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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.
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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.
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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.
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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.
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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
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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.)
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