TMI Blog2016 (10) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... verse, based on no evidence, misreading of evidence or which a reasonable man could not form or that the person concerned was not given due opportunity, resulting in prejudice, said proceedings need no interference. Penalty upheld - petition allowed - decided in favor of Revenue. - S.B. Sales Tax Revision Petition No. 99/2009 - - - Dated:- 3-10-2016 - Jainendra Kumar Ranka, J. For the Petitioner : Tanvi Sahai, Meenal Ghiya For the Respondent : Surendra Singh ORDER 1. The instant petition is directed against order dated 29.6.2007 passed by the Rajasthan Tax Board, Ajmer, in Appeal No.752/2008/Alwar, by which appeal of the petitioner has been dismissed. 2. The brief facts noticed are that a survey came to be conducted by the officers of the Anti Evasion Wing at the business premises of the respondent assessee on 28.10.2002, wherein some excess stock was found by the officers concerned and physical stock was also taken. It was noticed by the officers that the stock of Namkeen on spot verification was 6422 kg whereas in the books it was weighted at 3892 kg only and, therefore, there was excess stock of 2530 kg. A show cause notice was given, however, the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Another (2013) 66 VST 3 (Raj), where on identical facts this court had upheld the claim of Revenue. 5. Per contra, learned counsel for the assessee contended that both the Appellate Authorities have come to a categorical finding that the survey was not conducted in a proper and just manner, coercion and pressure was built on the assessee and the finding recorded that both the witnesses, were employees/workers of the respondent assessee and they could not be said to be independent witnesses, and thus supported the order of both the Appellate Authorities and also contended that it is a finding of fact. 6. I have considered the arguments advanced by the learned counsel for the parties and perused the impugned order so also the other orders on record and the record of Assessing Officer in particular, and in my view the orders of Tax Board and Dy. Com. (Appeals) are required to be interfered with for the following reasons. 7. Having perused the record of the assessee it transpires that on the day of survey the statements were recorded of the respondent assessee who agreed that there was excess stock to the extent of 2530 kg on physical verification vis-a-vis the books/stock reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for perusal of the court and the records which have been produced of the AO which was produced by the counsel for Revenue and which is also seen by the counsel for the respondent, at-least no affidavit or any material is apparent. 12. Division Bench of this Court in the case of CIT, Bikaner v. Ravi Mathur and other connected matters [D.B. Income Tax Appeal No.67/2002, decided on 13.5.2016] had considered the issue of etraction/resiling of the statements though in the context of provision of section 132(4) of the IT Act. As expressed earlier, in my view the same principle would apply. It would be appropriate to quote few relevant paras of the said judgment supra which reads ad infra :- 15. In our view, the statements recorded under Section 132(4) have great evidentiary value and it cannot be discarded as in the instant case by the Tribunal in a summary or in a cryptic manner. Statements recorded under Section 132(4) cannot be discarded by simply observing that the assessee retracted the statements. One has to come to a definite finding as to the manner in which retraction takes place. On perusal of the facts noticed hereinbefore, we have noticed that while the statements we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxx 15.2 This Court in Raj Kumar Sodhani v. The CIT [DB ITA No.15/2015, decided on 28.4.2016] has taken this very view that retraction after a sufficient long gap looses its sanctity. 15.3 xxx xxx xxx xxx 15.4 The question in the case of Bachittar Singh v. CIT Anr. (supra) of the Punjab Haryana High Court, arose that a survey took place under Section 133A on 21.3.2003 and the assessee during the course of survey surrendered for taxation a sum of ₹ 19 lakh stating therein that he had purchased shop no.5-A, New Cloth Market, Ambala City, for ₹ 24 lakh jointly with his brother and source of investment was not reflected in the books of account. Later the assessee sought to resile from the said statement by taking stand that he had agricultural income to that effect, the investment was from that source, he had done potato business which was evidenced by entries in a diary found during the survey, he also produced other evidence in support of his claim. The AO rejected the stand holding that there was a long gap between the statement made originally on 21.3.2003 and retraction of the said statement on 28.5.2003 (less than three months), and the stand taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the opinion that the statements so recorded and documents collected by the Assessing Officer cannot be brushed aside as done by the Appellate Tribunal stating that it is having only very limited application. We answer the question in favour of the appellant. .. None of the provisions under Chapter XIVB mandates that for making block assessment there shall be evidence regarding the concealment of income for every year in the block period. It cannot be expected that the assessee would retain documents regarding the concealment of income. If documents for every concealment are insisted to be searched, practically the provision for block assessment would be defeated. We cannot shut our eyes to the legislative intent. Here, what was disclosed that for sale, no bills are issued, but paper slips are issued with the price. Though carbon copy is retained it did not contain the sale price. Sale slips are destroyed then and there. Cash books are maintained by recording the 80 per cent of the price of liquor at a later date. When such practices are adopted, nobody can expect evidence for every year in a block period. What is possible is only to have a best judgment assessment on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly found that the plea of the assessee that the admissions were made under threat and coercion is clearly unfounded. The Tribunal also has categorically refused to consider the issue of threat and coercion. In such circumstances, the Tribunal ought to have seen if the assessee has established that the admissions made were erroneous and factually incorrect. It was well within the capacity of the assessee to have shown before the fact finding authorities either at the original or at the appellate stage that the assessee had only paid amounts as disclosed in the documents for the various property transactions entered into by him. The assessee having not proved any threat or coercion and further having failed to prove that the amounts shown in the documents were the only payments made, the Tribunal was not right in casting a burden on the Department. The assessee, in the instant case, has failed to successfully disprove the admissions made by him and the admissions made in a statement under section 132(4), by the clear provisions in the statute has to be considered to have evidentiary value. In the circumstances, we proceed to answer the first question of law in favour of the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id contention would be well received by this Court. The conduct of the assessee has to be seen herein. The assessee made a statement in the enquiry conducted by the department as regards the parting of a sum over and above what was recorded in the sale deed. A reading of the questions and answers which are extracted in the preceding para shows that the assessee was well aware of the contents of the statement made by him. The statement was recorded in the year 1999 and the assessee thereafter too participated in the enquiry until 2003 and he had no doubt about the truthfulness of the statement made. However, for some reason best known to him, the assessee in the letter on 26.6.2003, took a plea that the statement were not recorded in the presence of Dy. Director of IT (Inv.) and statements were not given voluntarily. It may be seen that the assessee is stated to have written letters on 12th June, 2003 and 26th June, 2003 and it is relevant to point out that the so-called retraction came to be made only in the letter dt. 26th June, 2003, which clearly shows that it is merely an afterthought to say that he made the statement under threat or coercion. Consequently, this ground fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the notice of the higher officials of the Revenue, if something wrong happened in the survey proceedings and such having not been brought, the onus has not been discharged. 15. It is settled law that once the officer conducting survey on the basis of the very own statements of the respondent assessee having accepted the guilt/charge, having accepted about the excess stock and has no explanation to offer, it may not be proper for the court to enter upon merits of the controversy at all and unless it is demonstrated that the penalty proceedings initiated and imposed, is mala fide, perverse, based on no evidence, misreading of evidence or which a reasonable man could not form or that the person concerned was not given due opportunity, resulting in prejudice, said proceedings need no interference. 16. The Division Bench of this court in the case of M/s Grass Field Farms Resorts Pvt Ltd v. Dy.CIT Circle-2, Jaipur [DB ITA 60/2016 decided on 1.6.2016], had an occasion to consider the penalty imposed on the assessee consequent to a survey u/s 133A of the IT Act where incriminating documents were found and statements of the Directors were recorded and so also of various employees ..... X X X X Extracts X X X X X X X X Extracts X X X X
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