TaxTMI 
TaxTMI 
2017 (5) TMI 779
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....red together. 3. The facts in brief are that assessee is a professionally qualified doctor and acting as medical practicing in his individual capacity. Besides, he was also attached with the Burdwan Critical Care Unit Pvt. Ltd. & Diplomat Nursing Home as Visiting Doctor. The assessee in the year under consideration has filed his return of income declaring total income of Rs. 18,13,702/- which is comprising of business income only. 4. A survey operation u/s. 133A of the Act was conducted at the chamber of the assessee on 29.03.2010. At the time of survey a statement u/s. 131 of the Act was recorded and the relevant extract of the statement is reproduced below:- "Q. 3. What is the cash balance today? Ans. I have seven thousands and twenty rupees after meeting some petty expenses. Q. 4. Cana you reconcile this with your cash book? Ans. I do not maintain any cash book. So it is not possible to me to reconcile this at the moment. Q. 5. What are other Registers do you maintain? Ans. I maintain only one patient register and nothing else. Q. 6. Do you have any patient list for today and earlier days also? Ans. I ....
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....m at the time of survey and on the basis of list of patients found during survey which was containing the list of the patients appeared one day prior to the date of survey i.e. 28.03.2010. Thus the AO inter-alia estimated the income from the chamber of the assessee at Rs. 44 lacs which was added to the total income of the assessee. 5. Aggrieved, assessee preferred an appeal before Ld. CIT(A). The assessee before Ld. CIT(A) submitted that the income of Rs. 44 lakh was admitted under pressure and coercion in the statement given at the time of deposition. The assessee also submitted that the books of account are duly audited and same was rejected without pointing out any defect. However, Ld. CIT(A) in his appellate proceedings has observed certain facts from the available record as detailed under :- i) The assessee agreed at the time of survey operation the average number of patients visited to assessee on 28.03.2010 and 29.03.2010 at 60 per day; ii) The AO on the basis of aforesaid number of patients has determined the taxable income at Rs. 44 lakh; iii) The assessee has paid taxes on the income admitted at the time of survey operation and retraction sta....
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.... for the year as clear from statement given on 29.03.2010. The figure of Rs. 39,00,0001- given on 05.04.2010 is a refinement of Rs. 44,00,000/- given on 29.03.2010. On 05.04.2010 it was stated that "taxable income will be Rs. 39 lakh or a little lower." There is a claim of Rs. 1,15,0001- under Chapter VI-A in return of income. This is not granted by Assessing Officer in the assessment order. The main change between the deposition on 29.03.2010 and I 05.04.2010 on the said sum of Rs. 44,00,000/- is that in former it is stated as income and in) latter it is stated as net income. Overall, I hold that the statement given on 05.04.2010 given on balanced circumstances (including sufficient time to take professional advice) hold tight and since assessee claimed deduction under Chapter VI-A, not allowed by Assessing Officer in assessment order, it is fair and reasonable for to fix the net income at Rs. 39,00,0001- in place of Rs. 44,00,000/-. The eligible deduction under Chapter VI-A is considered to be allowed in fixing the income at Rs. 39,00,000/-. Accordingly, I direct Assessing Officer to fix income from medical practice at Rs. 39,00,000/- after deduction under chapter VI-A and this d....
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....he statement furnished by the assessee u/s. 131 of the Act at the time of survey operation conducted u/s. 133A of the Act. The assessee has furnished audited books of account at the time of assessment proceedings which was rejected by AO merely on the ground that assessee at the time of survey operation has admitted that no books of account was maintained as well as assessee failed to furnish the books of account at the time of survey. However on perusal of record, we find that assessee has retracted from his statement vide affidavit dated 16.12.2010. The retraction statement filed by assessee was rejected by Ld. CIT(A) at the time of appellate proceedings. However, we note that no defect of books of account has been pointed out by Authorities Below though books of account were duly audited by a qualified CA. It is settled law that assessee can retract from his statement filed at the time of survey. In holding so, we find guidance and support from the judgment of Hon'ble High Court of Chattisgarh in the case of ACIT Vs. Hukum Chand Jain reported in 337 ITR 238 where it was held as under : "From the principles of law laid down in the aforesaid judgments, it may be deduc....
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....the need to focus on gathering evidences during Search/Survey and to strictly avoid obtaining admission of undisclosed income under coercion/undue influence. 3. In view of the above, while reiterating the aforesaid guidelines of the Board, I am directed to convey that any instance of undue influence/coercion in the recording of the statement during Search/Survey/Other proceeding under the IT Act, 1961 and/or recording a disclosure of undisclosed income under undue pressure/coercion shall be viewed by the Board adversely." We also find that the various Hon'ble Courts have held the income admitted in the statement should also be supported with the tangible materials otherwise the same cannot be made subject-matter of addition. In this connection, we rely in the case of D.S. Agency and Associates and Usha Distributors vs. ACIT reported in 44 ITD 46 where the Hon'ble Tribunal Mumbai has held as under:- "2015(12) TMI 1459 - ITAT MUMBAI - [2015] 44 ITR (Trib) 46 (ITAT [Mum]) - Addition as undisclosed income in respect of commission expenses treated as non-genuine- Held that: 'Assessing Officer has made addition purely on the basis of statement made d....
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....nce. In view of the above discussion, we dismiss the appeal of the revenue." The principles laid down by various courts as discussed above are squarely applicable to the instant case before us and therefore we rely on the same. Besides the above the assessee has produced the audited financial statements and no reference has been made to such books of accounts and accordingly no defect in books of accounts was pointed out. We also find that the ld. CIT(A) has clearly recorded his finding in his order on page that the AO has not specified manner of quantification of professional fees of Rs. 44 lakhs only. Thus it can be concluded that the impugned addition was purely based on the statement recorded u/s 131of the Act. Thus the statement of the assessee cannot be the sole basis addition. The provisions of the law require the Revenue is to tax the real income of the assessee which should be based on the documents. Thus in view of above we reverse the order of Ld. CIT(A). Accordingly, AO is directed to delete the same. Hence, this ground of assessee's appeal is allowed. 8. Next issue raised by the assessee in this appeal is that Ld. CIT(A) erred in confirming the order of AO ....