Shri Gurudas Basak, Nadia v. I.T.O. Wd-2, Nadia, Nadia

ITA 1361/KOL/2009 | 2004-2005
Pronouncement Date: 07-05-2010

Appeal Details

RSA Number 136123514 RSA 2009
Bench Kolkata
Appeal Number ITA 1361/KOL/2009
Duration Of Justice 9 month(s) 1 day(s)
Appellant Shri Gurudas Basak, Nadia
Respondent I.T.O. Wd-2, Nadia, Nadia
Appeal Type Income Tax Appeal
Pronouncement Date 07-05-2010
Appeal Filed By Assessee
Bench Allotted SMC
Tribunal Order Date 07-05-2010
Assessment Year 2004-2005
Appeal Filed On 05-08-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : KOLKATA [BEFORE HONBLE SRI D. K. TYAGI JM & HONBLE SRI B . C. MEENA AM] I.T.A. NO.1361/KOL/2009 ASSESSMENT YEAR: 2004-05 SHRI GURUDAS BASAK -VS- INCOME-TAX OFFICER WD- 2 NADIA (PA NO.ADXPB 7598 M) (APPELLANT) (RESPONDENT) APPELLANT BY : SRI B. CHAKRABORTY RESPONDENT BY : SRI O. P. AGARWAL O R D E R PER D. K. TYAGI JM: THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF THE LD. CIT(A) KOLKATA DATED 28.04.2009 FOR ASSESSMENT YEA R 2004-05 ON THE GROUNDS OF CONFIRMING THE ADDITION OF RS.1 43 833/- ON ACCOUNT OF UNEXPLAINED INVESTMENT IN HOUSE PROPERTY BY INVOKING THE PROVISIONS OF SECTION 69 READ WITH SECTION 142A OF THE I. T. ACT 1961 AND ALSO AGAINST CHARGING OF INTEREST U/S . 234B OF THE I. T. ACT. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S CONSTRUCTED A HOUSE PROPERTY DURING THE YEAR 2001-02 TO 2003-04 AT NO. 63J MAHA NIRBAN ROAD KOLKATA-29 WITH A TOTAL INVESTMENT OF RS.36 74 056/-. ON REFERENCE F ROM THE AO THE DVO HAS ESTIMATED THE COST OF CONSTRUCTION AT RS.37 25 000/-. THE A O HAS NOTED THE DIFFERENCE IN THE INVESTMENT FOR THE YEAR 2003-04 BETWEEN THE DVOS ESTIMATE AND THE ASSESSEES BOOKS OF ACCOUNTS AT RS.1 43 833/- AND TREATED THE AFORES AID AMOUNT AS UNEXPLAINED INVESTMENT U/S. 69 OF THE I. T. ACT. ON APPEAL THE LD. CIT(A ) CONFIRMED THIS ACTION OF THE AO. AGGRIEVED BY THE SAID ORDER NOW THE ASSESSEE IS IN APPEAL BEFORE US. 3. AT THE TIME OF HEARING BEFORE US THE LD. COUNSE L FOR THE ASSESSEE WHILE REITERATING HIS SAME SUBMISSIONS AS SUBMITTED BEFOR E THE LOWER AUTHORITIES FURTHER SUBMITTED THAT THE ASSESSEE CONSTRUCTED A HOUSE PRO PERTY AT 63J MAHANIRVAN ROAD KOLKATA-700 029 BY DEMOLISHING THE ORIGINAL DILAPID ATED STRUCTURE. FOR THIS HE HAD SHOWN A TOTAL INVESTMENT OF RS.36 74 056/- WHICH HA D BEEN CLAIMED TO HAVE BEEN SPENT DURING THREE FINANCIAL YEARS I.E. FY 2001-02 RS.66 056/- 2002-03 RS.15 30 000/- AND 2003-04 RS.20 78 000/-. THE ASSESSEE ALSO GOT THE COST OF CONSTRUCTION OF THE SAID PROPERTY ESTIMATED BY AN APPROVED VALUER WHO ESTIMA TED IT AT RS.36 86 000/-. FOR ESTIMATION OF COST OF CONSTRUCTION AND YEAR WISE BR EAK UP THEREOF THE CASE WAS REFERRED TO THE DISTRICT VALUATION OFFICER U/S. 131(1) (D) A ND 142A OF THE I. T. ACT AND AS PER HIS 2 REPORT THE COST OF CONSTRUCTION WAS RS.37 25 000/- AND THERE WAS DIFFERENCE IN THE TOTAL COST OF CONSTRUCTION OVER THREE YEARS BUT FOR THE F Y 2003-04 RELEVANT TO ASSESSMENT YEAR 2004-05 THE DIFFERENCE WAS RS.1 43 833/-. THOUGH T HE LOWER AUTHORITIES IGNORED THE FIRST TWO YEARS DIFFERENCE BUT THE AO TREATED THE SUM OF RS. 1 43 833/- AS UNEXPLAINED INVESTMENT U/S. 69 OF THE I. T. ACT DURING THE YEAR UNDER APPEAL AND ON APPEAL THE LD. CIT(A) ALSO CONFIRMED THIS ACTION OF THE AO. HE LA STLY SUBMITTED THAT THE ADDITION CONFIRMED BY THE LD. CIT(A) IS UNJUSTIFIED ILLEGAL AND ARBITRARY AND THE SAME SHOULD BE DELETED IN FULL. 4. ON THE OTHER HAND THE LD. DR RELIED ON THE ORDE RS OF THE LOWER AUTHORITIES. 5. AFTER HEARING THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSING THE MATERIAL AVAILABLE ON RECORD WE FIND THAT THE ASSESSEE SHOWED A TOTAL INVESTMENT IN HOUSE PROPERTY OF RS.36 74 056/-. THE ASSESEE GOT THE COST OF CONSTR UCTION OF THE SAID PROPERTY ESTIMATED BY AN APPROVED VALUER WHO ESTIMATED IT AT RS.36 86 000/-. FOR ESTIMATION OF COST OF CONSTRUCTION THE CASE WAS REFERRED TO THE DIST. VA LUATION OFFICER AND AS PER HIS REPORT THERE WAS DIFFERENCE IN FY 2001-02 RS.8489/- 2002- 03 RS.84 400/- AND 2003-04 RS.1 43 833/-. THE REVENUE AUTHORITIES IGNORED THE FIRST TWO YEARS DIFFERENCE BUT ADDED THE SUM OF RS.1 43 833/- AS UNDISCLOSED INVESTMENT IN THE HOUSE PROPERTY U/S. 69 OF THE I. T. ACT DURING THE YEAR UNDER APPEAL. SINCE THE ULTIMATE DIFFERENCE BETWEEN THE COST OF CONSTRUCTION IN THE HOUSE PROPERTY SHOWN BY THE ASSESSEE AND THE ESTIMATED VALUE OF THE PROPERTY MADE BY THE VALUATION CELL WAS MARGINA L THE SAME SHOULD HAVE BEEN IGNORED AS IT WORKS OUT TO ABOUT 1.4%. IN VIEW OF THIS WE ARE OF THE CONSIDERED OPINION THAT IT IS NOT A FIT CASE IN WHICH ANY ADDITION IS CALLED FOR DUE TO DIFFERENCE IN COST OF CONSTRUCTION AS SHOWN BY THE ASSESSEE AND THE ESTIM ATED COST OF THE PROPERTY BY THE VALUATION CELL. THEREFORE THE ADDITION SO MADE BY THE AO AND SUSTAINED BY THE LD. CIT(A) IS HEREBY DELETED. THE APPEAL OF THE ASSESS EE IS THEREFORE ALLOWED. 6. THE GROUND FOR CHARGING INTEREST U/S. 234B BEING CONSEQUENTIAL IN NATURE DOES NOT REQUIRE ANY ADJUDICATION. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS AL LOWED. 8. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 7.5 .2010 SD/- SD/- (B. C. MEENA) (D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 7TH MAY 2010 3 COPY TO : 1. SHRI GURUDAS BASAK SHYAMSUNDAR PARA P.O & P.S. RA NAGHAT DIST. NADIA. 2. ITO WARD-2 NADIA 3. CIT(A) KOLKATA. 4. CIT KOLKATA. 5. D.R. ITAT KOLKATA. TRUE COPY BY ORDER DEPUTY REGISTRAR JD.(SR.P.S.) I.T.AT. KOLKATA