TMI Blog2017 (10) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... .2008 it should have been answered by the company which is an artificial juristic person and is assessed as a separate assessee. When the department was aware of the takeover when the survey has happened, we do not understand why the company was not proceeded against. We note that the entire addition has been based on the statement given by the one of the partner of the firm which has been taken on oath. There are two deficiencies/flaw for this. Firstly, the partner is not there in the eyes of law, when the firm is not existing . Secondly, the survey team does not have power to record statement on oath. The Hon’ble Supreme Court in CIT Vs. S. Kader Khan & Son (2013 (6) TMI 305 - SUPREME COURT) has held that during survey the statement ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (P) Ltd. on and from 01.09.2008 by an agreement of take over drawn out on 28.08.2008. (The AO notes that this fact was not intimated to the department). On 29.09.2008, a survey was conducted u/s. 133A of the Income-tax Act, 1961 (hereinafter referred to as the Act ) in the business premises where the assessee firm used to conduct business before 01.09.2008. The firms entire business has been taken over as a going concern with effect from 01.09.2008 with all assets and properties thereof including stock in trade. During survey, the survey party found out certain discrepancies in the stock of pig iron and stock of scrap. The discrepancies found in stock of pig iron was 87.670 tons and discrepancies found in scrap was 4.06 tons and cash. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and circumstances of the case including the Hon ble High Court s order in assessee s various writ petitions filed at various stages of the assessment proceedings. The only question that needs to be addressed is whether the discrepancy found in stock of pig iron, scrap and cash can be assessed in the hands of the assessee firm or not. The Hon ble Supreme Court in ITO Vs. CH. Atchaiah (1996) 218 ITR 239 (SC) has held that the income should be assessed on the right person, right year and it should be on the right income. From the aforesaid decision of the Hon ble Supreme Court only the right person and the right person alone is liable to be taxed and not the wrong person. Here, we note that assessee firm has filed its return of income in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 133A(1) of the Act, undisputedly, the books of account of the assessee firm identified as MMU-1 to MMU-4 were found from the business premises. Even if the survey for argument sake is held to be illegal, still the evidence collected therein are admissible in evidence because in India, like England admissibility of the evidence is based on relevancy as held by the Hon ble Supreme Court in Pooramal Vs. DIT 97 ITR 505 (SC). 4. Notwithstanding anything with the aforesaid legal position, the question that is to be adjudicated is whether the discrepancy in the stock of pig iron, scrap and cash can be assessed in the hands of the assessee firm, when undisputedly it has been taken-over from 01.09.2008 by a Private Limited Company. Admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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