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TMI Blog2013 (5) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the assessee. However, the said document No.90 was examined by the ITAT and found to be ‘dumb document’. The addition was, thus, rightly deleted. No question of law arises. Deleting the addition in the absence of any evidence - Held that:- A finding of fact is recorded to the effect that the assessee had already considered the income earned on this account in the Commission Income Statement. The ITAT has recorded the finding of fact that assessee had earned only commission income on the transaction and, therefore, there could not have been any such addition. Estimating the commission - Held that:- we find that addition was made by the Assessing Officer estimating 4% commission on every deal through the assessee. The ITAT found this to be on very high side and reduced it to 2%. Cogent reasons are given in para 15.4 of the orders passed by the ITAT. Deleting the addition on account of undisclosed income based on documentary evidence - Held that:- A finding of fact is arrived at that there is no undisclosed income. The ITAT has discussed the matter in detail and in right perspective. Deleting the addition on account of acquisition of plot in the name of assessee’s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer. Since it was a case of block assessment, the assessment order was passed after getting approval of Commissioner of Income Tax. These additions were challenged by the respondents-assessees by filing appeals, as mentioned above. By the impugned orders, some additions are deleted. In ITA 663/2010, following questions of law are raised: "1. Whether on facts and circumstances of the case the Hon ble ITAT is justified in law in deleting the addition of Rs.27,673/- for AY 1988-89 and Rs.35,809/- for AY 1991-92 on account of understatement of cost of renovation of residence holding that it was made on pure estimation basis when the AO had made this addition on the basis of valuation report of Assistant Valuation Officer, and hence the order of Hon ble ITAT was erroneous and perverse. 2. Whether on facts and circumstances of the case the Hon ble ITAT is justified in law in deleting the addition of Rs.20,000/- for AY 1989-90 on account of addition to capital account and Rs.1,05,800/- for ITA Nos.663 657 of 2010 - 3 - AY 1989-90 and 1990-91 on account of unexplained unsecured loans which have already been declared in regular return holding that the scope of Chapte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and perverse. 7. Whether on facts and circumstances of the case the Hon ble ITAT is justified in law in deleting the addition of Rs.9,66,000/- for AY 1992-93 on account of undisclosed income based on documentary evidence holding that there is nothing on record to show that the assessee had earned undisclosed income and ignoring the document found during the course of search which could not be substantiated by the assessee and hence the order of Hon ble ITAT was erroneous and perverse. 8. Whether on facts and circumstances of the case the Hon ble ITAT is justified in law in deleting the addition of Rs.26,000/- for AY 1992-93 on account of acquisition of plot in the name of assessee s wife holding that no evidence was found during the course of search and ignoring the fact that the assessee s wife was not having any source of income and hence the order of Hon ble ITAT was erroneous and perverse. 9. Whether on facts and circumstances of the case the Hon ble ITAT is justified in law in deleting the addition of Rs.2,28,000/- for AY 1996-97 by holding that AO has to calculate commission on this amount and ignoring the working given by AO in assessment order that this amount represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . She submitted that the assessee was present at the time of the inspection of the property as is evident from the valuation report. As such, the assessee was quite aware of the valuation being undertaken. Moreover, the assessee has declared the value at Rs.55,000/- as per the report of the AVO. Under the circumstances, it was pleaded that the addition made may be sustained. 7. We have considered the rival submissions and perused the documents on record. During the course of search, no material or document has been found to substantiate that the assessee had spent the impugned amount on construction. Statement of the assessee was recorded on 17.10.1996, which is placed at pages 59 60 of the paper book-1 filed by the assessee. It was stated therein that a loan of Rs.35,000/- was raised by the assessee from the housefed and balance investment was made by the father out of his fruit shop income. Thus, Rs.55,000/- approx were spent on renovation for which the sources have been explained. Relevant discussion finds place in para 11 of the assessment order. There has been an admittance by the assessee to have constructed a new portion for a sum of Rs.55,000/- for which the assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, the said document No.90 was examined by the ITAT and found to be dumb document . The addition was, thus, rightly deleted. No question of law arises. 9. Likewise, proposed question of law No.5 is factual, based on evaluation of documentary evidence. A finding of fact is recorded to the effect that the assessee had already considered the income earned on this account in the Commission Income Statement. The ITAT has recorded the finding of fact that assessee had earned only commission income on the transaction and, therefore, there could not have been any such addition. 10. Insofar as proposed question No.6 is concerned, we find that addition was made by the Assessing Officer estimating 4% commission on every deal through the assessee. The ITAT found this to be on very high side and reduced it to 2%. Cogent reasons are given in para 15.4 of the orders passed by the ITAT. 11. Deletion mentioned in proposed question No.7 is again factual. A finding of fact is arrived at that there is no undisclosed income. The ITAT has discussed the matter in detail and in right perspective, as is clear from the following discussion on this issue: 16. Through ground No.10, the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. The assessing officer himself writes in the body of the order that this document relates to one Sh. Shiraz. The Assessing Officer has treated 966/- written on the document as Rs.9,66,000/- which has been accepted by the assessee. Further, the assessee has explained in the entire document and admitted to have earned commission in respect of this deal, which has been declared by the assessee. There is nothing on record to show that the assessee had earned undisclosed income as held by the assessing officer. In view of these facts, since no documentary evidence was brought on record by the Revenue or found during search that the assessee was having any property on this account, therefore, we are of the view that the assessee might have earned commission, consequently, we are of the view that the commission at the rate of 2% i.e. 19320/- may be added to the income of the assessee in place of Rs.9,66,000/- added by the Revenue, consequently, this ground of the assessee is partly allowed. 12. Insofar as addition of Rs.26,000/-, subject matter of proposed question No.8 is concerned, we find that plot was purchased by the assessee s wife. This income was added to the assessee s acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ITAT was erroneous and perverse. 4. Whether on facts and circumstances of the case the Hon ble ITAT is justified in law in deleting the addition of Rs.1,22,341/- for AY 1996-97 on account of understatement of cost of renovation of residence holding that it was made on pure estimation basis when the AO had made this addition on the basis of valuation report of Assistant Valuation Officer, and hence the order of Hon ble ITAT was erroneous and perverse. 5. Whether on facts and circumstances of the case the Hon ble ITAT is justified in law in deleting the addition of Rs.2,76,762/- on account of jewellery and Rs.1,67,200/- on account of various valuable items found during the course of search for AY 1996-97 without giving any reasons and ignoring the reasons given by AO that the source of such investments has not been proved and hence the order of Hon ble ITAT was erroneous and perverse. We find that none of these questions are the questions of law. Insofar as first question is concerned, the only reason for making addition was that assessee did not co-operate in framing of assessment and, thus, the Assessing Officer had no chance to confront the assessee with the seized docume ..... X X X X Extracts X X X X X X X X Extracts X X X X
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