Sri K Seetaramaiah, v. The ACIT, Circle-2(1), Vijayawada

ITA 479/VIZ/2003 | 1992-1993
Pronouncement Date: 28-01-2010 | Result: Dismissed

Appeal Details

RSA Number 47925314 RSA 2003
Bench Visakhapatnam
Appeal Number ITA 479/VIZ/2003
Duration Of Justice 6 year(s) 2 month(s) 8 day(s)
Appellant Sri K Seetaramaiah,
Respondent The ACIT, Circle-2(1), Vijayawada
Appeal Type Income Tax Appeal
Pronouncement Date 28-01-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted Not Allotted
Tribunal Order Date 28-01-2010
Assessment Year 1992-1993
Appeal Filed On 20-11-2003
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI BR BASKARAN ACCOUNTANT MEMBER ITA NO.479/VIZAG/2003 ASSESSMENT YEAR : 1992-93 KATRAGADDA SEETARAMAIAH NAGAYALANKA KRISHNA DIST. ACIT CIRCLE-2(1) VIJAYAWADA (APPELLANT) VS. (RESPONDENT) GIR NO.S-7445 ITA NO.480/VIZAG/2003 ASSESSMENT YEAR : 1992-93 KATRAGADDA RAMESH NAGAYALANKA KRISHNA DIST. ACIT CIRCLE-2(1) VIJAYAWADA (APPELLANT) VS. (RESPONDENT) GIR NO.R-7106 APPELLANT BY: SHRI C. SUBRAHMANYAM CA RESPONDENT BY: SHRI SUBRATA SARKAR DR ORDER PER SHRI S.K. YADAV JUDICIAL MEMBER:- THESE APPEALS ARE PREFERRED BY THE ASSESSEES AGAIN ST THE RESPECTIVE ORDER OF THE CIT(A) PERTAINING TO THE ASSESSMENT YE AR 1992-93 ON COMMON GROUNDS. WE HOWEVER FOR THE SAKE OF REFERENCE EXT RACT THE GROUNDS IN APPEAL NO.479 OF 2003. 1. THE CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.2 48 800/- MADE BY THE ASSESSING OFFICER TREATING THE AMOUNT AS UND ISCLOSED INCOME OF THE ASSESSEE FROM PRAWN CULTURE. 2. WHILE CONFIRMING THE ADDITION OF RS.2 48 800/- THE CIT(A) HAS NOT CONSIDERED THE FACT THAT ASSESSING OFFICER HAS NOT CONSIDERED THE MATTER AFRESH AS PER THE DIRECTIONS OF THE HON'BLE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM AND SIMPLY RELIED ON THE EA RLIER ORDER OF THE ASSESSING OFFICER WHICH WAS SET ASIDE BY THE HON'B LE TRIBUNAL. 3. WHILE CONFIRMING THE ADDITION OF RS.2 48 800/- THE CIT(A) HAS NOT CONSIDERED THE FACT THAT THE A.O. HAS NOT SUBSTANTI ATED THE ADDITION BY PROPER EVIDENCE. 4. THE CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.2 50 423/- MADE BY THE ASSESSING OFFICER TREATING THE AMOUNT AS 50% OF UNEXPLAINED AND UNACCOUNTED FOR INCOME AS PER NOTINGS ON SEIZED MATERIALS. 5. WHILE CONFIRMING THE ADDITION OF RS.2 50 423/- THE CIT(A) HAS NOT CONSIDERED THE FACT THAT THE ASSESSING OFFICER HAS RELIED ON EVIDENCE WHICH DOES NOT ESTABLISH THE OWNERSHIP OF THE LANDS IN FAVOUR OF THE ASSESSEE. 6. IT IS BEGGED THAT THE RELIEF PREYED ABOVE MAY BE GR ANTED. 7. ANY OTHER GROUND THAT MAY BE URGED AT THE TIME OF T HE HEARING. 2 2. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE DOCUMENTS PLACED O N RECORD. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE ES WERE CARRYING ON BUSINESS OF PISCI CULTURE AND PRAWN CULTURE AND SHA RE INCOME. SEARCH AND SEIZURE OPERATIONS WERE CONDUCTED ON THE ASSESSEES AND INCRIMINATING MATERIAL WERE SEIZED BY THE SEARCH PARTY. ON THE B ASIS OF THE SEIZED MATERIAL THE ASSESSING OFFICER HAS ESTIMATED THE INCOME IN T HE HANDS OF THE BOTH THE ASSESSEES UNDER THE HEAD INCOME FROM PISCICULTURE A ND PRAWN CULTURE AND UNEXPLAINED AND UNACCOUNTED INCOMES AS PER NOTINGS IN THE SEIZED MATERIAL. 4. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT( A). BEING CONVINCED WITH THE CONTENTIONS OF THE ASSESSEE THE CIT(A) DE LETED THE ADDITIONS AFTER HOLDING THAT THE A.O. WAS DUTY BOUND TO COLLECT THE DETAILS OF OWNERSHIP OF THE LAND EITHER FROM THE COURT OF LAW OR FROM THE R EVENUE AUTHORITIES AND WITHOUT DECIDING THE OWNERSHIP OF THE LAND THE ADM ISSION OF INCOME FROM PISCI CULTURE AND PRAWN CULTURE IS NOT AT ALL CORRE CT. THE ORDER OF THE CIT(A) WAS CHALLENGED BEFORE THE TRIBUNAL BY THE REVENUE O N BOTH THE GROUNDS AND THE TRIBUNAL VIDE ITS ORDER DATED 19.9.2000 SET ASI DE THE ORDER OF THE CIT(A) AND RESTORED THE MATTER TO THE FILE OF THE A.O. WIT H A DIRECTION TO THE A.O. TO RE-INVESTIGATE AND RE-ADJUDICATE THE ISSUE AFRESH A FTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEES. THE T RIBUNAL FURTHER OBSERVED THAT ALTHOUGH THE EVIDENCE ACT IS NOT FULLY APPLICA BLE TO THE INCOME TAX PROCEDURE YET THE ASSESSEE CANNOT ESCAPE FROM THE PRIMARY ONUS IN VIEW OF THE FACT THAT THE MATERIALS WERE FOUND IN POSSESSIO N AT THE TIME OF SEARCH. CONSEQUENTLY THE RE-ASSESSMENT WAS FRAMED BY THE A SSESSING OFFICER AND DURING THE RE-ASSESSMENT PROCEEDINGS ASSESSEE COUL D NOT PRODUCE ANY EVIDENCE IN SUPPORT OF HIS CONTENTIONS. RELYING UP ON VARIOUS JUDGEMENT THE ASSESSING OFFICER HAS CONFIRMED THE ADDITIONS AFTE R HAVING OBSERVED THAT THE ASSESSEE COULD NOT PRODUCE ANY SUBSTANTIAL EVIDENCE TO PROVE THAT THE ENTRIES FOUND IN THE SEIZED BOOKS DOES NOT BELONG TO HIM AN D DOES NOT REPRESENT THE PROFIT OF THE ASSESSEES. 3 5. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT( A) BUT DID NOT FIND FAVOUR WITH HIM. 6. NOW THE ASSESSEE HAS PREFERRED AN APPEAL BEFORE THE TRIBUNAL. 7. THE LD. COUNSEL FOR THE ASSESSEE EMPHATICALLY AR GUED THAT NO INCRIMINATING MATERIAL WAS SEIZED BY THE REVENUE ON THE BASIS OF WHICH THE IMPUGNED ADDITIONS ARE CALLED FOR. IN SUPPORT OF H IS CONTENTIONS HE PLACED HEAVY RELIANCE ON THE JUDGEMENT OF THE GUJARAT HIGH COURT IN THE CASE OF CIT VS. MAULIKKUMAR K. SHAH 307 ITR 137. DURING THE CO URSE OF HEARING OF THE APPEAL THE LD. COUNSEL FOR THE ASSESSEE HAS INVITE D OUR ATTENTION TO THE FACT THAT BOTH THE APPELLANTS ARE FATHER AND SON AND DUR ING THE COURSE OF SEARCH SOME LOOSE PAPERS CONTAINING FIGURES WERE FOUND BE SIDES SOME D-FORM PATTADAR PASS BOOKS PERTAINING TO THE LANDS. THE E STIMATION OF THE INCOME FROM PRAWN CULTURE WAS SOLELY ON THE BASIS OF D-FOR M PATTADAR PASS BOOKS PERTAINING TO THE LANDS FOUND FROM THE ASSESSEE DU RING THE COURSE OF SEARCH. FROM THESE DOCUMENTS IT IS NOT PROVED THAT THE ENT IRE LAND BELONG TO THE ASSESSEES AND THE ASSESSEE HAD AN INCOME FROM PRAWN CULTURE ACTIVITIES PERFORMED ON THE LAND. IT IS FOR THE REVENUE TO BR ING OUT SOME COGENT MATERIAL ON RECORD TO ESTABLISH THAT ASSESSEE HAD S OME INCOME FROM THE PRAWN CULTURE BUSINESS FROM THE SAID LAND. THESE D -FORM PATTADAR PASS BOOKS NEVER BELONGED TO THE ASSESSEES. IT WAS RATH ER BELONGED TO SOME OTHER VILLAGERS WHO WERE NEVER EXAMINED BY THE ASS ESSING OFFICER. THE ASSESSEE HAD DISCHARGED THE PRIMARY ONUS WITH REGAR D TO THE AVAILABILITY OF THE PASS BOOKS BY SUBMITTING THAT IT BELONGED TO SO ME OTHER VILLAGERS AND ACCORDINGLY THE BURDEN SHIFTS TO THE DEPARTMENT TO PROVE THAT THE IMPUGNED LAND WAS OWNED BY THE ASSESSEE. THE LD. COUNSEL FO R THE ASSESSEE FURTHER INVITED OUR ATTENTION TO THE FACT THAT THE SIMILAR ISSUE WAS RAISED IN THE ASSESSMENT YEAR 1993-94 BEFORE THE TRIBUNAL AND THE TRIBUNAL FOLLOWING ITS EARLIER ORDER HAD SET ASIDE THE MATTER TO THE FILE OF THE A.O. 8. WITH REGARD TO THE NOTINGS IN THE LOOSE PAPERS F OUND DURING THE COURSE OF SEARCH IT WAS CONTENDED BY THE ASSESSEE THAT IT WAS NOT IN HIS HAND WRITINGS AND THEY DO NOT BELONG TO HIM AND ALSO IT DOES NOT CARRY ANY 4 SIGNATURES OF THE ASSESSEES AND THE REVENUE HAS NOT BROUGHT ANYTHING ON RECORD TO SUBSTANTIATE THAT THESE DOCUMENTS BELONG TO THE ASSESSEES AND THE ENTRIES FOUND THERE IN PERTAIN TO THE ASSESSEES IN COME. 9. THE LD. D.R. ON THE OTHER HAND HAS SUBMITTED THA T THESE DOCUMENTS WERE FOUND FROM THE ASSESSEES DURING THE COURSE OF SEARCH. HE HAS INVITED OUR ATTENTION TO THE PROVISIONS OF SECTION 132(4) O F THE I.T. ACT AND THE EVIDENCE ACT WITH THE SUBMISSIONS THAT THE ONUS IS UPON THE ASSESSEE TO PROVE OR EXPLAIN THE DOCUMENTS IF FOUND FROM HIM DU RING THE COURSE OF SEARCH PROCEEDINGS. IF THE ASSESSEE FAILED TO EXPLAIN THE SAME THE PRESUMPTION GOES AGAINST HIM. THE LD. D.R. FURTHER CONTENDED T HAT THE D-FORM PATTADAR PASS BOOKS IN THE NAME OF DIFFERENT PERSONS WERE FO UND FROM THE ASSESSEES POSSESSION DURING THE COURSE OF SEARCH. IN THESE C IRCUMSTANCES THE ONUS WAS ON THE ASSESSEE TO PROVE OR EXPLAIN AS TO WHY T HE PASS BOOKS WERE KEPT BY HIM. SINCE THE ASSESSEE WAS BADLY FAILED TO PLA CE ANY EVIDENCE IN SUPPORT OF HIS CONTENTION OR EXPLAIN THE AVAILABILITY OF PA SS BOOKS FROM HIM THE REVENUE HAS REASONABLE CAUSE TO DRAW AN INFERENCE A GAINST THE ASSESSEES. THE LD. D.R. FURTHER CONTENDED THAT NOT ONLY IN FIR ST ROUND OF PROCEEDING BUT ALSO IN THE SECOND ROUND ALSO THE AUTHORITIES HAVE GIVEN SUFFICIENT TIME TO THE ASSESSEE TO PRODUCE THE RELEVANT EVIDENCE WITH REGA RD TO THE OWNERSHIP OF THE LAND SHOWN IN THE PATTADAR PASS BOOKS. DESPITE THE SECOND OPPORTUNITY GRANTED TO THE ASSESSEES HE COULD NOT PRODUCE ANY EVIDENCE TO EXPLAIN OR JUSTIFY THE AVAILABILITY OF THE PASS BOOKS FROM HIM DURING THE COURSE OF SEARCH. 10. SO FAR AS NOTING ON THE LOOSE PAPERS ARE CONCER NED THE ONUS WAS ALSO UPON THE ASSESSEE TO EXPLAIN THE ENTRIES FOUND THER EIN. MERE SAYING THAT IT IS A DUMB DOCUMENTS AND CANNOT BE RELIED ON THE ASSES SEE CANNOT DISCHARGE ITS ONUS PRIMARY LAY UPON HIM. SINCE THE ASSESSEE COULD NOT EXPLAIN THE ENTRIES FOUND IN THE LOOSE PAPERS SEIZED FROM HIS P OSSESSION THE ASSESSING OFFICER HAS RIGHTLY ESTIMATED THE INCOME OF THE ASS ESSEES. 11. HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A C AREFUL PERUSAL OF THE RECORD WE FIND THAT IN THE FIRST ROUND OF APPEAL THE ASSESSEE COULD NOT FURNISH THE EXPLANATIONS OR PRODUCE THE EVIDENCE TO JUSTIFY THE AVAILABILITY OF 5 THIS PATTADAR PASS BOOKS RELATING TO VARIOUS LANDS FROM THE ASSESSEE DURING THE COURSE OF SEARCH. IN THE FIRST ROUND OF APPEAL THE TRIBUNAL HAS GIVEN THE EXPLICIT FINDING THAT THE PRIMARY ONUS OF EXPLAININ G THE EVIDENCE OR MATERIAL COLLECTED FROM THE ASSESSEE AT THE TIME OF SEARCH L IES UPON THE ASSESSEE AS PER THE PROVISIONS OF EVIDENCE ACT. IN ORDER TO AF FORD ONE MORE OPPORTUNITY TO THE ASSESSEE THE TRIBUNAL HAS SET ASIDE THE ORD ER OF THE CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE A.O. FOR RE-A DJUDICATION OF THE IMPUGNED ISSUES. FOR THE SAKE OF REFERENCE THE RELEVANT OB SERVATIONS OF THIS TRIBUNAL ARE EXTRACTED HEREUNDER: HAVING CONSIDERED ALL THESE ABOVE ASPECTS WE HOLD THE VIEW THAT THE PRIMARY ONUS OF EXPLAINING THINGS AS PER T HE MATERIAL COLLECTED AT THE TIME OF SEARCH LIES WITH THE ASSES SEES AS PER THE PROVISIONS OF THE EVIDENCE ACT. ALTHOUGH THE EVIDE NCE ACT IS NOT FULLY APPLICABLE TO THE INCOME TAX PROCEDURE YET TH E ASSESSEE CANNOT ESCAPE FROM THE PRIMARY ONUS IN VIEW OF THE FACT THAT THE MATERIALS WERE FOUND IN HIS POSSESSION AT THE TIME OF SEARCH SO WE ARE UNABLE TO PERSUADE OURSELVES TO AGREE WITH THE ARGUMENT ADVANCED BY THE LEARNED COUNSEL ON BEHALF OF THE AS SESSEE BEFORE THE CIT(A). AT THE SAME TIME WE ARE UNABLE TO APPR ECIATE THE RELIEF GRANTED BY THE CIT(A) IN THIS REGARD. HENCE THE MATTER IS BEING SET ASIDE TO THE FILE OF THE AO FOR FRESH CONSIDERATION WITH THE DIRECTION TO COMPLETE THE ORDER WITHIN SIX MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER B Y BOTH THE SIDES. 12. EVEN IN THE SECOND ROUND THE ASSESSEE COULD NOT IMPROVE HIS CASE BEFORE THE A.O. DESPITE OF REPEATED REQUEST OF THE ASSESSING OFFICER. WE HAVE CAREFULLY EXAMINED THE ORDER OF THE ASSESSING OFFICER AS WELL AS THE CIT(A) AND WE FIND THAT VARIOUS OPPORTUNITIES WERE GRANTED TO THE ASSESSEES EITHER TO PRODUCE SOME EVIDENCE IN SUPPORT OF HIS C ONTENTIONS THAT HE DID NOT OWN THE LAND AND IT BELONGS TO SOME OTHER PERSON AN D THE PATTADAR PASS BOOKS WERE FOUND FROM HIM BY CHANCE. THE ASSESSEE WAS RATHER FAILED TO EXPLAIN THE ENTRIES FOUND IN THE LOOSE DOCUMENTS SE IZED DURING THE COURSE OF SEARCH. THE OBJECTIONS RAISED BY THE ASSESSEE TO T HE ASSESSMENT ORDER ARE DEALT WITH BY THE CIT(A) IN HIS ORDER IN DETAIL. F OR THE SAKE OF REFERENCE WE EXTRACT THE RELEVANT OBSERVATIONS OF THE CIT(A) AS UNDER:- 6 I HAVE HEARD THE AR AND I HAVE GONE THROUGH THE AS SESSMENT ORDER PASSED BY THE ASSESSING OFFICER. IN THIS CAS E BEFORE PROCEEDING FURTHER IT IS NECESSARY TO QUOTE THE ORD ER PASSED BY THE ITAT VIZAG BENCH IN ITA NO.1775 & 1776/H/1995 FOR THE ASST. YEAR 1992-93 IN THE CASE OF SHRI KATRAGADDA SEETHAR AMAIAH AND SHRI KATRAGADDA RAMESH NAGAYALANKA. AT PARAGRAPH 5 OF PAGE 2 THE HON'BLE ITAT WAS OF THE VIEW HAVING CONSIDERED ALL THESE ABOVE ASPECTS WE HOLD THE VIEW THAT THE PRIMARY ONUS OF EXPLAINING THE THINGS AS PER THE MATERIAL COLLECTED AT THE TIME OF SEARCH LIES WITH THE ASSESSEE AS PER THE PROVISIONS OF THE EVIDENCE ACT AT THE SAME TIME WE ARE UNABLE TO APPRECIAT E THE RELIEF GRANTED BY THE CIT(A) IN THIS REGARD. FURTHER AT PARAGRAPH 6 OF PAGE 3 IT HAS ALSO BEEN MENTIONED HENCE THE MATTE R IS BEING SET ASIDE TO THE FILE OF THE AO FOR FRESH CONSIDERATION WITH A DIRECTION TO COMPLETE THE ORDER WITHIN SIX MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER BY BOTH THE SIDES. THE ORDER OF THE ITAT WAS PASSED ON 19.9.2002. THE A.O. HAS COMPLETED THE ASSESSMENT O N 28.3.2003. IF THE SERVICE OF THE ITATS ORDER ON BOTH THE SIDE S IS CONSIDERED THEN IT IS WELL WITHIN THE TIME OF SIX MONTHS AS DI RECTED BY THE ITAT. NOW AS REGARDS TO THE INADEQUATE OPPORTUNITY AS SUBMITTED BY THE AR I FIND THAT ONLY TWO OPPORTUNITIES WERE GIVEN I.E. TO SAY ON 26.3.2003 AND 27.3.2003. THE DIRECTIONS GIVEN B Y THE ITAT WE4RE MEANT FOR BOTH THE PARTIES-THE REVENUE AS WEL L AS THE APPELLANT. IN THE INSTANT CASE THE APPELLANT HAS N OT FILED WHATEVER THE EVIDENCES IN HIS POSSESSION BEFORE THE ASSESSIN G AUTHORITY. FURTHER THE ISSUE REQUIRED MORE CONSIDERATION BY T HE APPELLANT AS THE ASSESSMENTS WERE FINALIZED AFTER SEARCH & SEIZU RE OPERATION THAT TOO AFTER SEIZING INCRIMINATING MATERIAL. IT ASSUMED FURTHER IMPORTANCE BECAUSE THE ASSESSMENT YEAR WAS 1992-93 AND IT WAS VERY OLD ASST. YEAR. FURTHER THE ISSUES WERE VERY IMPORTANT BECAUSE THE ITAT WAS NOT SATISFIED WITH THE RELIEF GIVEN BY THE CIT(A) AND HAD DIRECTED FOR THE COMPLETION OF THE A SSESSMENT WITHIN SIX MONTHS FROM THE DATE OF RECEIPT OF THE O RDERS FOR BOTH THE SIDES. IN SUCH SITUATION THE ASSESSMENT WAS V ERY IMPORTANT FOR THE APPELLANT ALSO AND IF THE APPELLANT WOULD HAVE DISCHARGED HIS FUNCTION BY SUBMITTING THE EVIDENCES IN HIS POSSESS ION AND AFTER THAT IF THE ASSESSING OFFICER WOULD NOT HAVE ACTED THEN THE ADDITION WOULD HAVE BEEN AUTOMATICALLY DELETED FOR NON-APPLICATION OF MIND AND NON-ACTION BY THE ASSESSING OFFICER. B UT IN THE INSTANT CASE THAT HAD NOT HAPPENED. EVEN THE TWO OPPORTUN ITIES GIVEN BY THE ASSESSING OFFICER HAD BEEN CONSIDERED BY THE AP PELLANT AS INSUFFICIENT AND THE APPELLANT HAD GONE TO FILE A P ETITION AGAINST THE ASSESSING OFFICER BEFORE THE CIT VIJAYAWADA. THE OUTCOME OF THE PETITION IS ALSO NOT KNOWN AND THE AR OF THE APPELL ANT HAS NOT APPRAISED THIS FORUM REGARDING THE OUTCOME. FURTHE R THE AR HAD REQUESTED TO SET ASIDE THE MATTER AGAIN TO THE FILE OF THE ASSESSING OFFICER WHICH POWER THIS FORUM IS NOT HAVING AFTER THE AMENDMENT TO THE INCOME TAX ACT W.E.F. 1.6.2001. AS REGARDS TO THE REQUEST FOR THE AR FOR REMANDING THE MATTER THE SAME IS P RESUMED AS UNNECESSARY INTERFERENCE IN THE LIGHT OF THE DIRECT ION GIVEN BY THE ITAT TO THE AO AS WELL AS TO THE APPELLANT FOR COMP LETION OF 7 ASSESSMENT WITHIN A STIPULATED PERIOD. SO THIS FOR UM IS NOT OBLIGED TO EXTEND THE TIME LIMIT DIRECTLY OR INDIRECTLY GIV EN BY THE HIGHER APPELLATE AUTHORITY. FURTHER EXCEPT FILING COPIES OF THE COMPLAINT LETTER FILED BEFORE THE COMMISSIONER OF INCOME TAX VIJAYAWADA THE COPIES OF THE ORDERS OF THE CIT(A) AND THE ITAT AND THE COPIES OF THE STATEMENTS RECORDED IN COURSE OF SEARCH AS W ELL AS ASSESSMENT PROCEEDINGS AND COPY OF THE LEASEHOLD PA TTA NOTHING NEW AND NO FURTHER EVIDENCE HAS BEEN FILED BEFORE T HIS FORUM WHICH REQUIRES FRESH INVESTIGATION BY THE ASSESSING OFFIC ER THROUGH A REMAND REPORT. HENCE THE REQUEST MADE BY THE AR OF THE APPELLANT IS NOT ACCEDED AS PROPER. AGAIN AS PER THE AR THE AO HAD INVESTIGATED THE MATTER AND EXAMINED THE RECORD S AND DOCUMENTS THROUGH INSPECTOR AND HAS TAKEN THE RESPO NSIBILITY OF SIGNING THE ORDER SHEET AND THE AR HIMSELF HAS ALSO SIGNED THE ORDER SHEET FOR COMPLETION OF ASSESSMENT. FURTHER THE INSPECTORS ARE MEANT TO ASSIST AND CARRY OUT THE DIRECTIONS OF THE ASSESSING OFFICER. SO INSTEAD OF CITING INFIRMITY IN SUCH AC TION IT WAS IN THE BEST INTEREST OF THE APPELLANT TO FILE ALL THE EVID ENCES BEFORE THE ASSESSING OFFICER AND GET HIS FACTS EXAMINED BEFORE THE PASSES THE ORDER U/S 143(3) R.W.SEC.254 ON THE BASIS OF SEIZED AND INCRIMINATING MATERIAL. SINCE THE APPELLANT HAS FI LED A PETITION BEFORE THE CIT VIJAYAWADA AGAINST THE ASSISTANCE O F THE INSPECTOR THEREFORE THIS FORUM RESTRICTS ITSELF TO THE FACTS AVAILABLE IN THE ASSESSMENT ORDER AND THE DOCUMENTS AS PRODUCED BY T HE AR OF THE APPELLANT WITHOUT SIDE TRACKING TO THE ADMINISTRATI VE ISSUES COMPLAINED BY THE APPELLANT. FURTHER I FIND IN TH E ASSESSMENT ORDER THERE IS NO REFERENCE TO THE INVESTIGATION OF THE INSPECTOR FROM WHICH A JUDICIAL VIEW CAN BE TAKEN AGAINST THE ASSESSMENT MERELY BASING ON ONE SIDED INTIMATION OF THE AR OF THE APPELLANT. MOREOVER AT PAGE 3 OF THE ASSESSMENT ORDER IT HAS BEEN MENTIONED BASING ON THE SEIZED MATERIAL FOUND DURI NG THE COURSE OF SEARCH THE NOTINGS FOUND ON ANNEXURES A-2 A-3 & A-4 ARE TREATED AS INCOMES OF THE ASSESSEE. SINCE THE ASSESSEE IS DOING HIS BUSINESS JOINTLY WITH HIS SON SHRI K. RAMESH 50% O F SUCH INCOME IS ASSESSED IN THE HANDS OF THE ASSESSEE AND THE RE MAINING IS ADDED TO THE INCOME OF HIS SON. SIMILARLY D FORMS /LEASE DEEDS FOUND IN THE POSSESSION OF THE ASSESSEE TO THE EXTE NT OF 98.47 ACRES WERE TREATED AS BELONGING TO THE ASSESSEE JOI NTLY WITH HIS SON. THUS INCOME ON PISCI CULTURE WAS ESTIMATED BY TAKIN G THE WATER SPREAD AREA AT 70% OF THE TOTAL AREA AS PER T HE BOARDS INSTRUCTION IN LETTER IN F.NO.225/222/93/ITA.II DA TED 19.10.1993. THUS FROM THE ORDER OF THE ASSESSING OFFICER IT IS APPARENT THAT HE HAS TAKEN HIS DECISION BASING ON THE SEIZED MATERIA L AS WELL AS DISCOVERY OF D FORMS/LEASE DEEDS AND IN ACCORDANCE WITH THE CBDTS INSTRUCTIONS CITED SUPRA. BUT AGAINST THAT IT SEEMS THE APPELLANT HAS NOT FILED ANY EVIDENCE AND HAS PROCED URALLY CHALLENGED THAT THE TIME WAS NOT SUFFICIENT AND THE AO HAS NOT CALLED FOR THE INFORMATION. BUT THE ITAT VIZAG BE NCH HAS DIRECTED BOTH THE APPELLANT AND THE ASSESSING OFFICER TO GET THE ASSESSMENT COMPLETED WITHIN SIX MONTHS AND IT VISUALIZED COMPL EMENTARY ROLE FOR BOTH THE ASSESSING OFFICER AS WELL AS THE APPEL LANT. THE 8 APPELLANT CANNOT REMAIN SILENT THROUGHOUT THE PERIO D OF LIMITATION AND ULTIMATELY SAY THAT ADEQUATE OPPORTUNITY WAS NO T GIVEN WHEN THE AO HAS GIVEN TWO OPPORTUNITIES. FURTHER SINCE THE MATTER WAS OLD AND ONCE IT HAS BEEN ASSESSED ALREADY THE APPE LLANT WOULD HAVE BEEN READY WITH ALL THE EVIDENCES FOR PRODUCTI ON BEFORE THE ASSESSING AUTHORITIES AND THE APPELLATE AUTHORITIES AND WITHOUT WASTING ANY MOMENT HE OUGHT TO HAVE FILED THE EVID ENCES IN HIS POSSESSION. BUT IN THE INSTANT CASE IT SEEMS THA T HAS NOT HAPPENED. FURTHER I FIND THAT THE APPELLANT HAD S TATED THAT THE ASSESSING OFFICER HAS NOT CALLED FOR ANY INFORMATIO N VIDE POINT NO.5 OF THE GROUNDS OF APPEAL. BUT IT IS NOT UNDERSTOOD HOW THE ASSESSING OFFICER SHALL VISUALIZE WHAT INFORMATION THE APPELLANT IS HAVING IN HIS POSSESSION SO THAT HE WOULD CALL FOR THOSE PARTICULARS. MOREOVER WHEN HE IS HAVING SEIZED MATERIAL AND OTHE R INCRIMINATING DOCUMENTS IT IS THE DUTY OF THE APPELLANT TO CONTR ADICT THOSE INCRIMINATING MATERIAL BY FILING EVIDENCES AGAINST THOSE DOCUMENTS AND MATERIALS. FURTHER IT IS ALSO SEEN THAT THOUGH THE APPELLANT HAS FILED THE PETITION BEFORE THE CIT VIJAYAWADA WITH A COPY TO THE ADDL. CIT VIJAYAWADA YET THE ORDER OF THE ASSESSI NG OFFICER HAS BEEN APPROVED BY THE ADDL. CIT RANGE-2 VIJAYAWADA VIDE F.NO.ICFR-2/2002-03 DATED 28.3.2003. IF THERE WOUL D HAVE BEEN ANY DISCREPANCY THEN THE ADDL. CIT RANGE-2 WOULD NOT HAVE APPROVED SUCH ORDER PASSED BY THE ASSESSING OFFICER WHICH AS PER THE AR OF THE APPELLANT IS ILLEGAL. EVEN IN FORM NO.35 THE APPELLANT HIMSELF HAS INTIMATED THAT THE ORDER HAS BEEN SERVED ON HIM ON 31.3.2003. IN SUCH VIEW OF THE MATTER I FI ND THAT THE REQUEST OF THE APPELLANT EITHER TO SET ASIDE THE AS SESSMENT OR TO REMAND THE MATTER IS NOT POSSIBLE AS PER MY AFORESA ID DISCUSSION. THEREFORE SINCE THE AO HAS FOLLOWED THE INSTRUCTIO N OF THE CBDT AND HAS DONE THE ASSESSMENT AS PER THE SEIZED MATER IALS AND AS PER THE INCRIMINATING MATERIAL VIZ. D FORMS/LEASE DEEDS ETC. AND THE APPELLANT HAD NOT FILED ANY EVIDENCE TO CONTRAD ICT THE SAME BEFORE THE ASSESSING OFFICER THEREFORE I FIND THE ASSESSMENT IS JUSTIFIED. ACCORDINGLY I CONFIRM THE ADDITIONS MA DE BY THE ASSESSING OFFICER. 13. DURING THE COURSE OF HEARING OF THE APPEAL SPEC IFIC QUERY WAS RAISED FROM THE ASSESSEES WITH REGARD TO THE JUSTIFICATION OF KEEPING A PATTADAR PASS BOOKS ISSUED IN THE NAME OF THE OTHER PERSON WITH H IM AND ALSO TO EXPLAIN THE ENTRIES FOUND IN THE LOOSE SHEETS SEIZED DURING THE COURSE OF SEARCH. BUT THE LD. COUNSEL FOR THE ASSESSEES COULD NOT FURNISH A SATISFACTORY REPLY. WE THEREFORE FIND NO MERIT IN HIS ARGUMENT AND CONFIRM THE ORDER OF THE CIT(A) ON THE IMPUGNED ISSUES. 9 14. IN APPEAL NO.480 OF 2003 THE ASSESSEE HAS RAIS ED ONE MORE GROUND WITH REGARD TO THE ADDITION OF RS.80 000/- WHICH WA S MADE BY THE A.O. ON ESTIMATION. ON CAREFUL PERUSAL OF THE RECORDS WE FOUND THAT THIS ADDITION WAS MADE BY THE A.O. ON THE BASIS OF THE DOCUMENTS PERTAINING TO THE LEASE OF LANDS FOUND DURING THE COURSE OF SEARCH. IN THI S REGARD ALSO THE ASSESSEE COULD NOT FURNISH ANY EXPLANATIONS AS TO WHY LEASED DEEDS WERE KEPT BY HIM. NO SPECIFIC ARGUMENTS WERE RAISED DURING THE COURSE OF THE HEARING OF THE APPEAL. WE HOWEVER CAREFULLY EXAMINED THE ORDER OF THE CIT(A) IN THIS REGARD AND WE FIND NO INFIRMITY THEREIN. WE ACCORD INGLY CONFIRM HIS ORDER. 15. IN THE RESULT THE APPEALS OF THE ASSESSEE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 28.1.2010 SD/- SD/- (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM DATED 28 TH JANUARY 2010 COPY TO 1 KATRAGADDA SITARAMAIAH C/O SANTHI THEATRE NAGAY ALANKA KRISHNA DIST.- 521120 2 THE ACIT CIRCLE-2(1) VIJAYAWADA 3 THE CIT VIJAYAWADA 4 THE CIT(A) VIJAYAWADA 5 THE DR ITAT VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM