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TMI Blog2007 (7) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... the voluntary statement made without any coercion or duress given during the course of survey action under Sec.133A could form the basis of the assessment ?" 2. The brief facts are: The assessment year involved in this appeal is 2001-02. The assessee filed its return of income on 29.10.2001 disclosing an income of Rs.12,640/-. The return was processed under Section 143(1) of the Income-tax Act, 1961 (in short 'the Act') on 27.8.2002 and notice under Section 143(2) of the Act was issued on 27.8.2002 and served on the assessee on 24.9.2002. In the instant case, a survey action was conducted under Section 133A of the Act on 24.7.2001 in the premises of the assessee at 90, Syed Mada Street, Shevapet, Salem and one of the partners of the firm, by name Asif Khan, in his sworn statement offered an additional income of Rs.20,00,000/- for the assessment year 2001-02 and Rs.30,00,000/- for the assessment year 2002-03. However, the said statement was retracted by the assessee through its letter dated 3.8.2001 stating that the partner Asif Khan, from whom a statement was recorded during the survey operation under Section 133A, was new to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olve on the vexed question whether the materials collected and the statement elicited during the survey operation under Section 133A of the Act had any evidentiary value. For the purpose of clarity, it is apt to refer Sections 132(4) and 133A of the Act, which are extracted as hereunder: " 132. Search and Seizure. (1) ....... (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 purpose of any investigation connected with any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act." 133A. Powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, (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 books of account or other documents or any cash, stock or other valuable article or thing. (5) Where, having regard to the nature and scale of expenditure incurred by an assessee, in connection with any function, ceremony or event, the income-tax authority is of the opinion that it is necessary or expedient so to do, he may, at any time after such function, ceremony or event, require the assessee by whom such expenditure has been incurred or any person who, in the opinion of the income-tax authority, is likely to possess information as respects the expenditure incurred, to furnish such information as he may require as to any matter which may be useful for, or relevant to, any proceeding under this Act and may have the statements of the assessee or any other person recorded and any statement so recorded may thereafter be used in evidence in any proceeding under this Act. (6) If a person under this section is requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion is extremely an 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. 8. Where a survey was conducted in the premises of the assessee, a medical practioner, and a statement was recorded from him, in which the assessee surrendered additional income and pursuant to the same, the assessing officer reopened the assessment, but during the course of which the assessee retracted the additional income offered and contended that the statement was the result of duress, which was not accepted by the assessing officer and also by the Tribunal holding that the statement is valid and that it was made without duress, a Division Bench of the Allahabad High Court The Allahabad High Court in Dr.S.C.Gupta v. Commissioner of Income-tax [(2001) 248 I.T.R. 782],(All) of course, placing reliance on the decision of the Apex Court in Pullangode Rubber Produce Co. Ltd. v. State of Kerala [(1973) 91 I.T.R. 18] held that the burden that was laid on the assessee to establish that the admission made in the statement at the time of survey was wrong and that there was no additional in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Act in the course of any search or seizure. Thus, the Income-tax Act, whenever it thought fit and necessary to confer such power to examine a person on oath, the same has 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, the statement elicited during the survey operation has no evidentiary value and the Income-tax Officer was well aware of this." (emphasis supplied) 11. Similarly, when the issue, whether the expression "such other materials or information as are available with the Assessing Officer" in Section 158BB of the Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urvey operations no attempt should be made to obtain confession as to the undisclosed income. Any action on the contrary shall be viewed adversely. Further, in respect of pending assessment proceedings also, assessing officers should rely upon the evidences/materials gathered during the course of search/survey operations or thereafter while framing the relevant assessment orders." 14. From the foregoing discussion, the following principles can be culled out:- (i) An admission is extremely an 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 accounts do not correctly disclose the correct state of facts, vide decision of the Apex Court in Pullangode Rubber Produce Co. Ltd. v. State of Kerala [(1973) 91 I.T.R. 18]; (ii) 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.&nb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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