High Court Of Bombay
CIT vs. Omprakash K. Jain & Ors.
Section 69, 132(4), 254(1)
F.I. Rebello & R.S. Mohite, JJ.
IT Appeal Nos. 1242, 1250, 3494 to 3500, 3502 to 3504, 3506 to 3508,
3514 to 3523, 3531, 3532, 3544, 3546 to 3550 & 3552 to 3556 of 2008
12th January, 2009
Counsel Appeared :
Y.P.Patki with B.M. Chatterji & P.S. Sahadevan, for the Appellant : S.N. Inamdar with A.K. Jasani, S.S.Shetty & P.C. Tripathi, for the Respondents
JUDGMENT
By the court :
All these appeals are being disposed of by this common order. IT Appeal (L) Nos. 3494 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 AO and CIT(A) had rejected the contention of the assessee that the statements recorded were under duress or coercion and as such, could not be accepted. The Tribunal considering 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was of the view that the addition was made only based on the admission of the assessee at the time of search which had been retracted and that the AO as well as CIT(A) had ignored the contention of the assessee that the addition made by the AO was incorrect. It then went to observe that the assessee did actually furnish all particulars which had not been examined by the AO. The Tribunal further observed that the documentary evidence was produced by the assessee before the AO, however, no attempt was made to verify the claim of the assessee by the AO and then proceeded to observe and concluded that the assessee had established the statement given at the time of survey or search was incorrect. In these circumstances, directed that the additions made in the case of the assessee for the asst. yrs. 2001-02 to 2004-05 would stand deleted.
Insofar 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 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 AO 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 AO earlier, then the assessee would file the same in the set aside proceedings and the AO will examine the same and decide the issue in accordance with law.
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 21st Jan., 2004, there was a subsequent statement which was made by the assessee on 25th March, 2004. Therefore, even if, by subsequent affidavit of June, 2004 the earlier statement was retracted, the statement of 25th March, 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 and the entries made therein. It is submitted that this exercise has not been done by the Tribunal. Insofar as other appeals are concerned, it is submitted that the order sending the matter back to the AO, has left the AO 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 assessee to lead fresh evidence without assessee 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 was given under duress or coercion. 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. Insofar as other assessees are concerned, it is pointed out that the documentary evidence was available before the AO but the AO and CIT(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 21st Jan., 2004, subsequent statement made on 25th March, 2004 has not been considered. Secondly, there was documentary evidence on record. The AO 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 AO 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 issues as they have not been considered or answered. We propose to remand the matters for fresh consideration of the AO on all these aspects.
7. We may also point out that insofar as directions given in appeals other than of Sanjay S. Jain, the Tribunal has left no discretion in the AO 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 AO in terms of what is stated hereinabove to pass an appropriate order.
Insofar 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 AO for permission to produce such documents and it is for the AO 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 AO for consideration of the issues stated hereinabove. Appeals accordingly disposed of.
[Citation : 322 ITR 362]
