Tarini Prasad Mohanty, Keonjhar V. DCIT, Sambalpur

ITA 39/CTK/2013

• Counselvise Citation: 3922114 RSA 2013
• Duration Of Justice: 2 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-05-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 18-01-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHOVAN KRISHNA SAHU
• Assessee Lawyers: C R DAS
• Keywords: Unexplained investment; Income from undisclosed sources; Onus to prove; Retraction
• Section: 143(3); 133A; 131

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK B ENCH, CUTTACK , . . , BEFORE SHRI SUNIL KUMAR YADAV, JM & SHRI B.P.JAIN, AM ./ ITA NO.39/CTK/2013 ( ! ! ! ! / ASSESSMENT YEAR :2007-08) TARINI PRASAD MOHANTY, HOTEL VALLEY, AT/PO: JODA, DIST: KEONJHAR. VS. DCIT, CIRCLE - 1(1), SAMBALPUR ' ./ # ./PAN/GIR NO. ABFPM 4651 B ( '$ /APPELLANT ) .. ( %&'$ / RESPONDENT ) '''') + + + + /ASSESSEE BY : SHRI C.R.DAS '''' + + + + /REVENUE BY : SHRI SHOVAN KRISHNA SAHU ''', ) / DATE OF HEARING : 19 TH MAY, 2015 '''./! ) /DATE OF PRONOUNCEMENT 21 ST MAY,2015 0 0 0 0 / O R D E R PER B.P.JAIN, AM THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER O F THE LD CIT(A), BERHAMPUR DATED 26.10.2012 FOR THE ASSESSMENT YEAR 2007-08. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT, THE LD. AUTHORITIES BELOW HAVE ERRED BOTH IN LAW AND ON FACTS IN CIRCUMSTANCE BY HOLDING THAT, THE REIMBURSEMENT OF EXPENSES ON RENOVATION OF THE HOTEL AS UNDISCLOSED INCOME OF TH E APPELLANT AMOUNTING TO RS. 6,98,960/- WHICH IS LIABLE TO BE DELETED. 2. THAT, THE LD. ASSESSING OFFICER ERRED IN FACTS IN M AKING ADDITIONS OF RS. 20,000/-, THE DUES COLLECTED FROM THE SUNDRY DE BTORS AS UNDISCLOSED INCOME OF THE APPELLANT AND THE LD. COM MISSIONER OF 2 ITA NO.39/CTK/2013 ASSESSMENT YEAR :2007-08 INCOME TAX (APPEALS) HAS COMMITTED AN ERROR OF LAW IN CONFIRMING THE ACTION OF THE LD. ASSESSING OFFICER. THEREFORE THE ADDITION OF RS. 20,000/- IS LIABLE TO BE DELETED. 3. THAT, THE LD. AUTHORITIES BELOW ARE WRONG IN CALCUL ATING THE NOTIONAL RENT OF RS. 87,500/- AND MAKING ADDITION TO THE INC OME OF THE APPELLANT. THEREFORE THE ADDITIONS OF? 87,500/-IS L IABLE TO BE DELETED. 4. THAT, THE ASSESSMENT ORDER PASSED AND U/S 143(3) IS BARRED BY LIMITATION AND THE LD. COMMISSIONER OF INCOME TAX ( APPEALS) IS WRONG IN DISMISSING THIS GROUND OF APPEAL. 5. FOR THESE AMONG OTHER GROUNDS IF ANY TO BE ARGUED A T THE TIME OF HEARING, THE CASE IS TO BE DECIDED ON MERIT TO MEET THE END OF JUSTICE. 3. APROPOS GROUND NO.1, THE BRIEF FACTS OF THE CAS E ARE THAT THE ASSESSEE IS RUNNING A HOTEL IN THE NAME & STYLE OF M/S. HOTEL VALLEY, AT JODA, DISTS: KEONJHAR. HE DERIVED INCOME FROM LODGING/ROOM RENT RECEIVED, SALE OF INDIAN MADE FOR EIGN LIQUOR IN THE BAR MAINTAINED IN ABOVE SAID HOTEL VALLEY & OTHER MISC RECEIPTS. HE ALSO D ERIVED INCOME FROM PLYING OF TRUCKS & RENTAL INCOME FROM HOUSE PROPERTY. THERE WAS A SURVEY UN DER SECTION 133A CONDUCTED IN THE BUSINESS PREMISES OF THE ASSESSEE ON 30.11.2006. T HE ASSESSING OFFICER, MADE AN ADDITION OF RS.6,98,960/-, INTER ALIA, OBSERVING AS UNDER: 3.UNDISCLOSED INVESTMENT IN RENOVATION OF GANGAUR RESTAURANT: DURING THE COURSE OF SURVEY OPERATION A.O. FOUND THAT THE RECE IPT TO THE EXTENT OF RS.6,98,960/- ON ACCOUNT OF GANGAUR RESTAURANT WERE NOT ACCOUNTED IN DIE BOOKS OF ACCOUNT OF DIE ASSESSEE. THE DETAIL OF REC EIPT ARE FURNISHED AS UNDER : MONTH AMOUNT APRIL, 2006 1,63,960/ - MAY, 2006 1,00,000/ - JUNE, 2006 1,25,000/ - JULY, 2006 1,00,000/ - AUG, 2006 10,000/ - SEPT, 2006 61,000/ - OCT, 2006 71,000/ - NOV, 2006 68,000/ - TOTAL 6,98,960/ - 3 ITA NO.39/CTK/2013 ASSESSMENT YEAR :2007-08 3.1 IN HIS STATEMENT RECORDED ON OATH U/S. 131 ON 2 0.12.2006 ASSESSEE SRI TARINI PRASAD MOHANTY WAS OFFERED OPPORTUNITY TO EXPLAIN D IE DETAIL OF RECEIPT WHICH WERE NOT ACCOUNTED IN HIS BOOKS OF ACCOUNT. HE STAT ED THAT GANGAUR RESTAURANT WAS GIVEN ON LEASE TO ONE PARTY OF KOLKATA FOR A MO NTHLY RENT OF RS. 10,000/-. THE AMOUNT OF RS.6,98,960/- WAS RECEIVED TOWARDS CO ST OF RENOVATION OF THE ABOVE SAID GANGAUR RESTAURANT. HE ALSO ADMITTED THA T THE INVESTMENT MADE IN RENOVATION OF GANGAUR RESTAURANT AMOUNTING TO RS.6, 98,960,'- WHICH WAS NOT RECORDED IN HIS BOOKS WAS MET OUT OF HIS UNACCOUNTE D INCOME FOR THE F.Y.2006- 07 RELEVANT TO A.Y.2007-08 AND HE MADE DISCLOSURE T O THAT EXTENT IN HIS STATEMENT RECORDED U/S.131 ON 20.12.2006. IT IS PE RTINENT TO MENTION HERE THAT ASSESSEE HAS SHOWN RENT RECEIVED TO THE EXTENT OF R S. 1,20,000/- IN THE P&L ACCOUNT FURNISHED ALONGWITH THE RETURN. THE RELEVAN T PORTION OF HIS STATEMENT RECORDED U/S.131 ON 20.12.2006 ARE REPRODUCED BELOW : Q.13 DURING SURVEY RECEIPT UNDER VARIOUS HEAD FOR THE CURRENT YEAR TILL 30.11.2006 WERE FOUND AS UNDER: SL.NO HEAD AMOUNT 01. HOTEL ROOM RENT 16,42,234 02. WASHING CHARGES 5,070/ - 03. TELEPHONE 10,942/ - 04. TEA CHARGES 14,834/ - HOWEVER AN AMOUNT OF RS.6,98,960/- HAS BEEN RECEIVE D ON ACCOUNT OF GANGAUR RESTAURANT WHICH WAS NOT BEEN SHOWN AS RECEIPT WITH FOLLOWING DETAILS : MONTH AMOUNT APRIL, 2006 1,63,960/- MAY, 2006 1,00,000/- JUNE, 2006 1,25,000/- JULY, 2006 1,00,000/- AUG,2006 10,000/- SEPT,2006 61,000/- OCT, 2006 71,000/- NOV, 2006 68,000/- TOTAL 6,98,960/- PLEASE EXPLAIN THESE RECEIPTS ON ACCOUNT OF GANGAUR RESTAURANT. WHY THIS AMOUNT OF RS.6,98,960/- SHOULD NOT BE TREATED AS INCOME OF YO UR CURRENT FINANCIAL YEAR I.E. 2006- 07. ANS. I HAVE GIVEN GANGAUR RESTAURANT ON LEASE AT A MONTHLY RENT OF RS.10,000/- TO A PERSON OF KOLKATA. I HAVE RECEIVED THESE AMOUNT AGAINST TH E COST OF RENOVATION, I CARRIED OUT IN THE RESTAURANT. Q.14 HOW MUCH EXPENDITURE WAS INCURRED FOR RENOVATI ON OF RESTAURANT, HAVE YOU KEPT ANY RECORD AND EVIDENCE FOR THE SAME ? ANS. I HAVE NOT KEPT ANY RECORD OR EVIDENCE FOR REN OVATION BUT THE COST OF RENOVATION WILL BE SAME AMOUNT I.E. RS.6,98,960/- WHICH I HAVE ALREADY RECEIVED BACK FROM THE PERSON WHO IS RUNNING THE RESTAURANT. Q.15 SINCE THE INVESTMENT ON RENOVATION IS NOT RECO RDED IN BOOKS OF ACCOUNT WHICH IS ADMITTEDLY RS.6,98,960/- RECEIVED ON GANGAUR RESTAU RANT A/C, WHY THE SAME SHOULD NOT BE TREATED AS UNEXPLAINED INVESTMENT / INCOME OF TH E CURRENT YEAR I.E. 2006-07 ? 4 ITA NO.39/CTK/2013 ASSESSMENT YEAR :2007-08 ANS. I ACCEPT THE RS.6,98,960/- AS MY INCOME OF CUR RENT YEAR AND READY TO PAY TAX ON THIS AMOUNT. I HAVE GIVEN MY STATEMENT IN SOUND HEALTH AND MIND WITHOUT FEAR & COERCION. THE ABOVE STATEMENT GIVEN BY ME ARE TRUE & CORRECT. SD/- (TARINI PRASAD MOHANTY) 20.12.2006 3.2 THUS THE ASSESSEE HAD VOLUNTARILY DISCLOSED THE UNA CCOUNTED INCOME TO THE EXTENT OF RS.6,98,960/- IN HIS STATEMENT RECORDED U /S.131 ON 20.12.2006. MOREOVER THE ASSESSEE HAS ALSO DEPOSITED THE REQUISITE AMOUNT OF ADVANCE TAX ON AMOUNT DISCLOSED BY HIM ON 30.12.2006. WHEREAS THE ABOVE SAID AMOUNT OF RS.6,98,960/- DISCLOSED BY HIM VOLUNTARILY HAS NOT BEEN INCLUDED IN THE TOTAL INCOME AS PER RETURN OF INCOME FILED ON 31.10.2007. THEREFORE ASSESSEE WAS ASKED TO SHOW CAUSE AS TO WHY THE SAME WILL NOT BE ADDED IN HIS TOTAL INCOME VIDE Q. NO.L OF QU ESTIONNAIRE DTD.9.11.2009. 3.3 IN THE WRITTEN EXPLANATION FILED ON 07.12.2009 THRO UGH A/R CA MD. AYUB IT IS SUBMITTED THAT 'THERE HAS BEEN A DEPOSIT OF ADVANCE TAX OF RS. 5 L AKH CONSEQUENT TO SURVEY CONDUCTED ON 30.11.2006. THE COPY OF CHALLANS DEPOS ITING ADVANCE TAX IS ATTACHED HEREWITH' ACCORDINGLY ASSESSEE ADMITTED THAT HE HAS ALREADY P AID THE ADVANCE TAX ON INCOME OF RS.6,98,960/- DISCLOSED BY HIM VOLUNTARILY IN HIS S TATEMENT RECORDED U/S.131 ON 20.12.2006. BUT NO EXPLANATION WAS OFFERED FOR NOT INCLUDING THE INCOME DISCLOSED VOLUNTARILY IN THE RETURN OF INCOME. AS THE ASSESSE E HAS DISCLOSED THE INCOME TO THE EXTENT OF RS.6,98,960/- VOLUNTARILY AND HAS ALREADY PAID THE ADVANCE TAX ON SUCH INCOME DISCLOSED, THE SAME IS ADDED IN HIS TOTAL IN COME. HOWEVER, THE ASSESSEE HAS NOT ADDED THE INCOME DISCLOSED BY HIM VOLUNTARILY IN HI S RETURN OF INCOME FILED ON 51.10.2007. IN OTHER WORDS THERE WAS CONCEALMENT OF INCOME TO THE EXTENT OF RS.6,98,960/-. 4. THE LD CIT(A) CONFIRMED THE ACTION OF THE ASSESS ING OFFICER IN THE IMPUGNED ORDER, INTER ALIA, OBSERVING AS UNDER: IN THE INSTANT CASE, THE ASSESSEE DID NOT RETRACT THE STATEMENT IMMEDIATELY AFTER MAKING THE SAME UNDER O ATH. THE CLAIM OF RECEIPT OF THIS AMOUNT AS REIMBURSEMENT OF INVESTME NT ONLY SUGGEST THAT THE RENOVATION WAS DONE BY THE ASSESSEE INITIALLY O UT OF HIS INCOME FROM UNDISCLOSED SOURCES. THE APPELLANT HAS ALSO ARGUED THAT HE WAS NOT GIVEN ANY OPPORTUNITY. SINCE THERE WAS A SCRUTINY PROCEED ING IN WHICH THE LD. A/R OF THE ASSESSEE APPEARED FROM TIME TO TIME, IT IS IMPOSSIBLE TO BELIEVE THAT THIS ISSUED WAS NOT DISCUSSED BY THE AO WITH T HE LD. A/R. THE AO ALSO ADMITTEDLY IN HIS NOTICE U/S.142(1) DTD.09-11-2009 HAS CLEARLY ASKED THE APPELLANT TO EXPLAIN AS TO WHY THAT THE UNDISCLOSED INCOME DETECTED DURING THE SURVEY HAS NOT BEEN INCLUDED IN THE TOTAL INCOM E IN THE RETURN FILED BY 5 ITA NO.39/CTK/2013 ASSESSMENT YEAR :2007-08 THE APPELLANT. HOWEVER, EVEN ACCEPTING FOR A MOMENT THAT THE APPELLANT'S CONTENTION IS TRUE, IT IS ALSO EQUALLY TRUE THAT DE SPITE GOING BACK ON HIS OWN STATEMENT, THE APPELLANT NEVER INTIMATED THE SAME I N WRITING TO THE AO EITHER AFTER THE STATEMENT WAS MADE OR AFTER FILING OF THE RETURN OR EVEN DURING THE SCRUTINY PROCEEDING. FURTHER, THE APPELL ANT CAN HAVE NO GRIEVANCE NOW BECAUSE HE HAD THE OPPORTUNITY TO PRO VIDE EVIDENCE THAT THE STATEMENT WAS UNTRUE. HOWEVER, EVEN BASIC EVID ENCES LIKE CONFIRMATIONS FROM THE PERSONS, THE DATE AND MODE O F RECEIPT OF PAYMENT AND THE DETAILS OF THE INVESTMENT ALONG WITH DATE O F EXPENSES HAVE NOT BEEN FILED BEFORE ME. IN VIEW OF THE ABOVE DISCUSSI ON AND MORE PARTICULARLY IN VIEW OF THE STATEMENT OF THE APPELL ANT U/S. 13.1 UNDER OATH MADE AFTER 20 DAYS OF THE SURVEY AND PAYMENT OF SOM E ADVANCE TAX THEREON AND IN THE ABSENCE OF ANY RETRACTION OF SUC H STATEMENT AFTER RECORDING OF SUCH STATEMENT TILL DATE AND THE FACT THAT THE DISCLOSURE RELATES TO MATERIALS FOR SPECIFIC AMOUNTS FOUND DUR ING THE SURVEY. 5. THE LD COUNSEL FOR THE ASSESSEE ARGUED THAT NO ADDITION CAN BE MADE ON THE BASIS OF STATEMENT OF THE ASSESSEE AND, THEREFORE, THE LD CI T(A) IS NOT JUSTIFIED IN CONFIRMING THE ADDITION MADE BY THE AO. 6. ON THE OTHER HAND, THE LD D.R. RELIED ON THE OR DER OF THE LD CIT(A). 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE FACTS OF THE CASE. THE UNDISPUTED FACTS IN THE PRESENT CASE ARE THAT THE ASSESSEE IN HIS STATEMENT RECORDED U/S.131 OF THE ACT STATED THAT AN AMOUNT OF RS.6,98,960/- WAS INVESTED FOR RENOVATION WORK DONE IN THE RESTAURANT AND SUCH RENOVATION HAS BEEN DONE BY HIM OUT OF THE INCOME FROM THE UNDISCLOSED SOURCES. IN PURSUANCE OF SUCH DISCLOSURE, THE ASSE SSEE HAS PAID ADVANCE TAX. BUT WHILE FILING THE RETURN OF INCOME, THE ASSESSEE WENT BACK HIS ST ATEMENT AND CLAIMED REFUND. IT IS ALSO A FACT THAT THE ASSESSEE RETRACTED THE STATEMENT AFTER MAK ING THE SAME UNDER OATH. IT IS ALSO A FACT THAT THE AMOUNT IS STATED TO BE RECEIVED AGAINST TH E RENOVATION EXPENSES OF THE RENTED PREMISES. IN FACT, WHATEVER MAY BE THE REASONS, THE ASSESSEE HAS NOT SUBMITTED ANY EXPLANATION FOR THE AMOUNT OF EXPENSES ON RENOVATION INCURRED BY THE AS SESSEE AMOUNTING TO RS.6,98,960/-. THE SAID AMOUNT HAVING BEEN SURRENDERED AND TAXES HAVIN G BEEN PAID, NO COGENT REASONS HAVE BEEN ASSIGNED FOR SUCH RETRACTION. WE FIND NO INF IRMITY IN THE ORDER OF THE LD CIT(A), WHO HAS 6 ITA NO.39/CTK/2013 ASSESSMENT YEAR :2007-08 RIGHTLY CONFIRMED THE ACTION OF THE ASSESSING OFFIC ER. WE CONCUR WITH THE VIEWS OF THE LD CIT(A), WHO HAS RELIED UPON THE DECISION AS UNDER: 7.3.2 THE HON'BLE SUPREME COURT IN NARAYAN BHAGWANTRAO GOSAVI BALAJIWALE V. GOPAL VINAYAK GOSAVI AIR 1960 SC 100 HAD HELD THAT AN ADMISSION IS THE BEST EVIDENCE THAT AN OPPOSITE PARTY CAN RELY UPON AND, THOUGH NOT CONCLUSIVE, YET COULD BE DECISIVE OF THE MATTER UNLESS SUCCESSFULLY WITHDRAWN OR PROVED ERRONEOUS. FURTHER, THE HON'BLE SUPREME COURT IN THE CASE OF AVADH KISHORE DAS V. RAM GOPAL AIR 1979 SC 861 HAS HELD THAT EVIDENTIARY ADMISSIONS ARE NOT CONCLUSIVE PROOF OF THE FACTS ADMITTED AND MAY BE EXPLAINED OR SHOWN TO BE WRONG, BUT THEY DO RAISE AN ESTOPPEL AND SHIFT THE BURDEN OF PROOF ON TO THE PERSON MAKING THEM. THE SUPREME COURT FURTHER HELD THAT UNLESS SHOWN OR EXPLAINED TO BE WRONG, THEY ARE AN EFFICAC IOUS PROOF OF THE FACTS ADMITTED. 7.3.2.1IN SPECIFIC REFERENCE TO THE INCOME-TAX PRO CEEDINGS, IT WOULD BE USEFUL TO REFER TO THE DECISION OF THE MADRAS BENCH OF THE INCOME-TAX APPELLATE TRIBUNAL IN THE CASE OF T.S. KUMARASAMYV. ASSTT. CIT [1998] 65 ITD 188 WHERE, TAKING NOTE OF THE FACT THAT ITOS ARE NOT POLICE OFFICERS AND, AS SUCH, THEY DO NOT USE OR RE SORT TO, UNFAIR MEANS IN RECORDING OATH STATEMENTS DURING THE SEARCH OPERATI ONS OR DURING THE COURSE OF ANY PROCEEDINGS BEFORE THEM, IT WAS HELD THAT SUCH STATEMENTS, ADMISSIONS AND CONFESSIONS ARE BINDI NG AND CANNOT BE RETRACTED, UNLESS AND UNTIL IT IS PROVED BY LEGALLY ACCEPTABLE EVIDENCE THAT SUCH ADMISSION, CONFESSION OR OATH STATEMENT WAS IN VOLUNTARY OR WAS TENDERED UNDER COERCION OR DURESS. DRAWING SUPPORT FROM THE DECISION OF THE SUPREME COURT IN THE CASE OF SURJEET SINGH CHHABRA V. UNION OF INDIA [1997] 1 SCC 508 THE TRIBUNAL DISALLOWED PLEA OF RETRACTION OF THE ASSESSEE ON THE GROUND THAT NEITHER THE GROUND OF COERCION OR DURESS NOR THE GROUND OF INVOLUNTARY STATEMENT WAS PROVED TO HAVE EXISTED AT THE TIME OF RECORDING OF THE STATEMENT. THIS DECISI ON OF THE TRIBUNAL GOES TO INDICATE THAT ADMISSIONS OR CONFESSIONS MADE IN THE STATEMENTS RECORDED DURING SEARCH OR SURVEY, WITHOUT THERE BEI NG ANY OTHER EVIDENCE TO SUPPORT SUCH ADMISSIONS, CAN SUCCESSFULLY BE MAD E USE OF TO ASSESS THE INCOME, UNLESS THEY ARE PROVED TO BE INVOLUNTARY OR ARE PROVED TO HAVE BEEN TAKEN UNDER DURESS, COERCION, MISCONCEPTION, E TC. IN THE CASE OF ACIT V HUKUM CHAND JAIN (2011) 337 ITR 238 (CHHATIS GARH), THE HON'BLE CHHATISGARH HIGH COURT HAVE HELD THAT THE A DMISSION MADE BY THE ASSESSEE IS AN IMPORTANT EVIDENCE, BUT CAN BE REBUT TED, IF THE STATEMENT IS EXTORTED BY COERCION AND DURESS. HOWEVER THE BURDEN OF PROVING THE COMPULSION WOULD LIE ON THE ASSESSEE. WHERE THE ASSESSEE FEELS THAT THE STATEMENT HAS BEEN MADE MISTAKENLY, HE SHOULD S EEK TO RETRACT THE STATEMENT AT THE EARLIEST OPPORTUNITY A FTER SUCH STATEMENT. 8. IN THE CIRCUMSTANCES AND FACTS OF THE CASE, GROUND NO.1 IS DISMISSED. 9. AS REGARDS GROUND NO.2, THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE MAINTAINS A CURRENT ACCOUNT NO.50362 WITH SBI, JODA IN WHICH AN AMOUNT OF 7 ITA NO.39/CTK/2013 ASSESSMENT YEAR :2007-08 RS.1,75,000/- HAS BEEN DEPOSITED IN CASH ON FOUR DI FFERENT DATES. OUT OF THE SAID AMOUNT, RS.20,000/- WAS DEPOSITED ON 16.5.2006. TH E ASSESSEE IN HIS STATEMENT RECORDED ON OATH ON 20.12.2006 ADMITTED THAT THE AB OVE DEPOSIT OF RS.1,75,000/- INCLUDES THE DEPOSIT OF RS.20,000/- BELONGING TO TH E IMPUGNED ASSESSMENT YEAR AS HIS INCOME FROM UNEXPLAINED SOURCES, WHICH WAS OFFERED FOR TAXATION BUT SAME WAS NOT DECLARED IN THE RETURN OF INCOME. 10. WE HAVE HEARD THE PARTIES. THE ISSUE IS IDENTI CAL TO GROUND NO.1 HEREINABOVE AND, ACCORDINGLY, OUR FINDINGS ARE IDEN TICALLY APPLICABLE TO GROUND NO.2. FOLLOWING THE SAME, GROUND NO.2 IS DISMISSED. 11. AS REGARDS GROUND NO.3, THE BRIEF FACTS OF THE CASE ARE THAT DURING THE COURSE OF SURVEY ON 30-11-2006 AND IN THE POST SURV EY INQUIRY, THE AO FOUND THAT THE ASSESSEE HAS CONSTRUCTED A TRIPLE STORIED BUILDING AT JODA. THE GROUND AND FIRST FLOOR OF THE BUILDING WERE RENTED FOR A MONTHLY RENT OF RS. 25,000/-EACH TO M/S APEX EXPORT AND M/S T.P. SAO & SONS RESPECTIVELY. IN HIS STATEMENT U/S.133A RECORDED DURING THE COURSE OF THE SURVEY, THE ASSESSEE SUBMITTED THAT BOTH THE SE FLOORS OF THE BUILDING WERE GIVEN ON RENT FROM THE MONTH OF AUGUST,2006. HE ALSO ADMI TTED THAT THERE IS NO RENT AGREEMENT WITH THE TENANTS. DURING THE SCRUTINY PRO CEEDING, HOWEVER, THE AO NOTICED THAT WHILE THE ASSESSEE HAS SHOWN RENTAL INCOME FRO M M/S T.P. SAO & SONS, HE HAS NOT DISCLOSED ANY RENTAL INCOME FROM M/S APEX EXPORT. WH EN ASKED ABOUT THE SAME, THE ASSESSEE SUBMITTED BEFORE THE AO THAT M/S APEX EXPO RT LEFT THE PREMISES IN THE MONTH OF DECEMBER,2006 WITHOUT ANY INFORMATION AND WITHOU T PAYMENT OF RENT FOR TWO MONTHS. NOT SATISFIED WITH THE EXPLANATION OF THE A SSESSEE, THE AO COMPUTED THE RENTAL INCOME FROM M/S APEX EXPORT FOR FIVE MONTHS I.E. FRO M AUGUST'06 TO DECEMBER'06 @ RS.25,000/- PER MONTH AND AFTER ALLOWING DEDUCTION ON ACCOUNT OF REPAIRS BROUGHT TO 8 ITA NO.39/CTK/2013 ASSESSMENT YEAR :2007-08 TAX AN AMOUNT OF RS.87,500/-. IN FIRST APPEAL, THE ACTION OF THE ASSESSING OFFICER WAS UPHELD. 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD CIT(A) THE ASSES SEE CLEARLY LACKS BONAFIDE IN THIS CASE BECAUSE AS ADMITTED BY THE LD. COUNSEL FOR THE ASSESSEE IN HIS WRITTEN SUBMISSION, IT RECEIVED AN AMOUNT FROM THE TENANT WHICH WAS ADM ITTEDLY NOT DISCLOSED IN THE RETURN FILED FOR NO APPARENT REASON. THE ASSESSEE DURING T HE SURVEY ON 30-11-2006 NEVER STATED THAT HE HAS NOT RECEIVED THE RENT FOR ANY OF THE MONTHS BEGINNING AUGUST. HE ALSO DID NOT INFORM ABOUT THE NON-RECEIPT OF THE RE NT IN HIS STATEMENT U/S. 131 ON 20- 12-2006 WHEN A RESIDUARY QUESTION WAS PUT TO HIM AS TO WHETHER HE HAS ANYTHING ELSE TO SAY. THEREFORE, SINCE TILL DECEMBER,2006, THE AS SESSEE HAS NOT EVEN INDICATED TO THE AO DESPITE SEVERAL INTERACTION WITH HIM ABOUT NON-R EALISATION OF THE RENT. ACCORDINGLY, THE AO HAS BEEN QUITE REASONABLE IN TAKING THE RENT AL INCOME FOR THE PERIOD TILL DECEMBER,2006 AND NOT FOR THE REMAINING PERIOD OF T HE FINANCIAL YEAR. IN VIEW OF THE SAME, WE FIND NO INFIRMITY IN THE ORDER OF THE LD C IT(A), WHO HAS RIGHTLY CONFIRMED THE ACTION OF THE AO. GROUND NO.3 IS DISMISSED. 13. GROUND NO.4 RELATES TO ORDER PASSED U/S.143(3) IS BARRED BY LIMITATION. IN THE PRESENT CASE, THE ORDER WAS PASSED ON 31.12.200 9. THE LD COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION THAT IT WAS LATE BY 21 DAYS A ND THE AO WAS NOT JUSTIFIED AND WAS NOT GETTING ANY BENEFIT BY KEEPING THE ORDER WITH H IM FOR 21 DAYS. THE LD D.R. ON THE OTHER HAND RELIED ON THE ORDER OF THE LD CIT(A). 14. WE HAVE HEARD THE PARTIES. THERE IS NO DISPUTE THE FACT THAT THE ORDER WAS PASSED BY THE AO ON 31.12.2009 WITHIN THE PRESCRIBE D LIMIT. IT HAS BEEN OBSERVED BY 9 ITA NO.39/CTK/2013 ASSESSMENT YEAR :2007-08 THE LD CIT(A) THAT THE SAME WAS DISPATCHED ON THE S AME DATE BUT HOWEVER, THE SAME RECEIVED LITTLE LATE DOES NOT VIOLATE THE LAW. WE CONCUR WITH THE VIEW OF THE LD CIT(A) IN VIEW OF THE DECISION OF THE HONBLE CALCUTTA HIGH C OURT IN THE CASE OF 372 ITR 414, WHEREIN, IT HAS BEEN HELD THAT WHERE THE ASSESSMENT HAS BEEN COMPLETED BY THE TIME PRESCRIBED BY THE ACT, THEN THE DEPARTMENT NOT DISP ATCHING THE ASSESSMENT ORDER TO THE ASSESSEE CANNOT BE AN INDICATION THAT THE ASSESSMEN T IS BARRED BY LIMITATION. IN THE CIRCUMSTANCES AND FACTS OF THE CASE, WE FIND NO INF IRMITY IN THE ORDER OF THE LD CIT(A), WHO HAS RIGHTLY CONFIRMED THE ACTION OF THE AO. AC CORDINGLY, GROUND NO.4 IS DISMISSED. 15. GROUND NO.5 IS GENERAL IN NATURE AND DO NOT REQ UIRE ANY ADJUDICATION. 16. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 2 /0 5/2015. SD/- SD/- ( ) (SUNIL KUMAR YADAV) ( . . ) (B.P.JAIN) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK; DATED /05/2015 B.K.PARIDA, SPS 0 0 0 0 %) %) %) %) 3!) 3!) 3!) 3!) / COPY OF THE ORDER FORWARDED TO : 0 0 0 0 / BY ORDER, 4 44 4 / 5 5 5 5 (ASSTT. REGISTRAR) , / ITAT, CUTTACK 1. '$ / THE APPELLANT 2. %&'$ / THE RESPONDENT. 3. 6 ( ) / THE CIT(A), 4. 6 / CIT 5. 7 %) , , , / DR, ITAT, CUTTACK 6. 9 :, / GUARD FILE. &) %) //TRUE COPY//