Bombay High Court High Court

The Commissioner Of Income Tax … vs Shri.Omprakash K.Jain Surat And … on 12 January, 2009

Bombay High Court
The Commissioner Of Income Tax … vs Shri.Omprakash K.Jain Surat And … on 12 January, 2009
Bench: F.I. Rebello, R.S. Mohite
                                                :1:


                IN     THE    HIGH            COURT           OF     JUDICATURE             AT    BOMBAY
                      ORDINARY               ORIGINAL              CIVIL                     JURISDICTION

                        INCOME             TAX            APPEAL          NO.1242             OF         2008
                                                       WITH
                     INCOME TAX APPEAL                       NO.1250 OF 2008




                                                                                            
                     INCOME      TAX                  APPEAL       (L)NO.3494                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3495                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3496                   OF       2008




                                                                   
                     INCOME      TAX                  APPEAL       (L)NO.3497                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3498                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3499                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3500                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3502                   OF       2008




                                                                  
                     INCOME      TAX                  APPEAL       (L)NO.3503                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3504                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3506                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3507                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3508                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3514                   OF       2008




                                                      
                     INCOME      TAX                  APPEAL       (L)NO.3515                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3516                   OF       2008
                     INCOME    igTAX                  APPEAL       (L)NO.3517                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3518                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3519                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3520                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3521                   OF       2008
                             
                     INCOME      TAX                  APPEAL       (L)NO.3522                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3523                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3531                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3532                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3544                   OF       2008
      

                     INCOME      TAX                  APPEAL       (L)NO.3546                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3547                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3548                   OF       2008
   



                     INCOME      TAX                  APPEAL       (L)NO.3549                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3550                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3552                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3553                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3554                   OF       2008





                     INCOME      TAX                  APPEAL       (L)NO.3555                   OF       2008
                     INCOME      TAX                  APPEAL       (L)NO.3556                   OF       2008

    The           Commissioner             of             Income          Tax              Central         -II,
    Mumbai.                                                                     ....Appellant.
                                 Vs.





    Shri.Omprakash K.Jain Surat and ors.   ....Respondents.

    Mr.Y.P.Patki with Mr.B.M.Chatterji and P.S.Sahadevan for
    the Appellant.

    Mr.S.N. Inamdar with A.K. Jasani, S.S.Shetty,
    Mr.P.C.Tripathi for the Respondents.




                                                                   ::: Downloaded on - 09/06/2013 14:13:36 :::
                                                                    :2:



                                            CORAM : F.I. REBELLO & R.S. MOHITE, JJ.

DATE : 12th January, 2009.

PC :

1. All these appeals are being disposed off by this

common order.

2. Income Tax Appeal (L) Nos .3494 of 2008 to 3500 of

2008 are in respect of one Sanjay S.Jain. In respect of

this assessee, the Tribunal was pleased to reverse the

judgment of CIT (A). The A.O. and CIT (A) had rejected

the contention of the assessee that the statements

recorded

could not
were

be
under

accepted.

                                                                          duress

                                                                                       The
                                                                                            or       coercion

                                                                                                    Tribunal
                                                                                                                           and

                                                                                                                                  considering
                                                                                                                                               as                 such,

                                                                                                                                                                    the
                                           
    facts           and                circumstances                     was                of             the                  view               that             the

    addition               was                   made          only           based           on      the            admission                      of              the

    assessee                    at          the          time            of            search            which              had              been             retracted
      


    and             that              the         A.O.              as          well        as       CIT(A)             had                  ignored                the
   



    contention             of           the             assessee               that           the          addition                made                  by         the

    Assessing               Officer                    was               incorrect.                        It               then                   went              to

    observe                that                   the               assessee             did                   actually                      furnish                 all





    particulars                 which                  had               not          examined           by          the                A.O.                       The

    Tribunal                          further                observed                  that              the               documentary                        evidence

    was                 produced              by         the        assessee                before             the         A.O.                               however,





    no               attempt            was             made          to          verify            the           claim            of          the             assessee

    by        the          A.O.                    and            then           proceeded                to           observe               and          concluded

    that          the               assessee             had              established                the                statement                  given              at

    the              time                   of          survey           or           search         or          search            was                        incorrect.




                                                                                                    ::: Downloaded on - 09/06/2013 14:13:36 :::
                                                         :3:


    In        these         circumstances,                    directed               that              the             additions               made

in the case of the assessee for the assessment year

2001-02 to 2004-05 would stand deleted.

3. In so far as other appeals are concerned, the

learned Tribunal in Para-32 issued the following

directions.

(a) If the details like statement of purchase

and sales, quantitative details of turnover,

ledger account of the parties with whom business

was ig conducted on account of purchase and sales,

bank statement indicating payments for

respective purchase and sales and confirmation

of parties from whom purchases and with whom

sales were made, their sales tax returns etc.

had already been filed by the Assessee before

the A.O. then for the reasons stated in the

case of Mr. Sanjay Jain, the additions made in

the case of the assessee in all these assessment

years would stand deleted.

(b) If no such details were filed by the

Assessee before the A.O. earlier, then the

Assessee would file the same in the set aside

proceedings and the A.O. will examine the same

and decide the issue in accordance with law.

::: Downloaded on – 09/06/2013 14:13:36 :::
:4:

4. At the time of hearing of these appeals in case of

Sanjay S. Jain on behalf of the revenue, the learned

counsel submits that apart from the statement which was

retracted on 21.1.2004, there was a subsequent statement

which was made by the assessee on 25.3.2004. Therefore,

even if, by subsequent affidavit of June, 2004 the

earlier statement was retracted, the statement of

25.3.2004 could not have been ignored. It is also

pointed out that on prima facie consideration of the

documentary evidence, the tribunal could not have

accepted the evidence without examining the genuineness

of the documents
ig and the entries made therein. It is

submitted that this exercise has not been done by the

Tribunal.

. In so far as other appeals are concerned, it is

submitted that the order sending the matter back to the

A.O., has left the A.O. with no discretion but to

proceed to dispose of the matter in terms of the said

directions. Also it is submitted that no directions

could have been given to permit the assess to lead fresh

evidence without assessing making out a case.

5. On behalf of the assessee, the learned counsel

submits that when there was documentary evidence

available, it was open to the learned Tribunal to come

to the conclusion that the statement of the assessee

which was retracted were given under duress or coercion.

::: Downloaded on – 09/06/2013 14:13:36 :::
:5:

It is further submitted that in the case of Sanjay Jain,

the Tribunal proceeded on the footing that the documents

were produced and in these circumstances, deleted the

additions. No fault can be found with this approach of

the Tribunal.

. In so far as other assesses are concerned, it is

pointed out that the documentary evidence was available

before the A.O. but the A.O. and C.I.T.(A) have not

considered the same and the matter has been remanded

back for reconsideration.

6.

After hearing the learned counsel, we are of the

opinion that the order of the Tribunal cannot be

sustained. In the first instance apart from the

retracted statement of 21.1.2004, subsequent statement

made on 25.3.2004 has not been considered. Secondly,

there was documentary evidence on record. The A.O.

while considering whether the retraction was under

duress or coercion had also to consider the genuineness

of the documents which were produced as this is

documentary evidence. The test of evidentiary value of

the oral evidence and the documentary evidence has to be

borne in mind. The A.O. will have to comply with the

settled principle of law. Documentary evidence if

genuine must prevail over the oral statement. We

however, do not propose to go into these issue as they

have not been considered or answered. We propose to

::: Downloaded on – 09/06/2013 14:13:36 :::
:6:

remand the matters for fresh consideration of the A.O.

on all these aspects.

7. We may also point out that in so far as

directions given in appeals other than of Sanjay S.

Jain, the tribunal has left no discretion in the A.O.

in terms of the directions given. We are therefore, of

the opinion that such directions have to be set aside

and the matter must be left open to the A.O. in terms

of what is stated hereinabove to pass an appropriate

order.

.

In so far as the direction B in Para-32, such a

general direction could not have been given. If any

assessee has not filed the documents or seeks to produce

additional documents then it is open to the said

assessee to apply to the A.O. for permission to produce

such documents and it is for the A.O. to consider the

same according to law.

8. For the aforesaid reasons, we allow the appeals

by setting aside the order of the Tribunal and CIT(A))

and remand the matters back to the file of A.O. for

consideration of the issues stated hereinabove. Appeals

accordingly disposed off.

( R.S. MOHITE, J.) ( F.I.REBELLO, J.)

::: Downloaded on – 09/06/2013 14:13:36 :::