Dr. Tej Prakash Singh, Sonebhadra V. ITO, Mirzapur

ITA 38/ALLD/2009

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80587 (ITAT-ALLAHABAD)
• Duration Of Justice: 5 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 12-08-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 04-02-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reopening of assessment
• Section: 148; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, ALLAHABAD BENCH, ALLAHABAD BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO. 38/ALLD./2009 ASSTT. YEAR : 2003-04 DR. TEJ PRAKASH SINGH, VS. INCOME-TAX OFFICER, BYE-PASS ROAD, ROBERTGANJ, RANGE III(3), MIRZAPU R. SONEBHADRA. (PAN : AUIPS 0731 L) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PRAVEEN GODBOLE, C.A. RESPONDENT BY : SHRI T.P. SHUKLA, SR. D.R. DATE OF HEARING : 12.08.2014 DATE OF PRONOUNCEMENT : 14.08.2014 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD.CIT(A), ALLAHABAD DATED 18.12.2008 FOR THE ASSESSMENT YEAR 2003-04. 2. THIS APPEAL WAS EARLIER DISPOSED OF BY THE TRIBU NAL VIDE ORDER DATED 30.03.2010.THE ASSESSEE MOVED M.A. NO. 23/ALLD./201 0 STATING THEREIN THAT ON THE ISSUE OF ADDITION OF RS.86100/- ON ACCOUNT OF UNDIS CLOSED INVESTMENT IN COST OF CONSTRUCTION, THE SUBMISSIONS FILED IN THE PAPER BO OK HAVE NOT BEEN CONSIDERED. THEREFORE, THERE APPEARS MISTAKE APPARENT ON RECORD . THE MISCELLANEOUS ITA NO. 38/ALLD./2009 2 APPLICATION OF THE ASSESSEE WAS ALLOWED VIDE ORDER DATED 01.06.2012. IN THE AFORESAID ORDER DATED 01.06.2012, THE SOLE CONTENTI ON OF THE ASSESSEE WAS THAT THE ASSESSMENT CANNOT BE REOPENED ON THE BASIS OF DVOS REPORT AS HELD BY THE SUPREME COURT IN THE CASE OF ACIT VS. M/S. DHARIA C ONSTRUCTION CO., 328 ITR 515. THE TRIBUNAL RECALLED THE EARLIER ORDER OF THE TRIBUNAL DATED 30.03.2010 FOR THE LIMITED PURPOSE AND THE MA OF THE ASSESSEE WAS ALLOWED. THE APPEAL OF THE ASSESSEE WAS, THEREFORE, RE-FIXED FOR HEARING. 3. ON GROUND NO. 3 & 4, THE ASSESSEE CHALLENGED THE ADDITION OF RS.86100/- MADE ON THE BASIS OF DVOS REPORT. THE RELEVANT FAC TS ON THIS ISSUE ARE THAT THE AO FOUND WIDE VARIATION OF INVESTMENT IN DIFFERENT FIN ANCIAL YEARS , I.E., 1996-97 TO 2005-06 ON COMPARISON OF ACCOUNT OF INVESTMENT SHOW N BY THE ASSESSEE IN THE CONSTRUCTION OF HOUSE AND THOSE ESTIMATED BY THE DV O, AS MENTIONED IN ASSESSMENT ORDER AS WELL AS IN THE IMPUGNED ORDER IN PARA 4.1. FROM THE SAID TABLE, THE AO NOTICED THAT THE ASSESSEE HAS SHOWN INVESTMENT IN C ONSTRUCTION OF HOUSE IN ASSESSMENT YEAR UNDER CONSIDERATION AT RS.4,01,100/ - AS AGAINST RS.4,87,200/- ESTIMATED BY THE DVO AND THERE IS A DIFFERENCE IN T HE INVESTMENT OF RS.86,100/-. THE AO ACCORDINGLY MADE ADDITION OF RS.86,100/- AS UNDISCLOSED INVESTMENT. THE LD.CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. ITA NO. 38/ALLD./2009 3 4. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. COUNSEL FOR T HE ASSESSEE REFERRED TO THE ORDER OF THE TRIBUNAL IN THE CASE OF ASSESSEE FOR PRECEDI NG ASSESSMENT YEAR 2001-02 IN WHICH THE REOPENING OF ASSESSMENT WAS HELD TO BE IN VALID AS REASSESSMENT WAS ANNULLED. THE LD. COUNSEL FOR THE ASSESSEE, HOWEVER , COULD NOT ANSWER AS TO HOW THE SAID ORDER IS APPLICABLE TO THE ASSESSMENT YEAR UNDER APPEAL BECAUSE IT IS NOT A CASE OF REOPENING OF ASSESSMENT U/S. 148 OF THE IT ACT. IN THIS CASE, THE ASSESSMENT ORDER WAS PASSED U/S. 143(3) (REGULAR ASSESSMENT). THE LD. COUNSEL FOR THE ASSESSEE, THEREFORE, FAIRLY STATED THAT IT IS NOT A CASE OF REOPENING OF ASSESSMENT AND AS SUCH THE ORDER IN THE MISCELLANEOUS APPLICATION NO. 23/2010 DATED 01.06.2012 IS NOT RELEVANT TO THE MATTER IN ISSUE. THE LD. COUNSE L FOR THE ASSESSEE ALSO ADMITTED THAT THERE IS NO GROUND OF APPEAL CHALLENGING THE R EOPENING OF ASSESSMENT IN THE MATTER. ANYHOW, SINCE THE MATTER IS NOW POSTED FOR FRESH HEARING ON THIS ISSUE, THEREFORE, WE PROCEED TO DECIDE THESE GROUNDS ON ME RITS. 4.1 THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE ASSESSEE MAINTAINED REGULAR BOOKS OF ACCOUNT WHICH HAVE BEEN ACCEPTED A ND WITHOUT REJECTING THE BOOKS OF ACCOUNTS, THE AO CANNOT REFER THE MATTER T O THE DVO FOR VALUATION. HE HAS RELIED UPON THE DECISION OF THE SUPREME COURT I N THE CASE OF SARGAM CINEMA VS. CIT, 328 ITR 513. ON THE OTHER HAND, THE LD. DR POINTED OUT FROM THE ITA NO. 38/ALLD./2009 4 ASSESSMENT ORDER THAT DESPITE GIVING SPECIFIC NOTIC E TO THE ASSESSEE, THE ASSESSEE DID NOT PRODUCE BOOKS OF ACCOUNT AND VOUCHERS AT THE AS SESSMENT STAGE. HE HAS ALSO POINTED OUT THAT WITH REGARD TO CONSTRUCTION, NO VO UCHERS AND DETAILS WERE FURNISHED BEFORE THE AO. THE LD. DR ALSO POINTED OU T FROM THE ORDER OF THE LD. CIT(A) THAT THE ASSESSEE EVEN BEFORE THE LD. CIT(A) FAILED TO PRODUCE THE COMPLETE VOUCHERS FOR INVESTMENT MADE IN CONSTRUCTION OF HOU SE. THE LD. DR, THEREFORE, SUBMITTED THAT IN THE ABSENCE OF PRODUCTION OF BOOK S OF ACCOUNT AND VOUCHERS, THERE IS NO QUESTION OF REJECTION OF BOOKS OF ACCOU NT BY THE AO. THEREFORE, THE JUDGMENT OF THE SUPREME COURT ABOVE WILL NOT SUPPOR T THE CASE OF THE ASSESSEE. 5. ON CONSIDERATION OF THE ABOVE FACTS AND MATERIAL ON RECORD, WE DO NOT FIND ANY MERIT IN THESE GROUNDS OF APPEAL OF THE ASSESSE E. THE AO HAS CATEGORICALLY RECORDED IN THE ASSESSMENT ORDER THAT THE ASSESSEE FAILED TO PRODUCE BOOKS OF ACCOUNT AND VOUCHERS OF INVESTMENT MADE IN CONSTRUC TION OF THE PROPERTY. EVEN BEFORE THE LD. CIT(A) AS WELL AS BEFORE THE DVO, TH E ASSESSEE FAILED TO PRODUCE COMPLETE VOUCHERS. THEREFORE, IN ABSENCE OF PRODUCT ION OF BOOKS OF ACCOUNT, THE LD. DR RIGHTLY CONTENDED THAT THERE IS NO QUESTION OF REJECTION OF BOOKS OF ACCOUNT BY THE AO. IN THE ABSENCE OF PRODUCTION OF BOOKS OF ACCOUNT BEFORE THE AUTHORITIES BELOW, WE DO NOT FIND ANY MERIT IN THE APPEAL OF TH E ASSESSEE ON THE GROUNDS SO ITA NO. 38/ALLD./2009 5 RAISED ABOVE. GROUNDS NOS. 3 & 4 OF THE APPEAL OF T HE ASSESSEE ARE ACCORDINGLY DISMISSED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (B.C. MEENA) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT BY ORDER 2. RESPONDENT 3. CIT(A), CONCERNED ASSTT. REGISTRAR 4. CIT, CONCERNED 5. DR, ITAT, ALLAHABAD 6. GUARD FILE TRUE COPY