TMI Blog2000 (9) TMI 233X X X X Extracts X X X X X X X X Extracts X X X X ..... o perused the records. 4. First we take up ITA No. 1278/Jp/1994 being the appeal of Revenue. The Revenue has raised two grounds of appeal before the Tribunal. Ground No. 1 disputes the deletion of addition of Rs. 53,992 representing undisclosed income of the assessee shown in the wife's hands. Ground No. 2 disputes the deletion of addition of Rs. 7,955 representing undisclosed income of the assessee shown in the hands of minor son Satish Kumar. As both the grounds are inter-related as we are taking them up together. The learned Departmental Representative of Revenue has referred to the statement of the assessee's wife Smt. Puspa Devi recorded under s. 132(4) on 14th Oct., 1987 and the statement of assessee Shri Gyan Chand Jain recorder under s. 132(4) on 14th Oct., 1987 and 16th Oct., 1987, as placed on pp. 51 to 90 of the assessee's P.B. He has specifically drawn our attention to the answer to question No. 1 by Smt. Puspa Devi wherein she has stated that she does not have any source of income nor is she partner in any firm. Her said answer recorded in Hindi is as under: "Uttar: Meri aap koi sadhan nahin, na hi main kisee firm mai bhagidar hun." He has further referred- to he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of number-two income (black money) received from the said transport business a sum of Rs. 5 lacs was invested by him in the name of his wife and son as capital in M/s R. Tubes (P) Ltd. He further stated that on M/s R. Tubes (P) Ltd. getting closed the capital invested therein in the names of his wife and son was withdrawn and that he lent the same capital on interest in the names of the two, and that the interest income received therefrom is being shown by him in their individual files of income-tax which he got opened since 1981-82. The learned Departmental Representative has further argued that the management and control over the said business and utilisation of the money have been proved by the Revenue to be lying with the assessee and that the lady and son are Benamidars. He has also contended that the assessee's wife is even ignorant of about all these transactions and has no knowledge of her capital. He has contended that the learned CIT(A) has wrongly deleted the above additions and so the AO's order should be restored. 5. As against this, the learned authorised representative of assessee has contended that the search at the assessee's premises was conducted by the Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her husband, the present assessee. In his support he has referred to various W.T. assessments of the assessee placed on pp. 45 and 46. He has contended that the Department cannot now be permitted to change the stand. He has cited H.A. Shah Co. vs. CIT (1956) 30 ITR 618 (Bom). He has contended that the said judgment was followed in CIT vs. Dalmia Dadri Cement Ltd. (1970) 77 ITR 410 (P H) 420. He has contended that there is no fresh material on record for AO to change the opinion from that which CIT has already held in his order under s. 132(12) of the Act. He has also referred to the assessee's letter wherein the assessee's wife Smt. Puspa Devi has been stated to be a partner in the firm P.K. Products in her own right. It has also been stated in the above letter of the assessee that the assessee had made surrender of amount deposited with M/s R. Tubes (P) Ltd. in the name of Smt. Puspa Devi and Satish Kumar but on verification the Department found that there was no such investment. He has contended that it was after torture of three days and nights that the assessee was compelled to make surrender which surrender was found factually incorrect. He has also contended that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his regard the material aspects to be considered are as to who enjoyed the fruits and from whom the capital is coming. He has cited Madho Lal vs. ITO (1991) 40 TTJ (Jp) 333 and Palvinder Kaur vs. State of Punjab AIR 1952 SC 354. He has contended that here whatever income arose was credited in the lady's account. He has also referred to the finding of the learned CIT(A) on para 2 and 4 of his order and contended that it is on the basis of the assessee's written submission as available on p. 16 of P.B. He has contended that in the grounds of appeal the Department has mentioned the income as undisclosed but the said income is not undisclosed and is quite disclosed, as also from definite source and in the hands of Smt. Puspa Devi. 6. In rejoinder, the learned Departmental Representative of the Revenue has contended that the contention of the learned authorised representative of assessee that nothing was found in search, is not correct inasmuch as various things were found during search. Regarding the nature of statement recorded under s. 132(4) he has contended that some introductory enquiry in the statement/examination has to be made necessarily so as to come to the main examination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (sic-enterers into the premises at the time of search and started conducting) the search/seizure operation and the atmosphere gets (sic) for the members if the family and in particular the ladies and children and their mental state being not free from strain and stress as also exhausion due to continuity of search for hours together their statements recorded during search, may not always and invariably justifiably be taken to be their final or conclusive word on the facts stated therein and particularly on nice details thereof and much more so regarding the niceties of details of exact number or description of various investments/expenses or of various assets like ornaments/valuable articles or the like. The deponents may, sometimes, subsequently also well explain the correct position of those facts, and the same may, if substantiated by evidence supportive thereof, and does convincingly refute/repel the earlier statement on that particular point of fact, be considered as having more reliability or more nearness to truth than the earlier said statement. However, at the same time, we may also clarify that the correct legal position is not that the statements recorded during search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s punishment (imprisonment or fine or both) consequent upon conviction for that crime, and the law, in appreciating the trustworthiness of a confession as also its evidentiary value, is jealously precautious. This is in the wake of the basic principle of criminal jurisprudence that no one should be convicted unless and until his guilt is proved to the hilt and "beyond shadow of all reasonable doubts". It is in the context of this background that we need read the legal proposition enunciated in respect of a confession or an admission in the context of a confession. The decision of Hon'ble Supreme Court in the case of Palvinder Kaur headnote of para 17, is in the case of an offence as grave as under and it was in that context that the Hon'ble apex Court held that the confession and admission must either be accepted as a whole or rejected as a whole since if either inculpatory portion only or exculpatory portion only of the statement is accepted, excluding the other portion, though intervene therewith, it may lead to grave injustice. 9. As regards the nature of extent of examination of a person under s. 132(4) of IT Act during search we agree with the contentions raised by learned a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng regarding retention/disposal of seized articles, is conclusive and binding in the subsequent regular assessment, or in substantive proceeding. Such a finding may be binding only in a subsequent similar summary/proceeding. In fact the order passed in proceeding under s. 132(5), and for that matter under s. 132(12) is a provisional one meant only for determining the extent of seized assets to be retained and the same does not decide finally the rights and liabilities of the assessee, and so not binding when regular assessment is made. We may refer, with advantage Goyal Co. vs. Union of India (1994) 121 CTR (Raj) 511 : (1994) 209 ITR 332 (Raj). In our considered opinion, irrespective of a finding in summary proceedings given for retention/disposal of seized assets under s. 132(5) or under 132(12), the AO has, in regular assessment which is a substantive proceeding, to apply his own mind to the facts available on record before him and draw the conclusion of his own for framing regular assessment. 11. Now we may analyse the fact-situation of the case in hand, in the light of the above legal position. The two income of Rs. 53,992 and Rs. 7,955 already stand assessed in the hands o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and circumstances of the case, we are of the view that the learned CIT(A)'s impugned order, deleting the above referred two additions, made by AO by way of inclusion of the same in the hands of present assessee, treating him to be the real owner and Smt. Pushpa Devi and Satish Kumar being only Benami, is quite justified and warrants no interference. We, therefore, decline to interfere with the same. 12. Now we take up the assessee's appeal being ITA No. 1021/Jp/1994. The assessee has raised two grounds of appeal before the Tribunal. Ground No. 2 is general and calls for no specific decision on our part. Ground No. 1 has its three sub-parts. Ground No. 1(1) and 1(2) have not been pressed by the learned authorised representative of assessee during arguments before us, and so the same are dismissed accordingly. Ground No. 1(3) disputes the addition of Rs. 5 lacs on the basis of three credit bills. The learned authorized representative of the assessee has contended that this addition of Rs. 5 lacs has been made on the basis of three bills placed on pp. 95, 96 and 97 of the assessee's P.B. which were found not entered in the books. He has contended that these bills were not cash b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te (sic) on the issue. He has contended that the assessee's books were Written up to 1st Sept., 1987 and the two bills of purchases had already been received by the assessee prior to 1st Sept., 1987 but the same were not recorded in the books which prima facie rendered the accounts of the assessee to be defective. He has also contended that as per the assessee substantial amount of cash was available with him but in the books cash was not found which itself shows that all the transactions are not recorded in books. He has also contended that regarding the sale of explosive worth Rs. 2 lacs by the assessee to Basant Bhai Patel of Ahmadnagar, there was some dispute between the parties but the same was ultimately settled but the transactions are admittedly not recorded in the books which clearly shows that the assessee is doing business outside the record. He has also contended that the shortage of cash also shows the defect in the books of accounts. He has also contended that the case of Mustaq Ahmad Makrana 22 Tax World 25 is in favour of the Revenue. He has thus supported the orders of the authorities below. 13. We have considered the rival contentions, relevant materials on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact of the sale of material worth Rs. 2 lacs still very much remains there and the same was admittedly not recorded in the books. It may not be irrelevant to mention here that the assessee made a surrender of Rs. 2,60,000 as his undisclosed income being in business as can be seen from his statement on p. 75 of the assessee's P.B. From the details of surrender as made by the assessee in his statement as available on p. 75 of P.B. it is revealed that the assessee also made a surrender of Rs. 1 lac as undisclosed money being in domestic articles and various miscellaneous, expenses. In answer to question No. 8 in the statement dt. 1st Oct., 1987 the assessee has admitted sending his Vehicle No. 5611 RJE with driver Shariff Khan and cleaner Mohammed for purchase of explosives to Dehradun but he has stated that he had not given any amount to the said driver and cleaner and that the payment would have been made afterwards in cash or through draft on receipt of the material. That AO has observed on p. 11 of his order that the assessee's intention was to purchase goods in an unaccounted manner. He has also observed that such transactions are on cash basis and it can be presumed that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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