TaxTMI 
TaxTMI 
2009 (7) TMI 651
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....in getting rid of this assessment order before the first appellate authority - the Commissioner of Income-tax (Appeals) - and so also before the Income-tax Appellate Tribunal. 2. This court, while admitting the appeal, had noticed the following questions of law for examination, as indicated in the memorandum of appeal: "(a) Whether, on the facts and circumstance of the case the Tribunal, is correct in law in holding that consent of the appellant confers jurisdiction for addition of Rs.10 lakhs? (b) Whether, on thc facts and circumstance of the case, the Tribunal is legally coned in holding that the appellant has earned income of Rs.10 lakhs instead of loss claimed, merely on the basis of admission without ax supporting evidence? (c) Without prejudice, whether, on the facts and circumstance of the case, was the Tribunal justified in law in not reducing the addition to Rs.6.24 lakhs instead of Rs.10 lakhs? (d) Whether the Tribunal is justified in law in holding that the interest under sections 234A and 2348 is leviable on the facts and circumstance of the case? (e) Whether it is justified in law in holding that interest under sections 234A and 234B is leviable for t....
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....filed an appeal before the first appellate authority contending that the Assessing Officer could not have simply proceeded on the premise that the offer made by the assessee, offering a sum of Rs.10 lakhs as additional' income ; that it had no basis that the authority should have verified as to whether the return filed and the books of account of the assessee could support a further income of Rs.10 lakhs over and above what had been disclosed earlier; that even the statement made before the banks was not a realistic one, which had been an inflated one for the purpose of raising bigger financial assistance from the banks and as the record available before the Assessing Officer did not support an addition of Rs. 10 laths income to the assessee, the Assessing officer is in error and, therefore, the order called for interference. 8. The appellate authority, however, did not think so. The appellate authority, on the other hand, found that the assessee had volunteered to offer Rs.10 lakhs as unexplained cash credit on account of various omissions and commissions made by the assessee and if the Assessing Officer had simply accepted it, there was nothing wrong in the assessment order th....
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....e filing of the appeal should be taken to be a retraction and on such premise the matter should have been remanded to the assessing authority for re-examination, as, lithe admission by the assessee is retracted, there is no material to support the assessment order. 11. It is also submitted that even the clear settled legal position is that a per son who has made an admission can retract from the admission and it can never be a binding admission and the assessing authority, which is statutorily functioning or performing, is duty bound to examine the effect and the real nature of the admission and to determine the liability only based on other sustainable material and not merely based on the admission and, therefore, the assessment order and the orders affirming the same suffer from infirmities. In support of his submission, learned counsel for the appellant has placed strong reliance on the following decisions: (i) Pullangode Rubber Produce Co. Ltd. v. State of Kerala [1973] 91 ITR 18 (SC): (ii) Bhandari Metals and Alloys P. Ltd. v. State of Karnataka [2004] 136 STC 292 (Karn): (iii) Honorary Secretary, Kaniyara Seva Saniaj v. State of Mysore [1969] 23 STC 155 (Mysore); ....
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....r attention to the submissions made at the Bar, perused the record and have also examined the impact of the authorities relied upon by the learned counsel for the appellant in the circumstance of this case. 16. While it is no doubt true that an admission which is otherwise not an admission of the very nature by itself can constitute an admission of the liability, has to be probed further, an admission of the nature that the assessee voluntarily offered, i.e., Rs.10 lakhs by way of income to avoid any further scrutiny by the Assessing Officer can be acted upon at its face value without further probe. The entire exercise by the Assessing Officer is to determine the income of the assessee, whereupon tax liability gets automatically fixed in terms of the rates as provided for by the Finance Act. If the Assessing Officer is pre-empted from performing this exercise of determination of the actual income of the assessee, there is nothing else for the Assessing Officer to further probe into the matter as to whether the income so declared is correct or not and if the assessee himself is volunteering to offer the amount as his income, there is nothing further that is required to be done by....
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....oard, as the case may be, by making an application under section 119 of the Act. It is also submitted at the Bar that the penalty levied under section 271(1)(c) of the Act has been deleted by the Appellate Tribunal at the instance of the assessee and though the learned counsel for the appellant is not sure as to whether the Revenue had further appealed against this order of the Tribunal. However, this may not deter us from disposing of this appeal, as it is open to the assessee to point out such circumstance if such a stage is reached before the appropriate forum. But for this observation, this appeal is dismissed. ORDER ON "BEING SPOKEN TO" 21. This matter is listed today for orders on "being spoken to" on our direction, as we felt that the matter requires further hearing of the learned counsel for the appellant and the Revenue. 22. We have heard Sri Seshachala for the Revenue and pass the following order: This appeal was heard and order was passed on July 8, 2009. How ever, before signing the order/judgment, we noticed that the questions raised in the memorandum of appeal and for examination of which, the appeal had been admitted, had not been answered vis-a-vis each ....