TMI Blog2010 (8) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment years 1997-1998 to 2002-2003 and upto 28.05.2002. Put in brief, the relevant background aspects of the matter are that the respondent assessee is an individual and a partner of the firm M/s. Govadia Jewellers. A search and seizure action was carried out under Section 132 of the Act on 28.05.2002 at the residential and business premises of the Govadia Group of which, the assessee is said to be a member. A notice under Section 158BC of the Act was issued to the assessee who filed a return on 10.12.2002 declaring income of Rs.4,00,000/- for the block period assessment years 1997-1998 to 2002-2003 and upto 28.05.2002. The assessment proceedings were completed by the Asssessing Officer ('the AO') by the order dated 20.05.2004 while determining total undisclosed income of the assessee at Rs.16,73,650/-. Aggrieved by the aforesaid order dated 20.05.2004, the assessee preferred an appeal that was considered and partly allowed by the Commissioner of Income Tax (Appeals), Udaipur ['the CIT (A)'] by the order dated 18.10.2005 wherein the learned CIT (A) granted relief to the assessee on various scores, as noticed infra. Aggrieved by the order dated 18.10.2005 so passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and the circumstances of this case, the learned CIT (A), Udaipur has erred in deleting the addition of Rs.20000/- made on Protective basis on account unexplained investment in renovation of shop. 11. The learned CIT (A) has erred in law and facts while deleting the surcharge levied as the Finance Act clearly laid down that the surcharge is leviablee on rate prescribed U/s 113 of the Act, Section 113 prescribes rate for block period only. The rates for block period would be governed by charging section 4 of the act, which says that rate prescribed under Central Act would be applicable to income of previous year. So far as the grounds Nos.1, 4, 6, 8 and 9 aforesaid relating to the alleged unexplained items of cash, expenditure, deposit and investments are concerned, the Tribunal found the learned CIT (A) justified in accepting the explanations of the assessee with reference to the material on record and the customs of the family; and found no reason to interfere. So far as the ground No.2 aforesaid relating to investment in construction of residential house is concerned, the Tribunal found no reason to interfere with the discount allowed at 10% towards self supervi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect does not call for any interference. In this view of the matter, the difference between adjusted cost worked out as aforesaid on the basis of DVO's report and the cost so estimated at Rs.4,49,138/- from the known sources shall be the amount of unexplained investment that has to be taken as undisclosed income. The assessee, however, has claimed that an amount of Rs.200000/- has already been offered for taxation as his undisclosed income covering the investment in construction of property, unexplained gold and silver jewellery, cash etc. That besides, we also find a whisper that the amount of Rs.1,50,000/- is stated to have been stated out of undisclosed income of the family members. These statements appear to be contradictory. The Assessing Officer shall verify this fact as to how much amount has factually be brought to tax as undisclosed income on account of unexplained investment in the house property in his hands or as contribution by other family members. Any amount as such that is found to have been taxed as undisclosed income shall further be reduced from the undisclosed investment worked out as aforesaid and balance thereof shall also be brought to tax as undisclosed inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estment. The order of the ld. CIT (A), accordingly, stands modified. The ground raised in appeal stands partly allowed. In relation to ground No.10 pertaining to unexplained investment in renovation of shop also, the Tribunal found the matter requiring reconsideration by the AO and said,- 23. We have heard the parties and have perused the material on record. The assessee's case before the authorities below is that in the return of undisclosed income filed for the block period, the respondent-assessee himself has declared Rs.200000/- as his undisclosed income on account of investment in renovation of shop. That being so, the ld. CIT (A) could not have deleted the income so declared though stated to have been taxed by the Assessing Officer on protective basis. It, however, sounds reasonable that the same income cannot be taxed twice in the hands of the assessee once as per disclosure of undisclosed income made in his return by him and again on protective basis. This fact needs to be verified by the Assessing Officer. We, therefore, restore the matter back to the Assessing Officer, who shall ensure inclusion of Rs. 2 lacs as assessee's undisclosed income on the basis of declar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atutory character so that the assessment has to be made on their basis alone. On the contrary, the Tribunal has taken conscious note of the earlier decisions to the effect that PWD rates have to be allowed for the purpose of construction in the State of Rajasthan. On the rebate as allowed by the Tribunal for the purpose of conversion to PWD rates from the estimate made on the basis of CPWD rates, no substantial question of law arises for consideration. Then, the order remitting some of the relevant questions for enquiry does not finally decide the rights of the parties. It has only afforded an opportunity to the assessee to place its case before the AO and to get the issues tried in accordance with law. It cannot be disputed that the Tribunal while exercising the appellate powers has the jurisdiction to remit the question/s to AO or to the First Appellate Authority as it may deem fit and proper depending upon the facts of each case. In such circumstances , if in the facts of this case, the Tribunal formed an opinion to remit some of the questions to AO for re-determination, no fault can be found in its approach. No substantial question of law is made out in this case within the mea ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
