Itta/132/2012 Of The Commissioner Of Income Tax - 1 v. M/S. Dynalog Softech Pvt. Limited

HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAANDHON’BLE SRI JUSTICE K.C. BHANUI.T.T.A.No.132 of 2012 Date: 02-08-2013 Between: Commissioner of Income Tax-I,Hyderabad. … Appellant And M/s. Dynalog Softech Pvt. Ltd., … Respondent HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAANDHON’BLE SRI JUSTICE K.C. BHANU I.T.T.A.No.132 of 2012 JUDGMENT:(Per Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) This appeal is preferred against the judgment and order of the learned Tribunal, dated 29-05-2009 inI.T.A.No.97/Hyd/09 for the block period from 1996-97 to 2002-03,and is sought to be admitted on the following suggested questionsof law: i)Whether in the facts and in the circumstances ofthe case, the Tribunal is justified in confirming theorder of the CIT (A) with regard to granting of reliefon the returned income (undisclosed) and bringingthe same to NIL? ii)Whether in the facts and circumstances of thecase, the ITAT is correct in admitting the revisedreturn under Chapter XIVB, through there is nosuch provision in the Act. iii)Whether in the facts and circumstances of thecase, can assessee be said to have retractedsuccessfully the disclosure made and the incomedisclosed in the original return? iv)Whether in the facts and circumstances of thecase, can the assessee be said to have dischargedthe onus as well as burden of proof so as to claimits expenditure. v) Whether in the facts and circumstances of thecase, when the assessee failed to producevouchers, bills in support of its claim whether theTribunal is justified in granting relief to the extent of90% of the expenditure? vi) Whether in the facts and circumstances of thecase, the Tribunal followed the decisions of theHigh Courts laid down in 319 ITR 359, 315 ITR 313and passed orders giving facts and reasons? 2. Learned Tribunal has dealt with five appeals. Out of the same, four appeals were filed by the department and oneappeal was filed by the assessee. The learned Tribunal dismissedthe appeals of the department and against this order of dismissal,the present appeal has been filed. 3. Originally a return in the prescribed format was furnishedpursuant to the notice issued for block assessment and theassessee has admitted some undisclosed income in the saidreturn. Thereafter, an affidavit was filed stating that the undisclosedincome was nil instead of the figure disclosed earlier. However, theAssessing Officer, after hearing the assessee, did not accept hisversion and came to the conclusion of undisclosed income in hisown way. Therefore, the assessee preferred appeal to the Commissioner of Income Tax (Appeals), who granted part reliefquantifying a sum of Rs.28,52,307/- being undisclosed income. Hefound on fact that the Assessing Officer did not consider the materialevidence produced before him. This fact finding was accepted bythe learned Tribunal. In fact, at the time of hearing of the appealbefore the Tribunal, the Departmental Representative did not pressthe appeal as we notice from the recording of the learned Tribunalas follows: “Therefore considering all these facts, we do not find anyinfirmity in the order of the ld. CIT (A). Even at the time ofhearing before us, the ld. DR was not in a position to assailthe order of the ld. CIT (A) in the context of determination ofundisclosed income.”infirmity in the order of the ld. CIT (A). Even at the time ofhearing before us, the ld. DR was not in a position to assailthe order of the ld. CIT (A) in the context of determination ofundisclosed income.” 4. In view of the aforesaid circumstances, we are unable totouch the judgment and order of the learned Tribunal as practically itwas passed on the consent of the department. 5. Therefore, the appeal is dismissed. The present appealdoes not relate to the determination of the assessee’s appeal by theTribunal. There will be no order as to costs. _________________ K.J. SENGUPTA, CJ Date: 02-08-2013YCR _________________ K.C.BHANU, J