TaxTMI 
TaxTMI 
TaxTMI 
2012 (8) TMI 1041
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....ings. The assessee vide his letter dated 10-12-2007 retracted the disclosure made at the time of survey and interalia submitted that he had offered an additional income amounting to Rs. 1,06,00,000/- and had paid taxes on the same. The assessee had offered Rs. 66,00,000/- for purchase of material on behalf of M/s. R.A. Construction and Rs. 40,00,000/- in investment in the form of share application in M/s. R.A. Shaikh Paper Mills Ltd. On verification of the books of accounts, the A.O. noticed that though assessee had offered additional income of Rs. 1,06,00,000/- it was offered under the heads other than declared at the time of survey. The retraction made by the assessee and his other contentions were not accepted by the A.O. for the reason that he considered the retraction made after a gap of around 2.5 years to be an afterthought and that the disclosure of additional income was made by the assessee under different and specific heads. The A.O. relied on the decisions of ACIT vs. Sushiladevi Agarwal (1994) 50 ITD 524 and CIT vs. Biju Patnayak 100 ITR 296 (Orissa). He brought the additional income of Rs. 1,51,55,804/- disclosed at the time of survey to tax but however granted relief ....
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....rvey, the appellant is claiming benefit of doubt. But keeping in view of the fact that the voluntary disclosure made by the appellant is not the same as per specific heads of disclosure made during the survey proceedings and for reasons mentioned by the A.O. in the assessment order the addition is upheld. This ground of appeal is accordingly dismissed." 7. Aggrieved by the order of CIT (A), the assessee is now in appeal before us. 8. Before us, the Ld. A.R. submitted that the addition has been made by the A.O. on the basis of statement recorded during the course of survey proceedings which was retracted by the assessee vide letter dated 10-12- 2007 during the course of assessment proceedings. It was also submitted by the Ld. A.R. that section 133A does not empower the assessing authority to examine any person on oath hence any statement made during the survey proceedings has no evidentiary value and any admission made during such statement cannot by itself be made the basis for addition. The Ld. A.R. relied on the decision of CIT vs. Khader Khan 214 CTR 589 and the CBDT Circular which states that disclosure without independent evidence is not a commendable practice on the part of....
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....retraction made by the assessee. The A.O. thus brought the additional income of Rs. 1,51,55,804/- disclosed at the time of survey to tax but however granted relief of Rs. 25,00,000/- which the assessee had offered under the head of advance. Thus the total Addition of Rs. 1,126,55,804/- (Rs.1,51,55,804 less Rs. 25,00,000) was added to the total income. CIT (A) has given a finding that there is no independent evidence or finding regarding the purported declaration/ discrepancies found during the survey but however upheld the additions made by the A.O. 11. In the case of CIT vs. Khader Khan Son (supra) the Hon'ble High Court has held that Sec. 133A does not empower any I.T. authority to examine any person on oath, hence, any such statement has no evidentiary value and any admission made during such statement cannot by itself be made the basis for addition. Further the Hon'ble High Court has held as under:- "7. In the decision of Pullangode Rubber Products Co. Ltd. vs State of Kerala (1973) 91 ITR 18, the apex court held that an admission is extremely an important piece of evidence but it cannot be said that it is conclusive and it is open to the person who made the admission to sho....
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....uction u/s. 80IB.Aggrieved by the action of the A.O., the assessee preferred appeal before CIT (A). CIT (A) upheld the order of the A.O. by holding as under: "24. I have considered the arguments put forth by the A.R. of the appellant. The facts of the case are not in dispute. The only point of dispute in this case is as to whether the shifting of manufacturing activity of industrial undertaking from one place to another constitutes reconstruction of a business already in existence. On a plain reading of the provisions of Section 80IB and on its literal interpretation it may appear that the appellant's arguments have force. But as observed by the A.O. such shifting of manufacturing activity though by fresh investment of capital, new building and machinery also do not lead to the establishment of a new industrial undertaking. In the appellant's case the appellant has invested new capital, constructed a new building in a new location and installed new plant and machinery and started an independently viable unit for manufacturing corrugated boxes. But the appellant has not put forth before me incorrigible arguments supported by logic and cogent facts as to how his action of setting u....
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...., declared business profit of Rs. 11,03,398/- for the period from 1.10.2002 to 31.3.2003. According to the AO assessee claimed 100% deduction for 5 consecutive years in respect of industrial undertaking situated at Piparia called Unit No.1 and thereafter assessee ought to have been only allowed deduction at lesser rate i.e. @ 25% for next five consecutive years. Instead of this assessee shifted his business to new place at Amli, Silvassa and again started claiming 100% deduction. The AO mentions that even though the assessee has constructed building, installed new plant and machinery at the new place but the fact remains that entire business was shifted from one place to another. Thus assessee has not in fact started a new business but only has reconstructed his existing business. This is violation of conditions laid down under section 80IB (2)(ii) read with explanation 2. 18. Co-ordinate Bench after considering the decision of Hon'ble Kerala High Court in Kerala State Cashew Development Corporation vs. CIT 205 ITR 19 (Ker.), CIT vs. Simon Marshal Ltd. (1986) 161 ITR 817 (Bom) & ITO vs. Computer Force (ITA No.1636/Ahd/2009 - order dated 30-7-2010) observed as under:- 13. Conside....
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....t be a case of reconstruction of business already in existence. Further, if the argument of the ld. DR is accepted then several units where same business is carried out, would always be treated as reconstruction of a business already in existence and thus denying the benefit otherwise available to the tax payer. Therefore, carrying on the same business in the new unit or stoppage of business in the old unit cannot be a criteria to hold that it is a case of reconstruction of a business already in existence. Similar view has also been taken by the Tribunal in ITA No.1636/Ahd/2009 for Asst. Year 2002-03 in the case of ITO vs. M/s Computer Force". 19. We find that the facts in the present appeal are identical to that of in ITA No.1496 & 2586/Ahd/2007 (supra) for A.Y. 2003-04 and 2004-05. We accordingly following the decision of the co-ordinate Bench for similar reasons, allow the appeal of the assessee. Thus this ground of the assessee is allowed. 20. Ground No.7 relates to the addition of Rs. 2,56,808/- made by A.O. on account of treating creditors from unexplained sources. 21. The assessee has shown amount payable to Akash Offset Print at Rs. 1,50,347/- as on 1-4-2004. During the ....