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TMI Blog2020 (2) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinate Bench proceeded to observe that unless and until some corroborative evidence is found in support of such admission, the department would be justified in making additions. In other words the proposition of law as laid down is that the department cannot start with the confessional statement. The confessional statement has to be brought in aid of other materials on record. In the case on hand two authorities have concurrently recorded a finding of fact that, except the statement recorded under Section 108 of the Customs Act there is no other evidence. There was no material to corroborate the statement made by the assessee in the form of confession. In the case on hand, as noted above, there is no material except the confessional sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, though retracted, is an admission and binding ? (b) Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT was justified in not considering that the statement of admission by the assessee was given by the assessee before the DRI based on the specific documentary evidences found during the search on M/s Nageshwar Enterprises on 22.09.2007 and therefore the primary onus was on the assessee to establish its case? (c) Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT was correct in stating that no addition can be made on the action of the third party when AO has already stated the details etc of investigation by the DDIT(Inv.), Unit-II among other details? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions and arguments submitted on behalf of the appellant. I have also considered various judicial pronouncements cited on behalf of the appellant. I find that in the assessment order the A.O. has not mentioned about any independent finding for making this addition. He has simply relied upon the information and evidences received from the customs department regarding the raid conducted by the officers of DRI. In my view after receiving information from the customs department the A.O. must have further carried out the inquiries to find out the truth. But it appears that no such exercise was done by the A.O. and there are no independent findings of the A0. for reaching to the conclusion that the appellant firm in fact made any such unacco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll deliver the goods to a purchaser of Surat without receiving full payment and will depute a person who has never been identified by anybody to collect the differential cash from the buyer at Surat and to remit the same to the seller. I have carefully considered these arguments and I am Inclined to agree with the learned A.R. of the appellant that had there been any such unaccounted payments to the Japanese/Chinese Sellers then some evidences must have been found out by the DRI or the AO. They could not Identify even one representative who used to collect the cash for Japanese/Chinese Suppliers. Had there been any such payment then at least some evidence must have been found out. Even no comparable cases or instances are mentione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort in purchases. Therefore, in our considered opinion, in the absence of any documentary evidence, no addition can be made on the action of third party i.e. the DRI. Further, the CESTAT, West Zone Bench Mumbai, vide its final order No. A/85365-85368/2019 dated 25.02.2019 has also dropped the proceeding initiated against the assessee-firm. Therefore, we do not find any merits in the revenue appeal. Accordingly, same is dismissed. 8. Being dissatisfied with the order passed by the Tribunal, the Revenue is here before this Court with the present appeal. 9. A Co-ordinate Bench of this Court, in the case of Kailashben Manharlal Chokshi vs. Commissioner of Income-tax, 328 ITR 411 , took the view that merely on the basis of admission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an High Court, but a close look at the decision of the Rajasthan High Court would indicate that the confessional statement was not the only piece of evidence. There was no material to corroborate the statement made by the assessee in the form of confession. In the case on hand, as noted above, there is no material except the confessional statement of the assessee recorded under Section 108 of the Customs Act. 12. In view of the concurrent findings recorded by both, the CIT(A) as well as the Appellate Tribunal, we are of the view that we should not disturb the finding of facts. None of the questions as proposed by the Revenue could be termed as substantial question of law. 13. In the result, this Tax Appeal fails and is hereby dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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