TMI Blog2016 (7) TMI 1585X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal upon the statement made under Section 132(4) of the Act after considering the retracted statement, could not be faulted with. The view taken by the impugned order of the Tribunal is a possible view in the facts and circumstance of the present case. Thus, substantial question (b) as framed is answered in the affirmative i.e. in favour of the revenue and against the appellant-assessee. Addition on account of wrong billing - HELD THAT:- Impugned order does record that the Assessing Officer had rendered a finding that the appellant has not entered bills for hiring charges in its books of account in daytoday running of the business. Thus, the contention of the appellant is not sustainable. Reliance is placed upon the decision of Gujarat High Court in N. K. Paper Board [ 1998 (3) TMI 102 - GUJARAT HIGH COURT] to hold against the appellant. We find that the citation is incorrect and does not assist the revenue. However, the impugned order of the Tribunal even in the absence of the above decision cannot be held to be bad in law. In the above circumstance, the view of the Tribunal in upholding the order of the Assessing Officer to add an amount to the appellant's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Re: Questions (b) (c): 6 The relevant facts giving rise to the substantial questions of law listed at Serial Nos.(b) and (c) above, are as under:- (a) The appellant is a partnership firm, engaged in the business of trading in tarpaulins, including renting the tarpaulins for hire and erection of Monsoon Sheds as required by its Customers. (b) On 15th September, 1989, there was a search action carried out on the appellantfirm. At that time, a statement of its senior partner Mr. T. V. Goshar was recorded on oath by the Officers of the revenue under Section 132(4) of the Act. (c) The relevant extract of the statement made on 15th September, 1989 by Mr. T. V. Goshar and endorsed by one of his partners and sonMr. C.T. Goshar, reads as under: Q. Do you want to say anything of your own before your statement in concluded for the day? Ans. In order to cooperate with the dependent and to disclose my real income to this department. I offer following amounts as additional income of the firm M/s. T. Lakshamshi Ladha Co., for the current year that is Asst.Year 1990-91. (1) ₹ 63,000.00 An unaccounted rent received for letting out the godown in J. B. Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... short, our offer of income of ₹ 12,40,000/is reduced to ₹ 2,40,000/u/ s. 132(4) for A. Y. 1990-91. This amount of ₹ 2,40,000/represent cash seized and out of ₹ 2,40,000/, ₹ 63,000/represents the receipt of rent not accounted and the balance amount of ₹ 1,77,000/is also unaccounted and is earned by speculation and other sources. Our offer of income u/s. 132(4) is ₹ 2,40,000/for A. Y. 1990-91. Kindly treat this letter as amendment to the statement taken u/s.132(4) and as part and parcel of statement taken u/s. 132(4) Shri Talakshibhai Goshar on 15th September, 1989 at office. I confirm. sd/ Talakshi Vasanji Goshar For T. Lakshamshi Ladha Co., sd/ Partner. It would, therefore, be noticed that the above communication is not signed by T. V. Goshar but by another partner. Mr. T. V. Goshar merely confirms the view of the partner who authors the letter dated 19th October, 1989. (e) Thereafter, on 30th November, 1990, the appellantfirm filed its return of income for the Assessment Year 1990-91, declaring loss of ₹ 53,000/. However, the Assessing Officer while passing an Assessment Orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n dated 19th October, 1988; (b) The statement of Mr. T. V. Goshar made on 15th September, 1988 is not supported by any corroborative evidence. Thus, the addition made on account of labour charges and wrong billing is not sustainable; (c) The accounts were verified and no defect was found in respect thereof with regard to purchase, sales etc., Thus, no basis to make addition of income merely on the basis of the statement made by Mr. T. V. Goshar on 19th September,1998; and (d) The statement of Mr. T. V. Goshar on 15th September, 1988 itself indicates that the labour charges are inflated to the extent of 5% to 10% only. Therefore, only the amount of ₹ 1.09 lakhs being 10% of ₹ 10.97 lakhs could alone be sustained out of ₹ 4 lakhs. So far as wrong billing is concerned, no evidence even partially supporting the case of the Revenue. 9 Mr. Suresh Kumar, learned Counsel appearing for the revenue places reliance upon the impugned order of the Tribunal. It is further submitted that both issues arise out of a factual determination. Therefore, no interference is called for, by this Court. 10 We have considered the rival submissions. We shall first deal with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. It is a possible view on the facts. (iii) It was next submitted by the appellant that in the absence of any corroborative evidence found during the course of search or otherwise to support the statement made on 15th September, 1988, it cannot be relied upon. In support, reliance was placed upon the decision of variousCourts and we deal with each of them as under:S. (a) The decision of the Chhatisgarh High Court in ITO v/s. Vijay Kumar Kesar 327 ITR 497to submit that the confession made by the assessee during the survey proceedings is not conclusive. However, in the aforesaid case, the statement made during the survey proceedings were retracted by a subsequent communication along with documentary evidence i.e. entries in books of accounts, vouchers etc., to establish that the statement made earlier were not true and correct. In the present facts, no documentary evidence has been filed to establish that the statement made by Mr. T. V. Goshar on 15th September,1 988 was not correct. Moreover, the onus is on the deponent of the statement on oath who seeks to retract, to establish that the earlier statement was not correct. (b) The decision of the Gujarat High Court in Kai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the alleged retraction does not make the statement made on oath unbelievable. In this view, the above decision will not apply as it itself observes that the acceptance/ withdrawal of the statement made under Section 132(4) of the Act depends upon the facts and circumstance of the each case. Thus, the decision rendered in that case would have no universal application. In the present facts, we are of the view that the above decision would have no application; and (e) The decision of the Delhi Court in CIT v/s. Sunil Aggarwal 379 ITR 367 wherein the assessee was assessed to tax on the basis of the statement made by him during the course of search under Section 132(4) of the Act. This without having considered the subsequent retraction with an explanation for retraction. This particularly when the explanation offered in the retraction was supported by evidence in the form of books of account maintained by the assessee. Further, reliance was placed upon the statement by a third party without having given an opportunity of cross examination to the assessee therein. It was in the aforesaid context that the Court held that the additions made in the hands of the assessee could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l submissions in respect of question (c) viz: wrong billing is concerned, Mr. Joshi submitted that in the absence of any error/ discrepancy being noted in the accounts, no amount could be added on account of nonbilling. It is pertinent to note that the impugned order does record that the Assessing Officer had rendered a finding that the appellant has not entered bills for hiring charges in its books of account in daytoday running of the business. Thus, the contention of the appellant is not sustainable. Further, our attention is drawn to para 20 of the impugned order where reliance is placed upon the decision of Gujarat High Court in N. K. Paper Board v/s. DCIT 234 ITR 733 to hold against the appellant. We find that the citation is incorrect and does not assist the revenue. However, the impugned order of the Tribunal even in the absence of the above decision cannot be held to be bad in law. In the above circumstance, the view of the Tribunal in upholding the order of the Assessing Officer to add an amount of ₹ 6 lakhs to the appellant's income cannot be faulted. This is a possible view on facts found. Thus, the substantial question (c) as framed is also answered in the af ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
