TaxTMI 
TaxTMI 
2014 (4) TMI 153
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.... unaccounted cash receipts on sale of flats. ii) Rs. 5,70,000/- being cash receipts of brokerage received back from brokers iii) Rs. 16,00,000/- being cash receipts on sale of car parking. In doing so, the Ld. CIT (A) failed to appreciate the preponderance of probability based on the evidence found during the survey operation." 2. Briefly stated the facts are as under. The assessee-firm is in the business as a builder and developer. There was a survey action u/s.133A of the Act in the business premises of the assessee on 2.03.2006. During the Course of survey action, statements of one Shri Anthony Fernandes and Shri Kamlesh Yadav were recorded, who were working as brokers / agents for the assessee. As per the statements of Shri ....
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....ats @ 40% per flat Rs. 5,79,000/- (iii) Sale of parking space of Rs. 1 lakh per car-parking X 16 Car parking sold during the year Rs. 16,00,000/- 3. The assessee challenged assessment order before the Ld. CIT (A) and the Ld. CIT (A) deleted all the additions made by the A.O. Now, the revenue is in appeal before us. 4. We have heard the parties and perused the record. The Ld. Counsel submits that the identical additions were made by the A.O. in the A.Y. 2006-07 and all the additions were deleted by Ld. CIT (A) and the order of the Ld. CIT (A) has been confirmed by the Tribunal. The Ld. Counsel filed the copy of the Tribunal order in the assessee's own case for the A.Y. 2006-07 being ITA No.2095/Mum/2010 dated 11.06.2010 which is pla....
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....andes all other statements have not been attested by any of the authorized officer who administered the oath to the witnesses. Thus, it is clear that except the statement of Shri Anthony Fernandes recorded on 02.03.2006 all other statements are not recorded after administering the oath as nothing reveals from the statement that the authorized officer has administered the oath. Even otherwise, the statement recorded u/s 133A have not evidentiary value unless and until the same are corroborated by the documentary evidence. This proposition of law set out by the decision of the Hon'ble Kerala High Court in the case of Paul Mathews and Sons V/s CIT (supra) as well as the decision of the Hoh. Madras High Court in the case of CIT V/s S Khandar Kh....
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.... Even otherwise as per the statements of Shri Anthony Fernandes and Shri Kamlesh Yadav, the rate of Rs. 4500/- per sq.ft. is not pertaining to the flats which were already sold. Needless to say, Shri Anthony Fernandes was not cross-examined by the assessee during the course of assessment proceedings and later on when the CIT(A) allowed the cross-examination in the remand proceedings the Shri Anthony Fernendes retracted from his earlier statement. Therefore, there is no evidentiary value of these statements of Shri Anthony Fernandes and Shri Kamlesh Yadav. We further note that the AO made the addition for the sale rate on the assumption that the assessee has shown the rate at Rs. 2200/- per sq.ft., whereas, even as per the sale documents and....
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....T (A) is not sustainable. 14. However, when the documents were impounded from the premises of the assessee and contain the information about the business of the assessee then the rates mentioned in the impounded document no.8 and corroborates the statements of Shri Anthony Fernandes recorded during the survey on 2.3.2006. Therefore, the confirmation of addition by the CIT (A) to the extent of rates mentioned in document no.8 is just and proper. Hence, we uphold the order of the CIT (A) to that extent. 15. Since, there is no documentary evidence with respect to the sale of car parking area except the document no.15 of the impounded documents with respect to flat no.C-38, wherein also Rs. 50,000/- are mentioned against car parking. Ther....