ITO Ward 3, Ichalkaranji, V. Gaiban Mirsaaheb Ismail,

MA 34/PUN/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5327 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-11-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 17-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARESHWAR SHARMA
• Assessee Lawyers: S P JOSHI
• Keywords: Unexplained investment; Block assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO ACCOUNTANT MEMBER M.A. NO. 34/PN/2010 ARISING OUT OF I.T.(SS) A. NO.140/PN/1996 BLOCK PERIOD: S.Y. 2041 TO 30-11-1995 I.T.O. WARD 3 ICHALKARANJI APPLICANT VS. GAIBAN MIRASAHEB ISMAIL C/O. SATYANARAYAN M OZA, ADVOCATE GAYATRI BHUWAN MARG, MAIN ROAD ICHALKARANJI 416 115 PAN 754-G RESPONDENT APPLICANT BY: SHRI HARESHWAR SHARMA RESPONDENT BY: SHRI S.P. JOSHI ORDER PER SHALENDRA KUMAR YADAV, JM THIS MISCELLANEOUS APPLICATION IS FILED BY THE REVENUE ARISING OUT OF ORDER OF THE TRIBUNAL DATED 30- 9-2009 IN IT(SS) A. NO. 140/PN/1996 FOR BLOCK PERIO D S.Y. 2041 TO 30-11-1995. 2. THE REVENUE HAS SUBMITTED THAT THE ASSESSMENT ORDER U/S 158BC(C) OF THE ACT HAS BEEN PASSED BY TH E A.O ON 29-11-1996 ON TOTAL UNDISCLOSED INCOME AT RS . 30,71,190/-. ONE OF THE MAIN ADDITIONS WAS ON PAGE 2 OF 5 M.A. NO. 34/PN/2010 GAIBAN MIRASAHEB ISMAIL B.P. S.Y. 2041 TO 30-11-1995 ACCOUNT OF UNEXPLAINED INVESTMENT IN CONSTRUCTION O F RESIDENTIAL BUILDING. THE ASSESSEE HAD DISCLOSED C OST OF CONSTRUCTION OF RS. 12,83,443/-. THE A.O OBSERV ED THAT DURING THE COURSE OF SEARCH PROCEEDINGS THE ASSESSEE HAD ADMITTED UNEXPLAINED INVESTMENT OF RS. 3,00,000/-. HOWEVER, ON PERUSAL OF THE STATEMENT OF INCOME FOR THE BLOCK PERIOD IT WAS NOTICED THAT THE ASSESSEE HAD NOT OFFERED THIS INVESTMENT AS HIS INC OME ON THE GROUND THAT THIS INVESTMENT WAS COVERED BY T HE UNDISCLOSED INCOME OF RS. 9,62,197/- ON THE BASIS O F NOTINGS IN THE DIARY. SINCE THE COST OF CONSTRUCTI ON SHOWN BY THE ASSESSEE APPEARED TO BE ON LOWER SIDE, A REFERENCE WAS MADE TO THE VALUATION OFFICER, SOLAPU R. THE VALUATION OFFICER, SOLAPUR DETERMINED THE COST OF CONSTRUCTION AT RS. 18,82,400/- WHICH INCLUDED COST OF BUILT-IN CUPBOARDS ETC. AT RS. 5,98,957/- (RS.18,82,400/- - 12,83,443/-). THE ASSESSEE OBJEC TED FOR THE SAID DIFFERENCE ON THE GROUNDS THAT THE UNDISCLOSED INCOME OF RS. 9,62,197/- OFFERED ON THE BASIS OF NOTINGS IN THE DIARY COVERED THE ADMITTED UNEXPLAINED INVESTMENT OF RS. 3,00,000/- IN THE CONSTRUCTION OF BUNGALOW. 3. THE A.O TREATED THE DIFFERENCE OF RS. 5,98,957/ AS ASSESSEES UNEXPLAINED INVESTMENT IN THE CONSTRUCTI ON PAGE 3 OF 5 M.A. NO. 34/PN/2010 GAIBAN MIRASAHEB ISMAIL B.P. S.Y. 2041 TO 30-11-1995 OF PROPERTY U/S 69B OF THE ACT FOR A.Y. 1995-96. MATTER TRAVELED UPTO THE TRIBUNAL ON SEVERAL GROUND S AGAINST THE BLOCK ASSESSMENT WHEREIN THE TRIBUNAL VIDE ITS ORDER DATED 30-6-2009 IN IT(SS) A NO. 140/PN/1996 DELETED THE ADDITION ON THE GROUNDS THA T IN ABSENCE OF ANY DIRECT INCRIMINATING MATERIAL THE ESTIMATION MADE BY THE DVO SHOULD NOT BE MADE THE BASIS TO DETERMINE THE UNDISCLOSED INCOME IN THE HANDS OF THE ASSESSEE AND ALSO RELIED ON THE DECISI ON OF THE HONBLE HIGH COURT IN THE CASE OF CIT VS. VI NOD DANCHAND GHODAWAT (2001) 247 ITR 448 (BOM). 4. IN THIS BACKGROUND THE REVENUE SUBMITTED THAT THE CONSTRUCTION OF BUNGLOW WAS CARRIED OUT FROM 3- 10-1991 TO 30-11-1995, WHEREAS THE SURRENDERED INCOME OF RS. 9,62,197/- HAS COME OUT OF THE INCRIMINATING ENTRIES DETECTED BY THE DEPARTMENT AT THE TIME OF SEARCH IN RAJAT DUPLICATE BOOK DELUX NO . 2 WHICH PERTAINED TO THE PERIOD F.Y. 1995-96. THUS, THE PROBABILITY OF UTILIZATION OF INCOME EARNED FOR THE PURPOSE OF CONSTRUCTION OF RESIDENTIAL BUNGLOW WHOS E MAJOR CONSTRUCTION WORK AND DECORATION WORK WAS ALMOST OVER IN F.Y. 1991-092, 1992-93, 1993-94 AND 1994-95 AND THEREFORE, THE ASSESSEES CONTENTION TO THE EFFECT THAT THE UNDISCLOSED INCOME OF RS. PAGE 4 OF 5 M.A. NO. 34/PN/2010 GAIBAN MIRASAHEB ISMAIL B.P. S.Y. 2041 TO 30-11-1995 3,00,000/- TOWARDS UNEXPLAINED INVESTMENT IN BUILDING CONSTRUCTION IS COVERED IN THE UNDISCLOSED INCOME OF RS. 9,62,197/- MADE ON THE BASIS OF THE AFORESAID DIARY, IS FACTUALLY INCORRECT. THE REVEN UE HAS AGITATED THE FINDING ON QUANTUM APPEAL IN THE PENALTY PROCEEDINGS BEFORE THE TRIBUNAL ITSELF. TH IS AMOUNTS TO REVIEW OF THE ORDER OF THE TRIBUNAL WHIC H IS NOT PERMISSIBLE UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. IN THIS BACKGROUND, WE CANNOT ENTERTAIN THE PRAYER MADE ON BEHALF OF THE REVENUE. ACCORDINGLY, THE MISCELLANEOUS APPLICATION IS DISMISSED. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED ON THE 19 TH NOVEMBER 2010. SD/- SD/- (D. KARUNAKARA RAO ) ACCOUNTANT MEMBER ( SHAILENDRA KUMAR YADAV) JUDICIAL MEMBER PUNE DATED THE 19 TH NOVEMBER 2010 ANKAM COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)- KOLHAPUR 4. THE CIT- KOLHAPUR 5. THE D.R, PUNE BENCH, PUNE BY ORDER PAGE 5 OF 5 M.A. NO. 34/PN/2010 GAIBAN MIRASAHEB ISMAIL B.P. S.Y. 2041 TO 30-11-1995 ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE