2013 (4) TMI 777

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....in not appreciating the provisions under Section 133A (iii) which empowers an Income Tax Authority to record the statement of any person which may be useful for, or relevant to, any proceedings under the Income Tax Act? C. Whether in law and on the facts of the case, the Hon'ble ITAT, Ahmedabad has erred in deleting the addition made by AO amounting to Rs. 36 lacs made on account of undisclosed income during the course of survey based on the statements recorded in question to discrepancies found and admitted by the assessee?" 2. As could be noted from the record, during the course of survey proceedings carried out at the premise of Ganesh Hall u/s. 133A of the Income Tax Act (hereinafter referred to as 'the Act'), the statement of the....

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....the outset. It would be apt to reproduce some of the relevant aspects: "15. From the facts of the present case before us, it is apparent that the revenue has not come out with any corroborative evidence to support the statement obtained from the assessee's son in order to establish that an amount of Rs. 36,00,000/- to be the undisclosed income of the assessee. The Circular of the CBDT which is binding on the revenue supports the argument of the assessee. Further, the decision cited by the assessee squarely establishes the facts that the addition made on mere statement on oath obtained at the time of survey cannot be relied upon to make addition without bringing forth any other materials on record to support the stand of the revenue....

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....uestion raised before us is the evidentiary value of the statement recorded of the person during the course of survey proceedings undertaken u/s. 133A. Wide powers are given of survey including at which business as profession is carried on by the assessee. Sub-section (iii) of Section 133A(3) of the Act gives discretion to the income tax authority to record the statement of any person which may be useful for, and relevant to, any proceeding under this Act. 8.2 This provision does not authorize any income tax authority to examine anyone on oath and any statement recorded of any person during the survey. Words used is that it "may" be useful or relevant to, any proceeding under the Act, however, in absence of any power to administer oath o....

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....e other hand, whatever statement is recorded under section 133A of the Income-tax Act it is not given any evidentiary value obviously for the reason that the officer is not authorized to administer oath and to take any sworn statement which alone has evidentiary value as contemplated under law, vide Paul Mathews and Sons v. Commissioner of Income-tax [(2003) 263 I.T.R. 101]; (iii) The expression "such other materials or information as are available with the Assessing Officer" contained in Section 158BB of the Income-tax Act, 1961, would include the materials gathered during the survey operation under Section 133A, vide Commissioner of Income-tax v. G.K.Senniappan [(2006) 284 I.T.R. 220]; (iv) The material or infomration fo....