Commissioner of Income Tax Bilaspur Vs. Jagdish Prasad Bansal - Court Judgment

SooperKanoon Citationsooperkanoon.com/952262
CourtChhattisgarh High Court
Decided OnOct-18-2011
Case NumberTax Case No 57 of 2010
Judge SATISH K AGNIHOTRI & RADHE SHYAM SHARMA
AppellantCommissioner of Income Tax Bilaspur
RespondentJagdish Prasad Bansal
Excerpt:
(income tax appeal under section 260-a of the income tax act, 1961)satish k. agnihotri, j1. the assessing officer (for short `the ao') additional commissioner, income tax, passed the assessment order under section 144 of the income tax act, 1961 (for short `the act') on 03.12.2007 for the assessment year 2005-2006 on the basis of proceedings initiated after survey under section 133-a of the act assessing the total income of the assessee to the tune of rs. 1,44,89,040/-2. thereagainst, the assessee preferred an appeal before the commissioner of income tax, (appeals) {for short `the cit(a)}. the assessee filed an application under rule 46-a seeking admission of additional evidence mainly in the form of confirmation letters from various persons. copies of the same were forwarded to the ao under the office letter in ita no. 165/cit(a)/bsp/07-08/385 dated 14.03.2008, calling for his report and comments on the same. a reminder under this office letter of even no. dated 23.05.2008 was issued. in response to the above letter, the ao under his f.no. addl.cit/r-2/bsp/report/08-09//504 dated 25.04.2008 had sought two weeks time for the submission of his report/comments. his report/comments in this regard were received under his letter dated 01.05.2008. a copy of the same was made available to the appellant's a.r. on which he filed his counter comments. the cit (a) held that the assessment order passed cannot be categorized as a "best judgment assessment" as it not only suffer with technical and procedural irregularities but also the same was passed in an arbitrary and capricious manner in violation of the principles of natural justice. the entire additions made by the ao to the tune of rs. 1,41,14,208/- were deleted.3. there against, the assessee preferred an appeal before the income tax appellate tribunal, bilaspur bench, bilaspur, (for short `the tribunal') being i.t.a. no. 243/jab/2008, and the revenue also preferred an appeal being i.t. no. 252/jab/2008. the tribunal, considering the case at length, held as under:"21.1 after hearing the rival submissions and on careful perusal of the materials available on record, keeping in view of the fact that the ld. dr could not contradict the findings of the ld. cit (a), we find no infirmity in the order of the ld. cit (a). therefore, the order of the ld. cit (a) on the issue is upheld and the ground taken by the revenue is dismissed.22. ground nos. 15 and 16, being general in nature, do not require any adjudication. therefore, these grounds are dismissed.23. in the result, the appeal of the assessee is dismissed whereas the appeal of the revenue is allowed in part for statistical purpose."4. contention of shri shrivastava, learned counsel appearing for the revenue that the finding is perverse as the cit (a) and the tribunal has completely ignored the fact that several notices were issued to the assessee and the assessee failed to respond to the said notices. thus, the finding that it was not a case of "best judgment assessment", is contrary to the facts.5. on the other hand, shri dubey, learned counsel appearing for the assessee submits that the assessee made a request on 30.11.2007 for adjournment on the ground of his personal illness which was declined and as such, no opportunity of hearing was afforded to the assessee to put forward his case. this is also evident from the observations made by the cit (a).6. on having considered the submissions of the rival parties and perusing the pleadings and documents appended thereto, the cit(a) after having considered the case at length, observed as under:"i have perused the assessment records of the case. it is seen that there has been long intervening periods during the course of the assessment proceedings without any specific and cogent reasons, which have definitely contributed to the abnormal delay in the finalization of the assessment in this case. further, the issues involved in this case cannot be appreciated properly in the absence of the assessee. it is also found that due to non-grant of proper opportunities to the assessee, various documentary evidences in the form of confirmation letters, etc. could not be filed by the assessee before the ao, which have been filed during the course of the appellate proceedings before me, alongwith an application under rule 46a. seeking admission of the same. having regard to the facts and circumstances of the cases, these additional evidences are admitted in terms of rule 46a. these are being discussed at relevant places while dealing with the respective issues."7. relying on several decisions, the cit (a) held that the case cannot be categorized as "best judgment assessment" and thereafter, had discussed each and every issue raised therein by the parties. the tribunal has concurred with the findings recorded by the cit (a) and further, it has not been demonstrated that finding was based on no evidence or it has not been properly appreciated and as such, there was any perversity.8. the substantial question of law arises for consideration only if there is perversity in the finding of fact. the supreme court, in vijay kumar talwar v. commissioner of income tax, delhi, held as under:"23. a finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread. (see madan lal v. gopi, narendra gopal vidyarthi v. rajat vidyarthi, commr. of customs v. vijay dasharath patel, metroark ltd. v. cce and w.b. electricity regulatory commission v. cesc ltd.)".9. this court, in commissioner of income tax, raipur v. shri mangalchand parekh, ge road, rajnandgaon, observed as under:"30. in view of the foregoing, we are of the considered opinion that the findings recorded by the cit (a) and affirmed by the itat are based on proper appreciation of facts and are not perverse, being correlated with each and every transaction. thus, the issue is purely question of facts. no question of law, more so substantial questions of law, as aforestated, arise in the facts of the case.31. as an upshot, both the appeals being bereft of merit, are liable to be and are hereby dismissed."10. the instant appeal involves only on the question of facts, as the facts have been determined by the cit (a) and affirmed by the tribunal. thus, it is a question of facts alone and no question of law, much less substantial question of law, arises in this case for consideration under section 260-a of the income tax act.11. thus, this appeal being bereft of merit, is dismissed.
Judgment:

(INCOME TAX APPEAL UNDER SECTION 260-A OF THE INCOME TAX ACT, 1961)

SATISH K. AGNIHOTRI, J

1. The Assessing Officer (for short `the AO') Additional Commissioner, Income Tax, passed the assessment order under section 144 of the Income Tax Act, 1961 (for short `the Act') on 03.12.2007 for the assessment year 2005-2006 on the basis of proceedings initiated after survey under section 133-A of the Act assessing the total income of the assessee to the tune of Rs. 1,44,89,040/-2. Thereagainst, the assessee preferred an appeal before the Commissioner of Income Tax, (Appeals) {for short `the CIT(A)}. The assessee filed an application under Rule 46-A seeking admission of additional evidence mainly in the form of confirmation letters from various persons. Copies of the same were forwarded to the AO under the office letter in ITA No. 165/CIT(A)/BSP/07-08/385 dated 14.03.2008, calling for his report and comments on the same. A reminder under this office letter of even no. dated 23.05.2008 was issued. In response to the above letter, the AO under his F.No. Addl.CIT/R-2/BSP/Report/08-09//504 dated 25.04.2008 had sought two weeks time for the submission of his report/comments. His report/comments in this regard were received under his letter dated 01.05.2008. A copy of the same was made available to the appellant's A.R. on which he filed his counter comments. The CIT (A) held that the assessment order passed cannot be categorized as a "best judgment assessment" as it not only suffer with technical and procedural irregularities but also the same was passed in an arbitrary and capricious manner in violation of the principles of natural justice. The entire additions made by the AO to the tune of Rs. 1,41,14,208/- were deleted.

3. There against, the assessee preferred an appeal before the Income Tax Appellate Tribunal, Bilaspur Bench, Bilaspur, (for short `the Tribunal') being I.T.A. no. 243/Jab/2008, and the revenue also preferred an appeal being I.T. No. 252/Jab/2008. The Tribunal, considering the case at length, held as under:

"21.1 After hearing the rival submissions and on careful perusal of the materials available on record, keeping in view of the fact that the Ld. DR could not contradict the findings of the Ld. CIT (A), we find no infirmity in the order of the Ld. CIT (A). therefore, the order of the Ld. CIT (A) on the issue is upheld and the ground taken by the Revenue is dismissed.

22. Ground nos. 15 and 16, being general in nature, do not require any adjudication. Therefore, these grounds are dismissed.

23. In the result, the appeal of the Assessee is dismissed whereas the appeal of the Revenue is allowed in part for statistical purpose."

4. Contention of Shri Shrivastava, learned counsel appearing for the revenue that the finding is perverse as the CIT (A) and the Tribunal has completely ignored the fact that several notices were issued to the assessee and the assessee failed to respond to the said notices. Thus, the finding that it was not a case of "best judgment assessment", is contrary to the facts.

5. On the other hand, Shri Dubey, learned counsel appearing for the assessee submits that the assessee made a request on 30.11.2007 for adjournment on the ground of his personal illness which was declined and as such, no opportunity of hearing was afforded to the assessee to put forward his case. This is also evident from the observations made by the CIT (A).

6. On having considered the submissions of the rival parties and perusing the pleadings and documents appended thereto, the CIT(A) after having considered the case at length, observed as under:

"I have perused the assessment records of the case. It is seen that there has been long intervening periods during the course of the assessment proceedings without any specific and cogent reasons, which have definitely contributed to the abnormal delay in the finalization of the assessment in this case. Further, the issues involved in this case cannot be appreciated properly in the absence of the assessee. It is also found that due to non-grant of proper opportunities to the assessee, various documentary evidences in the form of confirmation letters, etc. could not be filed by the assessee before the AO, which have been filed during the course of the appellate proceedings before me, alongwith an application under Rule 46A. seeking admission of the same. Having regard to the facts and circumstances of the cases, these additional evidences are admitted in terms of Rule 46A. These are being discussed at relevant places while dealing with the respective issues."

7. Relying on several decisions, the CIT (A) held that the case cannot be categorized as "best judgment assessment" and thereafter, had discussed each and every issue raised therein by the parties. The Tribunal has concurred with the findings recorded by the CIT (A) and further, it has not been demonstrated that finding was based on no evidence or it has not been properly appreciated and as such, there was any perversity.

8. The substantial question of law arises for consideration only if there is perversity in the finding of fact. The Supreme Court, in Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi, held as under:

"23. A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread. (See Madan Lal v. Gopi, Narendra Gopal Vidyarthi v. Rajat Vidyarthi, Commr. of Customs v. Vijay Dasharath Patel, Metroark Ltd. v. CCE and W.B. Electricity Regulatory Commission v. CESC Ltd.)".

9. This Court, in Commissioner of Income Tax, Raipur v. Shri Mangalchand Parekh, GE Road, Rajnandgaon, observed as under:

"30. In view of the foregoing, we are of the considered opinion that the findings recorded by the CIT (A) and affirmed by the ITAT are based on proper appreciation of facts and are not perverse, being correlated with each and every transaction. Thus, the issue is purely question of facts. No question of law, more so substantial questions of law, as aforestated, arise in the facts of the case.

31. As an upshot, both the appeals being bereft of merit, are liable to be and are hereby dismissed."

10. The instant appeal involves only on the question of facts, as the facts have been determined by the CIT (A) and affirmed by the Tribunal. Thus, it is a question of facts alone and no question of law, much less substantial question of law, arises in this case for consideration under section 260-A of the Income Tax Act.

11. Thus, this appeal being bereft of merit, is dismissed.