Dy. Commissioner Of Income Tax v. Shri Mukhtayar Ahmad

1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANBENCH AT JAIPUR. (1) D.B. Income Tax Appeal No.100/2002 Dy. Commissioner of Income Tax Vs. Shri Mukhtayar Ahmad (2) D.B. Income Tax Appeal No.85/2002 Dy. Commissioner of Income Tax Vs. Miss Sabra Banoo (3) D.B. Income Tax Appeal No.86/2002Dy. Commissioner of Income Tax Vs. Smt. Mehrunnisa (4) D.B. Income Tax Appeal No.87/2002 Dy. Commissioner of Income Tax Vs. Mustaq Ahmad (5) D.B. Income Tax Appeal No.89/2002Dy. Commissioner of Income Tax Vs. Shri Salimuddin (6) D.B. Income Tax Appeal No.90/2002Dy. Commissioner of Income Tax Vs.Shri Riyazur Rehman (7) D.B. Income Tax Appeal No.94/2002Dy. Commissioner of Income Tax Vs. Shri Ahmad Hassan(8) D.B. Income Tax Appeal No.97/2002 Dy. Commissioner of Income Tax Vs. Shri S Nawab Ali (9) D.B. Income Tax Appeal No.114/2002Dy. Commissioner of Income Tax Vs. Smt. Mem(10) D.B. Income Tax Appeal No.126/2002Dy. Commissioner of Income Tax Vs.Smt Kherunnisa DATE OF ORDER ::: 9.9.2016 HON'BLE MR. JUSTICE K.S. JHAVERIHON'BLE MR. JUSTICE AJAY RASTOGI Mr. Anuroop Singhi with Mr. Sandeep Pathak, for theappellant.Mr. Sanjay Jhanwar, for the respondent. **** BY the Court:- (per Hon'ble Jhaveri, J.) 1.These 10 appeals have been filed by differentassesses belonging to Mustaq Ahmad group of cases,Makrana. These appeals are filed against the order passedunder Section 15BBC consequent to the search operationunder Income Tax Act, 1961. The search was carried out bythe Department on 18.12.96 at the residential and businesspremises of Mustaq group. 2.Since the issue involved and grounds in theseappeals are of similar nature and inter-related, therefore,these appeals are being disposed of by this common order.2.1For convenience, we are referring the facts fromD.B. Income Tax Appeal No.87/2002. The substantialquestions of law which have been referred in all theseappeals are by and large common and at the time ofadmission, following questions have been framed forconsideration:- “1. Whether the ITAT was justified indeciding the method of qualification ofundisclosed income, only by consideringthe evidence of undisclosed assets/expenditure? 2. Whether the ITAT was justified inignoring relevant and important materialevidenceindicatingunderbilling,suppression of sales, statement of assesseeabout such transactions? 3. Whether the ITAT was justified inignoring the method adopted by the AOabout under billing of the bill, on theground that they related to only a part ofperiod? 4. Whether the ITAT was justified in adopted the evidence of only one party andby doing so whether it has not failed togive finding on facts which appellate courtis required to give? 5. Whether the ITAT can be permitted tochange method of computation of incomewithout giving an opportunity to theAssessing Officer to rebut the same? 6. Whether the ITAT was justified inreversing the finding of fact which wasrecorded by the Assessing Officer afterconsidering entire material on record? 7. Whether the ITAT was justified in givingnew findings on the facts, which were notfurther supported by any new evidencebefore it?” 3.1Counsel for the appellant has contended that the assessing officer while taking out the assessment has relied upon the following conclusion:- 1. Under Billing of Sales 2. Suppression of Sales and Gross Profit Thereon 3. Unrecorded Job work Income 4. Unexplained Cash 5. Unexplained Jewellery 6. Unexplained Investment in vehicles 7. Household Items 8. Unexplained Household Expenses 9. Unexplained Marriage Expenses 10. Unexplained Investment in Construction of House 11. Unexplained Stock 12. Haj expenses and Donations, and after estimating alladded income, the tribunal while rejecting the case of themethod admitted by the assessing officer as adopted the 7. Whether the ITAT was justified in givingnew findings on the facts, which were notfurther supported by any new evidencebefore it?” 3.1Counsel for the appellant has contended that the assessing officer while taking out the assessment has relied upon the following conclusion:- 1. Under Billing of Sales 2. Suppression of Sales and Gross Profit Thereon 3. Unrecorded Job work Income 4. Unexplained Cash 5. Unexplained Jewellery 6. Unexplained Investment in vehicles 7. Household Items 8. Unexplained Household Expenses 9. Unexplained Marriage Expenses 10. Unexplained Investment in Construction of House 11. Unexplained Stock 12. Haj expenses and Donations, and after estimating alladded income, the tribunal while rejecting the case of themethod admitted by the assessing officer as adopted the matter out of 3 which is permissible and considerablerevised rates. 3.2Counsel for the appellant has taken the order of AO as well as the tribunal. 4.0Counsel for the respondent has contended thatmatter was admitted ex-parte. In view of the provisions ofSection 260A, no substantial question of law has been raisedby the counsel for the appellant. 5.0appellant as well as counsel for the respondent. We have heard the learned counsel for the 6.We have gone through the order of assessing officer and the tribunal. The method adopted by theassessing officer was not correct and tribunal whileconsidering the each of the issue has referred separatelyand discussed each of the head and ground and afterconsidering the law and fact and evidence on record hasreached to the conclusion correctly. For the sake of brevity,we are not reproducing the findings of the tribunal. 7.The Tribunal while considering the case of theassessee as well as the Department has adopted the viewwhich is prima facie correct and based on available facts ofthe case from the record. It seems that tribunal hasconsidered the evidence which was available with AssessingOfficer and the department which is relevant for theconclusion. 8.We are not reproducing the findings of the tribunal buttribunal while giving finding on each issue, has explained thesame in different paragraphs and after considering theevidence on record, the conclusion reached by the tribunal,the fact finding authority is found to be correct. In our view,these are all appreciation of the evidence. In fact, there isno substantial question of law and in that view of thematter, taking into consideration finding arrived at thetribunal is just and proper, which does not requireinterference in the matter. The view taken by the AO is notproper. 9.Therefore, we answer the question raised in thepresent appeal in favour of the assessee and against theDepartment. (Banwari Lal Sharma), J. (K.S. Jhaveri), J. Brijesh