JUDGMENT judgment of court was delivered by L. Narasimha Reddy J.-The respondent is assessee under Income- tax Act, 1961 (for short, "the Act"). search was conducted in his premises on January 9, 1996, under section 132 of Act. Nothing tangible was discovered during course of search. However, sworn statement of respondent was recorded under sub-section (4) of section 132 of Act on March 20, 1996. It was alleged that respondent declared sum of Rs. 15,00,000 as his undisclosed income. Based upon that, notice under section 158BC of Act was issued on August 21, 1996. On receipt of same, respondent pleaded that statement dated March 20, 1996, was forcibly extracted from him and that there is no truth in it. He stated that his undisclosed income is Rs. 65,020 and that he is prepared to pay tax thereon. Faced with this situation, Assessing Officer caused special audit under section 142(2A) of Act. respondent is said to have not extended co-operation. Ultimately, order was passed on July 20, 1997, by Assessing Officer in exercise of powers under section 158BC read with section 143(3) of Act determining undisclosed income of respondent as Rs. 15,00,000. sum of Rs. 9,00,000 was levied as tax thereon. Aggrieved by that, respondent filed I. T. (S. S.) A. No. 204/Hyd/ 1997 before Hyderabad of Income-tax Appellate Tribunal (for short, "the Tribunal"). Tribunal allowed appeal through order, dated December 27, 2001. Hence, this appeal by Revenue. Sri S. R. Ashok, learned senior counsel for appellant, submits that Tribunal was mostly guided by fact that respondent has retracted from sworn statement and it did not take into account evidentiary value of such statement. He contends that statement recorded on oath cannot be brushed aside just because assessee has retracted from it, at later point of time. Placing reliance upon judgment of Kerala High Court in CIT v. O. Abdul Razak [2013] 350 ITR 71 (Ker), learned counsel submits that though burden is upon Department to prove its case in context of search operation, burden stands discharged, when it persuades assessee to make statement and same is recorded. Sri Y. Ratnakar, learned senior counsel for respondent, on other hand, submits that very sworn statement recorded from respondent on March 20, 1996, under sub-section (4) of section 132 of Act is not true. He submits that it is only when statement is recorded during course of search, that it can be treated as one under sub-section (4) of section 132 of Act and that, in instant case, search took place on January 9, 1996, but and statement was recorded two months thereafter, i.e., on March 20, 1996. learned counsel further submits that certain observations made by Kerala High Court run contrary to very basic principles of evidence and at any rate, facts of that case are totally different from those of present case. He has drawn our attention to instructions issued by Central Board of Direct Taxes in year 2003, and submitted that statement, even if properly recorded under sub-section (4) of section 132 of Act cannot constitute sole basis for levying penal tax under Chapter XIV-A of Act. It is not in dispute that search was conducted in premises of respondent on January 9, 1996. It appears that nothing incriminating was found or recovered during search. It was only two and half months thereafter, i.e., on March 20, 1996, that statement was recorded from respondent. statement is sought to be treated as one under subsection (4) of section 132 of Act. At out set, it needs to be examined as to whether said statement can be treated as one, under sub-section (4) of section 132 of Act. provision reads as under: "The authorised officer may, during course of search or seizure, examine on oath any person who is found to be in possession or control of any books of account, documents, money, bullion, jewellery or other valuable article or thing and any statement made by such person during such examination may thereafter be used in evidence in any proceeding under Indian Income-tax Act, 1922 (11 of 1922), or under this Act." From perusal of this, it becomes clear that statement is required to be made during course of search or seizure. provision does not permit of any doubt that statement must be recorded while search is in progress and before search is concluded. question of recording statement, referable to provision, after conclusion of search, does not arise. There is not even any scope, to explain delay, once statement is recorded, after search. In instant case, statement was not recorded during course of search or seizure. To be precise, search was made on January 9, 1996, and statement was recorded on March 20, 1996. Such statement cannot at all, be brought under fold of section 132(4) of Act. Secondly, recording of statement even during search is not matter of course. It is only when material such as, books of account, documents, money, bullion, jewellery and like are found or discovered during search, that statement can be recorded. If search did not lead to discovery of any matters, referred to above, there would not be any occasion to record statement at all. In this case, admittedly, nothing was recovered from respondent during search. Hence, there was no occasion or basis to record statement, even if it is done when search was in progress. Hence, there is basic infirmity in very foundation of case, upon which appellant sought to rest their block assessment vis-a-vis respondent. Assuming that statement, which fits into sub-section (4) of section 132 of Act was recorded from respondent, it needs to be seen as to how far that can constitute basis for appellant to proceed against respondent. Sub- section (4) of section 132 of Act itself is to effect that statements recorded shall be treated as piece of evidence in proceedings under Act. That would be so, as long as statement is not retracted. If assessee comes forward with plea that his statement was recorded under threat or coercion, evidentiary value of statement suffers serious dent. mandate under sub-section (4) gets honoured only when there is no other version from assessee, vis-a-vis statement. In such case, statement would constitute basis for making block assessment even if Department does not have any other material to buttress its case. However, if statement is retracted by person from whom it is said to have been recorded, it has to be subjected to same test, as is done in matters of similar nature. This is particularly so, when person, from whom it is recorded, is going to be visited with penal consequences. Subsection (4) of section 132 of Act cannot be taken as provision laying down any new principle in law of evidence. For all practical purposes, statement recorded under sub-section (4) of section 132 of Act, partakes of character of one recorded by investigating officer under section 162 of Code of Criminal Procedure Howsoever desirable, it may appear to be, it cannot be ascribed status of proven fact. At most, it would constitute basis for prosecution to frame its case and correspondingly be material for defence to ensure that prosecution sticks to its version. question of statement of that nature being treated as clinching evidence, by itself, leading to any penal action does not arise. In Abdul Razak's case (supra), Kerala High Court took view that statement recorded under sub-section (4) of section 132 of Act can constitute basis for passing block assessment order, notwithstanding retraction from it, by assessee. discussion in this behalf reads as under (page 76 of 350 ITR): "It cannot be doubted for moment that burden of proving undisclosed income is squarely on shoulders of Department. Acquisition of properties by assessee are proved with documents seized in search. Since understatement of consideration in documents is usual practice officer questioned assessee on payments made over and above amounts stated in documents. assessee gave sworn statement honestly disclosing actual amounts paid. question now to be considered is whether sworn statement constitutes evidence of undisclosed income and if so whether it is evidence collected by Department. In our view, burden of proof is discharged by Department when they persuaded assessee to state details of undisclosed income, which assessee disclosed in his sworn statement, on being confronted with title deeds seized in search." With great respect to learned judges of Kerala High Court, who rendered judgment, we express our inability to subscribe to that view. To extent, their Lordships have taken note of fact that burden of proving undisclosed income squarely rested on Department, there is hardly any doubt. However, manner in which burden can be said to have been discharged, as mentioned in underlined portion, runs contrary to very basic tenets of law of evidence. Though fact that assessee therein retracted from sworn statement, no discussion was undertaken about it. question of discharge of burden, arises in respect of fact, to be proved. If contents of statement recorded from assessee are to be proved, that very statement cannot be proof, by itself. Such course would bring about hypellage logic, which is illustrated by well known example. Question: who is doctor? Answer: one who administers medicine. Question: What is medicine? Answer: one that is administered by doctor. Such discussion does not lead one, any further. discharge of burden must be in respect of plea taken by Department and burden can be discharged only through material, which is over and above what was stated in their case. statement assumes character of proven fact, only when it is not denied by assessee. circumstances under which statement is recorded from assessee, in course of search and seizure, are not difficult to imagine. He is virtually put under pressure and is denied of access to external advice or opportunity to think independently. battalion of officers, who hardly feel any limits on their power, pounce upon assessee, as though he is hardcore criminal. nature of steps, taken during course of search are sometimes frightening. Locks are broken, seats of sofas are mercilessly cut and opened. Every possible item is forcibly dissected. Even pillows are not spared and their acts are backed by powers of investigating officer under section 94 of Code of Criminal Procedure by operation of sub-section (13) of section 132 of Act. objective may be genuine, and exercise may be legal. However, freedom of citizen that transcends, even Constitution cannot be treated as nonexistent. It is not without reason that Parliament insisted that recording of statement must be in relation to seized and recovered material, which is in form of documents, cash, gold, etc. It is, obviously to know source thereof, on spot. Beyond that, it is not limited licence, to authority, to script financial obituary of assessee. At cost of repetition, we observe that if statement made during course of search remains same, it can constitute basis for proceeding further under Act even if there is no other material. If, on other hand, statement is retracted, Assessing Officer has to establish his own case. statement that too, which is retracted from assessee cannot constitute basis for order under section 158BC of Act. This, in turn, is referable to time-tested right of individual which is recognised under article 20(3) of Constitution of India which mandates no person, accused of any offence, shall be compelled to be witness against himself. citing of statement of individual as only evidence, in penal proceedings initiated against him, is never treated as part of developed and mature legal system. Section 31 of Evidence Act, 1872, also assumes significance in this regard. It reads: "Admissions not conclusive proof, but, may estop: Admissions are not conclusive proof of matters admitted but they may operate as estoppels under provisions hereinafter contained." Parliament never intended to place proceedings under Incometax Act on higher pedestal than those under criminal enactments. Department itself took note of indiscriminate use of such statements recorded under sub-section (4) of section 132 of Act and almost issued note of advice, if not caution to authorities under Act, through its communication, dated March 11, 2003. It reads: "Confession of additional income during course of search and seizure and survey operation regarding: Instances have come to notice of Board where assessees have claimed that they have been forced to confess undisclosed income during course of search and seizure and survey operations. Such confession, if not based upon credible evidence, are alter retracted by concerned assessees while filing returns of income. In these circumstances, on confessions during course of search and seizure and survey operations do not serve any useful purpose. 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 Income- tax Departments. Similarly, while recording statement during course of search and seizures and survey operations no attempt should be made to obtain confession as to undisclosed income. Any action on contrary shall be viewed adversely. Further, in respect of pending assessment proceedings also, Assessing Officer should rely upon evidences/materials gathered during course of search/survey operations or thereafter while framing relevant assessment orders." Though this circular was not available when adjudication vis-a-vis respondent was taking place at various stages, it is not difficult to take note of fact that circular has only made manifest, what was already hidden in provision. provision is deemed to have carried same purport, all through. This court in CIT v. Shri Ramdas Motor Transport [1999] 238 ITR 177 (AP) dealt with question and held as under (page 183): "A plain reading of sub-section (4) shows that authorised officer during course of raid is empowered to examine any person if he is found to be in possession or control of any undisclosed books of account, documents, money or other valuable articles or things, elicit information from such person with regard to such account books or money which are in his possession and can record statement to that effect. Under this provision, such statements can be used in evidence in any subsequent proceeding initiated against such person under Act. Thus, question of examining any person by authorised officer arises only when he found such person to be in possession of any undisclosed money or books of account. But, in this case, it is admitted by Revenue that on dates of search, Department was not able to find any unaccounted money, unaccounted bullion nor any other valuable articles or things, nor any unaccounted documents nor any such incriminating material either from premises of company or from residential houses of managing director and other directors. In such case, when managing director or any other persons were found to be not in possession of any incriminating material, question of examining them by authorised officer during course of search and recording any statement from them by invoking powers under section 132(4) of Act, does not arise. Therefore, statement of managing director of assessee, recorded patently under section 132(4) of Act, does not have any evidentiary value. This provision embedded in sub-section (4) is obviously based on well established rule of evidence that mere confessional statement without there being any documentary proof shall not be used in evidence against person who made such statement. finding of Tribunal was based on above well settled principle." Learned counsel for appellant is not able to point out any differentiating factors. precedent covers facts of present case. Viewed from any angle, we do not find any basis to interfere with order under appeal. Hence, appeal is dismissed. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this appeal shall also stand disposed of. *** Commissioner of Income-tax v. Naresh Kumar Agarwal