TMI Blog2022 (7) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... On perusal of the copy of statement of Sh Nitin A shah i.e. the assessee on 06/10/2013, it is clear that said was recorded under section 133A proceedings. The Hon'ble Supreme Court in the case of CIT Vs S Khader Khan Son [ 2013 (6) TMI 305 - SC ORDER ] has held that section 133A does not empower any ITO to examine any person on oath and so statement recorded under section 133A does not have any evidencing of value and any admission made during such a statement cannot be made basis for addition. There is no other evidence on record except the statement of the assessee recorded during survey proceedings, which has already been retracted by the assessee. The action of the Ld. CIT(A) in sustaining the addition made by the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts and circumstances of the case and in law, the learned CIT(A) erred in not holding that the Learned Assessing Officer erred in not providing an opportunity to cross examine to the appellant while relying on a third party statement as the same was also in violation of the principles of natural justice. 4. On the facts and in the circumstances of the case and in law the Ld. CIT(A) erred in confirming the addition of interest of Rs. 62,000/- on account of interest allegedly received in cash by the appellant, without providing any corroborative evidence to substantiate the same and without appreciating the fact that the appellant has not earned any interest income, other than mentioned in the return of income. 5. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue in dispute and perused relevant material on record. As far as merit of the addition is concerned, the brief facts are that during survey proceedings at the premises of the assessee a person namely 'Sh Mahendra Kumar R Patel' came to deliver an envelope on which name of 'Ms. Meenakshi N Shah' was written in pencil. The authorised Officer at the survey premises, recorded statement of Sh Mahendra Kumar R Patel, wherein the stated that said envelope contained quarterly interest in cash and cheque on loan, which had been taken by one Sh Kantilal A Shah, partner of M/s. Hirok Construction. The survey team further gathered that said envelope contains cheque of ₹ 55,200/-, which was the interest on the loan amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ching evidences, has very categorically admitted in his statement that he does advance loan @ 18% interest out of which 12% interest is received in cheque and the remaining 6% is received in cash, but only 12% Is recorded in the books of account. The above admission conclusively prove that assessee in his individual capacity advances unsecured loans to various parties wherein the rate of interest charged is 18% pa. However, only 12% interest income is received in cheque and the same is accounted for in the regular books of accounts and remaining 6% interest is received in cash and is not accounted for in the regular books of accounts which requires no further validation. Accordingly the difference of Interest @ 6% (18%-12%) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to why the addition made by the Assessing Officer was unfair or unreasonable. I am therefore, not in a position to deviate from the position taken by the Assessing Officer and therefore, addition taken by the Assessing Officer as undisclosed interest is upheld . 5.2. In our opinion, the only basis for making addition for cash component of interest is the statement of 'Sh Mahendra Kumar R Patel', which was not in respect of loan given by the assessee. The said envelope was in respect of the loan given by 'Ms. Meenakshi N Shah'. On the basis of said statement of 'Sri Mahendra R Patel', statement of the assessee was recorded in survey proceedings under section 133A of the Act. The contention of the Ld. Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the disclosed income was assessable as lawful income of the assessee. Since there was no material on record to prove the existence of such disclosed income or earning of such income in the hands of the assessee, it could not be said that the Revenue had lost lawful tax payable by the assessee. 5.3. We find that there is no other evidence on record except the statement of the assessee recorded during survey proceedings, which has already been retracted by the assessee. 5.4. In view of above facts and circumstances, the action of the Ld. CIT(A) in sustaining the addition made by the Assessing Officer is not justified and we accordingly set aside the said finding of the Ld. CIT(A). The ground No. 4 of the appeal is accordingly allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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