TaxTMI 
TaxTMI 
2018 (4) TMI 607
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....der the name and style M/s Sumit Medical Hall at Tonk. A survey U/s 133A of the Income Tax Act, 1961 (in short the Act) was carried out on 10/07/2008 at the business premises of the assessee and during the survey, statement was recorded U/s 133A of the Act wherein the assessee surrendered amount of Rs. 60,09,418/-. The assessee claims that this statement was obtained from the assessee by the survey officials on various issues. The assessee did not disclose the surrendered amount in the return of income. The return was filed declaring total income of Rs. 4,23,780/-. In the assessment proceedings U/s 143(3) of the Act, the income was assessed at Rs. 68,92,550/-. The ld. CIT(A) has confirmed the addition of Rs. 60,09,418/- on the basis of statement recorded during the survey operation and granted part relief to the assessee from the trading addition made after rejecting books of account by invoking the provisions of Section 145(3) of the Act. 4. Now the assessee is in appeal before the ITAT by taking following grounds of appeal: "1. On the facts and in the circumstances of the case the Ld. CIT(A) has grossly erred in upholding the addition of Rs. 8,04,155/- made on account....
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....dition of Rs. 28,43,039/- so sustained deserves to be deleted. 5. On the facts and in the circumstances of the case, the Ld. CIT(A) has grossly erred in ignoring the fact that all the additions (challenged under grounds of appeal nos. 01 to 4.1) have been made by Ld. AO solely on the basis of statements of assessee recorded on oath during the course of survey u/s 133A conducted at the business premises of assessee and without referring to any other material. Thus, all these additions deserve to be deleted in as much as these additions have been made by ignoring the well established law that no statements can be recorded on oath during the course of survey and if recorded, cannot be relied upon for the purpose of making additions. 6. On the facts and in the circumstances of the case the Ld. CIT(A) has grossly erred in confirming the action of Ld. AO of invoking the provisions of section 145(3) arbitrarily. 6.1 That the Ld. CIT(A) has further erred in confirming the action of Ld. Assessing Officer in varying the turnover declared by the assessee from Rs. 1,70,05,305/- to Rs. 1,80,00,000/- without bringing on record any adverse material to support his conten....
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....ce in MRP and purchase price. The A.O. has failed to even verify such claim of the assessee. He also submitted that the addition of Rs. 10.00 lacs made for the advances given to Shri Pawan Kumar is also not established by the facts as there was no signature of Shri Pawan Kumar on the paper. Further the A.O. recorded statement of Shri Pawan Kumar but he was not asked any question in this regard. Ld. A.R. further submitted that the A.O. has not verified even a single so called debtors and simply made the addition of Rs. 13,62,000/-. The assessee has not disclosed the amount in return of income and retracted from the statement recorded during survey, then the A.O. must have proceed further to establish his case. Once the assessee is retracted from the statement recorded by the survey team, then the A.O. was duty bound to investigate the issue further to make the addition. He also submitted that all the additions made by the A.O. were based on the statement recorded during the survey and such statement has no evidentiary value in view of the decision of Hon'ble Supreme Court in the case of CIT Vs S.Khader Khan Son 300 ITR 157 (SC). He has also relied on the decision of Hon'ble Kere....
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....nly on the basis of the statement recorded during the survey U/s 133A of the Act. Once the assessee has retracted from the statement then it was on the A.O. to establish beyond any doubt the issues on which the addition has been made. Once the assessee has submitted up to date cash book and stock register then it was duty of the Assessing Officer to pin point the defects in such books of account particularly with regard to the issues, on which the statement was recorded during the survey. Further in the case of Shri Pawan Kumar, even the Assessing Officer recorded his statement but he has not asked any question with regard to amount of advance of Rs. 10.00 lacs for which the addition has been made only on the basis of a piece of paper, which was not signed by Shri Pawan Kumar. Similarly in the case of debtors, once the assessee has retracted then it was the duty of the Assessing Officer to examine these debtors to establish the truthfulness of the debt. The ld DR has relied on the decision of Hon'ble Bombay High Court in the case of Dr. Dinesh Jain Vs. ITO (Supra) and decisions of Hon'ble Rajasthan High Court in the case of Rameshwar Lal Mali Vs CIT (supra), we have considered the ....