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This appeal has been preferred by the Revenue thatthe Tribunal erred in holding that on the basis of the statement of the director Shri Saurabh N. Garg alone, the AO cannot come to the conclusion that the assessee has issued accommodation bills and reject the books of account of the assessee. ITAT ordered that "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 and reject the books of account of the assessee" (i) An admission is extremely an 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 accounts do not correctly disclose the correct state of facts, vide decision of the Apex Court inPullangode 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 Incometax [(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 include the materials gathered during the survey operation under Section 133A, videCommissioner 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 inT.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.” In view of the discussions made above, we see no reason to interfere with the order passed by the Tribunal. Consequently, the appeal fails and is accordingly dismissed. No cost.

Shanti Prime Publication Pvt. Ltd.

Sec. 133A of Income Tax Act, 1961— Addition statement—Assessee was 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 company having two Directors. Assessing Officer came to the conclusion that assessee was engaged in the activity of issuing accommodation bills for purchase and sale of diamonds coupled with acting as a dummy for importer. Holding the transactions as not reliable, Assessing Officer rejected the books of account of the assessee. The Assessing Officer assessed 2% as the rate of commission of the assessee on account of import purchases i.e. for acting as a dummy. That apart, commission @ 0.75% on sales bills was assessed. Assessee preferred appeal before the Commissioner of Income tax (Appeals) and also referred to first appellate authority hereinafter. The first appellate authority confirmed the action of the Assessing Officer. Assessee preferred further appeal before the Tribunal. The Tribunal returned the finding that assessee was not engaged in issuing the accommodation bills and acting as a dummy for importing diamond bills. Therefore, Assessing Officer was directed to delete the income as estimated by him and to accept the book results declared by the assessee. Revenue filed appeal before High court.
 The Madras High Court concluded that statement recorded under Section 133A of the Act is not given any evidentiary value and that materials or information found in the course of survey proceedings could not be a basis for making any addition; besides materials collected and statement obtained under Section 133A would not automatically bind upon the assessee.
 In view of the discussions made above, Court see no reason to interfere with the order passed by the Tribunal. Consequently, the appeal fails and was accordingly dismissed. --- PR. CIT vs. SUNSHINE IMPORT AND EXPORT PVT. LTD. [2020] 23 ITCD Online 26 (BOM

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