Txa/16/2017 Of The Principal Commissioner Of Income Tax, Panaji v. Shri. Prakash Kittur

Amrut IN THE HIGH COURT OF BOMBAY AT GOA TAX APPEAL NO.16 OF 2017 The Principal Commissioner of Income Tax, … AppellantPanajiVersusPrakash Kittur…Respondent Ms S Linhares, Advocate for the Appellant. Shri N Sardessai, Senior Advocate with Ms G Kamat, Advocate for the Respondent. PC:- CORAM:G.S. PATEL & NUTAN D. SARDESSAI, JJDATED:20th September 2017 1.We are unable to discern any substantial question of lawamong those proposed in paragraph 6: (A)Whether Hon’ble ITAT was right in allowing relief onestimation basis as the assessee could not produce anydocuments which has evidentiary value against theinvestment made and allowing further relief ofRs.10,43,000/- to the assessee relying on a hypotheticalpresentation of cash balance of the assesee. (B)The Hon’ble ITAT while allowing expenditure onconstruction and land cost of Rs.1,51,82,300/- hasoverlooked the fact that no supporting evidence in respectof the expenses has been furnished by the assessee. (C)The Hon’ble ITAT has erred in allowing relief onestimate base whereas the assessee has not maintainedproper books of accounts and the assessee is not able toprove that the payment made are exclusively for expensesonly. In absence of the documentary evidence the additionmade by ld. AO ought to have been confirmed by theHon’ble ITAT. 2.For the reasons we will briefly indicate we do not believe thatany of these could legitimately be considered questions of law letalone substantial ones. 3.The assessee, the father of the present Respondent, was a realestate agent. The appeal is directed against an order dated 9thAugust 2016 of the Income Tax Appellate Tribunal, Panaji bench.This was in respect of two Assessment Years 2006-07 and 2007-08.It seems that a search and seizure was conducted on 16th April 2010under Section 132(1) of the Income Tax Act. Some material wasfound relating to the assessee and this, according to the Revenueshowed a nexus between the assessee and his son, the presentRespondent. 4.A notice under Section 153C of the Income Tax Act dated21st November 2012 was issued and served. The assessee,Venkaraddi Kittur filed a nil return. Notices under Sections 142(1)and 143(2) dated 18th February 2013 followed. The assesseeappeared. Several hearings were held. The Assessing Officer by hisorder dated 30th March 2013 made additions for unexplainedinvestments under Section 69 to the extent of Rs.25,43,300/- andadded sale proceeds of land and building of Rs.1,70,00,000/-. The assessee appealed. The Commissioner of Income Tax on 23rdFebruary 2016 allowed the appeal in part. Aggrieved, the Revenueappealed to the ITAT, which dismissed the Revenue’s appeal on 9thAugust 2016. This is the order impugned. 4.A notice under Section 153C of the Income Tax Act dated21st November 2012 was issued and served. The assessee,Venkaraddi Kittur filed a nil return. Notices under Sections 142(1)and 143(2) dated 18th February 2013 followed. The assesseeappeared. Several hearings were held. The Assessing Officer by hisorder dated 30th March 2013 made additions for unexplainedinvestments under Section 69 to the extent of Rs.25,43,300/- andadded sale proceeds of land and building of Rs.1,70,00,000/-. The assessee appealed. The Commissioner of Income Tax on 23rdFebruary 2016 allowed the appeal in part. Aggrieved, the Revenueappealed to the ITAT, which dismissed the Revenue’s appeal on 9thAugust 2016. This is the order impugned. 5.We have considered the impugned order which is from page33 onwards. What was before the ITAT was the appeal of theRevenue and a cross appeal by the assessee. The Revenuechallenged the action of the CIT in reducing the addition made bythe AO on account of unexplained investments and this resulted inassessee relief of Rs.15,00,000/-. The bench noted that while in thesearch and seizure, it was found that the assessee had purchased theproperty of about 1780 square metres at Calangute for a totalconsideration of Rs.25,43,000/- but without maintaining properaccounts, the Commissioner took into account that the assessee wasan employee of the Government of Karnataka from 1954 to 1993 andreceived retirement and pensionary benefits thereafter. ThisCommissioner estimated the availed funds likely to have beenavailable with the assessee as a result of Rs.15,00,000/-. In appealthe Revenue said there was no proof. The Bench found that theCommissioner had followed well-settled principles. In regard tonon-proving of expenditure, the Commissioner found that alltransactions were banked. The ITAT held that the Revenue inappeal was unable to dislodge the findings that the so-called assetsin the hands of the assessee were agricultural land and not capitalassets. It also found that there were known sources of income andthese were for specific purposes where the assessee had functionedas a contractor or mediator on behalf of or at the request of twocommercial entities. Having taken into account the actual status of the accounts, records, bills and vouchers, the ITAT came to theconclusion that the appeal of the Revenue called for no interference. 6.We are unable to see any infirmity in the order of the ITATand certainly we are unable to see how it raises any question of lawat all. This is not a matter of a complete misappreciation of therecords or evidence. The Commissioner in the appeal before himtook a view. The ITAT held that view to be plausible. It noted noperversity. We find no perversity either in the order of the ITAT.Certainly it cannot be said that on these facts it was not possible forany body, authority or Tribunal to come to the conclusion to whichthe ITAT did. 7.The appeal is dismissed. There will be no order as to costs. NUTAN D. SARDESSAI J. G. S. PATEL J.