TaxTMI 
TaxTMI 
2014 (4) TMI 124
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....hader Khan Son (2012) 254 CTR (SC) 228? B) Whether in the present facts and circumstances of the case and in law, the Tribunal erred by relying on the statement u/s. 133A recorded after midnight in the course of survey proceedings ignoring the ratio laid down in the case of, Kailashben Manharlal Choksi (2008) 220 CTR (Guj) 138? C) Whether in the present facts and circumstances and in law, the Tribunal failed to appreciate that the onus of evidence shifted to the respondent, when the appellant explained ""Page No.17"", its author, its origin and purpose and the clarification of the statement of the employee of the appellant that is of Ms. Brenda? D) Whether in the facts and circumstances of the case and in law, the Tribunal was justified in disregarding the crucial affidavit dated 12 December 2008, on record of the proceedings, by Shri. Ramesh Shetty, the author of the loose paper explaining "Page No.17" thereby ignoring the Apex Court judgment in the case of Mehta Parikh 30 ITR 181 SC? E) Whether the Tribunal in the facts and circumstances, erred in treating receipts as income and further by arriving at an adhoc/ arbitrary net profit rate of 90%,on an incorrect premise, that in....
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.... (c) On 30 December 2008, the Assessing Officer completed the assessment for assessment year 200607 under Section 143(3) of the Act and inter alia enhanced the income from profession declared at Rs.8.68 lacs to Rs.45.15 lacs. The enhancement being essentially on the basis of cash receipts not recorded in the books of account aggregating to Rs.12 lacs and income shown in the loose paper "Page No.17" not shown in regular books of account aggregating to Rs.24.36 lacs. To support his finding that there was undisclosed Income earned by the appellant, the Assessing Officer also recorded the fact that the appellant assessee had purchased a flat at Bandra for Rs.92.50 lacs whereas the market value as per the stamp duty valuation of the said flat at Bandra was Rs.1.18 crores. Similarly a shop had been purchased for Rs.21.50 lacs whereas the market value as per the stamp duty valuation was Rs.48.86 lacs. During the course of assessment proceedings, the affidavit of Mr. Ramesh Shettythe consultant was submitted in support of the appellant's contention that the figures contained in ""Page No.17"" were fictitious figures prepared only with a view to enable the appellant assessee to obtain l....
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.... recorded on oath. It is undisputed that even under Section 133A of the Act dealing with survey proceedings, the revenue authorities are entitled to record the statement of any person which may be useful or relevant to proceedings under the Act. The power to record a statement during survey proceedings is found in Section 133A (3) of the Act. The relevant portion of which reads as under:" Power of Survey Section 133A (1) to (2) (3) An income tax authority acting under this section may: ( i)..... (ii).... (iii) record the statement of any person which may be useful for, or relevant to, any proceeding under this Act." The requirement of recording a statement on oath is found in Section 132 of the Act i.e. during search and seizure proceeding and such a requirement is not found in Section 133A of the Act. Nevertheless, a statement under Section 133A of the Act does not loose its evidentary value merely because it is made on oath. Besides, the statement in this case is one of the evidences being relied upon and not the sole evidence. The Tribunal in the impugned order has recorded that the addition of income is based not only on the statement of the appellant assessee but also b....
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....m April 2003 to June 2006. During the survey proceedings, the appellant did not dispute the loose paper "Page No.17" but merely stated that it may be estimated figure of receipts during the period covered in "Page No.17". However, later during the course of the assessment proceedings the appellant assessee came up with a explanation that the document "Page No.17" is as estimated income prepared by his consultant Mr. Ramesh Shetty for the purpose of obtaining loan from the bank for the purchase of equipments. However, the Tribunal did not examine the deponent of the affidavit i.e. Mr. Ramesh Shetty as no evidence was furnished regarding appointment of Mr. Ramesh Shetty as consultant nor any fees are shown to have been paid to the consultant Mr. Ramesh Shetty. The Tribunal also records the fact that during the survey proceedings there was no mention regarding the consultant having been appointed by the appellant assessee for the purpose of obtaining loan from the bank. In view of the above facts, the Tribunal holds that the explanation offered later is clearly an after thought as also been held by the lower authorities. In fact, during the survey proceedings, the assessee in his stat....
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....not give rise to any substantial question of law. The decision of the Apex Court relied upon by the appellant in the case of CIT vs. Mehta Parikh 30 ITR 181 would only apply where identity of a person is established before the affidavit is looked into. In this case the identity of Shri. Ramesh Shetty as a consultant to the appellantassessess was not established. Accordingly, QuestionD also does not raise any substantial question of law. We therefore see no reason to entertain QuestionD. (e) Regarding Question E : The grievance of the appellant assessee is that the impugned order erred in treating undisclosed receipt as income by arriving at an adhoc net profit rate of 90% of the total receipts. It was submitted on behalf of the appellant that only the amount of net profit can be added as undisclosed income to the appellant's total income. The Tribunal held that whatever extra expenses had been incurred by the appellant assessee out of its undisclosed receipts have already been booked as expenses in his Income and Expenditure Account. The Tribunal held that in any case the appellant has not shown any evidence in support of his claim for the cash expenses incurred which were n....