TMI Blog1995 (12) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... ported by proper inventories and no difference was established in those inventories ? 4. Whether, on the facts and in the circumstances of the case, the Tribunal is justified in its conclusion that the statement obtained from the managing partner, Shri Raman, at the time of the search was not under coercion but was voluntary ? 5. Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was correct in law and facts in finding that in the absence of statements or affidavits obtained from the two witnesses to the search 'the assessee has totally failed to prove that the statement was obtained by intimidation and coercion', when these persons were witnesses of the Department and not of the assessee and whether the above finding is sustainable when no reference was made to the enquiry conducted by the Inspecting Assistant Commissioner of Income-tax, on the complaint made by the assessee ? " The assessee is a registered-firm dealing in textiles at Cannanore. For the assessment year 1980-81, the assessee returned an income of Rs. 3,99,830. On July 25, 1981, there was a search in the premises of the assessee by the officers of the Income-tax Department. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the search was conducted out of any malice on the part of the officers of the Department. On the other hand, it was found that the search was resorted to only because of the failure of the assessee to produce the opening stock inventory. Shri Raman and a writer of the firm were examined in this connection on July 16, 1981, about nine days before the search. The search was conducted only when it was found that there was no chance of getting the opening stock inventory. There is nothing in the evidence to show that the Income-tax Officer intimidated Shri Raman into giving a statement in the course of the search. The Tribunal found that it is a case in which the assessee did not discharge the burden of proving coercion and intimidation. The statement made by Shri Raman, the managing partner of the firm, at 11 p.m. on July 25, 1981, is to the following effect : " He was not keeping day-to-day inventories and due to this, stock entered in the accounts are much less than the actual stock. The value of the difference in the stock will come to Rs. 3 lakhs and that he is willing to have this amount being brought to tax one-half during the assessment year 1980-81 and the other half duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion made by Sri Raman was not voluntary. Learned counsel for the Revenue has contended that the finding of the Tribunal that the statement was not obtained by coercion or threat is a finding of fact and as such that finding cannot be interfered with. Valid reasons were given for not including the investment made in the cinema theatre. This reason was given not because of the statement obtained by intimidation or coercion. The statement is actually one of settlement and does not come within the purview of section 132(4) of the Income-tax Act. Section 132 of the Income-tax Act deals with search and seizure of any books of account or other documents and to make a note or any inventory of any money, bullion, jewellery or other valuable article or thing in the course of search of any premises. Sub-section (4) and the Explanation thereunder read as follows : " (4) The authorised officer may, during the course of the search or seizure, examine on oath any person who is found to be in possession or control of any books of account, documents, money, bullion, jewellery or other valuable article or thing and any statement made by such person during such examination may thereafter be us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no actual verification of the stock. The Tribunal has clearly found that the statement was made voluntarily. It observed that the best and independent evidence in the matter would have been that of the two witnesses to the search, who are traders in the same locality. The assessee had not obtained any statement or affidavit from them in support of the plea that the statement was obtained by coercion or intimidation. So, the assessee has totally failed to discharge the burden of proving that fact. Similar observation was made by the Commissioner of Income-tax (Appeals). These are concurrent findings of fact. We are, therefore, not inclined to interfere with the said finding of facts. The decision relied upon by the assessee in R. R. Gavit v. Smt. Sherbanoo Hasan Daya [1986] 161 ITR 793 (Bom) has no application to the facts of this case. In that case, the authorised officer recorded the statement on oath before conducting the actual search. In that context, it was held that the officer was empowered to examine the accused on oath during the course of search only in the event, the accused was found in possession or control of the things mentioned in section 132(4) of the Act. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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