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TMI Blog2010 (9) TMI 847X X X X Extracts X X X X X X X X Extracts X X X X ..... e statement which was made by the assessee at the time of search and seizure was under pressure or due to coercion, the assessee could have retracted from the same at the earliest. No plausible explanation has been furnished as to why the said statement could not be withdrawn earlier. In such a situation, the authenticity of the statement by virtue of which surrender had been made at the time of search cannot be held to be bad. The Tribunal, thus, erred in concluding otherwise. The Tribunal, therefore, was not justified in reversing the order of the AO which was affirmed by the CIT(A) also. In favour of revenue. - IT Appeal Nos. 126 and 127 of 2003 - - - Dated:- 29-9-2010 - Adarsh Kumar Goel, Ajay Kumar Mittal, JJ. Vivek Sethi for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clude that the assessee had actually earned the commission on sale. Hence, the present appeal by the Revenue. 4. We have heard learned counsel for the parties. 5. Learned counsel for the Revenue submitted that the assessee during the course of search operation on 15th April, 1993 had made a statement under s. 132(4) of the Act admitting that he was selling agent of M/s P.M.S. Enterprises, Phagwara and had been getting commission @ 2 per cent on sales effected through him. According to the learned counsel, in the light of statement of the assessee under s. 132(4), the AO was justified in making addition of Rs. 9,00,000 on account of commission received from M/s P.M.S. Enterprises calculating by taking 2 per cent of Rs. 4,92,03,005, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9,00,000 made by the AO on account of commission income on the basis of admission of the assessee in his statement under s. 132(4) of the Act which was confirmed by the CIT(A) on appeal, was sustainable. 9. It would be advantageous to view provisions which are relevant and s. 132(4) reads thus:- "132(4) The authorised officer may, during the course of the search or seizure, examine on oath any person who is found to be in possession or control of any books of account, documents, money, bullion, jewellery or other valuable article or thing and any statement made by such person during such examination may thereafter be used in evidence in any proceeding under the Indian IT Act, 1922 (11 of 1922), or under this Act. Explanation:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "(4A) Where any books of account, other documents, money, bullion, jewellery, or other valuable article or thing are or is found in the possession or control of any person in the course of a search, it may be presumed:- (i) that such books of account, other documents, money, bullion, jewellery or other valuable article or thing belong or belongs to such person; (ii) that the contents of such books of account and other documents are true; and (iii) that the signature and every other part of such books of account and other documents which purport to be in the handwriting of any particular person or which may reasonably be assumed to have been signed by, or to be in the handwriting of, any particular person, are in that person's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. Karnataka High Court in CIT vs. P.R. Metrani (HUF) (2001) 169 CTR (Kar) 149 : (2001) 251 ITR 244 (Kar) had laid down in clear terms that the presumption under sub-s. (4A) of s. 132 cannot be restricted for passing an order under s. 132(5) only. It further recorded that the presumptive value is total insofar as s. 132(5) is concerned, but in respect of other proceedings, the presumption is rebuttable. However, the Delhi High Court in Daya Chand vs. CIT (2001) 167 CTR (Del) 446 : (2001) 250 ITR 327 (Del) and Allahabad High Court in Pushkar Narain Sarraf vs. CIT (1990) 86 CTR (All) 110 : (1990) 183 ITR 388 (All) have subscribed a different view. We are in respectful agreement with the view expressed by Karnataka High Court as to accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which he had failed to displace. The assessee retracted from the said statement vide letters dt. 24th Nov., 1998 and 11th March, 1999 during the course of assessment proceedings. However, no value could be attached thereto in the present case. In case the statement which was made by the assessee at the time of search and seizure was under pressure or due to coercion, the assessee could have retracted from the same at the earliest. No plausible explanation has been furnished as to why the said statement could not be withdrawn earlier. In such a situation, the authenticity of the statement by virtue of which surrender had been made at the time of search cannot be held to be bad. The Tribunal, thus, erred in concluding otherwise. The Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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