TMI Blog2017 (11) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... even by illegal means could not bar its admissibility provided its relevance and genuineness were proved. The matter is required to be remitted back to the first authority - appeal allowed by way of remand. - D. B. Central/Excise Appeal No. 38 / 2009 - - - Dated:- 13-10-2017 - K. S. Jhaveri And Dinesh Chandra Somani, JJ. For the Appellant : Mr. Naresh Gupta For the Respondent : Mr. Kanishk Gupta ORDER 1. By way of this appeal, the appellant has assailed the judgment and order of the Tribunal whereby the Tribunal has disposed of the appeal. 2. This court while admitting the matter framed the following substantial questions of law:- i) Whether on the facts and in totality of the circumstances of the case and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnoring the mandate enshrined in section 80 of the Act of 1994? vi) Whether on the facts and in totality of the circumstances of the case, the Income Tax Authorities having scrutinized and accepted the total income/gross receipts of the assessee firm, it was just and proper for the CESTAT to have taken a different view with out assigning any reason. vii) Whether on the facts and in totality of the circumstances of the case and in law, the CESTAT was right in sustaining the additions in gross receipts made by AO merely on inferences, implications, analogy, consequently the levy and recovery of the service tax thereon is permissible in law. 3. Mr. Naresh Gupta has raised contention that in view of the decision of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Rajasthan Ors. (Civil Writ Petition No. 910/1988) decided on 24th September, 1992 wherein it has been held as under:- 13. The next question is that as to what is the effect of such illegal search and seizure? 14. Mr. Garg, learned Counsel for the petitioner submitted that once it is held that the search is illegal then those seized material cannot be used for assessing the tax liability of the petitioner. 15. We are afraid this contention of the petitioner cannot be sustained. It is true that the search and seizure both were illegal but still if it is found that the assessee has evaded the sales tax then the same can be used by the authorities for assessing his tax liability. 16. Mr. Mehta, learned Counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner then too the same can be used for assessing the tax liability of the assessee after due notice to him. Thus, in our opinion, there is no prohibition for the taxing authorities to use these account-books and registers seized from the premises of the incumbent for assessing the tax liability of the petitioner after due notice to the, assessee to account for the evasion on the basis of these account-books and other incriminating documents. Thus, this contention of Mr. Garg is overruled. 3.2. He has relied upon the decision of the Supreme Court in case of R.M. Malkani vs. State of Maharashtra reported in (1973) 1 SCC 47 wherein it has been held as under:- 24. It was said by counsel for the appellant that the tape recorded conve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Birla and Ors. MANU/SC/0322/1970 : [1971]2SCR118 dealt with the admissibility in evidence of two files containing numerous documents produced on behalf of the election petitioner. Those files contained correspondence relating to the election of respondent No. 1. The correspondence was between respondent No. 1 the elected candidate and various other persons. The witness who produced the file said that respondent No. 1 handed over the file to him for safe custody. The candidate had apprehended raid at his residence in connection with the evasion of taxes or duties. The version of the witness as to how he came to know about the file was not believed by this Court. This Court said that a document which was procured by improper or even by illega ..... X X X X Extracts X X X X X X X X Extracts X X X X
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