TaxTMI 
TaxTMI 
2011 (7) TMI 245
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.... coconut seedling. The Department conducted search in the assessee's premises on 10-5-1993 and 11-5-1993, where cash of Rs. 60,000 and gold jewellery of 1,746 grams taken on pledge in pawn broking business were seized. Apart from that, Kisan Vikas Patra for Rs. 45,000, Fixed Deposits of Rs. 1,30,252, pro-notes for Rs. 1,22,000 and finance deposits of Rs. 5,000 were also found and seized. Two statements were recorded from the assessee on 10-5-1993 and 11-5-1993. On the first of the statements made, the assessee admitted that apart from earning income from pawn broking business for the past 10 years, the assessee was in the business of purchasing and selling coconuts for the past 25 years. The assessee admitted that he was not maintaining proper books of account except some jottings in a small note book. The assessee further admitted that he had taken loan from outsiders to the tune of Rs. 2,75,000. He also showed the details of loan taken from the family to the tune of Rs. 4,75,000. The assessee offered a sum of Rs. 3,00,000 as unaccounted income on the first day of search. As regards the jewellery found, it was stated that he had made advances to the tune of Rs. 4,55,900 on the....
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....tisfactory explanation. However, since the assessments were completed at their respective hands, the question of again adding it in the hands of the assessee did not arise. On the alternative plea taken that the said amount offered by the assessee would relate to the pawn broking business, the Commissioner of Income-tax (Appeals) pointed out from the details of list of jewellery and the amount of loan advanced on the pledge of such jewellery, that the transactions related to various years starting from 1988-89 to 1992-93. Thus the Commissioner of Income-tax (Appeals) agreed with the assessee's case that the confession made on 11-5-1993 offering a sum of Rs. 4 lakhs was not supported by any material; that the assessee was justified in withdrawing the said offer. Aggrieved by the same, the revenue went on appeal before the Income-tax Appellate Tribunal. 6. The Tribunal, in a very cryptic order, allowed the appeal filed by the revenue, taking the view that the statements were made by the assessee freely and voluntarily and there was no compulsion, nor was a complaint by the assessee alleging coercion from the Department. In the circumstances, when the assessee was not maintaining....
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.... be binding on the assessee. The retraction came long after the date of statement given by the assessee and only in the course of the assessment proceedings, the assessee chose to contend otherwise. In the circumstances, no credence could be given to the explanation given by the assessee. 9. Heard the learned counsel appearing for the assessee and the learned standing counsel appearing for the revenue. 10. It is seen from the Circular dated 10-3-2003, which has been extracted in the decision in S. Kahder Khan Son's case (supra) that the Board emphasized the need to have a focus on the collection of evidence, search and seizure and survey operations, which leads to an information as regards the undisclosed income. The Board viewed that confessions recorded during the course of search and seizure and survey operations did not serve any useful purpose. The Board also insisted that while recording statements during search and seizure and survey operations, no attempt should be made to obtain confession statement as to the undisclosed income. It was also stated that any action on the contrary, shall be viewed seriously and the said circular has to be applied to all pending assessm....
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....ce by itself." 12. In the decision P.R. Metrani's case (supra), dealing with the scope of section 132(4A), the Supreme Court considered the conclusive character of the statement made in a search operation. The Apex Court held that section 132 is a complete code by itself. Under section 132(4), in the case of search, the authorised officer can examine any person who is found to be in possession or control of any books of account, documents, money, jewellery or other valuable article and any statement made by such person during the examination may thereafter be used in evidence in any proceedings. Sub-section (4A) enables an Assessing Officer to raise a rebuttable presumption that such books of account, money, jewellery, etc., belonged to such person that the contents of books of account and the documents are true and the signature found therein are in the handwriting of the particular person. The Supreme Court held that the presumption is rebuttable and is available only in regard to the proceedings for search and seizure and for the purpose of sections 132(5) and 132B. However, the presumption under sub-section (4A) to section 132 of the Income-tax Act would not be available f....