TMI Blog2008 (1) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... for the appellant. M. V. Javali for the respondent. JUDGMENT The judgment of the court was delivered by K. L. MANJUNATH J. - This appeal is by the Revenue challenging the order passed by the Income-tax Appellate Tribunal, Bangalore Bench in I. T. A. No. 122/PNJ/98, dated June 4, 2003, wherein the Tribunal has reversed the concurrent findings of the orders passed by the Assessing Officer and the Commissioner of Income-tax (Appeals). 2. The respondent-assessee is a partnership firm which indulged in extraction of iron-ore from mines taken on lease and exports it through Minerals and Metal Trading Corporation of India Ltd., Madras. The assessee during the relevant assessment years had filed the return of income. There was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be dismissed by the Commissioner of Income-tax (Appeals) only on the ground that when a partner of the assessee-firm on January 25, 1995, has voluntarily agreed to disclose the higher income, the rejection of the revised return filed by the Assessing Officer was found to be correct. Accordingly, the appeal filed by the assessee was dismissed. Thereafter, the assessee filed a second appeal before the Income-tax Appellate Tribunal, which appeal was allowed by the Tribunal after hearing the learned counsel appearing for both the parties; by holding that the letter dated January 25, 1995, could not have been considered by the Assessing Officer and he could not have passed an order of assessment without considering the revised returns filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that the letter dated January 25, l995, addressed by a partner of the assessee voluntarily agreeing to disclose more additional income. According to him, the letter dated January 25, 1995, should have been treated as a continuation to the statement recorded under sub-section (4) of section 132 of the Income-tax Act. He further submits that the Tribunal did not consider the provisions of sections 28 and 58 of the Indian Evidence Act while rejecting the letter dated January 25, 1995. He further submits that when a voluntary statement has been made by the assessee, the same should have been considered as admission on the part of the assessee and that the Assessing Officer and the Commissioner of Income-tax (Appeals) were justified in rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he partners of the firm under sub-section (4) of section 132 of the Income-tax Act. Sub-section (4) of section 132 of the Income-tax Act reads as hereunder: "132.(4) The authorised officer may, during the course of the search or seizure, examine on oath any person who is found to be in possession or control of any books of account, documents, money, bullion, jewellery or other valuable article or thing and any statement made by such person during such examination may thereafter be used in evidence in any proceeding under the Indian Income-tax Act, 1922 (11 of 1922), or under this Act." 9. Under sub-section (4) of section 132 of the Income-tax Act, an authorised officer during the course of search or seizure can examine on oath any per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Income-tax Act to enable the Assessing Officer to pass an order of assessment. The learned counsel for the Revenue fairly submits that the letter dated January 25, 1995, cannot be treated as a return. It is also not in dispute that return has to be filed in the proforma prescribed under the Income-tax Act. The letter dated January 25, 1995, is not in such proforma. After a perusal of the letter dated January 25, 1995, it is clear to us that there is no unconditional disclosure of income by the assessee. A partner of the assessee has stated in the said letter that a revised return would be filed claiming deduction under section 80HHC and in the said letter, he has only requested not to initiate any penal action against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amine whether section 58 of the Indian Evidence Act can be pressed into service by the Revenue. Section 58 of the Indian Evidence Act reads as hereunder: "58. Facts admitted need not be proved. - No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions." 14. Relying upon section 58 of the Indian Evidence Act, the learned counsel for the Revenue contends that the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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