BADAMI DEVI KUMAWAT, Jaipur V. ITO, Jaipur

ITA 148/JPR/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2182 (ITAT-JAIPUR)
• Duration Of Justice: 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 17-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: A S NEHARA
• Keywords: Reopening of assessment; Unexplained investment; Value adopted by valuation officer; Source of fund; Valuation report
• Section: 147; 131; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA -@ ITA. NO. 148/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2007-08 SMT. BADAMI DEVI KUMAWAT 5/27, KESRICHAND, CHOUDHARY NAGAR, AJMER ROAD, JAIPUR CUKE VS. ITO WARD 2(5) INCOME TAX DEPARTMENT, JAIPUR LFKK;H YS[KK LA -@THVKBZVKJ LA -@ PAN/GIR NO.: AHDPK0532H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P. C. PARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI A. S. NEHARA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 13/12/2017 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 15/01/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-I, JAIPUR DATED 19.12.2016 FOR ASSESSMENT YEAR 2007-08 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL AS UNDER:- 1. UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE CIT(A) HAS ERRED BY NOT ACCEPTING THE FACT THAT PROPER OPPORTUNITY OF HEARING WAS NOT PROVIDED. ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 2 2. UNDER THE FACTS & CIRCUMSTANCES OF THE CASE CIT (A) HAS ERRED BY CONFIRMING ADDITION OF RS. 46,200/- ON ACCOUNT OF INCOME FROM HOUSE PROPERTY WITHOUT ANY BASIS AND REASONABLE GROUND. 3. UNDER THE FACTS & CIRCUMSTANCES OF THE CASE THE CIT (A) HAS ERRED BY CONFIRMING AN ADDITION OF RS. 1,19,730/- ON ACCOUNT OF COMMISSION AND BROKERAGE WITHOUT ANY BASIS AND REASONABLE GROUND. 4. UNDER THE FACTS & CIRCUMSTANCES OF THE CASE THE CIT (A) HAS ERRED BY CONFIRMING ADDITION ON ACCOUNT OF INVESTMENT IN BUILDING CONSTRUCTION CONSIDERING IT AS AN UNEXPLAINED INVESTMENT OF RS. 1,14,75,042/-. 2. FIRSTLY, GROUND NO.1 WAS NOT PRESSED DURING THE COURSE OF HEARING. HENCE, THE SAME IS DISMISSED AS NOT PRESSED. 3. REGARDING GROUND NO.2 WHEREIN THE ASSESSEE HAS CHALLENGED THE ACTION OF LD CIT(A) IN CONFIRMING THE ADDITION OF RS.46,200/- ON ACCOUNT OF INCOME FROM HOUSE PROPERTY. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSESSEE IN HER RETURN OF INCOME HAS DECLARED GROSS RENTAL INCOME AT RS.84,000/- AND AFTER DEDUCTION U/S 24(A), OFFERED THE NET INCOME AT RS.58,800/-. THE AO HOWEVER, ESTIMATED THE RENTAL INCOME AT RS.1,50,000/- AND AFTER DEDUCTION U/S 24(A) AT RS.1,05,000/-, DETERMINED NET RENTAL INCOME AT RS 1,05,000. ACCORDINGLY, THE AO MADE AN ADDITION OF RS.46,200/-(1,05,000-58,800). THE LD. CIT(A) CONFIRMED ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 3 THE ADDITION HOLDING THAT ASSESSEE HAS NOT BROUGHT ON RECORD AS TO HOW THE ESTIMATION MADE BY AO IS NOT INCORRECT. 4. DURING THE COURSE OF HEARING, THE LD AR SUBMITTED THAT THERE IS NO BASIS WITH THE AO TO ESTIMATE THE RENTAL INCOME AT RS.1,50,000/- AS AGAINST RS.84,000/- DECLARED BY THE ASSESSEE. THIS RENTAL INCOME DECLARED IN AY 2005-06 & AY 2006-07 IS ACCEPTED BY THE AO. IF THE AO IS ESTIMATING THE RENTAL INCOME AT A HIGHER AMOUNT, THEN IT IS HIS BURDEN TO BRING EVIDENCE FOR THE SAME. SUCH BURDEN CANNOT BE SHIFTED TO THE ASSESSEE. THEREFORE, ADDITION CONFIRMED BY LD. CIT(A) BE DELETED. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. THERE IS NO BASIS OR EVIDENCE ON RECORD TO ESTIMATE THE RENTAL INCOME AS DONE BY THE AO. IN THE RESULT, ADDITION SO MADE BY THE AO IS CLEARLY ON AN ADHOC BASIS AND CANNOT BE SUSTAINED IN THE EYES OF LAW AND THE SAME ARE HEREBY DELETED. IN THE RESULT, GROUND OF APPEAL IS ALLOWED. 6. IN GROUND NO. 3, THE ASSESSEE HAS CHALLENGED THE CONFIRMATION OF ADDITION OF RS.1,19,730/- ON ACCOUNT OF COMMISSION & BROKERAGE. THE FACTS OF THE CASE ARE THAT THE ASSESSEE HAS DECLARED INCOME FROM JOB WORK AT RS.1,30,270/-. THE AO, HOWEVER, ESTIMATED AT RS.2,50,000/- RESULTING INTO ADDITION OF RS.1,19,730/-. THE LD. CIT(A) HELD THAT ASSESSEE HAS NOT FURNISHED DETAILS OF JOB WORK INCOME AND EVIDENCE THEREOF. THEREFORE, HE UPHELD THE ESTIMATION OF AO AND THUS, CONFIRMED THE ADDITION. 7. DURING THE COURSE OF HEARING, THE LD AR SUBMITTED THAT BOTH THE LOWER AUTHORITIES HAVE ESTIMATED THE INCOME ON SURMISES & CONJECTURES. ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 4 NO EVIDENCE IS BROUGHT ON RECORD TO ESTIMATE SUCH INCOME AT A HIGHER SIDE. THEREFORE, THE ADDITION CONFIRMED BY LD. CIT(A) BE DIRECTED TO BE DELETED. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. THERE IS NO BASIS OR EVIDENCE ON RECORD TO ESTIMATE THE COMMISSION AND BROKERAGE INCOME AS DONE BY THE AO. IN THE RESULT, ADDITION SO MADE BY THE AO IS CLEARLY ON AN ADHOC BASIS AND CANNOT BE SUSTAINED IN THE EYES OF LAW AND THE SAME ARE HEREBY DELETED. IN THE RESULT, GROUND OF APPEAL IS ALLOWED. 9. IN GROUND NO. 4, THE ASSESSEE HAS CHALLENGED THE CONFIRMATION OF ADDITION OF RS. 1,14,75,042/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN BUILDING CONSTRUCTION. FIRSTLY, THERE IS NO DISPUTE REGARDING THE QUANTUM OF INVESTMENT AMOUNTING TO RS. 1,14,75,042/- AS ESTIMATED BY THE VALUATION OFFICER IN THIS REGARD. THE LIMITED ISSUE UNDER CONSIDERATION IS WHETHER THE SAID INVESTMENT HAS BEEN MADE DURING THE YEAR UNDER CONSIDERATION OR NOT AND WHETHER THE SAME CAN BE BROUGHT TO TAX IN THE IMPUNGED ASSESSMENT YEAR IN ABSENCE OF SATISFACTORY EXPLANATION REGARDING THE SOURCE OF SUCH INVESTMENT BY THE ASSESSEE. 10. THE FACTS OF THE CASE ARE THAT PROCEEDING U/S 147 WERE INITIATED BY ISSUANCE OF NOTICE U/S 148 ON THE BASIS OF INFORMATION AVAILABLE WITH THE AO THAT THE ASSESSEE HAS MADE INVESTMENT IN PURCHASE OF LAND AT RS. 15,00,000/- AND HAS ALSO MADE INVESTMENT OF RS. 1 CRORE APPROX. IN THE CONSTRUCTION OF BUILDING KNOWN AS PAWAN TOWER ON THE SAID PLOT OF LAND NAMELY, PLOT NO.- B, SITUATED AT BEKUNT NAGAR, (B-2, VENKESHWAR COLONY), SODALA, JAIPUR. THE ASSESSEE HAS NOT CHALLENGED THE BASIS OF THE REOPENING OF ASSESSMENT PROCEEDINGS BEFORE THE LOWER AUTHORITIES. ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 5 THE ASSESSING OFFICER REFERRED THE MATTER TO THE DEPARTMENT VALUATION CELL AND THE VALUATION OFFICER VIDE HIS REPORT DATED 23.01.2015 HAS ESTIMATED THE INVESTMENT IN THE CONSTRUCTION OF 5 STOREY BUILDING KNOWN AS PAWAN TOWERS AT RS. 1,14,75,402/-. A COPY OF THE VALUATION REPORT WAS SHARED WITH THE ASSESSEE AND IN ABSENCE OF ANY RESPONSE OR EXPLANATION FROM THE ASSESSEE, THE ASSESSING OFFICER WENT HEAD AND COMPLETED THE ASSESSMENT WHEREIN THE SAID AMOUNT WAS BROUGHT TO TAX AS UNEXPLAINED INVESTMENT IN THE HANDS OF THE ASSESSEE. 11. THE ASSESSING OFFICER, ON GOING THROUGH THE STATEMENT OF AFFAIRS OF THE ASSESSEE AS ON 31.3.2007, OBSERVED THAT INVESTMENT IN LAND HAS BEEN SHOWN AT RS. 15 LAKHS BUT NO INVESTMENT ON ACCOUNT OF CONSTRUCTION OF PAWAN TOWERS HAS BEEN DISCLOSED. THE ASSESSING OFFICER ALSO EXAMINED THE STATEMENT OF AFFAIRS OF THE ASSESSEE FOR THE IMMEDIATELY PRECEEDING FINANCIAL YEAR WHICH ENDED ON 31.03.2006 AND OBSERVED THAT INVESTMENT/EXPENDITURE UNDER THE HEAD CONSTRUCTION OF PAWAN TOWER HAS NOT BEEN DISCLOSED. BASIS SUCH EXAMINATION, THE AO OBSERVES THAT SUCH FACTS ESTABLISHES THAT THAT INVESTMENT IN CONSTRUCTION OF PAWAN TOWER WAS MADE DURING THE FINANCIAL YEAR 2006-07 RELEVANT TO THE IMPUNGED ASSESSMENT YEAR. IT WAS FURTHER OBSERVED BY THE AO THAT SUMMONS U/S 131 WERE ISSUED TO THE ASSESSEE TO KNOW THE ACTUAL POSITION BUT THE ASSESSEE DELIBERATELY AVOIDED THE ATTENDANCE SO THAT FACTUAL POSITION MAY NOT BE UNEARTHED WHICH ALSO PROVED THAT ASSESSEE HAS ACCEPTED THE FINDINGS POINTED OUT BY HIM. IT WAS FURTHER OBSERVED BY THE AO THAT FROM THE FACTS AND CIRCUMSTANCES REVEALED ON THE BASIS OF FIELD ENQUIRY, IT HAS BEEN ESTABLISHED THAT ABOVE INVESTMENT/EXPENDITURE HAS BEEN MADE/INCURRED BY THE ASSESSEE DURING THE F.Y 2006-07 PERTAINING TO A.Y 2007-08 AND AS SOURCE OF THE SAID ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 6 INVESTMENT WAS NOT EXPLAINED BY THE ASSESSEE, THE SAME WAS TREATED AS UNEXPLAINED SOURCE OF INCOME FOR THE YEAR UNDER CONSIDERATION. 12. FURTHER, THE AO REFERRED TO THE VALUATION REPORT DATED 23.01.2015 WHEREIN THE VALUATION OFFICER HAS ESTIMATED THE COST OF THE CONSTRUCTION FOR FY 2006-07 AT RS. 1,14,75,402/- AND GIVEN THAT THE ADDITION ON SIMILAR ACCOUNT WAS MADE IN THE HANDS OF THE HUSBAND OF THE ASSESSEE, SHRI RAMESHWAR LAL KUMAWAT FOR AY 2006-07, THE ADDITION WAS MADE IN THE HANDS OF THE ASSESSEE ON PROTECTIVE BASIS FOR THE IMPUNGED ASSESSMENT YEAR 2007-08. IT WAS FURTHER HELD BY THE AO THE ASSESSEE WAS PROVIDED A COPY OF THE VALUATION REPORT FOR FILING HER OBJECTIONS/EXPLANATION AND AS ASSESSEE HAS NOT FILED ANY EXPLANATION OR RAISED ANY OBJECTION, IT WAS ASSUMED THAT THE ASSESSEE DOES NOT DISPUTE THE VALUATION SO MADE BY THE VALUATION OFFICER IN TERMS OF INVESTMENT IN CONSTRUCTION OF THE SAID BUILDING. 13. FROM A CLOSE READING OF THE ASSESSMENT ORDER, AS WE HAVE NOTED ABOVE, WHAT EMERGES IS THAT BASED ON REVIEW OF THE ASSESSEES STATEMENT OF AFFAIRS FOR THE FY 2005-06 AND FY 2006-07 WHEREIN ONLY INVESTMENT IN LAND HAS BEEN DISCLOSED AND BASIS THE FIELD ENQUIRY CONDUCTED BY THE ASSESSING OFFICER, THE AO HAS COME TO A CONCLUSION THAT THE INVESTMENT/EXPENDITURE IN THE CONSTRUCTION OF PAWAN TOWER HAS BEEN MADE DURING THE F.Y 2006-07. 14. THE AO HAS ALSO RELIED ON THE VALUATION REPORT WHEREIN FOR THE FY 2006-07, THE COST OF INVESTMENT HAS BEEN WORKED BY THE VALUATION OFFICER AT RS 1,14,75,402. HERE IT WOULD BE RELEVANT TO REFER TO THE REPORT OF THE VALUATION OFFICER DATED 23.01.2015 WHICH IS AVAILABLE AT APB PAGES 43 TO 56. IN THE VALUATION REPORT, THE VALUATION OFFICER HAS ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 7 STATED THAT AS PER LETTER OF ITO WARD- 2(4), THE YEAR OF CONSTRUCTION OF PROPERTY HAS BEEN CONSIDERED AS FY 2006-07. FURTHER, AT PAGE NO. 56 OF APB WHICH IS COST CALCULATION SHEET AND PART OF THE VALUATION REPORT, THE CONTENTS THEREOF READS AS UNDER:- PERIOD OF CONSTRUCTION 01.04.2006 TO 31.03.2007 (ASSUMED) APPROVED COST INDEX OF YEAR 2006 = 213 APPROVED COST INDEX OF YEAR 2007= 237 AS PER AOS REFERENCE LETTER, AO HAS INFORMED DATE OF INAUGURATION AS DUSEHERA 2006 AND YEAR OF CONSTRUCTION DURING 2006-07, IT IS PRESUMED THAT CONSTRUCTION WAS COMPLETED BY 31.03.2007. COST INDEX FOR PERIOD OF 01.04.2006 TO 31.12.2006= 213 X 0.75 159.75 COST INDEX FOR PERIOD OF 01.01.2007 TO 31.03.2007 = 237 X 0.25 59.25 WEIGHTED AVERAGE COST INDEX = 219 THE ABOVE WEIGHTED AVERAGE COST INDEX HAS BEEN USED TO DETERMINE THE FINAL VALUATION OF RS 1,14,75,402 WHICH REMAINED UNCHALLENGED BEFORE THE LOWER AUTHORITIES AND EVEN BEFORE US. FURTHER, IT IS NOTED THAT THE VALUATION WAS REQUIRED BY THE ITO FOR THE PERIOD 01.04.2006 TO 31.03.2007 AND THE INSPECTION WAS CARRIED OUT ON 16.12.2014 IN PRESENCE OF SHRI RAMESHWAR LAL KUMAWAT, THE HUSBAND OF THE ASSESSEE. BASIS SUCH INSPECTION, THE VALUATION OFFICER HAS DETERMINED 1185.58 SQ. MTR OF CONSTRUCTED AREA ON LAND MEASURING 400 SQ. YARDS ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 8 CONSISTING OF BASEMENT, GROUND FLOOR AND FOUR FLOORS IN RCC FRAMED STRUCTURE BUILDING AND DETERMINED TOTAL VALUE OF CONSTRUCTED BUILDING AT RS. 1,14,75,042/-. 15. ON CLOSE READING OF THE SAID VALUATION REPORT, AS WE HAVE NOTED ABOVE, AS ON THE DATE OF VALUATION WHICH IS 16.12.2014, IT IS NOT IN DISPUTE THAT THERE IS A FULLY CONSTRUCTED BUILDING WITH BASEMENT, GROUND AND 4 FLOORS HAVING A TOTAL CONSTRUCTED AREA OF 1185.58 SQ. MTR. HOWEVER, AS FAR AS THE YEAR OF CONSTRUCTION OF THE SAID BUILDING IS CONCERNED, THE VALUATION OFFICER HAS STATED THAT THE PERIOD OF CONSTRUCTION HAS BEEN TAKEN AS 01.04.2006 TO 31.03.2007 AS PER AOS LETTER NO. 342 DATED 26.06.2014. THEREFORE, THE VALUATION REPORT CONFIRMS THE FACT OF FULLY CONSTRUCTED BUILDING CONSISTING OF BASEMENT, GROUND AND 4 FLOORS HAVING A TOTAL CONSTRUCTED AREA OF 1185.58 SQ. MTR. AND THE ESTIMATED COST OF CONSTRUCTION/INVESTMENT AMOUNTING TO RS 1,14,75,402 AND AS FAR AS THE YEAR OF CONSTRUCTION OF THE SAID BUILDING IS CONCERNED, THE SAME HAS BEEN CONSIDERED BY THE VALUATION OFFICER AS 01.04.2006 TO 31.03.2007 BASED ON COMMUNICATION RECEIVED FROM THE AO WHICH TALKS ABOUT THE INAUGURATION OF THE BUILDING AROUND THE FESTIVAL OF DUSEHERA. IT IS ALSO A FACT THAT THE ASSESSEE WAS PROVIDED ADEQUATE OPPORTUNITY AT THE TIME WHEN THE VALUATION OFFICER ISSUED NOTICE TO THE ASSESSEE U/S 142A DATED 15.07.2014, SUBSEQUENTLY AT THE TIME OF INSPECTION ON 16.12.2014 WHERE THE ASSESSEES HUSBAND AND REPRESENTATIVE WAS PRESENT AND SUBSEQUENTLY, AFTER THE VALUATION REPORT WAS FINALIZED AND A COPY THEREOF SENT TO THE ASSESSEE. WE FIND THAT ON NONE OF THE OCCASIONS, THE ASSESSEE HAS RAISED OR FILED ANY OBJECTION OR SUBMITTED ANY EXPLANATION/SUBMISSION CONTROVERTING THE CONSTRUCTED AREA OF THE BUILDING, THE VALUATION SO DETERMINED BY THE ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 9 VALUATION OFFICER AND THE YEAR OF CONSTRUCTION SO CONSIDERED BY THE VALUATION OFFICER. HERE, IT IS ALSO RELEVANT TO NOTE THAT THE VALUATION SO DETERMINED BY THE VALUATION OFFICER HAS CONSIDERED COST INDEX FOR PERIOD OF 01.04.2006 TO 31.12.2006 AND COST INDEX FOR PERIOD OF 01.01.2007 TO 31.03.2007 AND BASIS THAT, HE HAS DETERMINED WEIGHTED AVERAGE COST INDEX FOR 2006-07 WHICH IS THEN USED TO WORK OUT THE VALUE OF INVESTMENT IN THE BUILDING. HAVING NOT CONTESTED THE VALUATION SO DETERMINED, THE ASSESSEE HAS THUS NOT CONTESTED THE YEAR OF CONSTRUCTION AS FINANCIAL YEAR 2006-07 WHICH HAS BEEN CONSIDERED BY THE VALUATION OFFICER AND FINALLY BY THE ASSESSING OFFICER. 16. WE NOW REFER TO THE APPELLATE PROCEEDINGS BEFORE THE LD CIT(A) WHEREIN THE ASSESSEE HAS AGAIN NOT FILED ANY WRITTEN SUBMISSION/EXPLANATIONS OR CONTESTED THE VALUATION REPORT. THE LD. CIT(A) HAS HOWEVER, RELIED ON THE SUBMISSIONS FILED IN THE CASE OF HUSBAND OF THE ASSESSEE, SHRI RAMESHWAR LAL KUMAWAT WHERE A SIMILAR ADDITION HAS BEEN MADE ON SUBSTANTIVE BASIS AND REFERRING TO THE SUBMISSION SO FILED THEREIN WHEREIN IT WAS SUBMITTED BY SHRI RAMESHWAR LAL KUMAWAT THAT THE INVESTMENT IN PAWAN TOWER WAS MADE PRIOR TO FY 2005-06 WHICH IS ALSO PROVED BY A COURT ORDER DATED 16.04.2008 WHERE THE COURT HAS ACCEPTED THAT TILL FY 2005-06, ONLY REPAIR WORK WAS CARRIED OUT AND NOT ANY CONSTRUCTION WORK, THE LD. CIT(A) HAS NEGATED THE SAID CONTENTIONS AND GIVEN HIS FINDINGS WHICH ARE REPRODUCED AS UNDER:- (IV) SHRI RAMESHWAR LAL KUMAWAT IN ITS WRITTEN SUBMISSIONS, AS REPRODUCED ABOVE HAS REFERRED TO A COURT DECISION. I HAVE GONE THROUGH THE ABOVE REFERRED ORDER DATED 16.04.2008 OF ADDL. CIVIL ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 10 JUDGE, JAIPUR. IT MAY BE MENTIONED THAT ON PAGE NO. 06 OF THE ORDER DATED 16.04.2008 OF ADDL. CIVIL JUDGE, JAIPUR, ON BEHALF OF SMT. BADAMI DEVI, IT WAS SUBMITTED BY SHRI RAMESHWAR LAL KUMAWAT THAT: O K N X Z L R I Y K W V D H D K S B Z J F T L V H U G H D J O K ; H X ; H G S A C N K E N S O H } K J K T C O K N X Z L R I Y K W V [KJHN FD;K X;K FKK RC MLS HKWRY IJ 4 NQDKUSA] IHNS 3 DEJS CUS GQ, FKS RFKK MIJ 3 EAFTYS CUH GQBZ FKHA OKNXZLR IYKWV ESA VKXS O IHNS LSV CSD NKSM+K GQVK GSA (V) THUS, IT WAS CLAIMED BEFORE THE ADDL. CIVIL JUDGE THAT THE PROPERTY UNDER CONSIDERATION WAS CONSISTING OF 4 SHOPS AND 3 ROOMS ON THE FIRST FLOOR AND THREE STORIES WERE ALSO CONSTRUCTED THEREUPON. IT MAY BE MENTIONED THAT AS PER THE AGREEMENT TO SELL DATED 08.08.2004, ONLY FOUR SHOPS AND SOME RESIDENTIAL PORTION WAS CONSTRUCTED THEREON, AND TOTAL CONSTRUCTED AREA WAS NOT MENTIONED THEREIN, WHEREAS AS PER THE VALUATION REPORT DATED 23.01.2015 OF THE VALUATION OFFICER, THE PAWAN TOWER WAS CONSISTING OF BASEMENT, GROUND FLOOR AND FOUR STORIES UPON GROUND FLOOR AS PER THE FOLLOWING DETAILS: S. NO. DESCRIPTION QUANTITY (IN SQM) RATE (RS./SQM) AMOUNT (RS.) A RCC FRAMED STRUCTURE BUILDING 1. BASEMENT FLOOR (FLOOR HEIGHT 3.27 METERS) 222.74 9872 2192229 ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 11 2. GROUND FLO OR 222.74 7827 1743386 3. FIRST FLOOR 238.70 7045 1681642 4. SECOND FLOOR 238.70 7047 1681642 5. THIRD FLOOR 238.70 7827 1868305 6. FOURTH FLOOR 24.00 7052 169248 (VI) FURTHER, THE PROVISION WAS ALSO MADE FOR INSTALLATION OF A LIFT THEREOF. IT IS DIFFICULT TO IMAGINE THAT ON THE LAND ADMEASURING 400 SQUARE YARDS WITH 4 SHOPS AND 3 ROOMS CONSTRUCTED ON THE GROUND FLOOR AND THREE FLOOR CONSTRUCTED THEREUPON, HOW THE APPELLANT HAS CONSTRUCTED A BASEMENT HAVING HEIGHT OF 3.27 METERS AND FLOORS OF ALMOST THE SAME SIZE ON GROUND FLOOR AND HIGHER FLOORS WERE CONSTRUCTED WITHOUT DEMOLISHING THE ENTIRE EXISTING STRUCTURE AND THAT TOO WITH A PROVISION FOR LIFT ALSO. FURTHER, HOW THE FOURTH FLOOR HAS COME INTO EXISTENCE, NO EXPLANATION HAS BEEN SUBMITTED. IT MAY BE MENTIONED THAT THE APPELLANT HAS NOT CO-OPERATED WITH THE VALUATION OFFICER IN THE VALUATION PROCEEDINGS. (VII) SHRI RAMESHWAR LAL KUMAWAT HAS RELIED UPON THE ABOVE REFERRED ORDER OF ADDL. CIVIL JUDGE, JAIPUR AND STATED THAT DURING THE FY 2005-06 ONLY RENOVATION WORK WAS DONE AND NO CONSTRUCTION WAS MADE IN PAWAN TOWER. IT MAY BE MENTIONED THAT THE CIVIL SUIT WAS FILED BY THE APPELLANT BEFORE THE ADDL. CIVIL JUDGE, JAIPUR FOR ISSUE OF RESTRAINT ORDER TO THE JAIPUR NAGAR NIGAM NIGAM FOR NOT DEMOLISHING THE RENOVATION WORK DONE BY ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 12 THE APPELLANT IN PAWAN TOWER. IT MAY BE MENTIONED THAT THE ADDL. CIVIL JUDGE ISSUED THE RESTRAINT ORDER FOR NOT DEMOLISHING THE WORK AT PAWAN TOWER AS IT WAS NOT PROVED THAT THE SAID BUILDING WAS UNAUTHORIZELY OCCUPIED/ CONSTRUCTED ON THE GOVERNMENT LAND BY THE APPELLANT AND NOT FOR DETERMINATION OF WHETHER ANY CONSTRUCTION OR RENOVATION WORK WAS BEING CARRIED OUT BY THE APPELLANT DURING THE FY 2005-06. IT WOULD BE APPROPRIATE TO REPRODUCE THE ORDER OF ADDL. CIVIL JUDGE, JAIPUR AS UNDER:- VR% OKN OKNUH JHEFR CNKE DQEKOR FO:} IZFROKNH E; [KPKZ FCH FD;K TKDJ IZFROKNH UXJ FUXE DS TFJ;S LFKK;H FU'KS/KKKK LS IKCUN FD;K TKRK GS FD IZFROKNH UXJ FUXE OKNXZLR LAIFK FTLDK FOOJ.K OKNI= OKNI= DS ISJK LA[;K 2 ESA OF.KZR GS] DS LA CA/K ESA FOF/KD IZF;K VIUK;S CXSJ FDLH IZDKJ DH RKSMQKSM DH DK;ZOKGH U DJS VKSJ U GH OKNUH DS MI;KSX&MIHKKSX ESA FDLH IZDKJ DH DKSBZ CK/KK DJSA IPKZ FCH RNUQLKJ CUK;H TKOSA (VIII) THE STATEMENT OF AFFAIRS OF THE APPELLANT FOR THE YEAR ENDING ON 31.03.2006 HAS ALREADY BEEN REPRODUCED EARLIER IN THIS ORDER WHEREIN THE APPELLANT HAS SHOWN INVESTMENT IN LAND AT RS. 15 LAC WHICH MEANS THAT THE PAWAN TOWER WAS NOT CONSTRUCTED DURING F.Y 2005-06. THUS, IN VIEW OF THE ABOVE DISCUSSION, IT IS HELD THAT THE APPELLANT HAS CONSTRUCTED, AN ENTIRELY NEW BUILDING, KNOWN AS PAWAN TOWER DURING THE FY 2006-07 I.E. THE YEAR UNDER CONSIDERATION. FURTHER, IN ITS GROUND OF APPEAL, THE APPELLANT HAS NOT DISPUTED THE INVESTMENT OF RS. 1,14,75,042/- IN THE BUILDING UNDER CONSIDERATION I.E IT HAS ACCEPTED THE INVESTMENT MADE IN PAWAN TOWER AS ESTIMATED BY THE VALUATION OFFICER. FURTHER, THE APPELLANT HAS NOT FURNISHED ANY EXPLANATION ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 13 REGARDING THE SOURCE OF INVESTMENT THEREOF EITHER AT THE ASSESSMENT STAGE OR AT THE APPELLATE STAGE. THEREFORE, THE ONLY IRRESISTIBLE CONCLUSION IS THAT THE APPELLANT HAS MADE UNEXPLAINED INVESTMENT OF RS. 1,14,75,402/- IN THE CONSTRUCTION OF PAWAN TOWER AND THUS, IT IS HELD THAT THE AO WAS JUSTIFIED IN MAKING ADDITION OF RS. 1,14,75,402/- TO THE INCOME OF THE APPELLANT FOR THE YEAR UNDER CONSIDERATION. HENCE, THE ADDITION OF RS. 1,14,75,042/- MADE BY THE AO IS HEREBY SUSTAINED. THUS, THIS GROUND OF APPEAL IS HEREBY REJECTED. (IX) IT IS NOTED FROM THE GROUND OF APPEAL NO. 2 AND 3 OF THIS APPELLATE ORDER THAT THE AO HAS ENHANCED THE INCOME OF THE APPELLANT FROM HOUSE PROPERTY AND JOB WORK I.E. THE AO HAS ACCEPTED THESE SOURCES OF INCOME OF THE APPELLANT. THEREFORE, I DO NOT AGREE WITH THE FINDINGS OF THE AO THAT THE APPELLANT HAS NO SOURCE OF INCOME. FURTHER, THE APPELLANT HAS DECLARED INVESTMENT IN LAND AT RS. 15 LAC IN ITS STATEMENT OF AFFAIRS FOR THE YEAR ENDING ON 31.03.2006. THE AO HAS NOT BROUGHT ON RECORD ANY MATERIAL OR EVIDENCE TO SUBSTANTIATE ITS FINDINGS THAT THE INVESTMENT IN THE CONSTRUCTION OF PAWAN TOWER WAS ACTUALLY MADE BY THE HUSBAND OF THE APPELLANT. THEREFORE, I DO NOT FIND ANY REASON TO AGREE WITH THE FINDINGS OF THE AO THAT THE INVESTMENT IN THE CONSTRUCTION OF PAWAN TOWER WAS MADE BY SHRI RAMESHWAR LAL KUMAWAT, THE HUSBAND OF THE APPELLANT AND NOT BY THE APPELLANT HERSELF. (X) THEREFORE, IN VIEW OF THE ABOVE DISCUSSION, THE ADDITION OF RS. 1,14,75,042/- MADE BY THE AO IN THE HANDS OF THE APPELLANT ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 14 ON PROTECTIVE BASIS IS ACCORDINGLY MODIFIED TO BE MADE ON SUBSTANTIVE BASIS IN THE HANDS OF THE APPELLANT. 17. DURING THE COURSE OF HEARING, THE LD. AR SUBMITTED THAT THERE IS NO DISPUTE AS TO THE FACT THAT ASSESSEE PURCHASED THE PROPERTY UNDER CONSIDERATION AS PER AGREEMENT TO SALE DT. 08.08.2004. AS PER THE AGREEMENT, 4 SHOPS, RESIDENTIAL BUILDING AND BOUNDARY WALL WAS EXISTING ON THE PLOT OF LAND. THOUGH THE AREA OF CONSTRUCTION AND NUMBER OF FLOORS COMPRISED IN THE RESIDENTIAL BUILDING IS NOT MENTION BUT NO EVIDENCE IS OTHERWISE BROUGHT ON RECORD BY THE LOWER AUTHORITIES THAT THE PROPERTY COMPRISING OF NUMBER OF FLOORS WAS NOT IN EXISTENCE AT THE TIME OF PURCHASE OF THE PROPERTY. 18. IT WAS SUBMITTED THAT THE FACT THAT NUMBER OF FLOORS WAS CONSTRUCTED ON THE SAID PROPERTY AT THE TIME OF ITS PURCHASE IS EVIDENT FROM THE ORDER OF ADDITIONAL CIVIL JUDGE, JAIPUR DT. 16.04.2008 WHEREIN THE FACTS RELATING TO THE CASE HAS BEEN NARRATED. IN FACT THE ASSESSEE WAS CARRYING OUT CERTAIN REPAIR/RENOVATION WORK ON THE SAID PROPERTY BUT THE OFFICERS OF JAIPUR NAGAR NIGAM ON 12.01.2006 THREATENED TO DEMOLISH THE WORK AND PASSED A RESTRAINED ORDER TO CARRY OUT ANY WORK. AGAINST THIS ORDER, ASSESSEE FILED AN APPEAL BEFORE ADDITIONAL CIVIL JUDGE, JAIPUR ON 17.01.2006 FOR VACATING THE RESTRAINED ORDER. AT PG 4 OF THIS ORDER, IT IS SPECIFICALLY MENTIONED THAT AT THE TIME OF PURCHASE, THE GROUND FLOOR, 4 SHOPS AND 3 ROOMS AT THE BACK OF THESE SHOPS AND 3 STORIES ON IT WERE CONSTRUCTED. SHE HAS NOT CARRIED OUT ANY NEW CONSTRUCTION AFTER 2004 BUT ONLY REPAIR WAS BEING CARRIED OUT. CONSIDERING THESE FACTS, THE ADDITIONAL CIVIL JUDGE, JAIPUR VIDE ITS ORDER DT. 16.04.2008 DIRECTED NAGAR NIGAM NOT TO TAKE ANY ACTION FOR ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 15 DEMOLITION AND RESTRAINED THE APPLICANT FROM USING THE PROPERTY. FROM THIS ORDER IT IS EVIDENT THAT ASSESSEE HAS NOT CARRIED OUT ANY CONSTRUCTION ON THE PROPERTY BETWEEN 12.01.2006 TO 16.04.2008. 19. IT WAS SUBMITTED THAT THE LD. CIT(A) ONLY ON THE BASIS OF REPORT OF DVO HAS ASSUMED THAT ASSESSEE HAS CONSTRUCTED ALTOGETHER NEW PROPERTY AFTER DEMOLISHING THE EXISTING STRUCTURE DURING FY 2006-07 WHEREAS THE ORDER OF ADDITIONAL CIVIL JUDGE, JAIPUR PROVES BEYOND DOUBT THAT DURING THIS PERIOD, NO CONSTRUCTION WAS CARRIED OUT BY THE ASSESSEE. IN FACT AFTER PURCHASE OF THE PROPERTY ON 06.08.2004, ASSESSEE DID CARRIED OUT SOME REPAIR/ RENOVATION WORK BUT THE OFFICERS OF NAGAR NIGAM CONSIDERED THE SAME TO BE NEW CONSTRUCTION AND THREATENED TO DEMOLISH THE SAME. THIS PROVES THAT IF ANY CONSTRUCTION WAS CARRIED OUT, THE SAME WAS IN THE FY 2005-06 RELEVANT TO AY 2006-07 AND NOT IN THE YEAR UNDER CONSIDERATION. 20. IT WAS SUBMITTED THAT FROM THE ABOVE EVIDENCE, IT IS EVIDENT THAT THERE IS NO BASIS WITH THE AO TO REFER THE MATTER OF DETERMINATION OF COST OF CONSTRUCTION OF THE PROPERTY TO THE DVO AS PERTAINING TO FY 2006-07. THUS, THE VALUATION MADE BY DVO FOR FY 2006-07 IS WITHOUT BASIS MORE PARTICULARLY WHEN THE AO OF SH. RAMESHWARLAL KUMAWAT, HUSBAND OF THE ASSESSEE HAS CONSIDERED THE ALLEGED CONSTRUCTION AS PERTAINING TO FY 2005-06 AND THUS MADE ADDITION IN HIS CASE IN AY 2006-07. 21. IT WAS SUBMITTED THAT THE VARIOUS OBSERVATIONS MADE BY THE LD. CIT(A) FOR CONSIDERING THE ENTIRE CONSTRUCTION AS NEW CONSTRUCTION ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 16 BASED ON THE REPORT OF DVO IS ONLY ON SURMISED AND CONJECTURES. FROM THE ORDER OF ADDITIONAL CIVIL JUDGE, JAIPUR, IT IS CLEAR THAT AT THE TIME OF PURCHASE, THE PROPERTY COMPRISES OF GROUND FLOOR AND 3 STORIES THEREON. EVEN AS PER THE DVO REPORT THERE IS ONLY A CONSTRUCTION OF 24 SQ. MT. ON THE FOURTH FLOOR. SO FAR AS BASEMENT IS CONCERNED, THAT WAS ALREADY IN EXISTENCE AT THE TIME OF PURCHASE OF PROPERTY THOUGH NOT SPECIFICALLY MENTIONED IN THE SALE AGREEMENT AS THE SAME WAS NEITHER IN THE FORM OF SHOP OR RESIDENTIAL CONSTRUCTION AND FOR THIS REASON IT IS NOT SPECIFIED BEFORE THE ADDITIONAL CIVIL JUDGE, JAIPUR. HIS FURTHER OBSERVATION THAT THE ORDER OF ADDITIONAL CIVIL JUDGE, JAIPUR WAS FOR LIFTING THE RESTRAINED ORDER FOR NOT DEMOLISHING THE WORK AND NOT FOR DETERMINATION OF WHEN CONSTRUCTION/ RENOVATION WORK WAS CARRIED OUT WAS MISPLACED IN AS MUCH AS WHEN THE ASSESSEE BECAUSE OF THE RESTRAINED ORDER WAS NOT IN A POSITION TO CARRY OUT ANY CONSTRUCTION WORK IN FY 2006-07, THEN HOW IT CAN BE ASSUMED THAT SUCH CONSTRUCTION WAS CARRIED OUT DURING FY 2006- 07. HIS FURTHER OBSERVATION THAT ASSESSEE HAS NOT DISPUTED THE INVESTMENT OF RS.1,14,75,042/- IN THE BUILDING UNDER CONSTRUCTION IS ALSO INCORRECT IN AS MUCH AS THE HUSBAND OF ASSESSEE HAS CATEGORICALLY STATED IN HIS SUBMISSION THAT INVESTMENT IS MADE PRIOR TO FY 2005-06 AS PROVED FROM THE COURT ORDER WHERE IT HAS BEEN ACCEPTED THAT DURING FY 2005-06 ONLY REPAIR WORK WAS CARRIED OUT AND NOT ANY CONSTRUCTION WORK. IN VIEW OF THE ABOVE EVIDENCES, IT IS PROVED BEYOND DOUBT THAT ASSESSEE HAS NOT MADE ANY CONSTRUCTION ON THE SAID PROPERTY DURING AY 2007-08 AND ANY RENOVATION WORK MADE THEREON PERTAIN TO AY 2006-07, THE ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 17 ADDITION MADE BY THE AO AND CONFIRMED BY LD. CIT(A) BE DIRECTED TO BE DELETED. 22. IN VIEW OF THE FINDINGS OF THE LD CIT(A) AND THE LD ARS SUBMISSION, TWO DOCUMENTS IN FORM OF AGREEMENT TO SELL DATED 8.8.2004 BY VIRTUE OF WHICH THE ASSESSEE PURCHASE THE SUBJECT PROPERTY AND THE ORDER OF ADDITIONAL CIVIL JUDGE DATED 16.04.2008 HAS BEEN RELIED UPON BY BOTH THE PARTIES IN SUPPORT OF THEIR RESPECTIVE CONTENTIONS. IT WOULD THEREFORE BE RELEVANT TO EXAMINE THESE TWO DOCUMENTS TO DETERMINE WHETHER THEY THROW ANY LIGHT ON THE YEAR OF CONSTRUCTION OF THE SUBJECT BUILDING PAWAN TOWERS. 23. WE HAVE PURUSED THE AGREEMENT TO SELL DATED 8.8.2004 SIGNED BETWEEN THE SELLER AND THE ASSESSEE WHICH IS AVAILABLE AT APB PAGES 25- 28 AND IT TALKS ABOUT PLOT OF LAND MEASURING 400 SQ MTS HAVING RESIDENTIAL BUILDING, 4 SHOPS AND BOUNDARY WALL. THERE IS NO DESCRIPTION OF TOTAL CONSTRUCTED AREA OF THE RESIDENTIAL BUILDING, NO. OF THE FLOORS, ETC. THE REPORT OF THE DVO, BASED ON INSPECTION PHYSICALLY CARRIED OUT ON 16.12.2014, HOWEVER IS MORE SPECIFIC AND TALKS ABOUT TOTAL CONSTRUCTED AREA OF 1185.58 SQ. MT HAVING BASEMENT, GROUND AND FOUR FLOORS AND IT DOESNT TALK ABOUT FOUR SHOPS. 24. WE HAVE ALSO GONE THROUGH THE STAY ORDER PASSED BY THE LD. ADDITIONAL CIVIL JUDGE ON PETITION FILED BY THE ASSESSEE AGAINST JAIPUR NAGAR NIGAM DATED 16.04.2008. IN ITS PETITION DATED 17.01.2006, THE ASSESSEE HAS SUBMITTED THAT OFFICIALS OF THE JAIPUR NAGAR NIGAM HAVE THREATENED TO STOP THE REPAIR WORK BEING CARRIED OUT AT HER OLD ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 18 CONSTRUCTED HOUSE AND TO DEMOLISH THE SAID HOUSE AND HAS THUS REQUESTED FOR STAY ORDER AGAINST ANY SUCH ACTION BY THE JAIPUR NAGAR NIGAM. IN REPLY TO THE APPELLANTS PETITION, THE RESPONDENT, JAIPUR NAGAR NIGAM IN ITS WRITTEN SUBMISSION HAS STATED THAT WRONG FACTS HAVE BEEN STATED BY THE APPELLANT IN HER PETITION. IT WAS FURTHER STATED BY THE RESPONDENT THAT IT IS A GOVERNMENT LAND ON WHICH SHOPS ARE BEING CONSTRUCTED ILLEGALLY BY THE APPELLANT. IT WAS STATED BY THE RESPONDENT THAT SINCE THE LAND HAS BEEN ILLEGALLY OCCUPIED AND ILLEGAL CONSTRUCTION ACTIVITY BEING CARRIED OUT BY THE APPELLANT, NECESSARY ACTION HAS BEEN TAKEN AS PER RULES AND REGULATIONS AND THE PETITION SO FILED BY THE APPELLANT BE DISMISSED. AFTER HEARING BOTH THE PARTIES, THE LD. ADDITIONAL CIVIL JUDGE HELD THAT IT IS A UNDISPUTED FACT THAT THE APPELLANT HAS THE PHYSICAL POSSESSION OVER THE DISPUTED PROPERTY AND AS PER SECTION 110 OF THE INDIAN EVIDENCE ACT, THE ONUS IS ON THE RESPONDENT TO PROVE THAT THE OWNERSHIP OVER THE SAID DISPUTED PROPERTY IS OF THE GOVERNMENT AND NOT OF THE APPELLANT. HOWEVER, IN ABSENCE OF ANY COMMUNICATION FROM THE JAIPUR DEVELOPMENT AUTHORITY OR ANY GOVERNMENT RECORD, THE RESPONDENT HAS FAILED TO DISCHARGE THE NECESSARY ONUS PLACED ON IT WHICH PROVES THAT THE SUBJECT DISPUTED PROPERTY BELONGS TO THE GOVERNMENT. IT WAS FURTHER HELD THAT GIVEN THAT THE PHYSICAL POSSESSION OVER THE DISPUTED PROPERTY IS WITH THE APPELLANT, IT IS A SETTLED PRINCIPLE THAT WHERE A PERSON CLAIMS OWNERSHIP OVER THE IMMOVEABLE PROPERTY EVEN WHERE HE IS ILLEGALLY OCCUPYING THE SAID PROPERTY, IT IS ONLY BY FOLLOWING A LEGAL PROCESS THAT HE CAN BE REMOVED AND ASKED TO VACATE THE PROPERTY. IT WAS FURTHER HELD THAT WITHOUT FOLLOWING THE LEGAL PROCESS, THE RESPONDENT DOESNT HAVE A RIGHT ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 19 TO DEMOLISH THE SUBJECT DISPUTED PROPERTY AND TO INTERFERE IN APPELLANT RIGHT TO PEACEFUL USE OF THE SAID PROPERTY. 25. WE THUS FIND THAT THERE IS NO FINDING GIVEN BY THE LD. ADDITIONAL CIVIL JUDGE IN TERMS OF THE NATURE OF THE CONSTRUCTION BEING CARRIED OUT ON 12.1.2006 WHEN THE EMPLOYEES OF THE RESPONDENT VISITED THE APPELLANTS PREMISES OR AT THE TIME OF MOVING THE PETITION BY THE APPELLANT ON 17.01.2006 EITHER IN TERM OF REPAIR/RENOVATION WORK OF OLD RESIDENTIAL BUILDING AS CLAIMED BY THE APPELLANT OR COMMERCIAL ACTIVITIES IN TERMS OF CONSTRUCTION OF SHOPS AS CLAIMED BY THE RESPONDENT. THE WHOLE DISCUSSION BY AND THE FINDINGS OF THE LD. ADDITIONAL CIVIL JUDGE IS REGARDING THE OWNERSHIP OVER THE SAID DISPUTED PROPERTY WHETHER BELONGING TO THE APPELLANT OR TO THE GOVERNMENT. SINCE THE PHYSICAL POSSESSION WAS WITH THE APPELLANT, AND THE RESPONDENT FAILED TO PROVE THE GOVERNMENT OWNERSHIP, IT WAS HELD THAT THE RESPONDENT HAVE TO FOLLOW THE DUE PROCESS OF LAW TO GET THE DISPUTED PROPERTY VACATED AND TILL THEN, STAY WAS GRANTED AGAINST ANY DEMOLITION OR PEACEFUL OCCUPATION AND USE OF THE SAID PROPERTY. 26. NOW, COMING TO ANOTHER CONTENTION OF THE LD ARS THAT THE ASSESSEE HAS NOT CARRIED OUT ANY CONSTRUCTION ON THE PROPERTY BETWEEN 12.01.2006, THE TIME OF MOVING THE PETITION BEFORE THE THE LD. ADDITIONAL CIVIL JUDGE FOR OBTAINING THE STAY ORDER AGAINST THE RESPONDENT, AND THE DATE OF PASSING OF THE STAY ORDER ON 16.04.2008, WE FIND THAT FIRSTLY, THERE IS NO RESTRAINED ORDER AGAINST CARRYING ANY CONSTRUCTION/REPAIR ISSUED BY THE RESPONDENT, JAIPUR NAGAR NIGAM, WHICH IS AVAILABLE ON RECORD, RATHER WHAT WE FIND IS THAT THERE WAS THREAT PERCEPTION, AS ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 20 APPARENT FROM THE APPELLANTS PETITION, FROM THE OFFICIALS OF THE JAIPUR NAGAR NIGAM AGAINST WHICH THE APPELLANT MOVED THE SUBJECT STAY PETITION. SECONDLY, THERE IS NOTHING ON RECORD IN TERMS OF INTERIM STAY ORDER, AS TO NOT CARRY ON ANY CONSTRUCTION ACTIVITY, ISSUED BY LD. ADDITIONAL CIVIL JUDGE TILL DISPOSAL OF THE STAY PETITION. THEREFORE, BASED ON FACTS ON RECORD, WE ARE UNABLE TO ACCEDE TO THE CONTENTION OF THE LD AR THAT THE ASSESSEE HAS NOT CARRIED OUT ANY CONSTRUCTION ON THE PROPERTY BETWEEN 12.01.2006 AND 16.04.2008 AND MORE PARTICULARLY, DURING THE FINANCIAL YEAR 2006-07. 27. IN LIGHT OF ABOVE DISCUSSIONS AND IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSEE HAVING FAILED TO OFFER ANY EXPLANATION REGARDING THE SOURCE OF INVESTMENT IN CONSTRUCTION OF THE BUILDING BY THE NAME OF THE PAWAN TOWERS AMOUNTING TO RS 1,14,75,402 DURING THE FINANCIAL YEAR 2006-07 RELEVANT TO IMPUNGED ASSESSMENT YEAR, THE ADDITION MADE BY THE ASSESSING OFFICER AS SO CONFIRMED BY THE LD CIT(A) IS HEREBY SUSTAINED. IN THE RESULT, GROUND NO. 4 OF ASSESSEES APPEAL IS DISMISSED. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15/01/2018. SD/- SD/- FOT; IKWY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER ITA NO. 148/JP/2017 SMT. BADAMI DEVI KUMAWAT VS. ITO, JAIPUR 21 TK;IQJ@ JAIPUR FNUKAD@ DATED:- 15/01/2018 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SMT. BADAMI DEVI KUMAWAT, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD 2(5), I.T. DEPTT. JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 148/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR