The ACIT, Ujjain v. Late Smt Ratanbai L/H Dr Dilip Gupta, Ujjain

ITA 322/IND/2009 | 2006-2007
Pronouncement Date: 26-02-2010 | Result: Dismissed

Appeal Details

RSA Number 32222714 RSA 2009
Assessee PAN AHGPG9543H
Bench Indore
Appeal Number ITA 322/IND/2009
Duration Of Justice 8 month(s) 1 day(s)
Appellant The ACIT, Ujjain
Respondent Late Smt Ratanbai L/H Dr Dilip Gupta, Ujjain
Appeal Type Income Tax Appeal
Pronouncement Date 26-02-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 26-02-2010
Date Of Final Hearing 25-02-2010
Next Hearing Date 25-02-2010
Assessment Year 2006-2007
Appeal Filed On 24-06-2009
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH JM AND SHRI V.K. GUPTA AM ITA NOS.35 TO 41/IND/2008 ASSESSMENT YEARS: 1999-00 TO 2005-06 ASSISTANT COMMISSIONER OF INCOME TAX 2(1) UJJAIN .APPELLANT VS LATE RATAN BAI (THROUGH DR. DILIP GUPTA L/H) 45 SANT TULSI PATH BARNAGAR (PAN AHGPG 9543 H) .RESPONDENT ITA NO.322/IND/2009 ASSESSMENT YEAR: 2006-07 ASSISTANT COMMISSIONER OF INCOME TAX 2(1) UJJAIN .APPELLANT VS LATE RATAN BAI (THROUGH DR. DILIP GUPTA L/H) 45 SANT TULSI PATH BARNAGAR (PAN AHGPG 9543 H) .RESPONDENT ITA NOS.275 TO 280/IND/2009 ASSESSMENT YEARS: 2001-02 TO 2006-07 ASSISTANT COMMISSIONER OF INCOME TAX 2(1) UJJAIN .APPELLANT VS DR. DILIP GUPTA 45 SANT TULSI PATH BARNAGAR 2 (PAN ACKPG 1446 L) .RESPONDENT CO NOS. 47 TO 52/IND/2009 (ARISING OUT OF ITA NOS.275 TO 280/IND/2009) ASSESSMENT YEARS: 2001-02 TO 2006-07 DR. DILIP GUPTA 45 SANT TULSI PATH BARNAGAR (PAN ACKPG 1446 L) .APPELLANT VS ASSISTANT COMMISSIONER OF INCOME TAX 2(1) UJJAIN .RESPONDENT DEPARTMENT BY : SMT. APARNA KARAN SR. DR ASSESSEE BY : S/SH. H.P. VERMA & ASHISH GOYAL O R D E R PER JOGINDER SINGH JM OUT OF THESE TWENTY APPEALS FOURTEEN ARE BY THE RE VENUE AND SIX CROSS-OBJECTIONS BY THE ASSESSEE AGAINST THE DIFFER ENT ORDERS OF THE LEARNED CIT(A) DATED 30.11.2007 27.11.2007 24.4. 2009 24.3.2009 RESPECTIVELY. DURING THE HEARING OF THESE APPEALS IT WAS POINTED OUT THAT THE ISSUES ARE IDENTICAL THEREFORE THESE CAN BE HEARD TOGETHER. THE LD. SR. DR HAS ALSO RAISED ADDITIONAL GROUND IN ITA NO.35/IND/2008 WHICH IS AS UNDER: WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) IS CORRECT IN DIRECTING THE AO TO ASSESS INTEREST INCOME OF RS.2 65 500/- ON HUNDIES IN THE HANDS OF THE ASSESSEE ON SUBSTANTIVE BASIS INSTEAD OF IT ON PROTECTIVE BASIS ASSESSED BY THE AO. 3 2. MRS. APARNA KARAN LD. SR. DR CONTENDED THAT KEE PING IN VIEW THE TOTALITY OF FACTS THE ADDITIONAL GROUND RAISED BY THE REVENUE MAY BE ADMITTED WHEREAS MR. H.P. VERMA LD. COUNSEL FOR TH E ASSESSEE OPPOSED THE ADMISSION OF THE ADDITIONAL GROUND ON T HE PLEA THAT AFTER SUBSTANTIAL DELAY THE ADDITIONAL GROUND MAY NOT BE ADMITTED. ON CONSIDERATION OF RIVAL SUBMISSIONS AND MATERIAL AVA ILABLE ON RECORD AS PRONOUNCED IN THE OPEN COURT THE ADDITIONAL GROUND RAISED BY THE REVENUE IS ADMITTED. 3. IN THE MAIN GROUNDS (ITA NO.35/IND/2008) GROUND S NO. 1 TO 5 (AS ORIGINALLY RAISED) ARE AS UNDER: 1. WHETHER IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS RIGHTLY CONSIDERED THAT HER HUSBAND LEFT CAPITAL OF RS.9 LACS IN 1979 ON HIS DEATH WHICH BECAME RS.31 25 000/- WHEN THE CAPITAL SHOWN IN HER ORIGINAL RETURN FOR THE ASSESSMENT YEAR 1999-00 IS ONLY RS.3 36 513/- . 2. WHETHER IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IS RIGHT IN FACTS AND IN LAW ACCEPTING THE OPENING CAPITAL AS ON 1.4.98 AT RS.31 25 000/- AS PER CAPITAL ACCOUNT AND STATEMENT OF AFFAIRS FILED ALONG WITH THE RETURN FILED ON 9.11.05 IN RESPONSE TO NOTICE U/S 148 OF IT ACT WHERE AS PER ORIGINAL RETURN FILED ON 1.1.2001 THE OPENING CAPITAL AS ON 1.4.98 WAS SHOWN AT RS.3 36 513/- AS PER CAPITAL AND STATEMENT OF AFFAIRS FILED WITH RETURN OF INCOME. 3. WHETHER IN THE FACTS AND IN THE 4 CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IS RIGHT IN FACTS AND LAW DELETING THE ADDITION OF RS.31 25 000/- TAKING COGNIZANCE OF ENTRIES IN THE GREEN COLOUR REGISTER WHICH WAS NOT FOUND AND PRODUCED DURING THE COURSE OF SURVEY U/S 133A OF IT ACT. 4. WHETHER IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN DIRECTING THE AO THAT UNDISCLOSED INVESTMENT IN HUNDIES OR MONEY LENDING SHOULD BE TAKEN ON SUBSTANTIVE BASIS IN THE HANDS OF ASSESSEE. 5. WHETHER IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN DELETING THE ADDITION OF RS.31 25 000/- MADE BY ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CAPITAL ON PROTECTIVE BASIS. 4. DURING HEARING THE LD. SR. DR MRS. APARNA KARAN STRONGLY CONTENDED THAT THE AMOUNT OF RS.66 90 000/- WAS SUR RENDERED BY THE ASSESSEE AND LATER ON IT WAS RETRACTED BY FURTHER POINTING OUT THAT THE NECESSARY RECORD WAS NOT MAINTAINED BY THE ASSESSEE THEREFORE EVERYTHING WAS AN AFTERTHOUGHT. THE IMPUGNED ADDITI ON MADE BY THE LD. ASSESSING OFFICER WAS STRONGLY DEFENDED. PLEA W AS ALSO RAISED THAT INCOME FOR THE VARIOUS FINANCIAL YEARS FOR WHICH TR ANSACTIONS WERE RECORDED IN PART B OF REGISTER WAS RIGHTLY TREATED AS UNEXPLAINED INVESTMENT OF DR. DILIP GUPTA TO BE TAXED IN HIS HA NDS ON SUBSTANTIVE BASIS. IT WAS ALSO PLEADED THAT THE CHANGE OF VERSI ON BY DR. DILIP GUPTA 5 IN POST SURVEY INQUIRY THAT INVESTMENT IN HUNDI BUS INESS AS PART B OF THE REGISTER WAS MADE BY HIS MOTHER NAMELY SMT. RATAN BAI GUPTA IS NOTHING BUT WAS AN AFTERTHOUGHT. A STRONG PLEA WAS RAISED THAT A STORY WAS CREATED THAT THE AMOUNT RECEIVED BY HIS MOTHER UPON THE DEATH OF HIS FATHER IN 1991 A SIMPLY DEVISED TO HELP OUT HI S SON DR. DILIP GUPTA. 5. ON THE OTHER HAND SHRI H.P. VERMA LD. COUNSEL FOR THE ASSESSEE STRONGLY DEFENDED THE IMPUGNED ORDER BY CONTENDING THAT THE MONEY LENDING WAS STARTED IN 1967-68 AND THE ASSESSEE WAS HAVING FAMILY PENSION SINCE 1991 WHEN HER HUSBAND WAS EXPIRED. IT WAS PLEADED THAT THE ASSESSEE IS FILING INCOME-TAX RETURNS SINCE ASS ESSMENT YEAR 1980-81 AND THE CAPITAL AS ON THE DATE OF SURVEY WAS RS.66 90 000/-. MR. VERMA FURTHER EXPLAINED THAT THE HUSBAND OF SMT. RATAN BA I GUPTA RETIRED IN 1979 AS HE WAS SERVING AS CIVIL SURGEON AND DIED ON 1991. THE WRITTEN SUBMISSIONS FILED BEFORE LD. FIRST APPELLATE AUTHOR ITY WERE ARGUED TO BE CONSIDERED. A PASSIONATE PLEA WAS RAISED THAT THE A SSESSEE ALSO SURRENDERED RS.35 LACS AND THE ALLEGATION THAT A ST ORY WAS CONCOCTED TO SAVE THE SON BY THE MOTHER IS QUITE UNJUSTIFIED. THE CRUX OF THE ARGUMENTS IS IN SUPPORT TO THE IMPUGNED ORDER. 6. WE HAVE CONSIDERED THE SUBMISSIONS PUT FORTH BY THE LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATER IAL AVAILABLE INCLUDING THE PAPER BOOK RUNNING INTO 1 TO 178 (PA PER BOOK 1) PAGES 6 179 TO 204 (PAPER BOOK 2) AND PAGES 1 TO 70 (PAPER BOOK 3) ON THE FILE. BRIEF FACTS ARE THAT THE ASSESSEE I.E. SMT. RATAN B AI IS AN INDIVIDUAL HER HUSBAND DR. VALLABH DAS GUPTA WAS A CIVIL SURGE ON AND RETIRED AFTER COMPLETING THE SERVICE OF 37 YEARS ON 31.1.1 979. HER HUSBAND WORKED AS MEDICAL OFFICER DY. DIRECTOR HEALTH AND CIVIL SURGEON ETC. AND AFTER HIS RETIREMENT HE WAS DOING PRIVATE PRAC TICE AT BARNAGAR. AS A SIDE BUSINESS HE WAS ALSO DOING MONEY LENDING BU SINESS OUT OF FUNDS RECEIVED ON HIS RETIREMENT PAST SAVINGS ACCUMULAT ION OF RETIREMENT BENEFITS AND MEDICAL PRACTICE INCOME. AFTER HIS DEA TH ON 31.5.1991 THE LEFTOVER INCOME WAS CLAIMED TO BE INVESTED IN M ONEY LENDING BUSINESS OR THE PROCEEDINGS REMAINED WITH HIS WIFE I.E. THE PRESENT ASSESSEE SMT. RATAN BAI. HER SON DR. DILIP GUPTA IS ALSO A MEDICAL PRACTITIONER. SMT. RATAN BAI WAS A REGULAR INCOME-T AX ASSESSEE RIGHT FROM ASSESSMENT YEAR 1980-81 WHEREAS AS PER THE CLA IM OF THE ASSESSEE SHE STARTED HER MONEY LENDING BUSINESS SI NCE 1967-68 WITH A SMALL CAPITAL OF RS.2 000/-. THE CAPITAL STANDING A S ON 31.3.1999 (ASSESSMENT YEAR 1999-00) SHOWN IN THE ORIGINAL RE TURN WAS RS.4 25 101/- WHICH DOES NOT INCLUDE ANY MONEY LEFT BY HER HUSBAND AFTER HIS DEATH IN 1991. 7. A SURVEY U/S 133A WAS CONDUCTED AT THE PLACE OF DR. DILIP GUPTA AT BARNAGAR WHEREIN CERTAIN INCRIMINATING DOCUMENTS /MATERIAL I.E. 7 HUNDIES ONE RED COLOUR REGISTER (DAGA LOG EX BOOK) WAS FOUND AND IMPOUNDED BY THE DEPARTMENT. STATEMENT OF DR. DILIP GUPTA WAS RECORDED WHEREIN HE TENDED THAT THE MONEY LENDING B USINESS ON HUNDIES WAS DONE. AS PER HIS STATEMENT THE AMOUNT OF RS.63 35 000/- WAS OFFERED FOR TAXATION (QUESTION NO.33 OF THE STA TEMENT RECORDED ON 6.9.2005). AS PER THE REVENUE THE AMOUNT OF RS.63 35 000/- WAS ADMITTED TO BE UNEXPLAINED INVESTMENT. THE STAND OF THE REVENUE IS THAT THE STATEMENT WAS VOLUNTARILY TENDED BY THE AS SESSEE WITH A REQUEST THAT NO PENALTY MAY BE IMPOSED ON THE ASSES SEE AND THE ASSESSEE MAY BE EXEMPTED FROM PENAL ACTION. 8. ON THE SAME DAY I.E. 6.9.2005 SUMMONS U/S 131 WERE ISSUED TO DR. DILIP GUPTA BY THE ITO WARD-2(2) UJJAIN BEING THE ASSESSEE ASSESSED BY HIM. ON 4.10.2005 DR. GUPTA APPEARED B EFORE THE ITO AS WELL AS BEFORE ADDL. CIT (RANGE-2) ON VARIOUS OCCAS IONS. IN HIS STATEMENT RECORDED FROM DR. GUPTA ON 6.9.2005 (REPL Y TO QUESTION NO.2) HE TENDED THAT THE CORRECT AMOUNT RECEIVABLE AS ON THE DATE OF SURVEY AS PER PART B OF IMPOUNDED REGISTER WAS RS.6 6 90 000/- WHICH BELONGS TO HIS MOTHER. HE HAS ALSO TENDED THAT AS O N 31.3.98 THE OPENING CAPITAL OF HIS MOTHER WAS RS.31 25 000/-. P URSUANT TO THE STATEMENT OF DR. DILIP GUPTA RECORDED ON 4.10.2005 THE STATEMENT OF HIS MOTHER THE PRESENT ASSESSEE WAS RECORDED ON 6. 10.2005 WHEREIN 8 VIDE QUESTION NO.5 SHE TENDED THAT SHE IS THE OWNE R OF RS.66 90 000/- BEING AMOUNT RECEIVABLE ON HUNDIES. SHE FURTHER TEN DED THAT HER HUSBAND RETIRED IN 1979 AND SHE RECEIVED THE AMOUNT OF RS.8 TO 9 LACS AT THAT TIME WHICH WAS INVESTED AND EARNED INTEREST . SMT. RATAN BAI FILED HER REVISED RETURN FOR ASSESSMENT YEAR 1999-0 0 TO 2004-05 (ORIGINAL RETURN FOR ASSESSMENT YEAR 2005-06 IN NOV EMBER 2005) SHE OFFERED RS.35 65 000/- (INCLUDING RS.7 90 304/- REL ATING TO ASSESSMENT YEAR 2006-07) IN DIFFERENT YEARS. HOWEVER THE LD. ASSESSING OFFICER DID NOT ACCEPT HER VERSION OF RECEIPT OF HUNDIES BELONG TO HER AND ADDED RS.31 25 000/- IN ASSESSMENT YEAR 1999-00 BEING TH E OPENING CAPITAL AS CLAIMED BY THE ASSESSEE ON PROTECTIVE BASIS AND SIMILARLY IN OTHER ASSESSMENT YEARS I.E. ASSESSMENT YEAR 2001-02 TO 20 05-06 ACCEPTED ADDITIONAL INTEREST INCOME AS DECLARED BY THE ASSE SSEE IN REVISED/ORIGINAL RETURN ON PROTECTIVE BASIS. THE T OTAL UNEXPLAINED INVESTMENT WAS COMPUTED AT RS.80 95 000/- WHEREAS A S PER THE RED COLOUR REGISTER IMPOUNDED BY THE DEPARTMENT THE A MOUNT RECEIVABLE AS ON THE DATE OF THE SURVEY COMES ONLY TO RS.66 90 000/-. THE ASSESSMENT ORDER WAS CARRIED IN APPEAL BEFORE THE L D. CIT(A) WHEREIN IT WAS HELD AS UNDER: (PAGE NO.12 PARA 3) ON CAREFUL CONSIDERATION OF FACTS AND CIRCUMSTANCES OF THE CASE IT IS FOUND THAT IT IS 9 A MATTER OF RECORD THAT SMT. RATAN BAI WAS BEING ASSESSED TO INCOME-TAX RIGHT FROM ASSESSMENT YEAR 80-81 ALTHOUGH SHE WAS DOING BUSINESS OF MONEY LENDING FROM ASSESSMENT YEAR 1967-68 ON SMALL BASIS. DR. DILIP GUPTA IN HIS STATEMENT ON OATH HAS CATEGORICALLY SAID THAT HER MOTHER WAS DOING THE BUSINESS OF MONEY LENDING AND INVESTMENT IN HUHDIES WHICH GOT ON ACCUMULATED AND THE RECEIVABLE AMOUNT AT THE TIME OF SURVEY WAS RS.64 65 000/-. DR. DILIP GUPTA APPEARED BEFORE ITO-2(2) UJJAIN ON 4.10.05 AND THE ITO RECORDED HIS STATEMENT ON OATH IN WHICH DR. GUPTA HAD STATED IN REPLY TO QUESTION NO.2 THAT THE CORRECT AMOUNT RECEIVABLE AS ON THE DATE OF SURVEY AS PER PART B OF IMPOUNDED REGISTER IS RS.66 90 000/- WHICH BELONGS TO HIS MOTHER. IT IS ALSO STATED THAT THERE WAS AN OPENING CAPITAL OF RS.31 25 000/- AS ON 1.4.98. FURTHER IN REPLY TO QUESTION NO.6 HE HAS STATED THAT THE OPENING CAPITAL OF RS.31 25 000/- IS BASED UPON A REGISTER. FURTHER IN PURSUANCE OF THE STATEMENT OF DR. DILIP GUPTA RECORDED ON 4.10.05 STATEMENT OF HIS MOTHER SMT. RATAN BAI (APPELLANT) WAS RECORDED ON 6.10.05 IN WHICH IN REPLY TO QUESTION NO.5 SHE HAD STATED THAT SHE IS THE OWNER OF RS.66 90 000/- BEING AMOUNT 10 RECEIVABLE ON THE HUNDIES. IT IS FURTHER SAID THAT AS ON 31.3.98 THE OPENING BALANCE WAS RS.31 25 000/- WHICH GOT ACCUMULATED UP TO RS.66 90 000/- AND SHE IS READY TO PAY TAX ON ADDITIONAL INCOME OF RS.35 65 000/- AS PER LAW FOR DIFFERENT YEARS. FOR THE DETAILED EXPLANATION ALONGWITH SUPPORTING EVIDENCES AND THE VARIOUS STATEMENTS RECORDED BY THE AO AS DISCUSSED ABOVE. IT IS CLEAR THAT THERE WAS INTENTION OF SURRENDERING THE UNEXPLAINED INVESTMENT IN HUNDIES IN THE HANDS OF SMT. RATAN BAI THE APPELLANT. IT IS ALSO A SETTLED LAW THAT ADMISSION HAS TO BE CONSIDERED IN ITS ENTIRETY. (SUPREME COURT IN CASE OF MAHINDRA MANILAL NANAWATI). THE HONBLE GUJARAT HIGH COURT HAS ALSO HELD IN CASE OF GLASSLINES EQUIPMENT COMPANY LTD. VS. CIT 253 ITR 454 IT IS SETTLED CANNON OF INTERPRETATION THAT A DOCUMENT HAS TO BE READ AS A WHOLE IT IS NOT PERMISSIBLE TO ACT ON A PART AND IGNORE THE REST OF THE DOCUMENTS. IN CASE OF NAVRANG OIL MILL VS. CIT 252 ITR 417 ALSO IT IS FURTHER ELABORATED THAT IT IS SETTLED LEGAL POSITION THAT THE SEIZED MATERIAL HAS TO BE READ & ACCEPTED AS A WHOLE & IT IS NOT PERMISSIBLE TO PICK & CHOOSE OR MAKE FURTHER ESTIMATE THERE FROM UNLESS & UNTIL THERE IS A COGNATE MATERIAL IN SUPPORT OF UNDERTAKING SUCH AN 11 EXERCISE. FROM THIS DISCUSSION IT IS CLEAR THAT THE ACTION OF THE AO IN MAKING ADDITION ON PROTECTIVE ARE NOT JUSTIFIED. THE INCOME OFFERED BY THE APPELLANT AS UNDISCLOSED INVESTMENT IN HUNDIES OR MONEY LENDING SHOULD BE TAKEN ON SUBSTANTIVE BASIS IN THE HANDS OF THE APPELLANT ONLY. . (PAGE NO.19 PARA 4) AFTER HAVING CONSIDERED THE OBSERVATIONS OF THE AO AS WELL AS THE REPLY OF THE AR FOR THE APPELLANT AND ALSO PERUSAL OF THE IMPOUNDED REGISTER IT IS CRYSTAL CLEAR THAT THE APPELLANT WAS ADVANCING MONEY ON HUNDIES FOR PAST MANY YEARS. SHE WAS ALSO SHOWING INCOME IN AYRS 80-81 ONWARDS. DURING THE COURSE OF SURVEY A REGISTER WAS FOUND WHICH DISCLOSED THAT SHE WAS NOT SHOWING HER REAL INCOME IN THE RETURN OF INCOME FILED BY HER. MEANING THEREBY SHE WAS HAVING UNDISCLOSED INVESTMENT ALSO. THE OPENING BALANCE OF WHICH AS ON 1.4.99 WAS RS.31 25 000/-. AS STATED ABOVE IF WE TAKE COGNIZANCE OF A DOCUMENT WE HAVE TO ACCEPT IT IN ENTIRETY UNLESS WE HAVE CLEAR CUT EVIDENCE TO DENY A PORTION OF IT. IN THIS CASE THE AO HAS RELIED ON IMPOUNDED REGISTER BUT DID NOT ACCEPT THE OPENING BALANCE AS PER THE REGISTER WHICH IS 12 NOT LEGALLY PERMISSIBLE. THERE IS SUBSTANCE IN THE ARGUMENTS OF THE AR FOR THE APPELLANT GIVEN BY HIM IN HIS WRITTEN STATEMENT REPRODUCED ABOVE. THE OPENING CAPITAL OF RS.31 25 000/- AS ON 1.4.99 CANNOT BE TREATED AS UNEXPLAINED AND THE ADDITION MADE BY AO IN THIS REGARD IS DELETED. THE AO IS DIRECTED TO ASSESS THE INCOME SHOWN BY THE APPELLANT IN HER ORIGINAL RETURN I.E. RS.81 131/- AND ADDITION OF INTEREST INCOME ON HUNDIES OFFERED BY HER FOR TAX I.E. RS.2 62 500/- ON SUBSTANTIVE BASIS IN HER HAND. 9. UNDER THE AFOREMENTIONED FACTS NOW QUESTION ARI SES WHETHER THE LD. CIT(A) IS JUSTIFIED IN HOLDING THAT THE OPE NING CAPITAL OF RS.31 25 000/- (AS ON 1.4.1999) CANNOT BE TREATED A S UNEXPLAINED INCOME AND CONSEQUENT DELETION AND THE AMOUNT OF RS .81 131/- (DECLARED IN ORIGINAL RETURN) AND ADDITION OF INTER EST ON HUNDIES OFFERED BY HER FOR TAX I.E. RS.2 62 500/- ON SUBSTANTIVE BA SIS IN HER HAND? 10. IT IS SEEN THAT THE AMOUNT OF RS.31 25 000/- IS SUPPORTED BY GREEN REGISTER WHEREIN THE NAMES OF THE BORROWERS THE AMOUNT AND THE DATE OF MATURITY HAS BEEN MENTIONED. THIS FACTU AL FINDING WAS NOT DENIED BY THE ASSESSING OFFICER. ADMITTEDLY THERE IS A INCREASE IN THE CAPITAL FROM 1979 TO 1998 THEREFORE THERE IS ALL PROBABILITIES THAT THE CAPITAL OF RS.3 36 513/- AS ON 1.4.98 AS THE HUSBAN D OF THE ASSESSEE 13 RETIRED AFTER THE COMPLETION OF 37 YEARS OF SERVICE THEREFORE THE CLAIM THAT THE WIDOW I.E. PRESENT ASSESSEE WAS HAVI NG 8 TO 9 LACS SEEMS TO BE JUSTIFIED. THE OBSERVATION OF THE REVEN UE THAT NO MONEY WAS RECEIVED BY THE ASSESSEE ON THE DEATH OF HER HU SBAND IS ALSO NOT SUBSTANTIATED BY ANY EVIDENCE. EVEN DR. DILIP GUPTA IN STATEMENT RECORDED U/S 131 ON 6.9.2005 TENDED THAT THE AMOUNT BELONGED TO HIS MOTHER WHICH WAS RS.31 25 000/- (PAPER BOOK PAGE 15 & 16). AT PAGE 17 HE FURTHER EXPLAINED THAT THE AMOUNT WAS SUPPOR TED BY GREEN REGISTER. EVEN THE ASSESSEE IN THE STATEMENT RECORD ED U/S 131 CLAIMED THAT SHE WAS HAVING RS.31 25 000/- IN 1998 (PAPER B OOK PAGE 19). SHE WAS ALSO FILING HER INCOME-TAX RETURNS AND ACCEPTED BY THE DEPARTMENT SINCE 1980-81. EVEN THE REGISTER WAS PRODUCED BEFOR E THE ADDL. CIT ON 27.9.2005. THE ENTRIES OF THE OLD GREEN REGISTER WE RE BROUGHT FORWARD TO THE RED REGISTER (PAPER BOOK PAGE 167 TO 178) AN D ENTRIES ON PAPER BOOK 177 TO THE RED REGISTER (PAPER BOOK PAGES 176 & 177). IN VIEW OF THESE FACTS WE ARE OF THE CONSIDERED OPINION THAT SINCE SMT. RATAN BAI CLAIMED THAT SHE WAS DOING MONEY LENDING BUSINESS F ROM 1967-68 (THOUGH ON SMALL BASIS) AND HAD BEEN FILING THE RET URN SINCE 1980-81 THERE IS A FORCE IN THE CONCLUSION DRAWN BY THE LD. CIT(A). EVEN DR. DILIP GUPTA IN HIS STATEMENT RECORDED ON OATH HAS C ATEGORICALLY TENDED THAT HER MOTHER WAS DOING BUSINESS OF MONEY LENDING AND INVESTMENT 14 IN HUNDIES WHICH GOT ACCUMULATED TO THE TUNE OF RS. 64 65 000/- AT THE TIME OF SURVEY. EVEN DR. DILIP GUPTA APPEARED BEFOR E ITO UJJAIN ON 4.10.2005 WHEREIN HIS STATEMENT WAS RECORDED ON OAT H AND IN REPLY TO QUESTION NO.2 HE ASSERTED/TENDED THAT THE CORRECT AMOUNT RECEIVABLE AS ON THE DATE OF THE SURVEY (AS PER PART B OF IMPO UNDED REGISTER) IS RS.66 90 000/- WHICH BELONGS TO HIS MOTHER. IN THE STATEMENT IT HAS BEEN FURTHER CLAIMED THAT AS ON 1.4.98 THE OPENING CAPITAL WAS RS.31 25 000/-. EVEN PURSUANT TO THE STATEMENT OF D R. DILIP GUPTA RECORDED ON 4.10.2005 STATEMENT OF HER MOTHER WAS ALSO RECORDED ON 6.10.2005 IN WHICH IN REPLY TO QUESTION NO.5 SHE T ENDED THAT SHE IS THE OWNER OF RS.66 90 000/- BEING AMOUNT RECEIVABLE ON HUNDIES AND FURTHER TENDED THAT AS ON 31.3.1998 THE OPENING BA LANCE WAS RS.31 25 000/- WHICH GOT ACCUMULATED UPTO RS.66 90 000/-. SHE FURTHER TENDED THAT SHE IS READY TO PAY TAX ON THE ADDITIONAL INCOME OF RS.35 65 000/- AS PER LAW FOR DIFFERENT YEARS. IN VIEW OF THESE FACTS WE ARE OF THE CONSIDERED OPINION THAT THE LD. CIT(A ) IS QUITE JUSTIFIED IN HOLDING THAT THE AMOUNT OF RS.31 25 000/- CANNOT BE TREATED AS UNEXPLAINED ADDITION AND CONSEQUENT DELETION. AS FA R AS THE ISSUE OF SUBSTANTIVE OR PROTECTIVE IS CONCERNED THE SURREND ERED INCOME WAS DECLARED BY MRS. RATAN BAI WHEREAS THE ASSESSING OF FICER TAXED IT PROTECTIVE BASIS AND ASSESSED IT ON SUBSTANTIVE BAS IS IN THE HANDS OF HER 15 SON DR. DILIP GUPTA WHICH WAS REVERSED BY THE LD. C IT(A). DR. DILIP GUPTA IN HIS STATEMENT RECORDED U/S 131 CLAIMED THA T THE INCOME BELONGS TO HIS MOTHER AND LIKEWISE HIS MOTHER VIDE STATEMENT DATED 6.10.2005 TENDED THAT THE INCOME BELONGS TO HER (PA PER BOOK PAGE 19). EVEN DR. DILIP GUPTA ON 19.11.2006 THE STATEM ENT RECORDED U/S 131 TENDED THAT HE IS A MEDICAL PRACTITIONER SINCE 10-11 YEARS (PAPER BOOK PAGE 116) AND HE DID NOT INVEST HIS INCOME IN MONEY LENDING AND WAS NOT IN POSITION TO GENERATE UNACCOUNTED INCOME. ADMITTEDLY THE HUSBAND OF THE ASSESSEE WAS EARNING TILL HIS DEATH IN 1991. IN THE IMPUGNED ORDER VIDE PARA 1.5 TO 1.7 (PAGES 4 & 5) FACTUAL FINDING MENTIONED AT PAGE 7 AND 9 AND THE CASE-LAWS RELIED UPON AND DISCUSSED BY THE LD. CIT(A) WE HAVE FOUND THAT THE CONCLUSIO N DRAWN IN THE IMPUGNED ORDER IS QUITE JUSTIFIED. THE ASSESSING OF FICER INITIATED PROCEEDINGS U/S 148 AGAINST THE ASSESSEE BUT ASSESS ED HER ON PROTECTIVE BASIS AGAIN ON THE BASIS OF SAME RECORD CHANGING HIS VIEW WITHOUT BRINGING ANY FRESH MATERIAL TO SUBSTANTIATE HIS CONCLUSION. THE ASSESSING OFFICER IS NOT PERMITTED TO BLOW HOT AND COLD IN THE SAME BREATH. IN VIEW OF THESE FACTS THERE IS NO INFIRMI TY IN THE STAND OF THE LD. CIT(A). IT IS UPHELD. 11. NOW WE SHALL TAKE UP THE ADDITIONAL GROUND WHI CH PERTAINS TO INTEREST INCOME OF RS.2 65 500/- ON HUNDIES IN THE HANDS OF THE 16 ASSESSEE ON SUBSTANTIVE BASIS INSTEAD OF PROTECTIVE BASIS. 12. AFTER HEARING THE RIVAL SUBMISSIONS AND ON PER USAL OF THE RECORD IT IS SEEN THAT THE LD. ASSESSING OFFICER INITIATED PROCEEDINGS U/S 148 AGAINST THE ASSESSEE ON THE BASIS OF CLAIMED MATERI AL AVAILABLE ON RECORD AND ASSESSED HER ON PROTECTIVE BASIS AGAIN O N THE BASIS OF SAME RECORD. THE BASIS FOR THIS CHANGE HAS NOT BEEN EXPL AINED ANYWHERE THAT TOO WITHOUT GATHERING ANY FRESH MATERIAL TO SU PPORT HIS CONCLUSION. EVEN OTHERWISE THE INGREDIENTS OF BENA MI ALSO HAVE NOT BEEN PROVED BY THE DEPARTMENT. EVEN OTHERWISE THE STATEMENT OF DR. DILIP GUPTA HAS TO BE READ AS A WHOLE INSTEAD OF ME NTIONING CERTAIN QUESTIONS. IF REPLY TO QUESTION NO.9 & 33 IS TAKEN TOGETHER IT CAN BE SAID THAT WHILE MAKING DECLARATION HE WAS DOING ON BEHALF OF ALL THE FAMILY MEMBERS INCLUDING HIS MOTHER AS IN QUESTION NO.9 HE STATED THAT HE LOOKS AFTER THE MONEY LENDING BUSINESS OF W HOLE THE FAMILY AND USED TO DEPLOY THEIR CAPITAL IN MONEY LENDING BUSIN ESS. AS A DETAILED FACT HAS BEEN MENTIONED ABOVE THEREFORE THERE IS NO INFIRMITY IN THE CONCLUSION OF THE LD. CIT(A) CONSEQUENTLY THE ADD ITIONAL GROUND RAISED BY THE REVENUE IS ALSO DISMISSED. OUR CONCLUSION WI LL ALSO APPLY TO ITA NO.322/IND/2009 AND ITA NO.36 TO 41/IND/2008 THERE FORE ALL THESE APPEALS OF THE REVENUE ARE ALSO DISMISSED. 13. BY THE AFORESAID CONCLUSION THE APPEALS IN ITA NO.275 TO 17 280/IND/2009 ALSO DISPOSED OF THEREFORE THESE APP EALS OF THE REVENUE ARE ALSO DISMISSED. 14. NOW WE SHALL TAKE UP THE CROSS-OBJECTIONS NO.4 7 TO 52/IND/2009 RAISED BY THE ASSESSEE WHEREIN IT HAS BEEN OBJECTED THAT THE LD. FIRST APPELLATE AUTHORITY ERRED IN NOT ADJUDICATING THE C HALLENGE TO REOPENING THE REASSESSMENT PROCEEDINGS U/S 147 OF T HE ACT. DURING HEARING IT WAS ASSERTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT IF THE STAND OF THE LD. FIRST APPELLATE AUTHORITY IS UPHEL D THEN THE CROSS- OBJECTIONS RAISED BY THE ASSESSEE MAY BE TREATED AS NOT PRESSED AND IF DECIDED IN FAVOUR OF THE REVENUE THEN THE CROSS-OBJ ECTIONS MAY BE DISPOSED OF ON MERIT. SINCE VIDE AFORESAID ORDER A LL THE APPEALS OF THE REVENUE HAVE BEEN DISMISSED BY UPHOLDING THE STAND OF THE LD. CIT(A) THEREFORE THESE CROSS-OBJECTIONS HAD REMAINED FOR ACADEMIC INTEREST ONLY THEREFORE IN VIEW OF THE SUBMISSION OF THE L D. COUNSEL FOR THE ASSESSEE THESE CROSS-OBJECTIONS ARE DISMISSED AS N OT PRESSED. FINALLY THE APPEALS OF THE REVENUE ARE DISMISSED AND THE CROSS- OBJECTIONS ARE DISMISSED AS NOT PRESSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26. 2.2010. SD SD (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 26.2.2010 {VYAS} COPY TO APPELLANT RESPONDENT CIT CIT(A) DR GU ARD FILE