M/s. Hilton Health Care, Bharuch V. The Dy.CIT, Bharuch Circle, Bharuch

ITA 2576/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0148 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 04-08-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 31-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S N DIVETIA
• Section: 143(3); 133A

Judgement Text

I.T.A. NO . 2576 /AHD/201 3 A SSESSMENT Y EAR: 20 07 - 08 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH, SMC , AHMEDABAD [CORAM: PRAMOD KUMAR AM] I.T.A. NO. 25 76 /A HD/ 20 1 3 ASSESSMENT Y EAR : 20 07 - 08 HILTON HEALTH CARE ..... ...... . ... . APPELLANT KARMAD ROAD CROSSING, JAMBUSAR CHOKDI, BHARUCH 392 0 01. [ PAN: AA DFH 5898 Q ] VS. DY. COMMISSIONER OF INCOME TAX , BHARUCH CIRCLE, BHARUCH. ............... . RESPONDENT APPEARANCES BY: S.N. DIVETIA FOR THE APPELLANT SATISH SOLANKI FOR THE RESPONDENT D ATE OF CONCL UDING THE HEARING : 0 4 .0 8 .2016 DATE OF PRONOUNCING THE ORDER : 28 .10.2016 O R D E R 1. THIS APPEAL IS DIRECTED AGAINST LEARNED CIT(A) S ORDER DATED 12 TH JUNE, 2013 FOR THE ASSESSMENT YEAR 20 07 - 08 . 2. GRIEVANCES OF THE ASSESSEE ARE AS FOLLOWS : - 1.1 THE ORD ER U/S 143(3) OF THE INCOME TAX ACT, 1961 PASSED BY THE COMMISSIONER OF INCOME TAX II IS UNLAWFUL, UNJUSTIFIABLE AND CONTRARY TO THE PROVISIONS OF THE LAW. 1.2 TH E LD . CIT(A) H A S GRIEVOUSLY ERRED IN LAW AND OR ON FACTS AND CIRCUM STANCES IN NOT CONSIDERING PROPERLY THE SUBMISSIONS MADE , A N D EVIDENCE PRODUCED BY T HE APPELLANT WITH REGARD TO IMPUGNED ADDITION OF RS.4,21,000/ - ON ACCOUNT OF ADDITIONAL EXPENDITURE TOWARDS FACTORY BUILDING. 1.3 THAT IN THE FACTS AND CIRCUMSTANCES OF TH E CASE A S WELL AS IN LAW, THE LD . CIT ( A ) OUGHT NOT TO HAVE UPHELD THE ORDER OF THE LD . A SSESSING OFFICER, MAKING AD DITION OF RS.4,21,000/ - ON ACCOUNT OF ADDITIONAL EXPENDITURE TOWARDS FACTORY BUILDING. I.T.A. NO . 2576 /AHD/201 3 A SSESSMENT Y EAR: 20 07 - 08 PAGE 2 OF 3 3. TO ADJUDICATE ON THIS APPEAL, IT IS SUFFICIENT TO TAKE NOTE OF THE FACT TH A T BASED ON STATEMENT OF THE PARTNER, RECORDED DURING SURVEY UNDER SECTION 133A OF THE INCOME TAX ACT 1961, THE ASSESSING OFFICER MADE AN ADDITION OF RS.4,21,000/ - ON ACCOUNT OF SUPPRESSED EXPENDITURE INCURRED ON FACTORY BUILDING. AGGRIEVED, ASSES SE E CARRIED THE MAT T ER IN APPEAL BEFORE THE LEARNED C IT ( A ) BUT WITHOUT A NY SUCCESS. NOT SATISFIED, THE ASSESSEE IS IN SECOND APPEAL BEFORE ME. 4. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF APPLICABLE LEGAL POSITION. 5. I FIND THAT THERE IS NO DISPUTE ABOUT THE FACT THAT THE SOLE BASIS OF IMPUGNED ADDITION IS STATEMENT OF THE PARTN E R, RECORDED DURING THE SURVEY PROCEEDINGS. IT IS SETTLED LEGAL POSITION THAT SUCH A STATEMENT HA S NO EVIDENTIARY VALUE SO AS TO JUSTIFY ANY ADDITION, ON THAT ACCOUNT, IN THE ASSESSMENT PROCEEDINGS . HON BLE JURISDICTIONAL HIGH COURT, IN THE CASE OF CIT V S . SHARDABEN K . MODI (ITA NO. 123 OF 2013; JUDGEMENT DAT E D 30.04.2013), REITERATED TH IS PRINCIPLE A S FOLLOWS : - 8.1 AS THE QUESTION RAISED BEFORE US IS THE EVIDENTIARY VALUE OF THE STATEMENT RECORDED OF THE PERSON DURING THE COURSE OF SURVEY PROCEEDINGS UNDERTAKEN U/S. 133A. WIDE POWERS ARE GIVEN OF SURVEY INCLUDING AT WHICH BUSINESS AS P ROFESSION IS CARRIED ON BY THE ASSESSEE. SUB - SECTION (III) OF SECTION 133A(3) OF THE ACT GIVES DISCRETION TO THE INCOME TAX AUTHORITY TO RECORD THE STATEMENT OF ANY PERSON WHICH MAY BE USEFUL FOR, AND RELEVANT TO, ANY PROCEEDING UNDER THIS ACT. 8.2 THIS PROVISION DOES NOT AUTHORIZE ANY INCOME TAX AUTHORITY TO EXAMINE ANYONE ON OATH AND ANY STATEMENT RECORDED OF ANY PERSON DURING THE SURVEY. WORDS USED IS THAT IT 'MAY' BE USEFUL OR RELEVANT TO, ANY PROCEEDING UNDER THE ACT, HOWEVER, IN ABSENCE OF A NY POW E R TO ADMINISTER OATH OR TAKEN SWORN STATEMENT EVIDENTIARY VALUE OF SUCH STATEMENT WOULD NOT BE THERE UNDER TH E LAW AND THEREFORE , NO ADDITION CAN BE MA D E ON TH E STRENGTH OF SUCH STATEMENT ALONE. 6. IN THE LIGHT OF THE ABOVE LEGAL POSITION, I UPHOLD THE P LEA OF THE ASSESSEE AND DIRECT THE ASSESSING OFFICER TO DELETE THE IMPUGNED ADDITION OF RS.4,21,000/ - . I.T.A. NO . 2576 /AHD/201 3 A SSESSMENT Y EAR: 20 07 - 08 PAGE 3 OF 3 7. IN THE RESULT, THE APPEAL IS ALLOWED. PRONOUNCED IN THE OPEN COURT TODAY ON 28 TH DAY OF OCTOBER , 2016. SD/ - PRAMOD KUMAR (ACCOUNTANT MEMBER) DATED: THE 28 TH DAY OF OCTOBER , 2016. PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD