Mir Basheeruddin Alikhan, Hyderabad V. ITO, Hyderabad

ITA 1065/HYD/2009

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69916 (ITAT-HYDERABAD)
• Duration Of Justice: 4 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-03-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 28-10-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALLIKA
• Keywords: Invalid notice; Period of limitation; Retrospective amendment
• Section: 142(1); 69; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO.1065/HYD/2009 ASSESSMENT YEAR 2005-06. MIR BASHEERUDDIN ALI KHAN, -V- INCO ME-TAX OFFICER, HYDERABAD. WARD-6(3), HYDERABAD. PAN:AJGPA0381F (APPELLANT) (RESPONDENT) APPELLANT BY MOHD. AFZAL RESPONDENT BY SMT. SUMAN MALLIKA DATE OF HEARING 31 - 10 - 2013 DATE OF PRONOUNCEMENT 22 - 11 - 2013 ORDER PER SAKTIJIT DEY, J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 27-8-2009 OF CIT (A)-IV, HYDERABAD PASSED IN APPEAL NO. ITA NO.166/ITO6(3)/CIT(A)-IV/2007-08 PERTAINING TO THE ASSESSMENT YEAR 2005-06. 2. THE ASSESSEE HAS RAISED 5 GROUNDS OF APPEAL. G ROUND NOS. 1 AND 5 BEING GENERAL GROUNDS ARE NOT REQUIRED TO B E 2 ITA NO.1065 OF 2009 BASHEERUDDIN ALI KHAN, HYD. ADJUDICATED UPON. IN GROUND NO.3, THE ASSESSEE HA S RAISED A LEGAL ISSUE PERTAINING TO THE VALIDITY OF THE ASSES SMENT ORDER PASSED IN PURSUANCE TO A NOTICE ISSUED U/S 142(1) O F THE ACT BEYOND A PERIOD OF ONE YEAR FROM THE RELEVANT ASSES SMENT YEAR. WE PROPOSE TO TAKE UP THE AFORESAID LEGAL IS SUE RAISED BY THE ASSESSEE AT FIRST. 3. BRIEFLY THE FACTS ARE ON THE BASIS OF INFORMATI ON AVAILABLE WITH THE ASSESSING OFFICER WITH REGARD TO THE FACT THAT THE ASSESSEE HAD INVESTED AN AMOUNT OF RS.3 LAKH IN UTI MUTUAL FUND DURING THE FINANCIAL YEAR 2004-05 RELEVANT TO THE IMPUGNED ASSESSMENT YEAR AND FURTHER SINCE THE ASSE SSEE IS NOT ASSED TO INCOME-TAX, THE ASSESSING OFFICER , AS NOTED IN THE ASSESSMENT ORDER ISSUED A NOTICE U/S 142(1) ON 30-8 -2007 CALLING UPON THE ASSESSEE TO SUBMIT HIS RETURN OF I NCOME FOR THE IMPUGNED ASSESSMENT YEAR. IN RESPONSE TO THE SAID N OTICE, THE ASSESSEE FILED HIS RETURN OF INCOME ON 15-11-2007 A DMITTING NIL INCOME. DURING ASSESSMENT PROCEEDINGS, THE ASSESSIN G OFFICER ON EXAMINATION OF THE BANK ACCOUNTS SUBMITTED BY TH E ASSESSEE NOTED THAT THERE WAS CASH DEPOSIT MADE BY THE ASSES SEE OF RS.6,50,000/- ON 8-9-2004. WHEN THE ASSESSING OFFI CER ASKED THE ASSESSEE TO FURNISH THE DETAILS OF SUCH DEPOSIT WITH SOURCE, THE ASSESSEE SUBMITTED THAT THE CASH DEPOSIT OF RS. 6,50,000/- WAS OUT OF EARLIER WITHDRAWALS OVER A PERIOD FROM FEB. 2002 TO SEPT. 2003. THE ASSESSING OFFICER FINDING THE EXPL ANATION OF THE ASSESSEE TO BE NOT CONVINCING ENOUGH, REJECTED THE SAME AND TREATED THE CASH DEPOSIT OF RS.6,50,000/- AS UN EXPLAINED 3 ITA NO.1065 OF 2009 BASHEERUDDIN ALI KHAN, HYD. INVESTMENT IN TERMS OF SECTION 69 OF THE ACT AND AD DED IT TO THE INCOME OF THE ASSESSEE. BEING AGGRIEVED OF SUCH AS SESSMENT ORDER PASSED,THE ASSESSEE PREFERRED AN APPEAL BEFOR E THE CIT (A). 4. IN COURSE OF HEARING BEFORE THE CIT (A), THE ASS ESSEE SUBMITTED THAT THE NOTICE ISSUED U/S 142(1) OF THE ACT NOT BEING A VALID NOTICE, THE ASSESSMENT ORDER PASSED C ONSEQUENT THERETO IS ALSO INVALID IN LAW. THE CIT (A) ON CON SIDERING THE AFORESAID SUBMISSIONS OF THE ASSESSEE NOTED THAT SI NCE THE ASSESSEE HAD NOT RAISED ANY SPECIFIC GROUND CHALLEN GING THE VALIDITY OF THE NOTICE ISSUED U/S 142(1) OF THE ACT . THE ARGUMENT OF THE ASSESSEE IN THAT CONTEXT HAS NO MER IT. THE CIT (A) HOWEVER FURTHER OBSERVED THAT THE ASSESSEE HAVI NG FILED A RETURN OF INCOME IN RESPONSE AND THE NOTICE ISSUED U/S 142(1) OF THE ACT AND FURTHER THE ASSESSEE HAVING COMPLIED TO THE STATUTORY NOTICES ISSUED BY THE ASSESSING OFFICER U /S 143(2) AND 142(1) OF THE ACT AND PARTICIPATED IN THE ASSES SMENT PROCEEDINGS, HE ASSESSEE CANNOT CHALLENGE THE VALID ITY OF THE NOTICE ISSUED U/S 142(1) DURING THE APPEAL PROCEE DINGS. THE CIT (A) FURTHER RELIED UPON A DECISION OF HONBLE S UPREME COURT IN CASE OF CIT VS. RAMAN CHETTIAR (55 ITR 630) AND HONBLE CALCUTTA HIGH COURT IN THEIR DECISION IN INDIAN TUB E CO. LTD. VS, ITO (272 ITR 439) HELD THAT IN A RETURN SUBMITTED BY AN ASSESSEE PURSUANT TO AN INVALID NOTICE, CANNOT BE IGNORED OR DISREGARDED BY THE ITO. ON CONSIDERATION OF THE AB OVE, THE CIT (A) HELD THAT THE ASSESSMENT MADE BY THE ASSESSING OFFICER IS 4 ITA NO.1065 OF 2009 BASHEERUDDIN ALI KHAN, HYD. VALID. SO FAR AS MERIT IS CONCERNED, THE CIT (A) C ONFIRMED THE ADDITION BY HOLDING THAT THE ASSESSEE HAD FAILED T O SUBSTANTIATE HIS CLAIM THAT THE DEPOSIT WAS MADE O UT OF THE EARLIER WITHDRAWALS. 5. THE LEARNED AR TAKING US THROUGH THE PROVISIONS OF SECTION 142(1) OF THE ACT AS APPLICABLE TO THE RELEVANT ASS ESSMENT YEAR SUBMITTED BEFORE US THAT THE AMENDMENT MADE BY THE FINANCE ACT, 2006 U/S 142(1) BY INSERTING THE PROVISO IS CLARIFICATORY IN NATURE SINCE THERE IS NO TIME LIMIT FOR ISSUANCE OF NOTICE U/S 142(1) OF THE ACT. HE SUBMITTED THAT AS PER THE ME ANING OF THE SAID PROVISO, THE ASSESSING OFFICER CAN ISSUE A NOT ICE U/S 142(1) OF THE ACT AFTER THE END OF THE RELEVANT ASS ESSMENT YEAR. HOWEVER, THE LEARNED AR SUBMITTED THAT A LITE RAL MEANING ASCRIBED TO THE SAID PROVISO IF SO INTERPRETED WOUL D EMPOWER THE ASSESSING OFFICER TO SERVE A NOTICE CALLING FOR RETURN EVEN ONE DAY PRIOR TO THE LAST DAY OR EVEN ON THE LAST D AY OF THE LIMITATION PRESCRIBED FOR COMPLETION OF THE ASSESSM ENT. ACCORDING TO THE LEARNED AR , THIS CANNOT BE THE I NTENTION OF THE LEGISLATURE. THE LEARNED AR REFERRING TO THE P ROVISION CONTAINED U/S 139, 153 AND 147 OF THE ACT SUBMITTED THAT ALL THESE PROVISIONS HAVE TO BE CONSTRUED HARMONIOUSLY TO FIND OUT THE TRUE INTENTION OF THE LEGISLATURE. IT WAS CONTE NDED THAT IF A HARMONIOUS CONSTRUCTON OF THE AFORESAID PROVISIONS IS MADE, THEN THE LOGICAL CONCLUSION WOULD BE THE TIME LIMIT FOR ISSUING A NOTICE U/S 142(1) OF THE ACT IS ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR. HE THEREFORE SUBMITTED T HAT THE 5 ITA NO.1065 OF 2009 BASHEERUDDIN ALI KHAN, HYD. NOTICE ISSUED U/S 142(1) OF THE ACT HAVING BEEN ISS UED AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASS ESSMENT YEAR, IT IS INVALID IN LAW AND THE ASSESSMENT MADE CONSEQUENT THERETO IS ALSO NOT VALID. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUBMITTED THAT THERE BEING NO RESTRICTION IMP OSED ON SECTION 142(1) OF THE ACT ON THE ASSESSING OFFICE R, AS MADE OUT BY THE ASSESSEE, NEITHER NOTICE ISSUED U/S 142( 1) NOR THE ASSESSMENT ORDER PASSED PURSUANT THERETO CAN BE HEL D TO BE INVALID. 7. WE HAVE HEARD THE SUBMISSIONS OF THE PARTIES AS WELL AS THE ORDER PASSED BY THE REVENUE AUTHORITIES. IN TH E PRESENT CASE, UNDISPUTEDLY, THE NOTICE U/S 142(1) OF THE AC T WAS ISSUED BY THE ASSESSING OFFICER ON 30-8-2007 WHICH IS AFTE R THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR I.E., 2005-06. HOWEVER, THE ISSUE BEFORE US IS WHETHER TH E NOTICE ISSUED U/S 142(1) BEYOND THE PERIOD OF ONE YEAR FRO M THE END OF THE ASSESSMENT YEAR CAN BE HELD TO BE INVALID IN VIEW OF THE PROVISO TO CLAUSE (I) OF SECTION 142(1) INSER4TED B Y FINANCE ACT, 2006 WITH RETROSPECTIVE EFFECT FROM 1-4-1990. THE SAID PROVISO READS AS UNDER:- PROVIDED THAT WHERE ANY NOTICE HAS BEEN SERVED UNDE R THIS SUB-SECTION FOR THE PURPOSES OF THIS CLAUSE AF TER THE END OF THE RELEVANT ASSESSMENT YEAR COMMENCING ON O R AFTER THE 1 ST DAY OF APRIL, 1990 TO A PERSON WHO HAS NOT 6 ITA NO.1065 OF 2009 BASHEERUDDIN ALI KHAN, HYD. MADE A RETURN WITHIN THE TIME ALLOWED UNDER SUB-SEC TION (1) OF SECTION 139 OR BEFORE THE END OF THE RELEVAN T ASSESSMENT YEAR, ANY SUCH NOTICE ISSUED TO HIM SHAL L BE DEEMED TO HAVE BEEN SERVED IN ACCORDANCE WITH THE PROVISIONS OF THIS SUB-SECTION. ON A PLAIN READING OF THE PROVISION CONTAINED U/S 1 42(1) OF THE ACT ALONG WITH THE PROVISO INTRODUCED BY FINANCE AC T, 2006 WITH RETROSPECTIVE EFFECT FROM 1-4-1990, IT WOULD BE CLE AR THAT THE ASSESSING OFFICER IS EMPOWERED UNDER THE ACT TO ISS UE NOTICE U/S 142(1) OF THE ACT AFTER THE END OF THE RELEVANT ASSESSMENT YEAR TO A PERSON WITHIN THE TIME ALLOWED UNDER SUB- SECTION (1) OF SECTION 139 OR BEFORE THE END OF THE RELEVANT AS SESSMENT YEAR AND ANY SUCH NOTICE ISSUED TO THE ASSESSEE SHA LL BE DEEMED TO HAVE BEEN SERVED IN ACCORDANCE WITH THE P ROVISIONS OF SECTION 142(1) OF THE ACT. THUS, IT IS VERY MUC H CLEAR THAT THE ASSESSING OFFICER CAN ISSUE A NOTICE U/S 142(1) OF THE ACT AT TIME AFTER THE END OF THE RELEVANT ASSESSMENT YEAR. THERE IS ABSOLUTELY NO RESTRICTION ON THE PART OF THE ASSESS ING OFFICER TO ISSUE NOTICE U/S 142(1) BEFORE EXPIRY OF ONE YEAR F ROM THE END OF THE RELEVANT ASSESSMENT YEAR AS HAS BEEN HELD BY THE CIT (A). THE PROVISIONS OF SECTION 142(1) OF THE ACT, IN OUR VIEW, DO NOT PROVIDE ANY SUCH RESTRICTION, AFTER THE INSE RTION OF THE PROVISO TO SECTION 142(1) OF THE ACT W.E.F. 1-4-199 0. WHEN THE LANGUAGE OF A STATUTORY PROVISION IS CLEAR AND UNAM BIGUOUS, IT HAS TO BE UNDERSTOOD IN THAT SENSE ONLY AND THERE I S LITTLE SCOPE FOR INTERPRETING IN A DIFFERENT MANNER. IF THE PRO VISIONS OF 7 ITA NO.1065 OF 2009 BASHEERUDDIN ALI KHAN, HYD. SECTION 142(1) AND SECTION 153(1) ARE READ TOGETHER , THE ONLY RATIONAL CONCLUSION WOULD BE THE ASSESSING OFFICER CAN ISSUE A NOTICE U/S 142(1) ANY TIME BEFORE THE TIME FOR COMP LETING THE ASSESSMENT AS PROVIDED U/S 153(1) OF THE ACT. IT H AS BEEN CONTENDED BY THE LEARNED AR THAT IF THE PROVISION OF SEC. 142(1) IS INTERPRETED LITERALLY IT WOULD LEAD TO A SITUATION WHERE THE ASSESSING OFFICER MAY ISSUE THE NOTICE U/S 142( 1) JUST ONE DAY PRIOR TO THE TIME PROVIDED FOR COMPLETION OF AS SESSMENT U/S 153(1). IT MAY HAPPEN IN SOME CASES, BUT IN THAT C ASE IT WILL AMOUNT TO A LACK OF ADEQUATE OPPORTUNITY BEING GRAN TED TO THE ASSESSEE AND COURT CAN SET ASIDE THE ASSESSMENT ORD ER BY DIRECTING THE ASSESSING OFFICER TO DO IT AGAIN AFTE R AFFORDING REASONABLE OPPORTUNITY. BUT CERTAINLY IT WILL NOT MAKE THE NOTICE VOID AB INITIO RESULTING IN ANNULMENT OF TH E ASSESSMENT. HOWEVER, IN THE PRESENT CASE, NO SUCH CONTINGENCY A RISES AS THE ASSESSING OFFICER HAS ISSUED A NOTICE U/S 142( 1) SUFFICIENTLY AHEAD AND ASSESSMENT ORDER WAS ALSO P ASSED WELL WITHIN THE PERIOD OF LIMITATION. 8. THEREFORE, THE PROVISION OF SECTION 142(1) CANN OT BE CONSTRUED TO MEAN THAT THE ASSESSING OFFICER CAN IS SUE A NOTICE U/S 142(1) AT ANY TIME AFTER THE END OF THE ASSESSM ENT YEAR IRRESPECTIVE OF THE LIMITATION PRESCRIBED U/S 153(1 ) OF THE ACT. MOREOVER, IN OUR VIEW, THERE IS ALSO NO CONFLICT BE TWEEN THE PROVISIONS CONTAINED U/S 142(1) AND 147 OF THE ACT AS THEY ARE DISTINCT AND SEPARATE AND OPERATE UNDER DIFFERENT S ITUATIONS. THE PROVISION CONTAINED U/S 147 OF THE ACT CAN ONLY BE INVOKED 8 ITA NO.1065 OF 2009 BASHEERUDDIN ALI KHAN, HYD. FOR ASSESSMENT OF ESCAPED INCOME AND HENCE TO BE AP PLICABLE IN A PARTICULAR SITUATION. THEREFORE, THE PROVISION C ONTAINED U/S 142(1) AND SECTION 147 ARE INDEPENDENT PROVISIONS A ND DO NOT OVER-LAP. THE INCOME-TAX APPELLATE TRIBUNAL, HYD ERABAD BENCH A, WHERE BOTH THE PRESENT MEMBERS ARE PART IES, WHILE CONSIDERING IDENTICAL ISSUE IN CASE OF DIT VS. SMT . KAUSARI BEGUM IN ITANO.532/HYD/2010 DATED 18-5-2012 HELD AS UNDER:- 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS WHETHER NOTICE U/S 142(1) ISSUED AFTE R END OF ONE YEAR FROM THE RELEVANT ASSESSMENT YEAR IS BARRE D BY LIMITATION OR NOT. AT THIS STAGE, IT IS NECESSARY T O LOOK INTO THE PROVISIONS CONTAINED U/S 142(1) OF THE ACT. 142 (1) FOR THE PURPOSE OF MAKING AN ASSESSMENT UNDE R THIS ACT, THE AO MAY SERVE ON ANY PERSON WHO HAS MADE A R ETURN (UNDER SECTION 115WD OR SECTION 139 (OR IN WHOSE CAS WE THE TIME ALLOWED UNDER SUB-SECTION (1) OF SECTION 139] FO R FURNISHING THE RETURN HAS EXPIRED] A NOTICE REQUIRING , ON A DATE TO BE THEREIN SPECIFIED- (I) WHERE SUCH PERSON HAS NOT MADE A RETURN (WITHIN THE TIME ALLOWED UNDER SUB-SECTION (1) OF SECTION 139 (OR BEFORE THE END OF THE RELEVANT ASSESSMENT YEAR] TO F URNISH A RETURN OF HIS INCOME OR THE INCOME OF ANY OTHER PE RSON IN RESPECT OF WHICH HE IS ASSESSABLE UNDER THIS ACT, IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED, OR [PROVIDED THAT WHERE ANY NOTICE HAS BEEN SERVED UNDER THIS SUB-SECTION FOR THE PURPOSES OF THIS CLAUSE AFT ER THE END OF THE RELEVANT ASSESSMENT YEAR COMMENCING ON OR AFTER THE 1 ST DAY OF APRIL, 1990 TO A PERSON WHO HAS NOT MADE A RETURN WITHIN THE TIME ALLOWED UNDER SUB-SECTIO N (1) OF SECTION 139 OR BEFORE THE END OF THE RELEVANT 9 ITA NO.1065 OF 2009 BASHEERUDDIN ALI KHAN, HYD. ASSESSMENT YEAR, ANY SUCH NOTICE ISSUED TO HIM SHALL BE DEEMED TO HAVE BEEN SERVED IN ACCORDANCE WITH THE PROVISIONS OF THIS SUB-SECTION THE PROVISO TO SECTION 142(1) WAS INTRODUCED BY FINAN CE ACT, 2006 WITH RETROSPECTIVE EFFECT FROM 1-4-1990. THE A FORESAID AMENDMENT AS EXPLAINED IN THE NOTES ON CLAUSES TO THE FINANCE BILL, 2006 IS REPRODUCED BELOW:- CLAUSE 35 OF THE BILL SEEKS TO AMEND SECTION 142 OF THE INCOME-TAX ACT RELATING TO INQUIRY BEFORE ASSESSMEN T. THE EXISTING PROVISIONS CONTAINED IN CLAUSE (I) OF S UB-SECTION (1) OF SAID SECTION PROVIDE THAT WHERE A PERSON HAS NOT MADE A RETURN OF INCOME WITHIN THE TIME ALLOWED UNDER SUB-SE CTION (1) OF SECTION 139, THE AO MAY SERVE A NOTICE ON HIM RE QUIRING HIM TO FURNISH THE RETURN OF INCOME. IT IS PROPOSED TO AMEND THE SAID CLAUSE (I) SO AS TO PRO VIDE THAT WHERE A PERSON HAS NOT MADE A RETURN OF INCOME BEFORE HT END OF THE RELEVANT ASSESSMENT YEAR, THE AO MAY SERVE A NOTICE UNDER THIS SUB-SECTION ON HIM AFTER THE END OF THE RE LEVANT ASSESSMENT YEAR, REQUIRING HIM TO FURNISH RETURN OF INCOME. THIS AMENDMENT WILL TAKE EFFECT FROM 1 ST APRIL, 2006. IT IS FURTHER PROPOSED TO PROVIDE THAT THE NOTICE REFER RED TO IN SAID SUB-SECTION FOR THE PURPOSES OF SAID CLAUSE SERVE D AFTER THE END OF THE RELEVANT ASSESSMENT YEAR COMMENCING ON OR AFTER 1 ST APRIL, 1990 SHALL BE DEEMED TO BE A NOTICE SERVED IN ACCORDANCE WITH THE PROVISIONS OF THE AFORESAID SUB-SE CTION. THIS AMENDMENT WILL TAKE EFFECT RETROSPECTIVELY FROM 1 ST APRIL, 1990. A PLAIN READING OF SECTION 142(1) ALONG WITH ITS PROV ISO AND EXPLANATIONS TO NOTES MAKES IT CLEAR THAT IN A CASE WHERE NO RETURN OF INCOME HAS BEEN FILED WITHIN THE TIME ALLO WED U/S 139(1) OF THE ACT, THE AO IS VESTED WITH POWER TO IS SUE NOTICE U/S 142(1) EVEN AFTER THE END OF THE RELEVANT ASSESS MENT YEAR. WHEN THERE IS NO EXPRESS PROVISION LIMITING ISSUANCE OF NOTICE U/S 142(1) WITHIN THE PERIOD OF ONE YEAR FROM THE END OF THE 10 ITA NO.1065 OF 2009 BASHEERUDDIN ALI KHAN, HYD. RELEVANT ASSESSMENT YEAR, NO SUCH LIMITATION CAN BE READ INTO THE PROVISION. IN VIEW OF THE ABOVE, WE DO NOT FIND A NY SUBSTANTIAL FORCE IN THE ARGUMENT OF THE LEARNED AR OF THE ASSESSEE THAT NOTICES U/S 142(1) CANNOT BE ISSUED WH EN NO RETURN OF INCOME WAS FILED. THE PROVISION U/S 142(1) IS VERY MUCH CLEAR IN THIS RESPECT. THE DECISION OF ITAT, CA LCUTTA BENCH IN THE CASE OF SHAW WALLACE & CO. LTD. VS. DCI T (2006) 101 TTJ 258 RELIED UPON BY THE LEARNED AR IS OF NO HELP TO THE ASSESSEE AS IT WAS RENDERED PRIOR TO THE INSERTION OF PROVISO TO SECTION 142(1) OF THE ACT. WE ARE THEREFORE OF THE VIEW THAT THE CIT (A) WAS NOT CORRECT IN HOLDING THE ISSUANCE OF N OTICE U/S 142(1) TO BE AB INITIO VOID. SINCE THE CIT (A) HAS DECIDED THE APPEAL ON TECHNICAL ISSUE WITHOUT GOING INTO MERITS O F THE CASE, WE THINK IT PROPER TO SET ASIDE THE MATTER TO THE FILE OF THE CIT (A) AND DIRECT HIM TO DISPOSE OF THE APPEAL ON MERITS IN ACCORDANCE WITH LAW AFTER AFFORDING A REASONABLE OPPORT UNITY OF BEING HEARD TO THE ASSESSEE. 9. THE HONBLE DELHI HIGH COURT IN CASE OF DIT VS. KLM ROYAL DUTCH AIRLINES (SUPRA) ALSO EXPRESSED THE SAME VIEW WHILE CONSIDERING THE IDENTICAL ISSUE OF ISSUANCE OF NOT ICE THEREFORE, RESPECTFULLY FOLLOWING THE DECISIONS OF INCOME-TAX APPELLATE TRIBUNAL, HYDERABAD BENCH AS WELL AS THE HONBLE DE LHI HIGH COURT AS REFERRED TO HEREIN ABOVE, WE HOLD THAT THE NOTICE ISSUED U/S 142(1) OF THE ACT IN THE INSTANT CASE IS VALID AND CONSEQUENTLY THE ASSESSMENT ORDER PASSED CANNOT BE HELD TO BE INVALID IN LAW. 10. IN AFORESAID VIEW OF THE MATTER, WE ARE UNABLE TO ACCEPT THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSES SEES CONTENTION THAT THE NOTICE ISSUED U/S 142(1) OF THE ACT BEYOND THE PERIOD OF ONE YEAR FROM THE END OF RELEVANT AS SESSMENT 11 ITA NO.1065 OF 2009 BASHEERUDDIN ALI KHAN, HYD. YEAR TO BE INVALID. ACCORDINGLY, WE DISMISS THE GR OUND RAISED BY THE ASSESSEE. 11. THE NEXT ISSUE RAISED IN GROUND NOS. 2 AND 4 IS WITH REGARD TO THE ADDITION OF RS.6,50,000/- U/S 69 OF T HE ACT. 12. THE LEARNED AUTHORISED REPRESENTATIVE FOR THE A SSESSEE SUBMITTED BEFORE US THAT THE ASSESSEE LEFT FOR SAUD I ARABIA IN OCTOBER, 1977 FOR EMPLOYMENT AND RETURNED TO INDIA ON 31-12- 2002. IT WAS SUBMITTED THAT HE WAS VISITING INDIA O NCE IN A YEAR OR TWO ON VACATIONS DURING THE ABOVE PERIOD. IT WAS SUBMITTED THAT THE ASSESSEE WAS MAINTAINING A NRE ACCOUNT IN SBI, HYDERABAD FOR THE PURPOSE OF MAKING INVESTMENT IN REAL ESTATE OR TO START SOME SAFE VENTURE WAS WITHDRAWI NG AMOUNTS FROM TIME TO TIME FROM NRE ACCOUNT AND THE AGGREG ATE AMOUNT WITHDRAWN FROM FEBRUARY 2002 TO SEPTEMBER, 2003 WAS AT RS.19.77 LAKHS. IT WAS SUBMITTED THAT THE A SSESSEES FAMILY CONSISTS OF HIMSELF, HIS WIFE AND ONE SON W HO WAS IN 8 TH STANDARD DURING RELEVANT PERIOD. FURTHER, THE ASSE SSEE WAS RESIDING WITH HIS BROTHER, AFTER SPENDING A REASONA BLE AMOUNT FOR THE MAINTENANCE OF THE FAMILY, THE BALANCE AMOU NT WAS AVAILABLE WITH THE ASSESSEE. IT WAS SUBMITTED THAT THE CASH DEPOSIT MADE IN SB ACCOUNT ON 8-9-2004 IS OUT OF AM OUNT WITHDRAWN EARLIER AND KEPT WITH HIM. THE LEARNED AR SUBMITTED THAT THE ASSESSING OFFICER WITHOUT DISPROVING THE AFORESAID FACTS, WAS WRONG IN ASSUMING THAT THE DEPOSITS WER E FROM OUT OF UNEXPLAINED SOURCES. IT WAS SUBMITTED THAT THER E IS NO PROVISION IN INCOME-TAX ACT NOT TO HOLD CASH IN HAN D. IT WAS 12 ITA NO.1065 OF 2009 BASHEERUDDIN ALI KHAN, HYD. FURTHER SUBMITTED THAT THE ASSESSEE HAS NOT TAKEN U P ANY PROFESSION OR VOCATION AFTER HIS RETURN FROM MIDDLE EAST AND THE DEPARTMENT HAS ALSO NOT ALLEGED THAT THE ASSESSEE H AS UNDERTAKEN SOME ACTIVITIES, WHICH COULD HAVE GENERA TED INCOME. IN THE CIRCUMSTANCES, HE CONCLUSION ARRIVE D AT BY THE ASSESSING OFFICER AS WELL AS THE CIT (A) IS MERELY ON SURMISES AND CONJECTURES, HENCE THE ADDITION MADE ON THAT BA SIS CANNOT BE SUSTAINED. IN SUPPORT OF SUCH CONTENTION, THE L EARNED AR RELIED UPON THE FOLLOWING DECISIONS:- I) SR VENKATA RATNAM VS. CIT KARNATAKA-1, AND ANOTH ER (127 ITR 807) II) CIT VS. SMT. PK NOORJAHAN (237 ITR 570) 13. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUPPORTED THE ORDERS OF THE REVENUE AUTHORITI ES. 14. WE HAVE HEARD THE SUBMISSIONS OF BOTH THE PARTI ES AND PERUSED THE MATERIAL ON RECORD AS WELL AS THE ORDER S PASSED BY THE REVENUE AUTHORITIES. UNDISPUTEDLY AS REVEALED FROM THE BANK ACCOUNT, THE ASSESSEE HAS MADE CASH DEPOSIT OF RS.6,50,000/- ON 8-9-2004. IT IS THE CONTENTION O F THE ASSESSEE THAT THE AFORESAID DEPOSITS WERE OUT OF TH E CASH AVAILABLE WITH HIM FROM WITHDRAWALS MADE BY HIM EAR LIER FROM THE SBI FROM FEBRUARY 2002 TO SEPTEMBER, 2003. HOW EVER, SUCH EXPLANATION OF THE ASSESSEE IS AGAINST HUMAN P ROBABILITY AND TOTALLY UNBELIEVABLE. WHEN THE ASSESSEE IS HAV ING A BANK ACCOUNT, IT IS BEYOND HUMAN PROBABILITY AND TOTALLY 13 ITA NO.1065 OF 2009 BASHEERUDDIN ALI KHAN, HYD. INCOMPREHENSIBLE THAT THE ASSESSEE WOULD KEEP QUIT E A SUBSTANTIAL AMOUNT OF RS.6,50,000/- IN CASH WITH HI M FOR A PERIOD OF OVER ONE YEAR WITHOUT DEPOSITING INTO THE BANK ACCOUNT. THE ASSESSEE HAS ALSO NOT SHOWN ANY VALID REASON AS TO WHY HE KEPT SO MUCH CASH WITH HIM FOR OVER A PER IOD OF ONE YEAR WHEN HE WAS HOLDING A BANK ACCOUNT. IN THE A BSENCE OF ANY COGENT REASON BACKED BY SUFFICIENT EVIDENCE, TH E EXPLANATION OF THE ASSESSEE IS ONLY A MAKE BELIEVE STORY AND HENCE CANNOT BE ACCEPTED. THE DECISIONS RELIED UPON BY THE LEARNED AR WILL ALSO BE OF NO HELP TO THE ASSESSEE AS IN THE PRESENT CASE THE ASSESSEE HAS FAILED TO PROVE THE S OURCE OF DEPOSIT WITH VALID REASONS AND PROPER EVIDENCE. IN THIS VIEW OF THE MATTER, WE DO NOT FIND ANY INFIRMITY IN THE ORD ER OF THE CIT (A) IN SUSTAINING THE ADDITION OF RS.6,50,000/-. AC CORDINGLY, WE UPHOLD THE ORDER OF THE CIT (A) BY DISMISSING THE G ROUND RAISED BY THE ASSESSEE. 15. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS HE REBY DISMISSED. ORDER PRONOUNCED IN THE COURT ON 22-11-2013. SD/- ( CHANDRA POOJARI) ACCOUNTANT MEMBER SD/- (SAKTIJIT DEY) JUDICIAL MEMBER HYDERABAD, DATED THE 22 ND NOVEMBER, 2013 JMR * 14 ITA NO.1065 OF 2009 BASHEERUDDIN ALI KHAN, HYD. COPY TO:- 1) MOHD. AFZAL, ADVOCATE, 11-5-465, FLAT NO.402, SHERSONS RESIDENCY, CRIMINAL COURT ROAD, RED HILLS , HYDERABAD. 2) ITO, WARD-6(3), HYDERABAD. 3) CIT (A)-IV, HYDERABAD. 4) CIT-III, HYDERABAD. 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDERABAD. 15 ITA NO.1065 OF 2009 BASHEERUDDIN ALI KHAN, HYD.