ITA No. 638 of 2004 IN HIGH COURT AT CALCUTTA Special Jurisdiction (Income Tax) C. I. T. CENTRAL - III, KOLKATA Versus VASANT SETA BEFORE: Hon'ble JUSTICE SOUMITRA PAL Hon'ble JUSTICE DEBANGSU BASAK Date : 16th September, 2014. Ms. Smita Das De, Adv. appears Court : appeal appears to have been admitted on 4th September, 2004 on following questions: i. Whether on facts and in circumstances of case, Tribunal was right in deleting addition of Rs.25,00,000/- out of Bank balance, fixed deposit receipt and investment in shares; ii. Whether findings and observation of Tribunal that statement recorded under section 132(4) of Income Tax Act, 1961 though based on evidence but not conclusive as same is rebuttable is erroneous and perverse in facts of present case Heard Ms. Das De, learned advocate for appellant. We find that learned Tribunal while dismissing appeal being I.T.A.No. 1508 (Kol.)/2002 held as follows: 2 There is no supporting evidence to confirm additions made by A.O. save and except statement of Mr. Manilal Thakkar co-relating income declared by him to alleged three firms. revised statement was supported by proper evidences because no evidence was brought on record for making addition except mere statement. Under these circumstances, we are inclined to accept change mode of disclosure so as to relate disclosed income to his money lending business which is as per material on record. In remand report, A.O. himself has found that additions were made adhocly. Adhoc declaration of undisclosed income made u/s.132(4) by partner of firm on behalf of other partners and also in respect of firms, which is not owned by him but by his other family members and who all are major, had to be discounted to certain extent, and in absence of any material to support such declaration, it could not have been relied upon by Department in totality. declaration of income pre-supposes application of mind of concerned person to various facts and drawing conclusion therefrom which can be both factual as well as legal. statement of partner making any declaration of income would not have any evidentiary value, unless it is supported by any documentary proof. provision embodied in sub-section (4) of Sec. 132 is obviously based on well established rule of evidence than mere confessional statement without there being any documentary proof shall not be used in evidence against person who made such statement. There cannot be estoppel against legal principles and therefore, if income does not accrue to respective firms, same cannot be taxed merely on ground that it was offered for taxation by one of partners, or by person who is related to proprietory or partner of other firms in whose hand such declarant wants to relate income declared by him. Tribunal further went on to hold: In view of above discussions, remand report and facts and circumstances of case and finding of fact recorded by ld. CIT(A) which are as per material on record and which has not been 3 controverted by Revenue, we do not find any infirmity in order of ld. CIT(A) save and except we discussed above. finding of fact recorded by ld. CIT(A) in his order remained uncontroverted, we, therefore, do not find any merit in additions made in hands of three firms except in case of M/s. Gopal Trading Co. as discussed above. protective additions made in hands of Shri Manilal Thakkar amounting to Rs.75,00,000/- in assessment year 1994-95 is also having no merit when assessee Mr. Manilal Thakkar has offered income of Rs.87.50 lakhs in respective years to which it actually pertains and also assessee by Department u/s.143(3)/147, as against declaration of Rs.75 lakhs made by him during course of search. In view of findings arrived at by Tribunal, we are of view that impugned order requires no interference. Hence, appeal is dismissed. Urgent certified copies of this order, if applied for, be supplied to parties on priority basis. (SOUMITRA PAL, J.) (DEBANGSU BASAK, J.) kc. C. I. T. Central - III, Kolkata v. Vasant Seta