TMI Blog2017 (5) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Revenue is to tax the real income of the assessee which should be based on the documents. AO is directed to delete the same. - Decided in favour of assessee. Disallowance of foreign travel expenses - assessee claimed the cost of foreign trips was sponsored by the company - Held that:- The assessee before the lower authorities has furnished the confirmation from the party ERIS in respect of Canada tour. Therefore it can be concluded that the assessee has not incurred Canada tour expenses outside the books. In this regard we also find that the lower authorities should have confirmed the same from the company whether the Canada tour was sponsored by it under section 133(6) of the Act. But we find that the AO failed to exercise his power given under the Statute. However the assessee before us failed to furnish the details in respect to the tour expenses to Thailand. Therefore, we are inclined to confirm the same to the extent of ₹ 1.08 lakh in respect of Thailand tour. Thus, in view of above we delete the addition made by the lower authorities in respect of Canada tour for ₹ 1.16 lakh only. Thus this ground of the appeal of the assessee is partly allowed. - ITA No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng home/Govt. Hospital etc. Ans. I admit my patient in Diplomat Nursing Home and charge consultations fees for ₹ 500/- per day per patient. I am also Director of Burdwan Critical Care Unit (B.C.C.C.C) without remuneration but charge consultation fee @ ₹ 500/- per patient per day. Q. 8. Your daily sheet for 28th March 2010 shows number of patient examined 58 but the entry in patient register is 34. Kindly explain it. Ans. This is a mistake. Q. 9. As per daily patient list for 28th March 2010 number of patient is 58 and 29th March 2010 number of patient is 62. So average comes to 60/day. Do you agree for this? Ans. Yes. Q 10. What will be your estimated income for this financial year (2009-10)? Ans. It will be approximately ₹ 44,00,000/- (forty four lakhs). Q. 11. What mount of tax you are going to pay for this financial year? Ans. I have paid ₹ 2,70,000/- as advance tax and I shall pay ₹ 10,00,000/- in addition to that amount for this I am giving your one cheque of ₹ 3,00,000/- for this date and two post dated cheques of ₹ 3,50,000/- each. Q. 12. Do you want to add, alter or omit anything ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed u/s.44AA r.w.r. Rule 6F of the IT Rules have not maintained. However, Ld. CIT(A) has confirmed the order of AO after giving relief to the assessee in part by observing as under:- An affidavit is a piece of evidence, which along with other material on record, has to be taken into consideration before arriving at a finding. A statement by a deponent can be held to be unreliable either on the basis of cross-examination of the deponent or by reference to other material on record (Gunwantibai Ratilal Vs CIT (MP) 146 ITR 140, Silk Museum vs CIT (Guj) 257 ITR 22) Affidavit need not always be accepted as correct. It is neither a rule of prudence nor a rule of law that the statements made in an affidavit which remains uncontroverted, must invariably be accepted as true and reliable. Ordinarily, in the absence of denial, the statements may be accepted as true but if there are circumstances which suggests that the statements on affidavit should not be accepted as true, the absence of denial by the other side, would not by itself be sufficient to clothe the statements on affidavit with truthfulness and reliability (Sri Krishna Vs CIT (All) 142 ITR 618). 9. In this case m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following grounds:- 1. For that on the facts of the case, the order passed by the Ld. CIT(A) is completely arbitrary, unjustified and illegal. 2. For that on the facts of the case, the Ld. CIT(A) was wrong by holding the Assessing Officer's order as invoking sec. 145(3) of the IT Act which is completely arbitrary, unjustified and illegal. 3. For that on the facts of the case, the Ld. CIT(A) was wrong in estimating the professional income at ₹ 39,00,000/- in place of ₹ 18,13,702/- shown by the assessee which is completely arbitrary, unjustified and illegal. 4. For that on the facts of the case, the Ld. CIT(A) has estimated the income at ₹ 39,00,000/- without any basis which is completely arbitrary, unjustified and illegal. 6. Ld. AR for the assessee before us filed paper book which is running pages from 1 to 45 and submitted that the statement was taken by survey party under coercion and books of account of assessee was rejected only on the basis of statement. The AO has not pointed out any defect in the audited financial statements furnished while assessment proceedings. Ld. AR also submitted that there cannot be any reasonabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to establish that confession was involuntary and the same was extracted under duress and coercion. The burden of proving that the statement was obtained by coercion or intimidation lies upon the assessee. Where the assessee claims that he made the statement under the mistaken belief of fact or law, he should have applied for rectification to the authority who passed the order based upon his statement. The retraction should be made at the earliest opportunity and the same should be established by producing any contemporaneous record or evidence, oral or documentary, to substantiate the allegation that he was forced to make the statement in question involuntarily. On examination of the facts of the case on hand in the light of settled principles of law we find that survey under section 133A of the Act was concluded in the night at 9.30 PM when the statement was recorded as evident from the affidavit furnished by the assessee. Relying on the above judgment, we hold that assessee can retract from his statement filed at the time of survey after providing the reasonable reason. In the instant case, before us the assessee has filed an affidavit in support of his claim. Besides the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements is without any basis and deserves to be deleted as there is no corroborative materials on record. It seems that addition has been made merely on the basis of statement/presumptive basis and no corroborative material has been brought on record. Presumption. On similar facts, we also find that Co-ordinate Bench has deleted the addition made on the basis of statement us. 133A of the Act in the case of ACIT vs. Ajoy Bakli in ITA No. 312/Kol/2013 for A.Y.2009-10 vide order dated 06.05.2015. The relevant operative portion of this order is reproduced below:- 6. We have duly considered the rival contention and gone through the record carefully. Hon'ble Madras High Court in the case of CIT vs. S. Khader Khan Son (supra) has considered the evidentiary value of the seta recorded during the survey and held that on the basis of the statement addition cannot be made. Similarly, the ITAT Delhi in the case of Mahesh Ohri (supra) has also considered this aspect and after putting reliance upon the judgment of the Hon'ble Kerala High Court in the case of Paul Mathews Sons vs. CIT reported in (2003) 263 ITR 101 (Ker.) has held that section 133A empowers the authority to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imed to have been sponsored by Pharmaceuticals companies as academic tour. The assessee has visited Thailand two times for 4 days each and Canada for three day single trip. The AO during the course of assessment proceedings, called upon the assessee to furnish the details of expense and name of the Company which has sponsored the foreign tour programmes. However, assessee failed to furnish details as desired by AO. Accordingly, AO opined that the assessee has incurred expenses out of the books of account which was not disclosed to the revenue. Thus, the AO estimated expenditure at ₹ 8 lakh and added to the total income of assessee. 10. Aggrieved, assessee preferred an appeal before Ld. CIT(A) who reduced the disallowance from 8 lakh to ₹ 2.24 lakh by observing as under:- 12. The appellant objected to same before me. In view of section 28(iv) the value of the sponsored foreign trip is business receipt and taxable. Since exact figure is not known, the Assessing Officer has to estimate the same. The Assessing Officer has not given the computation. On a rational scale, the expense on 2 trips to Bangkok and 1 trip to Canada on economy class air travel will be ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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