TMI Blog2024 (2) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... has been drawn to the consent form which the appellant/assessee was called upon to execute. Inter alia, the consent form required the appellant /assessee to furnish the account number(s), master particulars, name(s) of account holders, name(s) of the beneficial owner(s)/settlor(s)/beneficiaries, and if the account was held through an entity, whether he had the necessary legal authority to grant access qua the subject account. Given that the appellant/assessee has denied the ownership of the subject account and the respondent/revenue has not been able to place before the court reliable material which would have us believe that the appellant s/assessee s stand was not correct, we are of the view that the question of law framed in the matter would have to be answered in favour of the appellant/assessee and against the respondent/revenue. The absence of incriminating material has persuaded us to take this view. As indicated hereinabove, no incriminating material, even according to the respondent/revenue, was found during the search. The material on which the respondent/revenue relied on was not of a quality that would persuade us to hold that the stand taken by the appellant/a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 023, when the central issue raised in the appeal was captured. It was brought to the fore that during search, no incriminating material was found qua the appellant/assessee. 5.1 It is in this context that reliance was sought to be placed on the judgment rendered by the coordinate bench in CIT v. Kabul Chawla, (2015) 61 taxmann.com 412 (Delhi)) and the judgment rendered by the Supreme Court in PCIT v. Abhishar Buildwell P. Ltd., (2023) 149 taxmann.com 399 (SC). 6. Given the position taken on behalf of the appellant/assessee, which was that no incriminating material was found during the search, we had requested Mr Kunal Sharma, learned senior standing counsel, who appears on behalf of the respondent/revenue, to return with instructions concerning this issue i.e., whether or not any incriminating material was found vis- -vis the appellant/assessee during the search carried out on 14.11.2011. 7. Thereafter, a substantive hearing in the matter took place on 18.08.2023. Mr Sharma, on that date, had indicated to the court that he had received instructions to the effect that incriminating material was, indeed, found during the search carried out on 14.11.2011, resulting in the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 399 (SC). 5. Mr Kunal Sharma, learned senior standing counsel, who appears on behalf of the respondent/revenue, says that he will return with instructions, specifically with regard to the aspect as to whether or not incriminating material was found qua the appellant/assessee, during the search carried out on 14.11.2011. 6. At the request of Mr Sharma, list the matter on 01.06.2023. 4. As would be evident, the matter was, thereafter, posted for hearing on 01.06.2023. On that date, the matter could not be taken up as court proceedings had gone beyond 5:30 P.M. Thereafter, the matter was taken up for hearing on 18.08.2023 when Mr Kunal Sharma, learned senior standing counsel, who appears on behalf of the respondent/revenue, returned with instructions to the effect that incriminating material was found during a search carried out on 14.11.2011, which resulted in the impugned addition. 4.1 This position was refuted by Mr Rohit Jain, who appears on behalf of the appellant/assessee. Accordingly, the following directions were issued on 18.08.2023: 3. Mr Sharma will file an affidavit of the concerned Assessing Officer (AO) with regard to the instructions received. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicate that Mr Jain has placed before us a copy of the intimation, dated 22.09.2023, sent to the AO, requesting him to supply, to the appellant s/assessee s counsel, the affidavit, in terms of the order dated 18.08.2023. Furthermore, emails dated 18.11.2023, and 04.10.2023, were sent to Mr Sharma, requesting him to furnish a copy of the affidavit. 10.1 Despite the reminders served on the concerned officer and Mr Sharma, the affidavit has not been filed. As a result, we are left with only two choices. 10.2 First, to proceed without the affidavit and draw our inferences based on the record made available by the appellant/assessee. 10.3 Second, to give one more opportunity to the concerned officer to file an affidavit in terms of the court s order dated 18.08.2023. 11. For the moment, we are adopting a conservative approach, which is to give one last opportunity to the concerned officer to file an affidavit, as directed by the court via order dated 18.08.2023. 12. While filing the affidavit, the concerned officer will bear in mind the statutory record which has been made available in the matter, in particular, the parts to which our attention has been drawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the material based on which the impugned addition was made is captured in paragraph 7.1 of the order dated 23.11.2023. 14. As regards the stand of the respondent/revenue, that the appellant/assessee had refused to sign the consent form, Mr Jain submits that the consent form was framed in such a manner that if the appellant/assessee were to sign the form, he would end up incriminating himself even when position taken by him was that he did not maintain a bank account with the Geneva branch of HSBC Bank. 14.1 In support of this plea, our attention has been drawn to the consent form which the appellant/assessee was called upon to execute. Inter alia, the consent form required the appellant /assessee to furnish the account number(s), master particulars, name(s) of account holders, name(s) of the beneficial owner(s)/settlor(s)/beneficiaries, and if the account was held through an entity, whether he had the necessary legal authority to grant access qua the subject account. 15. Given that the appellant/assessee has denied the ownership of the subject account and the respondent/revenue has not been able to place before the court reliable material which would have us believe tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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