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TMI Blog1976 (2) TMI 45X X X X Extracts X X X X X X X X Extracts X X X X ..... d into English through the Income-tax Inspector. The ITO them asked the appellant to sign the said statement. But for one reason or the other the appellant declined to do so. As a result, the ITO levied the impugned fine of Rs. 400 by exercising his powers under s. 180 of the IPC r/w s. 131 of the IT Act, 1961. 3. On appeal before the AAC it was urged that the ITO had no power to exercise jurisdiction under s. 180 of the IPC. This position seems to have been accepted by the AAC. The AAC however, held that a reference to s. 180 of the IPC did not mean that the order was invalid on that account alone if it is otherwise valid. He held that under s. 131(1) of the IT Act 1961, the ITO exercised powers as are vested in a Court under the CPC, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns that what he recorded was not what the witness stated. In an open Court, there is not much chance for such complaint. But on account of the dual role the ITO has to play the chances for such attack are very much inherent in income-tax proceedings and so it is always necessary that the ITO should insist on the witness signing the statement. In fact, the definition of evidence as 'all statements which the Court permits or requires to be made before it by witnesses also shows that it should be the statement of the witness. When the Courts record a statement which the witness gives in another language, what the Court record ceases to be the statement of the witnesses. By refusing to sign the statement, the witness is disowning the statement. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume: that the document is genuine, that any statements as to the circumstances under which it was taken, purporting to be made by the person signing it, are true, and that such evidence, statement or confession was duly taken." This section, however, does not a rise presumption as to the identity of the person making that statement which indeed has to be proved by the party relying on that earlier statement. However, even here to prove identity it is not laid down that the person whose earlier statement is being proved should have signed the statement before it can be treated as his evidence. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsence of the assessee and at his back, he would be contravening the basic principles of natural justice. Therefore, on the mere ground that there are no two parties before the ITO, as the AAC assumes, which assumption is not correct, we cannot say that the statement recorded by the ITO of the witness does not become evidence till he signed it. In any event s. 131(2) being a penal provision, the fine can be imposed only if the appellant had directly contravened that provision. That is, however, not the case here. We, therefore, find ourselves totally unable to sustain the fine imposed. 6. We allow the appeal and cancel the ITO's orders. PER. G.R. HEGLE, A. M.: I entirely agree, but, only would like to add that in certain circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X
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