COMMISSIONER OF INCOME TAX Vs. PARMESHWAR BOHRA

JUDGEMENT

(1.) THIS IT Appeal is directed against the order dt. 13th Dec., 2001, passed by the Tribunal, Jodhpur in ITA No. 486/Jdpr/1999 for the asst. yr. 1993-94.

(2.) BRIEF facts of the case are that the assessee-respondent is having two business concerns, namely, P.G. Marble Trading Co., Kelwa and Asian Marble and Asbestos at Rajsamand. IT assessment of the respondent was completed under s. 143(3)/148 of the Income-tax Act, 1961 (for the short `the Act of 1961') by order, dt. 24th Sept., 1997, passed by the AO (Annexure-1). The CIT opined that the order passed by the AO was erroneous and prejudicial to the interest of the Revenue and by exercising power under s. 263 by order dt. 31st Aug., 1999, held that opening balance in capital account in Asian Marbles and Asbestos, as on 1st April, 1992, shown by assessee at Rs. 2,73,500 represented assessee's income from undisclosed sources and was taxable in the asst. yr. 1993-94 in the absence of any proof regarding its accommodation in the earlier years. Copy of the order of the CIT, under s. 263, dt. 31st Aug., 1999, is Annexure-2. The assessee aggrieved against the order of the CIT, preferred second appeal before the Tribunal, Jodhpur, Bench Jodhpur which was registered as ITA No. 486(Jdpr)/1999. The Tribunal allowed the appeal by order dt. 13th Dec., 2001.

(3.) IT appears that the Tribunal has considered the issue regarding accessibility of the capital while considering the assessee's appeal ITA 71(Jdpr)/1999 for the asst. yr. 1993-94 by order dt. 6th Dec., 2001, whereby the Tribunal held that it is not a case of introduction of cash credit but it is a case of unexplained investment under s. 69 of the Act of 1961 and the appropriate previous year for inclusion is the relevant financial year and, therefore, the opening capital account cannot be added as an unexplained investment under s. 69 of the Act of 1961 for the asst. yr. 1993-94. The Tribunal also held that the genuineness of the capital introduction has already been adjudicated upon by the assessing authority for the appropriate financial year relevant to asst. yr. 1992-93. The Tribunal also took note of the fact that the order passed by the assessing authority for the asst. yr. 1993-94 on the basis of notice under s. 148 dt. 17th June, 1997, has already been quashed by the order dt. 6th Dec., 2001, in the same ITA No. 71(Jdpr)/1999. Therefore, on the basis of the above decision dt. 6th Dec., 2001, the appeal of the assessee was allowed by the Tribunal. Nothing has come on record what happened to the order dt. 6th Dec., 2001, and whether the said order of the Tribunal was ever challenged by the Revenue or not. When the Revenue itself has accepted the order dt. 6th Dec., 2001 wherein it has been held by the Tribunal that it is a case of unexplained investment under s. 69 of the Act of 1961 and the appropriate previous year for inclusion is the relevant financial year and its genuineness has already been adjudicated upon by the assessing authority for the appropriate financial year, i.e., 1992-93 (sic) then how the order of the assessing authority can be said to be erroneous or prejudicial to the interest of the Revenue. Since the Tribunal has decided the appeal on the basis of the decision dt. 6th Dec., 2001, therefore, there appears to be no illegality in the order passed by the Tribunal.