TMI Blog2010 (10) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961 (for brevity "the Act") challenging the order dated January 4, 2010 passed by the Income-tax Appellate Tribunal (in short "the Tribunal") in I. T. A. No. 2033/Del/2009 for the assessment year 2005-06. 2. Briefly stated the relevant facts of the present case are that on September 14, 2004, a survey under section 133A of the Act was conducted on the respondent-assessee's business premises. During the course of survey, the tax officials noticed some discrepancies in stock and cash in hand. During the said survey, the respondent-assessee surrendered an amount of Rs.99,50,000 and offered the same for the purposes of taxation. The additional income offered included a sum of Rs. 45,00,000 on account of excess stock found during the course of survey and offered by one of the partners of the respondent-assessee as additional income. The answer by one of the partners of the respondent-assessee to question No. 13 during the survey proceedings is relevant and the same is reproduced hereinbelow : "Question No. 13 : Do you have any other business concerns being run from this premises, i.e., B-70/3, Wazirpur Indl. Area ? Answer : Yes, the company known as M/s. D. M. W. P. (Ltd.) is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urse of assessment, the Assessing Officer took up the same. The assessee's statement during the course of survey is not binding as evidence more so when it given in the eventuality of non-availability of ready explanation. It has not been held the assessee had no explanation to offer ; addition has been made only on the survey statement. From the record, it clearly emerges that both the concerns are independent entities separately assessed under income-tax and various other departments. Both are registered under various laws including excise and maintain statutory record of excise, stock registers ; books of account are duly audited. With all these facts present on record, addition cannot be made ignoring the reconciliation and evidence filed by the assessee and relying only on a statement which was given due to non-availability of ready explanation. The assessee immediately thereafter furnished correct stock statement which have not been controverted by the Assessing Officer. In view thereof, we are inclined to uphold the order of the Commissioner of Income-tax (Appeals) deleting addition." 9. Ms. Suruchii Aggarwal, learned counsel for the Revenue submitted that the statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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, (ia) impound and retain in his custody for such period as he thinks fit any books of account or other documents inspected by him : Provided that such income-tax authority shall not- (a) impound any books of account or other documents except after recording his reasons for so doing ; or (b) retain in his custody any such books of account or other documents for a period exceeding ten days (exclusive of holidays) without obtaining the approval of the Chief Commissioner or Director General therefor, as the case may be, (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. (4) An income-tax authority acting under this section shall, on no account, remove or cause to be removed from the place wherein he has entered, any cash, stock or other valuable article or thing. (5) Where, having regard to the natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement to have evidentiary value, the survey officer should have been authorised to administer oath and to record sworn statement. This would also be apparent from section 132(4) of the Act. The said section is reproduced hereinbelow : "132. Search and seizure.-. . . (4) The authorised officer may, during the course of the search or seizure, examine on oath any person who is found to be in possession or control of any books of account, documents, money, bullion, jewellery or other valuable article or thing and any statement made by such person during such examination may thereafter be used in evidence in any proceeding under the Indian Income-tax Act, 1922 (11 of 1922) or under this Act. Explanation.-For the removal of doubts, it is hereby declared that the examination of any person under this sub-section may be not merely in respect of any books of account, other documents or assets found as a result of the search, but also in respect of all matters relevant for the purposes of any investigation connected with any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act." (emphasis supplied) 12. From the aforesaid, it is apparent that while sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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