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2016 (8) TMI 268 - KERALA HIGH COURT

2016 (8) TMI 268 - KERALA HIGH COURT - [2016] 387 ITR 212 - Assessment u/s 153A - Regard of statement recorded under section 132 (4) of the partner of the firm - Held that:- we find from the order passed by the Tribunal that the statement recorded under section 132(4) was attested by two witnesses. The statement was also not retracted in any manner. The assessing officer first appellate authority and the Tribunal were satisfied that Sri.Jabir was actively involved and was fully conversant with t .....

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of the firm. It may be true that the Managing Partner was not confronted with the contents of the statement made by Sri.Jabir. But having regard to the law laid down in Narayan Bhagwat Rao Gosavibalajiwale v. Gopal Vinayak Gosavi & Others [1959 (9) TMI 53 - SUPREME COURT] relied on by the Tribunal, which lays down that the statement recorded under section 132(4) of the Income Tax Act is the best evidence, absence of confrontation does not necessarily require eschewing or discarding such a statem .....

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. Secondly, this claim could not have been considered by the Tribunal in the absence of any supporting document, including the partnership deed. The fact that issues relating to sale of branded items and bulk sales are remanded for fresh adjudication by the assessing officer does not mean that the Tribunal should have, as contended by the counsel for the assessee, remitted this claim of the assessee also to the assessing officer. On facts, we are not satisfied that the Tribunal has committed any .....

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he assessment years 2007-08 and 2008-09 respectively. 2. We heard learned counsel for the assessee and the senior counsel for the Revenue. 3. The assessee is a partnership firm. It originally declared loss for both the years under reference. Search under section 132 of the Income Tax Act was carried out in the business premises as well as the residential premises of the partners and books of accounts and other documents were seized. Notices under section 153A of the Act were issued and in respon .....

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issue of sale of branded items and directing the assessing officer to exclude such sales for working out understated sales and grant appropriate relief to the assessee. Still aggrieved, the assessee filed appeals before the Tribunal. By the impugned common order, the Tribunal directed that the issue relating to bulk sales be adjudicated by the assessing officer, with opportunity of hearing to the assessee. On rest of the issues, the Tribunal confirmed the order passed by the lower authorities. .....

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of the case, the Tribunal ought to have allowed the claim of expenditure by way of interest to the partners on their capital and salary to the working partners. 5. During the hearing of the appeals, the contentions were reiterated by the learned counsel for the assessee. In so far as the first question relating to the statement of one of the partners recorded under section 132(4) is concerned, it was the contention of the assessee that the person whose statement was recorded is one Jabir who is .....

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at Sri.Jabir was actively involved and was fully conversant with the business activities of the firm. In fact, the statement of a salesman of another firm, of which his father himself is the Managing Partner, was to the effect that it was Sri.Jabir who was running the business and even deciding the price of the wooden furnitures that were sold. All these factual findings contained in the order of the Tribunal would therefore indicate that Sri.Jabir was a person who was actively involved in the b .....

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