:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1242 OF 2008 WITH INCOME TAX APPEAL NO.1250 OF 2008 INCOME TAX APPEAL (L)NO.3494 OF 2008 INCOME TAX APPEAL (L)NO.3495 OF 2008 INCOME TAX APPEAL (L)NO.3496 OF 2008 INCOME TAX APPEAL (L)NO.3497 OF 2008 INCOME TAX APPEAL (L)NO.3498 OF 2008 INCOME TAX APPEAL (L)NO.3499 OF 2008 INCOME TAX APPEAL (L)NO.3500 OF 2008 INCOME TAX APPEAL (L)NO.3502 OF 2008 INCOME TAX APPEAL (L)NO.3503 OF 2008 INCOME TAX APPEAL (L)NO.3504 OF 2008 INCOME TAX APPEAL (L)NO.3506 OF 2008 INCOME TAX APPEAL (L)NO.3507 OF 2008 INCOME TAX APPEAL (L)NO.3508 OF 2008 INCOME TAX APPEAL (L)NO.3514 OF 2008 INCOME TAX APPEAL (L)NO.3515 OF 2008 INCOME TAX APPEAL (L)NO.3516 OF 2008 INCOME TAX APPEAL (L)NO.3517 OF 2008 INCOME TAX APPEAL (L)NO.3518 OF 2008 INCOME TAX APPEAL (L)NO.3519 OF 2008 INCOME TAX APPEAL (L)NO.3520 OF 2008 INCOME TAX APPEAL (L)NO.3521 OF 2008 INCOME TAX APPEAL (L)NO.3522 OF 2008 INCOME TAX APPEAL (L)NO.3523 OF 2008 INCOME TAX APPEAL (L)NO.3531 OF 2008 INCOME TAX APPEAL (L)NO.3532 OF 2008 INCOME TAX APPEAL (L)NO.3544 OF 2008 INCOME TAX APPEAL (L)NO.3546 OF 2008 INCOME TAX APPEAL (L)NO.3547 OF 2008 INCOME TAX APPEAL (L)NO.3548 OF 2008 INCOME TAX APPEAL (L)NO.3549 OF 2008 INCOME TAX APPEAL (L)NO.3550 OF 2008 INCOME TAX APPEAL (L)NO.3552 OF 2008 INCOME TAX APPEAL (L)NO.3553 OF 2008 INCOME TAX APPEAL (L)NO.3554 OF 2008 INCOME TAX APPEAL (L)NO.3555 OF 2008 INCOME TAX APPEAL (L)NO.3556 OF 2008 The Commissioner of Income Tax Central -II, Mumbai. ....Appellant. Vs. Shri.Omprakash K.Jain Surat and ors. ....Respondents. Mr.Y.P.Patki with Mr.B.M.Chatterji and P.S.Sahadevan for the Appellant. Mr.S.N. Inamdar with A.K. Jasani, S.S.Shetty, Mr.P.C.Tripathi for the Respondents. :2: CORAM CORAM CORAM : F.I. REBELLO & R.S. : F.I. REBELLO & R.S. : F.I. REBELLO & R.S. MOHITE, JJ. MOHITE, JJ. MOHITE, JJ. DATE DATE DATE : 12th January, 2009. : 12th January, 2009. : 12th January, 2009. PC PC PC : : : 1.1.1. All these appeals are being disposed off by this All these appeals are being disposed off by this All these appeals are being disposed off by this common common common order. order. order. 2.2.2. Income Tax Appeal (L) Nos .3494 of 2008 to 3500 of Income Tax Appeal (L) Nos .3494 of 2008 to 3500 of Income Tax Appeal (L) Nos .3494 of 2008 to 3500 of 2008 2008 2008 are are are in respect of one Sanjay S.Jain. In respect of in respect of one Sanjay S.Jain. In respect of in respect of one Sanjay S.Jain. In respect of this this this assessee, the Tribunal was pleased to reverse the assessee, the Tribunal was pleased to reverse the assessee, the Tribunal was pleased to reverse the judgment judgment judgment of CIT (A). The A.O. and CIT (A) had rejected of CIT (A). The A.O. and CIT (A) had rejected of CIT (A). The A.O. and CIT (A) had rejected the the the contention of the assessee that the statements contention of the assessee that the statements contention of the assessee that the statements recorded recorded recorded were under duress or coercion and as such, were under duress or coercion and as such, were under duress or coercion and as such, could could could not be accepted. The Tribunal considering the not be accepted. The Tribunal considering the not be accepted. The Tribunal considering the facts facts facts and circumstances was of the view that the and circumstances was of the view that the and circumstances was of the view that the addition addition addition was made only based on the admission of the was made only based on the admission of the was made only based on the admission of the assessee assessee assessee at the time of search which had been retracted at the time of search which had been retracted at the time of search which had been retracted and and and that the A.O. as well as CIT(A) had ignored the that the A.O. as well as CIT(A) had ignored the that the A.O. as well as CIT(A) had ignored the contention contention contention of of of the assessee that the addition made by the the assessee that the addition made by the the assessee that the addition made by the Assessing Assessing Assessing Officer was incorrect. It then went to Officer was incorrect. It then went to Officer was incorrect. It then went to observe observe observe that the assessee did actually furnish all that the assessee did actually furnish all that the assessee did actually furnish all particulars particulars particulars which had not examined by the A.O. The which had not examined by the A.O. The which had not examined by the A.O. The Tribunal Tribunal Tribunal further observed that the documentary evidence further observed that the documentary evidence further observed that the documentary evidence was was was produced by the assessee before the A.O. however, produced by the assessee before the A.O. however, produced by the assessee before the A.O. however, no no no attempt was made to verify the claim of the assessee attempt was made to verify the claim of the assessee attempt was made to verify the claim of the assessee by by by the A.O. and then proceeded to observe and concluded the A.O. and then proceeded to observe and concluded the A.O. and then proceeded to observe and concluded that that that the assessee had established the statement given at the assessee had established the statement given at the assessee had established the statement given at the the the time of survey or search or search was incorrect. time of survey or search or search was incorrect. time of survey or search or search was incorrect. :3: In In In these these these circumstances, directed that the additions made circumstances, directed that the additions made circumstances, directed that the additions made inin in the case of the assessee for the assessment year the case of the assessee for the assessment year the case of the assessee for the assessment year 2001-02 2001-02 2001-02 to 2004-05 would stand deleted. to 2004-05 would stand deleted. to 2004-05 would stand deleted. 3.3.3. In so far as other appeals are concerned, the In so far as other appeals are concerned, the In so far as other appeals are concerned, the learned learned learned Tribunal in Para-32 issued the following Tribunal in Para-32 issued the following Tribunal in Para-32 issued the following directions. directions. directions. (a) (a) (a) If the details like statement of purchase If the details like statement of purchase If the details like statement of purchase and and and sales, quantitative details of turnover, sales, quantitative details of turnover, sales, quantitative details of turnover, ledger ledger ledger account account account of the parties with whom business of the parties with whom business of the parties with whom business was was was conducted on account of purchase and sales, conducted on account of purchase and sales, conducted on account of purchase and sales, bank bank bank statement indicating payments for statement indicating payments for statement indicating payments for respective respective respective purchase and sales and confirmation purchase and sales and confirmation purchase and sales and confirmation of of of parties from whom purchases and with whom parties from whom purchases and with whom parties from whom purchases and with whom sales sales sales were made, their sales tax returns etc. were made, their sales tax returns etc. were made, their sales tax returns etc. had had had already been filed by the Assessee before already been filed by the Assessee before already been filed by the Assessee before the the the A.O. then for the reasons stated in the A.O. then for the reasons stated in the A.O. then for the reasons stated in the case case case of Mr. Sanjay Jain, the additions made in of Mr. Sanjay Jain, the additions made in of Mr. Sanjay Jain, the additions made in the the the case case case of the assessee in all these assessment of the assessee in all these assessment of the assessee in all these assessment years years years would would would stand deleted. stand deleted. stand deleted. (b) (b) (b) If no such details were filed by the If no such details were filed by the If no such details were filed by the Assessee Assessee Assessee before the A.O. earlier, then the before the A.O. earlier, then the before the A.O. earlier, then the Assessee Assessee Assessee would file the same in the set aside would file the same in the set aside would file the same in the set aside proceedings proceedings proceedings and the A.O. will examine the same and the A.O. will examine the same and the A.O. will examine the same and and and decide the issue in accordance with law. decide the issue in accordance with law. decide the issue in accordance with law. :4: 4.4.4. At the time of hearing of these appeals in case of At the time of hearing of these appeals in case of At the time of hearing of these appeals in case of Sanjay Sanjay Sanjay S. Jain on behalf of the revenue, the learned S. Jain on behalf of the revenue, the learned S. Jain on behalf of the revenue, the learned counsel counsel counsel submits that apart from the statement which was submits that apart from the statement which was submits that apart from the statement which was retracted retracted retracted on on on 21.1.2004, there was a subsequent statement 21.1.2004, there was a subsequent statement 21.1.2004, there was a subsequent statement which which which was was was made by the assessee on 25.3.2004. Therefore, made by the assessee on 25.3.2004. Therefore, made by the assessee on 25.3.2004. Therefore, even even even if, by subsequent affidavit of June, 2004 the if, by subsequent affidavit of June, 2004 the if, by subsequent affidavit of June, 2004 the earlier earlier earlier statement was retracted, the statement of statement was retracted, the statement of statement was retracted, the statement of 25.3.2004 25.3.2004 25.3.2004 could not have been ignored. It is also could not have been ignored. It is also could not have been ignored. It is also pointed pointed pointed out that on prima facie consideration of the out that on prima facie consideration of the out that on prima facie consideration of the documentary documentary documentary evidence, the tribunal could not have evidence, the tribunal could not have evidence, the tribunal could not have accepted accepted accepted the evidence without examining the genuineness the evidence without examining the genuineness the evidence without examining the genuineness of of of the documents and the entries made therein. It is the documents and the entries made therein. It is the documents and the entries made therein. It is submitted submitted submitted that this exercise has not been done by the that this exercise has not been done by the that this exercise has not been done by the Tribunal. Tribunal. Tribunal. . In In In so far as other appeals are concerned, it is so far as other appeals are concerned, it is so far as other appeals are concerned, it is submitted submitted submitted that the order sending the matter back to the that the order sending the matter back to the that the order sending the matter back to the A.O., A.O., A.O., has left the A.O. with no discretion but to has left the A.O. with no discretion but to has left the A.O. with no discretion but to proceed proceed proceed to dispose of the matter in terms of the said to dispose of the matter in terms of the said to dispose of the matter in terms of the said directions. directions. directions. Also it is submitted that no directions Also it is submitted that no directions Also it is submitted that no directions could could could have been given to permit the assess to lead fresh have been given to permit the assess to lead fresh have been given to permit the assess to lead fresh evidence evidence evidence without assessing making out a case. without assessing making out a case. without assessing making out a case. 5.5.5. On On On behalf of the assessee, the learned counsel behalf of the assessee, the learned counsel behalf of the assessee, the learned counsel submits submits submits that when there was documentary evidence that when there was documentary evidence that when there was documentary evidence available, available, available, it was open to the learned Tribunal to come it was open to the learned Tribunal to come it was open to the learned Tribunal to come toto to the conclusion that the statement of the assessee the conclusion that the statement of the assessee the conclusion that the statement of the assessee which which which was was was retracted were given under duress or coercion. retracted were given under duress or coercion. retracted were given under duress or coercion. :5: ItItIt is is is further submitted that in the case of Sanjay Jain, further submitted that in the case of Sanjay Jain, further submitted that in the case of Sanjay Jain, the the the Tribunal Tribunal Tribunal proceeded on the footing that the documents proceeded on the footing that the documents proceeded on the footing that the documents were were were produced and in these circumstances, deleted the produced and in these circumstances, deleted the produced and in these circumstances, deleted the additions. additions. additions. No fault can be found with this approach of No fault can be found with this approach of No fault can be found with this approach of the the the Tribunal. Tribunal. Tribunal. . In In In so far as other assesses are concerned, it is so far as other assesses are concerned, it is so far as other assesses are concerned, it is pointed pointed pointed out that the documentary evidence was available out that the documentary evidence was available out that the documentary evidence was available before before before the A.O. but the A.O. and C.I.T.(A) have not the A.O. but the A.O. and C.I.T.(A) have not the A.O. but the A.O. and C.I.T.(A) have not considered considered considered the same and the matter has been remanded the same and the matter has been remanded the same and the matter has been remanded back back back for reconsideration. for reconsideration. for reconsideration. 6.6.6. After After After hearing the learned counsel, we are of the hearing the learned counsel, we are of the hearing the learned counsel, we are of the opinion opinion opinion that the order of the Tribunal cannot be that the order of the Tribunal cannot be that the order of the Tribunal cannot be sustained. sustained. sustained. In the first instance apart from the In the first instance apart from the In the first instance apart from the retracted retracted retracted statement of 21.1.2004, subsequent statement statement of 21.1.2004, subsequent statement statement of 21.1.2004, subsequent statement made made made on 25.3.2004 has not been considered. Secondly, on 25.3.2004 has not been considered. Secondly, on 25.3.2004 has not been considered. Secondly, there there there was documentary evidence on record. The A.O. was documentary evidence on record. The A.O. was documentary evidence on record. The A.O. while while while considering whether the retraction was under considering whether the retraction was under considering whether the retraction was under duress duress duress or coercion had also to consider the genuineness or coercion had also to consider the genuineness or coercion had also to consider the genuineness of of of the documents which were produced as this is the documents which were produced as this is the documents which were produced as this is documentary documentary documentary evidence. The test of evidentiary value of evidence. The test of evidentiary value of evidence. The test of evidentiary value of the the the oral oral oral evidence and the documentary evidence has to be evidence and the documentary evidence has to be evidence and the documentary evidence has to be borne borne borne in mind. The A.O. will have to comply with the in mind. The A.O. will have to comply with the in mind. The A.O. will have to comply with the settled settled settled principle of law. Documentary evidence if principle of law. Documentary evidence if principle of law. Documentary evidence if genuine genuine genuine must prevail over the oral statement. We must prevail over the oral statement. We must prevail over the oral statement. We however, however, however, do not propose to go into these issue as they do not propose to go into these issue as they do not propose to go into these issue as they have have have not been considered or answered. We propose to not been considered or answered. We propose to not been considered or answered. We propose to :6: remand remand remand the matters for fresh consideration of the A.O. the matters for fresh consideration of the A.O. the matters for fresh consideration of the A.O. on on on all these aspects. all these aspects. all these aspects. 7.7.7. We We We may also point out that in so far as may also point out that in so far as may also point out that in so far as directions directions directions given in appeals other than of Sanjay S. given in appeals other than of Sanjay S. given in appeals other than of Sanjay S. Jain, Jain, Jain, the tribunal has left no discretion in the A.O. the tribunal has left no discretion in the A.O. the tribunal has left no discretion in the A.O. inin in terms of the directions given. We are therefore, of terms of the directions given. We are therefore, of terms of the directions given. We are therefore, of the the the opinion that such directions have to be set aside opinion that such directions have to be set aside opinion that such directions have to be set aside and and and the matter must be left open to the A.O. in terms the matter must be left open to the A.O. in terms the matter must be left open to the A.O. in terms of of of what is stated hereinabove to pass an appropriate what is stated hereinabove to pass an appropriate what is stated hereinabove to pass an appropriate order. order. order. . In In In so far as the direction B in Para-32, such a so far as the direction B in Para-32, such a so far as the direction B in Para-32, such a general general general direction could not have been given. If any direction could not have been given. If any direction could not have been given. If any assessee assessee assessee has has has not filed the documents or seeks to produce not filed the documents or seeks to produce not filed the documents or seeks to produce additional additional additional documents then it is open to the said documents then it is open to the said documents then it is open to the said assessee assessee assessee to to to apply to the A.O. for permission to produce apply to the A.O. for permission to produce apply to the A.O. for permission to produce such such such documents and it is for the A.O. to consider the documents and it is for the A.O. to consider the documents and it is for the A.O. to consider the same same same according to law. according to law. according to law. 8.8.8. For For For the aforesaid reasons, we allow the appeals the aforesaid reasons, we allow the appeals the aforesaid reasons, we allow the appeals by by by setting aside the order of the Tribunal and CIT(A)) setting aside the order of the Tribunal and CIT(A)) setting aside the order of the Tribunal and CIT(A)) and and and remand the matters back to the file of A.O. for remand the matters back to the file of A.O. for remand the matters back to the file of A.O. for consideration consideration consideration of the issues stated hereinabove. Appeals of the issues stated hereinabove. Appeals of the issues stated hereinabove. Appeals accordingly accordingly accordingly disposed off. disposed off. disposed off. ( R.S. MOHITE, J.) ( F.I.REBELLO, J.)