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TMI Blog2012 (7) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... ant preferred an appeal before the Commissioner of Income-tax (Appeals), as also before the Income-tax Appellate Tribunal but was unsuccessful. Appeals impugning the order of the Income-tax Appellate Tribunal were registered as I. T. A. Nos. 1604 of 2006, 1691 of 2006, 1692 of 2006 and 1693 of 2006. The order of the Income-tax Appellate Tribunal was questioned on the merits. The alternative argument was the challenge to the jurisdiction on the ground that since a criminal case was pending under the Prevention of Corruption Act, 1988, the income-tax authorities had no jurisdiction to pass assessment orders. 4. Simultaneously, the appellant had also filed a writ petition being W. P. (C) No. 9262 of 2006 raising the issue of want of jurisdiction on the part of the Income-tax Department to proceed with the matter. Vide order dated May 26, 2006, the petitioner was permitted to withdraw the writ petition with liberty to raise all these issues before the Tribunal. On June 12, 2006, an application was filed by the appellant before the Tribunal for deciding the issue of jurisdiction which was raised as a preliminary issue. This was on the strength of the order of this court dated Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist was prepared on the same day, i.e., on December 4, 1984. 9. The assets which were seized pursuant to this house search were divided into the following three groups : Group I (1) Cash of Rs. 14 lakhs seized from the assessee's residence ; (2) Foreign exchange of US$ 2596 seized from the residence of the assessee ; and (3) cash amounting to Rs. 12,78,900 seized from lockers held jointly by Sh. S. K. Bahadur and Smt. Asha Bhatnagar as per the details given below : Rs. (a) Locker No. 63-B, PNB, Gurgaon 6,44,200 (b) Locker No. 38-C, PNB, Gurgaon 3,84,700 (c) Locker No. 369, Allahabad Bank, Parliament Street, New Delhi 2,50,000 Total 12,78,900 Group II (1) Expenses concerning foreign tour to Japan and Hong Kong under- taken by the assessee and his wife in May, 1984, and the various purchases made by them. (2) Jewellery as per the following details seized from the assessee's residence/lockers. Place Weight Value (Rs.) (a) Jewellery seized from residence 1122.95 Grs 2,88,405 (b) Jewellery seized from locker No. 38-C, PNB, Gurgaon 457.8 " 84,675 (c) Jewe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; she had also been bequeathed substantial sums of money by her father-in-law, Ram Bahadur, in terms of his will which had enabled her to purchase the properties which were owned by her in her name on which she had also paid wealth-tax. 13. It is an admitted fact that Smt. Asha Bhatnagar had filed her wealth-tax return on October 30, 1984, which order had been upheld by the Income- tax Appellate Tribunal. It is also relevant to point out that this assessment order of the Wealth-tax Officer is dated October 30, 1984, which was prior in time to the raid which had been conducted by the CBI on the house of the appellant which was on December 4, 1984. 14. The contention of the appellant before this court is that the assets for which wealth-tax already stood paid by his wife, Smt. Asha Bhatnagar, could not be the subject-matter of the additions which have been upheld by the Income-tax Appellate Tribunal in the impugned order. 15. It is not in dispute that wealth-tax on items mentioned in group II and group III (as aforenoted) had been paid by Asha Bhatnagar for the assessment year 1984-85 (except for DDA flat No. 402, East of Kailash which is in the name of S. K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been the subject-matter of additions made by the Income-tax Appellate Tribunal in the impugned order. This is an illegality and liable to be set aside. 19. The evidence which has been led before the Revenue shows that the wife of the assessee, Smt. Asha Bhatnagar, had been subjected to a detailed examination. Her statement was recorded under section 131 of the Income-tax Act, 1961, on February 25, 1988, and on subsequent dates thereafter. Admittedly, the parties had been married in the year 1959. The questions and queries put to her all related to her savings in her name prior to the marriage period as also in the period thereafter. The witness gave explanation for the savings made by her prior to her marriage period and which amount stood deposited by her in her bank account, i.e., a sum of Rs. 10,500 ; she candidly admitted that she had no documentary proof of the said savings and rightly so as it is difficult to conceive that for a saving effected prior to 1959, the party would retain documents evidencing such a saving on a notion that proof for such a transaction would be required more than two decades later. She had explained that she was working as a teacher in this p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which had become a part of her savings. 21. The Assessing Officer had cursorily and illegally ignored this statement of Asha Bhatnagar. His finding that she did not have any documentary proof to evidence her savings which were in the prior marriage period was obviously for the reason that for a saving which was effected almost three decades ago, it would be difficult to conceive that a party would retain documents of such a saving on the premise that almost 30 years later, she would require proof of the same. 22. The will of her father-in-law, Mr. Ram Bahadur, was also rejected without any cogent reason. The affidavits of Smt. Rani Bhatnagar and Smt. Suraj Bhatnagar who had supported the version of Asha Bhatnagar were not adverted to. The attesting witnesses of the will could not be produced as one of them, namely, Mr. Chandi Prasad had died. The second attesting witness Inderjit Bahadur had reportedly refused service. The other attesting witness, Mr. Krishan Swaroop Bhatnagar, could not be produced because of cataract surgery. The Assessing Officer had pro- ceeded on the premise that Mr. Krishan Swaroop Bhatnagar is a resident of Hardoi and cataract is not a major ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly as May 9, 1985. She had come before the Revenue in the year 1988 when this stand was again reiterated. This version was, however, rejected summarily on the ground that Smt. Bharti Bhatnagar had not adduced any documentary proof of handing over this jewellery to Asha Bhatnagar. To say the least, this conclusion is not only strange but perverse. While handing over or taking articles, even if they are valuable, no document in the normal course is prepared between close relatives. Rejection of this statement of Smt. Bharti Bhatnagar on this sole ground is nothing short of an illegality. 24. A perusal of the assessment order shows that it is surely based on surmises and conjectures. Presumptions have been made ; statement on oath of Smt. Asha Bhatnagar has been repelled cursorily although she had in detail explained the circumstances under which she had made her savings ; her earning earned by tuition ; amounts received by her in terms of the will of her father-in-law enabling her to purchase the aforenoted properties as noted in group II in her own name. The findings on this score by the Income-tax Appellate Tribunal upholding the findings of the Assessing Officer are base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding on a question of fact is open to attack under section 66(1) as erroneous in law when there is no evidence to support it or if it is perverse. The Income-tax Appellate Tribunal is a fact finding tribunal and if it arrives at its own conclusions of fact after due consideration of the evidence before it the court will not interfere. It is necessary, however, the every fact for and against the assessee must have been considered with due care and the Tribunal must have given its finding in a manner which would clearly indicate what were the questions which arose for determination, what was the evidence pro and contra in regard to each one of them and what were the findings reached on the evidence before it. The conclusions reached by the Tribunal should not be coloured by any irrelevant considerations or matters of prejudice and if there are any circumstances which required to be explained by the assessee, the assessee should be given an opportunity of doing so. On no account whatever should the Tribunal base its, finding on suspicious, conjectures or surmises, nor should it act on no evidence at all or on improper rejection of material and relevant evidence or partly on ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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