Deva Nand Prasad Gupta v. Income Tax Appelate Tribunal, Patna Bench, Patna

For the Appellant : Mr. D.V. Pathy, Advocate, Mr. Uttam Kumar Mishra, Advocate & For the Respondent/s Mr. Harshwardhan Prasad, Senior Standing Consel Mrs. Archana Sinha, Jr.Standing Counsel. l===================================================== = CORAM: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH HONOURABLE MR. JUSTICE VIKASH JAIN ORAL ORDER (Per: HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH) 6 26-03-2012 Heard learned counsel for the appellant.

The order under appeal dated 22-6-2007 was passed by the Income Tax Appellate Tribunal, Patna Bench, 2 Patna High Court MA No.650 of 2007 (6) dt.26-03-2012 Patna whereby I.T. A. No. 139/ Pat/ 2006 relating to assessment year 2001-02 was dismissed along with 3 other appeals after considering the two issues which were raised before the Tribunal and are noted in paragraph-1 of the order itself.

On behalf of appellant it has been submitted that a substantial question of law arises as to whether the Tribunal was required to consider the issue of non-service of notice under section 148 of the I.T.Act and its non-consideration renders the order of the Tribunal vitiated in law.

The Tribunal has recorded in paragraph-2 of the order under appeal that so far as the issue of no proper notice on the appellant was concerned, nothing was argued by the learned counsel of the appellant before the Tribunal. The order further shows that there was nothing on record to substantiate such claim of the appellant and in that view of the matter such ground taken by the appellant in all the assessment years were rejected. Learned counsel for the appellant tried to show that such an issue was raised before the Assessing Officer. But facts are otherwise. It is recorded in the order of assessment that after the original order of assessment under section 143(1) was made on 5-11-2001, the records revealed reasons, as indicated 3 Patna High Court MA No.650 of 2007 (6) dt.26-03-2012 in the order, to believe that taxable income had escaped assessment and thereafter the order further records the fact of issuance of notice on various dates and that ultimately notice was served on the assessee but due to non-appearance and non- compliance with the notice, re-assessment was made on the basis of materials on the record to the best of its judgment. The appellate order passed by the CIT (A) also discloses that this issue was not raised on behalf of appellant. In these circumstances, we do not find any substantial question of law on the issue noticed above.

5. So far as the other substantial question of law sought to be raised is concerned, it relates to claim under section 10(4) of the Income Tax Act. Under the said provision additional conveyance allowance could have been claimed and allowed only to the extent the assessee could show that such expense had been incurred and it was in the performance of official duty. From the wordings of the provisions it is obvious that the claim is dependent on an issue of fact for which materials are required to be brought on record by the assessee to show that actually he had incurred expenses for the purpose and the same was wholly, necessarily and exclusively performance of the duties of his office or employment. Such an 4 Patna High Court MA No.650 of 2007 (6) dt.26-03-2012 issue of fact stands determined against the appellant by the authorities and no substantial question of law can arise in view of such concurrent findings of fact. This view is supported by a judgment of the Supreme Court in the case of Commissioner of Income Tax Vrs. P. Mohna Kala, (2007) 6 SCC 21. In that case, in relation to a transaction of gift the findings of facts given by the authorities against the assessee were held to be not liable to interference by High Court because the appellate authority and the Tribunal had concurred with the findings of fact given by the Assessing Authority.

6. Thus, in our considered view, no substantial question of law arises in this appeal. It is, therefore, dismissed. (Shiva Kirti Singh, J) Naresh/- (Vikash Jain, J)