TaxTMI 
TaxTMI 
2016 (7) TMI 1212
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....e assessee in the statement recorded. The utilization of these income has also been furnished by the assessee. However, after two months, the assessee has retracted from the statement giving the reasoning that the same was obtained under threat. The AO has rejected the retracted statement of the assessee with a reasoning that the same has been furnished after two months and the statement was recorded in the presence of assessee's Advocate and also the fact that the detailed breakup submitted by the assessee with respect to earning of income cannot be put into the mouth of the assessee and thereby additions were made. 2.1 The matter was carried before the CIT (A), which had deleted the additions and the Tribunal has confirmed the order passed by the CIT (A) which has given rise to this appeal. 3. While admitting these appeals, following question of law has arisen for consideration of this Court: "Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by the CIT (A) deleting the additions made by the Assessing Officer pursuant to the statement under Section 131 of the assessee which was subsequently retracted after three months?" 4.....
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....sclosed income to tax in a sustainable manner leave alone levy of penalty or launching of prosecution. Further, such actions show the Department as a whole and officers concerned in poor light. 2. I am further directed to invite your attention to the Instructions / Guidelines issued by CBDT from time to time, as referred above, through which the Board has emphasized upon the need to focus on gathering evidences during Search / Survey and to strictly avoid obtaining admission of undisclosed income under coercion/undue influence. 3. In view of the above, while reiterating the aforesaid guidelines of the Board, I am directed to convey that any instance of undue influence/coercion in the recording of the statement during Search/Survey/Other proceeding under the I.T. Act, 1961 and/or recording a disclosure of undisclosed income under undue pressure/coercion shall be viewed by the Board adversely. 4. These guidelines may be brought to the notice of all concerned in your Region for strict compliance. 5. I have been further directed to request you to closely observe/oversee the actions of the officers functioning under you in this regard. 6. This issues with approval of the ....
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....ity did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that crossexamination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their exfactory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to crossexamine those dealers and what extraction the appellant wanted from them. 7. As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of crossexamination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price fo....
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.... is on the Revenue to prove that the assessee has earned the income. It gets shifted on the assessee once the assessee claims the exemption of income. We therefore do not find any illegality or infirmity in the order of the CIT (A) in deleting the additions made by A.O. We therefore confirm the orders of the CIT (A) for AYs. 1991-92, 1992-93, 1993-94 and 1996-97." 8. The decision in case of Andaman Timber Industries (supra) is relevant for this purpose and the Apex Court has considered the issue of not allowing the assessee to crossexamine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity. 9. This Court had also an occasions to deal with the similar issue in case of Chandrakumar Jethmal Kochar (supra), where this Hon'ble Court after considering various pronouncements has held as under: "3. Learned advocate for the appellant has submitted that the Tribunal has committed an error in allowing the appeal. He further submitted that the Tribunal has not given any cogent reasons in its order. "4. As against this, Mr. Soparkar, learned Senior counsel ....
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....s of statement recorded under Section 132 (4). None of the authorities have considered this explanation and the CIT(A) as well as Tribunal both have proceeded on the footing that the Assessing Officer has considered the explanation. So far as the addition on account of gold ornament to the tune of Rs. 1 lac is concerned, the assessee has given the explanation that was reproduced by the Assessing Officer in his assessment order which says that during the course of search and seizure proceeding, statement of assessee's wife, Smt. Kailashben Chokshi was recorded and according to which she had received about 25 tolas of gold each from her parents and from her parents in law side at the time of her marriage in the year 1960. She had given 15 tolas of gold ornaments to her daughter Ritaben at the time of her marriage in the month of March, 1988. If the total jewellery found during the course of search is taken into consideration, in light of the instructions issued by the Board, any middle class Indian family may be having jewellery and gold ornaments to that extent. Hence, no addition can be made on that count. Even if the board Circular may not have retrospective operation....
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.... assessee continued upto 6 am. next day. This is contained from pages 13 to 26 of the paper book and contains 35 questions and answers. Till question No.21 of the second statement there is no allegation of any benamidari. From question No.22 the statement starts talking about proprietorship of different concerns in the name of his various employees. Even in answer to question No.22 he could not give the names of the proprietors of Kamal Traders, Naman Traders, Sampat Traders, Adarsh textiles. In the last sentence of the said answer he stated as translated in English besides above there are no other firms in the name of our employees. In answer to question No.23 he accepted that Sugam Textiles was being run by his employees as his benami. In answer to question No.24 he accepted that all the concerns mentioned in question No.22 are his benami concerns. In answer to question No.26 he accepted that certain bank accounts were his benami bank accounts. In answer to question No.27 he further agreed that all the deposits made in the name of his employees are his deposits. In answer to question No.33 he disclosed an income of Rs. 15 lakhs. He could not give any further details on that date.....