Income-tax Appeal No. 123 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- - . 123 2004 Income tax Appeal No of : 28/10/2010 Date of decision The Commissioner of Income Tax - Jalandhar I --- Appellant Versus Veena Aggarwal --- Respondent --- : CORAM ’ . HON BLE MR JUSTICE ADARSH KUMAR GOEL ’ . HON BLE MR JUSTICE AJAY KUMAR MITTAL --- : Present . , Mr Vivek Sethi Standing Counsel for the . appellant --- , . AJAY KUMAR MITTAL J Income-tax Appeal No. 123 of 2004 2 260 - , This appeal under Section A of the Income tax Act 1961 ( ’ ) for short “the Act ” has been filed by the Revenue against the 15.12.2003, order dated passed by the Income Tax Appellate , , , ( ) . Tribunal Amritsar Bench Amritsar in short “the Tribunal” in ITA No 65/ /1996 1991-92, ASR in respect of the assessment year raising the : following substantial questions of law for determination by this Court 1. Whether on the facts and in the circumstances of the , ’ case the Hon ble ITAT was right in holding that it would . be fair and just if the assessment is made at Rs 3,70,000/-. 2. Whether on the facts and in the circumstances of the ’ case while so holding the Hon ble ITAT was right in law in holding that relief was due to the assessee for 1991-92 assessment year because income in excess of surrendered income was assessed for the assessment 1989-90 1990-91. years and 3. ’ Whether Hon ble ITAT was justified in holding that the assessee was in perturbed condition at the time of giving statement and that the assessee was entitled to relief on . compassionate ground 4. Whether on the facts and in the circumstances of the , , ’ case while so holding the Hon ble ITAT was right in law in ignoring the facts that the amount surrendered at the time of search not only included the profit from the , business but also unexplained stock investment made in Income-tax Appeal No. 123 of 2004 3 purchase of cars as also other investment on the basis . of incriminating documents found at the time of search , - Briefly the facts of the case are that the respondent , , assessee and her husband Ramesh Chander Aggarwal were engaged in the business of trading in iron and steel in their , , / . respective proprietorship concerns namely M s Mahavir Iron and / . , . Steel Traders and M s Katak Ram Ramji Dass respectively The , , affairs of both the concerns were however being managed by the . husband of the respondent A search and seizure operation was 24.7.1990 carried out at the premises of the assessee on and during , the process of the operation certain books of accounts were , , managed to be removed which later on were claimed to have been . , lost Ramesh Chander made voluntary surrender of certain amounts : which are as follow Name of firm Financial / Year Assessment year Amount / . M s Katak Ram Ramji , , , Dass Tanda Road Jalandhar 88-89/89-90 50,000/- 89-90/90-91 50,000/- 90-91/91-92 1,00,000/- / . M s Mahavir Iron and Steel Traders 88-89/89-90 4,00,000/- 89-90/90-91 3,00,000/- 90-91/91-92 5,00,000/- Income-tax Appeal No. 123 of 2004 4 The assessee initially filed return for the assessment 1991-92 . 5,00,000/- year declaring income of Rs which was (9) considered as invalid within the meaning of sub section of Section 139 . , of the Act Subsequently the assessee filed revised return on 15.7.1993 . 3,00,000/- . showing an income of Rs as against Rs 5,00,000/- indicating therein that she felt that the return earlier filed - . by her was over estimated The revised return was found to have - (4) been filed beyond the period of limitation provided in sub section 139 . , , of Section of the Act A notice was thus issued to the assessee 148 under section and assessment proceedings commenced against . her In the said proceedings the assessee could not produce books . of accounts taking a plea that the same had been lost The assessing officer on the basis of the bank account record and other material . 5,00,000/- available finalized the assessment at Rs vide order dated 8.3.1995, -1, 143(3) . Annexure A passed under Section of the Act - The assessee preferred appeal before the Commissioner of Income ( ) { ( ) }. ( ) tax Appeals in short “CIT A ” The CIT A on examination of matter came to conclusion that the order passed by the assessing , , officer was legal and justified and thus dismissed the appeal vide 26.10.1995, -2. order dated Annexure A ( ), Aggrieved by the order of the CIT A the assessee filed . , appeal before the Tribunal The Tribunal vide order dated 15.12.2003, directed the assessing officer to finalize the assessment . 3,70,000/- . 5,00,000/- at Rs as against the amount of Rs ( ). sustained by the CIT A This is how the Revenue is in appeal . before us Income-tax Appeal No. 123 of 2004 5 We have heard learned counsel for the appellant and . have perused the record - The husband of the respondent assessee had surrendered . 12 . a sum of Rs lacs on the date of search operation The surrender . 4 1989-90, . 3 was Rs lacs for the assessment year Rs lacs for 1990-91 . 5 1991-92. , and Rs lacs for the assessment year However , .4.40 ultimately the addition of Rs lacs was made for the assessment 1989-90 . 3.90 1990-91. year and Rs lacs for the assessment year . 1,30,000/-, . . . The benefit of the excess amount of Rs i e Rs 40,000/- 1989-90 . 90,000/- in respect of assessment year and Rs 1990-91 relating to the assessment year has been allowed by the , Tribunal which is under challenge in this appeal at the instance of . the Revenue The findings recorded by the Tribunal in this behalf are : as under “ After considering the rival submissions and perusing the , relevant material on record it is obvious that in so far as , present assessee is concerned the total amount . 12 , surrendered was at Rs lacs which was spread over 1989-90 1991-92. the assessment years to As against the . 4 . 3 surrendered income of Rs lacs and Rs lacs for the , immediately two preceding assessment years the . 4.40 department had assessed the assessee at Rs lacs . 3.90 . and Rs lacs respectively Since no books of account were finally found in the course of search and seizure proceedings and the voluntary surrender made by . Sh Ramesh Chander Aggarwal consequent upon the Income-tax Appeal No. 123 of 2004 6 . . 12 persuasion by the Deptt was at Rs lacs spread over , , three years as noted above in such circumstances we are satisfied that the income in the three relevant . 12 assessment years should have been determined at Rs . lacs only The uncontroverted position before us is that in , the immediately preceding two assessment years the . 8.30 assessee has been assessed at Rs lacs without any books of accounts and the balance amount that remains to be taxed in the assessment year under consideration . 3.70 ( .12 -8.30 ). comes to Rs lacs Rs lacs lacs On the . . contention raised by the learned A R to the effect that the assessee is widow and her husband who made the surrender in a perturbed condition finding to which extent / 132(4) is apparent from the statement u s is no more , alive we are satisfied that this case deserves to be . considered on compassionate ground as well In the , peculiar facts of the present case we are satisfied that it . would be fair and just if the assessment is made at Rs 3.70 . . lacs We order accordingly ” Learned counsel for the Revenue could not show that the benefit of addition beyond the surrendered amount for the 1989-90 1990-91 . . . 40,000/- . assessment years and i e Rs and Rs 90,000/- , respectively could not be given to the assessee in the 1991-92. assessment year The learned counsel for the Revenue was not able to point out any infirmity or illegality in the findings recorded . by the Tribunal which may warrant interference by this Court The Income-tax Appeal No. 123 of 2004 7 Tribunal has taken a plausible view on appreciation of material on . , record In such a situation the findings recorded by the Tribunal . cannot be faulted with , . In view of the above the appeal is dismissed ( ) AJAY KUMAR MITTAL JUDGE ( ) ADARSH KUMAR GOEL 28, 2010 October JUDGE * * rkmalik