Briefly stated facts are that a survey operation under section 133A of the Income Tax Act, 1961 was carried out at the premises of the assessee on 6.3.2009. A notice under section 148 of the Act was issued on 26.12.2011, which was duly served upon the assessee. In response to the notice, the assessee did not file return within time period stipulated in the notice, but filed return on 15.3.2013. It emerges out from the record that the statement of the assessee was recorded on 6.3.2009. Thereafter, his statement was recorded on 20.3.2009 and 30.3.2009. Copy of the statement recorded on 6.3.2009 is available at page no.34 to 51 of the paper book. The statement was recorded on a printed stationery under the heading “D.D.I.T.’s COPY”. This stationery contains heading “STATEMENT U/S 132(4)/ 131/133A(3)(III OF THE I.T. ACT 1961”. The officer who has recorded statement is “D.M. Nimje, Income Tax Officer (Inv.), Surat. He has scored off section “132(4) and 133A(3)(III)” of the Act from the heading. In this way, he has given a colour to the statement, as if it was recorded under section 131 of the Income Tax Act. Other two statements were recorded under section 131 by the Deputy Commissioner of Income Tax, Surat. These were recorded on oath. Copies of these statements are also available at page nos.92 to 99 of the paper book-2. The ld.counsel for the assessee has submitted that evidentiary value of these statements has to be inferred while dealing with various additions made in the total income of the assessee. The AO has made reference to the statement and relied upon the statements recorded during the course of survey. In other words, he has given preference to the reply given by the assessee on some of the issues in the statement recorded during the course of survey instead of replies given during subsequent inquiries conducted at the Income Tax Office. On the strength of the Hon’ble supreme Court decision in the case of CIT Vs. S. Khader Khan Son, 352 ITR 480 (SC), Hon’ble Kerala High Court decision in the case of Paul Mathews & Sons Vs. CIT, 263 ITR 101 (Ker) and of Hon’ble Madras High Court decision in the case of CIT Vs. S. Khadarkhan Son, 300 ITR 157 (Mad.) contended that under sub-section 3 of section 133, officer who carried out the survey upon the premises of the assessee was not authorized to administer oath, and therefore, that statement was taken without taking any oath from the assessee. If the officer is not empowered to administer oath, then by scoring off the sections in the heads of the stationery would not authorize officer to administer oath and take statement under section 131 of the Income Tax Act, 1961 during the survey. Therefore, this statement is only a piece of information, and does not carry any evidentiary value. He has placed on record copies of these decisions.
The issue regarding evidentiary value of the statement taken during the course of survey, has fallen for consideration before the Hon’ble Kerala High Court in the case of Paul Mathews and Sons (2003) 263 ITR 101 (Ker). According to the Hon’ble Kerala High Court, during the course of survey, the officer could record the statement of a person under sub-section 3(iii) of section 133A of the Income Tax Act. This clause authorizes the authority to record a statement of any person which may be useful for or relevant to any proceedings under the Act. However, the officer is not authorized to record the statement on oath, and hence, the statement taken during the course of survey, has no evidentiary value. It is simply an information, which can be used for corroboration purpose for deciding any issue in favour or against the assessee. The observations made by the Hon’ble Kerala High Court on page no.108 of the journal are worth to note. It reads as under:
“..Section 133A(3)(iii) enables the authority to record the statement of any person which may be useful for, or relevant to, any proceeding under the Act. Section 133A, however, enables the income-tax authority only to record any statement of any person which may be useful, but does not authorise taking any sworn statement. On the other hand, we find that such a power to examine a person on oath is specifically conferred on the authorised officer only under section 132 (4) of the Income-tax 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 a person on oath, the same has been expressly provided whereas ‘section 133A does not empower any Income-tax Officer to examine any person on oath. Thus, 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. Therefore, there is much force in the argument of learned counsel for the appellant that the statement elicited during the survey operation has no evidentiary value and the Income-tax Officer was well aware of this”
Similarly, the Hon’ble Madras High Court has also concluded that statement recorded during the course of survey has no evidentiary value. The SLP against the decision of the Hon’ble Madras High Court has also been dismissed by the Hon’ble Supreme Court.
As observed earlier, nothing substantial would turn out on this issue. It is a peripheral issue related to other grounds. While dealing with those issues, we would keep in mind the contentions raised by the ld.counsel, and the judgment of the Hon’ble Supreme Court in the case of S. Khadarkhan & Sons