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TMI Blog2013 (12) TMI 1049X X X X Extracts X X X X X X X X Extracts X X X X ..... count of survey operation and assessed as undisclosed income as per statement on oath recorded without any material on records of the Assessing Officer as well as no defects were found in the books of account. 2. That the learned Commissioner of Income-tax (Appeals) has erred in law and on facts in confirming the Rs. 5,52,595 disallowed on under section 40(a)(ia) without appreciating the retrospective change under the Income-tax Act as to amounts paid before filing the return. 3. That the order of the learned Commissioner of Income-tax (Appeals) is bad in law and facts." We first take ground No. 1. The brief facts of the case are that the assessee has filed his return of income on October 30, 2005, declaring taxable income of Rs. 17,16,5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds on any incriminating material. The learned Assessing Officer in the assessment order has not referred to any evidence collected during the course of survey or any discrepancy noted in the position of stock available at the premises vis-a-vis available in the books of account. He has not pointed out any defect in the books of account also. The learned Assessing Officer is simply harping upon the reply of the assessee vide which the alleged surrender was made. He pointed out that statement during the course of survey is being recorded under section 133A(3)(iii) of the Act. This provision does not authorise the Revenue authorities to record the statement on oath. Therefore, the statement by the assessee does not carry any evidentiary value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee from retracting his earlier admission. For buttressing his contentions, he relied upon the decision of hon'ble Karnataka High Court in the case of T. P. Indrakumar v. ITO reported in [2010] 322 ITR 454 (Karn). He pointed out that in this case, the case of the assessee was taken up for scrutiny assessment. The learned Assessing Officer found a gift of Rs. 10 lakhs, in order to avoid probe doubly. The assessee has offered sum of Rs. 10 lakhs for taxation. He also filed a revised return. In this background of facts, the hon'ble court upheld the taxation of Rs. 10 lakhs on the basis of the admission made by the assessee. The similar circumstances are available in the present case. We have duly considered the rival contentions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessment year 2005-06 2. 980462 dated February 28, 2006 -do- Rs. 30,34,738 of the assessment year 2005-06 3. 980463 dated March 11, 2006 -do- Rs. 25,00,000 of the assessment year 2006-07 (as advance tax) Apart from this statement, the Revenue has not brought anything on record in support of its conclusion that the assessee has undisclosed income. During the course of survey, the officer could record this statement of a person under sub-section (3)(iii) of section 133A of the Income-tax Act, 1961. This clause authorise the authority to record the statement of any person which may be useful for or relevant to any proceedings under the Act. However, the officer is not authorised to record the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce under the Income-tax Act. On the other hand, whatever statement is recorded under section 133A of the Income-tax Act it is not given any evidentiary value obviously for the reason that the officer is not authorised to administer oath and to take any sworn statement which alone has evidentiary value as contemplated under law. Therefore, there is much force in the argument of learned counsel for the appellant that the statement elicited during the survey operation has no evidentiary value and the Income-tax Officer was well aware of this". Similarly, the hon'ble Madras High Court has also concluded that statement recorded during the course of survey has no evidentiary value. The special leave petition against the decision of the hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X
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