{"id":180355,"date":"2009-03-03T00:00:00","date_gmt":"2009-03-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/h-s-raina-vs-income-tax-officer-on-3-march-2009-3"},"modified":"2016-11-04T13:10:09","modified_gmt":"2016-11-04T07:40:09","slug":"h-s-raina-vs-income-tax-officer-on-3-march-2009-3","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/h-s-raina-vs-income-tax-officer-on-3-march-2009-3","title":{"rendered":"H. S. Raina vs Income Tax Officer on 3 March, 2009"},"content":{"rendered":"<div class=\"docsource_main\">Jammu High Court<\/div>\n<div class=\"doc_title\">H. S. Raina vs Income Tax Officer on 3 March, 2009<\/div>\n<pre>       \n\n  \n\n  \n\n \n\n \n \n HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            \nITA No. 1 OF 2008 \nH. S. Raina.\nPetitioners\nIncome Tax Officer.\nRespondent  \n!Mr. M. M. Gupta, Advocate \n^Mr. D. S. Thakur, Advocate\n\nHon'ble Mr. Justice Barin Ghosh, Chief Justice\nHon'ble Mr. Justice irmal Singh, Judge\nDate: 03.03.2009.\n:J U D G M E N T :\n<\/pre>\n<p>Per Barin Ghosh, CJ:\n<\/p>\n<p>This is an appeal by the Assessee under Section 260 A of the<br \/>\nIncome Tax Act, 1961 from the order of the Income Tax Appellate<br \/>\nTribunal, Amritsar Bench, Amritsar.\n<\/p>\n<p>        In the year 1991 assessee constructed a house property. The<br \/>\nAssessee, who was a partner of six partnership Firms carrying on<br \/>\nfinance business, had not filed his income tax returns for the earlier<br \/>\nfour to five years contending that his income was not taxable. A<br \/>\nnotice under Section 148 dated 18th February, 2000 was served on the<br \/>\n<span class=\"hidden_text\">                                   2<\/span><br \/>\nassessee on 7th March, 2000, whereupon on 11th February, 2002<br \/>\nassessee filed a return of income declaring income of Rs.21,175\/-.<br \/>\nAssesseeb\ufffd(tm)s case was referred to the Valuation Cell, whereupon the<br \/>\nValuation Cell reported that the house was constructed in the year<br \/>\n1991 at a cost of Rs. 17.00 lacs.\n<\/p>\n<p>       Assessee did not dispute the valuation. He contended that the<br \/>\ncost of construction was financed by the compensation amount of Rs.<br \/>\n17,85,395\/- received by his mother in a land acquisition case.\n<\/p>\n<p>       A sum of Rs. 17, 85,395.70 received by a cheque dated 8th<br \/>\nApril, 1991 issued by the Collector was deposited in the Savings Bank<br \/>\nAccount No, 1968 of the mother of the assessee maintained with the<br \/>\nJ&amp;K Bank, Nanak Nagar, Jammu. Assessee contended that moneys<br \/>\nwithdrawn from the said account were utilized for construction of the<br \/>\nhouse. Though the assessee did not make any effort to produce any<br \/>\nmaterial to suggest utilization of the amounts so withdrawn for<br \/>\nconstruction of the house, but some of such withdrawals were<br \/>\naccepted to have been utilized for the construction purpose. It was<br \/>\naccepted that the assessee has been able to establish source of<br \/>\nRs. 11,25,000\/- for incurring expenses for construction of the said<br \/>\nhouse but failed to account for the source of incurring expenditure<br \/>\namounting to Rs. 5, 75,000\/-.\n<\/p>\n<p><span class=\"hidden_text\">                                    3<\/span><\/p>\n<p>       There is no dispute that a certain amount of money was paid to<br \/>\nthe Principal of a School from the said account. The assessee did not<br \/>\ncontend that the money so paid was used for construction purpose. In<br \/>\naddition to that, certain amounts of money were paid to four Finance<br \/>\nCompanies and certain amounts of money were paid to certain<br \/>\nindividuals from the said account. The assessee contended that the<br \/>\npayments made to the Finance Companies were for repayment of<br \/>\nloans taken from them for construction purpose. Assessee contended<br \/>\nthat payments to those individuals were on account of purchase of<br \/>\nmaterials. Assessee furnished the names and particulars of those<br \/>\nFinance Companies as well as of those individuals. Notices sent to<br \/>\nthem were returned un-served. Partners of those Firms appeared<br \/>\nbefore the Assessing Tax Officer at the instance of the assessee, but<br \/>\nindividuals did not. Partners of those Firms stated that loans were<br \/>\ngiven to the assessee by the Firms represented by them and those were<br \/>\npaid by the assessee through the subject cheques. They stated that the<br \/>\nFirms were income tax assesses at the relevant time. They also stated<br \/>\nthat the loans did not bear any interest. They also stated that the Firms<br \/>\nrepresented by them have closed their business in view of the<br \/>\ndirections of the Reserve Bank of India.\n<\/p>\n<p><span class=\"hidden_text\">                                    4<\/span><\/p>\n<p>       The amounts paid to the Firms and the amounts paid to those<br \/>\nindividuals from the said account were not accepted as amounts spent<br \/>\nfor construction of the house. That appears to be the principal dispute<br \/>\nraised by the assessee before the Commissioner of Income Tax<br \/>\nAppeal and having lost before him went before the Tribunal and again<br \/>\nhaving lost before the Tribunal has come up before this Court.\n<\/p>\n<p>       The principal contention of the appellant is that whatever was<br \/>\nwithin his command he did, i.e., furnishing of particulars of the<br \/>\npersons, who granted loans to the assessee and supplied materials; and<br \/>\nthere is no just reason not to accept repayment of such loans and<br \/>\npayments made for purchase of materials.\n<\/p>\n<p>       There is no dispute that certain payments were made to certain<br \/>\nFirms carrying on finance business. However, neither the assessee,<br \/>\nnor the partners of the subject firms could bring on record any thing to<br \/>\nsuggest that such payments were on account of repayment of loans<br \/>\nreceived by the assessee at an earlier point of time. There was no<br \/>\nevidence at all, except statements made by four individuals and<br \/>\nassertions of the assessee, that loans were received by the assessee<br \/>\nfrom those Firms at any point of time earlier than the dates of<br \/>\npayment of the subject amounts from the said account. Similarly,<br \/>\nthere was no material, except assertions by the assessee, that building<br \/>\nmaterials were procured by the assessee from those individuals, who<br \/>\n<span class=\"hidden_text\">                                   5<\/span><br \/>\nwere paid certain amounts from the said account. A payment can be<br \/>\naccepted as repayment or on account of purchase when it is<br \/>\nestablished that an earlier payment was received or a purchase was<br \/>\nmade. Neither an earlier payment, nor any purchase said to have been<br \/>\nmade was established. In the circumstances, non-acceptance of<br \/>\npayments made to the said Firms as repayment of loans and non-<br \/>\nacceptance of payments made to those individuals on account of<br \/>\npurchase of materials cannot be said to be an act so capricious and<br \/>\nunjust that the same can be called in question as a substantial question<br \/>\nof law. Certain payments made to certain other individuals were<br \/>\naccepted as payments made for construction purpose, but without<br \/>\nthere being anything to suggest that the payments so made were<br \/>\nutilized for construction. In the circumstances non-acceptance of<br \/>\npayments made to the concerned individuals as payments made on<br \/>\naccount of purchase of materials cannot be said to be question of law<br \/>\ninasmuch as the comparable payments cannot with certainty be taken<br \/>\nas payments made for the construction.\n<\/p>\n<p>       The learned counsel for the appellant cited the judgment of the<br \/>\nHon&#8217;ble Supreme Court rendered in the case of <a href=\"\/doc\/1422053\/\">Lalchand Bhagat<br \/>\nAmbica Ram v. Commissioner of Income-Tax, Bihar and Orissa,<\/a><br \/>\nreported in 37 ITR 288, and contended that           it is suspicion or<br \/>\nconjecture or surmise on the part of the Tribunal, which has taken<br \/>\n<span class=\"hidden_text\">                                    6<\/span><br \/>\nplace of evidence. He submitted that in addition to that the department<br \/>\nhas applied the rule of thumb. In other words, he contended that<br \/>\ncontentions of the appellant that he repaid loans supported by<br \/>\nevidence of grant of loan by the partners of the Firms from whom the<br \/>\nloans had been taken are material evidence, which could not be<br \/>\nignored either on the basis of rule of thumb or on suspicion or<br \/>\nconjecture or surmise.\n<\/p>\n<p>       Section 69C of the Act provides that where in any financial<br \/>\nyear an assessee has incurred any expenditure and he offers no<br \/>\nexplanation about the source of such expenditure or part thereof, or<br \/>\nthe explanation, if any, offered by him is not, in the opinion of the<br \/>\nAssessing Officer, satisfactory, the amount covered by such<br \/>\nexpenditure or part thereof, as the case may be, may be deemed to be<br \/>\nthe income of the assessee for such financial year. Therefore, in terms<br \/>\nof Section 69C of the Act, appellant was required to explain<br \/>\nsatisfactorily the source of the expenditure of Rs. 17.00 lacs, which he<br \/>\nhad incurred for construction of the house in question. The<br \/>\nexplanation as was put forward by the appellant was repayment of<br \/>\nloans, which were used for the construction, and payments on account<br \/>\nof purchase of materials. Receipt of loans, utilization thereof for<br \/>\nconstruction and purchase of materials were, therefore, the essential<br \/>\ningredients to satisfy that the payments in question were made for<br \/>\n<span class=\"hidden_text\">                                    7<\/span><br \/>\nrepayment of loans and for discharging the debts incurred on account<br \/>\nof purchase of materials. Since there was nothing to suggest receipt of<br \/>\nloans and utilization thereof for construction, except assertions, and at<br \/>\nthe same time there being nothing to suggest procurement of materials<br \/>\nfrom those individuals, who were paid the amounts in question, non-<br \/>\nacceptance of such assertions, to our mind, cannot be said to be based<br \/>\non suspicion, conjecture or surmise or by applying the rule of thumb.\n<\/p>\n<p>       Learned counsel next contended by referring to the judgment of<br \/>\nthe Hon&#8217;ble Supreme Court of India in the case of <a href=\"\/doc\/532994\/\">Commissioner of<br \/>\nIncome Tax v. Orissa Corporation (P) Ltd.,<\/a> reported in 159 ITR 78,<br \/>\nthat since the assessee could not produce the two individuals, from<br \/>\nwhom materials were purchased, an adverse inference could not be<br \/>\ndrawn against the assertions made by the assessee. In the instant case,<br \/>\nno adverse inference was drawn against the assessee. Apart from the<br \/>\nfailure on the part of the assessee in producing those individuals, he<br \/>\nfailed to bring on record anything to suggest purchase of materials<br \/>\nfrom those individuals.\n<\/p>\n<p>       Learned counsel for the assessee contended, as notice by the<br \/>\nHon&#8217;ble Supreme Court of India in Commissioner of Income Tax v.\n<\/p>\n<p>             oorjahan, reported in 237 ITR 570, that the word b\ufffdshallb\ufffd(tm)<br \/>\nSmt. P. K.\n<\/p>\n<p>was proposed to be inserted in Section 69C which was later on<br \/>\nchanged by the word b\ufffdmayb\ufffd(tm) and, accordingly, no sooner the<br \/>\n<span class=\"hidden_text\">                                   8<\/span><br \/>\nexplanation of the assessee is not satisfactory, the amounts cannot be<br \/>\ndeemed to be the income of the assessee. It is true, as pointed out by<br \/>\nthe Hon&#8217;ble Supreme Court in the case referred to above, a discretion<br \/>\nhas been given to the department in the matter of deeming the un-<br \/>\nexplained amount as income of the assessee, but such discretion is to<br \/>\nbe used judiciously for protecting the interest of the assessee as well<br \/>\nas of the revenue. In that case, on facts, it was found that having<br \/>\nregard to the age of the assessee and the circumstances in which she<br \/>\nwas placed., she cannot be credited to make income of her own and in<br \/>\nthose circumstances, the Hon&#8217;ble Supreme Court upheld the view of<br \/>\nthe Tribunal in refusing to permit addition of the value of the subject<br \/>\ninvestments to the income of the assessee. In the instant case, there is<br \/>\nno material on record which would suggest that the appellant could<br \/>\nnot be credited with having made any income of his own having<br \/>\nregard to his age and the circumstances in which he was placed. In the<br \/>\nevent, it is construed that all un-explained source of expenditure<br \/>\nshould not be deemed to be the income of the assessee and the<br \/>\ndiscretion should be used always in favour of the assessee, the Section<br \/>\nitself would become otioso.\n<\/p>\n<p>       Learned counsel also contended that before adding the amounts<br \/>\nin question as income of the assessee, i.e., before using the discretion,<br \/>\nthe    appellant   ought to have had been noticed. The Section<br \/>\n<span class=\"hidden_text\">                                    9<\/span><br \/>\ndoes not require any such notice. In any view of the matter, from the<br \/>\nday one the question was should or should not be such expenditure be<br \/>\ndeemed to be the income of the assessee and notice thereof was<br \/>\nadequately given to the assessee. Learned counsel for the appellant<br \/>\ncontended that at the time of imposing penalty, a notice is required to<br \/>\nbe given and the same analogy should be applied while such addition<br \/>\nis being made. The requirement of hearing the assessee and giving<br \/>\nhim reasonable opportunity of being heard before imposing penalty is<br \/>\na requirement of Section 274 of the Act. No such procedure has been<br \/>\nprescribed for making additions under Section 69C of the Act. In any<br \/>\nevent, by virtue of Section 69C of the Act, it is obligatory on the part<br \/>\nof the assessee to explain, to the satisfaction of the Assessing Officer,<br \/>\nthe source of expenditure made by him, with a rider that if the<br \/>\nexplanation is not satisfactory, the Assessing Officer may use his<br \/>\ndiscretion against the assessee, which connotes an obligation to<br \/>\nsatisfy, apart from the explanation to be given by him, that there was<br \/>\nexistence of such circumstances in which the assessee was placed that<br \/>\nhe cannot be credited with having made such income of his own. In<br \/>\nthe event, such obligation had been discharged but ignoring the same,<br \/>\nAssessing Officer had added the expenditure as deemed income and<br \/>\nthereby had used his discretion against the assessee, it would have<br \/>\nbeen open to the assessee to call in question user of such discretion,<br \/>\n<span class=\"hidden_text\">                                      10<\/span><br \/>\nbut the assessee did not make any endeavor at any stage to assert that<br \/>\nthe circumstances in which he was then placed, he could not be<br \/>\ncredited for having made the subject income of his own.\n<\/p>\n<p>          The learned counsel for the appellant lastly submitted that<br \/>\naccording to the valuation report the property was constructed in the<br \/>\nyear 1991, which connotes calendar year 1991. He submitted that<br \/>\ncalendar year 1991 had two financial years and as such the deemed<br \/>\nincome should be bifurcated. There is nothing on record to suggest<br \/>\nwhen construction commenced. The drawings from the subject<br \/>\naccount were made from April, 1991. The facts of the case, therefore,<br \/>\ndid not make out a case for bifurcation.\n<\/p>\n<p>          In the circumstances, the appeal fails and the same is dismissed.\n<\/p>\n<pre>                     ( irmal Singh)                  (Barin Ghosh)\n                               Judge                   Chief Justice\nJammu,  \n 03.03.2009\nTilak, Secy.\n\n\n\n\n\n\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"<p>Jammu High Court H. S. Raina vs Income Tax Officer on 3 March, 2009 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. ITA No. 1 OF 2008 H. S. Raina. Petitioners Income Tax Officer. Respondent !Mr. M. M. Gupta, Advocate ^Mr. D. S. Thakur, Advocate Hon&#8217;ble Mr. Justice Barin Ghosh, Chief Justice Hon&#8217;ble Mr. Justice [&hellip;]<\/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":[8,17],"tags":[],"class_list":["post-180355","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.0 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>H. S. 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