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The ITO, Ward-4 (1) , Ahmedabad Versus Gopal Glass Works Ltd.

Addition on account of undisclosed income - Held that:- Revenue failed to collect any other material during the course of survey, and accordingly, on the basis of the statement given without oath, addition cannot be made. Therefore, the ld.CIT(A) has rightly deleted the addition.

Exclusion of undisclosed income from the book profit computed under section 115JB - Held that:- This ground deserves to be rejected simply for two reasons, viz. addition of ₹ 2.00 crores has already bee .....

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chedule-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 - Dated:- 4-5-2016 - Shri Rajpal Yadav, Judicial Member And Shri N. K. Billaiya, Accountant Member Fo .....

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ed income, and (b) the ld.CIT(A) has erred in excluding ₹ 2.00 crores from the book profit computed under section 115JB of the Income Tax Act. Rests of the grounds are general in nature. 3. Brief facts of the case are that the assessee-company has filed its return of income electronically on 31.10.2007 declaring NIL income after claiming set off of the carry forward loss of ₹ 73,90,737/-. This return was revised on 28.09.2008 and the assessee has reduced the claim of brought forward .....

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. 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 .....

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closed income at ₹ 2.00 crores, other two important persons were sitting with him, one was Joint-Director and the other was President (Finance), therefore, there cannot be any question of pressure or coercion. The disclosures were made with respect to investment in residential house, plant & and machinery and cash-loan. But unfortunately, the assessee company did not come with correct valuation of residential property etc. 4. Dissatisfied with the addition, the assessee carried the mat .....

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the addition made by A.O. The A.O has relied upon solely on the statement recorded, during survey, and that statement 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 deposit .....

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idered opinion that the addition made by the AO is not supported by any cogent evidence and therefore it is deleted. 5. Before us, the ld.DR relied upon the order of the AO. He contended that an amount of ₹ 2.00 crores was admitted by the Managing Director, as income to be offered to tax. The assessee failed to show this amount in its total taxable income. Therefore, the ld.AO has rightly made addition. 6. On the other hand, the ld.counsel for the assessee contended that as far as the stat .....

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157 (Mad.). The SLP against this decision has been dismissed by the Hon ble Supreme Court, reported in (2012) 210 TAXMAN 248 (SC). 7. We have duly considered rival contentions and gone through the record carefully. The ld.AO is harping upon the reply to question no.20 of the statement given by the Managing Director of the assessee company 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 t .....

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statement taken during the course of survey, has fallen for consideration before the Hon ble Kerala High Court in the case of Paul Mathews and Sons (2003) 263 ITR 101 (Ker). According to the Hon ble Kerala High Court, during the course of survey, the officer could record the statement of a person under subsection 3(iii) of section 133A of the Income Tax Act. This clause authorizes the authority to record a statement of any person which may be useful for or relevant to any proceedings under the .....

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which may be useful for, or relevant to, any proceeding under the Act. Section 133A, however, enables the income-tax authority only to record any statement of any person which may be useful, but does not authorise taking any sworn statement. On the other hand, we find that such a power to examine a person on oath is specifically conferred on the authorised officer only under section 132 (4) of the Income-tax Act in the course of any search or seizure. Thus, the Income-tax Act, whenever it though .....

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tever 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" .....

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