Sh. Moni Kumar Subha, New Delhi V. ACIT, New Delhi

ITSSA 17/DEL/2010

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 8958 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 10-09-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 12-08-2010
• Assessment Year: misc
• Appeal Filed On: 16-03-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Unexplained investment; Search and seizure; Document seized; Opportunity of being heard; Valuation report; Block assessment; Documents seized
• Section: 69; 132

Judgement Text

IT(SS)A.NO. 17/DEL/2010 BLOCK ASSESSMENT PERIOD 1.4.1989 TO 23.6.1999 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.(SS)A. NO. 17/DEL/2010 BLOCK ASSESSMENT PERIOD 1.4.1989 TO 23.6.1999 SH. MONI KUMAR SUBHA, 118, VILLAGE SULTANPUR, MEHRAULI, GURGAON ROAD, DELHI (PAN: AASPS2484J) VS. ACIT, CENTRAL CIRCLE - 4, NEW DELHI (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. R.S. SINGHVI, CA DEPARTMENT BY : S MT. SANGEETA GUPTA, C.I.T.(D.R.) PER PER PER PER SHAMIM YAHYA: AM SHAMIM YAHYA: AM SHAMIM YAHYA: AM SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 18.1.2 010 PERTAINING TO BLOCK ASSESSMENT PERIOD 1.4.1989 TO 23.6.1999. 2. THE FIRST ISSUE RAISED IS THAT THE LD. COMMISSION ER OF INCOME TAX (APPEALS) WAS NOT JUSTIFYING IN CONFIRMING THE ADDIT ION OF ` 32,50,000/- AS UNEXPLAINED INVESTMENT U/S 69 OF THE I.T. ACT. 3. IN THIS CASE, THE SEARCH AND SEIZURE OPERATION U /S 132 OF THE IT ACT WAS CONDUCTED ON 23.6.1999 ON VARIOUS PREMISES O F THE ASSESSEE. DURING THE COURSE OF SEARCH CERTAIN INCRIMINATING DOC UMENTS WERE IT(SS)A.NO. 17/DEL/2010 BLOCK ASSESSMENT PERIOD 1.4.1989 TO 23.6.1999 2 SEIZED FROM THE ASSESSEE. THE DOCUMENT NO. 28 IN T HE SEIZED DOCUMENTS SHOWED THAT ASSESSEE HAD PAID ` 4,00,000 AS PART PAYMENT OF PURCHASING THE PROPERTY IN ADCHINI NEAR M EHRAULLI. THE DOCUMENT SHOWED THAT THE PROPERTY WAS SETTLED AT ` 42 LACS. IT WAS MENTIONED THAT IN THE DOCUMENT THAT BALANCE PAYMENT OF ` 38 LACS WAS TO BE MADE BY 22.6.1993 I.E. DURING 30 DAYS. THE DOCUMENT WAS TO BE SAID TO BE SIGNED BY BOTH THE SELLER AND THE PUR CHASER IN THE OF WITNESS SHRI TULSI DAS AND SHRI HARISH ARORA. FURTHE R THE REGISTRATION DEEDS WERE SEIZED REGARDING THE CONCERNED PROPERTY. THIS DOCUMENT SHOWED 5 SEPARATE REGISTRATION DEEDS FOR ` 1,90,00 0/- EACH. THUS WHILE THE DOCUMENT NO. 28 SHOWED ACTUAL VALUE OF ` 4 2 LACS. THE REGISTERED DOCUMENT SHOWED AT ` 9,50,000/- + ` 85,0 00/- FOR OTHER CHARGES. HENCE THE ASSESSING OFFICER INFERRED T HAT REMAINING AMOUNT OF ` 32,50,000/- HAD BEEN PAID BEFORE SIGNIN G OF REGISTRATION DEED AS AGREED IN AGREEMENT IN DOCUMENT NO. 28 DATE D 21.5.1993. HE ACCORDINGLY MADE THE ADDITION AMOUNTING TO ` 32,50 ,000/- REGARDING ON MONEY PAYMENT. THE ASSESSEE APART FRO M THE DENYING OF THE OWNERSHIP OF THE DOCUMENT NO. 28 BEFORE THE A SSESSING OFFICER DURING THE ASSESSMENT PROCEEDINGS ALSO FILED THE AF FIDAVIT DATED 22.9.2006 BEFORE THE C.I.T. IN WHICH HE AFFIRMED TH AT THE PROPERTY HAD BEEN PURCHASED FOR ` 9.50 LACS ONLY AND THAT DOCUMEN T NO. 28 TO 33 IN IT(SS)A.NO. 17/DEL/2010 BLOCK ASSESSMENT PERIOD 1.4.1989 TO 23.6.1999 3 THE FILE A/26 HAS NOT BEEN SIGNED BY HIM. ANOTHER AFFIDAVIT HAD BEEN SUBMITTED BY THE COUNSEL OF THE ASSESSEE ON BEHAL F OF THE SELLER SMT. DRAUPADDI DEVI DATED 29.7.2006 AFFIRMED THAT THE PRO PERTY IS SOLD FOR ` 9.50 LACS AND DENYING THAT THE DOCUMENT NO. 28 IN THE FORM OF EARNEST MONEY RECEIPT HAD NOT BEEN SIGNED BY HER . 4. HOWEVER, LD. COMMISSIONER OF INCOME TAX (APPEALS) H ELD THAT THESE AFFIDAVITS WERE EXECUTED AFTER THE ASSESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICER AND ARE SELF SERVING DEVI CE. MRS. DAROPADI DEVI IS ILLITERATE AND DOES NOT EVEN KNOW THE CONSEQ UENCES OF FILING AN AFFIDAVIT. LD. COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT ASSESSEE HAS NOT DISCHARGED THE REBUTTABLE PRESUMPTI ON CAST ON HIM BY VIRTUE OF PROVISIONS OF SECTION 132(4A) OF THE A CT. THE SAID DOCUMENT HAS BEEN SEIZED FROM THE FARM HOUSE OF T HE ASSESSEE AND NO PLAUSIBLE EXPLANATION HAS BEEN OFFERED FOR THE P OSSESSION OF THE DOCUMENT IN PERSONAL CUSTODY. LD. COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT THE PERUSAL OF THE SAID DOC UMENT MAKES IT CLEAR THAT IT IS IN THE NATURE OF AGREEMENT TO SE LL. ACCORDINGLY, LD. COMMISSIONER OF INCOME TAX (APPEALS) AFFIRMED THE AD DITION OF ` 32,50,000/- MADE BY THE ASSESSING OFFICER. 5. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. WE HAVE CAREFULLY CONSIDERED THE ISSUE . WE FIND T HAT IN THIS CASE IT(SS)A.NO. 17/DEL/2010 BLOCK ASSESSMENT PERIOD 1.4.1989 TO 23.6.1999 4 UNDOUBTEDLY THE DOCUMENT HAS BEEN SEIZED FROM THE PRE MISES OF THE ASSESSEE WHICH HAS BEEN REFERRED BY THE LD. COMMISS IONER OF INCOME TAX (APPEALS) AS AGREEMENT OF SELL. ACCORDING TO W HICH ` 4 LACS HAD BEEN PAID AND BALANCE ` 38 LACS WAS TO BE PAID. THESE DOCUMENTS HAVE BEEN SAID TO BE SIGNED BY BOTH THE PURCHASER A ND SELLER. BOTH THE PURCHASER AND SELLERS HAVE BEEN DENIED THAT THE SAID DOCUMENTS WAS THERE. THE REGISTRATION DEEDS WERE ALSO SEI ZED, WHICH ON THE OTHER HAND, SHOWED THE PURCHASE CONSIDERATION TO BE ` 9.50 LACS. IN THIS REGARD, WE FIND THAT THERE IS NO EVIDENCE IN T HE POSSESSION OF THE REVENUE THAT ACTUALLY MONEY OF ` 32.50 LACS HAS BEEN PAID. THE INFERENCE IS BEING DRAWN ONLY ON THE BASIS OF DOCUME NTS SEIZED WHICH IS SAID TO BE IN THE NATURE OF AGREEMENT OF SELL. B OTH THE PURCHASERS AND SELLERS HAD FILED AFFIDAVIT THAT THEY HAD NOT S IGNED THE SAID DOCUMENTS. THE REVENUE HAS ONLY RECORDED THE STA TEMENT OF SHRI TULSI DAS WHO IS THE HUSBAND OF MRS. DAROPADI DEVI. THE ASSESSEE HAS ALSO ASKED FOR CROSS EXAMINATION OF THE WITNESSES, O PPORTUNITY OF WHICH WAS DENIED. IN THIS REGARD, WE ALSO NOTE THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ASKED FOR REMAND REPORT FROM THE ASSESSING OFFICER ON THE ISSUE OF AFFIDAVIT BY THE ASSESSEE DENYING THE SIGNATURES ON THE DOCUMENTS. IN THE REMAND REPORT DATED 27-9-2006 THE ASSESSING OFFICER HAS STATED THAT T HIS ISSUE NEVER IT(SS)A.NO. 17/DEL/2010 BLOCK ASSESSMENT PERIOD 1.4.1989 TO 23.6.1999 5 AROSE BEFORE ME, HOWEVER, IF YOUR HONOR SO DESIRE, Y OU MAY ASSUME THE ROLE OF THE ASSESSING OFFICER WHICH YOU ARE EMP OWERED AND REFERRED THE MATTER TO THE GOVERNMENT EXAMINER OF QUESTION DOCUMENT, CHANDIGARH. IN FURTHER REMAND REPORT DAT ED 15.12.2006 THE ASSESSING OFFICER HAS STATED THAT BY SUGGESTIN G THE VERIFICATION OF SIGNATURES FROM THE GOVERNMENT EXAMINER OF QUESTION DOCUMENT, CHANDIGARH, HE WAS FOLLOWING MERELY THE DICTATES OF LAW. IT WAS FURTHER WRITTEN IN THE SAID LETTER THAT THE ASSESS ING OFFICER STRONGLY COMMENTED THAT SUITABLE DIRECTION BE GIVEN TO HIM T O DISPATCH THE SAME TO GOVERNMENT EXAMINER OF QUESTION DOCUMENTS FO R THEIR CONCLUSIVE OPINION ABOUT THE SIGNATURES /HAND WRITI NG. AGAIN IN THE REMAND REPORT DATED 24.3.2008 IT WAS MENTIONED THAT NO USEFUL PURPOSE WILL BE SERVED BY VERIFICATION OF DOCUMENT FROM GOVERNMENT EXAMINER, THE QUESTION ON VERIFYING THE SIGNATURES ON THE SEIZED DOCUMENTS SHOULD NOT BE THE MAIN ISSUE AS THE DOCUM ENTS WERE FOUND FROM THE ASSESSEE PREMISES. 6. FROM THE ABOVE, WE FIND THAT THE ASSESSING OFFICER IN THE REMAND REPORT HAS RECOMMENDED THE SAID DOCUMENTS BE SENT F OR THE GOVERNMENT EXAMINER OF QUESTION DOCUMENT REGARDING T HE SIGNATURES AND HAND WRITING. HOWEVER, SUBSEQUENTLY, THE ASSE SSING OFFICER HIMSELF TOOK A REVERSE STAND BY SUGGESTING THAT NO USEFUL PURPOSE BY IT(SS)A.NO. 17/DEL/2010 BLOCK ASSESSMENT PERIOD 1.4.1989 TO 23.6.1999 6 SENDING THE SAID DOCUMENTS TO THE GOVERNMENT EXAMINER . NOW WE FIND THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) IN HIS ORDER HAS NOT AT ALL MENTIONED ANY OF THESE ASPECTS. WE FIND THAT THIS CASE SOLELY HINGES ON THE VERACITY OF THE SIGNATURES ON THE SAID DOCUMENT NO. 28 DATED 21.5.1993. THE PURCHASER AND SELLER H AVE BOTH DENIED THE SIGNATURES AS THEIR OWN AND THE ASSESSING OFFI CER HAS HIMSELF ORIGINALLY RECOMMENDED THAT THE SAID DOCUMENT BE SEN T FOR EXAMINATION TO THE GOVERNMENT EXAMINER OF QUESTION DOC UMENTS, CHANDIGARH. IN OUR CONSIDERED OPINION, THIS DISPU TED DOCUMENT CANNOT IPSO FACTO PROVE THE PAYMENT OF ON MONEY. IT IS NOT THE CASE THAT ANY SUCH ON MONEY HAS BEEN SEIZED FROM THE POSSE SSION OF SELLER. SELLER HAS ALSO NOT ACCEPTED THE RECEIPT OF ON MONEY . THE SALE HAS BEEN DULY REGISTERED FOR ` 9,50,000/-. UNDER SUCH CIRCUMSTANCES, ONUS IS UPON REVENUE TO PROVE THAT THE ALLEGED ON MONEY P AYMENT HAS TAKEN PLACE. ON THE FACT AND CIRCUMSTANCES OF THE C ASE REVENUE HAS FAILED TO DO SO. 6.1 IN THIS REGARD, WE PLACE RELIANCE UPON THE HONBLE APEX COURT IN THE CASE OF K.P. VARGHESE VS. INCOME TAX OFFICER, ERNAKULAM AND ANOTHER 131 ITR 597 (SC), WHEREIN IT HAS BEEN HELD THAT THE BURDEN OF PROVING IS THAT OF REVENUE WHEN THERE IS ALLEGATION OF UNDERSTATEMENT ON CONCEALME NT IN THE CONSIDERATION SHOWN. IT(SS)A.NO. 17/DEL/2010 BLOCK ASSESSMENT PERIOD 1.4.1989 TO 23.6.1999 7 6.2 WE ALSO PLACE RELIANCE UPON THE JUDGEMENT OF TH E HONBLE APEX COURT IN THE CASE OF C.I.T. VS. P.V. KALYANASUNDARAM IN (2007) 294 ITR 49 (SC) IN WHICH ALLEGATIONS OF ON MONEY TRANSACTION ON THE BASIS OF NON-CONVINCING LOOSE SHEETS FOUND DURING THE COURSE OF SEARCH AND CONFLICTING S TATEMENT OF THE SELLER, WAS DELETED BY THE TRIBUNAL (TO WHICH, ONE OF US THE AC COUNTANT MEMBER WAS THE PARTY) AND THE SAME WAS AFFIRMED BY THE HONBLE H IGH COURT AND HONBLE APEX COURT. 6.3 IN THE BACKGROUND OF THE AFORESAID DISCUSSION A ND PRECEDENTS, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND D ELETE THE ADDITION. 7. THE NEXT ISSUE RAISED IS THAT THE LD. COMMISSIONE R OF INCOME TAX (APPEALS) WAS NOT JUSTIFIED IN CONFIRMING THE ADDITI ON OF ` 24.90 LACS AS UNEXPLAINED INVESTMENT IN CONSTRUCTION OF PROPERTY. 7.1 ON THIS ISSUE THE ASSESSING OFFICER OBSERVED T HAT DURING SEARCH A DOCUMENT WAS SEIZED WHICH REVEALED THAT ENGINEER BP SINGH, GOVERNMENT APPROVED REGISTERED VALUER HAD PREPARED A VALUATION REPORT ON ASSESSEES BEHALF IN RESPECT OF PROPERTY BEARING NO. 87, ADCHINI, AURBINDO MARG, ON 20.3.1997. IN THE SAID RE PORT THE COST OF THE PROPERTY WAS WORKED OUT AT ` 24.90 LACS. HOWEVER, A PERUSAL OF RETURN OF INCOME REVEALED THAT ONLY AN AMOUNT OF ` 2,05,00 0/- HAD BEEN SPENT IT(SS)A.NO. 17/DEL/2010 BLOCK ASSESSMENT PERIOD 1.4.1989 TO 23.6.1999 8 ON REPAIR AND RENOVATION OF THIS PROPERTY. ASSESS ING OFFICER FURTHER OBSERVED THAT SHRI TULSIDAS WHO WAS HUSBAND OF THE OWNER OF THE PROPERTY HAD STATED THAT THIS PROPERTY WAS ONLY HAV ING 2/3 HUTS AT THE TIME OF SALE. THUS ASSESSING OFFICER OPINED THA T THE DIFFERENCE OF ` 22.85 LACS SHOULD BE TREATED AS UNDISCLOSED INVES TMENT IN THE CONSTRUCTION OF THE SAID PROPERTY. ASSESSEE REITER ATED THAT ASSESSEE HAD ONLY SPENT` 2,05,000/- ON THE RENOVATION OF THE BUILDING AND THE BUILDING WAS ALREADY IN EXISTENCE THERE. IT WAS C LAIMED THAT THE VALUATION REPORT WAS OBTAINED ONLY FOR THE PURPOSE OF LEVY OF MUNICIPAL TAX. ASSESSING OFFICER DID NOT ACCEPT THESE CON TENTIONS. HE HELD THAT MAJOR CONSTRUCTION IN THE PROPERTY HAD TAKEN PL ACE. ASSESSEE HAD STATED TO HAVE INVESTED ONLY ` 2,05,000/- IN THE FINANCIAL YEAR 1997-98. WHEN THE PROPERTY WAS ACQUIRED BY THE ASSE SSEE, IT HAD CHAPPAR AND TIN SHEDS AND THE ENTIRE THREE STORIED STRUCTURE WITH BASEMENT, 1500 SQFT EACH FLOOR WAS CONSTRUCTED BY T HE ASSESSEE AND THERE WAS REPORT OF THE VALUER ENGINEER BP SINGH DA TED 20.3.1997 OBTAINED BY THE ASSESSEE ITSELF. HENCE THE ASSES SING OFFICER WAS OF THE OPINION THAT THE ASSESSEE CAN NOW NOT DENIED TH E SAID VERACITY OF THE SAID VALUATION REPORT. HENCE, ASSESSING OFFI CER PROCEEDED TO HOLD THAT ` 24.90 LACS WAS UNEXPLAINED INVESTMENT O F THE ASSESSEE AND ADDED THE SAME TO THE TOTAL UNDISCLOSED INCOME. IT(SS)A.NO. 17/DEL/2010 BLOCK ASSESSMENT PERIOD 1.4.1989 TO 23.6.1999 9 8. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) HELD THAT THE VALUATION REPORT DATED 20. 3.2007 PREPARED BY VALUATION ENGINEER BP SINGH WAS SEIZED FROM THE FARM HOUSE OF THE ASSESSEE. THE VALUATION REPORT WAS PREPARED FOR TH E PURPOSE OF HOUSE TAX ASSESSMENT. THE TOTAL COST FOR CONSTRUCTION WA S ASSESSED AT ` 24.90 LACS. THIS VALUATION REPORT WAS SAID TO HA VE BEEN FOR THE PURPOSE OF MUNICIPAL HOUSE ASSESSMENT FOR SELF COMMER CIAL PURPOSE AND THE MUTATION HAS BEEN ALLOWED IN THE NAME OF THE ASSESSEE ON THE BASIS OF THE SAID DOCUMENTS. THE ASSESSEE FURTHER SUBMITTED THAT THE VALUATION ENGINEER HAS FIELD THE AFFIDAVIT AND EMPH ASIZED THAT THE STRUCTURE AT 87, ADHCHINI WAS 8 TO 9 YEARS OLD. HOW EVER, LD. COMMISSIONER OF INCOME TAX (APPEALS) FOUND THAT FACT S MENTIONED IN THE AFFIDAVIT WERE CONTRARY TO THE VALUATION REPORT WHEREIN IT WAS CLEARLY MENTIONED THAT CONSTRUCTION TOOK PLACE IN FE BRUARY, 1994 TO DECEMBER, 1995. LD. COMMISSIONER OF INCOME TAX (APPEA LS) FURTHER REFERRED THE PROVISION OF SECTION 132(4A) AND HELD THAT ASSESSEE HAS NOT BROUGHT ANY EVIDENCE ON THE RECORD TO REBUT THE PRESUMPTION. THE AFFIDAVITS OF SHRI BP SINGH FILED IN THIS REGAR D ARE CLEARLY AFTER THOUGHT. ACCORDINGLY, HE PROCEEDED TO UPHOLD THE A SSESSING OFFICER S ACTION FOR ADDITION OF ` 24.90 LACS. IT(SS)A.NO. 17/DEL/2010 BLOCK ASSESSMENT PERIOD 1.4.1989 TO 23.6.1999 10 9. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE R ECORDS. WE FIND THAT THE SAID VALUATION REPORT WAS OBTAINED BY THE ASSESSEE HIMSELF AND IT SHOWED THAT THE VALUE OF CONSTRUCTIO N WAS ` 24.90 LACS. THE BOOKS OF ACCOUNTS REFLECTED ONLY ` 2,05,000/- THE ASSESSEES CLAIM IS THAT THE SAID VALUATION REPORT WAS OBTAINE D ONLY FOR THE PURPOSE OF MUNICIPAL TAX ASSESSMENT. ASSESSEES CO UNSEL REFERENCE TO CASE LAWS THAT NO ADDITION BASED UPON THE VALUAT ION REPORT CAN BE MADE IN BLOCK ASSESSMENT ARE ON DIFFERENT STATE OF F ACTS. IN THOSE CASES THE VALUATION OF PROPERTY WAS REFERRED BY THE ASSESSING OFFICER FOR VALUATION AFTER THE SEARCH AND IN THIS REGARD C OURTS HAVE HELD THAT ADDITION IN BLOCK ASSESSMENT BASED UPON THE VALUA TION REPORT IS NOT SUSTAINABLE. HOWEVER, IN THIS CASE WE FIND THAT VALUATION REPORT OBTAINED BY THE ASSESSEE HIMSELF WAS FOUND DURING TH E SEARCH PROCEEDINGS. HENCE IT CANNOT BE SAID THAT THERE IS NO MATERIAL SEIZED DURING THE COURSE OF SEARCH. HOWEVER THAT VALUATI ON REPORT ALONE CANNOT BE A CONCLUSIVE BASIS FOR ADDITION. MORE SO W HEN THE VALUER WHO ISSUED THE REPORT HAS GIVEN AN AFFIDAVIT, WHICH PUT S A QUESTION MARK ON THE VALUATION. UNDER THE CIRCUMSTANCES, THERE IS NEED OF FURTHER VERIFICATION ON THE VALUATION ASPECT. HENCE WE REMIT THIS ISSUE TO THE FILES OF ASSESSING OFFICER TO EXAMINE THE SAME AFRES H. ASSESSING OFFICER SHALL BRING ON RECORD OTHER CORROBORATIVE EVIDENCE WITH REGARD TO IT(SS)A.NO. 17/DEL/2010 BLOCK ASSESSMENT PERIOD 1.4.1989 TO 23.6.1999 11 THE VALUATION ASPECT AND IF REQUIRED MAY REFER THE V ALUATION FOR EXPERT OPINION. NEEDLESS TO ADD THAT ASSESSEE SHOULD BE G IVEN ADEQUATE OPPORTUNITY OF BEING HEARD. 10. THE NEXT GROUNDS READ AS UNDER:- I) THAT THE ADDITION OF ` 24,80,000/- ON ACCOUNT OF DEPOSIT WITH MS ASSOCIATES IS NOT RELEVANT FOR CONSIDERATION IN THE CASE OF THE APPELLANT IN VIEW OF THE FACT THAT SAME ADDIT ION HAS BEEN MADE IN THE CASE OF MS ASSOCIATES, PARTNERSHIP FIRM BY LD. COMMISSIONER OF INCOME TAX (APPEALS) OF THE SA ME RANGE. II) THAT OBSERVATION OF THE LD. COMMISSIONER OF INCO ME TAX (APPEALS) THAT THIS GROUND WAS NOT PRESSED IS TOTA LLY INCORRECT AND WITHOUT ANY BASIS AS IT WAS SPECIFIC ALLY CLARIFIED THAT THIS GROUND IS NOT RELEVANT IN ACCOR DANCE WITH OBSERVATION AND FINDING OF THE THEN LD. COMMISSIONER OF INCOME TAX (APPEALS), WHO HAS CONSIDERED THIS ADD ITION IN THE CASE OF MS ASSOCIATES. 11. ASSESSING OFFICER HAD MADE THE ASSESSMENT O F ` 24.80 LACS AS UNEXPLAINED DEPOSIT OF THE ASSESSEE IN M/S MS ASSOCIA TES AND ADDED THE SAME TO THE TOTAL UNDISCLOSED INCOME. IT(SS)A.NO. 17/DEL/2010 BLOCK ASSESSMENT PERIOD 1.4.1989 TO 23.6.1999 12 12. UPON ASSESSEES APPEAL LD. COMMISSIONER OF INCOME TAX (APPEALS) NOTED ON THIS ISSUE THAT ADDITION OF ` 24 .80 LACS ON ACCOUNT OF DEPOSITS WITH M/S MS ASSOCIATES WAS NOT PRESSED DU RING THE APPELLATE PROCEEDINGS. HENCE THE ISSUE WAS DISMISSE D. 13. HOWEVER, NOW THE ASSESSEE IS CONTENDING THAT LD . COMMISSIONER OF INCOME TAX (APPEALS)S OBSERVATION THAT ASSESSEE WOULD NOT PRESS THIS GROUND WAS TOTALLY INCORRECT AND WITHOUT ANY BASIS. IT WAS CLAIMED THAT THE GROUND WAS NOT RELEVANT FOR CONSIDERATION IN THE CASE OF THE ASSESSEE, IN VIEW OF THE FACT THAT THE SAME ADDITIO N HAS BEEN MADE IN THE CASE OF MS ASSOCIATES, A PARTNERSHIP FIRM, BY TH E LD. COMMISSIONER OF INCOME TAX (APPEALS) OF THE SAME RANGE. 14. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED TH E RECORDS. LD. COUNSEL OF THE ASSESSEE BEFORE US REITERATED THE S UBMISSIONS THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) WAS WRONG IN HO LDING THAT ASSESSEE HAS NOT PRESSED THE GROUND. HE SUBMITTED THAT THIS AMOUNT HAS BEEN DULY ADDED IN THE BLOCK ASSESSMENT OF M/S MS ASSOCIATES IN THEIR CASE AND THE ITAT IN IT(SS)A NO. 228/DEL/2006 IN THE CASE OF MS ASSOCIATES VIDE ORDER DATED 6.11.2009 DELETED THE S AID ADDITION. WE HAVE CAREFULLY CONSIDERED THE SUBMISSION AND PERUSED THE RECORDS. WE FIND THAT LD. COMMISSIONER OF INCOME TAX (APPEALS) HA S CATEGORICALLY HELD THAT THE ISSUE WAS NOT PRESSED BEFORE HIM. H OWEVER, THE ASSESSEE IS CLAIMING THAT THE LD. COMMISSIONER OF INCO ME TAX (APPEALS) WAS WRONG IN HOLDING THAT THE ISSUE WAS NOT PRESSED. IT WAS CLAIMED THAT SINCE THE IMPUGNED AMOUNT WAS ALREADY ADD ED IN THE HANDS OF M/S M S ASSOCIATES, IT WAS CLAIMED THAT THE SAME COULD NOT HAVE BEEN ADDED IN THE HANDS OF THE ASSESSEE. NOW W E FIND THAT NECESSARY FACTS ARE ON RECORD THAT THE ADDITION WAS MADE IN THE BLOCK IT(SS)A.NO. 17/DEL/2010 BLOCK ASSESSMENT PERIOD 1.4.1989 TO 23.6.1999 13 ASSESSMENT OF MS ASSOCIATES WHICH WAS SUBSEQUENTLY D ELETED BY THE TRIBUNAL. THUS, WE FIND THAT LD. COMMISSIONER OF IN COME TAX (APPEALS) HAS ERRED IN NOT ADJUDICATING UPON THIS ISSUE. WE NOTE THAT WE HAVE REMITTED THE EARLIER ISSUE TO THE FILES OF ASSESSING OFFICER. HENCE WE DEEM IT APPROPRIATE TO REMIT THIS ISSUE ALSO TO THE FILES OF ASSESSING OFFICER TO CONSIDER THE SAME AFRESH, KEEPING IN MIN D ALL THE NEW FACTS ON RECORD AND DECIDE THE ISSUE AS PER LAW. NEEDLES S TO ADD THAT THE ASSESSEE SHOULD BE GRANTED ADEQUATE OPPORTUNITY OF BEING HEARD. 15. IN THE RESULT, THIS APPEAL BY THE ASSESSEE IS P ARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 10/09/2010. SD/- SD/- [ [[ [RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV RAJPAL YADAV] ]] ] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 10/09/2010 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT, DELHI BENCHES