The recording of statement is an art and the skill of
the Officer taking statement, will determine the extent to which he has been
successful in extracting information from the witnesses/assessees without travelling
beyond the four-corners of law. As oral evidence assumes great importance in
deciding controversial issues, it is necessary for the Assessing Officer to go
through these statements and draw appropriate conclusion. This shows Assessing
Officer’s expertise in the art of cross-examination.
As far as possible statements should be recorded in
the exact words used by the person. Where a person declines to answer on the
pretext of ill health, nervousness, or shock or fatigue or mental tension, he
should be given some time to take rest before resuming questioning. If need be,
a medical practitioner may be called for examination. All certificates used by the
medical practitioner should be made part of the panchnama.
If in his statement, a person refers to the transaction
with, or anything said to have been done or stated or written by, any other
person, the information should be communicated to the control room so that such
other person is also examined on oath, before he could be contacted by the
first person.
These points, however, are not exhaustive. It all
depends on nature of case, evidence in possession of Assessing Officer and use
of that evidence documentary or circumstantial. In addition, to the following
points, there may be other points of prime importance. These are only general
in nature:
§ Recording
a statement on oath is an important fart of search and survey operations.
§ Due
care must be taken to ensure that there is no threat or coercion to the
assessee and seized material is duly confronted to the assessee.
§ Proper
recording of statements backed by credible evidence would go a long way in
making sustainable additions that are able to stand the test of appeal
§ The
documentary evidence seized or impounded in support of statement on oath
recorded. Hence, there should be focus and concentration on collection of
evidence of income during search and survey.
Summons/Notices must be correctly served for the
purpose of examination/recording statements Summons/Notices must be correctly served for the
purpose of examination/recording statements. The whole purpose will be vesicated
in the case of summons/notices not served correctly.
Purpose
and significance of recordingstatements during search and seizure operations
The
Legislature in its wisdom has thought it fit to include a separate sub-section
for recording of statement during a search operation is itself an indication
that considerable importance has to be attached to such statements. The
examination is held to be a judicial proceeding and the purpose is to secure
the explanation of the person regarding the books of account, documents and
assets before he has an opportunity to concoct an explanation and fabricate
evidence. The words ‘may be used in evidence in any proceedings’ appearing in
section 132(4) are of great significance. The Legislature seems to be aware
that some admissions may be made at the time of search which may be true.
A witness summoned has no right of representation by
counsel
It is to be noted that a witness summoned has no right
of representation by counsel. During recording of the evidence, it is open to
the Assessing Officer to refuse assistance of a counsel during such examination
as was held in V. Datchinamurty v. Asst. Director of Inspection,
(Intelligence) (1984) 149 ITR 341 (Mad) and
reiterated by the Supreme Court in a central excise case in Poolpandi
v. Superintendent, Central Excise (1992) 62 Taxman 447.
A deponent on oath has right to read over before
affixing his signature
A deponent on oath has right to read over before
affixing his signature and clarify any matter by his own note while signing. Such
right should always be allowed to be exercised. If any statement is incorrectly
recorded or any correction or clarification is not agreed to be recorded, such
correction or rectification should be made immediately, thereafter.
KEY
NOTE
Witness,
who signs the statement is presumed to be present throughout the proceedings.
Oath
Before recording the statement, the Authorised Officer
should administer an oath/affirmation and warn the person concerned against
making any false statement. Refusal to take oath or make a statement on solemn affirmation
should be specifically recorded and signature of witness obtained. This is
necessary because such refusal is an offence under section 176 of IPC. Secondly,
such a refusal may also enable the income-tax authorities to draw an adverse
inference.
Generally speaking oath is a solemn declaration or
undertaking after naming God. Apart from being a judicial act, oath is a
religious act by which a party invokes God to not only witness the truthfulness
of his statement but also to punish his perjury if he is found to be guilty of
it.
Oath must be correctly administered before recording
the statement
The oath must be correctly
administered before recording the statement and where witnesses/assessees
refused to bind themselves by oath/affirmation such fact of refusal must be recorded
and penal consequences thereof is required to be communicated to the
witnesses/assessees. Similarly, where a statement is refused to be signed, such
refusal has to be recorded and penal consequences must be communicated and
required to be recorded thereto.
As
per the provisions of Section 277 of the Income Tax Act, 1961, if a person
makes a statement in any verification under the Income Tax Act or under any
rule made thereunder, or delivers an account or statement which is false, and which he either knows or believes to
be false, or does not believe to be true, he shall be punishable with rigorous imprisonment for a
term which shall not be less than six months but which may extend to seven
years and with fine where the amount involved is more than Rs. 25 Lakhs and in
any other case, with rigorous imprisonment for a term which shall not be less
than three months but which may extend to two years and with fine.
Text
of Section 277
FALSE
STATEMENT IN VERIFICATION, etc.
277.
If a person makes a statement in any verification under this Act or under any
rule made thereunder, or delivers an account or statement which is false, and
which he either knows or believes to be false, or does not believe to be true,
he shall be punishable,—
(i) in a case where the amount of tax, which
would have been evaded if the statement or account had been accepted as true,
exceeds twenty-five hundred thousand rupees, with rigorous imprisonment for a
term which shall not be less than six months but which may extend to seven
years and with fine;
(ii) in any other case, with rigorous
imprisonment for a term which shall not be less than three months but which may
extend to two years and with fine.
Further,
it would be relevant to point out that under section 181 of the Indian Penal
Code for giving false statement on oath or affirmation to a public servant or
to a person authorised to administer an oath or affirmation, imprisonment of upto
3 years is provided.
Text of Section 181 of Indian Penal Code, 1860
181. FALSE STATEMENT ON OATH OR AFFIRMATION TO PUBLIC SERVANT OR PERSON
AUTHORISED TO ADMINISTER AN OATH OR AFFIRMATION.
Whoever, being legally bound by an oath or
affirmation to state the truth on any subject to any public servant or other
person authorized by law to administer such oath or affirmation, makes, to
such public servant or other person as aforesaid, touching the subject, any
statement which is false, and which he either knows or believes to be false or
does not believe to be true, shall be punished with imprisonment of either
description for a term which may extend to three years, and shall also be
liable to fine.
KEY NOTE
Offence is NOT listed under Compoundable Offences
The Bombay High Court in R. R. Gavit v. Sherbanu Hassan Daya (1986) 161 ITR 793 :
28 Taxman 349 (Bom.) held that the power to
interrogate on oath under Section 132(4) is limited only with respect to
explanation of documents, articles or things found during search. However, the
effect of this decision seems to be nullified by insertion of Explanation to
the Section 132 vide Direct Tax Laws (Amendment) Act, 1987 with effect from
01.04.1989 with effect from 01.04.1989.
Text
of Explanation to Section 132(4)
Explanation.- For the removal of doubts, it is hereby declared that the
exami-nation of any person under this sub-section may be not merely in respect
of any books of account, other documents or assets found as a result of the
search, but also in respect of all matters relevant for the purposes of any
investigation connected with any proceeding under the Indian Income-tax Act,
1922 (11 of 1922), or under this Act.
Specimen
of Statement administer
an oath/affirmation
Statement of Shri
.....................................................................................................
s/o Sh.
...........................................................................
aged ...................... years R/O
.........................................................................
recorded on oath during the search and seizure operation under section 132 of
the Income-tax Act, 1961 on 25.11.1999 at ……………...
Oath Administered Oath Taken
Sd/-
Sd/-
(DDIT/ADIT/DCIT/ACIT/ITO)
(Name of the person whose statement is
recorded)
Preliminary
statement of the occupants of the premises
Preliminary statement is recorded to gather and
confirm certain basic information. On commencement of the search action, the
authorised officer should record statements of all the adult occupants of the
building or place, etc. where the search is being conducted. If the number of
occupants is very large (like, in an office or a factory), preliminary
statements of all persons, which in the opinion of the authorised officer, are
likely to be useful for search proceedings or any other proceedings under the
Income-tax Act, may be recorded. It will be useful to record such statements in
a pre-designed proforma so that no relevant point is missed. The authorised
officer may, if so considered necessary by him, also ask supplementary questions
while recording initial statements including specific questions about bank
lockers and accounts.
Preliminary
statement is apart from the statement which is to be recorded on the conclusion
of the search and seizure when a sworn statement is recorded under section
132(4) in respect of assets found or seizure and also the books of account or
other documents which are found or seized.
Preliminary
statement under section 131(1A) read with Explanation to section 132(4)
The authorised officer can record such a preliminary
statement under section 131(1A) read with Explanation to section 132(4).
To nullify the judgement in R. R. Gavil v. Sherbanoo Hasan Daya (1966) 161
ITR 793 (Bom),Explanation to section 132(4) inserted by the Direct Tax Laws
(Amendment) Act, 1987 with effect from 01.04.1989.
Specimen
of Preliminary Statement – Question which may be asked during the course of
search operations
Q-1.
Please identify yourself.
Q-2.
Are you Income Tax assessee ? If yes, give your PAN and Ward/ Circle in which
you are filing your Income Tax Return.
Q-3.
What are your sources of income?
Q-4.
Give full details of your family members, age, occupation residence and their
source of income. Also state their income-tax particulars, if any.
Q-5.
In how many concerns you are partner or you have interest
O-6.
How much cash, jewellery and other valuables are lying in this premises?
Q-7.
How much is the cash kept at home?
Q-8.
What are the properties owned by you?
Q-9.
What are the properties owned by your wife and children?
Q-10.
Do you own any locker, separately or jointly with others? Please give the
complete details thereof.
Q-11.
What are the contents of the locker?
Q-12.
Do you maintain regular books of account?
Q-13.
(In case where the books are not maintained) Why do you not maintain regular
books of account?
Q-14. Please furnish the list of all bank accounts
held in India and abroad by you, your family members and business concerns in which
you or your family members have business interest, or are partners, directors
or sole proprietor.
Q-15. Give the particulars of your bank account, bank
deposits and other investments made in your own name, in the names of your wife,
children, other members of family and benamidars.
Q-16.
What is the extent of your monthly or annual personal expenditure and the
source of meeting them?
I have read over the above statement and understood
the same. I found that it has been correctly recorded. The above statement has
been given by me without any pressure, fear or coercion.
Closing
statement
In
the statement recorded towards the end of the search, enquiry is made about the
source of acquisition and evidence for money, valuables etc. found.
Questions which may be asked during the course of
search operations
§ Specific and pointed
queries should be made on matters like, the nature of possession and source of
acquisition of money, bullion, jewellery and other valuable articles and
things, found in the course of the search.
§ The person whose statement
is being recorded should also be asked about the books of account and documents
found in the course of the search. Documents shown to the person at the time of
recording of his statement should be properly identified.
§ Where foreign currency,
traveller’s cheques in foreign currency or fake Indian currency are found, mode
and nature of their possession and source of acquisition should be inquired
into.
§
The
person should be closely examined on the excesses/shortages of stock found in
the course of the search.
§ The statement should
begin with the identification particulars of the person making the statement,
like, his full name, his father’s name, permanent and local address, age,
nationality, occupation, permanent account number and whether he is assessed to
tax, and if so, where, etc.
§ The AO has to correctly
identify the person whose evidence he is recording. (It should not be a case of
impersonation).
§ The AO must be clear whose
witness the person examining is assessee’s or department’s and examination,
cross-examination and re-examination has to be done accordingly.
§ Statements recorded must
reflect adequate preparation by the AO on the subject. Relevant questions
relating to subject should be raised to arrive at conclusion. The question should
not be left out if concluding answers either positive or negative is not found.
§ The documents relating
to witnesses are to be used in statements or later in assessments - they must
be identified properly in the course of examination of the witnesses/assessee
with identification No., page No. and point No., if any.
§ The AO before concluding
the examination of the witnesses/assessee should allow him a final opportunity
to amplify, supplement, contradict or clarify points raised by the AO during
the course of examination.
§ When the statement has
been concluded it is required to be mentioned i.e. who has examined the
witnesses, who has cross-examined him, who were present, whether statement is
read over in the language known/understood by the witness, the statement should
be true to his knowledge and belief, whether it is voluntary having been given
without any threat or inducement, and whether it has been signed by the
witness; his counsel, and by the AO.
§
The
AO must not be put unnecessary questions e.g. those relating to the private
life of the witnesses/assessees which were of no relevance should not be asked.
§ The AO should not be
indulged in unnecessary arguments on the interpretation of law or on facts or
in respect of the issues admitted or confirmed by the assessee or on facts which
are sufficiently proved by the material on record. (The AO should be
discouraged in undertaking such purposeless exercise during cross-examination).
§ The AO has to ask direct
questions in simple language understood by the witness/assessee he should not
waste time by putting irrelevant questions and getting circumlocutory and
confusing replies.
§ The AO is required to confront
the witnesses/ assessees with the apparent contradiction, if any, in the
statement recorded by him and in the material available on the record so as to
put the assessee/witness off guard. It is to be noted, where The AO has framed
the assessment without reconciling the contradiction apparent from facts and
material available on record and the oral statement recorded, the assessment is
unlikely to stand the test of appeal.
§
The
AO should not put questions which are insulting, annoying and intimidating.
§
The
AO has to cover the chain of events and synthesised the missing links in the
course of examination of the witnesses/assessees.
§
The
corrections/cuttings on the statements have to be signed by the
witnesses/assessees.
§
The
AO has to record the questions disallowed by him and reasons for disallowing
the questions.
§
The
AO is required to give a certified copy of the statement to the assessee on his
request. (Copy of the statement is not to be given to the witnesses).
Model
questions which may be asked during the course of search operations
Q-1. Please state your full name and in what capacity
are you associated with the concern (name of assessee concern).
Q-2. Please state the name of all concerns which are
carrying on business or profession from this premises (address of premises). Please
include the names of all companies, firms, proprietorship concern, Association
of Persons (AOP) and Body of Individuals (BOI) which may be carrying on any
business or profession from this premises.
Q-3.
Please state who are the directors/partners/proprietors or members of
HUF/AOP/BOI of the concerns stated by you in Q-2 above.
Q-4.
Please give the names and addresses of all premises (Head Office, Registered
Office, Branch Office, Godowns, Sales outlet in Delhi or elsewhere.
Q-5.
Please state the nature of business or profession carried on by each of the
concerns stated by you in response to Q-2 above.
Q-6.
Please state the PAN numbers and/or Income Tax particulars of the concerns
stated by you in response to Q-2 above.
Q-7.
Please state which books of accounts are being maintained by the concerns
stated by you in response to Q-2 above.
Q-8.
Please state where these books of accounts and other documents are lying.
Q-9.
Please state clearly (if the books of accounts of the concerns are not located
at this premises) where they are located at present.
Q-10.
Please state how the above books of accounts are maintained (i.e. manually or
computerized form).
Q-11.
Please confirm whether these books of accounts of the above stated concern are
complete in all respects today.
Q-12. Please state (if the above stated books of accounts
are not complete in any respect) which further entries are remaining to be made
in the books of accounts and please produce the relevant challans/ vouchers/bills/credit
notes etc. which are yet to be entered.
Q-13.
(Where duplicate sets of books of account are found) state the circumstances in
which you have maintained duplicate sets of account books?
Q.14. Please state clearly if books of accounts,
documents, stock, valuable articles or things belonging to the concerns stated
by you in Q-2 above are lying in any other premises other than this.
Q-15.
Please state the details of all bank accounts being maintained by the concerns
stated by you in Q-2 above.
Q-16.
What is the source of money recovered from your possession/ custody during
search? (where cash is found).
Q-17.
What are the sources for the acquisition of the jewellery recovered during the
course of search?
Q-18.
What is the stock in hand as per stock register or as per books of account as
on today?
Q-19.
Please state if stock belonging to any of the above concerns stated by you in
Q-2 above is lying at any other premises. If yes, please state the details
alongwith the specific location.
Q-20.
Please state if stock belonging to any of the above concerns stated by you in
Q-2 above is/has been sent on job work and/or consignment basis to any other
party. If yes, please state the details alongwith the specific location.
Q.-21. Please state if Stock belonging to any
person/party other than the concerns stated by you in Q-2 above is lying at
your premises. If yes, please state the details alongwith relevant proof.
Q.-22. (Where certain loose slips, note book, diaries
are found containing transactions not recorded in the regular books of account)
please explain the nature of transactions recorded in the said documents and
state whether they are accounted for in the regular books of account?
Q-23. I am showing you pages No. 12 to 19, 22 to 27 of
Annexure A-1A. Please go through these pages and explain the content on it and
also confirm whether these are accounted in the regular books of XYZ
accounts along with the documentary evidences.
Q-24
(Where foreign exchange is recovered) please state the circumstances in which
you came to possess the foreign exchange and explain the source of its
acquisition?
Q-25
(Where imported articles are found) please state the nature and source of
acquisition of imported articles?
Q-26
Do you want to say anything else?
Specimen
of statement – Questions which may be asked during the course of search of
operation of Locker
Q-1.
Please identify yourself.
Q-2.
During the search at your residence i.e. ................. a locker key mentioning
locker No. ................. with Bank of Baroda was found. Please state who are authorised to operate
this locker?
Q-3.
Please state what is the content of this locker.
Q-4.
Please state when did you operate this locker last time.
Q-5.
Please explain the source of cash/jewellery kept in this locker.
Q-6.
As per record, you have not shown any jewellery in ITR. The valuation of your
jewellery total Net weight is 2000.900 gms. So you are entitled only 500 gms of
jewellery. Please explain why rest of the jewellery may be seized?
Q-7.
Do you want to say anything else?
Summons can be issued under section
131(1A) even after the search proceedings are initiated
High
Court upheld the validity of the summons issued under section 131(1A) after the
search proceedings initiated under section 132. High Court held that summons
can be issued before or even after the search proceedings are initiated. High Court
held that the words ‘referred to in sub-section (1) of section 132 before he
takes action under clauses (i) to (v) of that sub-section’ in Section 131(1A)
qualify the words ‘authorised officer’ only and not the other specified
authorities named in the section. powers under
section 131(1A) given to five specified authorities are not hindered by conduct
of search; it can be invoked both before and after conduct of search. Where
assessee challenged validity of search proceedings on ground that notice was
issued under section 131(1A) subsequent to search and seizure carried out under
section 132, objection so raised could not be sustained. [In favour of revenue]
– [Emaar Alloys (P) Ltd. v. DGIT (Inv) (2016) 288 CTR 413 : 138 DTR
54 : (2015) 235 Taxman 569 (Jharkhand)]
Statement under section 131 can be taken at residence
- Assessing Officer is empowered to visit the house of the assessee for the
purpose of examining him on oath, by camping at the residence of the assessee
During the search proceedings, cash of Rs. 40 lakhs
was found from the residence of the Assessee. The Assessing Officer drew the
Punchnama on the same day and issued notice to assessee to be present at his
residence for examination on oath. The assessee challenged the action of the
Assessing Officer before the High Court in a Writ Petition. The Single Judge
held that action of the Assessing Officer amounts to “trespass” and the
Assessing Officer is to be prosecuted. On appeal by the department, the
Division bench held that the Assessing Officer under section 131(1A) empowers
the Assessing Officer to appear before him at his office or he can go to the
place of such person and examine him on oath.) – [DCIT (Inv.) v. Prakash V.
Sanghavi (2016) 236 Taxman 176 (Karn.)]
Power to examine on oath - Section 133A does not empower any ITO to examine any
person on oath, therefore, admission made during such statement cannot
be made the basis of any admission
The word ‘may’ used in section 133A(3)(iii ), viz., ‘record the statement of any person which may be useful for, or relevant to, any proceeding under this Act’, makes it clear that the materials collected and the statement recorded during the survey under section 133A are not conclusive piece of evidence by themselves. The statement obtained under section 133A would not automatically bind upon the assessee. Section 133A does not empower any Income-tax authority to examine any person on oath; so statement recorded under section 133A has no evidentiary value and any admission made during such statement cannot be made basis of addition. [In favour of assessee] (Related Assessment year : 2001-02) - [CIT v. S. Khader Khan Son (2013) 352 ITR 480 : (2012) 254 CTR 228 : 210 Taxman 248 : 79 DTR 184 : 25 taxmann.com 413 (SC)]
KEY
NOTE : There is no specific provision for recording of statement during survey
u/s 133A of Income Tax Act. However, various high courts have upheld validity
of such statements where they are backed by credible evidence.
Supreme Court
highlights binding nature of confession
It was held that a
confession, though retracted, is an admission and binds the petitioner.
Delivering its judgment with regard to the Customs Act, the Supreme Court has
held that Customs Officials are not Police Officers and, therefore, any
admission made before them would bind the persons even if retracted later. In
case of confessional statement, non-tendering of witnesses for
cross-examination is not violation of principles of natural justice. – [Surjeet
Singh Chhabda v. Union of India AIR 1997 SC 2560]
KEY NOTE
This observation can be imported
into the income-tax proceedings also and it can be held that since Income-tax
Officials also are not Police Officers, any admission made before them in a
statement would bind the assessee and he would not be in a position to retract
it later on.
Undisclosed income can be determined and for doing so, certain material other than relying on mere confessional statement is required
It is true that the
direct evidence about earning higher income may not be always available but
that does not mean that there should not be any indirect evidence to form the
basis of estimation of the income. At random, any income higher or lower
cannot be assessed in the hands of the assessee without supporting evidence.
Undisclosed income can be determined and for doing so, certain material other
than relying on mere confessional statement is required. – [Deepchand
& Co. v. ACIT (1995) 51 TTJ 421 (Bom.)]
Recording officer, after recording of statement must write at the bottom or end of the statement as read over and accepted
The Honorable Rajasthan
High Court observe that the recording officer, after recording of statement
must write at the bottom or end of the statement as read over and accepted. The
none mentioning of read over and accepted converted the statement as no
statement in the eye of law. The Hon’ble Court held that missing of read over
and accepted over the signature the Hon’ble Court not accepted the statement as
correct. In the fact and circumstances you will observe that admission cannot
be considered to be an admission at all since even the basic requirement of law
has not been complied with. - [Assistant Commissioner Taxes Officer v. Kishori
Shyam Brijesh Kumar (1994) 93 STC 213 (Raj.)]
Power to summon persons to give evidence and produce documents - During investigation under provisions of Customs Act and FERA, person being interrogated is not entitled to presence of his lawyer - Denial of such privilege to person concerned would not be violative of articles 20(3) and 21
Section 108 of
Customs Act, 1962, read with section 40 of Foreign Exchange Regulation Act,
1973 and articles 20(3) and 21 of Constitution - As
regards the apprehension in connection with enquiry and investigation under the
Act or other similar statutes of the country, there was no Question of
whiskering a way the persons concerned, in the instant case, for secret
interrogation and there was no reason to impute the motive of preparing the
ground work of false cases for securing conviction of innocent persons, to the
officers of the State duly engaged in performing their duty of prevention and
detection of economic crimes and recovering unappropriated money justly
belonging to the public. Further, clause (3) of article 20 declares that
no person accused of any offence shall be compelled to be a witness against
himself. It does not refer to the hypothetical person who may in the future be
discovered to have been guilty of some offence. The appellants were not accused
and there was no justification for expanding the right reserved by the
Constitution in favour of accused persons to be enjoyed by others. Regarding
the argument that if a person was called away from his own house and questioned
in the atmosphere of the customs office without the assistance of his lawyer,
his constitutional right under article 21 was violated, it was true that large
majority of persons connected with illegal trade and evasion of taxes and
duties were in position to afford luxuries on lavish scale of which an honest
ordinary citizen of this country could not dream and they were surrounded by
persons similarly involved, either directly or indirectly, in such pursuits.
But that could not be the ground for holding that he had a constitutional right
to claim similar luxuries and company of his choice. The purpose of the enquiry
under the Customs Act and other similar statutes would be completely frustrated
if the whims of the persons in possession of useful information for the
departments were allowed to prevail. For achieving the object of such enquiry
if the appropriate authorities be of the view that such persons should be
dissociated from the atmosphere and the company of persons who provided
encouragement to them in adopting a non-co-operative attitude to the
machineries of law, there could not be any legitimate objection in depriving
them of such company. The relevant provisions of the Constitution in that
regard have to be construed in the spirit they were made and the benefits
thereunder should not be expanded in favour of exploiters engaged in tax
evasion at the cost of public exchequer. Applying the just, fair and reasonable
test' it had to be held that there was no merit in the stand of appellant.
Further, in view of two judgments in Romesh Chandra Mehta v. State of West Bengal (1969) 2 SCR 461 and Illias v. Collector of Customs (1969) 2 SCR 613 wherein
the distinction between an accused in a criminal case and person called for
interrogation, had been discussed, the contention that appellants should be
treated to be in identical position as an accused and, consequently, should be
allowed the protection under article 20(3) was not sustainable. The relevant
provisions, in this regard, of the Act are in pari materia and the object of the two
Acts is also similar. – [Poolpandi v. Superintendent, Central Excise (1992)
62 Taxman 447 (SC)]
Witness does
not have right to be represented by counsel when his statement is recorded.
There is no provision under the law which
authorises a witness to be represented by or to appear with a counsel when his
statement is recorded and a witness does not
have any right under the law to take his counsel alongwith him at the time when
the statement is recorded. Further, no real prejudice could be caused to
the deponent of the facts stated in the statements. The attempt to get the
witnesses to be accompanied by counsel was likely to result in truth being kept
off the record. It would not be proper to accept such a plea leading to such a
consequence. Further, the ITO does not function as a court for all purposes and
is not bound by any technical rules of evidence. However, after gathering the
facts in his own way, he is bound to comply with the principles of natural
justice if he proposes to use them in the assessment. There is a great latitude
allowed to the ITO in the collection materials and he does not act as a court
at that stage. – [V. Datohinamurthy/S. Natarajan v. Asstt. Director of
Inspection (1984) 149
ITR 341 : (1982) 27 CTR 106 : (1983) 12 Taxman 185 (Mad.)]
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