9911796707
TMI Blog1999 (10) TMI 770X X X X Extracts X X X X X X X X Extracts X X X X ..... on merits. 2. The allegation against the appellant is that he received an amount of Rs. 3 lakhs from his brother Syed Tajuddin, a person resident outside India. The allegation is sought to be substantiated by the evidence of the appellant s statement dated 20-4-1999 and recovery of an airmail envelope which is addressed to the appellant and has been sent by Tajuddin. 3. The appellant has not denied that the said Tajuddin is his brother and that he is residing outside India. However, he has denied that he had received the amount of Rs. 3 lakhs from his non-resident brother as alleged by the department. He has taken the stand that the incriminating portion of his statement is not voluntary. He has assailed the impugned order on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he fact that he had a non-resident brother who had written a letter to the appellant as evidenced by the recovery of the envelope from his residence. He rejected the retraction of the appellant s statement that it was a belated one having been sent three months after the date of the statement. He also did not find the affidavits furnished by the appellant as reliable for the reason that those affidavits also were sent at much later date. 5. I have examined the evidence relied on by the appellant in his defence as also that relied on by the learned Adjudicating Officer. 6. In order to prove that his statement to that effect was falsely recorded at the behest of the Enforcement Officer and in whose custody he had been, the appellant has tende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire sale consideration in cash, particularly when he had all the accounted amount of Rs. 3 lakhs with him, Rs. 1,50,000 being the proceeds of sale of the lorry and the remaining Rs. 1,50,000 being the total amount of loans. He has also not brought out any evidence that the persons who had given loans to him had demanded that amount from him or from the department, though the amount was to be returned, according to the appellant, within two weeks of 18-4-1995. 8. In view of the above, in my opinion, the entire story as put forth by the appellant regarding the source of the seized amount cannot be believed to be true. 9. In view of the above, in my opinion, the learned Adjudicating Officer was justified in not accepting the appellant s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tement had been prepared later on by the department. A formal application in that regard was made on 1-8-1995, a copy of which is on our record. The learned Adjudicating Officer has not considered that application while adjudicating upon the case. In my opinion, the denial of this opportunity to the appellant to cross-examine the Police Officer who was present during the search has vitiated the proceedings. 12. The learned Adjudicating Officer has relied on the Supreme Court s judgment to justify reliance on the confessional statement of the appellant. Those judgments are of no help to the department as the observations made therein on the face of it are not applicable in the facts and circumstances of the present case. There are no such de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puted that the law enforcement agencies have been able to lay hands on substantial Indian currency in respect of which, prima facie, the explanation given by the appellant is not believable. In the circumstances I do not consider it appropriate to order immediate release of the seized amount of the appellant. The respondent shall immediately inform the income-tax authorities about the recovery of the amount and call upon them to take such action thereon as they deem fit within 45 days of the receipt of the communication failing which the department shall release the seized amount to the appellant. If income-tax authorities fail to take over and seize the amount within the said period of 45 days, the respondents shall return the amount to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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