ACIT, V. Smt. Shakuntala Agarwal,

ITSSA 6/PAT/2009

• Counselvise Citation: [2012] 124 COUNSELVISE.COM (IT) 7596 (ITAT-PATNA)
• Duration Of Justice: 2 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 24-02-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 31-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K AGGARWAL; A K RASTOGI
• Assessee Lawyers: RISHI ROY SINHA
• Keywords: Value adopted by valuation officer; Fair market value; Valuation report; Block assessment

Judgement Text

IT(SS)A NO6/PATNA/2009 & CO NO.8/PATNA/2009 SMT. SHAKUNTALA AGARWAL, PATNA 1 IN THE INCOME TAX APPELLATE TRIBUNAL PATNA BENCH, PATNA BEFORE: SHRI B.R. MITTAL, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER IT (SS) A NO. 06 / PATNA / 20 09 BLOCK PERIOD : 1989 - 90 TO 1999 - 2000 ACIT CENTRAL CIRCLE - 1 PATNA VS. SMT. SHAKUNTALA AGARWAL PATNA (APPELLANT) (RESPONDENT) C.O. NO.0 8 /PATNA/2009 BLOCK PERIOD : 1989 - 90 TO 1999 - 2000 SMT. SHAKUNTALA AGARWAL PATNA VS. ACIT CENTRAL CIRCLE - 1 PATNA (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI A.K. RASTOGI, A DVOCATE & SHRI A.K. AGGARWAL, ADVOCATE RESPONDENT BY: SHRI RISHI ROY SINHA, DR. DATE OF HEAR I NG: 22 .02.2012 DATE OF PRONOUNCEMENT: 24 .02.2012 ORDER PER B.R. MITTAL, JUDICIAL MEMBER:- THE DEPARTMENT HAS FILED THIS APPEAL FOR THE BLOC K PERIOD 1989-90 TO 1999-2000 AGAINST THE ORDER OF LD. CIT(A) DATED 27. 5.2009 ON FOLLOWING GROUNDS:- 1. FOR THAT THE LD. CIT(A)-II PATNA WAS ERRED IN FACT AS WELL AS LAW IN DELETING THE SUM OF RS.3,90,544/- ON ACCOUNT OF CAS H TRANSACTION APPEARED IN THE BUNCH OF LOOSE SHEETS AND RS.2,53,0 00/- ON ACCOUNT OF UNDISCLOSED INVESTMENT MADE IN THE PROPERTIES WITHO UT PROPER APPRECIATION OF FINDINGS OF THE A.O. IN HIS ASSESSM ENT ORDER AND REMAND REPORT. 2. FOR THAT THE APPELLANT CRAVES LEAVES TO URGE, ADD O R ALTER ANY OTHER GROUND OR GROUNDS AT THE TIME OF HEARING. IT(SS)A NO6/PATNA/2009 & CO NO.8/PATNA/2009 SMT. SHAKUNTALA AGARWAL, PATNA 2 2. THE ASSESSEE HAS FILED CROSS OBJECTION AND IN TH E CROSS OBJECTION, THE ASSESSEE HAS DISPUTED THE ORDER OF LD. CIT(A) IN NO T DELETING THE INTEREST CHARGED U/S 158BFA(1) OF INCOME-TAX ACT. 3. THE RELEVANT FACTS ARE THAT A SEARCH U/S 132(1) WAS CONDUCTED UPON THE ASSESSEE IN CONNECTION WITH THE SEARCH OF SHRI SUDARSHAN KUMAR BANSAL. PURSUANT THERETO, ASSESSMENT FOR THE BLOCK PERIOD F ROM 1989-90 TO 1999- 2000 WAS PASSED U/S 158BC OF THE ACT ON 23.11.2000. 4. THE ASSESSING OFFICER MADE AN ADDITION OF RS.3,9 0,544/- ON ACCOUNT OF LOOSE SHEETS MAINTAINED BY SHRI S.K. BANSAL AND SEI ZED FROM THE RESIDENCE OF SHRI RATAN HAVELIA AT GHAZIABAD. WITHOUT GOING INT O THE DETAILS OF THE FACTS, IT IS RELEVANT TO STATE THAT THE ASSESSING OFFICER MADE THE SAID ADDITION IN THE HAND OF THE ASSESSEE ON PROTECTIVE BASIS. HOWEVER, LD. CIT(A) HAS DELETED THE SAME BECAUSE THE SAID AMOUNT WAS ADMITTED BY SH RI S.K. BANSAL IN HIS HAND BEFORE THE SETTLEMENT COMMISSION WHO PASSED TH E ORDER ON 28.12.2007. THE LD. D.R. AT THE TIME OF HEARING HA S NOT DISPUTED ABOVE FACT WHICH ARE STATED BY LD. CIT(A) AT PAGE 5 TO 8 OF TH E IMPUGNED ORDER. 5. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY INFIRMI TY IN THE ORDER OF LD. CIT(A) IN DELETING THE SAID ADDITION OF RS.3,90,544 /- MADE BY THE ASSESSING OFFICER ON PROTECTIVE BASIS IN THE HAND OF THE ASSE SSEE AS THE SAME HAS BEEN CONSIDERED IN THE HAND OF SHRI S.K. BANSAL BY THE S ETTLEMENT COMMISSION IN ITS ORDER DATED 28.12.2007. 6. FURTHER, IN RESPECT OF ADDITION OF RS.2,53,000/- ON ACCOUNT OF INVESTMENT IN FLAT NO.502 AT SURYA VIHAR, EXHIBITIO N ROAD, PATNA, WE OBSERVE THAT ASSESSING OFFICER MADE THE SAID ADDITION ON TH E BASIS OF DVO REPORT. HOWEVER, LD. CIT(A) HAS DELETED THE SAID ADDITION C ONSIDERING THAT IN THE ABSENCE OF ANY OTHER EVIDENCE, THE ASSESSING OFFICE R CANNOT MAKE THE ADDITION ON THE BASIS OF DVO REPORT IN THE BLOCK AS SESSMENT. IT(SS)A NO6/PATNA/2009 & CO NO.8/PATNA/2009 SMT. SHAKUNTALA AGARWAL, PATNA 3 7. ON CONSIDERATION OF THE FACTS AND KEEPING IN VIE W THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. SUN IL KUMAR GUPTA 193 TAXATION 47, WE UPHOLD THE ORDER OF LD. CIT(A) AS I N THE ABOVE CASE (SUPRA) THEIR LORDSHIPS HAVE HELD THAT ASSESSING OFFICER IS NOT JUSTIFIED TO MAKE THE ADDITION SOLELY ON THE BASIS OF VALUATION REPORT IN THE BLOCK ASSESSMENT AS THE SAID VALUATION REPORT WAS NEITHER AN ESTIMATE OF TH E INVESTMENT BY THE ASSESSEE NOR THE FAIR MARKET VALUE OF THE PROPERTY. FURTHER, HONBLE MADHYA PRADESH HIGH COURT HAS ALSO HELD IN THE CASE OF CIT VS. KHUSHLALCHAND KUMAR 263 ITR 77 THAT IN VIEW OF THE LANGUAGE OF SUB-SECT ION (1) OF SECTION 158BB OF THE ACT, THE ADDITION WITH REGARD TO THE INVESTM ENT IN CONSTRUCTION CANNOT BE MADE IN A BLOCK ASSESSMENT ON ACCOUNT OF UNEXPLA INED INVESTMENT ON THE BASIS OF DVO REPORT. IN VIEW OF ABOVE, WE UPHOLD T HE ORDER OF LD. CIT(A) IN DELETING THE ADDITION OF RS.2,53,000/- MADE BY THE ASSESSING OFFICER ON UNDISCLOSED INVESTMENT IN THE PROPERTIES ON THE BAS IS OF DVOS REPORT. 8. IN VIEW OF ABOVE, GROUND OF APPEAL TAKEN BY THE DEPARTMENT IS REJECTED. 9. NOW WE TAKEN UP THE GROUND OF CROSS OBJECTION AS TO WHETHER CHARGING OF INTEREST U/S 158BFA(1) OF THE ACT IS JUSTIFIED O R NOT. 10. LD. A.R. SUBMITTED THAT THE ASSESSEE FILED THE RETURN OF THE BLOCK PERIOD WITHIN 45 DAYS AND HENCE LEVY OF INTEREST IS NOT JUSTIFIED. HOWEVER, LD. CIT(A) HAS NOT CONSIDERED THE ABOVE GROUND TAKE N BY THE ASSESSEE BEFORE HIM AND HAS MERELY STATED THAT CHARGING OF I NTEREST IS CONSEQUENTIAL IN NATURE. 11. AT THE TIME OF HEARING, LD. A.R. REFERRED THE D ECISION OF ITAT PATNA BENCH IN THE CASE OF ACIT VS. SHRI O.P. DALMIA IN I T(SS)A NO.69/PATNA/2004 DATED 4.1.2008 AND SUBMITTED THAT THE TRIBUNAL HAS HELD THAT IF THE ASSESSEE HAS FILED THE RETURN WITHIN 45 DAYS AND THERE WAS N O DELAY ON THE PART OF THE ASSESSEE, LEVY OF INTEREST U/S 158BFA(1) IS NOT JUS TIFIED AS THE CHARGING OF INTEREST IS PENAL IN NATURE AND THE LEVY OF SAME IS NOT AUTOMATIC UNLESS THERE IT(SS)A NO6/PATNA/2009 & CO NO.8/PATNA/2009 SMT. SHAKUNTALA AGARWAL, PATNA 4 IS ANY DEFAULT ON THE PART OF THE ASSESSEE OR THERE IS LACK OF BONA FIDE. DURING THE COURSE OF HEARING, LD. D.R. COULD NOT CO NTROVERT ABOVE CONTENTION OF THE LD. A.R. 12. CONSIDERING THE FACTS OF THE CASE AND IN THE AB SENCE OF ANY REASONS BEING GIVEN BY THE AUTHORITIES BELOW FOR LEVY OF IN TEREST U/S 158 BFA(1), WE ALLOW THE GROUND OF CROSS OBJECTION TAKEN BY THE AS SESSEE. 13. IN THE RESULT, THE APPEAL OF THE DEPARTMENT IS DISMISSED AND WHEREAS CROSS OBJECTION OF THE ASSESSEE IS ALLOWED . PRONOUNCED IN THE OPEN COURT ON 24 TH FEBRUARY, 2012 SD/ - SD/ - ( SHAMIM YAH YA ) ( B.R. MITTAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS PATNA, DATED 24 TH FEBRUARY, 2012 COPY TO 1 ACIT, CENTRAL CIRCLE - 1, PATNA 2 SMT. SHAKUNTALA AGGARWAL, W/O SHRI AMAR AGARWAL, 50 2, SURYA VIHAR APARTMENT, EHIBITION ROAD, PATNA 3 CIT, PATNA 4 THE CIT (A ) - II, PATNA 5 THE DR, I TAT, PATNA 6 GUARD FILE. BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PATNA