COMMISSIONER OF INCOMETAX HYD vs. M/S DIAMOND HATCHERIES

Heard learned counsel for the parties.

By way of this writ petition, the appellant has challenged the order dated 08.09.2000 (Annexure-3) passed by the Income Tax Appellate Tribunal, Cuttack Bench, Cuttack in ITA No.5/CTK/1990 whereby the learned Tribunal dismissed the appeal of the assessee.

Learned counsel for the appellant contended that the learned Tribunal has committed serious error of law and facts including the assessing officer. The Assessing Officer while passing the assessment order has not taken into consideration the relevant aspects of the matter in detail.

In spite of that, the appellate authority has confirmed the order in toto and dismissed the same.

We have gone through the orders of the appellate authority and the learned Tribunal. The learned Tribunal at paragraph-4 observed as under:

“4. Lastly coming to the dispute regarding addition of Rs.38,711 as excess investment in the construction of house, it is seen that the assessee has shown instrument of Rs.1,75,000 over a period of three financial year and the same was valued by the Valuation Officer at Rs.2,13,011. So, the assessee was asked to explain the excess investment of Rs.38,711. It was explained before the AO that the building was constructed on laterites stones and chips were purchased from local queries at a lower cost and the assessee along with his family members made supervision of the construction and the valuation made by the Valuation Officer was claimed to be on higher side. Admittedly, there was no books of account maintained by T.A. No.72 of 2001

-2- the assessee for such construction. In absence of accounts, the explanation of the assessee does not appear convincing. Further, the assessee has failed to submit the year-wise cash-flow statement and explanation for the source at the appeal stage also. Thus, the assessee having failed to explain the source of investment, the authorities in our view has rightly added the sum of Rs.38,711 as excess unexplained investment in the construction of house.”

The Tribunal being the last fact finding authority, it will be difficult for us to appreciate the expenses year-wise for three relevant years, since it was not reflected in any of the balance sheet or books of account of the appellant. In that view of the matter, the correctness of the view taken by learned Tribunal cannot be a question of law.

The appeal stands disposed of accordingly.

Urgent certified copy of this order be granted on proper application.

bks/jm

.…….......……………… ( K.S. Jhaveri ) Chief Justice

…………………..……… (K. R. Mohapatra) Judge