By K. B. Bhujle, Advocate
New Page 2
44 Survey : Statement : Difference between
S. 133A and S. 132(4) of Income-tax Act, 1961 : A.Y. 2001-02 : Statement in
survey operation offering income : Not conclusive : Subsequent retraction of
statement : Amount offered not assessable as income.
[CIT v. S. Khader Khan Son, 300 ITR 157 (Mad.)]
In the course of survey operation, a partner of the assessee-firm
made a statement offering additional income of Rs.20 lakhs. The said statement
was retracted by a letter dated 3-8-2001, stating that the partner from whom a
statement was recorded was new to the management and he could not answer the
enquiries made and as such, he agreed to an ad hoc addition. The Assessing Officer made the addition
on the basis of the statement. The Tribunal deleted the addition.
On appeal by the Revenue, the Madras High Court upheld the
decision of the Tribunal and held as under :
“(i) The principles relating to S. 133A of the Income-tax
Act, 1961 are as follows : (i) an admission is an extremely important piece of
evidence, but it cannot 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
account do not correctly disclose the correct state of facts; (ii) in
contradistinction to the power u/s.133A, S. 132(4) 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 Act. On the
other hand, whatever statement is recorded u/s.133A 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; (iii) The expression “such other materials or
information as are available with the Assessing Officer” contained in S. 158BB
would include the materials gathered during the survey operation u/s.133A;
(iv) the material or information found in the course of survey proceeding
could not be a basis for making any addition in the block assessment; and (v)
the word ‘may’ used in S. 133A(3)(iii) of the Act, viz., “record the
statement of any person which may be useful for, or relevant to, any
proceeding under the Act” makes it clear that the materials collected and the
statement recorded during the survey u/s.133A are not conclusive piece of
evidence by itself.
(ii) In view of the scope and ambit of the materials
collected during the course of survey action u/s.133A shall not have any
evidentiary value, it could not be said solely on the basis of the statement
given by one of the partners of the assessee firm that the disclosed income
was assessable as lawful income of the assessee.”
