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2014 (9) TMI 80
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....med 250/158BC/143(3) dated 28.03.2002 are without jurisdiction and, hence deserved to be quashed as such." 3. The assessee contended that the additional ground proposed to be raised is a legal ground and all material facts relating to disposal of such grounds of appeal are already on record. Therefore, such additional ground should be allowed to be raised. In support of this contention, he relied upon the following decisions:- (i) National Thermal Power Co.Ltd. Vs. CIT - [1998] 229 ITR 383. (ii) CIT Vs. Varas International P.Ltd. - [2006] 284 ITR 80. 4. Learned DR, on the other hand, submitted that this is a second round of litigation. The original assessment order was passed on 26th February, 1999 against which assessee had filed the appeal before the CIT(A) and has not raised any such ground. After the remand by the CIT(A), the Assessing Officer again passed the assessment order dated 28th March, 2002. These appellate proceedings are against this second assessment order dated 28th March, 2002. From a perusal of both the assessment orders, it is evident that adequate opportunity of being heard wa....
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....ssessment to the file of the Assessing Officer. Thereafter, fresh assessment was completed on 28th March, 2002. In this assessment order also, at page 1 paragraph 1, the Assessing Officer recorded the finding "Notice u/s 143(2) was issued and served upon the assessee". The assessee filed appeal before the CIT(A). However, no ground was raised against the non-service of notice under Section 143(2). The assessee filed appeal before the ITAT on 7th November, 2003. However, the letter proposing to raise the additional ground was filed for the first time on 27th April, 2009. On this factual backdrop of events, we find that the decision of Hon'ble Jurisdictional High Court in the case of Aravali Engineers P.Ltd. (supra) would be squarely applicable. In the said case, the assessee has sought to raise the additional ground for the first time before the ITAT with regard to non-service of notice under Section 143(2). The ITAT denied to admit such additional ground because the assessee did not raise this plea earlier inspite of opportunity being available. The assessee challenged the decision of the ITAT before Hon'ble Punjab & Haryana High Court, and their Lordships at paragraph Nos.....
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....n the interest of justice in the facts and circumstances and not mechanically. Normally a question of fact may not be allowed to be raised for the first time as it may prejudice the other side. If such question is raised at the earliest opportunity, the other side can lead evidence which it may not be able to do if such a question is raised for the first time before the appellate authority. Of course, there can be no total bar on such question being allowed, if interest of justice so requires. In National Thermal Power Ltd.'s case (supra) it has not been laid down that in every case a question of fact can be mechanically allowed to be raised for the first time. The Madhya Pradesh High Court in CIT v. Premium Capital Market & Investment Ltd. (2005) 198 CTR (MP) 680 : (2005) 275 ITR 260 (MP) held that question of validity of notice may not be allowed to be raised for the first time in appeal. Subsequent legislative amendment adding section 292BB supports this principle. The question has, thus, to be answered against the assessee." 8. That the ratio of above decision of Hon'ble Jurisdictional High Court would be squarely applicable to the facts of the assessee's case becaus....
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....nces of the case, learned CIT(A) has erred in law and on facts in not allowing relief aggregating to Rs. 98,000/- being the amount equal to the basic exemption limits in the following years. Assessment Year Basic Exemption Limit 1988-89 18,000 1988-89 18,000 1990-91 18,000 1991-92 22,000 1992-93 22,000" 10. At the time of hearing before us, it is submitted by the learned counsel that in four of the assessment years forming part of the block of assessment, the returned/assessed undisclosed income was below the basic exemption limit and, therefore, the same cannot be considered as undisclosed income. In other words, it is submitted by the learned counsel that the rebate for the basic exemption limit is to be allowed because the tax is to be charged on the income above the basic exemption limit. In support of this contention, he relied upon the decision of Hon'ble Rajasthan High Court in the case of Chain Sukh Rathi Vs. CIT - 270 ITR 368 and of Hon'ble Calcutta High Court in the case of CIT Vs. Ashim Krishna Mondal - 270 ITR 160. 11. Learned DR, on the other hand, relied upon the orders of authorities below and she submitted that the....
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....d upon the interpretation of provisions of Section 158BB specially the amendment therein by the Finance Act, 2005 with retrospective effect from 1st July, 1995. Therefore, the above decision would be applicable in the case of the assessee also. We, therefore, respectfully following the above decision of Hon'ble Calcutta High Court as well as the amended provisions of Section 158BB((1)(c)(b), allow ground No.1 of the assessee's appeal. 14. In so far as ground No.2 is concerned, we find the same to be covered in favour of the assessee by the decision of Hon'ble Rajasthan High Court in the case of Chain Sukh Rathi (supra). In the above mentioned case, their Lordships have discussed this issue at page 372 of ITR 270. The relevant portion of the same reads as under:- "Mr. Jhanwar, learned counsel for the assessee submits that in view of the provisions of section 158BB the income should be computed in accordance with the provisions of this Act and the income exempted to that extent should not be taxed. The reading of section 158BB is as under : "Computation of undisclosed income of the block peri....
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....d at source and therefore, to that extent, the income of Rs. 79,355/- should not be considered as undisclosed income because the tax has already been paid by the assessee by way of tax deduction at source. In support of his contention, he relied upon the decision of Hon'ble Punjab & Haryana High Court in the case of Rajesh Syal Vs. CIT - [2009] 185 TAXMAN 369 (P & H) and of Hon'ble Delhi High Court in the case of CIT Vs. A.T. Invofin India P.Ltd. and others - [2011] 335 ITR 370 wherein it was held that if the assessee has paid the advance tax, it can be treated as disclosure of income by the assessee. 18. Learned CIT-DR submitted that the assessee had income of more than Rs. 10 lakhs for AY 1997-98 and he did not file the return either before or after the search. No disclosure in any other manner was made by the assessee. The assessee has not paid any advance tax or self assessment tax. That merely because some TDS was deducted by the payee, it cannot be presumed that the income is disclosed by the assessee so as to exclude the same from the undisclosed income under Chapter XIV-B. She also stated that in both the cases relied upon by the learned counsel, the Hon'ble Cour....
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.... disclose the income. In view of the above, we find no merit in ground No.3 of the assessee's appeal. The same is rejected. 21. Ground Nos.4, 6, 7 & 8 of the assessee's amended grounds of appeal read as under:- "4. That having regard to the facts and circumstances of the case, learned CIT(A) has erred in law and on facts in sustaining the addition on account of profit from the deals of Gopal Das Estate & Housing Pvt.Ltd., and that too in the hands of the appellant whereas it was not the appellant in individual capacity who earned the same and therefore, such profit ought Not to have been taxed in the hands of the appellant. 4.1 That having regard to the facts and circumstances of the case, learned CIT(A) has erred in law and on facts in holding that profit arising from M/s Gopal Das Estate & Housing (P) Ltd. was Rs. 2,47,85,040/- wherein it was quite less than the said amount. 6. That having regard to the facts and circumstances of the case, learned CIT(A) has erred in law and on facts in confirming the disallowance of Rs. 60,00,000/- being the amount of commission paid to M/s North India Iron India & Steel Co.Ltd....
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....rabad and Bindapur. In the original assessment order dated 26.2.1999 at page 3, the Assessing Officer had given the details of the advance given by the assessee and various family members. Later on, these lands were sold to M/s Gopal Dass Estates & Housing (P) Ltd. and the assessee and his brothers received commission from M/s Gopal Dass Estates & Housing (P) Ltd. amounting to Rs. 2,47,85,040/-. That the family members of the assessee had disclosed the income of Rs. 1,43,66,105/- under the VDIS. The Assessing Officer allowed the credit for the same for which at paragraph 22 of the order, he recorded the following finding:- "22. Certificates have been issued in January 1998 by the worthy Commissioner of Income Tax, Range. Therefore credit of Rs. 1,43,66,105/- is to be given while determining the undisclosed income of the assessee in form of profits from M/s Gopal Dass Estates Pvt. Ltd." 25. The Assessing Officer also allowed the deduction of Rs. 18 lakhs paid to Tara Chand, Balbir, Suresh and their associates by cheque. It may be clarified that the assessee and his associates had claimed the payment of commission of Rs. 60 lakhs + Rs. 42 lakhs by them to var....
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....land actually belonged to the appellant and not to be different family members. The onus was entirely on the AO to bring forth all necessary evidence to substantiate his conclusion that the entire profits were to be taxed in the hands of Sh. Ram Kanwar and that all the deposits in the bank accounts in the form of cash and cheque represented income of the appellant. Unfortunately the AO has failed to discharge the onus. There is no evidence which can even remotely suggest that the appellant was the de-facts owner of the properties, that the appellant had made investment in the properties and therefore, all incomes arising there from would be his income. By simply stating that the appellant was in the fore front of all negotiations and that other members did not have income, the AO could not be under the law and on facts burden the appellant with all the incomes arising out of the transactions carried out by the different members of the family and to go further and tax all the monies deposited in the bank accounts of the family members in cash and cheque as undisclosed income of the appellant. Under the circumstances the conclusion arrived at by the AO cannot be upheld and the AO is ....
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....the income of the family members. If the Revenue is of the opinion that the family members are the benami of the assessee, then the onus was upon the Revenue to establish so. That no evidence is brought on record by the Assessing Officer to establish that the other family members were benami of Ram Kumar. On the other hand, in the original assessment order, the Assessing Officer himself accepted that income of only Ram Kumar is to be assessed in his hands and not the income of family members. In the set aside assessment order, the Assessing Officer himself stated that there is no reason to take a different view than the view taken in original assessment order. In view of the totality of above facts, we do not find any infirmity in the direction of learned CIT(A) for excluding the profit earned by other family members from the income of the appellant. Accordingly, we reject ground No.1 of the Revenue's appeal. 30. Now, we come to ground Nos.6 to 8 of the assessee's appeal wherein assessee has claimed the deduction for commission paid to various persons and also the miscellaneous expenses claimed to have been incurred in respect of land deals. As per grounds of appeal, the assesse....
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....AO shall also exclude all the cash and cheque deposited in the accounts of the different members of the family which have been taken as the income of the appellant. While recomputing the income the AO shall also take into account the bank account with the Union Bank of India, Gurgaon - account No.3233 - wherein it can be seen that there is no deposit of Rs. 29,50,000/- and it is also apparent from the account that a sum of Rs. 8,05,600/- has been added twice in the financial year 1993-94. While recomputing the income the AO is directed to take note of his reply in para (a) and (b) of his submissions dated 27.08.2003 wherein it has been stated that the only deposit was of Rs. 3095 on 27.3.1996 in account No.3233, Union Bank of India, Gurgaon which was closed on 23.07.1996. The AO vide its letter has also placed on record the letter of Corporation Bank, Gurgaon wherein it has been certified that a cheque of Rs. 4,02,800/- was returned unpaid on 15.06.2003." 34. After considering the arguments of both the sides and the facts of the case, we do not find any infirmity in the above direction of learned CIT(A). That the cash/cheque deposited in the bank account of various family member....