Hafiz Mohammed v. Assistant Commissioner Of Income Tax

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- INCOME TAX APPEAL No. 69 of 2002 HAFIZ MOHAMMED V/S ASSISTANT COMMISSIONER OF INCOME TAX Mr. SANJEEV JOHARI, for the appellant / petitioner Mr. KK BISSA, for the respondent Date of Order : 22.11.2007 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI MUNISHWAR NATH BHANDARI,J. ORDER ----- This appeal has been filed by the assessee againstthe impugned judgement of the Appellate Tribunal Annexure-1. By Annexure-1 the learned Tribunal had decided twoappeals being Appeal No. 663 and 664. Appeal No. 663related to assessment year 1989-90, while Appeal No. 664related to assessment year 1990-91. In the present appealthe findings arrived at by the learned Tribunal whiledeciding Appeal No. 663 only have been assailed, and thatalso with respect to ground no. 1 only whereby the Tribunalallowed the appeal of the Revenue, and set aside thedeletion of the amount purportedly on account ofunexplained investment on the plot bearing no. 27D. date notice was ordered to be issued to show cause. Then,since nobody appeared on behalf of Revenue, on 28.8.2002the appeal was admitted. However, in the order of admissionno substantial question of law was formulated. Then, thematter came up on 25.9.2002. On that day it was noticedthat the appeal has been admitted without formulating thesubstantial question of law. However, it was consideredappropriate that the appeal itself be heard on prioritybasis, and therefore, the appeal was directed to be listedfor hearing at admission stage. Thereafter, after variousadjournments after adjournments, it has now come up beforeus. The contention of the learned counsel for theappellant is that the finding of the learned Tribunal isbased on misreading of the record, and is, therefore,liable to be set aside. On the other hand, learned counsel for the Revenuesubmits that the finding recorded is a pure finding offact, and does not involve any substantial question of law. In our view, the present appeal does involve thesubstantial question of law being:- “As to whether the finding recorded by the learned Tribunal in para-6 of the judgement is an out comeof misreading of the record?” We have considered the submissions, and perusedthe impugned judgement. The relevant facts for appreciating the questionformulated above is that the plot was purchased in auctionconducted by the U.I.T. It appears that the receipt of thepayment of the amount is issued in the name of assesseewhile the plot is said to have been purchased by his sonZakir Hussain. The balance sheet of Zakir Hussain as on31.3.89 does show the purchase of this plot which wassubsequently sold away by him, and he had declared capitalgain derived from such sale which was assessed in the handsof Zakir Hussain. The learned Tribunal has found that thebalance amount of Rs. 68,400/- was deposited vide receiptdt. 31.3.89 in the name of the assessee, and that there isno evidence/material on record to show that this payment ofRs. 68,400/- was made by Zakir Hussain, and that the entryof withdrawal of Rs. 68,400/- from the Bank by ZakirHussain available at page-3 of the paper book of theRevenue relied upon by the assessee is dated 8.3.90, andtherefore, this withdrawal obviously cannot relate back tothe deposit made on 31.3.89, therefore, it was found thatthe assessing officer has rightly made this addition in thehands of the assessee, and the deletion was found to be Learned counsel for the appellant made availablefor our perusal the photo stat copy of the bank statementof Account No. 745 of Zakir Hussain, and that shows thatthe amount of Rs. 68,400/- was withdrawn on 8.3.89 videCheque no. 453 dt. 6.3.89. In this sequence a look at theassessment order Annexure-5 shows that even therein it wasfound that as per the seized record payment of Rs. 68,400/-was made on 31.3.89, and the investment was found to bestanding unexplained in the hands of the assessee while thelearned Commissioner in appeal found that the investmentduly reflected in the books of accounts of Zakir Hussain,and this was not the controversy gone into about amounthaving been drawn from the bank in the year 1990. Thus, itwas never the question gone into as to whether the amountwas drawn from the bank on 8.3.90, or 8.3.89, while thelearned Tribunal has proceeded on the basis of the entry ofwithdrawal of Rs. 68,400/- from the Bank by Zakir Hussainassuming it to be dated 8.3.90. Thus, this much is not incontroversy that the amount is 68,400/- does also not incontroversy that the amount was drawn from the Bank ofZakir Hussain for being paid for purchase of the plot, andthe question is only as to whether the amount was drawn on8.3.89, or 8.3.90, obviously because if it was withdrawn on8.3.90 it could not be paid on 31.3.89. What we find fromthe statement of account copy whereof is shown to us is that the amount was withdrawn by cheque issued in the nameof U.I.T. itself being cheque no. 453 dt. 6.3.89, and doesnot appear to be a case of cash withdrawal by ZakirHussain, and payment to U.I.T., and it appears that thecheque was given on 6.3.89 which was encashed on 8.3.89,and after encashment in due course the receipt was issuedon 31.3.89. Thus, the whole edifice assumed by the learnedTribunal is clearly a misconception arising out of themisreading. Copy of the bank account is already therebefore the learned Tribunal. Thus, the question is answered in favour of theassessee, and against the Revenue. The appeal is accordingly allowed. The impugnedjudgement so far as it directs setting aside the deletionof amount made on account of unexplained investment as madeby the Commissioner, Income Tax, is set aside, and theorder of Commissioner, Income Tax is restored. /Sushil/