Rajasthan H.C : As to whether the finding recorded by the learned Tribunal in para 6 of the judgment is an outcome of misreading of the record ?

High Court Of Rajasthan

Hafiz Mohammed vs. Assistant Commissioner Of Income Tax

Section 69

Asst. Year 1989-90

N.P. Gupta & Munishwar Nath Bhandari, JJ.

IT Appeal No. 69 of 2002

22nd November, 2007

Counsel Appeared :

Sanjeev Johari, for the Appellant : K.K. Bissa, for the Respondent

ORDER

By the court :

This appeal has been filed by the assessee against the impugned judgment of the Tribunal Annex. 1.

2. By Annex. 1 the learned Tribunal had decided two appeals being Appeal Nos. 663 and 664. Appeal No. 663 related to asst. yr. 1989-90, while Appeal No. 664 related to asst. yr. 1990-91. In the present appeal the findings arrived at by the learned Tribunal while deciding Appeal No. 663 only have been assailed, and that also with respect to ground No. 1 only whereby the Tribunal allowed the appeal of the Revenue, and set aside the deletion of the amount purportedly on account of unexplained investment on the plot bearing No. 27D.

3. The appeal came to be listed on 19th July, 2002 on which date notice was ordered to be issued to show cause. Then, since nobody appeared on behalf of Revenue, on 28th Aug., 2002 the appeal was admitted. However, in the order of admission no substantial question of law was formulated. Then, the matter came up on 25th Sept., 2002. On that day it was noticed that the appeal has been admitted without formulating the substantial question of law. However, it was considered appropriate that the appeal itself be heard on priority basis, and therefore, the appeal was directed to be listed for hearing at admission stage. Thereafter, after various adjournments, it has now come up before us.

4. The contention of the learned counsel for the appellant is that the finding of the learned Tribunal is based on misreading of the record, and is, therefore, liable to be set aside.

5. On the other hand, learned counsel for the Revenue submits that the finding recorded is a pure finding of fact, and does not involve any substantial question of law.

6. In our view, the present appeal does involve the substantial question of law being :

“As to whether the finding recorded by the learned Tribunal in para 6 of the judgment is an outcome of misreading of the record ?”

7. We have considered the, submissions, and perused the impugned judgment.

8. The relevant facts for appreciating the question formulated above is that the plot was purchased in auction conducted by the UIT. It appears that the receipt of the payment of the amount is issued in the name of assessee while the plot is said to have been purchased by his son Zakir Hussain. The balance sheet of Zakir Hussain as on 31st March, 1989 does show the purchase of this plot which was subsequently sold away by him, and he had declared capital gain derived from such sale which was assessed in the hands of Zakir Hussain. The learned Tribunal has found that the balance amount of Rs. 68,400 was deposited vide receipt dt. 31st March, 1989 in the name of the assessee, and that there is no evidence/material on record to show that this payment of Rs. 68,400 was made by Zakir Hussain, and that the entry of withdrawal of Rs. 68,400 from the bank by Zakir Hussain available at p. 3 of the paper book of the Revenue relied upon by the assessee is dt. 8th March, 1990, and therefore, this withdrawal obviously cannot relate back to the deposit made on 31st March, 1989, therefore, it was found that the AO has rightly made this addition in the hands of the assessee, and the deletion was found to be uncalled for.

9. Learned counsel for the appellant made available for our perusal the photostat copy of the bank statement of account No. 745 of Zakir Hussain, and that shows that the amount of Rs. 68,400 was withdrawn on 8th March, 1989 vide cheque No. 453 dt. 6th March, 1989. In this sequence a look at the assessment order Annex. 5 shows that even therein it was found that as per the seized record payment of Rs. 68,400 was made on 31st March, 1989, and the investment was found to be standing unexplained in the hands of the assessee while the learned CIT(A) found that the investment duly reflected in the books of accounts of Zakir Hussain, and this was not the controversy gone into about amount having been drawn from the bank in the year 1990. Thus, it was never the question gone into, as to whether the amount was drawn from the bank on 8th March, 1990 or 8th March, 1989, while the learned Tribunal has proceeded on the basis of the entry of withdrawal of Rs. 68,400 from the bank by Zakir Hussain assuming it to be dt. 8th March, 1990. Thus, this much is not in controversy that the amount is Rs. 68,400 was drawn from the bank of Zakir Hussain for being paid for purchase of the plot, and the question is only as to whether the amount was drawn on 8th March, 1989 or 8th March, 1990, obviously because if it was withdrawn on 8th March, 1990 it could not be paid on 31st March, 1989. What we find from the statement of account copy whereof is shown to us is that the amount was withdrawn by cheque issued in the name of UIT itself being cheque No. 453 dt. 6th March, 1989, and does not appear to be a case of cash withdrawal by Zakir Hussain, and payment to UIT, and it appears that the cheque was given on 6th March, 1989 which was encashed on 8th March, 1989, and after encashment in due course the receipt was issued on 31st March, 1989. Thus, the whole edifice assumed by the learned Tribunal is clearly a misconception arising out of the misreading. Copy of the bank account is already there before the learned Tribunal.

Thus, the question is answered in favour of the assessee, and against the Revenue.

The appeal is accordingly allowed. The impugned judgment so far as it directs setting aside the deletion of amount made on account of unexplained investment as made by the CIT is set aside, and the order of CIT is restored.

[Citation : 298 ITR 315]

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