The ITO, 5(2), V. Shri Omprakash Dembla,

ITA 445/IND/2006

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1482 (ITAT-INDORE)
• Duration Of Justice: 3 year(s) 4 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-11-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-11-2009
• Assessment Year: 1999-2000
• Appeal Filed On: 20-06-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: APARNA KARAN
• Keywords: Valuation report; Condonation of delay
• Section: 133A; 148

Judgement Text

PAGE 1 OF 7 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JM AND SHRI V.K. GUPTA, AM ITA NO.445/IND/2006 ASSESSMENT YEAR: 1999-00 ITO-5(2), INDORE ..APPELLANT V/S. OMPRAKASH DEMBLA, 27, JAIL ROAD, INDORE (PAN ABAPD 1473 D) ..RESPONDENT DEPARTMENT BY : SMT. APARNA KARAN, SR. DR ASSESSEE BY : NONE ORDER PER JOGINDER SINGH, JM THIS APPEAL IS BY THE REVENUE CHALLENGING THE ORDER OF LD. CIT(A)-II, INDORE, DATED 31.3.2006. THE REVENUE HAS MOVED AN APPLICATION FOR CONDONATION OF DELAY OF 15 DAYS FOR FILING THIS APPEAL LATE BEFORE THE TRIBUNAL FOR WHICH THE LD. SR. DR C ONTENDED THAT THE ASSESSING OFFICER SHIFTED HIS FAMILY FROM RATLAM TO INDORE DURING THE CAPTIONED PERIOD AND ON JOINING THE NEW OFFICE, FOU ND THAT THE APPEAL WAS TO BE FILED IN THE PRESENT CASE. HOWEVER, IT WA S CLAIMED THAT IT WAS AN INADVERTENT AND BONA FIDE OMISSION. IN VIEW OF THIS FACT, THE DELAY IS CONDONED. NOTICE OF HEARING WAS SENT TO TH E ASSESSEE PAGE 2 OF 7 THROUGH REGISTERED/AD POST AND THE NOTICE WAS DULY RECEIVED ON 15.9.2009 AS IS EVIDENT FROM POSTAL ACKNOWLEDGEMENT AVAILABLE ON THE FILE. INSPITE OF SERVICE OF NOTICE, THE ASSESSEE NE ITHER PRESENTED HIMSELF NOR MOVED ANY ADJOURNMENT PETITION, CONSEQU ENTLY, WE HAVE NO OPTION BUT TO PROCEED EXPARTE QUA-ASSESSEE AND T END TO DISPOSE OF THIS APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON R ECORD. 2. THE FIRST GROUND RAISED BY THE REVENUE IS THAT O N THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED COMMISSI ONER OF INCOME- TAX (APPEALS) ERRED IN DELETING THE ADDITION OF RS. 1,55,000 MADE ON ACCOUNT OF DIFFERENCE BETWEEN CREDIT & DEBIT AS UNE XPLAINED CREDIT. 3. DURING HEARING OF THIS APPEAL, THE LD. SR. DR PL ACED RELIANCE UPON THE ASSESSMENT ORDER BY CONTENDING THAT NO OPPORTUN ITY WAS PROVIDED TO THE ASSESSING OFFICER, THEREFORE, IT IS A VIOLAT ION OF RULE 46A OF THE IT RULES, ESPECIALLY WHEN THE ASSESSEE DID NOT PROV E THE SOURCE OF THE IMPUGNED CREDITS. THE ADDITION OF RS.1,55,000 WAS D EFENDED. WE HAVE CONSIDERED THE SUBMISSIONS PUTFORTH BY THE LD. SR. DR AND PERUSED THE MATERIAL AVAILABLE ON THE FILE. BRI EF FACTS ARE THAT THE ASSESSEE DECLARED INCOME OF RS.76,760/- IN ITS RETU RN FILE ON 26.12.2001. A SURVEY U/S 133A OF THE ACT WAS CARRIE D OUT AT THE BUSINESS PREMISES I.E. M/S. BOMBAY RADIO & ELECTRON IC GALLERY, OF THE ASSESSEE ON 6.2.2004, WHEREIN, CERTAIN DOCUMENTS FO R THE PURCHASE OF PAGE 3 OF 7 IMMOVABLE PROPERTY WERE FOUND AND IMPOUNDED. A NOTI CE U/S 148 OF THE ACT WAS SERVED UPON THE ASSESSEE. THE ASSESSEE SHOWED CREDITS OF RS.6,15,000 IN THE FIRM ACCOUNT AND DEBITED RS.4 ,65,000 IN THE CURRENT ACCOUNT OF THE ASSESSEE. THE ASSESSEE TREAT ED THE DIFFERENCE OF RS.1,55,000 AS UNEXPLAINED AND ADDED TO THE INCO ME OF THE ASSESSEE. ON APPEAL, THE IMPUGNED ADDITION WAS DELE TED WHICH IS UNDER CHALLENGE BEFORE THIS TRIBUNAL. IT IS SEEN TH AT THE NECESSARY DETAILS WERE CLAIMED TO BE FURNISHED BY THE ASSESSE E. HOWEVER, AT FIRST APPELLATE STAGE, THE ASSESSEE PREFERRED WRITT EN SUBMISSION ALONG WITH COPY OF CAPITAL AND CURRENT ACCOUNT OF THE ASS ESSEE. THERE IS A FINDING IN THE IMPUGNED ORDER THAT THE FACTS NARRAT ED AT PAGE 4 WERE NOT CONFRONTED TO THE ASSESSEE. WITHOUT COMMENTING FURTHER, THE ASSESSEE FURNISHED THE COPY OF DEPOSITS AND WITHDRA WALS, AS HAS BEEN MENTIONED AT PAGE 5 OF THE IMPUGNED ORDER WHICH ARE AS UNDER: DEPOSITS (AMOUNT IN RS.) DATE AMOUNT REMARKS 11.8.98 150000 CHEQUE NO.049626 OF BANK OF INDIA 11.9.98 100000 CHEQUE NO. 486380 OF INDORE PREMIER CO-OP BANK LTD. 15.9.98 150000 CHEQUE NO. 049628 OF PAGE 4 OF 7 INDORE PREMIER CO-OP BANK LTD. 3.11.98 90000 CHEQUE OF INDORE PREMIER CO-OP BANK LTD. 26.12.98 45000 CHEQUE OF INDORE PREMIER CO-OP BANK LTD. 5.1.99 80000 CHEQUE OF INDORE PREMIER CO-OP BANK LTD. TOTAL: 6,15,000 WITHDRAWALS (AMOUNT IN RS.) DATE AMOUNT 26.10.98 100000 26.10.98 150000 31.12.98 135000 13.2.99 80000 TOTAL 4,65,000 IF THE AFORESAID UNCONTROVERTED FACTS ARE ANALYSED , IT IS SEEN THAT THE IMPUGNED AMOUNTS WERE WITHDRAWN THROUGH CHEQUES AND THE DEPOSITS IN THE BANK ACCOUNT ARE EITHER BY WAY OF R EALISATION OF AMOUNT ADVANCED TO PARTIES AND THE WITHDRAWALS FROM THE FIRMS OF THE PAGE 5 OF 7 ASSESSEE. IT IS ALSO A FACT THAT FROM ASSESSMENT YE AR 1995-96 TO 1998-99, THE ASSESSEE REGULARLY DISCLOSED INTEREST INCOME FROM THE TEMPORARY ADVANCES MADE TO PARTIES. THE DETAILS OF INTEREST AMOUNT OF RS.4200/- (ASSESSMENT YEAR 1995-96), RS.5500/- ( ASSESSMENT YEAR 1996-97), RS.6200/- (ASSESSMENT YEAR 1997-98) AND R S.5600/- (ASSESSMENT YEAR 1998-99) WERE DULY FURNISHED BY TH E ASSESSEE. IN VIEW OF THIS FACT, WE ARE OF THE CONSIDERED OPINION THAT THE IMPUGNED ADDITION IS DULY EXPLAINED, CONSEQUENTLY, IT WAS RI GHTLY DELETED BY THE LD. FIRST APPELLATE AUTHORITY. THERE IS NO INFIRMIT Y IN THE ORDER. 4. THE NEXT AMOUNT OF RS.5 LACS DELETED BY THE LD. FIRST APPELLATE AUTHORITY ADDED ON ACCOUNT OF REPAIR AND RENOVATION OF PROPERTY HAS BEEN CHALLENGED BY THE REVENUE. THE LD. SR. DR STRO NGLY DEFENDED THE ADDITION. WE HAVE CONSIDERED THE ARGUMENTS PUTFORTH BY THE L D. SR. DR AND FOUND THAT SMT. JYOTI DEMBLA, WIFE OF THE ASSESSEE, RENTED OUT HER HOUSE PROPERTY TO THE ASSESSEE AT A MONTHLY RATE OF RS.6,000/-. THE CLAIM OF THE ASSESSEE IS THAT NO ADDL. EXPENDITURE WAS INCURRED BY THE LANDLADY WHILE RENTING OUT THE PROPERTY. HOWEVER, T HERE WAS NO WRITTEN AGREEMENT. THE PRESUMPTION OF THE ASSESSING OFFICER IS THAT PROPERTY WAS NOT RENTED OUT WITHOUT MAKING ANY RENO VATION/REPAIR. IN THE ABSENCE OF ANY VALUATION REPORT, THE CONSTRUCTI ON EXPENSES WERE ESTIMATED AT RS.2.5 LACS EACH (TOTAL RS.5 LACS). TH E ESTIMATION IN THE PAGE 6 OF 7 HANDS OF THE WIFE WAS ON PROTECTIVE BASIS. THE STAN D OF THE ASSESSEE BEFORE CIT(A) IS THAT NO RENOVATION/REPAIR WAS DONE BY THE ASSESSEE. IT IS FOUND THAT PERMISSION WAS TAKEN BY THE ORIGIN AL OWNER OF THE PROPERTY FOR REPAIR/RENOVATION AND CONSTRUCTION OF THE BASEMENT/GROUND FLOOR/SECOND FLOOR VIDE LETTER DATE D 8.6.99 AND DURING SURVEY, IT WAS FOUND THAT CONSTRUCTION WAS D ONE AS PER THE PERMISSION DATED 8.6.99. IN VIEW OF THIS FACT, IT I S CLEAR THAT NO EXPENDITURE WAS INCURRED BY THE ASSESSEE. IN VIEW O F THIS FACT AND UNCONTROVERTED FACTUAL FINDING MENTIONED IN THE IMP UGNED ORDER, WE ARE OF THE OPINION THAT THERE IS NO SUBSTANCE IN TH E CONTENTION OF THE REVENUE, WHICH SEEMS TO BE IMAGINARY. EVEN THE SURV EY WAS CONDUCTED AND NOTHING CONTRARY WAS FOUND JUSTIFYING THE IMPUGNED EXPENDITURE. THE ADDITION HAS BEEN RIGHTLY DELETED. 5. THE NEXT ADDITION OF RS.50,000 ON ACCOUNT OF WAT ER AND PROPERTY TAX DELETED IN THE IMPUGNED ORDER HAS ALSO BEEN CHA LLENGED. THE LD. SR. DR DEFENDED THE ADDITION. 6. AS PER THE REVENUE, ASSESSEE DID NOT REFLECT ANY FIGURE ON ACCOUNT OF WATER TAX, PROPERTY TAX ETC. IN RESPECT OF THE H OUSE PROPERTY, ACCORDINGLY, AN EXPENDITURE OF RS.50,000 WAS ESTIMA TED FOR TAXATION. HOWEVER, WE HAVE NOT FOUND THAT THE REVENUE HAS NOT ADDUCED ANY EVIDENCE TO SUBSTANTIATE ITS ESTIMATION, THAT TOO W ITHOUT BRINGING ANY PAGE 7 OF 7 COGENT MATERIAL ON RECORD, SUCH AN ADDITION MADE ON HYPOTHESIS CANNOT BE SUSTAINED BECAUSE SUSPICION CANNOT TAKE T HE SHAPE OF EVIDENCE, HOWEVER STRONG IT MAY BE, CONSEQUENTLY, T HERE IS NO INFIRMITY IN THE IMPUGNED ORDER. AS FAR AS THE ASSERTION OF THE LD. SR. DR THAT THE RE IS A VIOLATION OF RULE 46A OF THE IT RULES THAT NO OPPORTUNITY WAS PR OVIDED TO THE ASSESSING OFFICER IS ALSO IMAGINARY BECAUSE FROM TH E IMPUGNED ORDER, IT IS CLEAR THAT REMAND REPORT WAS SOUGHT FROM THE ASSESSING OFFICER AND THE WRITTEN SUBMISSION DULY FURNISHED BY THE AS SESSEE AT THE FIRST APPELLATE STAGE WERE DULY CONFRONTED TO HIM. IN VIE W OF THIS UNCONTROVERTED FACT, WE ARE OF THE CONSIDERED OPINI ON THAT THERE IS NO VIOLATION AS SUCH. IN THE RESULT, APPEAL OF THE REVENUE IS HAVING NO MERIT, THEREFORE, DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11.11.2009. SD/- SD/- (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 11.11.2009 !VYAS! COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR