TMI Blog2012 (4) TMI 468X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs has to be taxed at a flat rate - no matter whether the income has been assessed under the head “income from business”, “income from other sources” or “income from property”. - ITA 281/2006 - - - Dated:- 19-4-2012 - MR. JUSTICE SANJIV KHANNA, MR. JUSTICE R.V.EASWAR, JJ. For Appellant: Mr. Deepak Chopra, sr. standing counsel with Mr. Harpreet Singh Ajmani, Advocate. O R D E R This appeal under Section 260A of the Income Tax Act, 1961 (Act, for short) preferred by the Revenue in the case of A.K. Jain pertains to the block assessment period 1988-1989 to 1998-1999. By order dated 14th May, 2007, the following substantial questions of law were framed for consideration:- (a) Whether the Income Tax Appellate Tribunal was correct in law in deleting the addition made by the Assessing Officer on account of undisclosed investment on the ground that in the absence of any other documentary material, a registered sale deed is to be treated as genuine and that no relevant material had been seized during the search of the premises of the Assessee? (b) Whether the Income Tax Appellate Tribunal was correct in law in deleting the addition of Rs.5,60,750/-, Rs.4,50,600/- an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the Assessing Officer cannot make addition solely on the basis of the report of the DVO. He also observed that no material or evidence was found during the course of search to show and establish that the assessee had received undisclosed amount or had earned undisclosed income in the transactions relating to the three properties. 7. Revenue preferred an appeal against the aforesaid finding recorded by the CIT (Appeals). Appeal filed by the Revenue has been dismissed by the tribunal on the two grounds. Firstly, it has been held that no incriminating material was found during the course of search and the transactions were duly reflected in the returns filed by the assessee in the normal course. Secondly, it is pointed out that except for DVO s report, there was no other material to show and establish that the assessee had made investment from undisclosed sources or had received under hand consideration. We may note that the Revenue has not placed on record DVO s report and we do not have advantage of examining and going through the same. In absence of the said data and material, it is impossible for us to verify and decided whether or not the findings recorded by the CIT (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to believe that P.C. Gupta, who had acquired the property for Rs.8,19,310/-, would have transferred the same property after 5 years for Rs.4,00,000/- only. 11. It appears that the Revenue did not prefer any appeal against the findings recorded and part deletion directed by the CIT (Appeals) in respect of the said property. The assessee filed an appeal. The tribunal in the impugned order has observed that there was no direct evidence regarding purchase of property for Rs. 8,00,000/- and, therefore, addition of Rs. 4,00,000/- was not justified. The exact reasoning given by the tribunal reads as under:- 17. We have carefully considered the entire material on record and the rival submission made before us. So far as property no.1028, Section 15-II, Gurgaon is concerned, this property was originally allotted to Shri P.C. Gupta in 1989 and from whom Ms. Sonali Jain, the daughter of the assessee purchased the plot on 28.06.1994. It was pointed out during the course of hearing by the Ld. counsel for the assessee that Ms. Sonali Jain was also assessed to tax and he had also filed returns for the block period. In this regard our attention was invited to the acknowledgement which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot jurisdiction. However, block assessment should have been initiated. In any case, as noticed above, the document i.e. the allotment letter issued by P.C. Gupta was certainly found at the time of search. 13. With regard to the addition made in the hands of the assessee, the tribunal in the reasoning recorded above has ignored and not given due credence and importance to the purchase price of Rs.8,19,310/- in 1989 and the fact that the property was sold in 1994 to Sonali Jain, who was at that time was a minor and was not earning. She had no source of income. It is not possible to accept and believe that the value of the property in five years would have come down by more than 50% from Rs.8,19,310 to Rs.4,00,000/-. It is also not possible to believe that Sonali Jain could have paid or had earned any undisclosed money, even when she was not working or earning. There is no evidence or material to show that she had an independent source of income. The factum that Sonali Jain had shown income of Rs.4,00,000/- in her return is inconsequential. The issue in question was the addition of Rs.4,00,000/- in the hands of the assessee on account of the undisclosed investment in the property, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en arguments, which we have perused. 7. In our opinion, the contention urged by Dr Gauri Shankar merits acceptance. We are of the opinion that under the present Act, the Income Tax Officer has no option like the one he had under the 1922 Act. He can, and he must, tax the right person and the right person alone. By right person , we mean the person who is liable to be taxed, according to law, with respect to a particular income. The expression wrong person is obviously used as the opposite of the expression right person . Merely because a wrong person is taxed with respect to a particular income, the Assessing Officer is not precluded from taking the right person with respect to that income. This is so irrespective of the fact which course is more beneficial to the Revenue. In our opinion, the language of the relevant provisions of the present Act is quite clear and unambiguous. Section 183 shows that where Parliament intended to provide an option, it provided so expressly. Where a person is taxed wrongfully, he is no doubt entitled to be relieved of it in accordance with law* but that is a different matter altogether. The person lawfully liable to be taxed can claim no immuni ..... X X X X Extracts X X X X X X X X Extracts X X X X
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