TMI Blog2008 (10) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of parties but on the basis of actual earning of income. The assessee has all along been claiming that it has not carried out any renovation, which requires any expenditure to be incurred. This fact should have been verified by the AO. Even after filing photographs in this regard the AO turned a blind eye to the ground reality and has sought to made addition merely on the basis of statement recorded during the course of survey. Section 133A do not compel an assessee to give statement on oath. If the survey officials have recorded the statement on oath, it is an excessive exercise of power. Except the statement of a director of the assessee-company, there is no other material to make the addition. However, when the assessee denie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on 11-2-2003. During the survey operation the director of the assessee stated to have made an investment of Rs. 5 lakhs in respect of renovation of the premises under occupation of the assessee. However, while filing the return of income, the said amount was not offered for taxation. During the course of assessment, the assessee was asked to explain why the amount has not been included in the taxable income. The assessee submitted that there was no such investment by way of renovation in the office. The statement made has already been retracted vide letter dated 24-1-2006. Since there was no renovation carried out and in fact building was in a dilapidated condition, which is evident from the photographs produced, there is no unexplained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only to gather some information. However, there is no prohibition to record a statement on oath, which are otherwise available under section 132(4) or under section 131 of the Act. Thus even if the statement is recorded on oath, the same is without the power available under section 133A and hence not valid. He further submitted that time and again the assessee contended that there is no renovation carried out in the premises in spite of filing of photographs in this regard. The Assessing Officer made the addition merely on the basis of statement recorded without actually verifying the situation. When the very issue of renovation is in question, there cannot be any value assignable for the same. He submitted that merely on the basis of state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... photographs in this regard the Assessing Officer turned a blind eye to the ground reality and has sought to made addition merely on the basis of statement recorded during the course of survey. The Hon ble Madras High Court in the case of S. Khader Khan Son ( supra ) held as under: "The principles relating to section 133A of the Income-tax Act, 1961, are as follows: ( i ) an admission is an extremely important piece of evidence but it cannot be said that it is conclusive and it is open to the person who made the admission to show that it is incorrect and that the assessee should be given a proper opportunity to show that the books of account do not correctly disclose the correct state of facts; ( ii ) in contradistinction to the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any person which may be useful for, or relevant to, any proceeding under the Act. Section 133A do not compel an assessee to give statement on oath. If the survey officials have recorded the statement on oath, it is an excessive exercise of power. Except the statement of a director of the assessee-company, there is no other material to make the addition. An addition under section 69 is possible provided the assessee has made investments which are not recorded in the books of account, if any maintained and the assessee offers no explanation about the nature and source of investment. However, when the assessee denies the fact of having made any investment and there is no other material except the statement of assessee that any investment ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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