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February, 01st 2013
%                                      Judgment delivered on: 30.01.2013

+       ITA No.43/2013

COMMISSIONER OF INCOME TAX-XI                            ... Appellant


KULDEEP SOOD                                             ... Respondent
Advocates who appeared in this case:
For the Petitioner           : Mr Sanjeev Rajpal
For the Respondent           : None




        This appeal has been filed by the Revenue and it is directed against

the order passed by the Income Tax Appellate Tribunal (,,Tribunal for

short) on 22nd June, 2012 in ITA(SS) No.61/Del/2009. The Revenue

seeks admission of the appeal on the following questions of law stated to

be substantial questions of law:-

        "I. Whether the ITAT has not erred in law in case of the
        respondent for deleting the addition of `26,27,610/- for AY
        1998-1999 in the block assessment as his undisclosed income
        substantively from his proprietorship concern ?

ITA 43/2013                                                              Page 1 of 5
        II. Whether the impugned order is not perverse?"

2.      In the assessment made under Section 158BC of the Act on 27th

June, 2001 pursuant to a search of the assessees business and residential

premises, the AO made an addition of `1,44,19,919/-. This addition was

made in the following years:-

              Financial       Year /   Undisclosed Income
              Assessment Year

              1995-96                         ` 1,04,79,248/-
              1996-97                           ` 13,13,061/-
              1997-98                           ` 26,27,610/-
              Total                           ` 1,44,19,919/-

The basis of the addition was the view taken by the AO that the business

carried on in the name and style of M/s Transworld International

belonged to the assessee and not to his wife as claimed. The assessee had

claimed before the AO that the above business was transferred to his wife

Mrs.Pallavi Sood after 1994 and thereafter the business was being run by

her and, therefore, the entire income from that business should be

assessed in her hands. In support of the claim an affidavit from the

assessees wife was filed before the AO. The affidavit was however

rejected as an afterthought; it was noted that the statement given by the

ITA 43/2013                                                     Page 2 of 5
assessees wife on oath earlier before the income tax authorities should be

given more weight. It was also claimed before the AO that the income

from M/s Transworld International was declared in the returns filed in the

name of assesssees wife. This claim was also brushed aside by the AO

as irrelevant. It was in these circumstances that the aforesaid addition

came to be made in the block assessment order.

3.      On appeal the CIT (Appeals) deleted the addition of `26,27,610/-,

following his predecessors order. It appears that h is predecessor had

deleted the additions on the ground that the income from Transworld

International had been disclosed in the returns filed by the assessees wife

under Section 139(1) of the Act.

4.      The Revenue carried the matter in appeal before the Tribunal. The

Tribunal after hearing the rival contentions and after taking note of the

facts confirmed the decision of the CIT (Appeals), observing as follows:-

        "We have considered the facts of the case. We find that
        identical additions were made for three years in the case of the
        wife and the assessee. The appeal in the case of wife was
        disposed off by the Ld.CIT(A) on 27.10.2003. In this order the
        assessee is held to be the owner of M/s Transworld International
        upto assessment year 1996-97. Smt. Pallavi Sood has been held
        to be owner of this proprietary concern from assessment year
        1997-98. The order in the case of wife has become final. It

ITA 43/2013                                                      Page 3 of 5
        may be added that the addition has been deleted in her case also
        on the ground that the transactions of M/s Transworld
        International had been taken into account and profit from this
        concern was declared by her at `1,04,996/-. This finding has
        not been challenged by the revenue as stated by the Ld. Counsel
        in the brief-note filed before us in the course of hearing.
        Therefore, this finding has become final, which means that the
        income from this concern for assessment year 1997-98 cannot
        included in the hands of the assessee. Following the rule of
        consistency, it is held that Ld. CIT(A) was right in deleting the
        addition, representing income from aforesaid concern, from the
        assessment of the assessee."

5.      It will be appreciated from the above that the Revenue had

accepted the order of the CIT (Appeals) in which she was held to be the

owner of M/s Trans World International from the assessment year 1997-

98 and that her husband, the assessee before us, was the owner of the said

concern only upto the assessment year 1996-97. The finding as to the

ownership of a particular business is a finding of fact. In the present case

the CIT (Appeals) had found as a fact that from the assessment year

1997-98 it was the assessees wife Mrs. Pallavi Sood who was the owner

of M/s Trans World International. It was on that basis that she had filed

the return of income and the finding of the CIT (Appeals) was also

accepted by the Revenue. The finding of fact has not been challenged

before us as perverse. It seems to us that the Revenue, having accepted

ITA 43/2013                                                       Page 4 of 5
the finding in the assessees wifes case, cannot take a different view in

the assessment of the husband.           That would amount to taking

contradictory or inconsistent stands without any just cause. We do not,

therefore, see any infirmity or error of law in the decision of the Tribunal.

Its order does not give rise to any substantial question of law as it is based

on not only the findings of fact but also on the Revenues own conduct.

We accordingly see no merit in the appeal filed by the Revenue which

stands dismissed with no order as to costs.

                                                          R.V.EASWAR, J

                                           BADAR DURREZ AHMED, J
JANUARY 30, 2013

ITA 43/2013                                                        Page 5 of 5
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