2013 (7) TMI 771 - HC - Income Tax

Whether theTribunal is justified in confirming the addition of Rs. 5 lakhs to the income from business/profession such addition illegal and perverse or not Held that - There was not any substantial question of law as the same findings had been only a question of fact. Whether the Tribunal is justified in confirming the addition as net long-term capital gains without allowing any deduction for cost and indexed cost of acquisition, in respect of the amount paid or obtaining the lease of the residential flat in 1961 and subsequent amounts spent on repairs assesse contended that the Tribunal has proceeded in a very technical manner and not keeping in mind the ground realities - in Mumbai for a long time the practice of paying pugree has prevailed. In this regard, support is sought to be drawn from the order passed in I. T. A. No. 167 of 2006 - a copy of which is produced - the question relating to payment as pugree and consequently the need for calculating the cost of acquisition - reducing the incidence of capital gains is concerned - it is essentially a finding of fact appeal decided against the assessee.

Issues Involved:
1. Justification of the Appellate Tribunal in confirming the addition of Rs. 5 lakhs to the income from business/profession.
2. Justification of the Appellate Tribunal in confirming the addition of Rs. 16 lakhs as net long-term capital gains without allowing any deduction for cost and indexed cost of acquisition.
3. Whether the Appellate Tribunal erred in not following the decision of the co-ordinate Bench in a similar case.
4. Legality, validity, and sustainability of the Appellate Tribunal's order regarding the additions made in the assessment.

Issue-wise Detailed Analysis:

1. Justification of the Appellate Tribunal in confirming the addition of Rs. 5 lakhs to the income from business/profession:
The court examined the circumstances under which the sum of Rs. 5 lakhs was added to the appellant's income. During a search operation, deposits in three bank accounts were discovered, including Rs. 5 lakhs in joint names with the appellant's wife and Rs. 3 lakhs in the name of his daughter and her husband. The appellant initially admitted that these amounts were from consultancy work received post-retirement and were not subjected to income tax. However, he later contended that the amounts in certain accounts were not his income. The Assessing Officer did not accept this revised version and treated the entire deposit as professional income. The court found no substantial question of law in the appellant's argument, noting that the appellant had given a voluntary statement during the search and had not retracted it. Thus, the Tribunal's decision to confirm the addition was upheld.

2. Justification of the Appellate Tribunal in confirming the addition of Rs. 16 lakhs as net long-term capital gains without allowing any deduction for cost and indexed cost of acquisition:
The appellant received Rs. 20 lakhs from surrendering tenancy rights and claimed the entire capital gains as exempt under section 54EC, having invested in Nabard Capital Gains Bonds. He reduced the sale consideration by an indexed cost of Rs. 16,80,000, claiming a market value of Rs. 3,50,000 as of April 1, 1981. The Assessing Officer noted that the cost of tenancy rights should be taken as nil per section 55 of the Act, rejecting the appellant's claim of paying Rs. 20,000 as pugree in 1961 due to lack of evidence. The court found that the appellant's statement did not mention the pugree payment and that the appellant failed to produce supporting evidence. The Tribunal's decision to confirm the addition of Rs. 16 lakhs as capital gains was upheld as it was based on factual findings and consistent with the law.

3. Whether the Appellate Tribunal erred in not following the decision of the co-ordinate Bench in a similar case:
The appellant argued that the Tribunal should have followed a previous decision in a similar case where the practice of paying pugree was acknowledged. However, the court noted that the facts were distinguishable. In the previous case, there was consistent evidence from the beginning, including a certificate from ISKCON. In the present case, the appellant did not provide such consistent evidence, and his statements were contradictory. The Tribunal's decision not to follow the previous case was deemed appropriate given the differences in factual circumstances.

4. Legality, validity, and sustainability of the Appellate Tribunal's order regarding the additions made in the assessment:
The court reviewed the Tribunal's order and found it to be legally valid and sustainable. The Tribunal had based its findings on the appellant's statements and the lack of supporting evidence for the claims made. The court emphasized that the findings were factual and not perverse, thus not warranting interference under section 260A. The appellant's arguments were not sufficient to establish a substantial question of law.

Conclusion:
The court dismissed the appeal, affirming the Tribunal's decisions on all issues. The additions of Rs. 5 lakhs as professional income and Rs. 16 lakhs as capital gains were upheld, and the Tribunal's approach in not following a previous decision was justified based on the differences in factual circumstances.

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