Shiv Narain Agarwal, Lucknow V. Income Tax Officer-1(3), Lucknow

ITA 400/LKW/2007

• Counselvise Citation: 40023714 RSA 2007
• Duration Of Justice: 6 year(s) 11 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 24-04-2014
• Assessment Year: 1990-1991
• Appeal Filed On: 25-05-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R K RAM
• Assessee Lawyers: S C AGARWAL
• Keywords: Document seized; Additional evidence; Valuation report; Documents seized
• Section: 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.400/LKW/2007 ASSESSMENT YEAR:1990 - 91 SHRI SHIV NARAIN AGARWAL, DALIGANJ, LUCKNOW. VS. INCOME TAX OFFICER - 1(3), LUCKNOW. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI S. C. AGARWAL, ADVOCATE RESPONDENT BY SHRI R. K. RAM, D.R. DATE OF HEARING 24/04/2014 DATE OF PRONOUNCEMENT 1 3 /05/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - I, LUCKNOW DATED 14/03/2005 FOR ASSESSMENT YEAR 1990 - 91. 2. THE LEARNED A.R. OF THE ASSESSEE SHRI S. C. AGARWAL MOVE D AN APPLICATION FOR GRANTING ADJOURNMENT ON THE PLEA THAT HE IS ILL AND NOT IN A POSITION TO GET THE APPEAL PREPARED FOR ARGUMENTS. PRIOR TO THIS , ON 10/04/2014 AND ALSO ON 24/02/2014, THE SAME LEARNED A.R. MADE THE SAME REQUEST FOR ADJOURNMENT ON THE SAM E PLEA THAT HE IS NOT KEEPING WELL. ON ALL THESE OCCASIONS, IT WAS MADE CLEAR BY THE BENCH THAT THE ADJOURNMENT IS GRANTED WITH LAST OPPORTUNITY. THE APPEAL WAS FILED IN THE YEAR 2007 AND HENCE, IT IS VERY OLD APPEAL. UNDER THESE FACTS, THE ADJOURNMENT APPLICATION OF LEARNED A.R. WAS REJECTED AND A.R. OF THE ASSESSEE WAS ASKED TO MAKE HIS ARGUMENTS. IT WAS SUBMITTED BY HIM THAT HE HAD NO INSTRUCTION FROM THE ASSESSEE AND THEREFORE, HE CANNOT MAKE ANY ARGUMENT EXCEPT THAT THE SAME CONTENTIONS, WHICH WERE RAISED BEFORE CIT(A) ARE BEING REITERATED. 2 3. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1. THAT IN ANY VIEW OF THE MATTER ORDER PASSED UNDER SECTION 143(3)/148 O F THE INCOME - TAX ACT, 1961 IS BAD BOTH ON THE FACTS AND IN LAW AND THE ADDITION OF RS. 6, 94,693.00 IS NOT CORRECT. 2. THAT IN ANY VIEW OF THE MATTER ACTION UNDER SECTION 148 OF THE INCOME - TAX ACT. 1961 IS ILLEGAL BECAUSE THERE WAS NO ESCAPE MENT OF INCOME HENCE THE NOTICE UNDER SECTION 148 OF THE INCOME - TAX ACT, 1961 ISSUED IS ILLEGAL AND THE ACTION IS UNWARRANTED. 3. THAT IN ANY VIEW OF THE MATTER THE COMMISSIONER OF INCOME - TAX (APPEALS) WAS WRONG IN CONFIRMING THE ADDITION OF RS.6,94,693.00 ON THE BASIS OF DVD'S REPORT. THE DVO'S REPORT IS NOT AN INDEPENDENT REPORT HENCE THE SAME IS LIABLE TO BE IGNORED AND LIKEWISE ACTION UNDER SECTION 148 OF THE INCOME - TAX ACT, 1961 ON THE BASIS OF DVO'S REPORT IS UNWARRANTED. 4. THA T IN ANY VIEW OF THE MATTER ADDITION OF RS.6,28,846.00 BY SAYING AS UNDISCLOSED INCOME IS HIGHLY UNJUSTIFIED IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THAT IN ANY VIEW OF THE MATTE R ENTIRE WORKING OF THE D.V.O. IS INCORRECT AND THE COST OF CONSTRUCTION AS DETERMINED BY THE DVO IS FALSE AND BOGUS. 6. THAT IN ANY VIEW OF THE MATTER INTEREST CHARGED UNDER DIFFERENT SECTIONS OF THE ACT IS HIGHLY UNJUSTIFIED AND ILLEGAL. 7. THAT IN ANY VIEW OF THE MATTER THE APPELLANT RESERVES HIS RIGHT TO TAKE ANY FRESH GROUND BEFORE HEARING OF APPEAL. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. THE ISSUE IN DISPUTE WAS DECIDED BY CIT(A) AS PER PARA 5 OF HIS ORDER, WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: 3 5. IN APPEAL THE APPELLANT HAS FILED A PAPER BOOK OF 70 PAGES WHICH WAS ALSO FILED BEFORE THE HON'BLE ITAT AND ALSO A LETTER IN REPLY TO THE REMAND REPORT OF THE AO DATED 30.11.06 WHICH IS ON RECORD. OF THE 70 PAGES FILED, PAGES 14 TO 57 CONTAIN THE DVO'S REPORT, PAGES 58 - 70 APPELLANT'S VALUATION REPORT, PAGE 6 STATEMENTS RECORDED, PAGES 1 - 5 FACTS OF THE CASE. THESE HAVE BEEN EXAMINED. THE APPELLANT STATES THAT THE AO DID NOT EVALUATE THE DETAILS FILED NOR EXAMINED THE SAME AND TOTALLY IGNORED THE SURRENDER MADE OF RS.25 LA CS U/S 132(6) AFTER CASH RECOVERIES, DEMAND DRAFTS AND THE DOCUMENTS. ON PERUSAL OF THE PAPERS SUBMITTED BY THE APPELLANT, IT IS OBSERVED THAT ONLY FOLLOWING 3 AMOUNTS RELATING TO THE SOURCE OF INVESTMENT PERTAIN TO THE YEAR UNDER CONSIDERATIONS : - I) ON 28.03.90 RS. 50,000/ - GIVEN BY SMT. KIRAN DEVI AGARWAL II) ON 16.06.89 RS. 10,000/ - WITHDRAWN FROM CAPITAL A/C III) ON 22.08.89 RS. 70,000/ - WITHDRAWN FROM CAPITAL A/C RS.1,30,000/ - IT IS SEEN THAT THE AO HAS ACCEPTED THE INVESTMENT TO THE TUNE OF RS.1,30,000/ - . HOWEVER, AS REGARDS THE BALANCE INVESTMENT OF RS.6,28,846/ - , THE APPELLANT WAS UNABLE TO EXPLAIN OR GIVE ANY DOCUMENTARY EVIDENCE NEITHER BEFORE THE AO NOR IN APPEAL. THE APP ELLANT STATES THAT THE SOURCE OF INVESTMENT WAS FROM VARIOUS SOURCES, DULY EXPLAINED BUT THE SAME WERE NOT PROPERLY APPRECIATED NEITHER THE SURRENDERED AMOUNT OF RS.25 LACS WAS OVERLOOKED WHICH WAS DECLARED FOR F.Y. 91 - 92. A SCRUTINY OF THE ASSESSMENT AND APPELLATE RECORDS REVEALS THAT THE AO HAD ACCORDED PROPER AND SUFFICIENT OPPORTUNITY TO THE APPELLANT TO EXPLAIN THE SOURCE OF INVESTMENT MADE BY HIM IN THE CONSTRUCTION OF THE HOUSE PROPERTY. IN THE WRITTEN SUBMISSIONS FILED ON 31.05.05, THE APPELLANT STATES THAT THE UNDISCLOSED INCOME WAS DETERMINED ON THE BASIS OF THE DVO'S REPORT WHO ESTIMATED THE INVESTMENT IN A.Y. 90 - 91 AT RS.12,35,305/ - WHEREAS THE APPELLANT HAD INVESTED RS.9,45,400/ - IN THE IMPUGNED ASSESSMENT YEAR AND THE SOURCE WAS EXPLAINED. THE PERIOD OF CONSTRUCTION IS ALSO STATED TO BE MAY 1989 TO MARCH 1991 AND THE SOURCE OF INVESTMENT IS STATED TO BE FROM VARIOUS SOURCES VIZ LOANS FROM PERSONS, LOANS FROM LIC AND SURRENDERED AMOUNT OF RS.25 LACS WAS NOT CONSIDERED . , 4 THERE IS NO DOUBT THAT THE APPELLANT MADE A DECLARATION OF RS.25 LACS IN HIS HIS STATEMENT RECORDED ON 11.03.1992 BUT NO EVIDENCE IS FILED WHETHER THE TAX WAS PAID ON THIS AMOUNT NOR WHETHER THE SOURCE OF THIS AMOUNT WAS EXPLAINED WITH EVIDENCE. IN THE STA TEMENT OF THE APPELLANT, RECORDED BY THE OFFICER DURING SEARCH & SEIZURE OPERATIONS, IT WAS POINTED OUT THAT THERE WERE TRANSACTIONS IN THE BOOKS OF R.K. RELATING TO SHARES OF RS.4,43,626/ - , RS.2,30,532/ - S.N. A/C RS . 5,90,000/ - , DALALI A/C RS.1,91,000/ - , CA SH OF RS.6,20, 000/ - IN THE ACCOUNT OF MADAN LAL FETA DAS, ANAND KUMAR RS.90,000/ - , RECEIPTS OF RS.2,64,611/ - PLUS SEVERAL OTHER SUCH ENTRIES BUT ALL ENTRIES ARE DATED 31.12.91, 05.03.92 & 10.03.92 WHICH DO NOT IN ANY CASE RELATE TO THE IMPUGNED ASSESSMENT YEAR NOR DOES THE DECLARATION COVER THE INVESTMENTS MADE IN THE IMPUGNED ASSESSMENT YEAR. IT SEEMS THAT THE APPELLANT HAS NO EVIDENCE OR ANY EXPLANATION REGARDING SOURCE OF THE BALANCE INVESTMENT I.E. RS.6,28,846/ - . ON THE OTHER HAND, THE AO HAS PASSED A DETAILED AND SPEAKING ORDER AFTER SCRUTINY OF THE SEIZED DOCUMENTS AND CONSIDERING THE REPLY AND OTHER PAPERS FURNISHED BY THE APPELLANT. IN VIEW OF THESE FACTS, THE ADDITION IS UPHELD. 5.1 FROM THE ABOVE PARA OF THE ORDER OF LEARNED CIT(A), WE FIND THAT THE CIT(A) HAS DECIDED THIS ISSUE AFTER CONSIDERING ALL THE SUBMISSIONS OF LEARNED A.R. OF THE ASSESSEE IN A PROPER MANNER. CONSIDERING THE FACTS OF THE PRESENT CASE AND IN VIEW OF THIS THAT NEITHER ANY FRESH ARGUMENT HAS BEEN MADE BEFORE US BY LEARNED A.R. OF THE ASSESSEE NOR ANY ADDITIONAL EVIDENCE HAS BEEN BROUGHT ON RECORD, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A). WE ALSO FIND THAT THE REMAND REPORT SUBMITTED BY THE ASSESSING OFFICER IS APPEARING ON PAGE 6 TO 8 OF THE PAPER BOOK AND IN PARA 4 OF THE REMAND REPORT, IT IS STATED BY THE ASSESSING OFFICER THAT SCRUTINY OF THE PAPERS SEIZED, CONTAINED SEIZED NOTE BOOK AT SERIAL NO. 7,8,9,11,12 AND 18 OF ANNEXURE - A WHICH REVEALED THAT THE AS SESSEE HAS INVESTED RS.7,58,846/ - IN ASSESSMENT YEAR 90 - 91 AND RS.7,41,360/ - IN ASSESSMENT YEAR 91 - 92 TOTALING RS.15,00,206/ - . THEREAFTER, IN PARA 5 OF THE REMAND REPORT, IT IS FURTHER NOTED BY THE ASSESSING OFFICER THAT THE ASSESSEE FURNISHED THE DETAILS OF RS.1.30 LAC FOR ASSESSMENT YEAR 90 - 91. THE ASSESSING OFFICER ALLOWED THE CREDIT FOR THE 5 SAME AMOUNT OF RS. 1.30 LACS AND MADE ADDITION OF THE BALANCE AMOUNT OF RS.6,28,846/ - . IN THE LIGHT OF THESE FACTS, IT IS APPARENT THAT THE ADDITION IS NOT MADE B Y THE ASSESSING OFFICER ON THE BASIS OF D.V.O.S REPORT ONLY BUT IN FACT , THE ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER ON THE BASIS OF SEIZED MATERIAL AS INDICATED BY HIM IN THE REMAND REPORT, THE RELEVANT CONTENTS OF WHICH ARE NOTED ABOVE. IN VIEW OF ALL THESE FACTS, WE HOLD THAT NO INTERFERENCE IS CALLED FOR IN THE ORDER OF CIT(A). 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 3 /05/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR