9911796707
TMI Blog2013 (6) TMI 521X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to (approximately) Rs.24,16,000/-. Thus Revenue Department had enough information in its possession, therefore fully empowered to reopen the assessment or otherwise assess this assessee specially within four years as it has happened in the present case - Against assessee. Addition u/s.69 on the basis if said statement - Held that:- This is not a case where merely on the basis of a statement the impugned addition was made. This is a case where the statement was recorded on the basis of an incriminating material recovered during the course of survey operation. On merits the AO has examined the sources of investment to the extent of Rs.11,28,000/- out of the total investment in the said property of Rs.22,16,196/-, hence only the difference amount of Rs.10,88,196/- was taxed in the hands of the assessee. The assessee has not made any attempt to explain the balance unexplained investment. Thus there was no fallacy in the findings on facts as also on law by the Revenue Authorities, hence the said addition is hereby confirmed. Against assessee. - I.T.A. No.832/Ahd/2010 - - - Dated:- 30-4-2013 - Shri Mukul Kr. Shrawat And Shri T. R. Meena,JJ. For the Appellant : Shri U. S. Bh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Const.Cost = 3020 x Rs.450 = Rs.13,59,000/- Extra Work = Rs. 1,85,996/- TOTAL Rs.24,16,196/- 2.1. On the basis of the above admission, a notice u/s.148 was issued requiring the assessee to explain the source of investment in House No.7, Maruti Pravesh-II, Anand. The assessee has filed a reply to the AO and stated that the said answer was not the correct answer, therefore on the basis of the said answer, no addition should be made. He has submitted that the statement which was recorded on 20/01/2006 was not a correct statement because at that time he was not in a normal state of mind due to ill-health. The assessee has also furnished an Affidavit. The assessee has also filed an Affidavit of his wife. There was a reference in his reply of cross-examination done by the legal representative of M/s.Vastu Construction. In the said cross-examination, the cost of construction and the cost of land was stated at Rs.10 lacs and Rs.1,40,000/-respectively. There was also a reference of a Valuation Report of a Registered Valuer. The assessee has reiterated that on account of bad health, he was under pressure and incorrectly answered. As per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho are staying at Neirobi and Lusaka; from the agriculture income; in laws and other relatives from abroad. iv) Q.No.17 : Against the cost of house, after reducing Rs.2 lacs from the total cost of Rs.24,16,196/-, you stated to have remitted Rs.22,16,196/- to the builder. Whereas in answer to Q.No.10 the total cost of house is indicated Rs.9,30,000/- and in answer to Q.No.14, the agreement for construction has been made as Rs.7,75,000/-. Please state why you have mentioned less amount in the agreement for the construction? Ans: The agreement shown by the builder was signed by us without reading and the document of the land prepared by the builder was received by us as there is no necessity to affix our signature." 2.3. The AO has also reproduced the relevant question of cross- examination as follows:- "Q.No.7 : Please explain the discrepancy arrised in reference to Q.No.16 and 17 of your statement on 20/01/2006. (Asked by representative of the "Vastu Construciton") Ans: I have once again gone through the contents of the page no.45 of the Annex.A/1 and state that these measurement and price do not pertain to me. These belongs to my relative and the measurement and price i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant recorded on 20th January, 2006 by the Department. During the course of recording of statement, the appellant was confronted with Page Nos.35 to 45 of Annexure-A/1 impounded from the briefcase of Shri Bankimbhai D.Patel of M/s.Vastu Construction. By the time the reasons were recorded on 28th March, 2008, the statement dated 20th January, 2006 of the appellant was retracted by way of an affidavit and also during the cross examination of the appellant, in the course of assessment proceedings of M/s.Vastu Construction, which were culminated on 29th December, 2006. Copies of statement of Examination in chief, cross examination and affidavits are placed in enclosed paper book at page No.5 to 18. A report of an Approved Valuer, showing the valuation of Block No.7 of Maruti Pravesh-II, purchased by the appellant, was also placed on the record. (kindly see page No.19 to 25 of the paper book). Moreover, Shri Bankimbhai D.Patel from whose briefcase the alleged documents at Page Nos.35 to 45 of Annexure-A/1 were impounded and who was the admittedly author of those documents at the first stance strongly denied that the contents of those documents pertain to the appellant as evident from Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hennai] and CIT vs. Dr.N.Thipaa Setty (2010) 322 ITR 525 (Kar). He has also mentioned that the bona fide of the assessee can be established by the fact that in the subsequent assessment year, i.e. AY 2004-05 the assessment was made u/s.143(3) r.w.s. 147 of IT Act vide an order dated 23/12/2008 but no addition was made and the returned income was accepted. Placing reliance on the Affidavit and the retraction, he has pleaded that the reopening was bad in law. The assessee has placed reliance on CIT vs. Bhuvanendran Ors. (2008) 303 ITR 235 ( Mad.). 5. From the side of the Revenue, ld.Sr.DR Mr.Rahul Kumar appeared and supported the reopening of the assessment. He has argued that since the reopening was made within four years, therefore the AO had power to tax an income which was detected in consequence upon the survey action conducted on Vastu Construction. According to ld.DR, the case-laws cited from the side of the assessee have no application on the facts of the case. 6. We have heard the submissions of both the sides. We have also perused the reasons recorded and the material evidence which was in the possession of the Revenue Department. The AO has recorded the reasons as fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place to mention here that the AO had duly given the benefit of the amount of Rs.11,28,000/-, the source of which was explained by the assessee, the relevant calculation has already been reproduced above. Because of the incriminating material and the statement of the assessee, in our humble opinion, the AO has rightly invoked the provisions of section 147 of IT Act in the present set of facts and circumstances of the case. Thus, the said statement was duly corroborated by an evidence/incriminating material. 6.2. Section 147 prescribes that if the AO has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may assess or reassess such income which has escaped assessment and which came to the notice subsequently in the course of the proceedings. At this juncture, it is worth to mention that section 147 also contains a Proviso. That Proviso has restricted the reopening powers of the AO if the AO has taken the recourse of reopening after the expiry of four years from the end of the relevant assessment year. This Proviso says that no action shall be taken after the expiry of the four years unless any income chargeable to tax as escaped ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 144A of IT Act dated 29/12/2006 the contents of the said page No.45, which was recovered at the time of survey, was duly considered. The contents of page No.45 have already been reproduced supra by us. In respect of the said page, the AO has recorded certain findings while framing the assessment of M/s.Vastu Construction and for ready reference reproduced below:- "5.6. During the course of assessment proceedings for A.Y.2003-04 in response to a summons u/s.131, on 19/01/2006 a statement of Shri Bankimbhai D.Patel was recorded wherein answere to Q.8 he had admitted that the writing in page No.45 of Annexure A/1 was his own handwriting and he had described the narration that one of the relatives of Shri Rasikbhai of Block No.7 asked for an estimation of the same measurement, plan and fixtures at a posh area of Anand. Further, in Q.No.9 of the same statement it was specifically asked to reply when at top of the paper the Block No.7 is indicated and the land area, building construction both with rate and amount and the extra work is specified at Rs.1,85,996/- (not even round figure) how it can be sated to be an estimate. In answer he has contended that the specification was as good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, i.e. Commissioner of Income-tax, who has administrative authority to redress such complaint. As far as the Tribunal is concerned, the same is an Appellate Court, hence do not interfere in administrative matters. In any case, it is quite a strange that no immediate retraction was made either in the case of M/s.Vastu Construction or in the case of the assessee. Therefore, the entire allegation is merely a bald assertion and an unsupported complaint, therefore deserves to be ignored. Further, we have also noted that on merits the AO has examined the sources of investment to the extent of Rs.11,28,000/- out of the total investment in the said property of Rs.22,16,196/-, hence only the difference amount of Rs.10,88,196/- was taxed in the hands of the assessee. The assessee has not made any attempt to explain the balance unexplained investment. Even before us, no serious attempt was made to explain the impugned balance amount. In the result, we hereby hold that there was no fallacy in the findings on facts as also on law by the Revenue Authorities, hence the said addition is hereby confirmed. This ground is also dismissed. 8. In the result, Assessee's appeal is dismissed. - - Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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