Sri Manohar Lal Kalra v. Commissioner Of Income Tax And Another. ………

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Income Tax Appeal No. 33 of 2011 Sri Manohar Lal Kalra ……….Appellant. Versus Commissioner of Income Tax and another. ……… Respondents Mr. S.K. Posti, Advocate for the appellant. Mr. Hari Mohan Bhatia, Advocate for the respondents. Coram : Hon’ble Barin Ghosh, C. J.Hon’ble U.C. Dhyani, J. Barin Ghosh, C.J. (Oral) There is two days’ delay in preferring the appeal. We have considered the application made for condonation of delay and also the objection filed thereto and, being satisfied with the reasons for the delay, allow the application (CLMA No. 12935 of 2011) and, thereby, condone the delay in preferring the appeal 2. In 2003, there was an operation under Section 133 A of the Income Tax Act (hereinafter referred to as ‘the Act’) at the premises of the appellant. In course thereof, certain papers were seized. There were certain entries on Page 172 in the handwriting of the appellant. Certain truck numbers were written on the said page and, thereupon, certain figures were written. At the time of conducting the operation, assessee recorded his statement. While recording such statement, assessee explained the truck numbers and the figures written thereupon. He did not explain the other entries, which were recorded by him at Page 172 of the seized papers. Subsequent thereto, assessee filed his returns for the assessment year 2004-05. Since survey under Section 133 A of the Act was conducted, the assessment was done under Section 143 (3) of the Act. At this stage, assessee did not add any further explanation pertaining to the entries made on that page. On the basis of the unexplained entries made on the said page, certain additions were made by the Assessing Authority. Against those additions, an appeal was preferred before the Appellate Commissioner. At the appellate stage, assessee purported to explain the remaining entries on the said page. Those were accepted by the Appellate Commissioner. He held that those entries do not relate to the appellant. He, accordingly, granted relief as was prayed for by the appellant. Aggrieved thereby, the revenue went before the Tribunal. The Tribunal found that when those entries were not explained at the time of survey and were also not explained at the time of assessment, the explanation purportedly given before the Appellate Commissioner is required to be given to the Assessing Officer in order to enable the Assessing Officer to find out, whether the explanations are worthwhile or not? Aggrieved thereby, the present appeal has been preferred, where it has been contended that when all the records were available, it was obligatory on the part of the Tribunal to take a view one way or the other and not to remitted back the matter to the Assessing Officer. It is settled law that if all the materials are on record, it is a requirement of law that the matter must be decided by the Authority competent to decide the same and it is not correct to remand the matter back. An explanation, unless a suitable opportunity is given to verify the same, cannot be treated as a material brought on record. An explanation pertaining to an entry made by the appellant ought to have had been explained at the time the survey was conducted. He having had not done so, it was his obligation to explain the same to the Assessing Officer. He did not do so. He purported to give explanation before the first Appellate Authority thereby preventing the Assessing Officer to satisfy himself that the explanation is worthwhile. Therefore, the Tribunal was constrained to remit back the matter for re-assessment. 3. We find no reason to interfere with the order of the Tribunal. The appeal fails and the same is dismissed. (U.C. Dhyani, J.) (Barin Ghosh, C.J.) 20.11.2012 20.11.2012 Rathour