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TMI Blog1984 (7) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... al cost of construction for the entire building was claimed by the assessee to be Rs. 45,000. The Income-tax Officer at the time of making the original assessment for these two years added to the cost of construction admitted by the assessee Rs. 5,000 for the assessment year 1964-65 and Rs. 12,000 for the assessment year 1965-66. Thus, the total cost of construction fixed by the Income-tax Officer was Rs. 62,000. Subsequently, there was a raid in the premises of the assessee's co-brother which revealed that he had paid on-money while purchasing the building at Nos. 1/28 and 2/28, Maracair Labbai Street, Madras. Since the assessee was managing the affairs of his co-brother, the Income-tax Officer concluded that the assessee must have also paid similar on money for the purpose of the said property. For the purpose of wealth-tax assessment, the assessee filed an estimate of his own valuer showing the market value of the property including the new construction at Rs. 95,000. As a result of the raid in the assessee's co-brother's house and the filing of the valuation report by the assessee himself in the wealth-tax assessment, the Income-tax Officer came to the conclusion that the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was not aware of any further constructions. Subsequently, as already stated, for the purpose of wealth-tax assessment, the assessee himself has filed a valuer's estimate showing the market value at Rs. 95,000. That estimate contained the value of construction for the second floor as well. Subsequently, there was a raid in the premises of the assessee's co-brother which was taken by the Income-tax Officer to indicate that the assessee also should have paid on-money for the purchase of the property over which he has put up the construction. Taking these new materials which were not brought to his notice at the stage of the original assessment, the Income-tax Officer initiated proceedings under section 147(a) of the Act. In the reassessment proceedings, the Income-tax Officer has proceeded on the basis that since the estimate made by the assessee's own valuer is higher than the value fixed by him at the stage of the original assessment, it should be taken that the assessee has not disclosed the true particulars regarding the cost of construction and that is sufficient to invoke section 147(a) of the Act. When that reassessment was challenged before the Appellate Assistant Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e construction of the second floor but has proceeded to reassess merely on the basis that part of the construction has been suppressed. The Tribunal then goes on to say that to justify the reopening of the assessment, a finding is necessary that the second floor was constructed before March 31, 1965, and there is no evidence to show that the second floor was constructed on or before March 31, 1965. There is no basis for the Incometax Officer to reopen the assessment under section 147(a) of the Act. We do not see how the Tribunal can overlook the findings of the Appellate Assistant Commissioner as to when the second floor would have been constructed. The Tribunal without referring to the various materials considered by the Appellate Assistant Commissioner merely proceeds to say that there is no evidence to show that the second floor was constructed before March 31, 1965. As already stated, at no stage of the proceedings perhaps except up to the stage of the appeal to the Tribunal, the assessee ever came forward with a case that the second floor was constructed after March 31, 1965. As a matter of fact, before the Appellate Assistant Commissioner, the assessee appears to have contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t stage for the assessment years 1964-65 and 1965-66, the Tribunal must give a positive finding as to when the second floor was constructed. In such a case, the Tribunal without giving specific finding on that question cannot go by surmises and hold that since the second floor construction has not been proved to be before March 31, 1965, the assessee is not guilty of non-disclosure of the construction of the second floor. On the facts, we feel that the Tribunal has thrown the onus wrongly on the Revenue. When the date of the construction of the second floor being exclusively within the knowledge of the assessee, it is for him to positively prove as to when the construction of the second floor was undertaken and completed and on such a fact, which is exclusively within the knowledge of the assessee, the Revenue cannot be called upon to prove, especially when the other materials on record indicate that the second floor should have been constructed on or before March 31, 1965. It is not in dispute that the Income-tax Officer at the original assessment stage had to determine the cost of construction on the basis of the plan furnished by the assessee. Since the Income-tax Officer was no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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