Dr. (Mrs) Renu Arunkumar Gupta v. Deputy Commissioner Of Income Tax &Ors

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 36 OF 1999 Dr. (Mrs) Renu Arunkumar Gupta ..Appellant versus Deputy Commissioner of Income Tax &Ors. ..Respondents -------- Mr. B.V.Jhaveri alongwith Ms. Manju Sisodia for the Appellant. Mr. Suresh Kumar for the Respondents. ............. CORAM : S.J.VAZIFDAR & M.S.SANKLECHA, JJ. DATE: 18[th] September, 2012 P.C. : 1This appeal under Section 260A of the Income Tax Act, 1961 (the Act) challenges the order dated 25.02.1999 of the Income Tax Appellate Tribunal ('the Tribunal') relating to Assessment for the block period 01.04.1985 to 26.03.1996. 2This appeal was heard alongwith Income Tax Appeal No. 38 of 1999. Counsel for the appellant and the respondent state that the question nos.(i) to (v) raised in paragraph 9 of the memo of appeal would stand covered by the decision which would be rendered in Income Tax Appeal No. 38 of 1999. The appellant herein is the part of the family of Mrs. Rajrani Gupta, the appellant in Income Tax Appeal No. 38 of 1999. However, there is an additional question in the present appeal which is raised as question no.(vi) and reads as under : (vi)Whether on the facts and in the circumstances of the case the Appellate Tribunal was right in law in holding that Rs.4,06,666/- was undisclosed investment in the flat at Manek Kunj at Sewri, Mumbai when the appellant had duly accounted the same in her books of account prior to the date of the search and there was no evidence on record to come to the conclusion that the appellant had invested Rs.4,06,666/- during the previous year relevant to the assessment year 1992-93? 3The appellant is the daughter-in-law of Smt. Rajrani Gupta, the appellant in ITXA No.38/99. The appellant got married into Gupta Family in the year 1994. 4During the course of search operation, it was found that the appellant and her family members had invested substantial amount in properties in and around Mumbai. At the time of search on 26.03.1996, a slip of unsigned papers was found and the same was seized. The contents of the seized unsigned paper are extracted as under : “ Desai BuildersNimesh Mehta (Manager) Shop area : 3600 carpet Rs. 11,000/- Rate per sq. ft.Ratio : 7/30 11[th] Floor Building :1380/- sq. ft.3 Bed)1550/- sq. ft.4 Bed) Rate Rs.3300/- per sq. ft.Ratio : 60/40 W/B(Building = Carpet + 22%)” 5 This unsigned paper reveled that the Gupta family were purchasing property in the ratio 40:60 i.e. black:white money. The appellant herein had purchased a property at Parel, Seweri division admeasuring 320 sq. ft. by an agreement dated 30.12.1991 for a consideration of Rs.6.10 lacs. However, while completing the block assessment of the appellant, it was found that the investment of this property was noted in her books at Rs.10.16 lacs. The Tribunal in its order records the facts that the appellant herein happened to come to Bombay only after her marriage in August, 1994 and she was thereafter living in the common residence with her mother-in-law and family. The Agreement of Sale dated 30.12.1991, provided that only an amount of Rs.9,150/- was paid at the execution of the agreement. The total consideration payable for the purchase of the above flat was Rs.6.10 lacs in terms of the Agreement of Sale. However, the revenue proceeded on the basis that the 40:60 ratio would be applicable even in respect of purchase of property by the appellant at Parel, Sewri Division and treated the purchase price to be Rs.10.16 lacs. Therefore, the additional amount of Rs.4.06 lacs was held to be as unexplained investment. The Assessing Officer as well as the Tribunal came to a finding of fact that there was an unexplained investment of Rs.4.06 lacs which the appellant has not been able to explain. Consequently, the aforesaid amount was added to her income for the block period. Counsel for the appellant pointed out that the Agreement for Sale was entered into between builder and the appellant on 30.12.1991 and the only amount paid then was Rs.9,150/-. Thereafter, no further payments were made by the appellant to the builder till the assessment year 1996-1997. In support of the same, the advocate for the appellant produced before us extract of the account claimed to have been maintained by the appellant which shows that the balance payment for the purchase of the flat was made by the appellant only in the assessment year 1995-1996. 7We are not inclined to look at the extract of the accounts produced at the time of hearing of this appeal. This is particularly so as no mention of the same has been found either in the order of the Assessing Officer or in the order of the Tribunal. In case, these documents had been produced before the Assessing Officer and the Tribunal had not referred to same then in such a event the appropriate remedy for the appellant would have been move to authorities under the Act to record the fact that the appellant has submitted extract of her account for consideration by the authority. In the absence of any reference to the account being produced before us, being reflected in the impugned orders, we decline to consider the same. The case of the revenue also finds support from the fact that in her books of account the investment in the property was noted at Rs.10.16 lacs, while the agreement for purchase discloses the consideration at only Rs.6.10 lacs. We find that the question as framed for our consideration is essentially a question of fact. There are concurrent finding of fact of the Assessing Officer and the Tribunal to the effect that the there was an unexplained investment of Rs.4.06 lacs for purchase of flat at Sewri, Mumbai. In the circumstances, according to us, no substantial question of law arises as the finding is purely factual. In view of the above, the question no.(vi) as framed above is answered in the affirmative i.e. in favour of the respondent/revenue and against the appellant. cost. (M.S. SANKLECHA, J.) (S.J.VAZIFDAR, J.)