TaxTMI 
TaxTMI 
2020 (3) TMI 554
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....spondent-assessee. 3. This appeal under Section 260A of the Income Tax Act, 1961 (briefly "the Act" hereinafter) has been preferred by the Revenue assailing the order dated 9th September, 2016 passed by the Income Tax Appellate Tribunal, "B" Bench, Mumbai ("the Tribunal" for short) in Income Tax Appeal No.4347/Mum/2015 for the assessment year 2008-09. 4. Be it stated that Income Tax Appeal No.937 of 2017 pertains to assessment year 2009-10, whereas Income Tax Appeal Nos.1121 and 1135 of 2017 pertains to assessment year 2008-09. All the appeals were disposed of by the Tribunal vide the common order dated 9th September, 2016. 5. On the request of Mr. Walve, Income Tax Appeal No. 937 of 2017 is taken up as the lead appeal. 6. This appeal h....
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....only of giving accommodation entries?" 7. Respondent is an assessee under the Act engaged in the business of manufacturing and trading in precious and semi-precious stones and jewellery in the name and style of M/s Sunshine Import and Export Private Limited. Assessee is a company having two Directors-Shri Paras Jain and Shri Saurabh Garg. 8. A survey under Section 133A of the Act was carried out in respect of the respondent/assessee. During the post survey proceedings, statement of one of the Directors i.e. Shri Saurabh Garg was recorded. In one of his statements he was reported to have stated that respondent provided only bill entries and there was no actual transaction of purchase and sale. Subsequently, statement of the other Director-....
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....ed by the assessee. 11. Aggrieved, Revenue is in an appeal before us raising the above questions for consideration. 12. Submissions made by learned counsel for the parties have been considered. 13. At the outset, we may reproduce relevant portion of the order passed by the Tribunal which is as under:- "13. Further from the record we found that the assessee is mainly engaged in the imports of diamonds and sales in local markets to exporters who export the goods. The import of diamonds is done through customs authorities and banking channel in India. The import of diamonds undergoes appraisal process by the appraisers appointed by the custom authorities. The officers appointed by Government of India verify physically each and ever....
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.... b. Ledger copies of various purchases parties for A.Y. 2008-09 and 2009-10. c. The Xerox copies of purchases invoices of parties for A.Y. 2008-09 and 2009-10. d. The relevant copies of the daily stock Register. e. Confirmation from various sale parties. f. Details of interest received from various parties. g. Details of unsecured loan along with confirmation. These documents prove that the assessee is not engaged in issuing accommodation bills and acting as a dummy for importing diamonds bills. Thus, the contention of the ld. AO that the bills issued by the assessee are all accommodation bill is wrong. Just on the basis of the statement recorded he cannot come to the conclusion that the assessee has issued accommodation bills ....
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....e stand taken by the Assessing Officer. There was no dispute to the fact that no incriminating evidence was found on the day of the survey. It was also noted that merely on the basis of statement of one of the directors i.e. Shri Saurabh Garg that too recorded after 20- 25 days of the survey could not be a basis for bringing into assessment and making any addition to the income without further supporting or corroborative evidence. Statement recorded under Section 133A of the Act not being recorded on oath cannot have any evidentiary value and no addition can be made on the basis of such statement. 15. In 300 ITR 157 (CIT Vs. S. Khader Khan Son), the Madras High Court surveyed the law relating to statement recorded under Section 133A of the....
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....ner of Income-tax v. G.K. Senniappan [(2006) 284 I.T.R. 220]; (iv) The material or infomration found in the course of survey proceeding could not be a basis for making any addition in the block assessment, vide decision of this Court in T.C. (A) No.2620 of 2006 (between Commissioner of Income-tax v. S.Ajit Kumar); (v) Finally, the word "may" used in Section 133A (3)(iii) of the Act, viz., "record the statement of any person which may be useful for, or relevant to, any proceeding under this Act, as already extracted above, makes it clear that the materials collected and the statement recorded during the survey under Section 133A are not conclusive piece of evidence by itself." 16. Thus, Madras High Court concluded that statement recorde....