AMINUDDIN KAGZI,JAIPUR vs. ASSISTANT COMISSIONER OF INCOME TAX, JAIPUR

IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, “SMC” BENCH, JAIPUR BEFORE SMT. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA No. 784/JPR/2025 (Assessment Year:2010-11)

Aminuddin Kagzi Vs. Assistant Commissioner of 79, Kagzi Mohalla Income Tax Sanganer, Jaipur Income Tax Department, Ward 1(3), NCR Building, Bhagwan Dass Road, C Scheme, Ashok Nagar, Statue Circle, Jaipur �थायीलेखासं./जीआइआरसं./PAN/GIR No:ACCPA 2488 G Appellant .. Respondent Appellant by : Sh. Tarun Mittal, CA Respondent by : Sh. Gaurav Awasthi, JCIT Date of Hearing 02.06.2026 Date of Pronouncement 20.07.2026 O R D E R

The present appeal has been filed by the assessee against the order passed by the National Faceless Appeal Centre (NFAC), Delhi (hereinafter referred to as “Ld. CIT(A)”), dated 16.04.2024 u/s 250 of the Income Tax Act, 1961,(hereinafter referred to as “the Act”).

P a g e | 2 ITA No.784/JPR/2025 Aminuudin Kagzi 2. The appeal is delayed for filing by 319 days. Ld. Counsel for the assessee has filed an application seeking condonation of delay, the contents of which are reproduced hereunder:- In the aforesaid context, it is humbly submitted that order u/s 250 was passed by Ld. CIT(A) in the case of assessee on 16.04.2024, which stood served on the e-portal of the assessee. Against the order so passed, appeal could have been filed within 60 days, from the service of the order. However, the appeal got delayed by 333 days, as the appeal was filed on 14.05.2025 for the reasons as explained below: 1 That, the order was passed by CIT(A), The National Faceless Appeal Centre, Delhi on 16.04.2024. 2. That, Id. CIT(A) has passed the order without providing opportunity of being heard as the Id. CIT(A) has passed an order dated 16.04.2024 after issuing only single notice dated 31.12.2020 fixed for hearing on 15.01.2021 (ie. during COVID period) and thereafter no further notice of hearing had been issued to the assessee appellant between the period from 01.01.2021 to 16.04.2024 (1.e. nearly for 3 years). 3. That the notice so issued was directed to an email address (casanjayagrawal108@gmail.com) instead of the one specified by the assessee while filing Form 35 i.e. opa@caopagrawal.com. Consequently, the present appeal is being submitted before your goodself with respect to the order dated 16.04.2024. 4. Thus, it is submitted that the delay in filing the appeal is absolutely inadvertent and has occurred due to circumstances beyond the control of assessee. 5. That, the assessee always has acted in bonafide and the delay is of 333 days. In the circumstances of the matter it is humbly prayed to your goodself to please accept the application/prayer of the condonation of delay which is merely of 318 days and to please be kind enough to direct the listing of the appeal for disposal on the merits. Your kindness would go a long way to impart effective justice to the ignorant litigants.

P a g e | 3 ITA No.784/JPR/2025 Aminuudin Kagzi by the assessee while filing Form No.35, and even that notice fixed hearing during COVID period on 15.01.2021, and thereafter, no notices were issued till the passing of the order by the Ld. CIT(A) after more than three years. 4. He also pointed out, that the assessee would be gravely prejudiced if his appeal is not entertained for hearing since, the addition confirmed in the hands of assessee of Rs.24 lakhs would be confirmed without being heard and the addition made is multifold times the income returned by the assessee of Rs.1,52,220/-. 5. Ld. DR however, objected to the condonation of delay, stating that the delay was substantial and no reasonable cause had been adduced for condoning the delay. 6. Having heard the contentions of both the parties, I find that the assessee has adduced sufficient cause for the delay. The fact that the Ld. CIT(A) passed order giving one opportunity of hearing to the assessee that too without service of the said notice to the assessee on email address specified in Form No.35, clearly shows that the order has been passed without giving any/adequate opportunity of hearing to the assessee. Moreover, this is further strengthened by the fact stated by the assessee, in his application seeking condonation, that after one notice issue to the assessee, no notice was served for period of more than three years, and the order finally passed by the Ld. CIT(A). It can be sufficiently presumed therefore, in the facts as stated above by the assessee, which have not been controverted by the Revenue, that the

P a g e | 4 ITA No.784/JPR/2025 Aminuudin Kagzi assessee was totally unaware of the passing of the order by Ld. CIT(A) resulting in a delay of 319 days inthe filing of appeal before me. 7. Moreover, pitching the technical considerations of delay against the consequence of not entertaining the appeal of the assessee, I find that interest of justice must prevail over the technicalities of delay more particularly in the facts of the present case, where the addition made to the income of the assessee is multifold times the returned income. Therefore, noting that sufficient cause has been adduced by the assessee and to meet the ends of justice, I condone the delay in filing of the present appeal of 319 days. The order was pronounced in the open Court. 8. Taking up the appeal for hearing. The Grounds raised by the assessee reads as under:- 1. On the facts and in the circumstances of the case and in law, Id. CIT(A) has erred in passing order after providing merely one opportunity vide notice dated 31.12.2020, whereby hearing of appeal was fixed on 15.01.2021 (which fell during COVID period). Appellant prays that order so passed without affording the appellant adequate opportunity to furnish explanations, supporting documents, and legal submissions, is bad in law and liable to be quashed. 2. On the facts and in the circumstances of the case and in law the Ld. CIT (A) has erred in confirming the actions of ld. AO in reopening the assessment solely on the basis of the statements recorded during the survey conducted under section 133A in the case of M/s Sanga Automobiles Pvt. Ltd., without any independent application of mind or tangible material. The reopening is, therefore, bad in law and liable to be quashed. 3. On the facts and in the circumstances of the case and in law, Ld. CIT(A) erred in sustaining the addition of Rs. 24,00,000/- as undisclosed income solely based on the statements of the assessee, as were recorded on oath during the course of the survey. Appellant prays that assessee fully cooperated with survey team and therefore statements could not have been recorded on oath. Moreover, such statements were signed on dotted lines and without reference to books of accounts and also stood retracted by assessee soon after conclusion of survey, thus no cognizance could be given to such retracted

P a g e | 5 ITA No.784/JPR/2025 Aminuudin Kagzi statements in the absence of any other corroborative material and therefore addition so made is not in accordance with law and deserves to be deleted. 3.1 The Ld. CIT(A) failed to appreciate that Id. AO, without bringing any independent documentary evidence to substantiate the alleged unexplained investment of Rs. 24,00,000/- made the addition, and hence the addition being merely based on suspicion deserves to be deleted. 3.2 That Id.CIT(A) failed to appreciate that fact that additions made in the case of M/s Sanga Automobiles Pvt. Ltd. on account of alleged unexplained investment in construction/renovation of showroom and service centre (on the basis of retracted statements), were deleted by the Hon'ble ITAT, thus the addition made in the hands of the assessee on this score is also unwarranted and deserves to be deleted. 4 That the appellant craves the liberty to add, amend, withdraw, or substitute any ground of appeal at the time of hearing. 9. The solitary issue in the present appeal pertains to the addition made to the income of the assessee of Rs.24 lakhs on account of undisclosed income. Facts on record reveal that the addition made pertained to the surrender made by the assessee during survey u/s 133A of the Act, conducted in the case of M/s Sanga Automobiles Pvt. Ltd., of which the assessee is a Director. The assessee had admitted an undisclosed income of Rs.24 lakhs and had offered to pay tax on this income, but in the return of income filed for the impugned year the assessee did not own up his commitment. The orders of the Authorities below reveal that the assessee had submitted to the AO that the surrender had been made under duress and immediately on the next day of the surrender made, the assessee had categorically stated vide his letter dated 26.03.2010, that the surrender was not based on any reference to the books of account mentioned and was done under mental stress, and the statements were nothing, but the obtained

P a g e | 6 ITA No.784/JPR/2025 Aminuudin Kagzi statements of the assessee, and such income taken in such statements may be incorrect or partially correct. The page 2 of the assessment order reproduces the letter furnished by the assessee during assessment proceedings, mentioning the aforesaid facts. 10. The AO, however, made the addition stating that the assessee had admitted to the same during survey. The same was confirmed by the Ld. CIT(A) for the same reason. 11. Before me, Ld. Counsel for the assessee contended that the identical admission made during survey and subsequently retracted, in the case of Sanga Automobiles Pvt. Ltd. of Rs.30 lakhs ,was deleted by the Ld. CIT(A) and his order confirmed by the ITAT in its order passed in ITA No.588/JPR/2015 dated 04.08.2017. Our attention was drawn to the findings of the ITAT at para 3 of its order as under:- ………… 3. In revenue's appeal, ground no. 1 is against the deletion of addition of Rs. 30,00,000/-. The Id. D/R Shri R.A. Verma, Addl. CIT, vehemently argued that the Id. CIT (A) was not justified in deleting the disallowance. He submitted that the assessee himself had during the course of survey stated that a sum of Rs. 30,00,000/- was unexplained investment. He submitted that the statement is sufficient to make the addition. He has also relied upon the judgment of the Hon'bleHimachal Pradesh High Court in the case of Hira Singh & Co. vs. CIT, 230 ITR 791 (HP) in support of the contention that once the admission is made by the assessee, the addition made is justified. The Id. D/R has also placed reliance on the judgment of the Hon'ble Supreme Court rendered in the case of Dewan Bahadur Seth GoppalDasMohta vs. Union of India &Anr. 26 ITR 722 (SC), Narayan Bhagwant Rao vs. Gopal and Others (1960) AIR 100 (SC), Dr. S.C. Gupta vs. CIT, 248 ITR 782 (All.), Pullangode Rubber Produce Co. Ltd. vs. State of Kerala &Anr. 91 ITR 18 (SC). On a query by the Bench, the Id. D/R conceded that these case laws are not pertaining to the issue of retraction made from the statement recorded under section 133A of the Act during the course of survey. 3.1. On the contrary, the Id. Counsel for the assessee reiterated the submission as made in the written submission and also opposed the submissions of the Id. D/R. He supported the order of the Id. CIT (A). He further relied on the judgment of the Hon'ble Jurisdictional High Court rendered in the case of CIT vs. Hotel Joshi, 242 ITR 483 (Raj.)

P a g e | 7 ITA No.784/JPR/2025 Aminuudin Kagzi and also the judgment of Hon'ble Jurisdictional High Court in the case of Principal Commissioner of Income-Tax (Central) vs. M/s. Maverick Share Brokers Pvt. Ltd. in DB IT Appeal no. 14/2016.

3.2. We have heard rival contentions, perused the material available on record and gone through the order of the authorities below. There is no dispute with regard to the fact that the AOhad made addition purely on the basis of the statement recorded during the course of survey. It is also not in dispute that during the assessment proceedings, the assesseehad furnished a Valuation Report and had retracted from the statement made during the course of survey. The Id. CIT (A) deleted the addition by observing as under :-

"5.3. I have carefully considered the findings of the AO as also the submission of the appellant. The AO's case is that during the course of survey the Managing Director namely Sh. AminnudinKagzi admitted undisclosed investment of Rs. 30,00,000/- in construction and finishing work of the workshop as also that post dated cheque of Rs. 10,00,000/- in lieu of tax payment against such undisclosed income has also been furnished. As per AO such disclosure of undisclosed income during course of survey was voluntary and without any coercion and compulsion. The AO has also referred and relied on various case laws wherein it is stated to be held that statement of disclosure of concealment of income during the course of survey u/s 133A is a evidentiary value. On the other hand the appellant case is that the survey team obtained the disclosure of undisclosed income/investment made in the constructions/renovation of work shop/show room on the three properties namely A-1, Pushp Enclave, Tonk Road, Jaipur (Showroom), Sector 35, Pratap Nagar, Shikarpura Road, Sanganer, Jaipur (Workshop) and Workshop at Chomu, Dist. Jaipur without any individual bifurcation as also without any documentary evidence. As per the appellant there was not a single piece of documentary evidence which may indicate that any investment was made outside books of accounts. As per appellant either during the course of survey or during the course of assessment proceedings, there is no documentary evidence on record which may indicate that any such undisclosed investment was made in construction etc. The appellant has contended that the statement of the Managing Director in respect of undisclosed income of Rs. 30,00,000/- was without reference to any record or books of accounts and that such statement can not from a basis for addition to the total income it was also contended that the statement of the Managing Director which was recorded on 24.03.2010 was retracted within a short period of time i.e. just after three days on 26.03.2010. The appellant further contended that the statement recorded u/s 133A are not on oath and therefore the statement recorded during the course of survey can not solely be relied upon as in the absence of any corroborative or documentary evidences such evidences did not have any evidenciary value. For such proposition of law the appellant has placed reliance on various case laws including decision of Hon'ble Supreme Court in the case of CIT vs. S. Kader Khan Sons, 352 ITR 480. On careful consideration of all relevant facts it may be noted that though the AO has recorded the statement of the Managing Director on 24.03.2010 in which undisclosed income of Rs. 30,00,000/- was admitted on account of construction and furnishing of showroom etc, but the fact is that such statement was

P a g e | 8 ITA No.784/JPR/2025 Aminuudin Kagzi without any reference to any incriminating documents. It is also fact that the appellant vide letter dated 26.03.2010 informed the AO that such statement was made in the presence of so many officers in a puzzled mind simply based on memory and without any reference to the record and accordingly the appellant requested to theAO to supply the copies of statement as also the impounded records so that the statement can be referred/related to such records and correct income can be filed. It is also fact that even during the assessment proceedings the AO has not brought on record any evidence which may indicate such unexplained investment in the construction. The above facts will indicate that such addition of Rs. 30,00,000/- was based only on the statement of the Managing Director without any reference to documentary evidence or corroborative evidence. The fact that statement recorded u/s 133A on oath and having no evidencery value is also find support from the following case laws :-

(1) Paul Mathews & Sons vs. CIT (2003) 263 ITR 101 (Ker)

The relevant finding of the Hon'ble Court is reproduced as under:

"Sec. 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. Sec. 133A however, enables the IT authority only to record any statement of any person which may be useful, but does not authorize for taking any sworn in statement. The IT Act, whenever it thought fit and necessary to confer such power to examine a person on oath, the same has been expressly provided whereas s. 133A does not empower any ITO to examine any person on oath. Thus, in contra distinction, to the power under s. 133А, s.132(4) enables the authorized 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 IT Act. On the other hand, whatever statement recorded under s. 133A is not given any evidentiary value obviously for the reason that the officer is not authorized to administer oath and to take any sworn statement which alone has the evidentiary value as contemplated under law. Therefore, there is much force in the argument of the counsel for the appellant that the statement, elicited during the survey operation has no evidentiary value and the ITO was well aware of this."

(2) Ashok Manilal Thakkar v/s. ACIT (2005) 97 ITD 361 (Ahd)

The relevant finding of the Hon'ble ITAT is reproduced as under:

".... There is to basic difference between the statement recorded under the provisions of s. 132 (4) vis-a-vis under s. 133A(3)(i) of the Act. The said difference has well been explained in the decision in the case of Paul Mathews & Sons (supra). The statement of the assessee recorded under the provisions of s.133A(3)(iii) can be said to be useful or relevant to the assessment proceedings only in the circumstances when there is a material on recorded to prove the existence of any of the four activities on the basis of which the disclosure is stated to be made. It has been explained in the afore cited

P a g e | 9 ITA No.784/JPR/2025 Aminuudin Kagzi decision of Kerala High Court that statement recorded under s. 133A cannot be given evidentiary value as such evidentiary value is not attached with by the provisions of s. 133A of the Act. Thus, it cannot be said that only on the basis of statement given by the assessee the disclosed income was assessable as lawful income of the assessee. There being no evidence/material available on record to prove the existence of such disclosed income or earning of such income in the hands of assessee, it cannot be said that the tax was lawfully payable by assessee in his hand on the disclosed income."

(3) Unitex Products Ltd. v/s ITO (2008) 22 SOT 429 (Mumbai)

The relevant finding of the Hon'ble Court is reproduced as under:

"During the course of survey the officer could recorded the statement of a person under sub-s. (3)(iii) of s. 133A. This clause authorize the authority to record the 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, 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."

(4) CIT v/s. S. Khader Khan Son (2008) 300 ITR 157 (Mad)

The relevant finding of the Hon'ble Court is reproduced as under:

"In the instant case, there was a survey operation conducted under s. 133A in the assessee 's premises and a statement was recorded from one of the partners. Assuming there were discrepancies and irregularities in the books of accounts maintained by the assessee, an offer of additional income for the respective assessment years was made by the partner of the firm. But, such statement in view of the scope and ambit of thematerials collected during the course of survey action under s 133A shall not have any evidentiary value, as rightly held by the CIT(A) and the Tribunal, since such statement was not attached to the provisions of s. 133A. 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. Since there was no material on record to prove the existence of such disclosed income or earning of such income in the hands of the assessee, it could not be said that the Revenue had lost lawful tax payable by the assessee. A power to examine a person on oath is specifically conferred on the authorities only under s. 132(4) in the course of any search or seizure. Thus, the IT Act, whenever it thought fit and necessary to confer such power to examine a person on oath, has expressly provided for it, whereas s. 133A does not empower any ITO to examine any person on oath. Thus, in contradistinction to the power under s. 133A, s. 132(4) enables the authorized 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 IT Act. On the other hand, whatever statement recorded under s. 133A is not given an evidentiary value.

P a g e | 10 ITA No.784/JPR/2025 Aminuudin Kagzi What is more relevant, in the instant case, is that the attention of the CIT(A) and the Tribunal was rightly invited to the circular of the CBDT dt. 10h March, 2003 with regard to the confession of additional income during the course of search and seizure and survey operations.

It may further be mentioned that the finding of the Hon'ble Madras High Court in the case of CIT v/s. S. Khader Khan Son (supra) has further been approved by Hon'ble Supreme Court while deciding the subsequent appeal filed by the department reported in [2013), 352 ITR 480.

It may be noted that various Hon'ble Courts including the Apex Court has held that the statement recorded u/s 133A does not have any evidentiary value and addition cannot be made simply on the basis of statement recorded during survey. The decision of the Hon'ble Apex Court amounts to declaration of law as contemplated under article 141 of the constitution of India. The facts of record indicate that in the appellant case the addition of Rs. 30 Lacs has been made on the basis of statement recorded u/s 133A of IT Act and such addition is not supported by any other documentary or corroborative evidences. As regards various case laws relied upon by the AO it may be mentionedthat the decision of the Hon'ble Supreme Court as reported in 352 ITR 480 will prevail over all such decisions relied upon by the AO. Accordingly the addition made by the AO amounting to Rs. 30 Lacs is deleted.

The ground of appeal is allowed."

We have given our thoughtful consideration to the facts of the present case and the Hon'ble High Court pronouncements as relied on by the learned representatives of the parties. We find that the addition is made purely on the basis of statement recorded during the course of survey. This statement was duly retracted by the Director of the assessee company and a valuation report was furnished rebutting the contents of the statement. The Hon'ble Jurisdictional High Court in the case of Principal CIT vs. M/s. Maverick Share Brokers Pvt. Ltd. (supra) has held that merely on the basis of statement under section 133A of the Act addition could not have been made. The case laws as relied on by the Id. D/R do not support the case of the revenue. Under these facts, following the judgment of Hon'ble Jurisdictional High Court in the case of Pr. CIT vs. M/s. Maverick Share Brokers Pvt. Ltd. (supra), we do not see any reason to interfere in the order of Id. CIT (A) and the same is hereby upheld. The groundno. 1 of the revenue is rejected. …………….. 12. On perusing the order of the ITAT, in the case of Sanga Automobiles Pvt. Ltd., (Supra) I have noted that in the facts of the said case the surrender made of Rs.30 lakhs during the same survey as in the present case before me, was stated to me made under duress and

P a g e | 11 ITA No.784/JPR/2025 Aminuudin Kagzi without any basis at all. The addition in the said case was also made purely on the basis of statement recorded during survey. The Ld. CIT(A), and the ITAT referred to several decisions of the High Courts including that of the Hon’ble High Court in the case of Paul Mathews & Sons Vs. CIT [2003] 263 ITR 101 (Kerala) and the decision of Madras High Court in the case of CIT Vs. S. Khader Khan Son [2008] 300 ITR 157 (Madras) to hold that statement recorded u/s 133A of the Act does not have any evidentiary value, and addition cannot be made simply on the basis of statement recorded during survey. 13. I have further noted that the decision of Hon’ble Madras High Court was confirmed by the Supreme Court in its order reported in 352 ITR 480 (SC). 14. The Ld. DR before me, was unable to either controvert the fact that the addition made in the facts of the present case was based solely on the statement recorded during survey which was subsequently retracted by the assessee, stating that it was made under duress. He was unable to controvert the fact that the surrender was not supported by any evidence. He was also unable to draw our attention to any contrary decision unsettling the proposition of law, settled by the Hon’ble Apex Court in the decision of S. Khader Khan Son (Supra), holding that the statements made during survey had no evidentiary value and could not be solely relied upon for making any addition in the hands of the assessee.

P a g e | 12 ITA No.784/JPR/2025 Aminuudin Kagzi 15. In the light of the above, I see no reason to confirm the addition in the hands of the assessee of Rs.24 lakhs, which as noted above is based merely on statement made by the assessee during survey. The addition made of Rs.24 lakhs is accordingly deleted. 16. In effect, the appeal of the assessee is allowed. Order pronounced in the open court on 20.07.2026

Sd/- (Annapurna Gupta) ACCOUNTANT MEMBER Dated 20.07.2026 Mittali, Sr. PS Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT By Order, Asst. Registrar ITAT, Jaipur