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2017 (4) TMI 1251 - AT - Income TaxUnexplained investment - whether the money in question belongs to the appellant or not? - statement have been recorded u/s.161 relied - Held that:- We are sitting in a summary proceedings case wherein the necessary procedure follows preponderance of probability rather than strict rules of evidence law. We also take note of the fact that it was for the assessee to discharge all the primary onus of not having any business relation with the Mumbai based alleged payee in order to come clean out of the impugned addition. There is further no attempt on his part to allege any threat or coercion in challenging veracity of above section 161 statement. We therefore treat the same as sufficient opportunity for the assessee to contradict all the relevant information in challenging correctness of the said complainant's statements who could not have substantiated his misappropriation allegation without producing him. We thus conclude in view of all these facts that non examination of the above complainant at assessee's instance is in any way not fatal to the impugned addition. We accordingly hold that the abovestated hon'ble apex court's decision in Andaman Timber Industries vs. CIT [2015 (10) TMI 442 - SUPREME COURT] does not apply to facts of the instant case. The assessee's second plea raised in the course of hearing that neither he had appeared before the police authorities nor made any statement is also found to be devoid of merit in view of our discussion in preceding paragraphs. We further take note of Section 114(e) of the Indian Evidence Act to presume that once the assessee himself admits the above statement to have been recorded u/s.161 of the Code of Criminal Procedure it was an official act performed in due process of law in taking the assessee as a witness at the abovestated complainant's behest. We thus see no reason to interfere in well reasoned lower appellate findings extracted hereinabove. The same are confirmed. Assessee's appeal is dismissed.
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