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2018 (1) TMI 1728 - HC - Income TaxValidity of reassessment after a period of four years - reasons to believe - reliance on statement recorded in the course of survey u/s 133A of a partner as stated that there is an understatement of the cost of construction of a commercial building - power to examine a person on oath - HELD THAT:- As decided in S.Khader Khan Son [2007 (7) TMI 182 - MADRAS HIGH COURT] the statement recorded during the course of survey action u/s 133A of the Act shall not have any evidentiary value and solely based on the said statement given by one of the partners of the firm, the question of reopening cannot be done. Further, after taking note of the decision in the case of Dr.S.C.Gupta [1999 (11) TMI 9 - ALLAHABAD HIGH COURT] the Court held that the power to examine a person on oath is specifically conferred on the authorities only under Section 132(4) of the Act in the course of any search or seizure and Section 133A does not empower any income-tax officer to examine any person on oath. Thus here is absolutely no basis for reopening of the assessment. That apart, though the second respondent seeks to bring out a case of underestimation in the cost of construction by referring to the statement of the partner, the second respondent himself called for a valuation report from the Public Works Department and find that the cost of the construction as disclosed in the return for the assessment year 1999-2000 and the valuation, which was done by the Public Works Department officials in the year 2003 has only marginal difference and the variation appears to be around Rs.1,00,000/-. Thus, on his own showing, the second respondent was not able to bring out a case of underestimation of the cost of construction. Thus, impugned reopening proceedings are wholly without jurisdiction and illegal. Thus the impugned reopening proceedings are quashed. Decided in favour of assessee.
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