TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 627
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....merchandise, on 28.12.2017. During the course of survey proceedings excess stock and cash was found. The Ld. AO noted that Assessee had filed his return of income on 12.10.2018 declaring in come of Rs. 50,74,650/- The Ld. AO noted that the assessee had not included in his return of income the income admitted during the course of survey. The Ld. AO proceeded to add the same by invoking provisions of section 69A and 69B of the act. The Ld. First Appellate Authority confirmed the addition made by the Ld. AO. As evident from para 7.4 to 7.8 of the order of Ld.CIT(A), reliance was principally placed upon the sworn statement of managing partner namely Shri Kirti P Jain of the appellant recorded during the course of survey proceedings. 4.0 We have heard rival submissions in the light of material available on records. At the outset, we have noted that the order of the Ld. AO is a totally non-speaking order without any application of mind. He has summarily rejected assessee's explanations holding them as unsatisfactory without placing on records as to how and why the same were unsatisfactory. To the extent the order of the Ld. AO deserves to be set aside. Further, the Ld. CIT(A) has also m....
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....ble Apex Court in the case of Khadar Khan & Sons 25 taxmann.com 413. He argued that Hon'ble Apex Court has held that the statements recorded during survey proceedings have any evidentiary value when corroborated with conclusive evidences and that in the present case the disclosures have been corroborated by necessary entries in the return of income. The Ld. DR would like to place reliance upon the orders of authorities below. It is the case of the Ld. DR that the assessee has manipulated its books so as to artificially reduce the net profit. It was contended that between 29.12.2017 to 31.03.2018 only expenses was booked by the assessee so as to suppress the actual profits. 4.2 As regards the controversy of validity of statements recorded during survey proceedings, we have noted that Hon'ble Madras High Court in the Khader Khan Sons has laid the following ratio on the issue of validity of statement under statement 133A. ".....5.3. A power to examine a person on oath is specifically conferred on the authorities only under Section 132(4) of the Act in the course of any search or seizure. Thus, the Income-tax Act, whenever it thought fit and necessary to confer such power to examine....
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.... such person during such examination can also be used in evidence under the Income-tax Act. On the other hand, whatever statement is recorded under section 133A of the Income-tax Act it is not given any evidentiary value obviously for the reason that the officer is not authorised to administer oath and to take any sworn statement which alone has evidentiary value as contemplated under law. Therefore, the statement elicited during the survey operation has no evidentiary value and the Income-tax Officer was well aware of this." (emphasis supplied) 5.5. Similarly, when the issue, whether the expression "such other materials or information as are available with the Assessing Officer" in Section 158BB of the Income-tax Act, 1961, would include the materials gathered during the survey operation under Section 133A, came up for consideration before this Court in Commissioner of Income-tax v. G.K.Senniappan [(2006) 284 I.T.R. 220], a Division Bench of this Court, in which one of us was a party (P.P.S.JANARTHANA RAJA, J.), answered the question in the affirmative, against the Revenue and in favour of the assessee, holding that the materials collected during the survey under Section 133A ....
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.... be said that it is conclusive and it is open to the person who made the admission to show that it is incorrect and that the assessee should be given a proper opportunity to show that the books of accounts do not correctly disclose the correct state of facts, vide decision of the Apex Court in Pullangode Rubber Produce Co. Ltd. v. State of Kerala [(1973) 91 I.T.R. 18]; (ii) In contradistinction to the power under section 133A, section 132(4) of the Income-tax Act enables the authorised officer to examine a person on oath and any statement made by such person during such examination can also be used in evidence under the Income-tax Act. On the other hand, whatever statement is recorded under section 133A of the Income-tax Act it is not given any evidentiary value obviously for the reason that the officer is not authorised to administer oath and to take any sworn statement which alone has evidentiary value as contemplated under law, vide Paul Mathews and Sons v. Commissioner of Income-tax [(2003) 263 I.T.R. 101]; (iii) The expression "such other materials or information as are available with the Assessing Officer" contained in Section 158BB of the Income-tax Act, 1961, would incl....