9911796707
TMI Blog2019 (12) TMI 1193X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee: 1.1 That on the facts and in the circumstances of the case, the learned Commissioner of Income Tax (Appeals)-XI, New Delhi (hereinafter called CIT(A) for short) has erred in law in confirming the action of the Assessing Officer Circle-8(1), New Delhi (hereinafter called the AO for short) in reviving the assessment proceedings u/s 143(3) of the Income Tax Act, 1961 (Act for short) for A.Y. 2004-05 with reference to the provisions of second proviso of sub section (1) of section 153C of the Act. The impugned assessment proceedings became barred by limitation as on 31.12.2006 and the assessment order dated 29.11.2013, therefore, requires to be quashed. 1.2 That on the facts and in the circumstances of the case, the learned CIT(A) has erred in law in holding that the extant law on 16.05.2013 (the date on which the AO started the reassessment proceedings) is applicable and in rejecting the appellant s submission that the law prevailing on 31.12.2006 was applicable as far as limitation period for assessment year 2004-05 is concerned. 2.1 That on the facts and in the circumstances of the case, the learned CIT(A) erred in upholding an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation as on 31.12.2006 in the assessment order dated 29.11.2013, therefore, requires to be quashed. Before us, during the arguments the ld. AR submitted that the case has been time barred as per the provisions of Section 153A(2) of the Income Tax Act, 1961 standing as on 31.12.2006. He argued that the provisions of Section 153A(2) of the Act were introduced by Finance Act, 2008. Hence, the assessment of the assessee is barred by limitation. Further, the ld. AR relied on the arguments taken before the ld. CIT(A) which are as under: Ground of Appeal No. 1 is directed against the legality of the impugned assessment order on the ground that it is barred by limitation and, therefore, requires to be quashed. The appellant had sought my advice in this matter and a copy of my written opinion dated 07.06.2013 was filed before the learned Deputy Commissioner of Income Tax Circle 8(1). New Delhi (hereinafter called AO for short) and has also been filed in the statement of facts annexed to Form No. 35. It is submitted that the reassessment proceedings for Assessment Year 2004-05 stood time barred by limitation on 31.12.2006 because as on 31.12.2006 the provisions of Section 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tten submissions of the appellant have been careful ly considered. Ground No. 1 of the appeal is against the AO s action in resumption of assessment proceedings for the year under consideration with reference to the provisions of second proviso to section 153A of the Act. It has been claimed that the impugned assessment order is barred by limitation. The appellant has submitted that the reassessment proceedings for AY 2004-05 stood time barred by limitation on 31.12.2006 because as on 31.12.2006, the provisions of section 153A(2) of the Income Tax Act, 1961 were not in the statute of books. The provisions of section 153A(2) of the Act were introduced only by Finance Act, 2008 with retrospective effect from 01.06.2003. The appellant has argued that the legislature does not intend to attribute to the amended provisions a greater retrospectively than expressly mentioned nor does it authorize the AO to commence proceedings which before the amendment had already become time barred. The appellant has relied upon the decisions of Hon'ble Apex Court in the case of S.S. Gadgil Vs. Lai Co. (supra) and K.M. Sharma vs. ITO (supra). 7.2. I have considered the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble ITAT on 23.11.2012, the AO resumed the original assessment proceedings on 16.05.2013. Prima-facie the AO has acted on the existing provisions as on 16.05.2013 and as per the existing provisions, section 153A(2) was in statute on that day by which the abated proceedings stood revived w.e.f. the date of receipt of the order of such annulment. On the other hand, the appellant s plea is that this provision was inserted by the Finance Act, 2008 with retrospective effect from 01.06.2003 and since the proceedings for AY 2004-05 had already got time barred on 31.12.2006, the AO was not empowered to revive such proceedings. To my view, the appellant s argument is misplaced. It is true that in appellant s case normal assessment for AY 2004-05 should have been completed by 31.12.2006 but here is a case where the AO had to abate the original assessment proceedings due to search operation in the appellant s related cases. Thus, the original assessment proceedings which were pending remained suspended unrelated to the merits of the case. As the arrangement of provisions in the Act provides such suspension of proceedings as justified since the AO is empowered to make all possible addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) Pilkhani Distillery and Chemical Works at Pilkhani Distt. Saharanpur. 12. Assessee company is a member of M/s UPDA (Uttar Pradesh Distillery Association) which is a Registered Society, formed by all the distilleries of Uttar Pradesh for their welfare to jointly take up their cause with various authorities on different issues. Mr. R.K. Miglani was its General Secretary during the year under consideration. Main function of the association M/s UPDA was collection of huge sums from its members which represented their unaccounted income and then utilizing these sums for the payment to various civil authorities including politicians through UPDA for their ulterior motive to gain the benefits. 13. Search and Seizure Operation under section 132 of the I.T. Act, 1961 was carried out at the residential premises of Mr. R.K. Miglani, General Secretary of UPDA on 14.02.2006 as well as at the premises of M/s Radico Khaitan (a leading distiller of Uttar Pradesh based company) Many incriminating documents were seized during search operation from both the places. Statements of various persons including Shri Miglani were recorded u/s 134(4)/133A of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 348.6 1277.0 4. Narang 61 153 105.1 235.7 554.8 5. Pilkhani and Shamli 214.4 333.1 185 214 947.0 6. Modi 21 125 149.7 308.8 604.5 7. Superior/ITRC 6 46 34.7 233.6 320.3 8. Simbhaoli 298 472 278.5 583.1 1631.6 9. Cooperative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04-05, 2005-06 and 2006-07. 15. After examination of the seized material and after giving an opportunity of being heard, the Assessing Officer taxed an amount of ₹ 3,33,13,300/- u/s 69C of the Income Tax Act, 1961. The ld. CIT (A) confirmed the addition. 16. Before us, during the arguments the ld. AR argued that this matter stands covered by the orders of the Tribunal in the related cases. We brought to our notice the page no. 81 82 of the order of the ITAT in ITA No.2678 2679/Del/2011 wherein the relevant issues have been discussed at page nos. 36 to 58. 17. During the arguments before us, the ld. DR argued extensively about the order of the Hon ble High Court, regarding the seized material, non-consideration of seized material during the earlier proceedings, the order of the ITAT in the case of Mohan Meakins Ltd. in ITA No. 3787/Del/2008, findings in case of proceedings u/s 12AA in case of UPDA. The submissions of the ld. DR is as under: A search and seizure action was conducted on 14.02.2006 at the residence of Sh R. K. Miglani, General Secretary UPDA, from where various incriminating documents were seized vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng incriminating documents seized during search. (iii) Hon ble Delhi High Court vide order dated 22.01.2015 held as follows: 5. The Revenue urges that the AO and the CIT(A) took note of not merely the document which listed out the payments made in a tabular form for different purposes, but also other documents and materials in the form of production figures, the statement of Mr. R.K. Miglani, and the circumstance that the production figures coincide with the figures available with the Revenue in the pending proceedings. It appears that the Tribunal has not rendered any specific findings on the status of such documents. For instance, if the production figures were in fact forwarded by the concerned unit under a letter or some other form connecting it with the material form seized, inference would be of particular kind. (iv) The directions of Hon ble Delhi High Court have not been followed in the subsequent consequential order of ITAT. Hon ble Delhi High Court had specifically directed to give specific findings on the status of such documents which has not been done. In Para 6.4 of the Assessment order, the AO has point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Hon ble High Court vide order dated 23.10.2017 (copy enclosed) SLP against the same was dismissed by apex court on 13.04.2018 (Copy enclosed). Since the above issues have been decided by Hon ble ITAT and affirmed by Hon ble Delhi High Court as well as Hon ble Supreme Court, these issues cannot now be revisited in these proceedings. E. EVERY POSSIBLE EFFORT WAS MADE BY THE ASSESSEE TO ALLOW CROSS EXAMINATION OF SH. R.K.MIGLANI Detailed discussion given below F. Strong Reliance upon the statement on oath of Sh. R.K.Miglani recorded u/s 132(4) on the date of search. With regard to evidentiary value of statement recorded u/s 132(4) reliance is placed upon following judgments: (i) Kishore Kumar Vs CIT (62 taxmann.com 215, 234 Taxman 771) (Copy Enclosed) B Kishore Kumar Vs CIT (52 taxmann.com 449) Madras High Court confirmed (Copy Enclosed) (ii) Bhagirath Aggarwal Vs CIT (31 taxmann.com 274, 215 Taxman 229, 351 ITR 143) (Copy Enclosed) (iii) CIT Vs M. S. Aggarwal [2018] 93 taxmann.com 247 (Delhi) (Copy Enclosed) (iv) Smt Dayawanti Vs CIT [201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ISTINGUISHABLE FROM ORDER OF HON BLE ITAT IN ITA NO. 3787/DEL/2008: In the above case, Hon ble ITAT Delhi vide order dated 23.11.2012 allowed the appeals of the assessee and quashed the assessments u/s 153C on the ground that no documents belonging to the assessee were found and therefore no assessment u/s 153C can be framed in their cases. The above conclusion was arrived at primarily by relying upon decision of Hon ble ITAT Bangalore in the case of DCIT Vs United Spirits Limited (ITA NO. 1375 to 1378/Bang/2010) It may be pointed out that in the entire above order of Hon ble ITAT, there was mention of seized papers annexure A-1 to A-10 which were produced at the time of hearing. However, there was no examination of entries in these seized papers. What was examined was whether these seized documents belong to the assessee or not. 1. Hon ble Delhi High Court vide order dated 22.01.2015 held as follows: 5. The Revenue urges that the AO and the CIT(A) took note of not merely the document which listed out the payments made in a tabular form for different purposes, but also other documents and materials in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Details contained in seized Document Page of Assessment order (A.Y.2003- 04) - where mentioned 8 Annexures seized from UPDA Office 10 10 Annexures seized from Residence of Sh. Miglani 10 Summary of illegal/unaccounted payments made by various distilleries on the basis of seized documents 3 Annexure A, Pages 46 to 47 A-2, Page 11 67 List of Core Committee members 7 Annexure B Pg 1-75 Important pages Large computer generated sheets in which details of production of country liquor by individual distilleries and contribution to UPDA by each member and basis of calculation 10 Annexure B Pg 65-75 Specimen copies of weekly r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A-1, page 103 Summary of Payments upto February 2005 12 Annexure B Pg 9 A-1, page 94 Payments made AKG and Payments made to GDY 12 Annexure B Pg 6 A-1, Page 114 Total Account upto Date 2002-03, 2003-04,2004-05 upto February 05 it records payments received from different distilleries 12 Annexure B Pg 13 List of distilleries with name of persons as representatives their telephone no. 13 A-9 Production Figures 17 A-4 (UPDA) Production Figures 17 A-3, Page 94 A-6, Page 3 Total country Liquor produced by each distillery, then converted into no. of cases. Contribution by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded by assessee as was contended by Revenue before Hon'ble High Court . In response, the learned CIT DR placed reliance on the seized annexures A-1 to A-10, found from the residential premises of Sh. R.K. Migalni during the course of search on 14.02.2006 and referred to various pages of seized annexures. However, nowhere, the learned CIT DR has been able to show any such document, which could suggest that any document showing production figures was in fact forwarded by the assessee to Sh. R.K. Miglani or M/s UPDA. He again placed reliance on the statement of Sh. R.K. Miglani recorded during the search on his residential premises and also at the business premises of M/s UPDA, wherein Sh. Miglani had stated that production figures had been recorded by him on the basis of fax messages forwarded by various member distilleries of UPDA. However, not even one such alleged fax message with regard to the assessee has been produced before us by the revenue as seized annexure does not contain any such document. These arguments placed by learned CIT DR have already been dealt by Tribunal in the first round of proceedings and nothing new has been brought on record by the Revenue even thou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .02.2017. The relevant findings of Hon ble ITAT are reproduced below: 9. Now we ll have to see whether Mr Miglani has anything personal in doing all these things. Is an admitted fact that he is the Secretary General of the assessee association during relevant period. The statement of Mr Miglani clearly establishes that all the transactions covered by the documents which are confronted to him are in pursuance of the interest of the members of the assessee Association and there is nothing personal interest involved in it. In such a situation the natural inference that follows is that it s not as though Mr Miglani was acting in his personal capacity but he was acting in furtherance of the interest of the members of the assessee Associations. In such a situation it is not permissible for the assessee to say that whatever Mr Miglani has done by way of the transaction covered under these documents , was done in his individual capacity. Should there be any personal benefits to Mr. Miglani de horse the interest of the members of the Association, such an arguments would hold water. But in this matter it seems that all the transaction covered under the seized documents were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see could have baileditself out be producing its own Secretary General before the Department to say that the transitions covered under the documents seized during the search and seizure operations were conducted in his individual capacity but not as Secretary General, there is no reason as to why the assessee is failed to do so. Further the stand taken by the assessere before the authorities is not on the lines argued before us by the Ld. AR. The ground for non-production of Secretary General of the assessee association was something different. It is not open for the assessee to say that Mr Miglani is a third person as though he has nothing to do with the assessee association. 12. The search and seizure operation were conducted on 14.02.2006 and the statement was recorded on the date itself. As per reply dated 29.02.2009 filed by the assessee before the CIT, it is only by letter dated 03.03.2008 Mr. Miglani retracted his statement, stating that there was coercion while recording the statement on 14.02.2006. In the circumstances, the best opportunity was given to the assessee was to produce its Secretary General before the authorities for giving clarification on this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issed by apex court on 13.04.2018 (Copy enclosed). Since the above issues have been decided by Hon ble ITAT and affirmed by Hon ble Delhi High Court as well as Hon ble Supreme Court, these issues cannot now be revisited in these proceedings. E. CROSS EXAMINATION OF SH. R.K.MIGLANI (i) Every possible effort made to allow cross examination With regard to cross examination of Sh R.K.Miglani, as mentioned in para 4.4 of the assessment order, summons u/s 131 were issued to him on 01.03.2006, 10.08.2006, 30.11.2007, 04.08.2008 17.10.2008 during post search investigation as well as during assessment proceedings. Every effort was made by the department to allow cross examination. However^Sh R.K.MigIani did not appear for cross examination to assist the assessee who had employed him explicitly/ implicitly. On page 15 of the assessment order, AO has stated as follows: As already stated above, in view of these circumstances since Mr. Miglani is implicitly/ explicitly an employee of the assessee (the assessee being a member of UPDA) Mr. Miglani acts and works under the whims of the members of UPDA what postula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the member of UPDA and details of illegal payment by various members of UPDA, maintained by Shri Miglani on the basis of such dispatch figure belong to the appellant, the entry of dispatch belongs to the appellant and are part of the books of accounts of the appellant, which has been provided to UPDA for specific purposes for computing the facilitation money given to Govt, officers /politicians. These documents are for various F.Y's. maintained month wise/year wise. Therefore, these documents belong to the various members of UPDA jointly. Each members of UPDA partially owns these documents containing data of dispatch of country made liquor and computation of illicit payment made to Govt. Officers/politicians, and details of such money received and amount due. In any case, these documents cannot be said to belong to Sh. R.K. Miglani or UPDA as these two persons are not engaged in the business of manufacturing of country liquors. Therefore on this ground also belongingness/ownership of these paper lie with the member of UPDA needless to mention that name of members of UPDA is specifically mentioned on various seized documents and Sh. R.K. Miglani has explained that these docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not submitted the same in appellate proceeding in first till Hon'ble High Court. The Ld. AR has neither filed certified copy nor produced Sh. Miglani in person, therefore, this fresh evidence should not be entertained. (d) The most important aspect of retraction is that during statement, Sh. R.K. Miglani has explained the apparent contents of seized document. In retraction Statement he has not submitted the meaning of the contents of such seized documents, otherwise. (v) Findings in the case of UPDA by the AO are relevant:- Ld. AR's argument that AO in the case of UPDA has held in Para 10(b) that the seized document belong to UPDA and therefore does not belong to the members. This finding is not factually correct as AO of UPDA in Para 6.15 has himself held that these documents belong to the members. Further, UPDA is not manufacture of Alcohol, therefore question of dispatch of Alcohal in UPDA's case has no meaning. Therefore, essentially all computation and receipt of money and reimbursement based on such dispatch belong to members of UPDA who are in Alcohal manufacturing business. (vi) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounted payment. (ix) If Hon'ble ITAT confirm, legality of the proceedings u/s 153C in appellant s case, quantification of unaccounted payment can be restored to the AO on the basis of seized document and other evidences, books of accounts impounded during survey u/s 133A in UPDA's office and statement of Sh. R.K. Miglani, if any mistakes are found in figure either in the satisfaction u/s 153C or quantification of income while passing assessment order. It is further submitted as follows: 1. During the course of assessment proceedings, details of production and dispatch figures of al l assessees was compared with the figures found recorded in the seized documents. The figures on the seized documents were found to almost tally with the figures in the books of account of the assessee. 2. As a sample, copy of pages 32 and 33 of assessment order in the case of M/s Shadi lal Enterprises Ltd. are enclosed where the figures are found to tally. Hon ble Delhi High Court had given specific direction to verify whether production figures of the assesses match with the documents seized from residence of Sh. R. K. Miglani. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now donor personally and, moreover, he himself in presence of his Chartered Accountant had made a statement under sec. 132(4) admitting that said gift was bogus, impugned addition was to be confirmed. 4. Smt Dayawanti Vs CIT [2016] 75 taxmann.com 308 (Delhi)/[2017] 245 Taxman 293 (Delhi)/[2017] 390 ITR 496 (Delhi)/[2016] 290 CTR 361 (Delhi) (Copy Enclosed) where Hon ble Delhi High Court held that where inferences drawn in respect of undeclared income of assessee were premised on materials found as well as statements recorded by assessee's son in course of search operations and assessee had not been able to show as to how estimation made by Assessing Officer was arbitrary or unreasonable, additions so made by Assessing Officer by rejecting books of account was justified. 5. M/s Pebble Investment and Finance Ltd Vs ITO (2017-TIQL-238-SC-IT) (Copy Enclosed) where Hon ble Supreme Court dismissed SLP challenging the judgment, whereby the High Court had held that statement made u/s 133A could be relied upon for purposes of assessment, in absence of any contrary evidence or explanation as to why such statement made was no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Delhi) (Copy enclosed) where Hon ble Delhi High Court held as follows: the Tribunal has also held that the presumption about the genuineness and truth of the contents of the documents seized, as provided in Section 132(4A), was not available to the AO in the assessment proceedings. The judgment of the Supreme Court in the case of P. R. Met rani, no doubt held that the presumption was not available to the AO while completing the assessment and that it was limited to the prior proceedings in connection with the search. However, there was a later statutory amendment; Section 292C was introduced by the Finance Act, 2007 with retrospective effect from 1.10.1975; ++ the phrase in any proceeding under this Act in sub-section (1) to section 292C are important. They permit the AO to invoke the presumption that the seized documents belonged to the person searched, that the contents of the seized documents/books of accounts are true and that the signature of every other part of the books of accounts or documents which purports to be in the handwriting of any particular person are in that person's handwriting etc., even in the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] 198 Taxman 194 (Delhi)/[2011] 331 ITR 510 (Delhi) (Copy Enclosed) where Hon ble Delhi High Court held that there was a presumption raised under section 132(4A) on seizure of fax message and it was upon assessee to rebut that presumption by offering a plausible explanation. 3. Mahabir Prasad Rungta Vs CIT [2014] 43 taxmann.com 328 (Jharkhand)/[2014] 266 CTR 175 (Jharkhand) (Copy Enclosed) where Hon ble Jharkhand High Court held that loose sheets seized during search sometimes contain valuable information and thus those are to be regarded as' documents' within meaning of section 158B(b). There is presumption raised under section 132(4A) regarding documents seized and in light of such presumption, assessee ought to have produced other documents to disprove entries made in loose sheets. 4. Bhagheeratha Engineering Ltd Vs ACIT [2017] 79 taxmann.com 325 (Kerala)/[2015] 379 ITR 244 (Kerala)/[2016] 282 CTR 209 (Kerala) (Copy Enclosed) where Hon ble Kerala High Court held that in view of introduction of section 158BH presumption under section 132(4A) regarding ownership of seized assets was not limited to proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of Shri R.K. Miglani was recorded u/s 132(4) of the Act at the premises and u/s 133A of the Act at the premises of the assessee. This also makes it clear that Shri R. K. Miglani was searched and UPDA was surveyed. Otherwise, there was no need for examining Shri R.K. Miglani under two different sections i.e. 132(4) and 133A of the Act. 199. If the search warrant was never executed at the premises of the assessee, it leads to only one conclusion that the assessee was never searched. If the assessee was never searched u/s 132 of the Act, assessments framed u/s 153A of the Act are bad in law because provisions of section 153A provides for assessment in case of search or requisition. Hon ble ITAT is the highest fact finding authority. Stating that there was name of the assessee in search warrant at P/25, 1st Floor, South Extension, Part - 2, New Delhi and then holding proceedings u/s 153A are invalid on the ground that no Warrant of Authorization u/s 132 of the Act was executed at the premises of the assessee is absurd. It was held that proceedings u/s 153A are bad in law since there was no search at premises of the assessee which is a perverse find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers containing notings of payments outside books of account were seized. 2. As per para 27 of the ITAT order, seized papers relied upon CIT(DR) were to be made Annexure to the ITAT order. However, copy of the ITAT order received does not contain these Annexures. 3. The CIT(DR) heavily relied upon the fact that based upon seized documents and statement of Sh R.K.Miglani, registration of the assessee was cancel led and the cancellation was upheld by Hon ble Delhi High Court as well as Supreme Court. It is surprising that Hon ble ITAT in its para 72 has held that Failure to allow cross examination was denial of principle of natural justice whereas Hon ble Supreme Court in the case of assessee itself has held the statement to be valid and based upon it cancel led registration u/s 12AA 4. The CIT(DR) heavily relied upon the fact that presumptions u/s 132(4A) was available since the documents were seized from premises of the assessee. ITAT has not considered this argument. Moreover, it has held the proceedings u/s 153A themselves to be invalid. 5. Hon ble ITAT had not considered detailed written arguments giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dated 14.12.2018 wherein specific findings on the status of these document has been given at para 45 to 56 of the orders. Regarding the cross examination, the issue has been dealt at para 64 to 70 of the order. For the sake of ready reference, the relevant case of the order is reproduced as under: 45. We do not find any force in the contentions of the ld. DR. Firstly, the cancellation of registration u/s 12AA of the Act in the case of UPDA is altogether a different issue. The Assessing Officer cancelled the registration on the strength of the statement of Shri R.K. Miglani and search which took place at his residence. The Tribunal upheld the order of the Assessing Officer which was affirmed by the Hon'ble High Court of Delhi. But this was in the context of provisions of section 12AA of the Act, and, therefore, cannot be stretched to the proceedings u/s 153C of the Act in respect of 11 distilleries. A judgment has to be considered in the context in which it was delivered. 46. The Assessing Officer, during the course of assessment proceedings, has heavily relied upon the entries found in the impounded documents. But, there is not even a single fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamined whether a satisfaction note prepared in the case of the person other than the person searched by the same Assessing Officer in the file of the person searched could be held as valid. If the judgment is read as a whole, the Hon'ble High Court has not held that the term belong to is inter-changeable with relating to or pertaining to . 52. As mentioned elsewhere, the Revenue has not brought anything on record to establish that the production figures reflected in the tables were forwarded by the appellants through a fax message or on its letter head. This was clear mandate of the Hon'ble High Court when it remitted the matter to the file of the Tribunal. 53. The ld. DR emphasized that the document 114 of Annexure A-1 bears the signature of two employees but we have to say that during the course of assessment proceedings, these employees were never questioned by the Assessing Officer to verify whether they actually put the signatures on those documents. In our considered opinion, such documents are only hearsay evidence. 54. Another theory propounded by the Revenue is that every distillery had to contribute ₹ 20/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he only conclusion which can be drawn about the nature and contents of the document is that it is a dumb document and on the basis of the entry of nothings or figure etc. in this document, it cannot be concluded that this represents the undisclosed income of the assessee. 65. The Hon'ble Supreme Court in the case of Andaman Timber Vs. CIT in Civil Appeal No. 4228 OF 2006 has held as under: According to us, not allowing the assessee to cross-examine 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 in as much as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. 66. The ld. DR has strongly emphasized on the evidentiary value of the statement recorded u/s 132(4) of the Act and has relied upon several judicial decisions to support his contentions. The ld. DR further relied upon the provisions of section 132(4A) of the Act and 292C of the Act. These sections read as under: Section 132(4) in The Income- Tax Act, 1995 (4) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 handwriting, and in the case of a document stamped, executed or attested, that it was duly stamped and executed or attested by the person by whom it purports to have been so executed or attested. Where any books of account, other documents or assets have been d to the requisitioning officer in accordance with the provisions of 132A, then, the provisions of sub-section (1) shall apply as if such books of account, other documents or assets which had been taken into custody from on referred to in clause (a) or clause (b) or clause (c), as the case may be, of sub-section (1) of section 132A had been found in the possession or control of that person in the course of a search u/s 132. 67. A plain reading of the aforementioned sections would show that the presumption is available in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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