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TMI Blog2016 (7) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... ENT : MRS MAUNA M BHATT, ADVOCATE ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1. By way of this Appeal, the Appellant assessee has challenged the judgment and order dated 09.03.2007 of the Income Tax Appellate Tribunal, Ahmedabad Bench 'D', Ahmedabad in ITA No.352/Ahd/1999 for the Assessment Year : 1994-95 whereby the Tribunal has reversed the findings of CIT (Appeals) and confirmed the order of the Assessing Officer. 2. While admitting the matter on 27.03.2008, the following substantial question of law was framed by the Court for consideration :- (A) Whether the Appellate Tribunal is justified on facts and in law in restoring partial addition at ₹ 10 lacs towards probable speculation income? 3. The facts of the case are as under :- The appellant assessee is the legal heir of the deceased Jagdishchandra K. Shah (original assessee) who was regularly assessed by the Income Tax Department at Ahmedabad Office. For the assessment year 1993-94, returns of income was filed which was processed by the Income-tax department where opportunity was granted to the assessee and ultimately order u/s. 143(4) of the Income tax was framed w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax reported in [2008] 174 Taxman 466 (Guj.). Relevant paragraphs read as under :- 13. He has further relied on the instructions dated 10-3-2003 issued by the Central Board of Direct Taxes, which states that instances have come to the notice of the Board where assessee's have claimed that they have forced to confess the undisclosed income during the course of the search and seizure and survey operations. Such confessions, if not based on credible evidence, are later retracted by the concerned assessee while filing returns of income. In these circumstances, confessions during the course of search and seizure and survey operations do not serve any useful purpose. This instruction further states that it is, therefore, advised that there should be focus and concentration on collection of evidence of income which leads to information on what has not been disclosed or is not likely to be disclosed before the Income-tax Department. Similarly, while recording statement during the course of search and seizures and survey operations no attempt should be made to obtain confession as to the undisclosed income. Any action on the contrary shall be viewed adversely. 26. In view of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee are not accepted because his statement u/s 132(4) of the Act was recorded voluntarily without replying any coercive measures by the search authorities and therefore now he cannot say that statement was recorded under pressure. The statement recorded u/s. 132(4) of the Act during the course of search as evidential value and the admission made by the assessee in his voluntary statement is an evidence itself to prove that the assessee had earned speculative income from the purchase and sale of shares which was not recorded in the books of accounts. The statement recorded u/s. 132(4) are very crucial and statement recorded under this sub-section are first in point of time, spontaneity in a statement suggests absence of deliberation on the part of the truthfulness in the version given. The first statement, therefore, carries more weight. Facts stated in the first statement are normally treated as acceptably. Apparently, there is no reason for any authorized person to pressurise the assessee for disclosure and it is a settled position as per evidence acts done by the public officer in discharge of his duties are bonafide and if anybody alleges otherwise, heavy bonus lies on him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t I am reasonably impressed by the contention that this statement was subject to variation on either side after verification i.e. assessee could reduce the disclosure made or the Assessing Officer could enhance the same if the facts and evidence so warranted. May be, even if this fact is not mentioned in the statement itself, the point will still remain since it is no body's case to get say any extra tax then is due. The reality remains that there is no evidence what-so-ever with the department even in consequence of a serious action like search and seizure followed by detailed security which could support the earning of speculation income of ₹ 10,50,000/- in this year. In other words, there is no evidence to support the very existence of this income except the so called statement u/s 132(4) of the Act. It defies logic that an assessee will or should admit any income which he had not earned and which the department had not found out. I do not find any thing against the arguments that disclosure u/s. 132(4) was subject to variation and once the assessee had access to seized documents and he realised subsequently that there was no occasion to make this disclosure, he was ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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