Kumbh Singh Patawat, JODHPUR V. ACIT, JODHPUR

ITA 546/JODH/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78143 (ITAT-JODHPUR)
• Duration Of Justice: 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-05-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-04-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 05-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Keywords: Unexplained investment; Business income; Reassessment proceedings
• Section: 40A(3); 143(3); 234B; 32; 147; 131; 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NO. 546/JU/2013 ASSESSMENT YEAR: 2007-08 SHRI KUMBH SINGH PATAWAT VS. THE A.C.I.T 77, DADICH NAGAR, CIRCLE - 3 MAHAMANDIR JODHPUR JODHPUR PAN NO. AVMPS 3874 R (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MAHAVEER JAIN DEPARTMENT BY : SHRI N.A. JOSHI, DR DATE OF HEARING : 02.04.2014 DATE OF PRONOUNCEMENT : 02.05.2014 ORDER PER HARI OM MARATHA, J.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE FOR A.Y 2007-2008 AGAINST THE ORDER OF THE CIT(A), JODHPUR, DATED 11.10.2013. 2 2. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS A PPEAL: 1. THAT ON THE FACTS OF THE CASE AND IN VIEW O F THE RELEVANT LAW, AS THE IMPUGNED ASSESSMENT ORDER WAS INVALID, THE ID. CIT (APPEALS) DID NOT JUSTIFY IN SUSTAINING THE SAME AND, THEREFORE, THE APPELLANT APPEALS FOR ITS CANCELLATION. 2. THAT WITHOUT ANY PREJUDICE TO THE GROUND NO 1ST OF THIS MEMORANDUM OF APPEAL, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ID. AO DID NOT JUSTI FY IN APPLYING THE PROVISIONS OF SECTION 147 OF THE IT AC T, 1961 TO THE APPELLANT'S CASE AND THE LEARNED CIT (APPEALS) DIDN'T JUSTIFY IN SUSTAINING THE ID. AO'S SUCH ACTION. MORE SPECIFICALLY, THE ID. AO'S ACTION U/S 147, RESULTING INTO ISSUANCE OF NOTICE U/S 148, WAS BAD IN LAW AND, THEREFORE, THE IMPUGNED ASSESSMENT ORDER WAS INVALID AND THE ID. CIT(A) DID NOT JUSTIFY IN SUSTA INING THE SAME. THE APPELLANT APPEALS FOR CANCELLATION OF THE IMPUGNED ASSESSMENT ORDER. 3. THAT WITHOUT ANY PREJUDICE TO THE AFORESAID GROUNDS OF THIS MEMORANDUM OF APPEAL, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ID. CIT ( A) DID NOT JUSTIFY IN SUSTAINING THE ADDITION OF RS. 7,21, 975/- TO THE APPELLANT'S INCOME, WHICH WAS MADE BY THE ID . 3 AO ON THE ALLEGATION OF 'INVESTMENT OF RS. 7,21,975 /- OUT OF UNDISCLOSED INCOME'. WHILE SUSTAINING THE ADDITION, THE ID. CIT (A) IGNORED THE APPELLANT'S CONTENTIONS TO THE EFFECT THAT THE INVESTMENT WAS N OT MADE BY HIM AND THAT THE SAME WAS MADE BY THE AOP O F WHICH HE WAS A MEMBER, OUT OF SALE PROCEEDS OF PLOT S. THE APPELLANT APPEALS FOR DIRECTING THE ID. AO FOR DELETING THIS ADDITION. 4. THAT WITHOUT ANY PREJUDICE TO THE AFORESAID GROUNDS OF THIS MEMORANDUM OF APPEAL, AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, EVEN ASSUMING THOUGH NOT ADMITTING THAT THE ID. CIT (A) WAS PRINCIPALLY JUSTIFIED IN SUSTAINING THE ADDITION OF RS. 7,21,975/-, THE APPELLANT APPEALS THAT CORRECT AMOU NT COMES TO RS. 6,44,050/-, I.E., ONE HALF OF RS. 12,88,100/- AS THE AO ASSUMED THAT ONE HALF WAS PAI D BY THE APPELLANT (CALCULATION OF RS. 12,88,100/- HA S BEEN GIVEN HEREINAFTER) AND NOT RS. 7,21,975/- AS CALCULATED BY THE ID. AO. IT IS CLARIFIED THAT THE AMOUNT OF RS. 12,88,100/- IS EXCESS OF RS. 1,09,00,000/- B EING THE AMOUNT OF PAYMENTS TO THE SELLER AGAINST PURCHA SE OF THE LAND OVER RS. 96,11,900/-BEING THE AMOUNT OF RECEIPTS UPTO 30/11/2006, FROM THE BUYERS AGAINST S ALE OF PLOTS OF LAND. THUS, IF THE GROUND NO. 3 OF THE APPEAL IS NOT ALLOWED, THE APPELLANT APPEALS FOR DIRECTING THE 4 ID. AO FOR SUBSTITUTING THE AMOUNT OF RS. 6,44,050/ - FOR RS. 7,21,975/-. 5. THAT WITHOUT ANY PREJUDICE TO THE GROUND NO. 1ST AND 2ND OF THIS MEMORANDUM OF APPEAL, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ID. CIT ( A) DID NOT JUSTIFY IN SUSTAINING THE DISALLOWANCE OF RS. 10,90,000/- U/S 40A(3) AS MADE BY THE ID. AO BY ASSUMING THAT THE APPELLANT PAID CASH EXPENSES TO T HE EXTENT OF RS. 54,50,000/- (ONE HALF OF RS. 1,09,00, 000/) FOR PURCHASE OF LAND AND BY IGNORING THE APPELLANT' S CONTENTIONS THAT THE LAND WAS BOUGHT BY THE AOP OF WHICH HE WAS A MEMBER AND THAT THE PAYMENTS WERE DIRECTLY MADE BY THE BUYERS OF THE PLOTS TO THE SEL LER OF THE LAND. THE APPELLANT APPEALS FOR DIRECTING THE I D. AO FOR DELETING THIS DISALLOWANCE. 6. THAT WITHOUT ANY PREJUDICE TO THE GROUND NO. 1ST AND 2ND OF THIS MEMORANDUM OF APPEAL, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ID. CIT ( A) DID NOT JUSTIFY IN SUSTAINING THE ADDITION OF RS. 39,97 ,016/- TO THE APPELLANT'S INCOME AS UNDISCLOSED BUSINESS INCOME, BY ASSUMING THAT 50% OF THE NET PROFIT OF R S. 79,94,032/- (AS COMPUTED BY THE ID. AO HIMSELF) OF THE AOP OF WHICH THE APPELLANT WAS A MEMBER, WAS ASSESSABLE IN THE APPELLANT'S HANDS ALTHOUGH THE AM OUNT 5 OF RS. 79,94,032/- WAS NOT ASSESSED IN THE AOP'S HA NDS. THE ADDITION WAS MADE BY THE ID. AO IN IGNORANCE OF THE PROVISIONS OF SEC. 67A R/W SEC. 86 OF THE I T ACT, 1961 AND IT WAS INCORRECTLY SUSTAINED THE ID. CIT (A). T HE APPELLANT APPEALS FOR DIRECTING THE ID. AO FOR DELE TING THIS ADDITION. 7. THAT THE APPELLANT APPEALS THAT THE ID. CIT (A) DID NOT JUSTIFY IN SUSTAINING THE CHARGING OF INTEREST OF RS. 12,46,802/- AND RS. 7,168/- U/SS. 234B AND 234C OF THE IT ACT, 1961, RESPECTIVELY. THE APPELLANT APPEALS F OR DIRECTING THE ID. AO FOR NOT CHARGING THE INTEREST U/SS. 234B AND 234C OF THE IT ACT, 1961. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IS ENGAGED IN THE BUSINESS OF REAL ESTATE APART FROM H AVING A WINE SHOP, ETC. THE ASSESSEE HAS FILED HIS RETURN OF IN COME [ROI] FOR A.Y. 2007-08 ON 31.10.2007 DECLARING TOTAL INCOME O F RS. 13,95,490/-. HE ALSO DECLARED AGRICULTURAL INCOME O F RS. 10,75,650/-. ASSESSMENT WAS COMPLETED U/S 143(3) O F THE INCOME- TAX ACT, 1961 ['THE ACT', FOR SHORT] ON 17.11.2009 AT A TOTAL INCOME OF RS. 16,00,490/-. SUBSEQUENTLY, INFORMATION WAS RECEIVED THAT THE ASSESSEE HAD PURCHASED A PIECE OF AGRICULTURAL LAND ALONGWITH 6 SHRI MAHESH RATHI FOR A TOTAL CONSIDERATION OF RS. 1,30,00,000/- FROM SHRI UMMAID MAL LODHA VIDE AGREEMENT DATED 06. 03.2006. A SUM OF RS. 20,00,000/- HAS BEEN PAID AS ADVANCE BY BOTH THE PURCHASERS. THEY HAD PAID RS. 10 LAKHS IN CASH AND RS. 10 LAKHS VIDE CHEQUE ON 7.3.2006. CONSEQUENTLY, NOTICE U/S 148 O F THE ACT WAS ISSUED TO THE ASSESSEE ON 24.3.2011 BY THE THEN A.O . AFTER RECORDING REQUISITE REASONS. RESPONDING TO THIS NOTICE, THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE FILED A WRITTEN REPL Y DATED 12.9.2011 STATING THEREIN THAT THE RETURN FOR A.Y. 2007-08 FI LED ON 31.102007 WITH THE ACIT, CIRCLE-3, JODHPUR MAY BE TREATED AS ROI FILE IN RESPONSE TO THIS NOTICE. DURING ASSESSMENT PROCEED INGS, THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF THE MON EY PAID UNDER THE AGREEMENT DATED 06.03.2006 ALONGWITH MODE OF PA YMENT INCLUDING THE COPY OF BANK STATEMENT. INITIALLY, T HE ASSESSEE CONTENDED THAT HE ACTED AS AGENT OF THE SELLER BUT WHEN SHRI MANISH LODHA S/O SHRI UMMAID MAL LODHA DEPOSED ON OATH U/S 131 OF THE ACT ON 8.12.2011 THAT THE AGREEMENT DATED 06.03.200 6 WAS ABSOLUTELY COMPLETE AND PAYMENTS HAVE BEEN RECEIVED AS RECORDED. WHEN CONFRONTED,, HE STATED THAT THERE BEING A DISP UTE WITH SHRI UMMAID MAL LODHA, THE STATEMENT OF HIS ARE NOT BASE D ON FACTS, BUT 7 HE COULD NOT DENY THE CONTENTS OF THE AGREEMENT. F INALLY, THE ASSESSEE CLAIMED THAT THIS DEAL MAY BE TREATED AS A JOINT DEAL BY HIM AND SHRI MAHESH RATHI AND REQUESTED TO ASSESS T HIS TRANSACTION IN THE STATUS OF AN ASSOCIATION OF PERSONS [AOP] AN D ALSO REQUESTED TO DROP THE PROCEEDINGS INITIATED U/S 148 OF THE AC T IN HIS INDIVIDUAL STATUS. THE A.O. HAS NOTICED THAT SINCE TET DID NO T FILE ANY EVIDENCE REGARDING FORMATION OF AOP AND ALSO HAD NO T DISCLOSED THIS LAND DEAL IN HIS RETURN OF INCOME [ROI], THEREFORE, THE A.O. HAS DECLINED TO ACCEPT THIS CONTENTION OF THE ASSESSEE BEING AT A LATE STAGE. THE A.O. HAS FOUND THAT THE PAYMENTS QUA TH IS AGREEMENT WERE MADE AS UNDER: F.Y. 2005-06 06.03.2006 RS. 10 LAKHS CASH 07.03.2006 RS. 10 LAKHS BY CHEQUE NO. 644940 OF OBC, SOJATI GATE, JODHPUR. F. Y. 2006-07 ON DATED 24.11.2006 RS. 5 LAC CASH DEPOSITED IN SBBJ, POKRAN A/C OF UMMAID MAL ON DATED 29.11.2006 RS. 15 LAC - DO - ON DATED 30.11.2006 RS. 10 LAC - DO - ON DATED 07.12.2006 RS. 10 LAC - DO - ON DATED 31.12.2006 RS. 20 LAC --DO-- FROM 31.12.06 TOL.03.2007 RS. 49 LAC CASH PAID F.Y. 2007-08 ON DATED 02.04.2007 RS. 1 LAC (BY CHEQUE NO. 665178 OF OBC, SOJATI GATE, JU.) 8 AS SEEN FROM ABOVE THE ASSESSEE ALONG WITH SHRI MAH ESH RATHI HAS MADE PAYMENT OF RS. 20,00,000/- IN THE A. Y. 2006-07 AND RS. 1,09,00,000/- DURING THE A.Y. 2007- 08 AGAINST THE PURCHASE OF LAND AT POKRAN AS PER AGREE MENT DTD. 06.03.2006. THE PAYMENT OF RS. 20,00,000/- HAS BEEN CONSIDERED IN ASSESSMENT ORDER FOR A.Y. 2006-0 7. THEREFORE THE ASSESSEE WAS ASKED TO EXPLAIN THE SOU RCE OF RS. 1,09,00,000/- MADE DURING THE YEAR FOR PURCH ASE OF ABOVE LAND. THE A/R STATED THAT LAND WAS PURCHAS ED ON POWER OF ATTORNEY AND VIDE REPLY DTD. 12.12.2011 SUBMITTED COPIES OF VARIOUS SALE DEED OF THE PLOTS SOLD OUT OF THE LAND AND STATED THAT THE SALE PROCEED RECEIVED ON SALE OF PLOTS AS UNDER WERE DIRECTLY RECEIVED BY THE SELLER FROM CUSTOMER OR DEPOSITED I N THE BANK A/C OF THE SELLER. 24.11.2006 RS. 33,54,000/- 30.11.2006 RS. 62,57,900/- RS. 96 ,11,900/- 24.03.2007 R S. 14,43.950/- TOTAL RS. 1,10,55,850/- FROM ABOVE IT IS EVIDENT THAT LAND SOLD UP TO 30.11 .2006 IS FOR RS. 96,11,900/- ONLY AND SALE PROCEED RECEIV ED UP TO 01.03.2007 IS RS. 96,11,900/-, WHEREAS ASSESSEE ALONG WITH SHRI MAHESH RATHI HAS PAID RS. 1,09,00,000/- U P TO 01.03.2007. THUS THE BALANCE AMOUNT RS. 14,43,950/- 9 DOES NOT REPRESENT THE SALE PROCEEDS RECEIVED BY TH E ASSESSEE TILL 01.03.2007. THEREFORE THE SOURCE OF R S. 14,43,950/- WAS AGAIN ASKED TO BE EXPLAINED BY THE ASSESSEE. DESPITE REPEATED REQUESTS AND OPPORTUNITI ES ALLOWED THE ASSESSEE HAS NOT EXPLAINED THE SOURCE O F ABOVE PAYMENT RS. 14,43,950/-PAID TO SHRI UMMAID MA I LODHA UP TO 01.03.2007. HENCE INVESTMENT RS. 7,21,975/- HALF OF ABOVE INVESTMENT RS. 14,43,950/2 IS CONSIDERED AS UNEXPLAINED INVESTMENT OF THE ASSESSE E AND RETURN INCOME U/S 69 OF THE I. T. ACT. ASSESSEE ALONG WITH SHRI MAHESH RATHI HAS PAID RS. 1,09,00,000/- I N CASH. THE LAND PURCHASED HAS BEEN FURTHER DEVELOPED AND SOLD AFTER PLOTTING IN THE NAME OF TIRUPATI NAG AR, POKRAN. THEREFORE, OBVIOUSLY THE LAND UNDER CONSIDERATION WAS PURCHASED FOR THE PURPOSE OF BUSI NESS AS ADVENTURE IN TRADE AND CONSTITUTES THE STOCK OF THE ASSESSEE. THE ASSESSEE'S CLAIM THAT SALE PROCEEDS O F THE PLOT WERE DIRECTLY DEPOSITED IN THE BANK A/C OF THE SELLER BY THE CUSTOMERS IS NOT BASED ON ANY EVIDENC E. MOREOVER AS PER THE EKRARNAMA DTD. 06.03.2006 THE ASSESSEES ALONG WITH SHRI MAHESH RATHI HAVE MADE COMPLETE PURCHASE AND ARE OWNER'S OF THE LAND. THE FURTHER SALE OF THE PLOTS IS MADE BY THE ASSESSEE A ND SHRI MAHESH RATHI AND VIRTUALLY THE RECEIPTS HAVE R OUTED THROUGH SHRI KUMBH SINGH AND SHRI MAHESH RATHI. IT WAS ONUS UPON THE ASSESSEE TO MAKE THE PAYMENT OF THE 10 LAND(STOCK) PURCHASE BY CHEQUE OR DEMAND DRAFT. HEN CE THE CLAIM THAT AMOUNT WAS DEPOSITED IN THE A/C OF SELLER BY THE CUSTOMERS CAN NOT ABSOLVE THE ASSESSE E FROM THE LIABILITY OF PAYMENTS BY CHEQUE / OR DEMAN D DRAFT AS PER SECTION 40A(3) OF THE I. T. ACT. THE EXPENDITURE MADE FOR PURCHASE IN CASH ABOVE RS. 20,000/- FALLS IN THE PURVIEW OF SECTION 32 TO 38, ACCORDINGLY THE EXPENDITURE MADE IN CASH IS HIT BY SECTION 40A(3), THEREFORE 50% OF THE CASH PAYMENT R S. 1,09,00,000/- WORKED OUT AT RS. 54,50,000/- IN THE HAND OF THE ASSESSEE IS CONSIDERED AS PAYMENT IN VIOLATI ON OF PROVISIONS OF SECTION 40A(3) AND 20% OF THE SAME I. E. RS. 10,90,000/- IS DISALLOWED AND FURTHER ADDED IN THE RETURN INCOME OF THE ASSESSEE. 4. FURTHER, FROM THE COPIES OF SALE DEEDS SUBMITTED BY THE ASSESSEE, IT WAS NOTICED THAT FEW PLOTS HAD BEEN SO LD DURING THE YEAR FOR RS. 1,10,55,850/- UPTO 24.3.2007. THE TOT AL LAND INVOLVED IN THESE TRANSACTIONS IS 37.15 BIGHAS. WHEN DEMAND ED, THE ASSESSEE FURNISHED COMPLETE DETAILS OF LAND DEVELOP ED AND COPY OF MAP OF COLONY/SCHEME ETC. IT WAS ASSERTED FROM THE ASSESSEES SIDE THAT IN DEVELOPMENT OF LAND CASES, 40% OF THE AREA GOES IN DEVELOPMENT OF ROADS AND OTHER AMENITIES AND ONLY 6 0% AREA OF LAND 11 REMAINS SALEABLE FOR PLOTTING. BUT THIS CONTENTION WAS NOT SUPPORTED WITH COY OF MAP/DEVELOPMENT PLAN OF THE C OLONY. BY TAKING THE RATIO OF 65% AND 35% RELATING SALEABLE A REA AND AREA COVERED IN ROADS AND OTHER AMENITIES, THE A.O. MADE A TRADING ACCOUNT AS UNDER : TRADING A/C TO OP. STOCK RS. 1,30,00,000/- BY SALES RS. 1,10,55,850/- TO GROSS PROFIT RS. 79,94,032/- BY CLOSING STOCK RS. 99,38,182/- 2,09,94,032/- 2,09,94 ,032/- 5. THUS THE NET PROFIT OF THE ASSESSEE FROM THE SAL E/PURCHASE OF LAND IN QUESTION DURING THE YEAR FROM THE ABOVE TRA NSACTIONS HAS BEEN COMPUTED AT RS. 39,97,016/- BEING 50% SHARE OF PROFIT AND HAS ADDED THE SAME IN HIS HANDS IN THE YEAR UNDER CONSI DERATION. FINALLY, THE A.O. HAS ASSESSED THE INCOME OF THE AS SESSEE AS UNDER: INCOME AS PER ORDER U/S 143(3) DTD. 17.11.2009 RS. 16,00,490 ADD: 1. UNEXPLAINED INVESTMENT U/S 69 RS. 7,21,975/- 2. 20% CASH PAYMENT DISALLOWED U/S 40A(3) RS. 10,90,000/- 3. THE UNDISCLOSED PROFIT ON THE SALE OF LA ND RS. 39,97,016/- RS 58,08,991 TOTAL INCOME RS 74,09,481 ROUND/OFF RS 74,09,480 AGRICULTURE INCOME AS PER ORDER U/S 143(3) DTD. 17. 11.2009 FOR RATE PURPOSE RS. 9,75,650/ - 12 6. AGGRIEVED THE ASSESSEE FILED APPEAL AND THE LD. CIT(A) VIDE HIS IMPUGNED ORDER HAS NOT GIVEN ANY RELIEF AND THAT IS WHY THE ASSESSEE HAS COME IN FURTHER APPEAL BEFORE THE APPE LLATE TRIBUNAL. 7. AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE HAVE FOUND THAT THE ASSESSEE HAS CHALLENGED THE REOPENING OF THE AS SESSMENT VIDE GROUND NOS. 1 AND 2 OF THIS APPEAL. IT WAS ARGUED THAT THE REASSESSMENT ORDER IS INVALID AND THE REOPENING IS BAD IN LAW. IT HAS BEEN ARGUED BY THE LD. A.R. THAT THE AGREEMENT DATE D 6.3.2006 WHICH IS THE CAUSE FOR INITIATING PROCEEDINGS U/S 1 47 OF THE ACT AGAINST THIS ASSESSEE DOES NOT PERTAIN TO HIM AS AN INDIVIDUAL BUT PERTAINS TO THE ALLEGED AOP M/S TIRUPATI NAGAR, POK ARAN OF WHICH HE IS ONE OF THE MEMBERS AND THEREFORE, PROCEEDINGS AG AINST HIM AS INITIATED ARE NOT VALID. 8. ON THE OTHER HAND, THE LD. D.R. HAS SUPPORTED TH E FINDING OF THE AUTHORITIES BELOW. HE HAS FURTHER ARGUED THAT THE ASSESSEE HAD NEVER CLAIMED THE EXISTENCE OF AOP. IT WAS FOUND T HAT THE SAME A.O. HAD, LATER ON, INITIATED REASSESSMENT PROCEEDI NGS U/S 147 OF THE ACT AGAINST THE AOP, NAMELY, M/S TIRUPATI NAGAR ON THE BASIS OF 13 SAME AGREEMENT DATED 6.3.2006 ALSO FOR THE REASON T HAT FINALLY THE A.O. CONCLUDED THAT THIS AGREEMENT PERTAINED TO AOP . INITIALLY, THE REASSESSMENT PROCEEDINGS WERE INITIATED AGAINST THE ASSESSEE AS AN INDIVIDUAL ON 24.3.2011 BUT LATER ON THE SAME PROCE EDINGS WERE INITIATED AGAINST THE AOP AS ON 20.11.2012. IN THE LIGHT OF THIS BACKGROUND, IT WAS ARGUED BY THE LD. A.R. THAT THE REASSESSMENT ORDER IN THE CASE OF THE ASSESSEE AS AN INDIVIDUAL WOULD NOT SURVIVE BEING BASELESS OR PASSED ON WRONG FACTS. THE ABOVE FACTS COULD NOT BE CONTROVERTED SUCCESSFULLY BY THE LD. D.R. WE HA VE FOUND THAT THE HON'BLE SUPREME COURT WHILE DECIDING THE CASE O F ITO VS. ATCHAIAH [1996] 218 ITR 239 [SC] HAS HELD THAT THE AOP DID NOT FURNISH ITS ROI SHARE OF ITS MEMBER IN SUCH INCOME CANNOT BE DIRECTLY ASSESSED IN THE HANDS OF THAT MEMBER. HIS SHARE IS ASSESSABLE IN THE MANNER AS PROVIDED IN SECTION 67A R.W.S 86 AND NOT DIRECTLY AS HAS BEEN DONE BY THE A.O. IN VIEW OF THE ABOVE UNDISPUTABLE FACTS, THE REASSESSMENT ORDER MADE IN THE ASSESSEES CASE AS INDIVIDUAL CANNOT SURVIVE BEING INVALID REA SON AS THE A.O. HIMSELF HAS TREATED THIS AGREEMENT DATED 6.3.2006 T O BELONG TO THE AOP AS DISCUSSED ABOVE. THE SAME INCOME CANNOT BE TAXED IN TWO HANDS. ACCORDINGLY, WE QUASH THE REASSESSMENT ORD ER MADE IN THIS 14 ASSESSEES INDIVIDUAL CASE AND ALLOW THE APPEAL OF THE ASSESSEE. WHEN REASSESSMENT IS QUASHED, ALL THE ADDITIONS SHA LL NATURALLY BE DELETED. AS A RESULT, THE APPEAL OF THE ASSESSEE S TANDS ALLOWED ON THIS LEGAL QUESTION AND THEREAFTER THERE IS NO NEED TO DECIDE THE ISSUES RAISED ON MERITS. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE COURT ON 02 ND MAY, 2014. SD/- SD/- (N.K.SAINI) [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 02 ND MAY, 2014 VL/- COPY TO: THE APPELLANT THE RESPONDENT THE CIT BY ORDER THE CIT(A) THE DR ASSISTANT REGISTRAR ITAT, JODHPUR