Dinesh Chandra Das, Cuttack V. ACIT, Balasore

ITA 537/CTK/2012

• Counselvise Citation: 53722114 RSA 2012
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 06-11-2012
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: S N SAHU
• Keywords: Unexplained cash credit; Unexplained investment; Depreciation; Income from undisclosed sources; Wrong claim
• Section: 69; 11

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , H ONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER / I.T.A.NO. 537/CTK/2012 / ASSESSMENT YEAR 2009 - 10 DINESH CHANDRA DAS, BAHALDA ROAD,BAMANGHATY,MAYURBHANJ, PAN: AAUPD 0546 J - - - VERSUS - ASST.COMMISSIONER OF INCOME - TAX, BAL ASORE CIRCLE,BALASORE. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI S.N.SAHU, AR / FOR THE RESPONDENT: / SHRI S.C.MOHANTY, DR / DATE OF HEARING: 29.11.2012 / DATE OF PRONOUNCEMENT: 14.12.2012 / ORDER . . , , SHRI K.K.GUPTA, ACCOUNTANT MEMBER. THIS APPEAL BY THE ASSESSEE RAISES THE FOLLOWING GROUNDS. 1 . THAT THE ORDER OF THE LEARNED CIT(A) IS ARBITRARY, ILLEGAL, UNCAL LED FOR AND AGAINST THE FACTS ON RECORD AND THE LEARNED CIT(A) IS NOT JUSTIFIED IN DISMISSING THE APPEAL. 2. THAT ALL THE PAYMENT AGAINST PURCHASE OF CINEMA HALL WERE MADE THROUGH BANK BY CHEQUES AND THE UNPAID BALANCE OF 22,20,500 WERE SHOWN AS SUNDRY CREDITO RS THE SAME BEING GENUINE, NO ADDITION WAS CALLED FOR UNDER THE HEAD UNEXPLAINED SUNDRY CREDITORS. MORE SO, THE TRANSACTIONS DO NOT RELATE TO THE YEAR UNDER CONSIDERATION. 3. THAT THE ADDITION ON ACCOUNT OF DISALLOWANCE OF DEPRECIATION ON CINEMA HALL TO A TUNE OF 9,58,210 UNCALLED FOR AND HENCE SHOULD HAVE BEEN DELETED BY THE LEARNED CIT(A). THERE IS NO BAR IN ALLOWING DEPRECIATION AGAINST INCOME OF CINEMA HALL SHOWN ON AN ESTIMATED BASIS. 4. THAT THE EXPENSES CLAIMED AMOUNTING TO 1,17,473 RELATES TO REPAIR A ND COLORING OF THE LODGING AND 3,29,643 THE UNPAID LIABILITIES. THEREFORE SHOULD HAVE BEEN ALLOWED BY THE AUTHORITIES BELOW. I.T.A.NO. 537/CTK/2012 2 5. THAT THE STATEMENT OF FACTS AND GROUNDS OF APPEAL ENCLOSED ALONG WITH THE FORM 35 SUBMITTED BEFORE THE CIT(A) AND ALSO THE WRITTEN SUBMISSIONS MAY PLEASE BE TREATED AS PART OF THE GROUNDS OF APPEAL BEFORE I.T.AT. 6. THAT THE CASE LAW CITED BY THE LEARNED CIT(A) FOR DISMISSING THE APPEAL ARE TOTALLY DISTINGUISHABLE ON FACTS AND HAVE NO RELEVANCE TO THE FACTS OF THE ASSESSEE AND THEREFORE NOT APPLICABLE AND MISCONCEIVED. 2. THE BRIEF FACTS AS HAVE BEEN BROUGHT ON RECORD AS NARRATED BY THE LEARNED COUNSEL OF THE ASSESSEE ARE THAT THE ASSESSEE DERIVES INCOME FROM RAISING IRON ORES FROM ITS IRON ORE MINES. IT FILED ITS RETURN F OR THE IMPUGNED ASSESSMENT YEAR ON INCOME OF 1,44,92,680 , WHICH WAS PROCESSED U/S.143(1). SUBSEQUENTLY THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSMENT WAS COMPLETED U/S.143(3) BY MAKING ADDITIONS OF 22,20,500 ON ACCOUNT OF UNEXPLAINED SUNDRY CREDIT ORS, 9,58,210 ON ACCOUNT OF WRONG CLAIM OF DEPRECIATION ON CINEMA HALL, 1,17,473 ON ACCOUNT OF WRONG CLAIM OF EXPENSES FROM ESTIMATED INCOME FROM LODGING AND 3,29,643 ON ACCOUNT OF UNPAID LIABILITIES. AGAINST THE SAID ASSESSMENT, THE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, WHO UPHELD THE ASSESSMENT. 3. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER MADE THE FOLLOWING ADDITIONS, WHICH HAVE BEEN C ONFIRMED BY THE LEARNED CIT(A). (1) UNEXPLAINED SUNDRY CREDITORS : 22,20,500.00 (2) WRONG CLAIM OF DEPRECIATION ON CINEMA HALL : 9,58,210.00 (3) WRONG CLAIM OF EXPENSES ESTIMATED FROM LODGING: 1,17,473.00 (4) UNPAID LIABILITIES : 3,29,643.00 TOTAL : 36,25,826.00 4.1. THE LEARNED COUNSE L OF THE ASSESSEE FILED A PAPER BOOK CONTAINING VARIOUS DOCUMENTS AND SUBMITTED I N RESPECT OF EACH OF THE ADDITIONS AS UNDER. I.T.A.NO. 537/CTK/2012 3 4.2. IN RESPECT TO ADDITION UNDER THE HEAD UNEXPLAINED SUNDRY CREDITORS OF 22,20,500 , THE LEARNED COUNSEL OF THE ASSESSEE SUBMI TTED THAT THE ASSESSEE PURCHASED AN OLD CINEMA HALL TOGETHER WITH 3 SHOP ROOMS FOR 94,20,500 VIDE SALE DEED DATED 18 - 08 - 2007. IN THE SALE DEED IT WAS NARRATED THAT THE SALE CONSIDERATION OF THE CINEMA HALL WAS PAID AS UNDER : 25.07.2007 BY CHEQUE NO. 2794 BANK OF INDIA, 10,00,000.00 BAHALDA BRANCH (AS ADVANCE) PAYMENT MADE EARLIER BY HAND IN CASH IN THE 24,20,500.00 PRESENCE OF WITNESS (NO DATE, MONTH & YEAR GIVEN) BALANCE TODAY BY CHEQUE NO. 88085 DATED 17.08. 2007 OF BANK OF BARODA, JAMSHEDPUR 60,00,000.00 TOTAL COST OF THE PROPERTY 94,20,500.00 4.3. THOUGH CASH PAYMENT OF 24,20,500 WAS VAGUELY MENTIONED IN THE SALE DEED WITHOUT GIVING DAT E, MONTH AND YEAR BUT ACTUALLY THE SAME WAS NOT PAID AND WAS PAID AFTERWARDS BY CHEQUES / BANK DRAFT. ALL THE PAYMENTS MADE THROUGH BANKING TRANSACTIONS HAVE BEEN DULY RECORDED IN THE REGULAR BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE AND AUDITED U/S. 44 AB OF THE I.T.ACT, 1961. THE LEDGER COPY IS GIVEN BELOW WHICH IS ALSO NOTED BY THE AO IN PAGE 3 PARA 3.4 AND IN PAGE 4 PARA 3.5 OF THE ASSESSMENT ORDER. LEDGER COPY 18 - 08 - 2007 COST OF CINEMA HALL BY CHEQUE 94,20,500.00 25 - 07 - 2007 ADVANCE 10,00,000.00 22 - 08 - 2007 PAYMENT BY CHEQUE RS, 60,00,000.00 18 - 12 - 2007 PAYMENT BY CHEQUE 2,00,000.00 72,00,000.00 BALANCE PAYABLE AS ON 31 - 03 - 2008 22,20,500.00 4.4. THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT FROM THE ABOVE IT CAN BE SEEN THAT ALL THE ABOVE TRANSACTIONS FOR PURCHASE OF THE CINEMA HALL HAVE BEEN TAKEN PLACE DURING THE FINANCIAL YEAR 2007 - 08, ASST. YEAR 2008 - 2009 AND NOT DURING THE YEAR UNDER APPEAL ASST. YEAR 2009 - 2010. BUT ADDITION OF 22,20,500 HAS BEEN MADE DURING THE ASSESSMENT YEAR 2009 - 10. HENCE, THE LEARNED AO HAS TRAVELLED BEYOND HIS JURISDICTION IN MAKING I.T.A.NO. 537/CTK/2012 4 ADDITIONS DURING THE YEAR UNDER CONSIDERATION WHICH IS ILLEGAL AND NOT JUSTIFIED. THE LEARNED AR OF THE ASSESSEE FURTHER CON TENDED THAT THE ASSESSEE HIMSELF BEING PRESENT BEFORE THE ASSESSING OFFICER STATED THAT OUT OF THE BALANCE MONEY OF 22,20,500 THE FOLLOWING PAY MENTS HAVE BEEN MADE BY CHEQUE, 22 - 08 - 2008 - 3,00,000 03 - 02 - 2009 - 3,00,000 - 6,00,000 AND THE RES T OF THE SALES CONSIDERATION AMOUNTING TO 16,20,500 WAS PAID AFTER FINAL PHYSICAL POSSESSION HANDED OVER TO THE ASSESSEE IN PURSUANCE TO AGREEMENT DATED 03 - 02 - 2012 (COPY PLACED IN THE PAPER BOOK) . 4.5. THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT T HE DISPUTE IS ONLY WITH REGARDS TO BALANCE OF 22,20,500, THE CLOSING BALANCE AS ON 31.03.2008 WHICH HAS ALSO THE OPENING BALANCE AS ON 1.4.2008. THIS AMOUNT HAS BEEN ADDED BY THE AO TO THE INCOME RETURNED UNDER THE HEAD UNEXPLAINED SUNDRY CREDITORS O N THE OBSERVATION IN PARAGRAPH 3.10 OF THE ASSESSMENT ORDER - THE ASSESSEE HAS SHOWN BOGUS LIABILITY IN HIS BALANCE SHEET TO THE EXTENT OF 22,20,500, ONLY TO ACCOMMODATE THE ASSETS OWNED BY HIM OUT OF HIS UNACCOUNTED INCOME. THEREFORE UNEXPLAINED CREDI T TO THE EXTENT OF 22,20,500 IS TREATED AS SUCH AND ADDED IN HIS TOTAL INCOME. PENALTY PROCEEDING U/S. 271(1)(C) IS INITIATED IN THIS CASE . THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE BEING PERSONALLY PRESENT BEFORE THE ASSESSING OF FICER HAS EXPLAINED THE ACTUAL TRANSACTIONS BY WAY OF AN AFFIDAVIT WHICH IS ALMOST QUOTED IN PARAGRAPH 3.9 OF THE ASSESSMENT ORDER. THE SAID ASSERTIONS HAS ALSO BEEN CONFIRMED BY S RI LAXMAN PADIA, THE SELLER OF CINEMA HALL BY WAY OF CONFIRMATION LETTER CO NFIRMING THE TRANSACTIONS AS STATED BY THE ASSESSEE, REGARDING THE CLOSING BALANCE POSITION FOR THE FINANCIAL YEAR 2007 - 08 WHICH IS NOTED IN PARAGRAPH 3.3 AND 3.4 OF THE I.T.A.NO. 537/CTK/2012 5 ASSESSMENT ORDER. (CONFIRMATION LETTER COPY PLACED IN THE PAPER BOOK). HE SUBMITTED TH AT SRI LAXMAN PADIA, THE SELLER OF CINEMA HALL CORROBORATED THE SAID ACT RE - CONFIRMED THE SAME WHICH WAS SUBMITTED BEFORE THE CIT(A). 4.6. THE LEARNED COUNSEL OF THE ASSESSEE FURTHER SUBMITTED THAT FROM THE ABOVE IT MAY BE SEEN THAT ALL THE TRANSACTIONS A RE BY CHEQUE AND HAVE BEEN PASSED THROUGH BOOKS OF ACCOUNTS MAINTAINED BY THE ASSESSEE IN COURSE OF BUSINESS AUDITED U/S. 44AB OF THE I.T. ACT AND NO ADVERSE OBSERVATION HAVE BEEN MADE EITHER BY THE AUDITOR OR BY THE ASSESSING OFFICER. THERE IS NO PROVISIO N IN LAW TO MAKE ADDITION AS UNEXPLAINED CREDITORS. ADDITION CAN BE MADE EITHER U/S. 68 OR U/S. 69. THERE IS NO OTHER SECTION IN THE ACT AUTHORIZING AUTHORITIES TO MAKE SUCH ADDITIONS. IT APPEARS, SINCE THE ASSESSING OFFICER HIMSELF WAS NOT SURE , HE DID NOT MENTION THE SECTION UNDER WHICH HE MAKES THE ADDITION. IT IS SETTLED LAW THAT A PERSON CANNOT BE PUNISHED ON MERE SUSPICION AND SURMISES. SUSPICION, HOW SO EVER STRONG CANNOT TAKE THE PLACE OF EVIDENCE (CIT VS. RAM NARAIN GOEL 224 ITR 186 (P&H)). 4.7 . HE FURTHER SUBMITTED THAT THE PRINCIPLE THAT SUSPICION HOWSOEVER STRONG CANNOT BE A SUBSTITUTE FOR LEGAL TRUTH IS WELL ESTABLISHED. FOR THIS PROPOSITION HE RELIED ON THE FOLLOWING DECISIONS. (A) COMMISSIONER OF INCOME - TAX V. RAM NARAIN GOEL 224 I.T.R. 180 (P UNJAB & HAR YANA). (B) THE SAID DECISION IS BASED ON THE PRINCIPLE DECIDED BY HONOURABLE SUPREME COURT OF INDIA IN PLETHORA OF CASES. (C) IN THE CASE OF VIJAY KUMAR ARORA VS. STATE GOVT. OF NCT OF DELHI IN CRIMINAL APPEAL NO. 125 OF 2009 DT. 13.01.2010 HAS HELD THA T THE LAW RELATING TO CIRCUMSTANTIAL EVIDENCE IS WELL SETTLED. IN DEALING WITH CIRCUMSTANTIAL EVIDENCE, THERE IS ALWAYS A DANGER THAT CONJECTURE OR SUSPICION LINGERING ON MIND MAY TAKE PLACE OF PROOF. SUSPICION, HOWSOEVER, STRONG CANNOT BE ALLOWED TAKE PL ACE OF PROOF I.T.A.NO. 537/CTK/2012 6 AND THEREFORE, THE COURT HAS TO BE WATCHFUL AND ENSURE THAT CONJUCTURE AND SUSPICION DO NOT TAKE PLACE OF LEGAL PROOF. THE DOCTRINE OF BENEFIT OF DOUBT APPLIES COURT SHOULD EXCLUDED EACH AND EVERY HYPOTHESIS. (D) IN A RECENT SUPREME COURT JUDGE MENT DECIDED ON 24.8.2012 IN THE CASE OF SUBRAMANIAN SWAMY VS. A. RAJA (2G SPECTRUM CASE) HONOURABLE SUPREME COURT HELD, SRI P. C. AND A.R. SIMILAR VIEW : SUSPICION, HOWEVER STRONG, COULD NOT TAKE PLACE OF LEGAL PROOF (E) SUSPICION HOWSOEVER HIGH CANNOT BE A SUBSTITUTE FOR LEGAL PROOF [(2009) 2 SCC 570 (PARA 23) ROOP SINGH NAGIR VS. PUNJAB NATIONAL BANK. 4.8. IN VIEW OF THE ABOVE, THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ADDITION OF 22,50,500 MADE BY THE ASSESSING OFFICER AND CONFIRMED BY LEARNED CIT(A) IS BASED ON MERE SUSPICION AND SURMISES AND NOT ON MATERIALS ON RECORD. 4.9. IN SO FAR AS PROBABILITY OF HUMAN CONDUCT ARE CONCERNED THE SAME CAN BE ACTED UPON WHEN THE PROBABILITIES ARE REASONABLE AND STRONG AND ADMIT OF NO ALTERNATIVE. IN THE MATTER OF CIRCUMSTANTIAL EVIDENCE COURTS AND TRIBUNAL ACT ON CIRCUMSTANCES THAT ADMIT NO EXCEPTION. INFERENCE OF PROBABILITY COULD ONLY BE DRAWN FROM PROVED FACT, WHICH IS TOTALLY WANTING IN TH E PRESENT CASE. SECTION 68 SPEAKS ABOUT CASH CREDIT AND SECTION 69 ABOUT UNEXPLAINED INVESTMENT. THE ASSESSEE MAINTAINS REGULAR BOOKS OF ACCOUNTS. THE TRANSACTION HAS BEEN PASSED THROUGH BOOKS AND THE ASSET (THE CINEMA HALL) AND LIABILITIES (SUNDRY CRE DITORS) ARE SHOWN IN THE AUDITED BALANCE SHEET. NEITHER THE CLOSING BALANCE NOR THE OPENING BALANCE CAN BE ADDED EITHER U/S 68 OR U/S 69 OF THE I.T ACT. THE LIABILITIES HAVE ALSO BEEN LIQUIDATED THROUGH CHEQUE WHICH HAS BEEN DULY ENTERED IN THE BOOKS OF ACCOUNTS. THE ACCOUNTS HAVE BEEN ACCEPTED. THEREFORE, THERE IS NO REASON I.T.A.NO. 537/CTK/2012 7 FOR THE AO NOT TO ACCEPT THE ENTRIES WITH REGARD TO THE ENTIRE PAYMENT MADE FOR PURCHASE OF CINEMA HALL. NO MATERIALS HAVE BEEN BROUGHT ON RECORD WHICH COULD ENTITLE THE REVENUE TO M AKE SUCH ADDITIONS. 4.10. THE LEARNED COUNSEL OF THE ASSESSEE CONTINUED HIS ARGUMENT THAT THE PURCHASE OF CINEMA HALL AS PER SALE DEED DOES NOT COME WITHIN ACCOUNTING YEAR. HENCE, THE ADDITION OF 22,20,500 IN THE ASSESSMENT FOR THE ASSESSMENT YEAR 2009 - 1 0 IS WITHOUT JURISDICTION AND IS ILLEGAL AND UNWARRANTED. THERE WAS NO INVEST MENT DURING THE RELEVANT YEAR. OPENING BALANCE CANNOT BE ADDED UNDER LAW. SECONDLY, THE ASSESSEE MAINTAINS REGULAR ACCOUNTS AND THE TRANSACTION HAS BEEN PASSED THROUGH ACCOUNTS AN D NO DEFECTS HAS BEEN FOUND EITHER BY THE AUDITOR OR BY AO SO AS TO REJECT THE ACCOUNTS AND NOT BELIEVE THE ENTRIES MADE THERE IN. THE PURCHASE TRANSACTIONS HAVE BEEN DULY REFLECTED IN ACCOUNTS FOR THE ASST. YEAR 2008 - 09 AND THE SAME HAVE BEEN ACCEPTED. MO RE SO, ALL THE PAYMENTS HAVE BEEN MADE THROUGH BANK. THE NARRATION IN THE SALE DEED IS THE SOLE MATERIAL BROUGHT BY THE ASSESSING OFFICER BUT HE SHOULD HAVE ALSO CONSIDERED THE EXPLANATION OF THE ASSESSEE, ENTRIES IN THE ACCOUNTS AND AFFIDAVIT . HE SHOULD HAVE TAKEN A PRACTICAL AND REALISTIC VIEW. HE SHOULD HAVE BEEN PRAGMATIC AND NOT HYPER TECHNICAL. NARRATION OF PAYMENT IN THE SALE DEED IS ONLY TO GET REGISTRATION DONE. THE SUB - REGISTER QUESTIONS WHETHER THE ENTIRE SALES CONSIDERATION HAS BEEN RECEIVED BY THE SELLER, IF HE SAYS YES THEN THE SALE DEED IS REGISTERED. ACTUAL PAYMENT IS NEVER MADE BEFORE THE SUB - REGISTER. GIVING CONSENT OF THE RECEIPT OF THE PAYMENT IS AN USUAL FORMALITY PERFORMED BEFORE THE SUB - REGISTRAR FOR GETTING THE REGISTRATION DO NE. THE DATE OF RECEIPT OF ACTUAL PAYMENT MAY BE DIFFERENT. IT IS MUTUAL UNDERSTANDING BETWEEN THE VENDOR AND VENDEE. THE PRIMARY DUTY OF THE SUB - REGISTRAR ( REGISTERING AUTHORITY) UNDER THE STAMP ACT AND THE INDIAN I.T.A.NO. 537/CTK/2012 8 REGISTRATION ACT IS TO ENSURE CORRECT VAL UATION AND REALIZATION OF STAMP DUTY AND REGISTRATION FEES THEREON. WITHOUT RECEIPT OF SALES CONSIDERATION IF A VENDOR SAYS I HAVE RECEIVED, THE REGISTERING AUTHORITY CANNOT STOP REGISTRATION. THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ASSERTIO NS OF THE ASSESSEE BEING PRESENT BEFORE THE ASSESSING OFFICER AND FILING OF AFFIDAVIT AMOUNTS TO CROSS VERIFICATION. FURTHER, THE SELLER OF THE PROPERTY SRI LAXMAN PADIA HAS CONFIRMED THE FACT BY WAY OF CONFIRMATION LETTER FILED BEFORE THE AO AND AN AFFIDA VIT FILED BEFORE THE CIT(A). 4.11. THE AFFIDAVIT IS NOT AN ORDINARY STATEMENT. IT IS A STATEMENT ON OATH. FALSE AFFIDAVIT EXPOSES A PERSON TO PROSECUTION UNDER SECTION 11 OF THE I.P.C. THEREFORE, AN AFFIDAVIT NOT CONTROVERTED HAS TO BE ACCEPTED. THERE ARE SEVERAL JUDGMENTS OF HONOURABLE SUPREME COURT AND HIGH COURTS ON THIS POINT. [MEHTA PARIKH & CO. 30 ITR P. 181 (S.C) S.C.C. AIR 1984 S.C. 1693 (P. JAYPPAN VS. S. K. PERUONAL), CIT VS. T.I. AND M. SALES LTD. 166 ITR 93 (S.C.) FILINGS FALSE AFFIDAVIT AMOU NTS TO CONTEMPT OF COURT 1990 (2) S.S.C. 149.] . HE FURTHER CONTENDED THAT F ROM THE PLAIN READING OF THE 34 OF THE EVIDENCE ACT, MANIFE S TS THAT WHERE BOOKS OF ACCOUNTS WHICH HAVE BEEN REGULARLY KEPT IN THE COURSE OF BUSINESS, THE ENTRY BECOMES ADMISSIBLE AS RELIABLE EVIDENCE. IT CANNOT BE GAIN SAID THAT BOOK OF ACCOUNTS IN BUSINESS WHERE REGULARLY KEPT, SECTION 34 OF EVIDENCE ACT. ARE OF GENERAL IMPORTANCE. 4.12. THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE PAYMENTS OF 2,00,000 MADE AFTER THE DATE OF REGISTRATION AND BEFORE THE END OF ACCOUNTING YEAR ENDED ON 31.03.2008 DURING THE ASSESSMENT YEAR 2008 - 09 HAS BEEN ACCEPTED AND NOT BEEN QUESTIONED. THEREFORE, EVIDENCE CANNOT PARTLY ACCEPTED AND PARTLY REJECTED. THE ASSES SEE HAS HIMSELF APPEARED AND CONFRONTED HIMSELF BEFORE THE AO AND FILED AN AFFIDAVIT AND THE SAME IS A I.T.A.NO. 537/CTK/2012 9 GOOD PIECE OF EVIDENCE. IT IS A STATEMENT ON OATH AND HAS A STATUS OF EVIDENCE. FALSE AFFIDAVIT EXPOSES A PERSON TO PROSECUTION UNDER CHAPTER 11 OF I.P.C . AN AFFIDAVIT WHICH HAD GONE UNCONTESTED SHOULD HAVE BEEN ACCEPTED, (CIT VS. T.I. AND SELLS LTD, 166 ITR 93 (SC). THE FACTS STATED IN THE AFFIDAVIT ARE CORROBORATED BY OTHER EVIDENCE LIKE CONFIRMATION LETTER FROM THE SELLER OF THE CINEMA HALL, SRI. LAXMA N PADIA. HE SUBMITTED THAT IT MAY BE APPRECIATED THAT THE FACTS STATED BY THE ASSESSEE BY WAY OF AFFIDAVIT HAVE ALSO BEEN CORROBORATED BY SRI. LAXMAN PADIA THE SELLER OF THE CINEMA HALL BY WAY OF AFFIDAVIT WHICH HAS NOT BEEN CONTROVERTED. THE ALLEGATION OF THE DEPARTMENT THAT 24,20,500 HAVE BEEN PAID BY CASH THOUGH DENIED BY THE APPELLANT WHICH IS CONFIRMED BY SELLER BY WAY OF AFFIDAVIT HAS NOT BEEN ACCEPTED. THE WITNESS TO THE SALE DEED COULD HAVE TAKEN CROSS EXAMINED BEFORE REJECTING. THE EXPLANATION THE ASSESSEE WHICH THE DEPARTMENT HAS FAILED TO DO. 4.13. THE SUBMISSION MADE ON BEHALF OF THE ASSESSEE THAT THERE IS NO PROVISION IN LAW TO MAKE ADDITION UNDER THE HEAD UN - EXPLAINED CREDITOR AND THE ADDITION CAN ONLY BE MADE EITHER U/S 68 OR 69. THE LEARNED CIT(A) BY CITING T HE DECISION OF THE MP HIGH COURT IN THE CASE OF VISP (P) LTD VS. CIT, 265 ITR 202(MP) HAS WRONGLY ATTEMPTED TO MAKE OUT A CASE FOR THE DEPARTMENT IS DISTINGUISHABLE ON FACTS. THE LEARNED CIT(A) MISINTERPRETED THE SUBMISSION OF THE ASSESSEE SAYING THAT IN THE AFFIDAVIT FILED BY THE APPELLANT AND SRI LAXMAN PADIA HAS NOT CORROBORATION, EVEN THOUGH BOTH THE AFFIDAVIT CONFIRM THE SAME FACT AND THE CITA REJECTED SUCH CONTENTIONS SAYING THAT AN AFFIDAVIT IS A SELF SERVING DOCUMENT WHICH LACKS EVIDENCIARY VALUE. WHILE REJECTING SUCH SUBMISSIONS THE LEARNED CIT(A) HAS CITED TWO DECISIONS REPORTED IN AIR IN 1992 (DELHI) 220, 223 AND AIR 1970 (SC), 652, 654 WHICH ARE FACTUALLY DIFFERENT. HE HAS ALSO REJECTED THE DECISION OF THE SC I.T.A.NO. 537/CTK/2012 10 CITED ON BEHALF OF THE ASSESSEE IN T HE CASE OF CIT VS. T.I. & SELLS LTD, 166 ITR 93 (SC) AS NOT APPLICABLE IN THE PRESENT CASE. THE LEARNED CIT(A) TO STRENGTHEN HIS VIEW POINTS HAS DISCUSSED ABOUT SIGNIFICANCE OF REGISTRATION ACT, THOUGH THE SAID DISCUSSION HAS NO RELEVANCE TO THE FACTS IN ISSUE. THEREFORE, THE ADDITION UNDER THE HEAD UNEXPLAINED SUNDRY CREDITORS OF 22,20,500 IS LIABLE TO BE DELETED. 5. IN RESPECT OF DISALLOWANCE OF DEPRECIATION ON CINEMA HALL OF 9,58,210 , THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE CLAIM OF DEPRECIATION IN THE AUDITED ACCOUNTS HAS BEEN DISALLOWED ON THE GROUND THAT T HE WRITTEN SUBMISSION FILED BY THE ASSESSEE ON 25 - 07 - 2011 WAS SILENT ABOUT THIS ISSUE AND ASSESSEE HAS NOT MAINTAINED ANY RECORD/REGISTER IN RESPECT OF INCOME FROM CINEMA HALL AND INCOME DISCLOSED IS PURELY ON ESTIMATE BASIS AFTER CONSIDERING ALL EXPENSES. THE FACTS STATED BY THE ASSESSING OFFICER ARE NOT CORRECT. HE SUBMITTED THAT THOUGH IT WAS BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER BY ADVOCATE SRI. B. B. DASH VIDE LETTER DATED 07 - 09 - 2011 , (COPY PLACED IN THE PAPER BOOK ) CINEMA HALL RENT 25,000 SHOP RENT 15,000 CYCLE RENT 10,000 50,000 IT WAS ALSO INFORMED THAT THE SAID AMOUNT HAS BEEN DULY REFLECTED IN THE CASH BOOK EVERY MONTH. BUT UNFORTUNATELY THE SAID FACT HAS NOT BEEN CONSIDERED BY THE AUTHORITIES BELOW. THEREFORE THE AUTHORITIES BELOW HAVE PROCEEDED TO DISALLOW THE DEPRECIATION ON WRONG ASSUMPTION OF FACTS. THE AOS PRESUMPTION THAT THE INCOME HAS BEEN SHOWN IN AN ESTIMATED BASIS AFTER CONSIDERING ALL EXPENSES IS WRONG. ACTUALLY EVERY MONTH THE INCOME @ 50,000 HA S BEEN SHOWN IN THE ACCOUNTS. THE ASSET IS ALSO SHOWN AS BUSINESS ASSET IN THE BALANCE SHEET AND DEPRECIATION HAS BEEN RIGHTLY I.T.A.NO. 537/CTK/2012 11 CLAIMED IN THE DEPRECIATION SCHEDULE AND IN THE TRADING AND PROFIT AND LOSS ACCOUNT DULY CERTIFIED BY THE AUDITOR U/S. 44AB OF THE I.T. ACT, 1961. THEREFORE IT IS CLEARLY ALLOWABLE AS PER THE LAW AND THE ADDITION MAY KINDLY BE DELETED. 6. IN RESPECT OF WRONG CLAIM OF EXPENSES FROM ESTIMATED INCOME FROM LODGING OF 1,17,473 THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER AS WELL AS THE LEARNED CIT(A) WERE UNDER THE WRONG IMPRESSION OF FACT THAT THE INCOME FROM LODGING HAS BEEN SHOWN ON ESTIMATED BASIS WHICH IS NOT CORRECT , BECAUSE LETTER DA TED 25 - 07 - 2011 WAS SILENT ABOUT THE ISSUE. BUT THE COUNSEL APPEARING BEFORE THE ASSESSING OFFICER SRI B.B. DASH VIDE LETTER DATED 07 - 09 - 2011 HAS CLARIFIED THAT EVERY MONTH THE ASSESSEE WAS RECEIVING A FIXED AMOUNT OF 25,000 PER MONTH WHICH AGGREGATES 3,00,000 PER ANNUM. THEREFORE THE EXPENSES CLAIMED TOWARDS REPAIRS OF THE LODGING AMOUNTING TO 1,17,473 IS VERY MUCH ALLOWABLE UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. THE LEARNED COUNSEL OF THE ASSESSEE PLEADED THAT A HYPOTHESIS CANNOT BE DRAWN T HUS MERELY ON THE BASIS OF PROBABILITY OF HUMAN CONDUCT TO VISIT THE ASSESSEE WITH ADDITIONAL TAX LIABILITY. IN CIVIL LAW THE COURTS AND TRIBUNAL DO NOT ACT ON PROBABILITY ALONE BUT ON A PREPONDERANCE OF PROBABILITIES WHICH IT IS HUMBLY SUBMITTED IS WANTIN G IN THE CASE FOR WHICH THE ASSESSEE IS ENTITLE TO BENEFIT OF REASONABLE DOUBT AS PER THE WELL SETTLED PRACTICE AND PROCEDURE APPLIED IN SUCH MATTER. 7. HOWEVER, IN RESPECT OF CONFIRMATION OF ADDITION OF, THE LEARNED COUNSEL OF THE ASSESSEE LEFT IT TO THE DISCRETION OF THE B ENCH WITH RESPECT TO THE DISALLOWANCE OF STATUTORY LIABILITIES REMAINING UNPAID TILL THE DUE DATE OF FILING OF THE RETURN AMOUNTING TO 3,29,643. I.T.A.NO. 537/CTK/2012 12 8. THE LEARNED DR SUBMITTED THAT THE LEARNED CIT(A) HAS CONFIRMED THE DISALLOWANCE AND ADD ITIONS ON ACCOUNT OF BASIC FACTS BROUGHT ON RECORD BY THE ASSESSING OFFICER. HE SUBMITTED THAT THE AMOUNT VERIFIED BY THE ASSESSING OFFICER WAS UNEXPLAINED CREDIT INSOFAR AS THE ASSESSEE WAS TO REPLY REGARDING THE AMOUNT TO BE PAID FURTHER WHICH HAD NOT BE EN ACCOUNTED FOR BUT WERE TO BE MADE AFTER THE ASSESSMENT AS PER THE FINDING TOTALING 16,20,500 . THEREFORE THERE WAS NO ALTERNATIVE BUT TO ACCEPT THE AMOUNT PAID IN CASH AT THE TIME OF REGISTRATION WAS TO BE HELD BY THE ASSESSING OFFICER DULY CONFIRMED BY THE LEARNED CIT(A) AS A BOGUS LIABILITY WHERE NO DOCUMENTARY EVIDENCE WAS BROUGHT ON RECORD TO ESTABLISH THAT NO CASH HAD BEEN PAID WHICH WAS DOCUMENTED BEFORE THE SUB - REGISTRAR. WITH RESPECT TO THE DISALLOWANCE OF DEPRECIATION AND WRONG CLAIM OF EXPENSES FROM ESTIMATED INCOME FROM LODGING THE LEARNED DR SUBMITTED THAT IT WAS NOT THE CASE OF THE ASSESSEE TO HAVE ESTIMATED INCOME AFTER CLAIMING THESE EXPENSES INSOFAR AS DEPRECIATION IS A CHARGE ON THE ASSET WHICH THE ASSESSEE IS PRESUPPOSED TO ESTIMATE AT LESS THAN THE CLAIM OF DEPRECIATION. THE LEARNED CIT(A) THEREFORE RIGHTLY NOTED THAT T HE DEPRECIATION COULD NOT BE ALLOWED WHEN CITING JUDICIAL PRONOUNCEMENTS REGARDING THE CLAIM OF AFFIDAVIT WAS DENIED TO THE ASSESSEE APPELLANT. HE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW FOR HIS PART SUBMISSIONS. 9. WE HAVE HEARD THE RIVAL CONTENTION S AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE IS GOVERNED BY THE PROVISIONS OF SECTION 44AB WHEN IT WAS TO FILE THE AUDIT REPORT AS PER THE REQUIREMENT OF THE INCOME - TAX ACT. THE MOOT QUESTION IS THAT THE ASSESSEE HAD PURCHASED THE CINEMA HALL LOCK, S TOCK AND BARREL FOR A SUM OF APPROXIMATELY 95 LAKHS WHICH WAS REGISTERED AND REGISTRATION WAS GRANTED FOR THE ASSESSEE TO ENJOY POSSESSION. THE ASSESSEE HAD INSCRIBED THE COST IN ITS FIXED ASSET SCHEDULE DULY AUDITED WHEN I.T.A.NO. 537/CTK/2012 13 THE CLAIM OF DEPRECIATION WAS ALS O BROUGHT TO THE FIXED ASSETS SCHEDULE AS PER THE REQUIREMENT OF LAW. IN OTHER WORDS, THE ASSESSEE HAD SHOWN BALANCE PAYABLE INSOFAR AS THE REGISTRATION INDICATED THAT THE SUM OF 22,20,500 HAD BEEN RECEIVED IN FULL SETTLEMENT OF TRANSFERRING OF THE ASSET AS PER THE SALE DEED. NOW THE ACCOUNTING TREATMENT METED OUT WAS TO BE VERIFIED BY THE ASSESSING OFFICER WHEN HE HELD THAT THE SUM OF 16, 20,500 WAS PAID AS LATE AS 3.2.20 12 BY CHEQUE AND PARTLY IN CASH. THESE ARE UNDISPUTED FACTS NOTED BY THE LEARNED CIT( A) WHEN HE SOUGHT TO COUNTER THE FINDING OF THE ASSESSING OFFICER IN DECLINING THE AFFIDAVITS SO FILED BY THE ASSESSEE BEFORE IT WOULD NOT CHANGE THE SITUATION THAT THE PHYSICAL POSSESSION OF THE BUILDING, SHOP ROOMS AND LAND WERE TO BE ACKNOWLEDGED BEING ENJOYED BY THE ASSESSEE BEFORE US. IN OTHER WORDS, IT WAS THE CASE OF THE ASSESSEE THAT THE ASSESSEE DID NOT HAVE THE CASH AMOUNTING TO 22,20,500 TO HAVE PAID IN 2007 WHICH WAS A REFERENCE MADE FOR GETTING REGISTRATION WHEN THE MAJOR PAYMENT HAD BEEN MADE IN 2007 DULY ACCOUNTED IN THE BOOKS OF ACCOUNT . IT WAS NOT THE CASE OF THE ASSESSING OFFICER TO LINK 16,20,500 TO 22,20,500 TO HOLD T HAT THE AMOUNT HAD BEEN PAID IN ADVANCE AND IT WAS AN AFTERTHOUGHT TO HAVE BEEN PAID IN 2012 WHETHER COULD BE CONSIDERED FIT FOR ADDITION IN THE IMPUGNED ASSESSMENT YEAR AS UNEXPLAINED CREDIT . THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT CREDITORS FOR EXP EN SES ADDITION CANNOT BE MADE EITHER U/S.68 OR U/S.69 UNLESS THE ASSESSING AUTHORITIES ARE ON THE FINDING THAT THE ASSET HAS BEEN CREATED ON ACCOUNT OF BOGUS LIABILITY OR WHETHER THE BOGUS LIABILITY EXISTS BECAUSE IT SHOULD NOT HAVE BEEN AGAINST ADJUSTMENT IN CASH. THIS CROSS - VERIFICATION COULD NOT HAVE BEEN CARRIED OUT BECAUSE THE SELLER HAS ACKNOWLEDGED PAYMENT AS MENTIONED IN THE SALE DEED DULY REGISTERED IN 2007 OF HAVING RECEIVED THE AMOUNT IN CHEQUE IN 2012. THEREFORE, ACCOUNTS ARE NOT FOR RECORDING T RANSACTIONS NOT HAVING TAKEN PLACE INSOFAR AS THE I.T.A.NO. 537/CTK/2012 14 LEARNED COUNSEL OF THE ASSESSEE HAS EXPLAINED THAT A LIABILITY W A S CREATED WHEN THE ASSESSEE COULD NOT PAY THE FULL AMOUNT AS PER THE REGISTRATION DEED. THE ASSET HAD BEEN CR E ATED AGAINST A LIABILITY WHICH WAS ACKNOWLEDGED OF HAVING BEEN FULFILLED AT A LATER DATE THEREFORE COULD NOT HAVE GIVEN A RESIDUAL FIGURE OF 22,20,.500 LESS 16,20,500 IN VIEW OF THE FACT THAT CASH AS PER THE ASSESSING OFFICERS FINDING STILL REMAINS TO BE PAID INSOFAR AS THE DIFFEREN CE BETWEEN THE TWO WAS TO BE PAID AS THE SHOPS OF THE CINEMA HALL WERE NOT GIVEN POSSESSION TILL SUCH TIME THE FULL AMOUNT HAD BEEN PAID. WE ARE, THEREFORE, OF THE CONSIDERED VIEW THAT THE MISSTATEMENT BY THE SELLER DULY RECTIFIED LAT ER CANNOT BE MADE A WA TER - TIGHT EVIDENCE INSOFAR AS THE LEARNED CIT(A) HAS TRIED TO DELIBERATE ON THE ISSUE OF AFFIDAVIT BY CITING JUDICIAL PRONOUNCEMENTS WHICH DO NOT REFLECT THE FACTS AS HAVE BEEN NARRATED BY THE LEARNED COUNSEL OF THE ASSESSEE AS OF NOW. IT WAS NOT THE CASE OF THE ASSESSING OFFICER TO FORCE LIABILITY ON THE ASSESSEE TO BE DISALLOWED U/S.68 INSOFAR AS IT WAS NOT A CASH CREDIT AND AN INVESTMENT HAD BEEN MADE PROPERL Y RECORDED IN THE BOOKS OF ACCOUNT IN ACCORDANCE WITH THE AMOUNT OF THE COST OF THE CINEMA HALL T RANSFERRED TO THE ASSESSEE AS PER THE SALE DEED. THEREFORE, ON BOTH COUNTS, THE ASSESSING OFFICER AS WELL AS THE LEARNED CIT(A) HAVE CONSIDERED THE CASE OF THE ASSESSEE BY HOLDING ON TO A STRING WHICH THE ASSESSEE DOES NOT DENY WAS ON ACCOUNT OF CRUCIAL M ATTERS BETWEEN A BUYER AND THE SELLER TO BE RENDERED WHEN THE REGISTERING AUTHORITIES HAVE ACKNOWLEDGED THE COST OF THE CINEMA HALL WHICH HAS BEEN DULY CAPITALIZED FOR EARNING INCOME WHICH THE LEARNED COUNSEL OF THE ASSESSEE HAS SUBMITTED WAS BEING LEASED OUT IN A PHASED MANNER THE ASSESSEE NOT HAVING EXPERIENCE OF RUNNING A CINEMA HALL WHEN A SUM OF 6 LAKHS NET OF EXPENDITURE INCURRED HAS BEEN RENDERED BY THE ASSESSEE AS INCOME. AN ASSET HAS BEEN CREATED BY THE ASSESSEE I N THE FY 2007 - 08 HAS TO I.T.A.NO. 537/CTK/2012 15 BE CORRESPONDING LY GRANTED DEPRECIATION IN ACCORDA NCE WITH THE PROVISIONS OF THE I.T.ACT INSOFAR AS DEPRECIATION IS A CHARGE ON THE ASSET WHICH BECOMES INTANGIBLE INSOFAR AS IT HAS GOT NO BEARING TO THE RENDERING OF INCOME THERE FROM. IT HAS BEEN OWNED BY THE ASSESSEE AND PUT TO USE BY THE ASSESSEE AS PE R THE FINANCIAL STATEMENT PRODUCED DULY AUDITED BEFORE THE ASSESSING AUTHORITIES. THEREFORE, THE DATE OF PURCHASING BEING 18.8.2007 REQUIRED THE ASSESSEE TO CLAIM DEPRECIATION IN ACCORDANCE WITH THE PROVISIONS OF THE I.T.ACT AND NOT BECAUSE THE ASSESSEE HA S LEASED OUT FOR EARNING ESTIMATED INCOME THERE FROM. WE HAVE PERUSED THE CONSOLIDATED PROFIT & LOSS ACCOUNT FOR THE IMPUGNED ASSESSMENT YEAR WHEN THE ASSESSEE HAS APART FROM DEALING IN MINING ORE HAS INCURRED EXPENDITURE AND CLAIMED DEPRECATION IN ACCORDA NCE WITH THE PROVISIONS OF THE I.T.ACT WHEN NO OTHER EXPENDITURE WITH RESPECT TO THE INCOME GENERATED FROM THE CINEMA HALL HAS BEEN SHOWN SEPARATELY. SIMILARLY WITH RESPECT TO THE INCOME FROM LODGING WHICH THE ASSESSEE A LREADY OWN ED WAS BEING SHOWN WHEN TH E ASSESSING OFFICER CONSIDERED THAT REPAIRS AMOUNTING TO 1,17,473 COULD NOT BE ALLOWED INSOFAR AS THE ASSESSEE HAD FILED THE DETAILS OF EXPENDITURE INCURRED BEING CIVIL WORKS BEING CARRIED OUT IN THE LODGE AMOUNTING TO 1,17,473 WAS FROM ESTIMATED INCOME . IT WAS NOT CLEAR AS TO WHAT EXPLANATION DID THE ASSESSING OFFICER REQUIRE BUT HOLDING A VIEW THAT ESTIMATED INCOME FROM THE LODGE COULD NOT RENDER CLAIM OF EXPENDITURE ON REPAIRS WAS TO BE EXPLAINED UNDER THE PROVISIONS OF SECTION 24(A) . AS MENTIONED EAR LIER, DEPRECIATION HAS TO BE ALLOWED IRRESPECTIVE OF THE QUANTUM OF INCOME RENDERED FROM THE ASSET INSOFAR AS THE ASSET HAS BEEN CAPITALIZED AND DEPRECIATION IS A CHARGE ON AN ASSET WHICH DEPLETES THE ASSETS ON ITS USE CANNOT BE DENIED TO THE ASSESSEE AS P ER THE CASE LAW OF THE HONBLE SUPREME COURT CITED BY THE LEARNED COUNSEL OF THE ASSESSEE. SIMILARLY THE ASSESSING OFFICER HAS NOT D ISALLOWED I.T.A.NO. 537/CTK/2012 16 THE ESTIMATED INCOME ON ACCOUNT OF LODGING RECEIVED BY THE ASSESSEE WHICH STATUTORILY REQUIRES INCOME FROM HOUSE P ROPERTY TO BE ALLOWED 30% FOR THE PURPOSE OF CARRYING OUT REPAIRS AND MAINTENANCE. THEREFORE, WE ARE UNABLE TO CONSIDER THE LEARNED CIT(A) NOT DENYING THE CLAIM BUT HOLDING A VIEW ON THE BASIS OF CASE LAWS CITED BEFORE HIM AND NOT BECAUSE THE ONUS SHIFTED ON THE ASSESSEE TO EXPLAIN THE NATURE OF THE CLAIM. THE CLAIM OF REPAIRS FROM INCOME FROM LODGING CANNOT BE DENIED TO THE ASSESSEE INSOFAR AS SPECIFIC REPAIRS WERE CARRIED OUT ON THE LODGE WHICH THE ASSESSEE HAD BEEN HOLDING FROM EARLIER ASSESSMENT YEARS. SIMILARLY DEPRECIATION CANNOT BE DENIED ON ACCOUNT OF ESTIMATED INCOME SHOWN BY THE ASSESSEE ON RUNNING THE CINEMA HALL WHICH AGAIN CANNOT BE DENIED AS THE INCOME RENDERED IS LESS THAN THE DEPRECIATION. THE LEARNED COUNSEL OF THE ASSESSEE HAS NOT PRESSED O N THE LAST ISSUE WITH RESPECT TO DISALLOWANCE U/S.43B IN VIEW OF THE ASSESSEE HAVING PAID THE STATUTORY LIABILITY BEYOND THE DUE DATE OF FILING OF THE RETURN IS THEREFORE DISMISSED. 10. FOR THE REASONS AS DISCUSSED IN THE FOREGOING PARAGRAPHS, WE SET ASIDE THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF 22,20,500 MADE ON ACCOUNT OF UNEXPLAINED SUNDRY CREDITORS, 9,58,210 MADE ALLEGING WRONG CLAIM OF DEPRECIATION ON CINEMA HALL, WHICH IS IN FACT PART OF THE GROSS BLOCK OF THE ASSETS HELD BY THE ASSESSEE DULY REGISTERED IN 2007 HAVING IN POSSESSION AND PUT TO USE BY RENDERING INCOME THERE FROM, 1,17,473 BEING THE REPAIRS CARRIED OUT BY THE ASSESSEE AND CLAIMED IN THE P & L ACCOUNT ON ACCOUNT OF THE ASSESSEE HOLDING BOARDING HOUSE CAPITALIZED AT 21,28,795 IN THE GROSS BLOCK WHICH HAS NOT BEEN DENIED TO THE ASSESSEE. HOWEVER, THE ADDITION OF 3,29,643 MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LEARNED CIT(A) ON I.T.A.NO. 537/CTK/2012 17 ACCOUNT UNPAID LIABILITIES, IS UPHELD THE ASSESSEE HAVING PAID THE STATUTORY LIABILITY BEYOND THE DUE DATE OF FILING OF THE RETURN. 11. IN TH E RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. SD/ - SD/ - ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( ) DATE: 14.12.2012 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : DINESH CHANDRA DAS, BAHALDA ROAD,BAMANGHATY,MAYURBHANJ, 2 / THE RESPONDENT: ASST.COMMISSIONER OF INCOME - TAX, BALASORE CIRCLE,BALASORE. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF D ICTATION 10.12.2012 . 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 11.12.2012 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDE R IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 14.12.2012 7. DATE ON WHI CH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDER .. ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY.