2007 (8) TMI 387 - AT - Income Tax

Revenue appeal dismissed due to lack of evidence in benami ownership case

The appeal of the revenue was dismissed by the Judicial Member and supported by the Third Member, finding no merit in the case against Mr. Peter Thorose. ... Block Assessment in search case Issues Involved:1. Ownership of St. Peter's Higher Secondary School and College.2. Validity of the block assessment under section 158BD, read with sections 158BC(b) and 144.3. Adequacy of the evidence and statements considered by the Assessing Officer and CIT(A).4. Whether the CIT(A) rightly allowed the appeal without obtaining the necessary report from the Assessing Officer.Issue-wise Detailed Analysis:1. Ownership of St. Peter's Higher Secondary School and College:The primary issue was determining the true ownership of St. Peter's Higher Secondary School and College. The Assessing Officer concluded that Mr. Peter Thorose was the real owner based on direct and circumstantial evidence, including statements from Ms. Dancy Dora Syiem and Smt. T. Blah. However, the CIT(A) found that the financial control did not imply ownership, as there was no conclusive evidence to support this claim. The CIT(A) relied on documents such as the affidavit of Ms. Dancy Dora Syiem, the P.F. deposit challan, and a certificate from Vijaya Bank, all indicating that Ms. Dancy Dora Syiem was the proprietor and Mr. Peter Thorose was the honorary Principal.2. Validity of the Block Assessment:The block assessment was conducted under section 158BD, read with sections 158BC(b) and 144. The CIT(A) upheld the assessment's validity but found the evidence insufficient to establish Mr. Peter Thorose's ownership. The Third Member noted that the burden of proof was on the revenue to establish the benami ownership but found no material evidence to support this claim. The Third Member also pointed out that the proceedings under section 158BD were not legally assumed, making the block assessment questionable.3. Adequacy of the Evidence and Statements:The Assessing Officer relied on statements and seized documents to conclude ownership. However, the CIT(A) and the Third Member found these statements contradictory and insufficient to prove ownership. The CIT(A) noted that the Assessing Officer did not conduct necessary investigations to ascertain the true ownership. The Third Member emphasized that the revenue failed to provide direct or circumstantial evidence to prove Mr. Peter Thorose's ownership, and the statements were not corroborated by additional material.4. CIT(A)'s Decision Without Assessing Officer's Report:The CIT(A) had directed the Assessing Officer to conduct further inquiries, which were not done. The CIT(A) proceeded to decide based on the available evidence, which the Third Member found justified. The Third Member criticized the CIT(A) for not enforcing compliance but ultimately agreed with the CIT(A)'s conclusion due to the lack of substantial evidence from the revenue. The Third Member highlighted that the appellate authorities should not collect material for the revenue but correct errors based on available evidence.Conclusion:The appeal of the revenue was dismissed by the Judicial Member and supported by the Third Member, who found no merit in the case against Mr. Peter Thorose. The Third Member emphasized that the burden of proof was on the revenue, which was not discharged. The Third Member agreed with the Judicial Member that the evidence presented did not support the claim of benami ownership by Mr. Peter Thorose. The decision to dismiss the revenue's appeal was based on the lack of substantial evidence and the improper assumption of jurisdiction under section 158BD.