Kundan Lal Narain Dass v. Commissioner Of Income Tax

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH. ITC No.65 of 1998 (O&M) & other connected case beingITC No.66 of 1998(O&M)Date of decision: 7.1.2011 Kundan Lal Narain Dass. -----Applicant. Vs. Commissioner of Income Tax. -----Respondent. CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOELHON'BLE MR. JUSTICE ALOK SINGH Present:-Mr. Akshay Bhan, Advocatefor the petitioner. for the petitioner. Mr. T.K. Joshi, Standing Counselfor the respondent. --- ADARSH KUMAR GOEL, J. 1.This order will dispose of I.T.C. No.65 and 66 of 1998,as both the petitions are stated to be inter-connected. 2. I.T.C. No.65 of 1998 has been preferred by theassessee under Section 256(2) of the Income Tax Act, 1961 (forshort, “the Act”) seeking direction for referring for opinion of thisCourt following questions of law:- (i)Whether in the facts and circumstances of the case,the Income-Tax Appellate Tribunal was justified touphold the addition made on assessment as also theenhancement made in the first appeal altogetherignoring the pleadings supported by paper-book filedexplaining the disbursal of wheat bags received andnoticed by the survey party?the Income-Tax Appellate Tribunal was justified touphold the addition made on assessment as also theenhancement made in the first appeal altogetherignoring the pleadings supported by paper-book filedexplaining the disbursal of wheat bags received andnoticed by the survey party? (ii)Whether in the facts and circumstances of the case,the Income-Tax Appellate Tribunal was justified toadjudicate the appeal entirely relying on pleadings infirst appeal altogether ignoring the facts/figures beforethe Income-Tax Appellate Tribunal was justified toadjudicate the appeal entirely relying on pleadings infirst appeal altogether ignoring the facts/figures before it? (iii)Whether order passed by the Income Tax AppellateTribunal ignoring unassailable evidence on record,constitutes violation of principles of natural justice?Tribunal ignoring unassailable evidence on record,constitutes violation of principles of natural justice? (iv)Whether in the facts and circumstances of the case,finding of the Tribunal could be termed as perverseand conclusion vitiated, having been arrived on thebasis of both relevant and irrelevant materialaltogether ignoring vital material convassed duringhearing proceedings?finding of the Tribunal could be termed as perverseand conclusion vitiated, having been arrived on thebasis of both relevant and irrelevant materialaltogether ignoring vital material convassed duringhearing proceedings? (v)(i)Whether in the facts and circumstances of thecase, the conclusion arrived at by the Income TaxAppellate Tribunal could be rightly termed as perversein as much as the Tribunal having made figures ofwheat arrival as per A.D.E.S.C. register as the basis,failed to adopt figures for outgoings also as per thatvery register, resulting in vitiation of judgment?”case, the conclusion arrived at by the Income TaxAppellate Tribunal could be rightly termed as perversein as much as the Tribunal having made figures ofwheat arrival as per A.D.E.S.C. register as the basis,failed to adopt figures for outgoings also as per thatvery register, resulting in vitiation of judgment?” 3. The assessee is a commission agent. During surveyunder Section 133-A of the Act on 23.6.1987, a comparison wasmade between entries in the record of the assessee and in therecord of the Market Committee and Food and SupplyDepartment. On account of discrepancies noticed, aquestionnaire was issued and on consideration of the matter,additions were made to the income of the assessee and penaltywas also levied. The CIT(A) not only upheld the additions but also made further addition after following due procedure. TheTribunal affirmed the order of the CIT(A). The petitioner,thereafter, sought reference under Section 256(1) of the Act,which has been declined. 3. The assessee is a commission agent. During surveyunder Section 133-A of the Act on 23.6.1987, a comparison wasmade between entries in the record of the assessee and in therecord of the Market Committee and Food and SupplyDepartment. On account of discrepancies noticed, aquestionnaire was issued and on consideration of the matter,additions were made to the income of the assessee and penaltywas also levied. The CIT(A) not only upheld the additions but also made further addition after following due procedure. TheTribunal affirmed the order of the CIT(A). The petitioner,thereafter, sought reference under Section 256(1) of the Act,which has been declined. 4. We have heard learned counsel for the parties. 5. Learned counsel for the petitioner submits thatenhancement of addition was not justified as discrepancies inrecord noticed by the survey party were duly explained. 6. Learned counsel for the revenue submits that noreferable question of law arises in view of concurrent finding offacts recorded by the CIT(A) and the Tribunal. 7. After due consideration of rival submissions, we do not find any merit in these petitions. The CIT(A) held as under:- “2.7. I have considered the rival submissions. Fromthe facts cited above, it is noted that the appellant hadfailed to explain the discrepancy in respect of wheatrecorded in the register of ADFC and the MarketCommittee and that in the heap register. There maybe some discrepancy in the weight when the same isrecorded in the heap register, but the discrepancy inthe present case is so huge that it cannot beexplained away by merely relying upon an extractfrom the Punjab Market Committee. Bye laws in theabsence of any positive evidence with the appellant.As regards the contention of ld. counsel that sixfarmers never unloaded their agril. produce at theshop of the appellant, it is noted that this plea wastaken only after the enhancement notice was issuedand on the last date of hearing i.e. 7.2.1991. Such aplea was never taken before Ld. ITO. Six Affidavits ofsuch farmers are not entertained because theseconstitute additional evidence and has been createdat belated stage to explain away the discrepancy.These six affidavits are self serving statementsbecause it is not understood as to whom the goods ofthese farmers, which had allegedly been notunloaded, were entered by the Market Committee and the DFSO in their respective statutory registers.Further, if any such thing had happened, the samewould have been noted by Ld. ITO because it isnoteworthy that Ld. ITO gave credit for 900 bags,which were returned to the farmers. Accordingly, Ihold that the additions made by the Ld. ITO is justifiedand further the income deserves to be enhanced byan amount of Rs.111020/-. This ground accordinglyfails and further the income is enhanced byRs.111020.” 8. The above observations have been reiterated by theTribunal. The finding concurrently recorded by the CIT(A) and theTribunal is based on appreciation of material on record and is notshown in any manner to be perverse. 9. Accordingly, no referable question of law arises. The petitions are dismissed. A photocopy of this order be placed on the file of other connected case. (ADARSH KUMAR GOEL) JUDGE January 07, 2011ashwani (ALOK SINGH) JUDGE