Jyoti Narang, Rudrapur V. ITO- 1(4), Rudrapur

ITA 1060/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5121 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 30-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 23-02-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Keywords: Reopening of assessment; Principle of natural justice; Peak credit; Deemed to accrue or arise in india; Condonation of delay; Reason to believe
• Section: 142(1); 147; 69; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH SMC : NEW DELHI) BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 1060/DEL/2017 ASSESSMENT YEAR: 2009-10 JYOTI NARANG, VS. ITO-1(4), AHARI MANDIR LANE, RUDRAPUR RUDRAPUR-263153 UTTARAKHAND (PAN: ACEPN2625E) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. PRAMOD JAIN, FCA REVENUE BY : SH. T. VASANTHAN, SR. DR. ORDER THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDE R DATED 11.11.2016 OF THE LD. CIT(A), HALDWANI PERTAINING TO ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS:- 1. THE ORDER PASSED BY THE AO IS BAD IN LAW AND AGAINST THE FACTS OF THE CASE. 2. THAT THE AO ERRED IN INITIATING PROVISIONS OF SECTI ON 148 OF THE I.T. ACT. 3. THAT THE AO ERRED IN TREATING CASH DEPOSITS AS INCOME ESCAPED ASSESSMENT. 2 4. THAT THE AO ERRED IN MAKING ADDITION ON ACCOUNT OF CASH DEPOSIT OF RS. 5,55,000/- IN SAVING BANK ACCOUNT. 5. THAT THE AO ERRED IN MAKING ADDITION ON ACCOUNT OF PEAK CREDIT THEORY. 6. THAT THE AO ERRED IN NOT MENTIONING THE PROVISION UNDER WHICH ADDITION WAS MADE. 7. THAT THE AO ALSO ERRED IN NOT FOLLOWING VARIOUS JUDGEMENTS OF SUPREME COURT AND JURISDICTIONAL HIGH COURTS. 8. THAT THE APPELLANT CRAVES FOR THE PERMISSION TO ADD, ALTER, MODIFY OR DELETE ANY OF THE GROUND OF APPEAL. 2. AT THE TIME OF HEARING, IT WAS NOTICED THAT THER E IS DELAY OF 44 DAYS IN FILING THE APPEAL BEFORE THE TRIBUNAL FOR W HICH THE DEFECT MEMO WAS ISSUED AT THE TIME OF FILING OF THE APPEAL . THE ASSESSEE HAS FILED THE APPLICATION DATED 21.2.2017 FOR CONDO NATION OF DELAY STATING THEREIN THAT THE CASE OF THE ASSESSEE WAS A SSESSED U/S. 144/147 AND THE ASSESSMENT ORDER WAS PASSED BY THE LD. CIT(A) ON 21.12.2016. THE ASSESSEE IS A WIDOW OF APPROX. 61 YEARS OF AGE AND IS PHYSICALLY HANDICAPPED. SHE IS COMPLETELY BED RI DDEN DUE TO TRAGIC ACCIDENT SINCE LONG TIME. HENCE THE ASSESSEE WAS N OT PRESENT AT HER RESIDENCE AND THERE WAS DELAY IN RECEIVING CIT(A) O RDER AND ALSO NOT ABLE TO SIGN THE REQUIRED DOCUMENTS. THEREFORE, THE RE IS DELAY OF 2-3 3 DAYS IN FILING APPEAL. HENCE, IT WAS REQUESTED THA T IN THE PRINCIPLES OF NATURAL JUSTICE DELAY IN FILING ITAT APPEAL BE C ONDONED. 3. LD. DR OPPOSED THE REQUEST FOR CONDONATION OF DELAY. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS. I FIND THAT DURING THE HEARING, ASSESSEES AR HAS FILED TH E DOCUMENTS FOR CONDONATION OF DELAY VIDE LETTER DATED 2.8.2017 AND STATED THAT LD. CIT(A)S ORDER IN THE CASE OF THE ASSESSEE WAS PASS ED ON 11.11.2016 AND WAS RECEIVED BY THE ASSESSEE ON 21.12.2016. HE FURTHER STATED THAT IT WAS INADVERTENTLY MENTIONED AT PARA NO. 9 O F FORM NO. 36 THAT DATE OF COMMUNICATION OF ORDER APPEALED WAS 11 TH NOVEMBER, 2016. HE ALSO FILED THE AFFIDAVIT FROM MR. SITARAM BATRA BROTHER OF APPELLANT THAT SHE WAS WITH HIM FOR TREATMENT AND NOT STAYING AT HER RESIDENTIAL ADDRESS DURING THAT PERIOD AND MEDICAL CERTIFICATE FROM PRASAD HOSPITAL, RUDRAPUR REGARDING HER AILMENT. TH EREFORE, HE STATED THE APPELLANT WAS NOT PRESENT AT HER RESIDEN CE AND NOT ABLE TO SIGN THE REQUIRED DOCUMENTS. THEREFORE, THERE WAS D ELAY OF 2-3 DAYS IN FILING THE APPEAL. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, I AM OF THE CONSIDERED VIEW THAT THER E IS PLAUSIBLE REASONS FOR DELAY IN FILING THE APPEAL OF 44 DAYS WHICH NEEDS TO BE CONDONED. THEREFORE, I CONDONE THE DELAY OF 44 DAY S AND PROCEED TO DECIDE THE APPEAL ON MERITS IN THE FOREGOING PARAGR APHS. 5. THE BRIEF FACTS OF THE CASE ARE AS PER AIR INFO RMATION OF CASH DEPOSIT OF MORE THAN RS. 10 LACS IN THE SAVING BANK ACCOUNT, A VERIFICATION LETTER WAS ISSUED ON 24.12.2013. IN VI EW OF THE NON- 4 COMPLIANCE OF THE VERIFICATION LETTER A NOTICE UNDE R SECTION 148 OF THE I.T. ACT, 1961 WAS ISSUED ON 7.2.2014 REQUIRING T HE ASSESSEE TO FILE THE RETURN OF INCOME. NO RETURN OF INCOME HAS BEEN FILED BY THE ASSESSEE IN COMPLIANCE OF NOTICE UNDER SECTION 148 OF THE I.T. ACT, 1961. FURTHER A COPY OF STATEMENT OF BANK ACCOUNT FOR THE RELEVANT FINANCIAL YEAR HAS BEEN CALLED FOR UNDER SECTION 13 3(6) FROM AXIS BANK LIMITED, RUDRAPUR VIDE LETTER DATED 3.4.2014. THE COPY OF BANK STATEMENT OF THE ASSESSEE HAS BEEN SUBMITTED BY THE BANK. SINCE NO RETURN OF INCOME WAS FILED IN COMPLIANCE OF THE NOT ICE UNDER SECTION 148 OF THE INCOME TAX ACT, 1961 A NOTICE UNDER SECT ION 142(1) OF THE ACT WAS ISSUED ON 5.11.2014 TO EXPLAIN THE CASH DEPOSITS OF RS. 10,66,850/- IN THE SAVING BANK ACCOUNT OF THE ASSES SEE. NO COMPLIANCE HAS BEEN MADE TO THIS NOTICE ALSO. ONCE AGAIN A NOTICE UNDER SECTION 142(1) OF THE I.T. ACT, 1961 WAS ISSU ED TO THE ASSESSEE ON 5.2.2015 TO EXPLAIN THE SAID CASH DEPOSITS IN TH E SAVING BANK ACCOUNT. NO COMPLIANCE HAS BEEN MADE TO THIS NOTICE ALSO. UNDER THE CIRCUMSTANCES, THE AO COMPLETED THE ASSESSMENT U/S. 144 OF THE I.T. ACT, 1961 AND CALCULATE THE PEAK BALANCE OVER THE RELEVANT PERIOD FOR WHICH THE INCOME HAS TO BE COMPUTED. AO OBSERVED THAT PERUSAL OF BANK STATEMENT REVEALED THAT THE ASSESSE E HAS PEAK BALANCE OF RS. 5,55,000/- ON 19.9.2008 AND ADDED TH E SAME TO THE TOTAL INCOME OF THE ASSESSEE VIDE ORDER DATED 26.2. 2015 PASSED U/S. 144/147 OF THE I.T. ACT, 1961. AGAINST THE ASSESSM ENT ORDER, THE ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE H IS IMPUGNED 5 ORDER DATED 11.11.2016 HAS PARTLY ALLOWED THE APPE AL OF THE ASSESSEE. 6. AGGRIEVED WITH IMPUGNED ORDER DATED 11.11.2016, ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL. 7. LD. COUNSEL OF THE ASSESSEE HAS STATED THAT AO HAS ERRED IN INITIATING PROVISIONS OF SECTION 148 OF THE INCOME TAX ACT, 1961 AND ALSO ERRED IN TREATING THE CASH DEPOSITS AS INCOME ESCAPED ASSESSMENT. IT WAS FURTHER STATED THAT THE CASE WA S ASSESSED U/S. 144 OF THE I.T. ACT AND DEMAND WAS RAISED ON BASELE SS INFORMATION, WHICH NEEDS TO BE DELETED. 8. ON THE CONTRARY, LD. DR RELIED UPON THE ORDERS O F THE AUTHORITIES BELOW. 9. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE RE CORDS AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW, E SPECIALLY THE CONTENTION RAISED IN THE GROUNDS OF APPEAL. I FIND THAT ISSUES IN DISPUTE HAVE BEEN THOROUGHLY DISCUSSED AND ADJUDICA TED BY THE LD. CIT(A) VIDE PARA NO. 3.2 AT PAGE NO. 7 TO 9 AND VID E PARA NO. 5 TO 5.3 AT PAGE NO. 10 TO 13. THE RELEVANT FINDING OF T HE LD. CIT(A) IS REPRODUCED AS UNDER:- 3.2 THE CONTENTIONS OF THE APPELLANT IN THESE GROU NDS OF APPEAL HAVE BEEN CONSIDERED. THE APPELLANT HAS CHALLENGED THE REOPENING OF HER CASE U/S 147 AND ASSESSMENT OF THE PEAK DEPOSITS IN HER BANK ACCOUNT . 6 NOW THE REASONS RECORDED BY AO FOR REOPENING OF ASSESSMENT U/S 148 ARE REPRODUCED AS UNDER- 'IN INSTANT CASE AS PER AIR INFORMATION, THE ASSESSEE HAS DEPOSITED CASH OF RS 10,66,850/-. THE ASSESSEE DID NOT COMPLY WITH THE QUERY LETTERS DATED 08.11.2013 & 24.12.2013 SENT IN THIS RESPECT. IT SHOWS THAT HE HAS NOTHING TO SAY AGAINST THIS CASH DEPOSIT. IN LIGHT OF THE ABOVE, I T IS CLEAR THAT THE CASH DEPOSIT OF RS.10, 66,850/- IS UNEXPLAINED. THEREFORE, I HAVE REASON TO BELIEVE THAT THE ABOVE MENTIONED INCOME HAS ESCAPED ASSESSMENT WITHIN MEANING OF SECTION 147. ISSUE NOTICE U/S. 148 FOR INITIATING PROCEEDINGS U/ S. 147 0F THE INCOME TAX ACT, 1961,FOR A.Y.-2009- 10. THEREFORE FROM THE ABOVE IT IS SEEN THAT THE AO DID HAVE MATERIAL OR FACTS THAT COULD LEAD HIM TO THE PRIMA FACIE CONCLUDE, THAT THERE WAS ESCAPEMENT OF INCOME AND 'REASONS TO BELIEVE' WERE DULY RECORDED THAT BASIS. IN ADDITION THE HON'BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF JAWAND SONS VS. CIT REPORTED IN 326 ITR 39 (P&H) HAS HELD THAT VIDE POWERS AFTER 02.04.89 HAS BEEN GIVEN TO THE 7 ASSESSING OFFICER TO RE-OPEN THE ASSESSMENT EVEN WHERE FULL FACTS HAVE BEEN DISCLOSED AND THE ONLY CONDITIONS THAT ASSESSING OFFICER SHOULD HAVE REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. AT THE STAGE OF ISSUE OF NOTICE, THE ONLY QUESTION IS WHETHER THERE WAS RELEVANT MATERIAL ON WHICH A REASONABLE PERSON COULD HAVE FORMED A REQUISITE BELIEF. WHETHER THE MATERIALS WOULD 'CONCLUSIVELY PROVE THE ESCAPEMENT IS NOT THE CONCERN AT THAT STAGE. THIS IS SO BECAUSE THE FORMATION OF BELIEF BY THE ASSESSING OFFICER IS WITHIN THE REALM OF SUBJECTIVE SATISFACTION. THE HON'BLE SUPREME COURT IN THE CASE OF ITO V. SELECTED DALURBAND COAL CO. (P.) LTD., [1996] 217 ITR 597 (SC); RAYMOND WOOLLEN MILLS LTD. V. ITA [1999] 236 IT&34 (SC) HAS HELD BY THAT IF THE ASSESSING OFFICER, FOR WHATEVER REASON, HAS REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT, IT CONFERS JURISDICTION TO REOPEN THE ASSESSMENT, SO LONG AS THE CONDITIONS OF SECTION 147 ARE FULFILLED , THE ASSESSING OFFICER IS FREE TO INITIATE PROCEEDIN GS UNDER SECTION 147. IT IS OBSERVED THAT THE ASSESSING OFFICER HAD THE REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT 8 AND IT HAD A RATIONAL NEXUS WITH THE MATERIAL BEFOR E HIM ALONGWITH THE INFORMATION WITH HIM. HE HAD REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT AND DULY RECORDED THE REASONS FOR THE SAME. IN THIS CASE THERE IS NO CHANGE IN OPINION OF THE ASSESSING OFFICER AS THE MATTER WAS NEVER INVESTIGATED OR ADJUDICATED OR INFORMATION ON THE ISSUE WAS CALLED OR EXAMINED BY THE ASSESSING OFFICER. IT MAY BE MENTIONED HERE THAT AS MENTIONED BY THE AO, THE APPELLANT HAD BEEN ISSUED A LETTER FOR VERIFICATION OF THE DEPOSI TS WHICH WAS HOWEVER NOT RESPONDED TO, THEREFORE THE APPELLANTS CONTENTION THAT THE AO DID NOT VERIFY THE DEPOSITS BEFORE ISSUING THE NOTICE ALSO U/S. 14 7 CANNOT BE ACCEPTED. THEREFORE, RELYING ON THE VARIOUS CASE LAWS AS DISCUSSED ABOVE AND FACTS AND CIRCUMSTANCES, THE ISSUANCE OF NOTICE U/S. 148 IS HELD TO BE VALID. THESE GROUNDS OF APPEAL ARE THEREFORE DISMISSED. 5. GROUND OF APPEAL NO. 5 IS AGAINST THE ADDITION O F RS. 5,55,000/- AS INCOME FROM OTHER SOURCES. THE AO IN HIS ORDER HAS HELD AS UNDER:- PERUSAL OF BANK STATEMENT PROVIDED BY THE BANK REVEALED THAT CASH DEPOSITS OF DIFFERENT AMOUNTS HA VE 9 BEEN MADE ON VARIOUS DATES AND THERE ARE SUBSEQUENT WITHDRAWALS ALSO. THE BEST POSSIBLE OPTION TO COMPU TE THE INCOME OUT OF THE INFORMATION ON HAND IN FROM O F BANK STATEMENT OF THE ASSESSEE IS TO CALCULATE THE BALANCE OVER THE RELEVANT PERIOD FOR WHICH THE INCO ME HAS TO BE COMPUTED. PERUSAL OF BANK STATEMENT REVEA LED THAT THE ASSESSEEHAS PEAK BALANCE OF RS. 5,55,000/- ON 19.9.2008. THEREFORE INCOME COMPUTED IN RESPECT OF THE CASH DEPOSITS IN THE SAVING BANK ACCOUNT DURING THE FINANCIAL YEAR AMOUNTING TO RS. 5,55,000/- IS ADDED TO THE TOTAL INCOME OF THE ASSESSEE. ACCORDINGLY THE AO COMPLETED THE ASSESSMENT OF THE APPELLANT AT AN INCOME OF RS. 5,55,000/- U/S. 144 /147 OF THE INCOME TAX ACT, 1961. 5.1 IN APPEAL IT HAS BEEN SUBMITTED THAT THE AO HAS PROCEEDED ONLY ON ESTIMATES AND SURMISES IN THE WHO LE PROCEEDINGS. FURTHER THAT HIS HYPOTHESIS THAT THE P EAK BALANCE OF RS. 5,55,000/- CONSTITUTES INCOME FROM O THER SOURCES, CANNOT BE APPROVED UNDER ANY LAW OR ACCOUN TING .PRESUMPTIONS, THE ESTIMATE IS NOT BASED ON ANY ADV ERSE MATERIAL OR CORROBORATING EVIDENCE ON RECORD AND CA NNOT BE TERMED AS A SCIENTIFIC OR REASONABLE CONCLUSION UNDER THE CIRCUMSTANCES. INSTEAD OF GOING FOR TAXING THE SAME 10 UNDER ANY DEEMED INCOME SECTIONS, HE HAS MISLEADING LY CONCLUDED THAT THIS CONSTITUTES 'INCOME FROM OTHER SOURCES'. HIS ESTIMATION ARE BASED ON ASSUMPTIONS A ND THE ADDITION-MADE DESERVES TO BE DELETED. THE TOTAL ESTIMATION AND PRESUMPTIONS ROTATE AROUND THE ASSUMPTION THAT THE APPELLANT IS HAVING A TAXABLE, INCOME WHICH HAS BEEN DEPOSITED IN THE BANK ACCOUNT . THE FACTUAL POSITION IS THAT THE APPELLANT IS COMPL ETELY BED RIDDEN FOR MORE THAN LAST 10 YEARS AND CANNOT REASONABLY BE EXPECTED TO BE ENGAGED IN ANY BUSINES S ACTIVITY. THE AMOUNT DEPOSITED IN HER BANK ACCOUNT ON DIFFERENT OCCASIONS IS OUT OF THE MONEY COLLECTED B Y HER FROM HER NEAR RELATIVES FOR THE MARRIAGE OF HER SON , WHICH TOOK PLACE ON 13.10.2009. 5.2 SINCE THE ASSESSMENT WAS COMPLETED U/S 144, THE ABOVE SUBMISSION OF THE APPELLANT WERE FORWARDED TO THE A.O FOR HIS COMMENTS. HE HOWEVER CONCLUDED IN HIS REMAND REPORT DATED 2411 0116 AS UNDER- '3. THE CASE WAS COMPLETED U/S 144 OF I.T ACT, 1961. IN RESPONSE TO THE LETTER, SH. GAUTAM KATHURIA, FCA, AR OF THE ASSESSEE ATTENDED. THE CASE WAS DISCUSSED WITH HIM. AND WHEN ASKED TO PRODUCE SOURCE OF DEPOSIT OF RS. 5,50,000/- DATED 19-09-2008, HE WAS 11 NOT ABLE TO PRODUCE ANY DETAIL AND SOURCE OF DEPOSIT.' IN VIEW OF THE ABOVE CIRCUMSTANCES, THE THEN A.O. IS SEEMS TO BE CORRECT IN COMPLETING THE ASSESSMENT ON INCOME OF RS. 5,50,000/-. A COPY OF THE ABOVE REPORT WAS MADE AVAILABLE TO THE APPELLANT AND IN THE REJOINDER DATED 8/11/16 TO THE SAME HER AIR HAS STATED AS UNDER:- 'A. THE REASONS RECORDED FOR REOPENING OF ASSESSMEN T ARE MERELY BASED ON THE CASH DEPOSITS MADE BY THE APPELLANT WITHOUT HAVING ANY OTHER ADVERSE MATERIAL ON RECORD. THEREFORE THE JURISDICTION ASSUMED U/S 147 IS ILL- FOUNDED ESPECIALLY IN VIEW OF THE DECISIONS AND PRONOUNCEMENTS RELIED UPON BY THE APPELLANT. B. SIR, THE TOTAL ESTIMATION, SURMISES, HYPOTHESIS AND PRESUMPTIONS ROTATE AROUND THE ASSUMPTION THAT THE ASSESSEE IS HAVING A TAXABLE INCOME WHICH HAS BEEN DEPOSITED IN THE BANK ACCOUNT. THE FACTUAL POSITION IS THAT THE APPELLANT IS COMPLETELY BED RIDDEN FOR MOR E THAN 10 YEARS AND CANNOT REASONABLY BE EXPECTED TO BE ENGAGED IN ANY BUSINESS ACTIVITY. THE AMOUNT DEPOSI TED IN HER BANK ACCOUNT ON DIFFERENT OCCASIONS IS OUT O F THE MONEY COLLECTED BY HER FROM HER NEAR RELATIVES FOR THE MARRIAGE OF HER SON. THE FACTUAL POSITION OF THESE 12 DEPOSITS CANNOT BE DOUBTED WITHOUT ANY COHERENT ADVERSE MATERIAL ON RECORD. 5.3 THE SUBMISSIONS AS ABOVE OF THE APPELLANT AND T HE REMAND REPORT OF THE AO HAVE BEEN CONSIDERED. THE ISSUE IN THIS GROUND OF APPEAL IS THE ADDITION MADE BY THE AO OF THE PEAK CASH DEPOSITS IN THE BANK ACCOUNT OF THE APPELLANT OF RS. 5,55,OOO/-. WHILE THE CONTENTION OF THE APPELLANT THAT SHE WAS A HANDICAPPED WIDOW WITH NO SOURCE OF INCOME HAS BEEN CONSIDERED, HOWEVER SHE H AS BEEN UNABLE TO EXPLAIN THE SOURCE OF CASH DEPOSITS IN HER ACCOUNT OR PROVIDE EVIDENCE IN THE FORM OF CONFIRMA TIONS OF RELATIVES OR PERSONS WHO HAVE CLAIMED TO HAVE GI VEN HER SUCH AMOUNTS FOR HER SONS WEDDING ETC. THEREFO RE IN THE ABSENCE OF ANY EVIDENCE OR THE ABOVE EXPLANATIO N BEING SUBSTANTIATED BY EVEN CORROBORATIVE EVIDENCE CANNOT BE ACCEPTED. IT MAY BE MENTIONED THAT SINCE THE CASH CREDITS ARE THERE IN HER BANK ACCOUNT, THE ONU S IS ON THE APPELLANT TO PROVE THE SOURCE OF THE SAME, KALE KHAN MOHD HANIF VS CIT(SC) 50ITR. IT IS IMMATERIAL THAT SHE DID NOT HAVE ANY BUSINESS ACTIVITIES OR KNOWN SOURC E OF INCOME, CASH DEPOSITS IN BANK HAVE TO BE EXPLAINED BY THE ASSESSEE OTHERWISE THEY CAN BE ADDED U/S 69 OR 66B CIT VS CHINNATHAMBAN(SC)292 ITR 682. THE AO HAS ALREADY TAKEN A REASONABLE APPROACH OF TAKING THE P EAK 13 BALANCE OF THE DEPOSITS IN HER ACCOUNT AND BENEFIT OF TELESCOPING I.E WITHDRAWALS FOR THE SAME HAS ALREAD Y BEEN GIVEN. ACCORDINGLY IT IS HELD THAT THE ADDITIO N MADE BY THE AO OF RS 5,55,000/- IS JUSTIFIED AND THE SA ME IS CONFIRMED. 9.1 AFTER GOING THROUGH THE AFORESAID FINDING OF TH E LD. CIT(A), WITH REGARD TO GROUND NO. 2 RELATING TO INITIATION OF REOPENING PROCEEDINGS IS CONCERNED, I FIND THAT THE ASSESSEE HAS CHALLENGED THE REOPENING OF HER CASE U/S 147 AND ASSESSMENT OF THE PEAK DEPOSITS IN HER BANK ACCOUNT. NOW THE REASONS RECOR DED BY AO FOR REOPENING OF ASSESSMENT U/S 148 ARE REPRODUCED AS UNDER:- 'IN INSTANT CASE AS PER AIR INFORMATION, THE ASSESSEE HAS DEPOSITED CASH OF RS 10,66,850/-. THE ASSESSEE DID NOT COMPLY WITH THE QUERY LETTERS DATED 08.11.2013 & 24.12.2013 SENT IN THIS RESPECT. IT SHOWS THAT HE HAS NOTHING TO SAY AGAINST THIS CASH DEPOSIT. IN LIGHT OF THE ABOVE, I T IS CLEAR THAT THE CASH DEPOSIT OF RS.10, 66,850/- IS UNEXPLAINED. THEREFORE, I HAVE REASON TO BELIEVE THAT THE ABOVE MENTIONED INCOME HAS ESCAPED ASSESSMENT WITHIN MEANING OF SECTION 147. 14 ISSUE NOTICE U/S. 148 FOR INITIATING PROCEEDINGS U/ S. 147 0F THE INCOME TAX ACT, 1961,FOR A.Y.-2009- 10. FROM THE ABOVE IT IS OBSERVED THAT THE AO DID HAVE MATERIAL OR FACTS THAT COULD LEAD HIM TO THE PRIMA FACIE CONCLU DE, THAT THERE WAS ESCAPEMENT OF INCOME AND 'REASONS TO BELIEVE' WERE DULY RECORDED THAT BASIS. IN ADDITION THE HON'BLE PUNJAB AND HARY ANA HIGH COURT IN THE CASE OF JAWAND SONS VS. CIT REPORTED IN 326 ITR 39 (P&H) HAS HELD THAT VIDE POWERS AFTER 02.04.89 HAS BEEN GIVEN TO THE ASSESSING OFFICER TO RE-OPEN THE ASSESSMENT EVEN WHERE FULL F ACTS HAVE BEEN DISCLOSED AND THE ONLY CONDITIONS THAT ASSESSING OF FICER SHOULD HAVE REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMEN T. AT THE STAGE OF ISSUE OF NOTICE, THE ONLY QUESTION IS WHETHER TH ERE WAS RELEVANT MATERIAL ON WHICH A REASONABLE PERSON COULD HAVE FO RMED A REQUISITE BELIEF. WHETHER THE MATERIALS WOULD CONCLUSIVELY PR OVE THE ESCAPEMENT IS NOT THE CONCERN AT THAT STAGE. THIS I S SO BECAUSE THE FORMATION OF BELIEF BY THE ASSESSING OFFICER IS WIT HIN THE REALM OF SUBJECTIVE SATISFACTION. THE HON'BLE SUPREME COURT IN THE CASE OF ITO V. SELECTED DALURBAND COAL CO. (P.) LTD., [1996] 21 7 ITR 597 (SC); RAYMOND WOOLLEN MILLS LTD. V. ITA [1999] 236 IT&34 (SC) HAS HELD BY THAT IF THE ASSESSING OFFICER, FOR WHATEVER REAS ON, HAS REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT, IT CONF ERS JURISDICTION TO REOPEN THE ASSESSMENT, SO LONG AS THE CONDITIONS OF SECTION 147 ARE FULFILLED, THE ASSESSING OFFICER IS FREE TO INI TIATE PROCEEDINGS UNDER SECTION 147. IT IS OBSERVED THAT THE ASSESSING OFFI CER HAD THE REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAD ESCAPE D ASSESSMENT AND IT HAD A RATIONAL NEXUS WITH THE MATERIAL BEFOR E HIM ALONGWITH THE INFORMATION WITH HIM. HE HAD REASON TO BELIEVE THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT AND DULY R ECORDED THE REASONS FOR THE SAME. IN THIS CASE THERE IS NO CHAN GE IN OPINION OF THE ASSESSING OFFICER AS THE MATTER WAS NEVER INVES TIGATED OR 15 ADJUDICATED OR INFORMATION ON THE ISSUE WAS CALLED OR EXAMINED BY THE ASSESSING OFFICER. IT MAY BE MENTIONED HERE THA T AS MENTIONED BY THE AO, THE APPELLANT HAD BEEN ISSUED A LETTER F OR VERIFICATION OF THE DEPOSITS WHICH WAS HOWEVER NOT RESPONDED TO, TH EREFORE THE APPELLANTS CONTENTION THAT THE AO DID NOT VERIFY T HE DEPOSITS BEFORE ISSUING THE NOTICE ALSO U/S. 147 CANNOT BE ACCEPTED . THEREFORE, RELYING ON THE VARIOUS CASE LAWS AS DISCUSSED ABOVE AND FACTS AND CIRCUMSTANCES, THE ISSUANCE OF NOTICE U/S. 148 WAS RIGHTLY HELD TO BE VALID BY THE LD. CIT(A), WHICH DOES NOT NEED ANY IN TERFERENCE ON MY PART, HENCE, I UPHOLD THE ORDER OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE AND REJECT THE GROUND OF APPEAL IN DISPUTE RAISED BY THE ASSESSEE. 9.2 WITH REGARD TO GROUND NO. 4 RELATING TO CONFIR MING THE ADDITION OF RS. 5,55,000/- ON ACCOUNT OF CASH DEPOSIT IN S AVING BANK ACCOUNT IS CONCERNED, I FIND THAT THE ISSUE IN THIS GROUND OF APPEAL IS THE ADDITION MADE BY THE AO OF THE PEAK CASH DEPOSITS I N THE BANK ACCOUNT OF THE APPELLANT OF RS. 5,55,OOO/-. WHILE THE CONTENTION OF THE ASSESSEE THAT SHE WAS A HANDICAPPED WIDOW WITH NO SOURCE OF INCOME HAS BEEN CONSIDERED, HOWEVER SHE HAS BEEN UN ABLE TO EXPLAIN THE SOURCE OF CASH DEPOSITS IN HER ACCOUNT OR PROVIDE EVIDENCE IN THE FORM OF CONFIRMATIONS OF RELATIVES OR PERSONS WHO HAVE CLAIMED TO HAVE GIVEN HER SUCH AMOUNTS FOR HER SONS WEDDING ETC. THEREFORE IN THE ABSENCE OF ANY EVIDENCE OR TH E ABOVE EXPLANATION BEING SUBSTANTIATED BY EVEN CORROBORATI VE EVIDENCE CANNOT BE ACCEPTED. IT MAY BE MENTIONED THAT SINCE THE CASH CREDITS ARE THERE IN HER BANK ACCOUNT, THE ONUS IS ON THE A SSESSEE TO PROVE THE SOURCE OF THE SAME, KALE KHAN MOHD HANIF VS CIT (SC) 50ITR. IT IS IMMATERIAL THAT SHE DID NOT HAVE ANY BUSINESS AC TIVITIES OR KNOWN SOURCE OF INCOME, CASH DEPOSITS IN BANK HAVE TO BE EXPLAINED BY THE ASSESSEE OTHERWISE THEY CAN BE ADDED U/S 69 OR 66B CIT VS CHINNATHAMBAN(SC)292 ITR 682. THE AO HAS ALREADY TA KEN A REASONABLE APPROACH OF TAKING THE PEAK BALANCE OF T HE DEPOSITS IN 16 HER ACCOUNT AND BENEFIT OF TELESCOPING I.E WITHDRAW ALS FOR THE SAME HAS ALREADY BEEN GIVEN. ACCORDINGLY LD. CIT(A) HAS RIGHTLY HELD THAT THE ADDITION MADE BY THE AO OF RS 5,55,000/- WAS JUSTIFIED AND THE SAME WAS CONFIRMED, WHICH DOES NOT NEED ANY INTERFERENCE ON MY PART, HENCE, I UPHOLD THE ORDER OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE AND REJECT THE GROUND OF APPEAL IN DISPUTE RAISED BY THE ASSESSEE. 10. IN THE RESULT, ASSESSEES APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THIS 08-08-2017. SD/- (H.S. SIDHU) JUDICIAL MEMBER DATED :08-08-2017 SR BHATANGAR COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A), NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.