Dr. K.M. Dwivedi, Farrukhabad V. The ITO, Farrukhabad

ITA 76/AGR/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 6826 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-06-2010
• Assessment Year: 2004-2005
• Appeal Filed On: 04-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R C SHARMA
• Keywords: Unexplained investment; Valuation report; Reason to believe
• Section: 133A; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER AND SHRI P.K. BANSAL, ACCOUNTANT MEMBER ITA NO.76/AGR/2009 ASST. YEAR: 2004-05 DR. K.M, DWIVEDI, VS. THE INCOME-TAX OFFICER, W ARD-2, AVAS VIKAS COLONY, FARRUKHABAD. FARRUKHABAD. (PAN : ADKPD 5201 H). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PANKAJ GARGH, ADVOCATE RESPONDENT BY : SHRI R.C. SHARMA, JR. D.R. ORDER PER P.K. BANSAL, A.M.: THIS APPEAL HAS BEEN FIELD BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) DATED 31.12.2008 CHALLENGING THE INITIATION OF THE PROCEE DINGS UNDER SECTION 147 OF THE INCOME-TAX ACT, 1961 (THE ACT HEREINAFTER) ON THE BASIS OF T HE REASONS RECORDED WHICH CLEARLY STATES THAT SMT. NEERJA DWIVEDI MADE THE UNEXPLAINED INVESTMENT IN THE PROPERTY AMOUNTING TO RS.6,44,216/- RELEVANT TO THE A.Y. 2004-05 BUT THE PROCEEDINGS HAS BEEN INITIATED IN THE CASE OF THE ASSESSEE. 2. LD. A.R. AT THE TIME OF HEARING VEHEMENTLY CONTE NDED THAT THIS CASE IS DULY COVERED BY THE ORDER OF THE THIS BENCH IN THE CASE OF THE ASSE SSEE RELATING TO A.YS. 2001-02 TO 2003-04 IN ITA NOS.74, 75 & 73/AGR/2009 VIDE ORDER DATED 26.02 .2010 IN WHICH CASE ALSO PROCEEDINGS HAS BEEN INITIATED UNDER SECTION 147 FOR THOSE ASSESSME NT YEARS BY RECORDING SIMILAR REASONS AND MENTIONING THAT SMT. NEERJA DWIVEDI HAS MADE THE UN EXPLAINED INVESTMENT BUT THE PROCEEDINGS 2 WAS INITIATED IN THE CASE OF THE ASSESSEE. THE TRI BUNAL UNDER PARA NO.5 OF ITS ORDER DATED 26.02.2010 CANCELLED THE ASSESSMENT. THE CASE OF T HE ASSESSEE IS DULY COVERED BY THAT ORDER. 3. LD. D.R. WAS FAIR ENOUGH TO CONCEDE THE DECISION . 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE MATERIAL ON RECORD. WE NOTED FROM THE COPY OF THE REASONS WHICH IS AVAI LABLE AT PAGE NO.1 OF THE PAPER BOOK THAT THE PROCEEDINGS HAS BEEN INITIATED IN THE CASE OF THE A SSESSEE FOR THE AFORESAID A.Y. BY RECORDING THE FOLLOWING REASONS:- REASONS FOR THE BELIEF THAT INCOME HAS ESCAPED ASS ESSMENT: A SURVEY U/S 133A OF THE I.T. ACT 1961 WAS CONDUCTE D ON 06.03.2003 IN THE CASE OF ASSESSEE SMT. NEERJA DWIVEDI PROP. M/S. V.S. MEMORI AL HOSPITAL, AWAS VIKAS, FARRUKHABAD. A STATEMENT OF SMT. NEERJA DWIVEDI WAS RECORDED IN WH ICH SHE STATED THAT HOSPITAL BUILDING HAS BEEN CONSTRUCTED ON TWO PLOTS, ONE PLOT BELONGS TO HER AND OTHER BELONGS TO HER HUSBAND DR. K. M. DWIVEDI. TO ASCERTAIN CORRECT VALUE OF BUILDING , THE CASE WAS REFERRED TO THE VALUATION OFFICER, AGRA WHO SUBMITTED HIS REPORT ON 04.01.200 5. THERE IS HUGE DIFFERENCE BETWEEN THE VALUE SHOWN IN THE VALUATION REPORT FURNISHED BY TH E VALUATION OFFICER, AGRA AND INVESTMENT DECLARED BY THE ASSESSEE BEFORE VALUATION OFFICER. THE DETAILS ARE AS UNDER :- F.Y. A.Y. VALUE AS PER VALUATION OFFICER INVESTMENT DECLARED BY THE ASSESSEE BEFORE VALUATION OFFICER VALUE DECLARED IN RETURN DIFFERENCE 2003-2004 2004-2005 RS.10,82,391 RS.4,38,175 RS.4,3 8,175 RS.6,44,216 THE ASSESSEE HAS FILED THE RETURN OF INCOME FOR TH E A.Y. 2004-2005 ON 01.11.2004 IN WHICH HE HAS NOT DISCLOSED ANY DETAIL IN RESPECT OF INVESTMENT IN PROPERTY. IN VIEW OF THE ABOVE FACTS, IT IS CLEAR THAT ASSESS EE SMT. NEERJA DWIVEDI HAS MADE UNEXPLAINED INVESTMENT IN THE PROPERTY AMOUNTING TO RS.6,44,216/- DURING THE F.Y. 2003-2004 RELEVANT TO ASSESSMENT YEAR 2004-2005. THEREFORE, I HAVE REASONS TO BELIEVE THAT THE ASSESSEE HAS ESCAPED ASSESSMENT AMOUNTING TO RS.6,44,216/-. PROCEEDINGS U/S 147 IS BEING INITIATED AND A NOTICE U/S 148 IS BEING ISSUED. SD/- (P.P. JAISWAL) INCOME TAX OFFICER, WARD-2 FARRUKHABAD. 3 5. WE HAVE GONE THROUGH THE ORDER OF THIS TRIBUNAL DATED 26.02.2010 AND WE NOTED THAT THIS TRIBUNAL ON THE BASIS OF SIMILAR REASONS RECORDED I N THE CASE OF THE ASSESSEE FOR A.YS. 2001-02 TO 2003-04 HAS CANCELLED THE ASSESSMENT FOR THOSE A.YS . BY OBSERVING AS UNDER :- I HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. I HAVE GONE THROUGH THE REASON S RECORDED BY THE A.O. FOR THE A.YS. 2001-02, 2002-03 & 2003-04. THE COPIES OF WH ICH ARE AVAILABLE AT PAGES 30, 31 & 32 OF THE PAPER BOOK AS REPRODUCED HEREINA BOVE. FROM THE REASONS RECORDED, IT IS APPARENT THAT THE REASONS RECORDED BY THE A.O. BELONGS TO SMT. NEERJA DWIVEDI AND NOT TO THE ASSESSEE. THE A.O. H AS CLEARLY STATED IN THE REASONS THAT THE ASSESSEES WIFE SMT. NEERJA DWIVED I HAS MADE UNEXPLAINED INVESTMENT IN THE PROPERTY AMOUNTING TO RS.4,42,863 /-, RS.13,28,666/- AND RS.3,00,795/- FOR A.YS. 2001-02, 2002-03 & 2003-04 RESPECTIVELY. SECTION 147 OF THE ACT CLEARLY LAYS DOWN THAT THE A.O. MUST HAVE T HE REASON TO BELIEVE THAT AN INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR THE A.Y. UNDER CONSIDERATION. THE REASONS MUST RELATE TO THE ASSE SSEE AND NOT TO ANY OTHER PERSON. THE ASSESSEE AS WELL AS HIS WIFE ARE SEPAR ATE ASSESSEES AND ARE BEING ASSESSED SEPARATELY. IN MY OPINION, ON THE BASIS O F THE REASONS RECORDED IN THE CASE OF THE WIFE OF THE ASSESSEE, THE ASSESSMENT OF THE HUSBAND CANNOT BE REOPENED. I, THEREFORE, QUASH THE ASSESSMENT FRAME D IN CONSEQUENCE OF THE PROCEEDINGS INITIATED UNDER SECTION 147 OF THE ACT. THUS, ALL THE ASSESSMENTS FOR THE A.YS. 2001-02, 2002-03 & 2003-04 STAND CANCELLE D. 6. RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF THIS TRIBUNAL, WE QUASH THE ASSESSMENT MADE FOR THE A.Y. UNDER CONSIDERATION. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE STAN DS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 24.06.2010) SD/- SD/- (R.K. GUPTA) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: AGRA DATE: 24 TH JUNE, 2010. PBN/* 4 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY