Commissioner Of Income Tax Alw v. Murari Lal Gupta

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 780 / 2008 Commissioner Of Income Tax Alw ----Appellant Versus Murari Lal Gupta ----Respondent D.B. Income Tax Appeal No. 474 / 2011 Commissioner Of Income Tax Alw ----Appellant Versus Murari Lal Gupta ----Respondent _____________________________________________________ For Appellant(s) : Mrs. Parinitoo JainFor Respondent(s) : Mr. P.K. Kasliwal _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE DR. JUSTICE VIRENDRA KUMAR MATHURJudgment 30/05/2017 1.In both these appeals, common question of law and factsare involved, they are decided by this common judgment. 2.By way of these appeals, the appellants have assailed thejudgment and order of the tribunal whereby tribunal hasdismissed the appeal of the department and partly allowed theappeal of the assessee. 3.This court while admitting the appeals framed followingsubstantial question of law:- 3.1Appeal No.780/2008 admitted on 18.10.2016 “1. Whether Tribunal was legally justified indeleting various additions and makingestimation over estimation specifically when theassessee neither maintained any regular booksof accounts nor followed any accounting systemconsistently and further assesee never filed anyreturn of income except the one filed u/s158BC/BD after the search and seizure u/s 132?2. Whether in the facts and circumstances ofthe case in law the Tribunal was justified indeleting the addition of Rs.6,31,719/- made onaccount of interest accrued at the ratementioned in the documents seized by holdingthat interest receivable could not be charged onaccrual basis specifically when the assessee didnot claim that he had been following cashsystem of accounting and neither complete norregular books of accounts were maintained bythe assessee? 3. Whether in the facts and circumstances ofthe case in the law the Tribunal was justified inholding that the undisclosed income ofRs.11,07,470/- be allowed set off specificallywhen the assessee failed to establish theapplication of the realized advances also whenno income was assessed and only few additionswere made? 3.2Appeal No.474/2011 admitted on 18.10.2016 “1. Whether Tribunal was legally justified indeleting various additions and making estimationover estimation specifically when the assessedneither maintained any regular books ofaccounts nor followed any accounting systemconsistently and further assessee never filed anyreturn of income except the one filed u/s 158BC/BD after the search and seizure u/s 132? 2. Whether in the facts and circumstances of thecase in law the tribunal was justified in deletingthe addition of Rs.4,13,120/- made on accountof unexplained investment in MIS specificallywhen the assesse failed to discharge his onus inestablishing the nexus between the availability ofcash on maturity of IVPs and its subsequentinvestment in MIS by wife of assessee? 3. Whether in the facts and circumstances of thecase and in law the Tribunal was justified inmaking estimation over estimation of agriculturalincome for Rs.1,00,000/- in the absence of anyevidence or supporting document with regard tothe agricultural income and expenditureincurred? 2. Whether in the facts and circumstances of thecase in law the tribunal was justified in deletingthe addition of Rs.4,13,120/- made on accountof unexplained investment in MIS specificallywhen the assesse failed to discharge his onus inestablishing the nexus between the availability ofcash on maturity of IVPs and its subsequentinvestment in MIS by wife of assessee? 3. Whether in the facts and circumstances of thecase and in law the Tribunal was justified inmaking estimation over estimation of agriculturalincome for Rs.1,00,000/- in the absence of anyevidence or supporting document with regard tothe agricultural income and expenditureincurred? 4.The facts of the case are that a search was conducted inthe premises of legal heirs of the assessee occupied by Smt.Gulabi Devi w/o the assessee, Sh. Hari Om, Shri Hari Shankar,Sh. Shiv Shankar and Shri Vishnu, all sons of the assessee. Theassessee died on 12.09.95. During the course of searchproceedings various documents, loose papers and valuableincluding cash, FDRs, post office savings accounts, bankaccounts, ornaments of gold and silver (pawned in nature), selfgold and silver jewellery etc. were found from the premisesresided by assessee’s wife Smt. Gulabi Devi and her sons. Onbeing asked, it was explained by assessee’s wife that variousvaluable and other documents, loose papers found in herpremises in fact belonged to the assessee Late Sh. Murari LalKhandelwal, who died on 12.09.95. The case was completed u/s158BC, which was annulled as no action u/s 132 or 132A wastaken against assessee. 4.1Thereafter, a notice u/s 158 BC/158BD was issued to thelegal heirs of the assessee. The notice was issued on21.06.2000. Return was filed by the assessee on 09.08.2000 asduring the course of search in the premises of the legal heirs ofthe assessee, various incriminating documents, loose papers and valuable like fixed deposit receipts, post office savingaccounts and other valuables were found in the premises oflegal heirs and some of such documents and valuables wereclaimed to be belonging to the assessee. For example, variousloose papers indicating amount advanced on money lending tovarious persons, were found during the course of searchconducted at the premises of assessee’s eldest son Sh. Hariom.During the course of assessment proceedings, when Sh. Hariomwas asked to explain these documents, he mentioned that theseslips, indicated activity of money lending business carried on bythe assessee i.e. his father late Sh. Murari Lal and would beconsidered in the return of income of Sh. Murari Lal. Similarly,various post office saving accounts and other bank accounts,Indra Vikas Patras and other investment, bearing name of theassessee’s wife Smt. Gulabi Devi, were also claimed to bebelonging to the assessee, and it was accordingly mentionedthat all such valuable would be considered in the return ofincome of the assessee. 5.In view of the decision of earlier two appeals whereRs.15,00,000/- were outstanding amount we cannot held itRs.11,07,470/-, therefore, issue no.3 is answered in favour ofthe department. In that view of the matter, the set off will beallowed correspondence to the capital which was Rs.3 lacs inearlier appeals. 5.1In the other appeal no.474/2011 protective assessmentwas made for investment in the name of son, therefore, theview taken by the tribunal is just and proper. 5.2In view of the decision of earlier two appeals, the otherissues are answered in favour of the assessee. Both the appeals are accordingly disposed of. (VIRENDRA KUMAR MATHUR),J. (K.S. JHAVERI),J. Brijesh 81 & 84.