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TMI Blog2015 (7) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... has correctly assumed jurisdiction under Section 147 of the Act by invoking the provisions of section 150(1) of the Act. - Decided against assessee. As regards the additions made by the Assessing Officer towards unexplained investment of ₹ 1,15,710 for Assessment Year 2003-04 and of ₹ 5,13,517 for Assessment Year 2004-05, it is seen that the Assessing Officer has considered all the evidences produced by the assessee and allowed relief wherever the evidences produced and explanations put forth were found acceptable and has made additions only in respect of those amounts for which no evidence was produced. In the absence of any evidence to controvert the findings of the authorities below, the aforesaid additions made on account of unaccounted investments in the construction of the aforesaid residential building needs to be upheld. In view of the above factual matrix of the case, we concur with the learned CIT (Appeals) in upholding the additions made by the Assessing Officer in this regard. - Decided against assessee. Interest under Sections 234A, 234B and 234C is consequential and mandatory and the Assessing Officer has no discretion in the matter. This propositio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the contention of the assessee that the property in question was constructed over a period of a few years. After evaluating the evidences placed before him, the learned CIT (Appeals) held that the total investment in the property needs to be spread equally over three years namely Assessment Years 2003-04 to 2005-06. In this view of the matter, the learned CIT (Appeals) confirmed the addition of ₹ 12,15,417 in Assessment Year 2005-06 and observed that the Assessing Officer is at liberty to take necessary steps to tax the remaining unexplained investment in the other two years. 2.3 In compliance with the above observations of the learned CIT (Appeals), the Assessing Officer re-opened the assessment proceedings for Assessment Years 2003-04 and 2004-05 under Section 147 of the Act and issued notices under Section 148 of the Act to the assessee. After considering the submissions of the assessee for the source of income/investment in the said residential building for the concerned assessment years and after giving credit for certain sources, the Assessing Officer assessed the balance amounts of ₹ 1,15,710 for Assessment Year 2003-04 and ₹ 5,13,517 for Assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by the Assessing Officer without assuming jurisdiction under Section 147 of the Act. 5. That the impugned proceedings under Section 147is barred by limitation and as such the impugned assessment order is liable to be annulled. 6. The learned CIT (Appeals) erred in upholding the action of the Assessing Officer in treating the agricultural income of ₹ 1,38,500 as non-agricultural income disregarding the facts of the case and as such the impugned order is liable to set aside. 7. The learned CIT (Appeals) erred in upholding the action of the Assessing Officer in assessing the sum of ₹ 1,15,210 as unexplained investment by the appellant disregarding the facts and circumstances of the case and as such the impugned order is liable to set aside. 8. That the impugned levy of interest of ₹ 68,544 under Section 234A is liable to set aside in so far as the appellant is not liable there for and the same is opposed to the provisions contained therein. 9. That the impugned levy of interest of ₹ 71,232 under Section 234B is liable to set aside in so far as the appellant is not liable there for and the same is opposed to the provisions contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Rajinder Nath (supra) held at para 7.4 of its order that :- .when the Hon'ble High Court has chosen to use the words that It is open for the revenue to take action, then revenue has the option to take or not to take action. It is, therefore, clear that by using the words it is open for the revenue the High Court has not given any direction to the revenue to take action. The Hon'ble Apex Court has stated that A Direction by a statutory authority is in the nature of an order requiring positive compliance. What is left to the option and direction of the ITO whether or not to take action, it cannot in our opinion, be described as a direction. The co-ordinate bench had also referred to the decision of the Hon'ble High Court of Karnataka in the case of Consolidated Coffee Ltd. (supra) on the meaning of finding or direction to hold that there is no finding in that case. 5.3.2 In the light of the above principles laid down as to the scope and meaning of finding and direction as laid out in Section 150(1) of the Act, we proceed to examine the applicability of the above cited decisions to the facts of the case on hand. In the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned CIT (Appeals) has also rendered a finding that the addition to be made on account of unexplained investment in the said property may be divided among the three assessment years and had also held that the relevant portion of the unexplained investment i.e. ₹ 12,15,417 is taxable in Assessment Year 2005-06. In view of the above, we agree with the learned CIT (Appeals) that the facts of the assessee's case are distinguishable from the decisions cited by the assessee; that the learned CIT (Appeals) had rendered a clear finding in the matter and that, therefore, in the facts and circumstances of the case on hand, the Assessing Officer has correctly assumed jurisdiction under Section 147 of the Act by invoking the provisions of section 150(1) of the Act. Consequently the grounds raised at S.Nos.1 to 5 for both assessment years 2003-04 and 2004-05 are dismissed. Ground Nos.6 7 6. Substantitve Additions On Merits . 6.1 As far as the unexplained investment in construction of the property is concerned, the learned CIT (Appeals) had rendered a categorical finding that the investment is spread over the three years namely, Assessment Years 2003-04 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no evidence was produced. In the absence of any evidence to controvert the findings of the authorities below, the aforesaid additions made on account of unaccounted investments in the construction of the aforesaid residential building needs to be upheld. In view of the above factual matrix of the case, we concur with the learned CIT (Appeals) in upholding the additions made by the Assessing Officer in this regard. Consequently, these Grounds raised by the assessee are dismissed. 9. In the other Grounds at S.Nos.8 to 10 for Assessment Year 2003-04 and at S.Nos.7 to 9 for Assessment Year 2004-05, the assessee denies itself liable to be charged interest under Sections 234A, 234B and 234C of the Act. The charging of interest is consequential and mandatory and the Assessing Officer has no discretion in the matter. This proposition has been upheld by the Hon'ble Apex Court in the case of Anjum H Ghaswala (252 ITR 1) and we, therefore, uphold the action of the Assessing Officer in charging the said interest. The Assessing Officer is, however, directed to recompute the interest chargeable u/s. 234A, 234B and 234C of the Act, if any, while giving effect to this order. 10. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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