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TMI Blog2004 (5) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... r>Judge(s) : Y. R. MEENA., SHASHI KANT SHARMA. JUDGMENT The judgment of the court was delivered by Y.R. Meena J. - These seven connected appeals involve a common issue, therefore, we heard and disposed of all these appeals by this common order. These appeals are admitted on the questions of law, which read as under: For the assessment year 1988-89 in I.T.A. No. 113 of 2002: "1. Whether, on the facts and circumstances of the case, there was any material on record for the Commissioner of Income-tax (Appeals) to direct to tax the lottery amount in the hands of all the three brothers? 2. Whether, on the facts and circumstances of the case, the Income-tax Appellate Tribunal was justified and right in law in upholding the order of the Commissioner of Income-tax (Appeals) deleting the additions made under section 69 in the hands of one assessee substantively by the Assessing Officer on the basis of enquiry conducted?" For the assessment year 1988-89 in W.T.A. No. 1 of 2002: "1. Whether, on the facts and circumstances of the case, the Income-tax Appellate Tribunal was justified and right in law in upholding the order of the Commissioner of Income-tax (Appeals) deleting the additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the Income-tax Appellate Tribunal was justified and right in law in upholding the order of the Commissioner of Income-tax (Appeals) deleting the additions made under section 69 in the hands of one assessee substantively by the Assessing Officer on the basis of enquiry conducted? 3. Whether, on the facts and circumstances of the case, the Income-tax Appellate Tribunal and the Commissioner of Income-tax (Appeals) were right in law in taking a different view than the Assessing Officer when the assessee has failed to prove about the authenticity of the purchase of lottery and on the basis of the evidence the Assessing Officer has made additions under section 69 of the Act? 4. Whether, on the facts and circumstances of the case, the Commissioner of Income-tax (Appeals) was justified in upholding that the Assessing Officer has not conducted the enquiry as per direction whereas in fact the Assessing Officer has made all efforts to carry out the directions?" For the assessment year 1989-90 in I.T.A. No. 127 of 2003: "1. Whether there was any material on record for the Commissioner of Income-tax (Appeals) to hold that the lottery amount in the hands of all the three brothers is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal. In para. 2.4 of the Commissioner of Income-tax (Appeals) order in the case of Suresh Kumar, the Commissioner of Income-tax (Appeals) found that the enquiry has not been made properly as directed and on the basis of the enquiry made, the entire amount of Rs. 88.80 lakhs cannot be taxed in substantive basis in the hands of Suresh Kumar. The relevant part of para. 2.4 of the Commissioner of Income-tax (Appeals) order reads as under: "I have considered the facts of the case. The claim of the appellant is acceptable. The assessment order now under appeal was completed without following the directions of the Commissioner of Income-tax (Appeals), Rajasthan-I, Jaipur. The only information which was supplied to the appellant was a fax message received by the Income-tax Officer through the Deputy Director of Income-tax (Inv.), Jaipur, from the DDIT(Inv.), Bhubaneshwar, Orissa, to suggest that no person named Shri S.K. Singh was a wholesaler or retailer of lottery tickets at Cuttack. This information was supplied to the appellant on March 30,1994. The appellant filed his reply on the same day on March 30, 1994. The following paragraph from the letter of the appellant to the Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipur, in his order dated December 9, 1991, has been brought on record. In these circumstances, I am of the opinion that the addition of Rs. 88,80,000 made by the Income-tax Officer in his short assessment order cannot be sustained. The said addition is deleted. The appellant gets a relief of Rs. 88,80,000." Thereafter, the Department preferred the appeal before the Tribunal. The Tribunal has also affirmed the finding of fact of the Commissioner of Income-tax (Appeals) that the entire amount of lottery cannot be taxed in the hands of Suresh Kumar and the Tribunal found that as per the enquiry, the Assessing Officer has not established the case that the lottery ticket has been purchased in the market after the draw of lottery, from somebody else. The Tribunal has concluded its finding in para. 5 of its order which reads as under: "Rival submissions have been heard with reference to material on record and case laws relied upon by both the parties. Para. 2.4 of the order of the Commissioner of Income-tax (Appeals) has been reproduced and held as under: From the Departmental pleadings, it is also borne out that the Assessing Officer could not do the full investigation. It has also b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the person or the distributor in whose favour the tickets were given for the purpose of distribution/sale in the country and wherefrom the prize winning ticket was sold/distributed to the sub-distributor or a local seller. It could also have been ascertained as to whether anyone has put forth a claim about the bonus/commission subsequently and depending upon the facts on verification, further enquiries from the recipient of the bonus/commission as well could have been got conducted with a view to justify the different facts on a proper footing. After collecting all these information as also the facts from the so-called seller of the ticket, the appellant should have been confronted with the different types of evidences with a view to invite the objection and only thereafter, the acceptability or otherwise of the appellant's claim of prize amount should have been decided. As all this requires a detailed enquiry, verification of different facts as also the examination of the local seller, either personally or by issue of a commission, it would be fair and reasonable if the impugned addition is set aside with a direction that the different aspects as discussed above may be enquired ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld the information available with him. It was incumbent upon the Assessing Officer to ascertain the role of all these persons in the alleged transactions and bring on record some positive material before coming to the conclusion. The powers of the Department are not confined to the assessee alone but enquiries could be made by taking effective steps as per procedure prescribed under the Act, which also includes issuance of summons and commission, etc. Despite there being enabling provisions available under the Act for carrying out the enquiries as well as investigation, there was no handicap or impediment with the Assessing Officer in acting in accordance with the directions given by the Commissioner of Income-tax (Appeals), more particularly when sufficient time was available from the date of setting aside to the date of completion of the assessment. Under such circumstances and in view of the observations and facts as brought out by the Commissioner of Income-tax (Appeals) on record, we do not find error in the order of the Commissioner of Income-tax (Appeals) for coming to the conclusion that no information, which could effectively answer the questions raised by the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and circumstances into consideration, we do not find any material, which calls for interference in the order passed by the Commissioner of Income-tax (Appeals). Accordingly, the ground raised in all the three appeals preferred by the Revenue for the assessment year 1988-89 stand rejected." There is a concurrent finding of fact by the Commissioner of Income-tax (Appeals) as well as by the Tribunal that on the basis of enquiry made by the Assessing Officer, it cannot be believed that the assessee Suresh Kumar, has purchased this lottery ticket in the market after the lottery draw held from somebody else to convert his black money into white. Once the Assessing Officer failed to do so and a concurrent finding is there in favour of the assessee, we see no reason to interfere in the concurrent finding of both the authorities, i.e., the Commissioner of Income-tax (Appeals) and the Tribunal. Not only that, the fact remains that Rs. 88.80 lakhs has already been offered and taxed in the hands of all the three brothers equally which they have disclosed in 1989-90, there is no justification to tax the same amount in the assessment year 1988-89 specially when the Department has failed to est ..... X X X X Extracts X X X X X X X X Extracts X X X X
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