TMI Blog2007 (9) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... ote has clearly stated that somebody called Tyagi has a cash entry of Rs. 4,11,000/-, who was to be told to withdraw that money from PFL and the family was to get the cash – addition made on the basis of such declaration upheld – however such declaration can not be held as dying declaration - even if the statement made by the assessee cannot be regarded as ‘dying declaration’, it has to be regarded as admission within meaning of Sections 17 and 18 of the 1872 - 285 of 2007 - - - Dated:- 24-9-2007 - M. M. KUMAR and AJAY KUMAR MITTAL JJ. Pankaj Jain, for the appellant. JUDGMENT The judgment of the court was delivered by M. M. KUMAR, J. - The assessee has approached this Court by filing instant appeal under Section 260A of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was seized during search with the heading "Just in case", the undisclosed income of the assessee was assessed at Rs. 5,29,750/- (Annexure A-3). It has been claimed by the department that the aforementioned note was written by the assessee at the time when he was about to be taken to the operation theatre for a surgery on 21.10.1995. The relevant portion of the note on which reliance has been placed by the Assessing Authority reads as under:- "Just in case" "Tyagi has a cash entry of Rs. 4,11,000/- ask him to withdraw this money from PFL give you the cash". 3. Penalty proceedings under Section 158BFA(2) of the Act were also initiated. 4. The assessee then filed an appeal before the Commissioner of Income Tax (Appeals), which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first instance has given a sum of Rs. 4,11,000/- to Mr. Tyagi and the after effect of the entry given to Mr. Tyagi has since not been explained satisfactorily by the assessee, it has been considered as unexplained income in the hands of the assessee. The Tribunal, therefore, added the amount under Section 69 of the Act. The Tribunal has further held that it was not a case of double addition nor it was a case of addition in two hands. Holding that the CIT (A) committed error, the Tribunal held that the addition was deleted in the case of Pan Foods Limited because no such entry was available in their books of accounts, which could be called as fictitious entry. The assessee since has not discharged the onus to prove that he did not give a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l a lie especially harming ones' own interest unless such a statement is true. Section 17 of the 1872 Act defines admission to be a statement, oral or documentary, which suggests an inference as to any fact in issue or relevant fact which has been made by a party to proceedings or his agent and others as per details given in Sections 19, 20, 21, 22 and 23 of the 1872 Act. If an admission has been made by a party to proceedings under Section 17 and 18 of the 1872 Act, suggesting an inference that the income was unexplained then such an admission is an admissible piece of evidence. Admissions have also been regarded as substantive evidence because it sustains their veracity from the fact that maker has said something against his own interest. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o constitute 'dying declaration' is missing in the present case and, therefore, the Tribunal could not have opined that the statement was in the nature of 'dying declaration' or it was as good as 'dying declaration'. It is, however, equally true that the statement made by the assessee in the instant case has been made in contemplation of death. Once a statement is made in contemplation of death then its veracity is supported by impending fear of death because once a person is anticipating his demise then all his interest in this world comes to an end and he is supposed to make a truthful and correct statement. The contemplation of death has been regarded as equivalent to administration of oath. Therefore, even if the statement made by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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