Rajasthan High Court - Jaipur
Rajendra Prasad Gupta vs Commissioner Of Income Tax And Anr. on 29 November, 2005
Equivalent citations: (2006)202CTR(RAJ)284
JUDGMENT
1. In this appeal, following questions are raised :
1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in not rectifying its earlier order, and sustaining addition to the tune of Rs. 50,000 instead, of Rs. 48,500 despite the fact that 2/3rd investment in pawning business at Rs. 72,750 was accepted by the Tribunal ?
2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in refusing to rectify its earlier order and rejecting the claim in regard to deductions under Chapter VI-A on the ground that it was not pressed and no details were filed and there is no mistake apparent on the face of record, when sufficient material was available on the record ?
2. A search under Section 132 of the IT Act, 1961, took place on 31st Aug., 1995 at the assessee's premises. Cash book and other records relating to business of appellant were found and seized. Inter alia, after perusal of the record, the income was assessed in the block year.
3. The controversy before us is related to the asst. yr. 1996-97. The first issue relates to the addition of Rs. 50,000 in the pawning business.
4. Counsel for the appellant submits that the correct figure is Rs. 48,500. The AO on the basis of the record considered the amount found for the period from 26th Oct., 1993 to 13th Dec., 1994. At the time of search, assessee himself admitted that Rs. 75,750 had already been advanced. On the basis of this figure and the material found total amount in the block year comes to Rs. 1,15,250 and on the basis of investment, which had not been explained before the AO, the AO added Rs. 50,000 on this account.
5. In appeal before the Tribunal, Tribunal has considered this aspect in para 7. Before the Tribunal, counsel for the assessee submitted that if the income is determined on the basis of expenditure-assets approach, then he does not want to press this ground. No material was placed before him and even before the AO to show the actual calculation and considering the submissions of the counsel of the assessee, the investment was estimated at Rs. 50,000. That addition was sustained on the ground of the material before the AO and the ground having not been pressed. Thereafter a miscellaneous application was moved. In the miscellaneous application also Tribunal found that the ground was not pressed and addition had been made on the estimate basis. There is no apparent mistake, which can be rectified.
6. The next issue involved in these questions is whether assessee is entitled for deduction under Chapter VI-A. That was also rejected in appeal on the same ground that was not pressed. In the miscellaneous application also, that ground was rejected as the ground was not pressed at the time of hearing before the Tribunal.
7. Mr. Kasliwal submits that ground was taken and pressed, but that was dismissed as having not been pressed. The issue regarding addition of Rs. 50,000 has been dealt with by the Tribunal in the impugned order in para 7. For ready reference that reads as under:
The next ground of appeal is against determining and including pawning advance at Rs. 50,000 in asst. yr. 1996-97. This addition has been made on the ground that assessee has not disclosed any source for making investment in pawning business. This is estimated at Rs. 50,000 for the block period. The learned Authorised Representative however, submits that if the income is determined on the basis of expenditure-assets approach, then this ground be considered as not pressed and if income is determined on positive calculation, no separate addition for this amount should be made. While arguing this ground, the learned Authorised Representative has not placed any material on record to show the actual calculation. The AO has also made lump sum addition on the basis of investment, which is direct approach based on assets. We, therefore, treat this ground of appeal as not pressed and hence dismissed.
8. On the basis of material produced when the addition has been made on estimate basis by the AO and that has been sustained not only on the basis of material produced, but also on the basis that the ground has not been pressed, it is very difficult for us to say whether ground was pressed or not pressed before the Tribunal. Once the authorities say that the ground has not been pressed and that has been rejected on that basis, that cannot be interfered unless there is a cogent evidence in favour of a party, which says that ground has been pressed.
9. In absence of such cogent evidence, no interference is called for. Otherwise also considering the material on record and business of the assessee, Rs. 50,000 estimated in the pawning business is just and reasonable. No interference is called for. The appeal stands dismissed.
10. So far as the next issue regarding deduction under Chapter VI-A is concerned, Mr. Kasliwal prays for withdrawal of the appeal with a liberty to move a miscellaneous application before the Tribunal to reconsider the case.
11. Prayer sought for is allowed. The appeal is dismissed as having been withdrawn so far as the issue regarding deduction under Chapter VI-A is concerned with a liberty to him to file a miscellaneous application before the Tribunal to reconsider the case.