TaxTMI 
TaxTMI 
2019 (9) TMI 357
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.... an extent of 28. 75 acres, was found and seized. This document revealed that the appellant had given 90 lakhs rupees as advance for purchase of the property. Thereafter, survey proceedings under Section 133A of the Act were conducted at the premises of the company. During the survey proceedings, the assessee gave a statement on oath on 11. 03. 2011 to the income tax authority that he had given an amount of 95 lakhs rupees as advance for purchase of the property. Subsequently, the appellant sent a letter dated 04. 03. 2013 to the department. In that letter he took the plea that he had executed the agreement in the capacity as the Managing Director of the company and that the amount of 95 lakhs rupees was invested out of the funds of the company and that he had not made any personal investment in the deal and also that the deal was subsequently cancelled by the company. 3. The assessing officer did not accept the explanation given by the appellant regarding the nature and source of the amount. The assessing officer found that the books of accounts of the company did not reveal that the amount of 95 lakhs rupees was invested by the company in such a deal. Therefore, the aforesaid ....
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.... in view of the submissions made by the learned counsel for the appellant/assessee, we are inclined to raise and consider the following substantial questions of law: (1) Has the income tax authority got power to examine on oath any person during survey proceedings under Section 133A of the Act? (2) Is it correct proposition of law that a statement made on oath by the assessee before the income tax authority during the survey proceedings under Section 133A of the Act has no evidentiary value at all? (3) Is it permissible under law to make assessment of tax solely on the basis of the statement made on oath by an assessee before the income tax authority during the survey proceedings under Section 133A of the Act? 9. Section 133A of the Act deals with survey proceedings. Section 133A(3)(iii) of the Act provides that an income-tax authority acting under Section 133A may record the statement of any person which may be useful for, or relevant to, any proceeding under the Act. It is evident from this provision that, during survey proceedings, the incometax authority has got power to record the statement of any person. The expression "any person" in this provis....
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.... authorised to administer oath and to take any sworn statement. 13. At this juncture, we may notice that another Division Bench of this Court in Commissioner of Income Tax v. Hotel Samrat : (2010) 323 ITR 353, stated that the view taken in Paul Mathews (supra) does not lay down the correct law. However, the issue was not referred to a Full Bench as it was not necessary to do so in that case. In Hotel Samrat (supra), it was observed as follows: "During hearing, we felt that the decision of this Court in Paul Mathews and Sons reported in [2003] 263 ITR 101 above referred to does not lay down the correct position of law because, in our view, statement recorded under Section 133A(3)(iii) though cannot be treated as independent evidence like evidence recorded under Section 132(4), has corroboratory value in assessment and statement recorded under the said provision can be even relied on by the assessee. In other words, the decision of this Court that the statement recorded under the above provision does not have evidentiary value, in our view, does not lay down the correct law. However, since counsel for the respondent assessee does not rely on the above decision, we proceed....
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....133A of the Act cannot be equated to the status of an accused in a criminal case. Therefore, merely by reason of the fact that the income tax authority has administered oath to an assessee and recorded his sworn statement during the survey proceedings under Section 133A of the Act, it cannot be found that such statement has no evidentiary value at all and that it cannot be used in any manner against the assessee in any proceedings under the Act. As explained in Travancore Diagnostics (supra), the statement on oath made by an assessee to the income tax authority during the survey proceedings under Section 133A of the Act is not conclusive. The assessee can explain or withdraw the admission, if any, made by him in such statement. Assessment of tax cannot be made solely on the basis of such sworn statement made by the assessee under Section 133A(3)(iii) of the Act. At the same time, such statement can be used to corroborate other materials before the assessing authority, including the contents of any document. In our view, the dictum laid down in Paul Mathews (supra) and Hotel Samrat (supra) and Travancore Diagnostics (supra) can be harmonised in this manner without any conflict. Thus....