TMI Blog2016 (5) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Companies Act, 1956. Any adjustment can be made in the book profit only with regard to the items provided in clause (a) to (ha) appended with Explanation to section 115JB. No adjustment has been provided in section 115JB. The AO has no power to tinker with the accounts of the assessee, which have been prepared in accordance with Part-II of schedule-VI to the Companies Act. The ld.CIT(A) has assigned these two reasons, for buttressing his conclusion on the second reasoning, the ld.CIT(A) put reliance upon the judgment of the Hon’ble Supreme Court in the case of Apollo Tyres Ltd. Vs. CIT, (2002 (5) TMI 5 - SUPREME Court ). In view of the above discussion, we do not find any merit in this appeal of the Revenue - ITA. No. 2143/Ahd/2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 006. During the course of survey proceedings, statement of Shri Mayurbhai J. Shah, Managing Director of the assesseecompany was recorded. Shri Mayurbhai J. Shah in reply to question no.20 clearly disclosed a sum of ₹ 2.00 crores to be offered to tax. However, while filing the return of income, the assessee did not offer this amount of ₹ 2.00 crores for taxation. The ld.AO has confronted the assessee as to why it failed to disclose ₹ 2.00 crores offered during the course of survey proceeding. In response to the query of the AO, it was submitted by the assessee that the MD has retracted his statement vide letter dated 3.1.2007. No incriminating material was found during the course of survey which can suggest corresponding un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atement was also retracted by the appellant later on. As discussed elaborately in preceding paras, solely on the basis of statements recorded during survey operations, the addition cannot survive. The reliance placed by the Ld. A.R on various judicial pronouncements also supports the contention of the appellant. In para 6 and 7 of the assessment order, the A.O discussed regarding deposits received through banking channel and tried to link' those with disclosure made during survey operation. The A.O failed in that attempt. The A.O had the authority to investigate those deposits and if not found genuine he could have invoked the provisions of Sec. 68 of the I.T Act 1961. The A.O could not establish any nexus between deposits receive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany during the course of survey. This reply has been reproduced by the AO on page no.2 of the assessment order. We have perused this reply. The MD has retracted this statement and wrote a letter to ADI of the Department on 3.1.2007. In his letter, the MD has alleged that such disclosure was taken from him under pressure. Thus, it is a retracted statement. Apart from this statement, there is nothing on record, which can corroborate this statement. In other words, there is no material found during the course of survey, which can suggest unaccounted income possessed by the assessee-company of ₹ 2.00 crores. The issue regarding evidentiary value of the statement taken during the course of survey, has fallen for consideration before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been expressly provided whereas 'section 133A does not empower any Income-tax Officer to examine any person on oath. Thus, in contradistinction to the power under section 133A, section 132(4) of the Income-tax Act enables the authorised officer, to examine a person on oath and any statement made by such person during such examination can also be used in evidence 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 le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to (ha) appended with Explanation to section 115JB. No adjustment has been provided in section 115JB. The AO has no power to tinker with the accounts of the assessee, which have been prepared in accordance with Part-II of schedule-VI to the Companies Act. The ld.CIT(A) has assigned these two reasons, for buttressing his conclusion on the second reasoning, the ld.CIT(A) put reliance upon the judgment of the Hon ble Supreme Court in the case of Apollo Tyres Ltd. Vs. CIT, 255 ITR 273 (SC). In view of the above discussion, we do not find any merit in this appeal of the Revenue. It is dismissed. 11. In the result, the appeal of the Revenue is dismissed. Order pronounced in the Court on 4th May, 2016 at Ahmedabad. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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