The Commissioner Of Income Tax-18 v. Ravikant R.saraf

IN THE HIGH COURT OF JUDICATURE AT BOMBAYO. O. C. J. INCOME TAX APPEAL NO.2312 OF 2009 The Commissioner of Income Tax-18....Appellant.Vs.Ravikant R.Saraf....Respondent...... Ravikant R.Saraf....Respondent......Smt.Padma Divakar for the Appellant.Dr.K.Shivram with Mr.Ajay R. Singh and Mr.Sujeeth S. Karkal for the Respondent. ....CORAM : DR. D.Y.CHANDRACHUD & J.P. DEVADHAR, JJ. 12[th] January, 2010. P.C.: The following questions of law have been formulated in the appeal by the revenue against the judgment of the ITAT, dated 6[th] March 2009: “(i) Whether, on the facts and circumstances of the case, the Hon’ble Tribunal, in law, was right in deleting the addition on account of Investment made in flat without considering the fact that the addition was made on the basis of incriminating documents found during the search? -(ii)Whether, on the facts and circumstances of the case, the Hon’ble Tribunal, in law, was right in deleting the estimated addition made on account of commission income without considering the fact that the addition was made on the basis of incriminating documents found during the search? -(iii)Whether, on the facts and circumstances of the case, the Hon’ble Tribunal, in law, was right in deleting the addition on account of repairs to Building without considering the fact that the addition was made on the basis of assessee’s letter admitting that these expenses were made out of the Undisclosed Sources of Income? -(iv)Whether, on the facts and circumstances of the case, the Hon’ble Tribunal, in law, was right in deleting the estimated addition made on account of sale of jewellery disclosed in the VDIS without considering the fact that the assessee failed to provide the genuineness of the transaction and discharged the onus cast on him?” The dispute pertains to the block period 1[st] April 1997 to 13[th] May 2003. 2.The first question relates to the deletion by the Tribunal of an addition on account of an investment made by the assessee in a residential flat. The Tribunal noted that the Assessing Officer and the first Appellate Authority held that the assessee would havepurchased the second floor of the property described as Silver Line building for a value of Rs.18,69,248/-, without any evidence of sale or purchase or for the payment of money. The aforesaid addition was based on the valuation report of the DVO. No material was found during the course of search to indicate that an amount corresponding to the aforesaid addition has been invested by the assessee or by the members of his family. The Tribunal held that the addition was made without any evidence to the effect that the assessee had invested more than what is recorded in the registered documents or that consideration in excess of what was specified in the Sale Deed had been passed on to the seller. The Tribunal has, upon considering the order of the Assessing Officer and CIT(A) held that the addition was made merely on the basis of the presumption and surmises. On this aspect of the matter, we are of the view that the order passed by the Tribunal does not suffer from any error, nor does the appeal raise a substantial question of law on this point. The registered Deed of Conveyance showed that the assessee had paid a sale consideration of Rs.10 lakhs. An addition could not have been made only on the basis of the report of the DVO, in the absence of any material or evidence to indicate that consideration in excess of what is reflected in the Sale Deed had been passed on to the seller. On this aspect of the matter, we are of the view that the order passed by the Tribunal does not suffer from any error, nor does the appeal raise a substantial question of law on this point. The registered Deed of Conveyance showed that the assessee had paid a sale consideration of Rs.10 lakhs. An addition could not have been made only on the basis of the report of the DVO, in the absence of any material or evidence to indicate that consideration in excess of what is reflected in the Sale Deed had been passed on to the seller. 3.The second question relates to the deletion of the addition made on account of undisclosed commission income. The Special Auditor had worked out the commission under Section 142(2A) on the basis of a document found for the period January 2002 to 10[th] May 2003. The Assessing Officer estimated the commission for the remaining period of the block period at Rs.10,81,612/-. The Tribunal held that no addition could be made on the basis of a presumption or estimate in a block assessment since there was no material to sustain such an addition for the remaining period covered by the block assessment. Here again we find that the revenue is unable to demonstrate before this Court any material or evidence that would justify the extrapolation of the figure that was worked out for the period between January 2002 and May 2003 for the remaining period of the block assessment. In the absence of material or evidence, the addition was unwarranted and has been 4.The third question relates to the deletion of an addition made on account of repairs of the building. The Tribunal held that once the income was taxed, the expenditure incurred from and out of the unaccounted income could not be taxed once again. The approach of the Tribunal does not suffer from any infirmity and no substantial question of law arises. 5.The fourth question, it is conceded before the Court by Counsel appearing on behalf of the Revenue, is covered by the judgment of a Division Bench of this Court in Commissioner of Income Tax vs. Uttamchand Jain, (2009) 182 Taxman 243. It is also an admitted position that the VDIS Certificate continues to hold the field. 6.In these circumstances, we do not find any merit in the appeal, nor do we find any substantial question of law. The appeal is accordingly dismissed. ( Dr.D.Y.Chandrachud, J.) ( J.P.Devadhar, J.)