DCIT Cen,Cir.1(1), Pune, v. Smt. Khadeeja Rashid,

ITA 612/PUN/2004 | misc
Pronouncement Date: 31-03-2011 | Result: Dismissed

Appeal Details

RSA Number 61224514 RSA 2004
Bench Pune
Appeal Number ITA 612/PUN/2004
Duration Of Justice 6 year(s) 11 month(s) 7 day(s)
Appellant DCIT Cen,Cir.1(1), Pune,
Respondent Smt. Khadeeja Rashid,
Appeal Type Income Tax Appeal
Pronouncement Date 31-03-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 31-03-2011
Assessment Year misc
Appeal Filed On 23-04-2004
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI I C SUDHIR JUDICIAL MEMBER AND SHRI G.S. PANNU ACCOUNTANT MEMBER SL. NO. ITA NO. ASSTT. YEAR APPELLANT RESPONDENT 1. 612/PN/04 1992-93 TO 2002- 03 DY. COMMISSIONER OF INCOME-TAX CEN.CIR.1(1) PUNE SMT KHADEEJA RASHID 501/502 CORPORATE PLAZA SENAPATI BAPAT ROAD SHIVAJINAGAR PUNE 2. 695/PN/04 1992-93 TO 2002- 03 K.M.A. RASHEED ALIAS MALIK PUNE ASSTT. CIT CEN. CIR.1(1) PUNE 3. 615/PN/04 1992-93 TO 2002- 03 DY.COMMISSIONER OF IT CEN.CIR.1(1) PUNE K.M.A. RASHEED ALIAS MALIK PUNE ASSESSEE BY : SHRI NIKHIL PATHAK DEPARTMENT BY : SHRI A.S SINGH ORDER PER G.S. PANNU AM THE ABOVE THREE CAPTIONED APPEALS TWO BY THE REVE NUE AND ONE BY ASSESSEE ARE CONNECTED APPEALS AND THEREFORE THE Y WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY A COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. WE SHALL FIRST TAKE UP REVENUES APPEAL IN THE C ASE OF SHRI K.M.A. RASHID ALIAS MALIK VIDE ITA NO 615/PN/04 WHICH IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-I PUNE DATED 2.1.2004 WHICH IN TURN HAS ARISEN FROM THE ORDER DATED 29.4. 2003 PASSED BY THE ASSESSING OFFICER UNDER SECTION 158BC(C) OF THE INC OME-TAX ACT 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEA RS 1992-93 TO 2002-03. THE SOLITARY ISSUE RAISED IN THIS APPEAL RELATES TO THE DELETION OF ADDITION OF RS 30 57 000/- MADE ON THE BILLS FOUND DURING SEA RCH OPERATION INDICATING EXPENSES INCURRED BY ASSESSEE ON A BUNGALOW CONSTRU CTED IN KERALA. 3. THE ASSESSEE IS THE MANAGING DIRECTOR OF THE COM PANY M/S SAIRUNG DEVELOPERS AND PROMOTERS (P) LTD. ENGAGED IN THE B USINESS OF LAND DEVELOPMENT AND TRADING. ASSESSEE IS ALSO SOLE PRO PRIETOR OF M/S SAIRANG ITA NO 612 615 695/PN/04 K. M. A. RASHID ALIAS MALIK &OR. 2 DEVELOPERS WHICH ALSO CARRIES ON BUSINESS OF LAND DEVELOPMENT. A SEARCH ACTION UNDER SECTION 132 OF THE ACT WAS CARRIED OUT ON 11.4.2001 IN THE BUSINESS PREMISES OF THE ASSESSEE AS WELL AS THE CO MPANY. CERTAIN INCRIMINATING DOCUMENTS INDICATING INVESTMENT IN A BUNGALOW WERE FOUND DURING THE SEARCH IN THE ASSESSEES CASE. IN THE BL OCK RETURN FOR THE PERIOD RELEVANT TO ASSESSMENT YEAR 1992-93 TO 2002-03 ASS ESSEE FILED A RETURN DECLARING UNDISCLOSED INCOME OF RS 30 85 000/-. IT WAS SUBMITTED BY THE ASSESSEE THAT HE VOLUNTARILY DISCLOSED THE ADDITION AL INCOME OF RS 30 85 000/- TO COVER THE ERRORS AND OMISSIONS/DISCR EPANCIES IF ANY IN HIS CASE AS WELL AS IN THE CASE OF HIS WIFE MRS KHADEE JA RASHID. THE ASSESSING OFFICER PASSED AN ORDER UNDER SECTION 158BC(C) OF T HE ACT DETERMINING UNDISCLOSED INCOME AT RS 61 42 000/- WHICH INCLUDED AN ADDITION OF RS 30 57 000/- MADE ON ACCOUNT OF INVESTMENT IN CONSTR UCTION OF A BUNGALOW IN KERALA .ACCORDING TO THE ASSESSING OFFICER THE ASS ESSEE HAD CONSTRUCTED A BUNGALOW AT KERALA AND DISCLOSED RS 9 92 000/- OVER AND ABOVE RS 23 34 879/- DISCLOSED IN THE BALANCE SHEET. IT IS S TATED IN THE ASSESSMENT ORDER THAT DURING THE COURSE OF SEARCH AT RAGDARI A PARTMENT PUNE CERTAIN LOOSE PAPERS RELATING TO INVESTMENT IN THE BUNGALOW WERE SEIZED AND INVENTORIZED AS BUNDLE NO. 1 WHICH INDICATED EXPEN SES OF RS 30.57 LAKHS ON CARPENTRY WORK AND PAINTING. BEFORE THE ASSESSING O FFICER ASSESSEE EXPLAINED THAT RS 23 34 879/- WAS APPEARING IN THE BOOKS OF ACCOUNT AND HE HAD DISCLOSED RS 9 92 000/- IN THE BLOCK RETURN AND AS SUCH THE TOTAL INVESTMENT IN CONSTRUCTION OF BUNGALOW WAS RS 33 26 879/-. ASSESSEE ALSO FILED A VALUATION REPORT SHOWING THE VALUE OF THE B UNGALOW AT RS 29 47 330/-. IT WAS ALSO EXPLAINED THE SEIZED LOOSE PAPERS WERE MERELY QUOTATIONS OBTAINED FROM ONE SHRI B P LUNJA OF PUNE FOR THE CA RPENTRY AND PAINTING WORK FOR THE PROPOSED BUNGALOW AT KERALA AND NOT THE ACT UAL EXPENDITURE. DUE TO THE EXORBITANT RATES QUOTED BY THE CARPENTER ASSES SEE DID NOT GET THE WORK DONE FROM THE SAID CARPENTER AND INSTEAD THE SAID W ORK WAS DONE BY SHRI S ITA NO 612 615 695/PN/04 K. M. A. RASHID ALIAS MALIK &OR. 3 AJAYKUMAR AT A COST OF RS 4 23 600/- AND THE APPRO VED VALUER HAD ESTIMATED THE INTERIOR COST TO BE RS 5 97 570/-. REJECTING TH E CONTENTIONS OF THE ASSESSEE THE ASSESSING OFFICER HELD THAT THE EXPEN DITURE REFLECTED IN PAPERS SEIZED HAVE NOT BEEN ACCOUNTED FOR BY THE ASSESSEE AND AS SUCH TREATED THE INVESTMENT OF RS 30 57 000/- AS UNDISCLOSED INCOME UNDER SECTION 69 OF THE ACT. 4. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS) AND FILED DETAILED WRITTEN SUBMISSIONS. IT WAS SUBMITTED THAT THE LOOSE PAPERS ON THE BASIS OF WHI CH THE IMPUGNED ADDITION WAS MADE WERE MERELY QUOTATIONS GIVEN BY SHRI B. P. LUNJA PUNE WHO IN HIS AFFIDAVIT HAS AFFIRMED ON OATH THAT HE DID NOT CARRY OUT ANY CARPENTRY AND PAINTING WORK FOR ASSESSEES BUNGALOW IN KERALA. IN SUPPORT OF THE CONTENTION THAT NO ADDITION COULD HAVE BEEN MADE ON THE BASIS OF LOOSE PAPERS WHICH DID NOT INDICATE ANY DETAILS OF PAYMENTS MADE AND T HE CONTENTS OF WHICH WERE DENIED BY THE PAYER AND PAYEE RELIANCE WAS PL ACED ON CERTAIN CASE LAW. AFTER DISCUSSING THE FACTS OF THE CASE IN DETA IL AND CONSIDERING THE EXHAUSTIVE SUBMISSIONS MADE BY THE ASSESSEE THE CO MMISSIONER OF INCOME-TAX (APPEALS) OBSERVED THAT THE AFFIDAVIT OF SHRI B. P. LUNJA WAS REQUIRED TO BE PROPERLY AND THOROUGHLY INVESTIGATED IN THE LIGHT OF THE FACTS OF THE CASE AND THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF AMARJIT SINGH BAKSHI (HUF) V ACIT (3 RD MEMBER) 263 ITR 75 (AT). THE COMMISSIONER OF INCOME-TAX (APPEALS) HELD THAT IN V IEW OF THE VARIOUS ASPECTS OF THE CASE AND LEGAL POSITION THE ASSESSI NG OFFICER HAS NOT BEEN ABLE TO GET CORROBORATIVE EVIDENCE WITH REGARD TO T HE UNSIGNED SEIZED PAPERS FOUND AT THE TIME OF SEARCH; THAT THE ASSESSING OFF ICER DID NOT MAKE ANY INDEPENDENT ENQUIRIES TO FIND OUT THE TOTAL INVESTM ENT IN THE PROPERTY FOR WHICH AN ADDITION ON THE BASIS OF SEIZED PAPERS MAD E. IN THE OPINION OF THE COMMISSIONER OF INCOME-TAX (APPEALS) IN VIEW OF T HE FACT THAT THE ASSESSEE HAD GIVEN INFORMATION ABOUT THE BUNGALOW IN THE RET URN AND THE ASSESSING ITA NO 612 615 695/PN/04 K. M. A. RASHID ALIAS MALIK &OR. 4 OFFICER ALSO ADMITTED IN PARA 10.3 OF THE ASSESSMEN T ORDER THAT INVESTMENT OF RS 23 34 879/- STOOD RECORDED IN THE ACCOUNT BOOKS OF ASSESSEE AND THAT ASSESSEE HAD ALSO FILED A VALUATION REPORT AND IN VIEW OF THE SETTLED LEGAL POSITION THE ASSESSING OFFICER WAS NOT JUSTIFIED I N MAKING THE ADDITION OF RS 30 57 000/-. HE ACCORDINGLY DIRECTED DELETION OF T HE ADDITION OF RS 30 57 000/- AGAINST WHICH REVENUE IS IN APPEAL BEFO RE US. 5. BEFORE US THE LEARNED DEPARTMENTAL REPRESENTATI VE ASSAILED THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) D ELETING THE ADDITION OF RS 30 57 000/- BY POINTING OUT THAT THE MATERIAL FO UND DURING THE COURSE OF SEARCH INDICATED EXPENSES INCURRED ON THE CONSTRUCT ION OF BUNGALOW IN KERALA AND THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS WRONGLY DELETED THE ADDITION. IT HAS BEEN POINTED OUT THAT THE LOOS E PAPERS WERE FOUND WHICH WERE BILLS ISSUED BY SHRI B P LUNJA A CARPENTER OF PUNE. ACCORDING TO THE LEARNED DEPARTMENTAL REPRESENTATIVE THE AFFIDAVIT OF SHRI B P LUNJA AND THE EXPLANATIONS OF THE ASSESSEE HAVE BEEN WRONGLY APPR ECIATED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) IN ORDER TO DE LETE THE ADDITION. IN THIS MANNER THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS BEEN SOUGHT TO BE ASSAILED. 6. ON THE OTHER HAND THE LEARNED COUNSEL FOR THE R ESPONDENT-ASSESSEE VEHEMENTLY SUBMITTED THAT THE LOOSE PAPERS REFERRED TO AND RELIED UPON BY THE ASSESSING OFFICER ARE NOT EVEN SIGNED BY THE CA RPENTER IN QUESTION AND THE SAME WERE MERE QUOTATIONS SUBMITTED BY THE EMPL OYEES OF THE SAID CARPENTER. SINCE THE QUOTATIONS WERE FOUND TO BE HI GH NO WORK WAS ASSIGNED AND IN THIS REGARD EVEN THE AFFIDAVIT OF SAID CARP ENTER SHRI LUNJA HAS BEEN FURNISHED. IT WAS ALSO POINTED OUT THAT THE WORK WA S CARRIED OUT THROUGH SHRI MOHAMMED ASHRAF ALI CIVIL CONTRACTOR AND THROUGH S HRI AJAYKUMAR INTERIOR DESIGNER WHO ALSO FURNISHED AFFIDAVITS STATING THA T THE WORK OF CIVIL CONSTRUCTION AND INTERIOR DESIGNING RESPECTIVELY WE RE CARRIED OUT BY THEM. ALL THESE AFFIDAVITS HAVE NOT BEEN CONTROVERTED BY THE ASSESSING OFFICER ON THE ITA NO 612 615 695/PN/04 K. M. A. RASHID ALIAS MALIK &OR. 5 BASIS OF ANY EVIDENCE AND THE COMMISSIONER OF INCOM E-TAX (APPEALS) HAS THEREFORE RIGHTLY DELETED THE ADDITION. ACCORDINGLY THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) IS SOUGHT TO B E DEFENDED. 7. HAVING CONSIDERED THE RIVAL SUBMISSIONS WE FIND THAT IN THIS CASE THE ASSESSING OFFICER HAS NOT BROUGHT ON RECORD ANY COR ROBORATIVE EVIDENCE TO SUGGEST THAT THE LOOSE PAPERS SEIZED DURING THE COU RSE OF SEARCH INDICATED ANY EXPENDITURE ACTUALLY INCURRED BY THE ASSESSEE O N CONSTRUCTION OF THE BUNGALOW AT KERALA OVER AND ABOVE THE AMOUNT DECLAR ED BY THE ASSESSEE. IN FACT THE CREDIBILITY OF THE LOOSE PAPERS WHICH AR E CLAIMED TO BE BILLS RAISED BY THE CARPENTER HAVE NOT BEEN ESTABLISHED BY THE REV ENUE. THE ASSESSEE HAS CLEARLY EXPLAINED THAT THE SAID BILLS WERE IN FACT QUOTATIONS PREPARED BY THE EMPLOYEES OF SHRI LUNJA A CARPENTER OF PUNE AND TH E SAME WERE NOT EVEN SIGNED. THE COMMISSIONER OF INCOME-TAX (APPEALS) HA S NOTICED THAT EVEN IN THE COURSE OF THE STATEMENT RECORDED AT THE TIME OF SEARCH THE ASSESSEE HAD EXPLAINED THAT THE SAME WERE MERELY QUOTATIONS AND NOT BILLS. FURTHER THE ASSESSEE ALSO FURNISHED AN AFFIDAVIT DATED 4.6.2001 GIVEN BY THE SAID SHRI LUNJA RATIFYING THAT HE HAD NOT CARRIED OUT ANY SUC H WORK FOR THE KERALA BUNGALOW OF THE ASSESSEE. DURING THE ASSESSMENT PRO CEEDINGS THE ASSESSEE ALSO FURNISHED AFFIDAVITS OF THE CIVIL CON TRACTOR AND THE INTERIOR DESIGNER WHO AVERRED THAT NECESSARY WORK WAS CARRIE D OUT BY THEM FOR THE CONSIDERATION STATED BY THE ASSESSEE. ALL THIS MATE RIAL HAS BEEN CONSIDERED Y THE COMMISSIONER OF INCOME-TAX (APPEALS) IN ORDER T O DELETE THE ADDITION. QUITE CLEARLY NONE OF THE AFORESAID EVIDENCES PUT-F ORTH BY THE ASSESSEE HAVE BEEN SHOWN TO BE UNRELIABLE OR DEVOID OF AUTHENTICI TY. THE FINDINGS OF THE COMMISSIONER OF INCOME-TAX (APPEALS) IS TO THE EFFE CT THAT IN THE FACE OF THE EVIDENCE PUT-FORTH BY THE ASSESSEE THERE WAS NOTHI NG TO CORROBORATE THE INTERPRETATION PLACED BY THE ASSESSING OFFICER ON T HE SEIZED MATERIAL. IN THIS MANNER CONSIDERING THE ENTIRETY OF FACTS AND CIRCU MSTANCES OF THE CASE WE ARE INCLINED TO UPHOLD THE STAND OF THE COMMISSIONE R OF INCOME-TAX ITA NO 612 615 695/PN/04 K. M. A. RASHID ALIAS MALIK &OR. 6 (APPEALS) AS MANIFESTED IN PARAGRAPH 3.6 OF THE IMP UGNED ORDER WHICH IS AS UNDER: 3.6. IN VIEW OF THE AFORESAID DISCUSSION ON VARIOU S ASPECTS OF THE ISSUES INVOLVED IT HAS TO BE HELD THAT THE AO HAS NOT BEEN ABLE TO GET CORROBORATIVE EVIDENCE WITH REGARD TO THE UNSIGNED SEIZED PAPER FOND AT THE TIM E OF SEARCH. NOT ONLY THIS THE AO HAS NOT BEEN ABLE TO EVEN MAKE ANY INDEPENDENT E NQUIRIES ABOUT THE TOTAL INVESTMENT IN THE PROPERTY FOR WHICH AN ADDITION ON THE BASIS OF SEIZED PAPERS WAS REQUIRED TO BE MADE. IT IS ALSO TO BE NOTED THAT IN FORMATION OF BUNGALOW HAS BEEN SHOWN BY THE APPELLANT IN THE RETURNS AND THE AO HA S ADMITTED IN PARA 10.3 OF THE ASSESSMENT ORDER THAT INVESTMENT OF RS 23 34 879/- HAS BEEN FOUND RECORDED IN THE BOOKS OF THE APPELLANT AND THAT HE HAS ALSO FILED A VALUATION REPORT. IN SUCH A SITUATION WHILE IT WOULD NOT BE POSSIBLE IN VIEW OF THE SETTLED LEGAL POSITION IN THIS REGARD TO SUSTAIN THE ADDITION OF RS 30 57 000/- A S SUCH ACCORDINGLY THE ORDER OF THE COMMISSIONER OF INCOM E-TAX (APPEALS) DELEING THE ADDITION OF RS 30 57 000/- IS AFFIRMED. THIS G ROUND OF APPEAL OF THE REVENUE IS DISMISSED. 8. IN THE RESULT THE APPEAL OF THE REVENUE IN ITA NO 615/PN/04 IS DISMISSED. 9. NOW WE TAKE UP CROSS-APPEAL OF THE ASSESSEE VID E ITA NO 695/PN/04. 10. IN THE FIRST GROUND THE ASSESSEE CONTENDS THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN CONFIRMING AN ADDITIO N OF RS 1 40 922/- OUT OF A SUM OF RS 9 32 565/- WHICH WAS ADDED IN THE HAND S OF THE ASSESSEE REPRESENTING CASH DEPOSITS MADE IN THE BANK ACCOUNT OF HIS WIFE SMT KHADEEJA RASHID. THE LIMITED PLEA OF THE ASSESSEE I S THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN NOT APPRECIATING T HAT THE FOLLOWING AMOUNTS FOR ASSESSMENT YEARS 1999-2000 AND 2000-01 HAVE ALR EADY BEEN OFFERED BY THE ASSESSEE AS UNDISCLOSED INCOME IN HIS RETURN OF INCOME REPRESENTED BY THE BUSINESS CARRIED OUT IN THE NAME OF HIS WIFE: ASSTT. YEAR AMOUNT 1999-2000 RS 36 000/- (OUT OF CASH DEPOSITS OF RS 55 271/-) 2000-2001 RS 46 000/- (OUT OF CASH DEPOSITS OF RS 256 541/-) ITA NO 612 615 695/PN/04 K. M. A. RASHID ALIAS MALIK &OR. 7 THE BRIEF BACKGROUND IS THAT ASSESSEE IS STATED TO CARRY ON BUSINESS OF LAND DEVELOPMENT IN THE NAME OF HIS WIFE AND HAD INVESTE D HIS OWN FUNDS IN SUCH BUSINESS. A BANK ACCOUNT WITH VIJAYA BANK NELLAYA BRANCH IN KERALA MAINTAINED IN THE NAME OF HIS WIFE WAS ALSO CLAIMED TO HAVE BEEN USED FOR SUCH BUSINESS BY THE ASSESSEE. THE DEPOSITS MADE I N SUCH ACCOUNT AMOUNTING TO RS 9 32 565/- FOR BLOCK PERIOD WERE CO NSIDERED AS UNEXPLAINED AND ADDITION WAS MADE IN THE HANDS OF THE WIFE OF T HE ASSESSEE SMT KHADEEJA RASHID. HOWEVER THE COMMISSIONER OF INCOM E-TAX (APPEALS) IN THE CASE OF THE WIFE HELD THAT SINCE INCOME FROM S UCH BUSINESS WAS ASSESSED IN THE HANDS OF THE ASSESSEE-HUSBAND ADDI TIONS IN RESPECT OF THE DEPOSITS IN THE BANK ACCOUNT WERE ALSO TO BE CONSID ERED IN THE HANDS OF THE ASSESSEE-HUSBAND. THAT ASPECT IN THE CASE OF SMT KH ADEEJA RASHID IS ALSO A SUBJECT-MATTER OF CONSIDERATION BEFORE US VIDE I TA NO 612/PN/04. IN THIS BACKGROUND BOTH THE APPEALS ARE BEING TAKEN UP TOG ETHER. 11. IN SO FAR AS THE STAND OF THE COMMISSIONER OF I NCOME-TAX (APPEALS) THAT ADDITION ON ACCOUNT OF UNEXPLAINED DEPOSITS IN THE BANK ACCOUNT OF THE WIFE IS TO BE CONSIDERED IN THE HANDS OF THE ASSESS EE-HUSBAND WE FIND AMPLE FORCE IN SUCH PROPOSITION. FOLLOWING PARAGRAP H IN THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) IN THE CASE OF SMT KHADEEJA RASHID (SUPRA) IS WORTHY OF NOTICE: 4. I HAVE CONSIDERED THE FACTS OF THE CASE SUBMIS SIONS OF THE APPELLANT AND THE POSITION OF AW. I HAVE ALSO GONE THROUGH THE CASE R ECORDS AND THE ORDER SHEET MAINTAINED BY THE AO. THE APPELLANT HAS REQUESTED P ERMISSION UNDER RULE 46A OF THE I.T. RULES 1962 FOR ADMITTING EVIDENCE IN THE FORM OF BILLS AND VOUCHERS FOR THE ALLEGED DEVELOPMENT BUSINESS AT KERALA WHICH IS STA TED TO HAVE BEEN CONDUCTED BY THE HUSBAND OF THE APPELLANT AND IT HAS BEEN CLAIME D THAT THE RECEIPTS AND PAYMENTS IN THE BANK ACCOUNT ARE ON ACCOUNT OF THE SAME. FIR ST OF ALL I DO NOT SEE ANY REASON AS TO WHY THESE WERE NOT AVAILABLE AT THE TIME OF S EARCH OR THEREAFTER DURING THE ASSESSMENT PROCEEDINGS AND AS TO WHY THESE WERE NOT SUBMITTED INSPITE OF SPECIFIC NOTICE ISSUED BY THE AO ON 21.04.2003. AS SUCH IT IS NOT POSSIBLE TO ADMIT THESE EVIDENCES IN THE APPELLATE PROCEEDINGS. FURTHERMORE THERE IS NO EVIDENCE AT THE TIME OF SEARCH OR DURING THE ASSESSMENT PROCEEDINGS THAT IN SUCH BUSINESS AS HAS BEEN CLAIMED BY THE APPELLANT WAS EVER CARRIED OUT IN KERALA. THE SUBMISSION OF THE APPELLANT DT 12.12.2003 HAS ALSO BEEN CONSIDERED (G IVEN IN ANNEXURE-1) AND THE CLAIM OF THE APPELLANT REGARDING PROPRIETARY BUSINE SS OR DEVELOPMENT BUSINESS IN KERALA IS NOT ESTABLISHED. 4.1 NOW COMING TO THE BANK ACCOUNTS PER-SE IT IS S EEN THAT THE DEPOSITS HAVE BEEN MADE IN CASH AND SO ARE THE WITHDRAWALS. TE OB SERVATIONS OF THE AO IN PARA 5 RELATING TO CONSTRUCTION OF HOUSE IN KERALA BY THE HUSBAND OF THE APPELLANT AND THE ITA NO 612 615 695/PN/04 K. M. A. RASHID ALIAS MALIK &OR. 8 WITHDRAWALS FROM THE BANK ACCOUNT OF THE APPELLANT GIVE A REASONABLE PROPOSITION ON WHICH THE DECISION IS REQUIRED TO BE BASED. IT IS A LSO SEEN THAT THE AO HAS ADMITTED IN PARA 8 OF THE ASSESSMENT ORDER THAT 20% OF THE D EPOSITS IN THE BANK ACCOUNTS HAVE BEEN OFFERED BY THE HUSBAND OF THE APPELLANT I N HIS BLOCK RETURN. IT IS ALSO AN ADMITTED FACT THAT THE HUSBAND OF THE APPELLANT IS THE MANAGING DIRECTOR OF M/S SAIRANG DEVELOPERS AND PROMOTERS P. LTD. AND IS ALS O ENGAGED IN THE PROPRIETARY BUSINESS IN THE NAME AND STYLE OF M/S SAIRANG DEVEL OPERS. IN THE LIGHT OF THE FACT THAT THE INCOME IS ORIGINATING IN THE HANDS OF THE APPELLANT AND HAS ALSO BEEN INVESTED ACCORDING TO THE AO IN THE CONSTRUCTION OF THE HOUSE OF THE APPELLANT AS ALSO ADMITTED AS UNDER IN THE BLOCK RETURN ITSELF: THE HUSBAND OF THE ASSESSEE SHRI K.M. A. RASHEED A LIAS MALIK HAS BEEN CARRYING ON THE BUSINESS OF LAND DEVELOPMENT IN THE NAME OF HIS WIFE AND HER HUSBAND HAS INVESTED HIS OWN FUNDS FOR THE BUSI NESS. THEREFORE THE INCOME OF THE ASSESSEE HAS BEEN CLUBBED WITH THE IN COME OF HER HUSBAND SHRI K.M.A. RASHEED. 4.2 IN THE LIGHT OF THESE FACTS WHILE A DECISION O N THE EXISTENCE OF UNDISCLOSED INCOME ON THE BASIS OF THESE BANK ACCOUNTS IS TO BE UPHELD THE TOTAL PICTURE WOULD EMERGE IN THE CASE OF THE APPELLANTS HUSBAND. THIS ISSUE HAS BEEN DISCUSSED IN DETAIL IN HIS CASE WHERE APPELLATE ORDER HAS BEEN P ASSED ON EVEN DATE. ACCORDINGLY IT WOULD NOT BE REASONABLE TO MAKE AN ASSESSMENT OF UNDISCLOSED INCOME IN THE HANDS OF THE APPELLANT IN THE LIGHT OF THE CLEAR CU T OBSERVATIONS IN THE ASSESSMENT ORDER AND ADMISSION BY THE APPELLANT AS WELL AS HER HUSBAND WITH REGARD TO THE SOURCE OF DEPOSITS IN THE BANK ACCOUNT AND THE DEST INATION OF THE WITHDRAWALS AS INVESTMENT IN THE HOUSE AT KERALA. WITH THESE REMAR KS THE APPEAL IS ALLOWED. 12. THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS CON TENDED THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) FAILED TO APPR ECIATE THAT ASSESSEE COULD NOT ESTABLISH THAT HER PROPRIETARY BUSINESS O F LAND DEVELOPMENT WAS BEING CARRIED OUT BY THE HUSBAND AND SECONDLY IT WAS ALSO CONTENDED THAT THE HUSBAND HAD MERELY DECLARED THE PROFITS FROM SU CH BUSINESS BUT THE DEPOSITS IN THE BANK ACCOUNT WERE TO BE CONSIDERED IN THE HANDS OF THE WIFE ONLY SINCE THE BANK ACCOUNT WAS IN HER NAME. ON TH E OTHER HAND THE LEARNED COUNSEL FOR THE ASSESSEE HAS RELIED UPON TH E ORDERS OF THE AUTHORITIES BELOW IN SUPPORT OF SUCH PLEA. 13. HAVING CONSIDERED RIVAL SUBMISSIONS AS ALSO TH E FINDINGS OF THE COMMISSIONER OF INCOME-TAX (APPEALS) EXTRACTED ABOV E WE FIND NO ERROR IN THE APPROACH OF THE COMMISSIONER OF INCOME-TAX (APP EALS) TO THE EFFECT THAT ONCE THE INCOME FROM BUSINESS CARRIED ON IN THE NAM E OF WIFE IS ASSESSED IN THE HAND OF THE HUSBAND CONSEQUENTLY ENTRIES IN TH E BANK ACCOUNT USED FOR SUCH BUSINESS ARE ALSO LIABLE TO BE CONSIDERED IN T HE HANDS OF THE HUSBAND ONLY. THE COMMISSIONER OF INCOME-TAX (APPEALS) HAS REFERRED TO THE DECLARATION BY THE HUSBAND IN THE RETURN OF INCOME WHICH HAS NOT BEEN ITA NO 612 615 695/PN/04 K. M. A. RASHID ALIAS MALIK &OR. 9 CONTROVERTED BY THE ASSESSING OFFICER. MOREOVER IN PARAGRAPHS 7 & 8 OF THE ASSESSMENT ORDER IN THE CASE OF SMT KHADEEJA RASHID (SUPRA) THE ASSESSING OFFICER HAS ADMITTED THAT THE RETURNS OF INCOME FILED BY THE ASSESSEES HUSBAND INDEED CONTAIN INCOME REPRESENTI NG PROFITS ON LAND DEVELOPMENT BUSINESS CARRIED OUT IN THE NAME OF SMT KHADEEJA RASHID. CONSIDERING THESE ASPECTS WE FIND ENOUGH JUSTIFICA TION FOR THE COMMISSIONER OF INCOME-TAX (APPEALS) TO CONSIDER THE IMPACT OF T HE ENTRIES IN THE BANK ACCOUNT OF SMT KHADEEJA RASHID IN THE HANDS OF THE ASSESSEE-HUSBAND. THUS IN THIS MANNER THE APPEAL OF THE REVENUE IN I TA NO 612/PN/04 IN THE CASE OF SMT KHADEEJA RASHID IS DISMISSED. 14. NOW COMING BACK TO THE GROUND RELATING TO DEPOS ITS IN THE BANK ACCOUNT MAINTAINED IN THE NAME OF THE WIFE IN ITA N O 695/PN/04 THE LIMITED PLEA OF THE ASSESSEE IS THAT THE DEPOSITS TO THE EX TENT OF RS 36 000/- AND RS 46 000/- FOR ASSESSMENT YEARS 1999-2000 AND 2000-01 RESPECTIVELY HAVE ALREADY BEEN DECLARED BY THE ASSESSEE IN HIS RETURN OF INCOME. THE BREAK-UP IN THIS REGARD CAN BE FOUND REPRODUCED BY THE COMMI SSIONER OF INCOME-TAX (APPEALS) IN PARAGRAPH 3.7 OF HIS ORDER. CONSIDERIN G THE AFORESAID WE FIND THAT THE COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN UPHOLDING THE ADDITIONS OF R 36 000/- AND RS 46 000/- OUT OF THE TOTAL ADDITION OF RS 1 40 922/- SUSTAINED BY HIM. FOR THE AFORESAID REAS ON WE SET ASIDE THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) AND DIR ECT THE ASSESSING OFFICER TO DELETE THE ADDITIONS OF RS 36 000/- AND RS 46 000/- OUT OF THE ADDITION OF RS 1 40 922/- SUSTAINED BY THE COMMISSI ONER OF INCOME-TAX (APPEALS). RESULTANTLY ADDITION OF RS 82 000/- IS DELETED AND BALANCE ADDITION OF RS 58 922/- OUT OF RS 1 40 922/- IS SUS TAINED. 15. THE SECOND GROUND RELATES TO AN ADDITION OF RS 50 000/- BEING INVESTMENT IN CONSTRUCTION OF HOUSE IN KERALA SUSTA INED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) FOR THE ASSESSMENT YEAR 199 8-99. IN THIS CONNECTION THE CLAIM OF THE ASSESSEE IS THAT SUCH AMOUNT HAS B EEN DISCLOSED AS INCOME ITA NO 612 615 695/PN/04 K. M. A. RASHID ALIAS MALIK &OR. 10 TOWARDS CONSTRUCTION OF HOUSE AT KERALA. THE LEARNE D DEPARTMENTAL REPRESENTATIVE HAS OPPOSED THE PLEA OF THE ASSESSEE . 16. AFTER CONSIDERING THE SUBMISSIONS AS ALSO PERUS ING THE ORDERS OF THE AUTHORITIES BELOW WE DO NOT FIND THAT THE SAID SUB MISSION OF THE ASSESSEE IS SUBSTANTIATED BY ANY MATERIAL ON RECORD AND HENCE THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) IN SUSTAINING THE ADDITION OF RS 50 000/- IS AFFIRMED. 17. IN THE RESULT REVENUES APPEALS VIDE ITA NOS 6 12/PN/04 AND 615/PN/04 ARE DISMISSED WHEREAS ASSESSEES APPEAL VIDE ITA NO 695/PN/04 IS PARTLY ALLOWED. DECISION PRONOUNCED IN THE OPEN COURT ON THIS 31 ST DAY OF MARCH 2011. SD/- SD/- (I.C. SUDHIR) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER PUNE: DATED: 31 ST MARCH 2011 B COPY OF THE ORDER IS FORWARDED TO : 1. ASSESSEES 2. DCIT CEN CIR. 1(1) PUNE 3. THE CIT(A)-I PUNE 4. THE CIT (CEN.) PUNE 5. THE D.R A BENCH PUNE TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT PUNE BENCHES PUNE