{"id":126461,"date":"2010-07-01T00:00:00","date_gmt":"2010-06-30T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-commissioner-of-income-tax-vs-shri-ram-pherprop-ms-bhagwati-on-1-july-2010"},"modified":"2018-10-13T14:40:37","modified_gmt":"2018-10-13T09:10:37","slug":"the-commissioner-of-income-tax-vs-shri-ram-pherprop-ms-bhagwati-on-1-july-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-commissioner-of-income-tax-vs-shri-ram-pherprop-ms-bhagwati-on-1-july-2010","title":{"rendered":"The Commissioner Of Income Tax, … vs Shri Ram Pher,Prop. M\/S Bhagwati … on 1 July, 2010"},"content":{"rendered":"
Allahabad High Court<\/div>\n
The Commissioner Of Income Tax, … vs Shri Ram Pher,Prop. M\/S Bhagwati … on 1 July, 2010<\/div>\n
                                                                          [1]\n\nHigh Court of Judicature at Allahabad Lucknow Bench Lucknow\n                                 *******\n                                                                      A.F.R.\nCourt No. - 27\n\nCase :- INCOME TAX APPEAL No. - 218 of 2005\n\nAppellant :- The Commissioner Of sIncome Tax, Faizabad\nRespondent :- Shri Ram Pher,Prop. M\/S Bhagwati Steels, Ambedkarnagar\nPetitioner Counsel :- Dd Chopra\n\nHon'ble Devi Prasad Singh,J.\n<\/pre>\n
Hon’ble Ritu Raj Awasthi,J.\n<\/p>\n
         [Delivered by Hon’ble Mr. Justice Devi Prasad Singh]<\/p>\n
1.    Heard Sri D. D. Chopra learned counsel for the appellant and perused
\n      record. None appears for the respondent.\n<\/p>\n
2.    In the present appeal, filed under Section 260-A of Income Tax Act
\n      (In short the Act), the Division Bench of this Court, vide order dated
\n      24.1.2008, framed the following substantial questions of law:\n<\/p>\n
      “(1)   Whether the learned Income Tax Appellate Tribunal
\n             was justified in allowing relief in appeal preferred by
\n             the assessee while overlooking the appeal before it
\n             preferred the Revenue on the same addition thereby
\n             rendering the Revenue’s appeal ineffective and otiose.
\n      (2)    Whether the learned Income Tax Appellate Tribunal
\n             was justified in law and on the facts of the case in
\n             allowing a relief of Rs.10,21,000\/-\n<\/p>\n
      (3)    Whether the learned Income Tax Appellate Tribunal
\n             was justified in estimating the value of unexplained
\n             stock at Rs.5.00 Lacs as against Rs.20,21,095.00 valued
\n             by the Assessing Officer assessed on the basis of
\n             physical verification of stock during the course of
\n             survey of the assessee’s premises u\/s 133A of the
\n             Income Tax Act.”\n<\/p>\n
3.    The brief matrix of the controversy involved, relates to assessment
\n      year 1998-99 based on survey of the business establishment of the
\n      assessee in pursuance of powers conferred under Section 133A of the
\n      Act. The assessee is a iron and hardware merchant carrying on
\n      business in town area of Shahjadpur Tehsil Akbarpur, District
\n      Ambedkarnagar. On 9.8.1998, survey was conducted under Section
\n      133A of the Act. Statement of assessee was recorded by the Income
\n      Tax Inspector wherein, the assessee stated that he was having total
\n      stock of Rs.2 lacs to Rs.2.5 lacs. It was noted by the Assessing Officer
\n      that total stock was based on inventories A and B prepared on the spot
\n                                                                          [2]<\/p>\n
     which was to the tune of Rs.22,71,091.00. The difference between the
\n     stock found by the Revenue and in the assessee, comes to
\n     Rs.20,21,092.00. The assessee was called on to file objection. After
\n     considering objection filed by the assessee, the Assessing Officer
\n     made addition of Rs.20,21,095.00.\n<\/p>\n
4.   At the appellate stage, the assessee filed an affidavit and stated that
\n     records were interpolated and the stock shown by the Income Tax
\n     Inspector while doing survey, is based on incorrect facts. In the
\n     affidavit, the assessee specifically given reference to various items
\n     which were not found in the stock but have been shown by the
\n     interpolation of record. The Tribunal has discussed this aspect in para-
\n     3 of its order.\n<\/p>\n
5.   The Commissioner of Income Tax (Appeals)-III, Lucknow (CIT)
\n     recorded a finding that the testimony of Revenue, was not credible
\n     and lacks confidence. It has been noted by the CIT (Appeals) that
\n     Revenue has not acted fairly while making addition as above.
\n     Accordingly, the CIT (Appeals) further observed that even for two
\n     items, the amount comes to Rs.9,60,000.00. Though, the CIT
\n     (Appeals) disbelieved the version of the assessee to some extent as
\n     well as the Revenue and recorded finding that the department has not
\n     acted fairly but after considering the difference of two items namely,
\n     strips and round bar of Rs.9,60,000.00, relief of Rs.5,00,000.00 was
\n     given to the assessee.\n<\/p>\n
6.   It may be noted that though the list given by the assessee, relates to
\n     several items marked from A to J but CIT (Appeals) has considered
\n     the interpolation with regard to the two items only (supra). Once the
\n     assessee has filed affidavit with specific plea that Revenue has acted
\n     unfairly and has incorrectly shown certain items in its list while
\n     calculating stock, then it was incumbent on the appellate authority to
\n     consider each and every item with regard to which the assessee raised
\n     objection. Deciding the matter by the appellate authority after
\n     considering the difference of only two items that too, against the
\n     finding of Revenue, seems to be not correct. The appellate authority
\n     has failed to exercise jurisdiction vested in it.\n<\/p>\n
7.   On appeal though, the Tribunal has noted that an affidavit was filed
\n     by the assessee pointing out several items marked from A to J
\n                                                                             [3]<\/p>\n
      (Annexure No.3 of the order) but has not dealt with individually.
\n      However, the Tribunal arrived at the conclusion that there was
\n      interpolation in the list of inventories prepared at the time of survey as
\n      alleged by the assessee. The Tribunal also observed that affidavit
\n      filed by the assessee, has neither been discussed nor rebutted. The
\n      Tribunal held that the increase of escaped bearing from 18 pcs. to 418
\n      pcs. and increase of round bar from 65 to 265 qtls., with similar
\n      instance with regard to other items, renders the case of the Revenue
\n      untrustworthy. The Tribunal declined to place reliance on the
\n      inventories and the amount of stock arrived at by the Assessing
\n      Officer. Virtually, the finding recorded by the CIT (Appeals) and
\n      Tribunal, seems to be correct though, entire record has not been taken
\n      into account.\n<\/p>\n
8.    No material has been pointed out by the learned counsel for the
\n      appellant which may falsify the factual observations made by the CIT
\n      (Appeals) as well as the Tribunal. Once the finding recorded by the
\n      two authorities with regard to interpolation of record is not disputed,
\n      then no finding can be recorded by this Court contrary to the
\n      observations made by the two appellate authorities.\n<\/p>\n
9.    Needless to say that in case, finding recorded by the two appellate
\n      authorities with regard to interpolation or fabrication of record or
\n      incorrect entry made in the inventories by the Assessing Officer and
\n      the same is not disputed, then there appears to be no doubt that the
\n      Assessing Officer, Income Tax Inspector or the Officer who has done
\n      the survey in the establishment in question, has committed fraud.\n<\/p>\n
10.   “Fraud” means an intention to deceive. The expression “fraud”\n<\/p>\n
      involves two elements, deceit and injury to the person deceived. Even
\n      if in some cases there is not benefit to the deceiver, in appropriate
\n      case, the second condition shall be deemed to be satisfied. (Vide
\n      Vimla (Dr.) Vs. Delhi Administration, 1963 Supp (2) SCR 585 :
\n      (1963) 2 Cri LJ 434; and Indian Bank Vs. Satyam Fibres (India)
\n      (P) Ltd., (1996) 5 SCC 550).\n<\/p><\/blockquote>\n
11.   The collusion or conspiracy to deprive the right of others in relation to
\n      a property shall render transaction ab initio void. Fraud and deception
\n      are synonymous. Fraud is anathema to all equitable principles and any
\n      affair tainted with fraud cannot be perpetuated or saved by the
\n                                                                            [4]<\/p>\n
      application of any equitable doctrine including res judicata. (Vide
\n      Ram Chandra Singh Vs. Savitri Devi, (2003) 8 SCC 319). Fraud
\n      is proved when it is shown that a false representation has been made
\n      knowingly, or in disbelief in its truth, or recklessly and carelessly
\n      whether it is true or false. Fraud avoids all judicial acts ecclesiastical
\n      or temporal. (Vide S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs.
\n      Jagannath (dead) by L.Rs. & Ors., AIR 1994 SC 853. In Lazarus
\n      Estate Ltd. Vs. Besalay, 1956 All.E.R. 349, the Court observed
\n      without equivocation that no judgment of a Court, no order of a
\n      Minister can be allowed to stand if it has been obtained by fraud, for
\n      fraud unravels everything.\n<\/p>\n
12.   Their lordships of Hon’ble Supreme Court in the case reported in AIR
\n      1994 SC 2151: Andhra Pradesh State Financial Corporation Vs.
\n      M\/s. GAR Re-Rolling Mills & Anr.; and (1994) 2 SCC :State of
\n      Maharashtra & Ors. Vs. Prabhu, has observed that a writ Court,
\n      while exercising its equitable jurisdiction, should not act as to prevent
\n      perpetration of a legal fraud as the Courts are obliged to do justice by
\n      promotion of good faith. Equity is also known to prevent the law from
\n      the crafty evasions and sub-letties invented to evade law.\n<\/p>\n
13.   In (2000) 3 SCC 581: United India Insurance Co. Ltd. Vs.
\n      Rajendra Singh & ors., their lordships of Hon’ble Supreme Court
\n      observed to quote:-\n<\/p>\n
             “Fraud and justice never dwell together” (fraus et jus
\n             nunquam cohabitant) and it is a pristine maxim which
\n             has never lost its temper over all these centuries.”\n<\/p><\/blockquote>\n
14.   In the case reported in AIR 1992 SC 1555: Smt. Shrisht Dhawan<\/p>\n
      Vs. Shaw Brothers, Hon’ble Supreme Court observed as under:\n<\/p>\n
             “Fraud and collusion vitiate even the most solemn
\n             proceedings in any civilized system of jurisprudence. It
\n             is a concept descriptive of human conduct.”\n<\/p><\/blockquote>\n
15.   In a recent judgment of Hon’ble Supreme Court reported in 2010 AIR
\n      SCW 50: Dalip Singh. Vs. State of U.P. and others, their lordships
\n      after considering earlier judgment, has deprecated the conduct of such
\n      litigants who approach the Court by concealing material facts.\n<\/p>\n
16.   It has been vehemently argued by Sri D. D. Chopra that the
\n      departmental appeal was also pending before the Tribunal which was
\n                                                                            [5]<\/p>\n
      dismissed at later stage. In case the department was having any
\n      grievance against the order of the Tribunal, then the Revenue could
\n      have filed another appeal raising substantial question of law in
\n      pursuance of power conferred under Section 260A of the Act. Since
\n      no appeal was preferred by the appellant against the order passed by
\n      the Tribunal, in other connected appeal, it cannot be looked into by
\n      this Court in the present appeal.\n<\/p>\n
17.   Thus, in the event of commission of fraud in the form of manipulation
\n      or interpolation of record, even solemn act of the authorities while
\n      discharging their duties, vitiates. The Tribunal is the last authority to
\n      record finding of fact. Keeping in view the finding of fact recorded
\n      by the two forums, the conclusive finding recorded with regard to
\n      commission of fraud in the form of interpolation of record, seems to
\n      be well established fact. While exercising jurisdiction conferred under
\n      Section 260A of the Act, it is not open by this Court to disturb the
\n      finding of fact recorded by the two forums with regard to commission
\n      of fraud. Accordingly, the present appeal preferred by the Revenue,
\n      lacks merit.\n<\/p>\n
18.   Before parting with the case, we would like to observe that the
\n      allegation raised by the assessee is serious. It appears that the
\n      Revenue by hook or crook tried to persecute the assessee for some
\n      unforeseen reason while interpolating record by increasing the stock
\n      of various items including strips and round bar. Such action on the
\n      part of Revenue, erodes people’s faith in the system. Disciplinary
\n      proceeding should have been conducted against the officers, who tried
\n      to impose tax by interpolating records with major penalty.\n<\/p>\n
19.   In view of the above, we answer the question framed in the appeal as<\/p>\n
      under:\n<\/p>\n
      (i)      Since the Revenue has not preferred any appeal against
\n               the Tribunal order, it cannot be taken into account while
\n               deciding the present controversy.\n<\/p>\n
      (ii)     The Tribunal’s order is well considered and justified in
\n               allowing the relief since there is concurrent finding of
\n               fact with regard to commission of fraud in the form of
\n               interpolation of record.\n<\/p>\n
                                                                          [6]<\/p>\n
      (iii)   Since the Income Tax Inspector while preparing the
\n              stock list, has interpolated the record and enhanced the
\n              quantity of stock, the Tribunal’s order seems to be
\n              justified and is decided against the Revenue.\n<\/p>\n
20.   In view of the above, we dismiss the appeal and the questions framed
\n      therein, are answered against the Revenue appellant.<\/p>\n
\n\n\n\n                                               [Justice Devi Prasad Singh]\n\n\nOrder Date :- 1.7.2010\nRajneesh)                                        [Justice Ritu Raj Awasthi]\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Allahabad High Court The Commissioner Of Income Tax, … vs Shri Ram Pher,Prop. M\/S Bhagwati … on 1 July, 2010 [1] High Court of Judicature at Allahabad Lucknow Bench Lucknow ******* A.F.R. Court No. – 27 Case :- INCOME TAX APPEAL No. – 218 of 2005 Appellant :- The Commissioner Of sIncome Tax, Faizabad Respondent […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[9,8],"tags":[],"class_list":["post-126461","post","type-post","status-publish","format-standard","hentry","category-allahabad-high-court","category-high-court"],"yoast_head":"\nThe Commissioner Of Income Tax, ... vs Shri Ram Pher,Prop. 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