Smt Rabia Begum, Bangalore V. ACIT, Bangalore

ITSSA 40/BANG/2008

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 9501 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 11-03-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 02-03-2010
• Assessment Year: misc
• Appeal Filed On: 29-05-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Search and seizure; Document seized; Block assessment; Documents seized
• Section: 15; 139

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH A BEFORE DR. O.K NARAYANAN, VICE PRESIDENT AND SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER IT(SS)A NO.40/BANG/2 008 (ASST. YEA R BLOCK ASST.) SMT. RABIA BEGUM, #81, 6 TH CROSS, GROUND FLOOR, VICTORIA LAYOUT, BANGALORE-560 07. . APPELLANT VS. THE ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-2(1), BANGALORE. . RESPONDENT IT(SS)A NO.41/BANG/2008 (ASST. YEAR 01/04/199 1 TO 29/05/2001) THE ASST. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-2(1), BANGALORE. . APPELLANT VS. SMT. RABIA BEGUM, #81, 6 TH CROSS, GROUND FLOOR, VICTORIA LAYOUT, BANGALORE-560 07. . RESPONDENT ASSESSEE BY : SHRI V SRINIVASAN , CHARTERED ACCOUNTANT REVENUE BY : SMT. JACINTA ZIMIK VASHAI, ADDL. COMMI SSIONER OF INCOME-TAX IT(SS)A NOS.40 & 41/B/08 2 O R D E R PER DR. O.K NARAYANAN, VICE PRESIDENT THESE ARE TWO BLOCK ASSESSMENT APPEALS FILED BY TH E ASSESSEE AND THE REVENUE. THESE CROSS APPEALS ARE DIRECTED AGAINST THE ORDER OF THE CIT(A)-V AT BANGALORE DATED 20.03.08 AND ARI SE OUT OF THE ASSESSMENT COMPLETED U/S158BD OF THE INCOME-TAX ACT 1961. 2. THERE WAS A SEARCH ACTION IN THE CASE OF M/S DOM ICILE DEVELOPERS, IN WHICH THE SEIZED DOCUMENTS BROUGHT T O LIGHT THE GENERATION OF UNACCOUNTED INCOME IN THE HANDS OF TH E ASSESSEE. THEREFORE, NOTICE U/S 158BD WAS ISSUED TO THE ASSES SEE AND THE NOTICE WAS COMPLIED WITH, BY FILING A BLOCK RETURN DECLARI NG AN UNDISCLOSED INCOME OF RS.30,73,255/-. 3. THE ASSESSEE MRS. RABIA BEGUM WAS ALLOTTED 200 S HARES IN 1992 IN A PUBLIC ISSUE. SHE HAD INVESTED RS.24,000 /- IN THESE SHARES. THE SOURCE OF THE INVESTMENT CAME FROM M/S KOOL NEX T (P) LTD. M/S INFOSYS TECHNOLOGIES LTD. FURTHER ISSUED BONUS SHARES IN 1994 AND ALTOGETHER, THE SHARE HOLDING CAME TO 400 SHARE S. AGAIN, IT WAS INCREASED IN 1997 BY VIRTUE OF BONUS SHARES ISSUED. THE SHARE HOLDING IT(SS)A NOS.40 & 41/B/08 3 CAME TO 800 NUMBERS. OUT OF THE ABOVE SHARES, SHE S OLD 400 SHARES IN DECEMBER, 1997 FOR RS.5,80,000/-. THE BALANCE OF 4 00 SHARES LEFT WITH THE ASSESSEE IN DECEMBER, 1997 WAS AGAIN DOUBL ED IN 1999, ON ACCOUNT OF BONUS ISSUE, BRINGING THE HOLDING TO 80 0 SHARES. THE SHARES LATER ON SPLIT FROM RS.10/- FACE VALUE TO RS .5/- FACE VALUE, THEREBY THE NUMBER INCREASED TO 1600 IN FEB, 2000. OUT OF THIS, 800 SHARES WERE TAKEN INTO DEMAT ACCOUNT. THE BALANCE 800 SHARES WERE IN PHYSICAL FORM. THE PHYSICAL SHARES WERE NOT FOU ND IN THE COURSE OF SEARCH. IN FEB, 2000, THE ASSESSEE SOLD 300 DEMAT SHARES AT THE RATE OF 8,342/- PER SHARE. THE RESULTING CAPITAL GAINS WERE NOT REFLECTED IN THE REGULAR RETURN FILED BY THE ASSESSEE FOR THE AS SESSMENT YEAR 2000- 01. IT IS, IN THESE CIRCUMSTANCES, THE ASSESSING O FFICER HAS BROUGHT THE CAPITAL GAINS ARISING TO THE ASSESSEE OUT OF SH ARE TRANSACTIONS TO A SUM OF RS.59,51,626/-. THE ASSESSING OFFICER FURTH ER ADDED THE VALUE OF GOLD AT RS.3,90,963/- FINALLY DETERMINING THE U NDISCLOSED INCOME IN THE HANDS OF THE ASSESSEE AT RS.63,42,589/-. 4. IN FIRST APPEAL, THE CONTENTION RAISED BY THE AS SESSEE BEFORE THE CIT(A) IN RESPECT OF THE ADDITIONS TOWARDS CAPITAL GAINS WAS THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED IN TREATING THE CAPITAL GAINS OF 28,68,983/-, AS PART OF THE UNDISCLOSED INCOME FOR THE REASON THAT, AT IT(SS)A NOS.40 & 41/B/08 4 THE TIME OF SEARCH, THE TIME TO FILE THE RETURN WAS NOT EXHAUSTED. AGAINST THE ADDITION OF RS.59,51,626/-, DISPUTE WAS RAISED ONLY IN RESPECT OF THE AMOUNT OF RS.28,68,983/-. THE ASSES SEE HAS ACCEPTED THE BALANCE AMOUNT OF RS.25,02,643/- AS PART OF THE UNDISCLOSED INCOME. BUT THE CIT(A) CONFIRMED THE ADDITION OF R S.28,68,983/- AS WELL. 5. IN RESPECT OF THE ADDITION OF RS.3,90,963/- MADE AGAINST THE UNDISCLOSED INVESTMENT IN GOLD JEWELLERY, THE CIT(A ) DELETED THE SAME TAKING INTO CONSIDERATION THE RESOURCEFULNESS OF TH E ASSESSEE INCLUDING THE UNDISCLOSED INCOME GENERATED IN HER H ANDS. 6. THE CONTENTION REGARDING LEVY OF SURCHARGE WA S DISMISSED BY THE CIT(A) IN THE LIGHT OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. SURESH N GUPTA, 297 IITR 322. 7. NOW, THE ASSESSEE IS AGGRIEVED BY THE ADDITION SUSTAINED BY THE CIT(A) AND REVENUE IS AGGRIEVED BY THE MODIFICATION GRANTED BY THE CIT(A). THEREFORE, THESE CROSS-APPEALS BEFORE US. IT(SS)A NOS.40 & 41/B/08 5 8. WE HEARD SHRI V SRINIVASAN, THE LEARNED CHART ERED ACCOUNTANT APPEARING FOR THE ASSESSEE AND SMT. JACINTA ZIMIK V ASHAI, THE LEARNED ADDL. COMMISSIONER OF INCOME-TAX APPEARING FOR THE REVENUE 9. THE FIRST GROUND WHICH IS LEGAL IN NATURE RA ISED BY THE ASSESSEE IS REPRODUCED BELOW : THE ORDER OF BLOCK ASSESSMENT PASSED U/S 158BD OF THE ACT IS BAD IN LAW AND VOID-AB-INITIO IN AS MUCH AS NO SATISFACTION HAS EITHER BEEN REACHED AND RECORDED BY THE LEARNED AO BEFORE ISSUANCE OF NOTICE U/S 158BD OF THE ACT AND CONSEQUENTLY THE IMPUGNED ASSESSMENT DESERVES TO BE CANCELLED FOLLOWING THE DECISION OF THE HONBLE SUPREME COURT, IN THE CASE OF MANISH MAHESHWARI REPORTED IN 289 ITR 341 (SC). 10. WE HEARD BOTH SIDES AT LENGTH ON THIS IM PORTANT LEGAL ISSUE. THE LEARNED CA HAS RELIED ON THE JUDGMENT OF THE HO NBLE SUPREME COURT IN THE CASE OF MANISH MAHESHWAI, 289 ITR 341 AS WELL AS THE SPECIAL BENCH DECISION OF THE ITAT DELHI A BENCH IN THE CASE OF MANOJ AGGARWAL VS. DCIT, 113 ITD 377 (DEL). HE HAS ALSO RELIED ON A SERIES OF OTHER ORDERS PASSED BY ITAT, BANGALORE BENCH. IT(SS)A NOS.40 & 41/B/08 6 11. THE CRUX OF THE ARGUMENTS OF THE LEARNED CH ARTERED ACCOUNTANT IS THAT THE ASSESSING OFFICER HAS NOT RECORDED AND COMMUNICATED THE NECESSARY SATISFACTION TO PROCEED U/S 158BD, AS R EQUIRED BY LAW. 12. THE LEARNED ADDL. CIT ON THE OTHER HAND, PR ODUCED BEFORE US, THE COPY OF THE APPRAISAL REPORT, REASONS RECORDED IN THE FILE NOTE AND THE DETAILS OF THE MATERIALS, BASED ON WHICH, THE A SSESSING OFFICER HAS ARRIVED AT THE SATISFACTION TO INVOKE SEC. 158BD. SHE HAS FURTHER RELIED ON A RECENT ORDER OF ITAT, BANGALORE A BEN CH IN THE CASE OF M/S RAHEJA DEVELOPERS VS. ACIT IN ITR 33 & 34/BANG DATED 11 TH DEC, 2009. 13. THE HONBLE SUPREME COURT IN THE CASE OF MA NISH MAHESHWARI MENTIONED (SUPRA) AND THE SPECIAL BENCH, ITAT DELHI IN THE CASE OF MANOJ AGGARWAL MENTIONED (SUPRA) SUCCINTLY HAVE LAI D DOWN THE RULES GOVERNING THE REQUIREMENTS OF LAW REGARDING I N ARRIVING AT THE SATISFACTION FOR THE PURPOSE OF INITIATING ASSESSME NT PROCEEDINGS U/S 158BD. AS RIGHTLY ARGUED BY THE LEARNED CHARTERED ACCOUNTANT, THE HONBLE SUPREME COURT HAS CLEARLY STATED THAT THE SATISFACTION NECESSARY FOR INVOKING SEC. 158BD MUST EVOLVE IN TH E COURSE OF IT(SS)A NOS.40 & 41/B/08 7 PROCEEDINGS CONTEMPLATED U/S 158BC AS WELL AS FROM THE MATERIALS COLLECTED IN THE COURSE OF SEARCH, WHICH RESULTED I N THE 158BC ASSESSMENT. THE SPECIAL BENCH DECISION ALSO SUM S UP THE NECESSARY INGREDIENTS TO BE OBSERVED BY THE ASSESSING AUTHORI TY, WHILE RECORDING HIS SATISFACTION. 14. THE RATIO OF THE ABOVE TWO DECISIONS AND THE SIMILAR OTHER JUDICIAL PRONOUNCEMENTS IS THAT AN ASSESSMENT U/S 158BD IS THE OFF- SHOOT OF AN ASSESSMENT U/S 158BC RESULTING OUT OF A SEARCH U/S 132. IT IS IN THE COURSE OF PURSUING MATERIALS RELATED TO T HE SEARCH AND THE 158BC ASSESSMENT, THAT THE ASSESSING OFFICER IS SUP POSED TO LAY HIS HANDS ON MATERIALS RELATING TO THE INCOME OF ANOTHE R PERSON OTHER THAN THE PERSON SEARCHED. WHEN SUCH MATERIALS ARE FOUND BY THE ASSESSING OFFICER, THEN THE ASSESSING OFFICER HAS TO RECORD SATISFACTION TO THE EFFECT THAT THESE MATERIALS HAVE TO BE TRANSMITTED TO THE ASSESSING OFFICER, WHO IS HAVING JURISDICTION OVER THE OTHER PERSONS, SO THAT A CONSEQUENTIAL BLOCK ASSESSMENT MAY BE FRAMED U/S 15 8BD ON THE OTHER PERSON. IN OTHER WORDS, THE GENESIS OF SECTI ONS 158BC PROCEEDINGS AS WELL 158BD PROCEEDINGS ARE THE SAME AND 158BD IS THE RESULT OF THE SATISFACTION ARRIVED AT, BY THE ASSESSING OFFICER HAVING JURISDICTION OVER SEC. 158BC CASE. THE COURT HAS ALSO IT(SS)A NOS.40 & 41/B/08 8 EMPATHETICALLY DECLARED THAT ARRIVING SATISFACTION ON THE BASIS OF THE MATERIALS IS MANDATORY AND THE SATISFACTION MUST B E APPARENT IN THE BLOCK ASSESSMENT ORDER PASSED U/S 158BD. 15. BUT THE ARGUMENTS OF THE LEARNED CHARTERED ACCOUNTANT IN THE PRESENT CASE IS NOT CONFINED TO THE ABOVE PRINCIPLE ELABORATED BY THE HONBLE SUPREME COURT, HIGH COURTS AND SPECIAL BENC H OF THE TRIBUNAL. THE LEARNED CHARTERED ACCOUNTANT IS MAKI NG AN ATTEMPT TO LAY DOWN CERTAIN HYPOTHETICAL PROCEDURES MANDATORIL Y TO BE FOLLOWED BY THE ASSESSING OFFICER IN THE PROCESS OF ARRIVING AT AND RECORDING OF SATISFACTION NECESSARY FOR INITIATING ACTION U/S 158BD. IT IS THE CONTENTION OF THE LEARNED CHARTERED ACCOUNTANT THAT EVEN, WHEN THE ASSESSING OFFICER IS COMMON IN BOTH 158BC ASSESSMEN T AND 158BD ASSESSMENT, HE HAS TO RECORD SEPARATE SATISFACTION , NOTES AND HAS TO INCORPORATE SATISFACTION IN THE ORDERS SEPARATELY A ND THE PROCESS OF VERIFICATION SHOULD BE CONDUCTED IN SEPARATE PACKAG ES AND A REFERENCE TO THE 158BC ASSESSMENT ALONE IS NOT SUFFICIENT, AN D ETC. HE HAS ALSO CANVASSED THE ARGUMENTS THAT THE MODES OF VERIFICA TION MADE BY THE ASSESSING AUTHORITY TO ARRIVE AT THE SATISFACTION MUST BE NARRATED IN THE ORDER PASSED U/S 158BD SO AS TO JUSTIFY HIS ACT ION. IT(SS)A NOS.40 & 41/B/08 9 16. WE ARE AFRAID THAT WE ARE NOT ABLE TO AGREE WITH THE ARGUMENTS OF THE LEANED CHARTERED ACCOUNTANT. IN THE PRESENT CA SE, THE ASSESSING OFFICER IS ONE AND THE SAME DEALING BOTH 158BC ASSE SSMENT AS WELL AS 158BD ASSESSMENT. THE ASSESSING AUTHORITY HAS EXAM INED THE APPRAISAL REPORT BEFORE COMING TO THE CONCLUSION OF UNDISCLOSED INCOME ATTRIBUTABLE TO BOTH THE ASSESSEES IS FALLIN G U/SS 158BC AND 158BD. THE ASSESSING OFFICER HAS CATEGORICALLY STA TED THE ITEMS OF MATERIALS AND INFORMATION RELATED TO THE ASSESSEE, WHICH ARE TO BE CONSIDERED IN HER HANDS FOR THE PURPOSE OF COMPLETI NG THE ASSESSMENT U/S 158BD. ALL THESE MATERIAL FACTS HAVE BEEN REPR ODUCED IN THE IMPUGNED ASSESSMENT ORDER, THEREBY CLEARLY REFLECTI NG THE SATISFACTION ARRIVED AT BY HIM FOR INITIATING 158 BD PROCEEDINGS AGAINST THE ASSESSEE. HANDING OVER THE RECORDS TO ANOTHER ASSESSING OFFICER AND CONVEYING THE SATISFACTION TO THE SA ID ANOTHER OFFICER ARE NOT CALLED FOR IN THE PRESENT CASE, FOR THE REASON THAT ASSESSING OFFICER IS THE SAME FOR BOTH THE ASSESSEES. THEREFORE, THE RE IS NO OCCASION FOR THE ASSESSING OFFICER TO COMMUNICATE THESE MATTERS TO ANOTHER OFFICER. THE ABSENCE OF AN OPPORTUNITY TO THE ASSESSING OFFI CER TO MAKE AN INDEPENDENT COMMUNICATION TO ANOTHER OFFICER MAY NO T BE ALLOWED AS A GROUND FOR THE LEARNED CHARTERED ACCOUNTANT TO AR GUE THAT THE ASSESSING OFFICER HAS NOT INDEPENDENTLY APPRAISED T HE MATERIALS IN THE IT(SS)A NOS.40 & 41/B/08 10 CONTEXT OF 158BC ASSESSMENT AND FURTHER HE HAS NOT MADE ANY RECORDING OF SATISFACTION INDEPENDENTLY, ETC. WE FIND THAT THE ARGUMENTS MADE BY THE LEARNED CHARTERED ACCOUNTANT ARE HYPER TECHNICAL. 17. FURTHER ALL THE CASE LAWS RELIED ON BY THE LEARNED CHARTERED ACCOUNTANT AND THE DISTINCTION SOUGHT TO BE MADE BY HIM, HAS BEEN CONSIDERED BY ITAT, BANGALORE A BENCH IN THE CAS E OF K RAHEJA DEVELOPERS MENTIONED (SUPRA). IN THE SAID TRIBUNAL ORDER, THE BENCH HAS DISTINGUISHED THE CASE OF M/S R & M TRUST, WHIC H HAS BEEN HIGHLY RELIED ON BY THE ASSESSEE. THE TRIBUNAL HAS ALSO D ISTINGUISHED THE DECISION IN THE CASE OF S.G.R ENTERPRISES VS. ACIT, 112 ITR 377 RELIED ON BY THE ASSESSEE. 18. THEREFORE, IN THE FACTS AND CIRCUMSTANCES O F THE CASE, WE FIND THAT THE LEGAL GROUNDS RAISED BY THE ASSESSEE ARE N OT SUSTAINABLE. WE HOLD THAT THE ASSESSMENT IS VALID AND LAWFUL. 19. NOW, WE WILL CONSIDER THE GROUNDS RAISED BY THE ASSESSEE ON MERITS. THE FIRST GROUND ON MERITS IS REPRODUCED B ELOW : IT(SS)A NOS.40 & 41/B/08 11 WITHOUT PREJUDICE TO THE ABOVE, THE AUTHORITIES BELOW ARE NOT JUSTIFIED IN ASSESSING A SUM OF RS.59,51,626/- AS CAPITAL GAIN ARISING OUT OF TRANSFER OF SHARES UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANTS CASE. THE ASSESSMENT OF LONG TERM CAPITAL GAINS IN THE BLOCK ASSESSMENT IS OPPOSED TO LAW AND THEREFORE THE SAME DESERVES TO BE DELETED. 20. THIS ISSUE HAS BEEN ADJUDICATED BY THE CIT( A) IN THE FOLLOWING MANNER. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND I AM OF THE OPINION THAT THE COMPUTATION OF UNDISCLOSED INCOME MADE BY THE A.O U/S 158BD IS AS PER LAW. THE CLAIM OF THE APPELLANT THAT ON THE DATE OF SEARCH I.E 29.5.2001, THE DATE OF FILIN G THE RETURN OF INCOME UNDER SUB-SECTION OF SECTION 139 HAS NOT EXPIRED U/S 158BB(1)(D) IS CORRECT AND THERE IS NO DISPUTE ABOUT IT. THE PROBLEM IS THAT THE APPELLANT DID NOT FILE HER RETURN OF INCOME BY 30.6.01 AN SHE COULD FILE ONLY ON 24.08.2007. THE ASSESSMENT WAS COMPLETED ON 30.05.2005. IF THE RETURN WAS FILED BEFORE THE ASSESSMENT ORDER WAS PASSED AND THE A.O WAS INFORMED ABOUT THE DECLARATION OF CAPITAL GAINS IN THE REGULAR RETURN OF INCOME, THE MATTER WOULD HAVE BEEN IN FAVOUR OF THE APPELLANT. THERE IS NO DISPUTE ABOUT THE IT(SS)A NOS.40 & 41/B/08 12 UNDISCLOSED CAPITAL GAINS FROM THE SALE OF SHARES ON 04.05.2000, 05.05.2000 AND JANUARY 2001 AMOUNING TO RS.28,68,293/- . IN VIEW OF THIS, THE ORDER OF THE AO NEEDS NO INTERFERENCE AND HENCE THE SAME IS CONFIRMED. 21. WE ARE NOT IN AGREEMENT WITH THE ABOVE DECI SION OF THE CIT(A). FOR THE PURPOSE OF CLARITY, SUB SEC.(3) OF SEC. 158 BA IS EXTRACTED BELOW: SECTION 158BA(3) : WHERE THE ASSESSEE PROVE TO THE SATISFACTION OF THE ASSESSING OFFICER THAT ANY PART OF INCOME REFERRED TO IN SUB-SECTION OF THE ASSESSING OFFICER THAT ANY PART OF INCOME REFERRED TO IN SUB-SECTION (1) RELATES TO AN ASSESSMENT YEAR FOR WHICH THE PREVIOUS YEAR HAS NOT ENDED OR THE DATE OF FILING THE RETURN OF INCOME UNDER SUB-SECTION (1) OF SECTION 139 FOR ANY PREVIOUS YEAR HAS NOT EXPIRED, AND SUCH INCOME OR THE TRANSACTIONS RELATING TO SUCH INCOME ARE RECORDED ON OR BEFORE THE DATE OF THE SEARCH OR REQUISITION IN THE BOOKS OF ACCOUNT OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE RELATING TO SUCH PREVIOUS YEARS, THE SAID IT(SS)A NOS.40 & 41/B/08 13 INCOME SHALL NOT BE INCLUDED IN THE BLOCK PERIOD. 22. THE LAW REQUIRES ONLY TWO CONDITIONS TO BE SATISFIED FOR AN ITEM OF INCOME TO BE IGNORED FROM THE COMPUTATION OF UND ISCLOSED INCOME. THE FIRST CONDITION IS THAT THE PREVIOUS YEAR HAS N OT ENDED OR THE DATE OF FILING OF THE RETURN OF INCOME U/S 139(1) HAS NO T EXPIRED. IN THE PRESENT CASE, ABOVE CONDITION IS SATISFIED IN AS MU CH AS THE DATE OF FILING THE RETURN OF INCOME U/S 139(1) WAS NOT EXPI RED AT THE TIME OF SEARCH CONDUCED ON 29/5/2001 . THE SECOND CONDITION IS THAT THE TRANSACTIONS SHOULD BE RECORDED IN THE BOOKS OF ACC OUNTS OR OTHER DOCUMENTS MAINTAINED IN THE NORMAL COURSE OF BUSINE SS. THE SAID CONDITION IS ALSO SATISFIED BY THE ASSESSEE FOR THE REASON THAT THE DETAILS OF SHARE TRANSACTIONS WERE REFLECTED IN THE DEMAT A CCOUNT. WHETHER THE ASSESSEE HAS FILED THE RETURN FOR THE CORRESPON DING ASSESSMENT YEAR WITHIN THE TIME AND THE INCOME WAS DECLARED IN THAT RETURN ETC. ARE MATTERS TO BE CONSIDERED ELSEWHERE AND OUTSIDE THE PURVIEW OF SEC. 158BA(3). ACCORDINGLY, THE FINDING OF THE CIT(A) I S UNSUSTAINABLE IN LAW. THEREFORE, WE DELETE THE ADDITION OF RS.28,68 ,983/-. IT(SS)A NOS.40 & 41/B/08 14 23. THE NEXT GROUND RAISED BY THE ASSESSEE IS AG AINST THE LEVY OF SURCHARGE. 24. THIS GROUND IS DISMISSED IN VIEW OF THE DEC ISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. SURESH N GUPTA , 297 ITR 322. 25. THE APPEAL FILED BY THE ASSESSEE IS PARTLY SUCCESSFUL. 26. NEXT, WE WILL CONSIDER THE APPEAL FILED BY THE REVENUE. 27. THE SOLITARY GROUND RAISED BY THE REVENUE IS THAT THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.3,90,963/- MAD E TOWARDS VALUE OF GOLD. 28. THE CIT(A) HAS DISCUSSED THE REASONS IN A DET AILED MANNER AND WE ARE NOT INCLINED TO DISPUTE HIS ORDER ON THIS PO INT. THE REVENUE FAILS IN ITS APPEAL. IT(SS)A NOS.40 & 41/B/08 15 29. IN RESULT, THE APPEAL FILED BY THE ASSESSEE I S PARTLY ALLOWED AND APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THURSDAY , THE 11TH DAY OF MARCH, 2010, AT BANGALORE. SD/- SD/- (SHAILENDRA KUMAR YADAV) (DR. O.K NARAYA NAN) JUDICIAL MEMBER VICE PR ESIDENT VMS. COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED. 5.DR 6.GF 7..GF, ITAT, NEW DELHI. BY ORDER ASST. REGISTRAR, ITAT, BANGALOR E.