee. It was in post-survey inquiry of his own case. Therefore, this piece of evidence is to be excluded. Loose papers and small diaries impounded during the course of survey carried at the premises of PSP - even at the premises of PSP, no search was conducted. There was no common documents executed between PSP and the assessee was found, which bears the signatures of both the parties. To the extent common document was found i.e. last entry where assessee has confirmed receipt and put his signature in the diary of PSP , assessee has offered the amounts for taxation. If we evaluate the evidence collected by the AO in shape of loose paper impounded during the course of survey, in the light of the decision of Abhalbhai Arjanbhai Jadeja (2013 (4) TMI 731 - GUJARAT HIGH COURT ), then, it would reveal that conclusive evidence was not collected even during the course of survey demonstrating the payment made to the assessee. Therefore, we allow ground of the appeal of the assessee and delete the addition. - Decided against revenue
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