AI Drafter 
TaxTMI 
TaxTMI 
2004 (5) TMI 32
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....nquiry 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 additions made in the hands of assessee in the wealth-tax assessment which was based upon enquiry conducted by the Assessing Officer?" For the assessment year 1988-89 in I.T.A. No. 128 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 substantively taxed for the year in question? 2. Whether 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 the Income-tax Appellate Tribunal and the Commissioner of Income-tax (Appeals) were right in law in taking a view different than the view of the Assessing Officer, when the assessee has failed....
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....hereas 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 substantively taxed for the year in question? 2. Whether 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 the Income-tax Appellate Tribunal and the Commissioner of Income-tax (Appeals) were right in law in taking a view different than the view of the Assessing Officer, when the assessee has failed to prove the authenticity of the purchase of lottery ticket and on the basis of the evidence the Assessing Officer has made additions under section 69 of the Act?" A search was conducted on January 12, 1988, at the residence of the assessees, Shri Suresh Kumar, Shri Bal Kishan and Shri Satish Kumar. All of them are real brothers....
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.....), 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-tax Officer dated March 30, 1994, brings out his case during the course of assessment proceedings: 'It is further submitted that we do not know what do you wish to state by means of the said letter. It has never been stated by us that the ticket was purchased by Shri Satish Kumar from Shri S.K. Singh at Cuttack, Orissa. Your attention is invited to the statement of Shri Satish Kumar which has been relied and is lying on your record. We do not know how Shri S.K. Singh has come in the picture and what relevance he has got in the said case. If it is your case that the ticket was sold by Shri S.K. Singh to Satish Kumar, you are requested to kindly let us know on what basis such inference is being drawn. You are also requested to kindly supply us photocopy of all the papers in this regard. It is further submitted that vide our letter dated March 24,1994, ....
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....issions 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 been stated that the Assessing Officer has done his best efforts to comply with the directions of the Commissioner of Income-tax (Appeals) but desired results have not come due to non-co-operation and intentional withholding of information by the assessee. Mala fides have also been alleged by the learned Departmental Representative on the group of the assessees but the same have not been proved nor any material has been brought on record in support of the plea so raised. We have also found that the original assessment in this case for making the addition of Rs. 88.80 lakhs was completed on March 14, 1991, and the same was set aside by the Commissioner of Income-tax (Appeals) vide his order dated December 9, 1991, in Appeal No. 160/1991-92 by observing as under: '. . . After due consideration, it appears that causing the enquiries from the....
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....ize 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 into and after confronting the appellant with the results, the evidence, if any, the acceptability or otherwise of the prize winning amount should be decided. It may also be stated here that as per the normal practice, a single ticket is not purchased by different persons and normally it is purchased in a single name. In view of this, the concerned authority is directed to get the verification done separately as to whether the ticket was purchased jointly by the three brothers and what is the evidence thereof for subjecting the amount to tax in the correct hands. The appellant may also be given the copy of the incriminating material referred to at page No. 46 of annexure E 16 on which it is harping again and again of having been either not shown or not provided with. As such, the addition in question is set aside for fresh considerati....
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....letion 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 Commissioner of Income-tax (Appeals), Jaipur, in his order dated December 9, 1991, have been brought on record and that all the directions given in the appellate order dated January 9, 1991, were not considered by the Income-tax Officer. In view of this, we hold that there was no error in drawing an adverse inference by the Commissioner of Income-tax (Appeals) against the Assessing Officer and in coming to the conclusion that the addition of Rs. 88.80 lakhs made by the Assessing Officer in his short assessment order cannot be sustained. We also find that the addition in this case has been made under section 69 of the Income-tax Act. The perusal of the Departmental paper book page 1, stated to be a copy of annexure E-16/46, does not reveal any investment made by the assessee in the prize winning ticket. The appraisal report furnished at pa....
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....s, 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 establish that the lottery ticket has been purchased after the lottery draw was held, we also see no justification to tax the entire amount in the hands of Suresh Kumar even in 1989-90. The amount of lottery prize be taxed in the hands of all the three brothers as has been shown by them. Even in cases when more than one view is possible in the facts and circumstances of the case and if one possible view has been taken by the Tribunal, it cannot be said that the finding of the Tribunal is perverse. In the case in hand, it cannot be said that the Tribunal has taken the impossible view in the facts and circumstances and material on record. In the result, we hold that the Commissioner of Income-tax (Appeals) as well as the Tribunal are justified in deleting the entire amount of addition in the hands of all the three broth....