TMI Blog1998 (6) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... the case was fixed for 9th April, 1997. On this date the case was adjourned for 14th July, 1997, and the Departmental Representative was directed to produce assessment records of Kewalram in which case was search was also conducted. On 14th July, 1997, the case was again adjourned to 5th Nov., 1997, with similar direction. On 5th Nov., 1997 again adjournment was sought by the Departmental Representative as he informed that the case records could not be summoned. With the similar direction, the case was again adjourned for 26th Feb., 1998. On 26th Feb., 1998, the case was taken up but at the request of the Departmental Representative the case was again adjourned for 20th May, 1998, and lastly it was adjourned for 25th May, 1998. 4. On 20th May, 1998, an application, dt. 19th May, 1998, was received by the Registry which was put up before the Bench on 20th May, 1998 at the time of hearing. The application was signed by learned Senior Departmental Representative, B.R. Meena. In the application it was stated that inspite of best efforts the records and seized material from Ahmedabad in these cases could not be received. Therefore, it is not possible to argue the cases. In subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment as the Department failed to produce seized records and books as per direction of the Tribunal which was given much earlier i.e., in the month of April, 1997. Almost more than one year is elapsed but the Department did not bother to comply with the directions of the Tribunal. Therefore, the appeals are decided on the basis of arguments put forth by the learned Departmental Representative, and the material placed on record. For the sake of completeness further, on the date of hearing i.e., on 25th May, 1998, the learned Departmental Representative stated that the Senior Departmental Representative has already given in writing that appeal may be decided on merits. Therefore, they may be decided on merits. The appeals are decided after hearing the learned authorised representative and considering the material on record. 6. First we will deal with the additional ground which was requested vide application, dt. 6th June, 1997. The additional ground is reproduced here as under: "That the impugned survey alleged to have been conducted on 25th Feb., 1987 was without jurisdiction, illegal and consequent proceedings deserve to be ignored and addition deleted." This additional gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her observed by the AO as under: "Copy of the stock inventory and also extracts of the statement of Lakhanumal were supplied to the assessee on 31st Jan., 1991. The assessee was requested to file his replies on the points mentioned by the CIT(A) in his replies on the points mentioned by the CIT(A) in his order. On the basis of replies filed by the assessee from time to time and on the basis of field enquiries got conducted through the Income-tax Inspector Rohit Assudani posted in this circle and also after examination of the authorised Inspector N.P. Nigam, at the time of survey and also after examination of the persons whose affidavits the assessee had submitted, the following results have come in, which are discussed pointwise as directed by the CIT(A)." On p. 5, in last but three lines (in English) it is mentioned as under: "Copy of inventory was also given to him. Then in reply to this he filed his detailed report on 24th Feb., 1991, which is as under, in his language". On p. 8 in first typed para of this order says as under: "Copy of report submitted by Nigam was given to the assessee and he was also presented for cross-examination by the assessee and his authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Inspector Shri Nigam. 10. Now we will examine whether an Inspector is empowered to record statement or prepare the inventory of stock. 11. Sub-s. (3) of s. 133A reads as under: "An IT authority acting under this section may, (i) if he so deems necessary, place marks of identification on the books of account or other documents inspected by him and make or cause to be made extracts or copies therefrom, (ii) make an inventory of any cash, stock or other valuable article or thing checked or verified by him, (iii) record the statement of any person which may be useful for, or relevant to, any proceeding under this Act". Explanation below sub-s. (5) of s. 133A reads as under: Explanation (a). In this section, "IT authority" means a CIT, a Dy. CIT, a Director or an AO, and for the purpose of cl. (i) of sub-s. (1), cl. (i) of sub-s. (3) and sub-s. (5), includes an Inspector of Income-tax if so authorised by any such authority. By going through these provisions of law, we find that Inspector is only empowered to mark identification but nowhere he is empowered or authorised to record the statement or to prepare the stock inventory. Stock inventory and statement can be r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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