Mrs. Suvina Krupal, Somwarpet V. ITO, Madikeri

ITA 336/BANG/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89995 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-04-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 11-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR P K SRIHARI
• Assessee Lawyers: K Y NINGOJI RAO
• Keywords: Unexplained investment
• Section: 143(3); 133A; 234B; 147; 148; 6; 10; 2; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B BEFORE SHRI N.V. VASUDEVAN , JUDICIAL MEMBER AND SHRI JASON P. BOAZ, ACCOUNTANT MEMBER I.T.A. NO S . 336 & 337 /BANG/201 4 (ASSESSMENT YEAR S : 20 03 - 04 & 2004 - 05 ) M RS. SUVINA KRUPAL, NO.78, SY.NO.1 75/6, NEAR ANJANEYA TEMPLE IB ROAD, SOMAWARPET - 571236 KODAGU DISTRICT. PAN AARPK 5648P VS. INCOME TAX OFFICER, WARD 1, MADIKERI. APPELLANT RESPONDENT. APPELLANT BY : SHRI K.Y. NINGOJI RAO , CA. RESPONDENT BY : DR.P.K. SRIHARI, ADDL. CIT (D.R.) DATE OF H EARING : 27.4.2015. DATE OF P RONOUNCEMENT : 29.6. 201 5 . O R D E R PER SHRI JASON P. BOAZ, A.M. : TH ESE AR E TWO APPEAL S BY THE ASSESSEE DIRECTED AGAINST THE COMMON ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), MYSO RE DT. 27.8.2013 FOR ASSESSMENT YEAR S 2003 - 04 AND 2004 - 05. AS THE ISSUES INVOLVED AND THE GROUNDS OF APPEAL RAI SED IN BOTH APPEALS ARE IDENTICA L, BOTH THE APPEALS ARE HEARD AND DISPOSED OFF BY WAY OF THIS COMMON ORDER. 2. THE FACTS OF THE CASE, BRIEFLY, ARE AS UNDER : - 2.1 IN THE COURSE OF SURVEY ACTION UNDER SECTION 133A OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') AT THE ASSESSEE'S PREMISES, IT CAME TO THE KNOWLEDGE OF THE ASSESSING 2 ITA NO S . 336 & 337/ BANG/ 2014 OFFICER THAT THE ASSESSEE HAD CONSTRUCTED A RESIDENTIAL HOUSE AT SOMWARPET AND THAT THE INVESTMENT IN THE SAID RESIDENTIAL BUILDING HAD NOT BEEN DISCLOSED TO THE I.T. DEPARTMENT. IN THAT FACTUAL MATRIX OF THE MATTER, THE ASSESSING OFFICER INITIATED PROCEEDINGS UNDER SECTION 147 OF THE ACT FOR ASSESSMENT YEAR 2005 - 06, ISSUED NOTICE UNDER SECTION 148 OF THE ACT AND MADE A REFERENCE TO THE DISTRICT VALUATION OFFICER ( DVO ) FOR VALUATION OF THE SAID PROPERTY. THE DVO VALUED THE PROPERTY AT RS.62,45,000. AS THE ASSESSEE COULD EXPLAIN THE SOURCE OF INVESTMENT THEREIN ONLY TO THE EXTENT OF RS.15,52,707, THE ASSESSING OFFICER MADE AN ADDITION OF RS.48,42,501 BEING THE BALANCE UNEXPLAINED PORTION OF THE INVESTMENT IN THE ORDER OF ASSESSMENT FOR ASSESSMENT YEAR 2005 - 06 PASSED UNDER SECTION 143(3) RWS 147 OF THE ACT VIDE ORDER DT.30.12.2008. 2.2 AGGRIEVED BY THE ORDER OF ASSESSMENT FOR ASSESSMENT YEAR 2005 - 06 DT.30.12.2008, THE ASSESSEE CARRIED THE MATTER IN APPE AL BEFORE THE CIT (APPEALS), MYSORE. THE LEARNED CIT (APPEALS) DISPOSED THE ASSESSEE'S APPEAL VIDE ORDER DT.16.3.2011, CONFIRMING THE UNEXPLAINED INVESTMENT OF THE ASSESSEE IN THE RESIDENTIAL BUILDING AT SOMWARPET TO THE EXTENT OF RS.34,46,256 UNDER SECTI ON 69B OF THE ACT. THE LEARNED CIT (APPEALS), HOWEVER, AGREED WITH THE CONTENTION OF THE ASSESSEE THAT THE PROPERTY IN QUESTION WAS CONSTRUCTED OVER A PERIOD OF A FEW YEARS. AFTER EVALUATING THE EVIDENCES PLACED BEFORE H IM , THE LEARNED CIT (APPEALS) HELD THAT THE TOTAL INVESTMENT IN THE PROPERTY NEEDS TO BE SPREAD EQUALLY OVER THREE YEARS NAMELY ASSESSMENT YEARS 2003 - 04 TO 2005 - 06. IN THIS VIEW OF THE MATTER, THE LEARNED CIT (APPEALS) CONFIRMED THE ADDITION OF RS.12,15,417 IN 3 ITA NO S . 336 & 337/ BANG/ 2014 ASSESSMENT YEAR 2005 - 06 AND OBSERVED THAT THE ASSESSING OFFICER IS AT LIBERTY TO TAKE NECESSARY STEPS TO TAX THE REMAINING UNEXPLAINED INVESTMENT IN THE OTHER TWO YEARS. 2.3 IN COMPLIANCE WITH THE ABOVE OBSERVATIONS OF THE LEARNED CIT (APPEALS), THE ASSESSING OFFICER RE - OPENED TH E ASSESSMENT PROCEEDINGS FOR ASSESSMENT YEARS 2003 - 04 AND 200 4 - 05 UNDER SECTION 147 OF THE ACT AND ISSUED NOTICES UNDER SECTION 148 OF THE ACT TO THE ASSESSEE. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE FOR THE SOURCE OF INCOME/INVESTMENT IN THE SA ID RESIDENTIAL BUILDING FOR THE CONCERNED ASSESSMENT YEARS AND AFTER GIVING CREDIT FOR CERTAIN SOURCES, THE ASSESSING OFFICER ASSESSED THE BALANCE AMOUNTS OF RS.1,15,710 FOR ASSESSMENT YEAR 2003 - 04 AND RS.5,13,517 FOR ASSESSMENT YEAR 2004 - 05 AS UNDISCLOSED INVESTMENT IN CONSTRUCTION OF THE RESIDENTIAL PROPERTY AT SOMWARPET. THOSE ORDERS OF ASSESSMENT FOR ASSESSMENT YEARS 2003 - 04 AND 2004 - 05 WERE COMPLETED UNDER SECTION 147 RWS 150 OF THE ACT VIDE ORDERS DT.11.2.2013. 3. AGGRIEVED BY THE ORDERS OF A SSESSMENT FOR ASSESSMENT YEARS 2003 - 04 AND 2004 - 05 DT.11.2.2013, THE ASSESSEE PREFERRED APPEALS BEFORE THE CIT (APPEALS), MYSORE. IN THESE APPEALS, THE ASSESSEE, INTER ALIA, CHALLENGED THE ISSUE OF NOTICES UNDER SECTION 148 OF THE ACT AND THE ASSUMPTION O F JURISDICTION BY THE ASSESSING OFFICER UNDER SECTION 147 OF THE ACT TO ASSESS THE UNDISCLOSED INVESTMENT. THE ASSESSEE ALSO ASSAILED THE ADDITIONS MADE ON MERITS. THE LEARNED CIT (APPEALS) VIDE THE IMPUGNED ORDER DT.27.8.2013 DISMISSED THE ASSESSEE'S A PPEALS FOR BOTH ASSESSMENT YEARS 2003 - 04 AND 2004 - 05 UPHOLDING THE DECISIONS OF THE ASSESSING OFFICER ON BOTH THE ASSUMPTION OF JURISDICTION 4 ITA NO S . 336 & 337/ BANG/ 2014 UNDER SECTION 147 OF THE ACT / ISSUE OF NOTICES UNDER SECTION 148 OF THE ACT , AS WELL AS ON THE MERITS OF THE ADDITI ONS MADE. 4.1 AGGRIEVED BY THE ORDERS OF THE CIT (APPEALS), MYSORE DT.27.8.2013 FOR ASSESSMENT YEARS 2003 - 04 AND 2004 - 05, THE ASSESSEE HAS PREFERRED THESE APPEALS BEFORE THIS TRIBUNAL, RAISING THE FOLLOWING GROUNDS WHICH ARE IDENTICAL EXCEPT FOR GROU ND NO.6 FOR ASSESSMENT YEAR 2003 - 04 WHERE THE ASSESSEE CHALLENGES THE ACTION OF THE ASSESSING OFFICER IN TREATING THE CLAIM OF AGRICULTURAL INCOME OF RS1,38,500 AS NOT ACCEPTABLE AND TAX ING THE SAME AS UNEXPLAINED INCOME. THE ASSESSEE HAS RAISED THE FOLLO WING GROUNDS OF APPEAL FOR A.Y. 2003 - 04 : - 1. THE IMPUGNED ORDER OF ASSESSMENT IS LIABLE TO SET ASIDE IN SO FAR AS IT IS INCORRECT, IMPROPER, IRREGULAR, OPPOSED FACTS AND CIRCUMSTANCES OF THE CASE AND OPPOSED TO THE LAW. 2. THE LEARNED CIT (APPEALS), MY SORE ERRED IN UPHOLDING THE VALIDITY OF THE IMPUGNED ORDER OF ASSESSMENT MADE UNDER SECTION 147 RWS 150 OF THE INCOME TAX ACT AND THAT IT IS NOT BARRED BY LIMITATION UNDER SECTION 149(1) OF THE ACT. 3. THE LEARNED CIT (APPEALS), MYSORE ERRED IN UPHOLDING THE VALIDITY OF THE IMPUGNED ORDER OF ASSESSMENT MADE UNDER SECTION 147 RWS 150 OF THE INCOME TAX ACT HOLDING THAT THE PROVISIONS OF SECTION 150(1) ARE CLEARLY ATTRACTED. 4. THE IMPUGNED ORDER OF ASSESSMENT MADE UNDER SECTION 147 RWS 150 OF THE INCOME TAX ACT IS ILLEGAL AND VOID IN SO FAR AS THE SAME IS MADE BY THE ASSESSING OFFICER WITHOUT ASSUMING JURISDICTION UNDER SECTION 147 OF THE ACT. 5. THAT THE IMPUGNED PROCEEDINGS UNDER SECTION 147 IS BARRED BY LIMITATION AND AS SUCH THE IMPUGNED ASSESSMENT ORDE R IS LIABLE TO BE ANNULLED. 6. THE LEARNED CIT (APPEALS) ERRED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN TREATING THE AGRICULTURAL INCOME OF RS.1,38,500 AS NON - AGRICULTURAL INCOME DISREGARDING THE FACTS OF THE CASE AND AS SUCH THE IMPUGNED ORDE R IS LIABLE TO SET ASIDE. 7. THE LEARNED CIT (APPEALS) ERRED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN ASSESSING THE SUM OF RS.1,15,210 AS UNEXPLAINED INVESTMENT BY THE APPELLANT DISREGARDING THE FACTS AND CIRCUMSTANCES OF THE CASE AND AS SUCH THE IMPUGNED ORDER IS LIABLE TO SET ASIDE. 8. THAT THE IMPUGNED LEVY OF INTEREST OFRS.68,544 UNDER SECTION 234A IS LIABLE TO SET ASIDE IN SO FAR AS THE APPELLANT IS NOT LIABLE THERE FOR AND THE SAME IS OPPOSED TO THE PROVISIONS CONTAINED THEREIN. 9. THA T THE IMPUGNED LEVY OF INTEREST OFRS.71,232 UNDER SECTION 234B IS LIABLE TO SET ASIDE IN SO FAR AS THE APPELLANT IS NOT LIABLE THERE FOR AND THE SAME IS OPPOSED TO THE PROVISIONS CONTAINED THEREIN. 5 ITA NO S . 336 & 337/ BANG/ 2014 10. THAT THE IMPUGNED LEVY OF INTEREST OF RS.2,487 UNDER SECTION 234C IS LIABLE TO SET ASIDE IN SO FAR AS THE APPELLANT IS NOT LIABLE THERE FOR AND THE SAME IS OPPOSED TO THE PROVISIONS CONTAINED THEREIN. 4.2 THE ISSUES RAISED BY THE ASSESSEE IN THE APPEALS BEFORE US ARE IN TWO PARTS : - (1) ONE IS IN R ESPECT OF THE VALIDITY OF THE NOTICES ISSUED UNDER SECTION 148 OF THE ACT AND THE ASSUMPTION OF JURISDICTION UNDER SECTION 147 OF THE ACT; AND (2) THE OTHER IS IN RESPECT OF INVESTMENTS MADE, BY DISREGARDING THE SOURCE S OF INVESTMENT SUBMITTED BY THE ASSE SSEE. 5. GROUNDS AT S. NOS. 1 TO 5 ASSUMPTION OF JURISDICTION. 5.1 IN THESE GROUNDS, THE ASSESSEE HAS CHALLENGED THE ASSESSING OFFICER S ASSUMPTION OF JURISDICTION UNDER SECTION 147 OF THE ACT AND THE VALIDITY OF THE NOTICES ISSUED UNDER SECTION 148 OF THE ACT. THIS ISSUE REVOLVES ON WHETHER THE ASSESSING OFFICER CAN INVOKE THE PROVISIONS OF SECTION 150(1) OF THE ACT TO ASSUME JURISDICTION UNDER SECTION 147 OF THE ACT. SECTION 150(1) OF THE ACT EMPOWERS THE ASSESSING OFFICER TO ISSUE NOTICES UN DER SECTION 148 OF THE ACT FOR THE PURPOSE OF MAKING AN ASSESSMENT/RE - ASSESSMENT IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER PASSED BY ANY AUTHORITY IN ANY PROCEEDING UNDER THIS ACT BY WAY OF APPEAL, ETC. 5.2 THE ASSESSEE CONTENDS THAT THE OBSERVATIONS OF THE LEARNED CIT (APPEALS) IN THE ORDER FOR ASSESSMENT YEAR 2005 - 06 ARE ONLY PASSING REMARKS AND CANNOT BE TAKEN TO CONTAIN OR CONSTITUTE A FINDING OR DIRECTION . IN SUPPORT OF THIS CONTENTION, THE ASSESSEE P LACED RELIANCE ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS : - 6 ITA NO S . 336 & 337/ BANG/ 2014 (I) SOUTHERN INDIA PLYWOOD COMPANY V ACIT IN ITA NO.722/BANG/2010 DT.29.6.2012. (II) RAJINDER NATH V CIT IN 120 ITR 14 (SC). (III) CONSOLIDATED COFFEE LTD. V ITO 155 ITR 729 (KAR). THE LEARNED CIT (APPEALS ), HOWEVER, HAS DISTINGUISHED THE FACTS OF THE ASSESSEE'S CASE WITH THE FINDINGS MADE BY THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN THE ABOVE CITED CASES AND CONFIRMED THE ACTIONS OF THE ASSESSING OFFICER. 5.3.1 WE HAVE CONSIDERED THE ISSUE RAISED, THE RIVAL CONTENTIONS PUT FORTH IN THIS REGARD AND THE MATERIAL ON RECORD; INCLUDING THE DECISIONS RELIED ON BY THE ASSESSEE. IN THE CASE OF SOUTHERN INDIA PLYWOOD COMPANY ( SUPRA ), THE CO - ORDINATE BENCH FOLLOWING THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF RAJINDER NATH (SUPRA) HELD AT PARA 7.4 OF ITS ORDER THAT : - .WHEN THE HON'BLE HIGH COURT HAS CHOSEN TO USE THE WORDS THAT IT IS OPEN FOR THE REVENUE TO TAKE ACTION, THEN REVENUE HAS THE OPTION TO TAKE OR NOT TO TAKE ACTION. IT IS, THEREFORE, CLEAR THAT BY USING THE WORDS IT IS OPEN FOR THE REVENUE THE HIGH COURT HAS NOT GIVEN ANY DIRECTION TO THE REVENUE TO TAKE ACTION. THE HON'BLE APEX COURT HAS STATED THAT A DIRECTION BY A STATUTORY AUTHORITY IS IN THE NATURE OF AN ORDER REQUIRING POS ITIVE COMPLIANCE. WHAT IS LEFT TO THE OPTION AND DIRECTION OF THE ITO WHETHER OR NOT TO TAKE ACTION, IT CANNOT IN OUR OPINION, BE DESCRIBED AS A DIRECTION. THE CO - ORDINATE BENCH HAD ALSO REFERRED TO THE DECISION OF THE HON'BLE HIGH COURT OF KAR NATAKA IN THE CASE OF CONSOLIDATED COFFEE LTD. (SUPRA) ON THE MEANING OF FINDING OR DIRECTION TO HOLD THAT THERE IS NO FINDING IN THAT CASE. 5.3.2 IN THE LIGHT OF THE ABOVE PRINCIPLES LAID DOWN AS TO THE SCOPE AND MEANING OF FINDING AND DIRECTIO N AS LAID OUT IN SECTION 150(1) OF THE ACT, WE PROCEED TO EXAMINE 7 ITA NO S . 336 & 337/ BANG/ 2014 THE APPLICABILITY OF THE ABOVE CITED DECISIONS TO THE FACTS OF THE CASE ON HAND. IN THE CASE ON HAND, THE LEARNED CIT (APPEALS) IN HIS ORDER FOR ASSESSMENT YEAR 2005 - 06 DT.16.3.2011 HAS HELD THAT THE UNEXPLAINED INVESTMENT IN THE PROPERTY HAS BEEN MADE OVER THREE YEARS AND OBSERVED THAT . THE A.O. IS AT LIBERTY TO TAKE NECESSARY STEPS TO TAX THE REMAINING UNEXPLAINED INVESTMENT IN OTHER TWO YEARS. THE ISSUE BEFORE US IS WHETHER THIS CONSTITUTES A DIRECTION AND / OR FINDING AS CONTEMPLATED IN THE PROVISIONS OF SECTION 150(1) OF THE ACT. 5.3.3 ON A PERUSAL OF THE ORDER OF THE CIT (APPEALS) FOR ASSESSMENT YEAR 2005 - 06 DT.16.11.2011, WE FIND THAT THE LEARNED CIT (APPEALS) HAS GIV EN DETAILED REASONING FOR THE DECISION TO SPREAD THE INVESTMENT OVER THREE ASSESSMENT YEARS 2003 - 04 TO 2005 - 06 IN PARA 25 OF THE ORDER, WHICH ARE THAT : - I. THE ASSESSEE HERSELF HAD TAKEN THE ARGUMENT THAT THE PROPERTY IN QUESTION WAS CONSTRUCTED OVER A PER IOD OF FINANCIAL YEARS 2001 - 02 TO 2004 - 05. HOWEVER, THERE APPEARS TO BE NO EVIDENCE OR CLAIM OF ANY INVESTMENT HAVING BEEN MADE IN THE CONSTRUCTION OF THE SAID RESIDENTIAL PROPERTY IN THE PERIOD PRIOR TO ASSESSMENT YEAR 2003 - 04. II. THE APPROVAL LETTER FROM T HE LOCAL MUNICIPAL AUTHORITIES OBTAINED TO CONSTRUCT THE BUILDING BETWEEN 11/2011 TO 03/2005. III. IN SUCH CIRCUMSTANCES, I THINK IT FIT TO SPREAD OVER THE TOTAL INVESTMENTS EQUALLY IN DIFFERENT YEARS. 8 ITA NO S . 336 & 337/ BANG/ 2014 IV. THE APPELLANT SUBMISSIONS WERE THAT SHE WITHDRAWN AN A MOUNT OF RS.9,12,707 FOR THE PROPERTY IN THE F.Y. 2002 - 03 AND FURTHER RS.5,00,000 DURING F.Y. 2003 - 04. V. THE TOTAL INVESTMENT IN THE PROPERTY NEEDS TO BE SPREAD OVER ASSESSMENT YEARS 2003 - 04 TO 2005 - 06. VI. THE TOTAL AMOUNT MAY BE ALLOCATED EQUALLY IN ALL THE TH REE ASSESSMENT YEARS INVOLVED. THUS THE ADDITION TO BE MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT HAS TO BE WORKED OUT TO BE RS.36,46,256 SPREAD OVER THE THREE ASSESSMENT YEARS. THE ADDITION WORKS OUT TO RS.12,15,417 IN EACH ASSESSMENT YEAR. THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IS CONFIRMED TO THE EXTENT OF RS.12,15,417 IN THE YEAR UNDER APPEAL. THE A.O. IS AT LIBERTY TO TAKE NECESSARY STEPS TO TAX THE REMAINING UNEXPLAINED INVESTMENT IN THE OTHER TWO YEARS. 5.3.4 FROM THE ABOVE, IN OUR VIEW, IT IS EVIDENT THAT THE LEARNED CIT (APPEALS) HAS GIVEN A CLEAR FINDING THAT THE UNEXPLAINED INVESTMENT IN THE RESIDENTIAL PROPERTY FALL IN THREE YEARS RELEVANT TO ASSESSMENT YEARS 2003 - 04 TO 2005 - 06. THE LEARNED CIT (APPEALS) HAS ALSO RENDERED A FIN DING THAT THE ADDITION TO BE MADE ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE SAID PROPERTY MAY BE DIVIDED AMONG THE THREE ASSESSMENT YEARS AND HAD ALSO HELD THAT THE RELEVANT PORTION OF THE UNEXPLAINED INVESTMENT I.E. RS. 12,15,417 IS TAXABLE IN A SSESSMENT YEAR 2005 - 06 . IN VIEW OF THE ABOVE, WE AGREE WITH THE LEARNED CIT (APPEALS) THAT THE FACTS OF THE ASSESSEE'S CASE ARE DISTINGUISHABLE FROM THE DECISIONS CITED BY THE ASSESSEE ; THAT THE LEARNED CIT (APPEALS) HAD RENDERED A CLEAR FINDING IN THE MATTER AND 9 ITA NO S . 336 & 337/ BANG/ 2014 THAT , THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE ON HAND, THE ASSESSING OFFICER HAS CORRECTLY ASSUMED JURISDICTION UNDER SECTION 147 OF THE ACT BY INVOKING THE PROVISIONS OF SECTION 150(1) OF THE ACT. CONSEQUENTLY THE GROUNDS RAISED AT S.NOS.1 TO 5 FOR BOTH ASSESSMENT YEARS 2003 - 04 AND 2004 - 05 ARE DISMISSED. GROUND NOS.6 & 7 6. SUBSTANTITVE ADDITIONS ON MERITS. 6.1 AS FAR AS THE UNEXPLAINED INVESTMENT IN CONSTRUCTION OF THE PROPERTY IS CONCERNED, THE LEARNED CIT (APPE ALS) HAD RENDERED A CATEGORICAL FINDING THAT THE INVESTMENT IS SPREAD OVER THE THREE YEARS NAMELY, ASSESSMENT YEARS 2003 - 04 TO 2005 - 06 AND THE UNEXPLAINED INVESTMENT TO BE ACCOUNTED FOR IN EACH OF THE AFORESAID THREE ASSESSMENT YEARS IS TO BE RS.12,15,417 PER YEAR. IN THE ORDERS OF ASSESSMENT PASSED UNDER SECTION 147 RWS 150 OF THE ACT, THE ASSESSING OFFICER HAS CONSIDERED THE EVIDENCES SUBMITTED BY THE ASSESSEE AND GAVE RELIEF TO THE ASSESSEE WHEREVER THE EXPLANATIONS PUT FORTH WERE FOUND ACCEPTABLE AND T HE BALANCE AMOUNTS, WHICH IN THE OPINION OF THE ASSESSING OFFICER WERE UNSUBSTANTIATED, WERE ADDED BACK. 7. 1 FOR ASSESSMENT YEAR 2003 - 04 , THE ASSESSING OFFICER ACCEPTED AN AMOUNT OF RS.9,12,707 CLAIMED AS DRAWN FROM THE HUF AND AN AMOUNT OF RS.48,500 CL AIMED AS INCOME FROM OTHER SOURCES SHOWN IN THE RETURN OF INCOME FOR ASSESSMENT YEAR 2003 - 04. THE ASSESSING OFFICER, HOWEVER, ADDED THE AMOUNT OF RS.1,38,500 CLAIMED AS AGRICULTURAL INCOME AND AMOUNT OF RS.1,15,710 WHICH WAS UNEXPLAINED. 10 ITA NO S . 336 & 337/ BANG/ 2014 7.2 THE ASSE SSEE'S CLAIM OF AGRICULTURAL INCOME OF RS.1,38,500 WAS NOT ACCEPTED BY THE ASSESSING OFFICER BECAUSE THE AGRICULTURAL LAND WAS PURCHASED BY THE ASSESSEE ONLY IN SEPT., 2003 AND THEREFORE IT COULD NOT HAVE BEEN POSSIBLE FOR THE ASSESSEE TO DERIVE AGRICULTU RAL INCOME IN THE PERIOD RELEVANT TO ASSESSMENT YEAR 2003 - 04. THE ASSESSING OFFICER, HOWEVER, ACCEPTED THE ASSESSEE'S CLAIM OF NET AGRICULTURAL INCOME OF RS.1,52,000 BASED ON THE EVIDENCES PRODUCED. 7.3 THE ASSESSEE, WE FIND, HAS NOT BEEN ABLE TO CONT ROVERT THE FINDINGS OF THE ASSESSING OFFICER EITHER IN THE FIRST APPELLATE PROCEEDINGS BEFORE THE LEARNED CIT (APPEALS) OR IN THE PROCEEDINGS BEFORE US. THEREFORE, IN THE ABSENCE OF ANY EVIDENCE BEING PUT FORTH TO CONTROVERT THE FINDINGS OF THE ASSESSING OFFICER ON THIS ISSUE, WE UPHOLD THE DECISION OF THE LEARNED CIT (APPEALS) IN REJECTING THE CLAIMS OF THE ASSESSEE AND CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER. CONSEQUENTLY, GROUND NO.6 FOR ASSESSMENT YEAR 2003 - 04 IS DISMISSED. 8. AS REGA RDS THE ADDITIONS MADE BY THE ASSESSING OFFICER TOWARDS UNEXPLAINED INVESTMENT OF RS.1,15,710 FOR ASSESSMENT YEAR 2003 - 04 AND OF RS.5,13,517 FOR ASSESSMENT YEAR 2004 - 05 , IT IS SEEN THAT THE ASSESSING OFFICER HAS CONSIDERED ALL THE EVIDENCES PRODUCED BY THE ASSESSEE AND ALLOWED RELIEF WHEREVER THE EVIDENCES PRODUCED AND EXPLANATIONS PUT FORTH WERE FOUND ACCEPTABLE AND HAS MADE ADDITIONS ONLY IN RESPECT OF THOSE AMOUNTS FOR WHICH NO EVIDENCE WAS PRODUCED. IN THE ABSENCE OF ANY EVIDENCE TO CONTROVERT THE FIND INGS OF THE AUTHORITIES BELOW, THE AFORESAID ADDITIONS MADE ON ACCOUNT 11 ITA NO S . 336 & 337/ BANG/ 2014 OF UNACCOUNTED INVESTMENTS IN THE CONSTRUCTION OF THE AFORESAID RESIDENTIAL BUILDING NEEDS TO BE UPHELD. IN VIEW OF THE ABOVE FACTUAL MATRIX OF THE CASE, WE CONCUR WITH THE LEARNED CIT (APPEALS) IN UPHOLDING THE ADDITIONS MADE BY THE ASSESSING OFFICER IN THIS REGARD. CONSEQUENTLY, THESE GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED. 9. IN THE OTHER GROUNDS AT S.NOS.8 TO 10 FOR ASSESSMENT YEAR 2003 - 04 AND AT S.NOS.7 TO 9 FOR ASSESSMENT Y EAR 2004 - 05 , THE ASSESSEE DENIES ITSELF LIABLE TO BE CHARGED INTEREST UNDER SECTIONS 234A, 234B AND 234C OF THE ACT. THE CHARGING OF INTEREST IS CONSEQUENTIAL AND MANDATORY AND THE ASSESSING OFFICER HAS NO DISCRETION IN THE MATTER. THIS PROPOSITION HAS B EEN UPHELD BY THE HON'BLE APEX COURT IN THE CASE OF ANJUM H GHASWALA (252 ITR 1) AND W E, THEREFORE, UPHOLD THE ACTION OF THE ASSESSING OFFICER IN CHARGING THE SAID INTEREST. THE ASSESSING OFFICER IS, HOWEVER, DIRECTED TO RECOMPUTE TH E INTEREST CHARGEABLE U/S. 234A, 234B AND 234C OF THE ACT, IF ANY, WHILE GIVING EFFECT TO THIS ORDER. 10. IN THE RESULT, THE ASSESSEE'S APPEALS FOR ASSESSMENT YEARS 2003 - 04 AND 2004 - 05 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29 TH JUNE, 201 5 . SD/ - (N.V.VASUDEVAN) JUDICIAL MEMBER SD/ - (JASON P BOAZ) ACCOUNTANT MEMBER *REDDY GP