Commissioner Of Income Tax vs Ms.Uma Gupta on 29 August, 2008

ITA No. 168 of 2008                   1

           In the High Court of Punjab and Haryana at Chandigarh

                                      ITA No. 168 of 2008
                                      Date of Decision: 29.08.2008


Commissioner of Income Tax, Chandigarh-II          ...... Appellant

      Versus

Ms.Uma Gupta                                       ...... Respondent

Coram:       Hon'ble Mr. Justice Adarsh Kumar Goel
             Hon'ble Mr. Justice Ajay Tewari

  1.Whether Reporters of local papers may be allowed to see the judgment?
  2.To be referred to the Reporters or not?
  3.Whether the judgment should be reported in the Digest?

Present:  Ms. Urvashi Dhugga, Advocate
           for the appellant.
                 ****
Ajay Tewari, J.

This is an appeal by the revenue against the order of Income tax

Appellate Tribunal, Chandigarh Bench-B (hereinafter referred to as ‘the

Tribunal’) in ITA No. 765/CHANDI/2006 dated 31.07.2007, proposing the

following substantial questions of law:-

1. “Whether on the facts and the circumstances of the case and
in law, the order of the ITAT is perverse as it has failed to
appreciate that the Assessing Officer has made the addition
on the basis of evidence collected and declaration of such
income by the father-in-law of the assessee in his own hands
would not preclude the Assessing Officer from making the
assessment in the hands of the ‘right person’ i.e. the assessee,
regarding which sufficient evidentiary material is available?

2. Whether on the facts and circumstances of the case and in
law, the ITAT was correct in holding that the Assessing
ITA No. 168 of 2008 2

Officer has accepted the fixed deposits as belonging to Shri
Tarsem Gupta simply on the premise that the Assessing
Officer had accepted the income from the concerned FDRs
shown by Sh.Tarsem Gupta in his return. The ITAT failed to
appreciate the fact that the Assessing Officer could not have
reduced the income of Sh. Tarsem Gupta.”

On the basis of an information received, notice under Section

148 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) was

issued to the assessee and her family members on the ground that the family

owns many FDRs made in cash which had been claimed by the father-in-

law of the assessee as having been made from his resources, albeit in the

name of the assessee. Having not found the reply satisfactory, notice under

Section 148 of the Act was issued and subsequently the Assessing Officer

added the said income in the hands of the assessee. In appeal, the Appellate

Authority reversed the finding which was carried by the revenue by way of

second appeal to the Tribunal. The Tribunal rejected the same holding that

the Assessing Officer while framing the assessment of the father-in-law of

the assessee, accepted that the said income was his and had considered the

same in his hands and, therefore, there was no justification for considering

the same in the hands of the assessee.

Learned counsel for the revenue, while assailing the judgments

of the two Appellate Authorities, has relied upon the judgement of the

Hon’ble Supreme Court in ITO v. Ch. Atchaiah reported as 218 ITR 239.

We are of the view that the CIT as well as the Tribunal having

recorded a finding of fact that the FDR in question belonged to father-in-
ITA No. 168 of 2008 3

law of the assessee and not to the assessee, question of law sought to be

raised does not arise.

The judgment relied upon is distinguishable. Therein question

was whether the Department had option not to assess the AOP when

individuals had already been assessed. It was held that AOP was liable to

be assessed under Section 183 of the Act, irrespective of the fact that

individual members had already been assessed.

We are not concerned with such a situation here.

No substantial question of law arises.

The appeal is dismissed.

(AJAY TEWARI)
JUDGE

(ADARSH KUMAR GOEL)
JUDGE
August 29, 2008
sunita