Sh. Chakra Dharii Sureka, New Delhi V. ACIT, New Delhi

ITA 1089/DEL/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6798 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 23-02-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NIDHI SRIVASTAVA
• Keywords: Unexplained investment; Search and seizure; Opportunity of being heard; Non compliance; Set aside
• Section: 142(1); 68; 144

Judgement Text

ITA NO.- 1089/DEL/2017 SH. CHAKRA DHARI SUREKA PAGE 1 OF 10 IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH: B: NEW DELHI) BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBE R AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER ITA NO:- 1089/DEL/2017 ( ASSESSMENT YEAR: 2013-14) SH. CHAKRA DHARI SUREKA, M-14B, SOUTH EXTN. PART-II, NEW DELHI-110049 VS. THE ASSTT. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3, NEW DELHI-110055 PAN NO: ABIPS0354A APPELLANT RESPONDENT ASSESSEE BY : NONE REVENUE BY : MS. NIDHI SRIVASTAVA, CIT DR ORDER PER ANADEE NATH MISSHRA, AM [A]. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGA INST THE IMPUGNED APPELLATE ORDER DATED 23.12.2016 PASSED BY LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-23, NEW DELHI [IN SHORT, LD.CIT(A)] PERTAINING TO ASSESSM ENT YEAR 2013-14. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL:- (1) THAT THE LD. C.I.T.(A) HAS ERRED IN SUSTAINING THE ASSESSMENT AS BEST JUDGEMENT ASSESSMENT U/S 144 OF THE I.T. ACT, 1961 , AS THE ASSESSEE HAS NOT GIVEN AN OPPORTUNITY OF BEING HEARD AND A RIGHT TO QUESTI ON THE CORRECTNESS OR THE RELEVANCY OF THE MATERIALS ON THE BASIS OF WHICH TH E LD. A.O. PROPOSES TO MAKE THE BEST JUDGMENT ASSESSMENT. ITA NO.- 1089/DEL/2017 SH. CHAKRA DHARI SUREKA PAGE 2 OF 10 2. THAT THE LD. C.I.T.(A) HAS ERRED IN SUSTAINING T HE BASELESS ADDITION ON ACCOUNT OF PURCHASE OF BONDS/DEBENTURES OF RS. 20,00,000/- AS UNEXPLAINED INVESTMENT U/S 68 OF THE I. T. ACT, 1961 AS THE LD. A.O. HAS MADE THE SAID ADDITION MERELY ON THE BASIS OF INFORMATION, WITHOUT PROVING THE INVESTMENT HAS BEEN MADE BY THE ASSESSEE. 3. THAT THE LD. C.I.T.(A) HAS ERRED IN SUSTAINING T HE BASELESS ADDITION ON ACCOUNT OF PURCHASE OF EQUITY SHARES OF RS. 68,07,900/- AS UNE XPLAINED INVESTMENT U/S 68 OF THE I. T. ACT, 1961 AS THE LD. A.O. HAS MADE THE SA ID ADDITION MERELY ON THE BASIS OF INFORMATION, WITHOUT PROVING THE INVESTMENT HAS BEE N MADE BY THE ASSESSEE. 4. FOR THESE AND OTHER GROUNDS, WHICH MAY BE URGED AT THE TIME OF THE HEARING, THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED. [B]. VIDE ASSESSMENT ORDER DATED 31.03.2016 PASSED U/S 153C R.W.S. 144 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). THE TOTA L INCOME OF THE ASSESSEE WAS ASSESSED AT RS. 92,07,900/-. IN THE AFORESAID ASSES SMENT ORDER, ADDITIONS TOTALING RS. 88,07,900/- WERE MADE ON ACCOUNT OF UNEXPLAINED TRA NSACTIONS. THE RELEVANT PORTION OF THE ASSESSMENT ORDER IS REPRODUCED AS UNDER:- 2. THEREAFTER, THE CASE OF THE ASSESSEE WAS CENTRA LIZED WITH THE ASSESSING OFFICER, CENTRAL CIRCLE-3, NEW DELHI VIDE ORDER DATED 13.07. 2015 OF THE COMMISSIONER OF INCOME TAX, CENTRAL-1, NEW DELHI. THEREAFTER, NOTIC E UNDER SECTION 153C OF THE ACT WAS ISSUED ON 26.08.2015 AND DULY SERVED. BUT, ON T HE DATE FIXED NO ONE APPEARED NOR ANY COMPLIANCE WAS MADE. THUS, NO COMPLIANCE OF NOT ICE U/S 153C OF THE ACT, WAS MADE. SUBSEQUENTLY, NOTICE U/S 142(1) OF THE ACT, W AS ALSO ISSUED ON 12.01.2016 TO MAKE COMPLIANCE ON 18.01.2016, BUT ON THE SAID DATE NO COMPLIANCE WAS MADE. THEREFORE, A SHOW CAUSE NOTICE U/S 271(1)(B) OF THE ACT DATE 12.02.2016, WAS ISSUED TO SHOW CAUSE ON 03.02.2016 AS TO WHY PENALTY U/S 271( 1)(B) OF THE ACT, SHOULD NOT BE IMPOSED ON HIM FOR NON-COMPLIANCE OF NOTICE U/S 153 OF THE ACT. THE ASSESSEE NEITHER PRESENTED ON THIS DATE FIX NOR FILED ANY WRITTEN SU BMISSION TILL DATE. 3. THE ASSESSEE FAILED TO COMPLY WITH THE NOTICES FOR COMPLETION OF ASSESSMENT PROCEEDINGS. THEREFORE, PENALTY U/S 271(1)(B) OF TH E ACT, AMOUNTING TO C 10,000/-, WAS IMPOSED ON THE ASSESSEE FOR NON COMPLIANCE. THE CAS E IS GOING TO BE TIME BARRED BY 31/03/2016. THEREFORE, THE UNDERSIGNED HAS NO OPTIO N BUT TO COMPLETE THE ASSESSMENT AS BEST JUDGMENT ASSESSMENT U/S 153C R.W.S. 144 O F THE INCOME TAX ACT, 1961, AFTER TAKING INTO ACCOUNT ALL RELEVANT MATERIAL GATHERED DURING THE COURSE OF SEARCH AND SEIZURE OPERATION AND AVAILABLE ON RECORD. THE RETU RN OF INCOME IS DOWNLOADED FROM ITD SYSTEM OF DEPARTMENT. THE ASSESSEE FILED ITS RE TURN ON 21.05.2014 ON AN INCOME OF RS. 3,99,800/-. THE INDIVIDUAL TRANSACTION STATEMEN T DOWNLOADED FROM ITD SYSTEM OF DEPARTMENT SHOWS FOLLOWING TRANSACTIONS: ITA NO.- 1089/DEL/2017 SH. CHAKRA DHARI SUREKA PAGE 3 OF 10 S. NO. SUMMARY COUNT NATURE OF TRANSACTION AMOUNT 1. AIR 1 PURCHASE OF BONE/DEBENTURES FROM M/S RELIGARE FINVEST LTD. 2000000 2. CIB 18 PURCHASE OF EQUITY SHARE OF VARIOUS LISTED COMPANIES 6807900 TOTAL 8807900 3.1 AS THE ASSESSEE HAS NOT FURNISH ANY DOCUMENTARY EVIDENCE REGARDING ABOVE TRANSACTIONS AMOUNTING TO RS. 8807900/-. THEREFORE, SOURCE OF INVESTMENT REMAINS UNEXPLAINED. HENCE, SAME IS ADDED TO THE TOTAL INCO ME OF THE ASSESSEE U/S 68 OF THE INCOME TAX , ACT. PENALTY PROCEEDINGS U/S 271 (1) ( C) OF THE I.T. ACT, 1961 IS BEING INITIATED SEPARATELY. I AM SATISFIED THAT THE ASSES SEE HAS FURNISHED INACCURATE PARTICULARS AND HAS CONCEALED ITS CORRECT INCOME, THEREFORE, PE NALTY PROCEEDINGS U/S 271 (1)(C ) OF THE I.T ACT, IS BEING INITIATED SEPARATELY. [C] THE ASSESSEE FILED AN APPEAL BEFORE THE LEARNED CIT(A) AGAINST THE AFORESAID ASSESSMENT ORDER DATED 31.03.2016 VIDE THE AFORESAI D IMPUGNED APPELLATE ORDER DATED 23.12.2016. THE LEARNED CIT(A) CONFIRMED THE AFORES AID ADDITION OF RS. 88,07,900/- AND DISMISSED THE ASSESSEES APPEAL. THE RELEVANT PORTI ON OF THE ORDER OF THE LEARNED CIT(A) IS REPRODUCED AS UNDER: 3.2 IN RESPECT OF AY 2013-14 HE HAS ENCLOSED COPY OF THE ITR ACKNOWLEDGEMENT OF THE RETURN FILED ON 21.05.2014 MANUALLY AT ASK AND HAS SIMPLY STATED AS UNDER: REGARDING, THE ADDITIONS ON ACCOUNT OF PURCHASES OF BONG/DEBENTURES OF RS.20,00,000/- AND ENQUIRY SHARES OF RS.68,07,900/- AS UNEXPLAINED INVESTMENT U/S 68, IT IS AGAIN SUBMITTED THAT THE LD. AO HAS M ADE THE SAID ADDITIONS ON THE BASIS OF MERELY INDIVIDUAL TRANSACTION STATEMENT DO WNLOADED FROM ITD SYSTEM OF DEPARTMENT. HERE, IT IS SUBMITTED THAT INDIVIDUA L TRANSACTION STATEMENT PROVIDES ONLY INFORMATION WHICH MAY BE TRUE OR FALS E? NO ANY INFORMATION MAY BE DECLARED OF THE ASSESSEE WITHOUT FURTHER CONFIRM ING THE TRANSACTIONS FROM THE CONCERNED PERSONS AND HERE THE LD. AO HAS NOT DONE ANYTHING REGARDING THE SAME. HERE, I WOULD LIKE TO REFER THE DECISIONS IN CASES OF DHANALAKSHMI PICTURES VS. CIT [1983] 144 ITR 452 (MAD.) AND T.C. N MENON VS. ITO [1974] 96 ITR 148(KER.) IN WHICH IT WAS HELD THAT THE ASSESSEE WILL HAVE T O BE GIVEN AN OPPORTUNITY OF BEING HEARD AND A RIGHT TO QUESTION THE CORRECTNESS ITA NO.- 1089/DEL/2017 SH. CHAKRA DHARI SUREKA PAGE 4 OF 10 OR THE RELEVANCY OF THE MATERIALS ON THE BASIS OF W HICH THE ITO PROPOSES TO MAKE THE BEST JUDGMENT ASSESSMENT. THE APPELLANTS AR HAS ARGUED THAT THE INFORMATION IN ITD SYSTEM COULD NOT HAVE BEEN USED BY THE AO AGAINST THE APPELLANT WITHOUT FURTHER CONFIRMING THE TRANSACTION FROM CONCERNED PERSONS. FROM THE ASSES SMENT ORDER I FIND THAT THE AO HAS OBSERVED THAT THERE WAS NO COMPLIANCE ON BEH ALF OF THE ASSESSEE IN RESPONSE TO NOTICE U/S 153C OF THE ACT DT. 26.08.20 15, NOR WAS THERE ANY COMPLIANCE TO NOTICE U/S 142(1) OF THE ACT DT. 12.0 1.2016; THE APPELLANT DID NOT COMPLY OR RESPOND EVEN TO THE NOTICE U/S 271(1)(B) OF THE ACT DT. 12.02.2016 AND THE AO EVEN IMPOSED PENALTY OF RS.10,000/-, AND THEREFORE THE ORDER WAS PASSED U/S 144 OF THE ACT. AT THE APPELLATE STAGE A S WELL, IN TERMS OF PROVISIONS OF S.250(2) OF THE ACT SUFFICIENT TIME WAS AFFORDED TO THE APPELLANT TO PRESENT AND ARGUE HIS CASE, WHICH THE APPELLANT HAS APPAREN TLY FAILED TO AVAIL. 3.2.2 EVEN FOR THIS YEAR THE AR ENCLOSED COPY OF TH E BANK ACCOUNT STATEMENT OF THE APPELLANT OF A/C NO.0191104000201285 WITH IDBI BANK LTD., B-4, RING ROAD, LAJPAT NAGAR-3. NEW DELHI FOR THE PERIOD 06.12.2013 TO 30.09.2014, BUT THIS STATEMENT IS FOR RE PERIOD NOT RELEVANT TO THE PREV IOUS YEAR RELEVANT TO AY 2013- 14. WHILE PRESENTING FRUITLESS ARGUMENTS THE APPELL ANTS AR HAS NOT SUBMITTED ANY EXPLANATION OF THE SOURCE OF INVESTMENT OF RS.2 0,00,000/- IN M/S RELIGARE FINVEST LTD. AND PURCHASE OF EQUITY SCARES OF RS.68 ,07,900/-. CONSIDERING THE MEAGRE INCOME DECLARED IN THE AYS 2011-12 AND 2013- 14, WITH NO TAXABLE INCOME IN THE AYS 2012-13 AND EVEN AY 2014-15, THE SOURCE OF SUCH LARGE INVESTMENT REMAINS UNEXPLAINED. THE ADDITION OF RS. 88,07,900/- IS THEREFORE SUSTAINED AND CONFIRMED. [D] THIS PRESENT APPEAL IN INCOME TAX APPELLATE TRI BUNAL (ITAT, FOR SHORT) HAS BEEN FILED BY THE ASSESSEE AGAINST THE AFORESAID IMPUGNE D ORDER DATED 23.12.2016 OF THE LEARNED CIT(A). IN THE COURSE OF APPELLATE PROCEEDI NGS IN ITAT, THE ASSESSEE FILED WRITTEN SUBMISSIONS DATED 9.10.2019 WHICH IS REPROD UCED AS UNDER: WRITTEN SUBMISSION SIR, THE ASSESSEE IS AN INDIVIDUAL AND HE FILED HIS RETU RN OF INCOME FOR THE A. Y. 2013- 14 ON 21.05.2014, DECLARING TOTAL INCOME AT RS. 3,9 9,800/-. THE ACIT, CENTRAL CIRCLE-3, NEW DELHI [HEREINAFTER SHORTLY REFERRED T O AS A.O.] ISSUED A NOTICE U/S 153C ON 26.08.2015, SUBSEQUENTLY, HE ASSESSED THE T OTAL INCOME AT RS. 92,07,700/- VIDE AN ASSESSMENT ORDER U/S 153C R. W. S. 144 DATED 31.03.2016. IN APPEAL, THE COMMISSIONER OF INCOME-TAX (APPEALS) - 23, NEW DELHI [HEREINAFTER SHORTLY REFERRED TO AS CIT(A) ] HAS DISMISSED THE A PPEAL. ITA NO.- 1089/DEL/2017 SH. CHAKRA DHARI SUREKA PAGE 5 OF 10 GROUNDS AND ARGUMENTS 1. GROUND NO. 1 - THAT THE LD. CIT (A) HAS ERRED IN SUSTAINING THE ASSESSMENT AS BEST JUDGMENT ASSESSMENT U/S 144 OF THE I.T. ACT, 1961, AS THE ASSESSEE HAS NOT GIVEN AN OPPORTUNITY OF BEING HEARD AND A RIGHT TO QUESTION THE CORRECTNESS OR THE RELEVANCY OF THE MATERIALS ON THE BASIS OF WHICH THE LD. A.O. PROPOS ES TO MAKE THE BEST JUDGMENT ASSESSMENT. HERE, IT IS SUBMITTED THAT THE LD. A.O. HAS ASSESSE D THE TOTAL INCOME BY CONSIDERING RETURNED INCOME AND THE INDIVIDUAL TRANSACTION STATEMENT DOW NLOADED FROM ITD SYSTEM OF DEPARTMENT ONLY. NO OPPORTUNITY OF BEING HEARD AND A RIGHT TO QUESTION TO THE CORRECTNESS OR THE RELEVANCY OF THE MATERIALS ON THE BASIS OF WHICH THE LD. A.O. PROPOSES TO MAKE THE BEST JUDGMENT ASSESSMENT U/S 144 OF THE I.T. ACT, 1961, HAS BEEN GIVEN TO THE ASSESSEE. I WOULD LIKE TO MENTION HERE THE SECTION 144 WHICH RUNS AS UNDER: BEST JUDGMENT ASSESSMENT 144. (1) IF ANY PERSON- (A) FAILS TO MAKE THE RETURN REQUIRED. (B) FAILS TO COMPLY WITH ALL THE TERMS (C) HAVING MADE A RETURN, FAILS TO COMPLY. THE ASSESSING OFFICER, AFTER TAKING INTO ACCOUNT AL L RELEVANT MATERIAL WHICH THE ASSESSING OFFICER HAS GATHERED, SHALL, AFTER GIVING THE ASSESSEE AN O PPORTUNITY OF BEING HEARD, MAKE THE ASSESSMENT OF THE TOTAL INCOME OR LOSS TO THE BEST OF HIS JUDGMENT AND DETERMINE THE SUM PAYABLE BY THE ASSESSEE ON THE BASIS OF SUCH ASSESS MENT: .......................................... THUS, AN ASSESSMENT UNDER SECTION 144, OPPORTUNITY OF BEING HEARD HAS TO BE GIVEN TO THE ASSESSEE. AN ASSESSMENT UNDER SECTION 144 - WHI CH IS A QUASI JUDICIAL ACT AND WHICH IS TO BE DONE AFTER FORMING THE BEST JUDGMENT - THA T THE ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY OF BEING HEARD IN RESPECT OF ANY MATERI AL GATHERED BY THE A.O. WHAT SECTION 144 REQUIRES THE A.O. TO DO IN THE CASE OF A DEFAUL TING ASSESSEE IS TO MAKE AN ASSESSMENT OF HIS TOTAL INCOME TO THE BEST OF THE A .O.S JUDGMENT, AFTER TAKING INTO ACCOUNT ALL RELEVANT MATERIAL WHICH HE HAS GATHERED . AN ASSESSMENT TO THE BEST OF JUDGMENT IS A QUASI-JUDICIAL PROCESS AND IT HAS TO BE BASED ON MATERIAL GATHERED. ANY QUASI-JUDICIAL PROCESS REQUIRES AN OPPORTUNITY OF B EING HEARD BEFORE DECISION. THE DECISION CAN BE ARRIVED AT BEST, OR AS CORRECTLY AS POSSIBLE, ONLY IF THE ASSESSEE IS GIVEN AN OPPORTUNITY TO SAY WHY ON THE MATERIAL GATHERED BY THE A.O., THE INCOME SHOULD NOT BE ASSESSED IN THE MANNER PROPOSED TO BE DONE BY HI M. THE MATERIAL GATHERED BY THE A.O. CAN BE USED BY THE A.O. AGAINST THE ASSESSEE O NLY UPON HAVING AFFORDED HIM AN OPPORTUNITY TO REBUT IT. THE ASSESSEE IS ENTITLED T O HAVE A SECOND OPPORTUNITY TO SHOW CAUSE WHY THE TOTAL INCOME SHOULD NOT BE DETERMINED IN THE MANNER PROPOSED TO BE DONE BY THE A.O. HERE, IT IS AGAIN SUBMITTED THAT THE LD. A.O. HAS N OT GIVEN ANY SUCH OPPORTUNITY OF BEING HEARD. THE PROVISIONS OF SECTION 144 ARE MAND ATORY. THAT BEING SO, AN ASSESSMENT MADE IN VIOLATION OF THE PROVISIONS OF S ECTION 144 IS LIABLE TO BE SET ASIDE. HENCE, IT MAY BE SAID THAT THE LD. CIT(A) HAS ERRED IN SUSTAINING THE ASSESSMENT AS BEST JUDGMENT ASSESSMENT U/S 144 OF THE I.T. ACT, 1961. ITA NO.- 1089/DEL/2017 SH. CHAKRA DHARI SUREKA PAGE 6 OF 10 2. GROUND NO. 2 - THAT THE LD. CIT(A) HAS ERRED IN SUSTAINING THE B ASELESS ADDITION ON ACCOUNT OF PURCHASE OF BONDS/DEBENTURES OF RS. 000/ - AS UNEXPLAINED INVESTMENT U/S 68 OF THE I.T. ACT, 1961 AS THE LD. A.O. HAS MADE THE SAI D ADDITION MERELY ON THE BASIS OF INFORMATION, WITHOUT PROVING THE INVESTMENT HAS BEE N MADE BY THE ASSESSEE. IT IS SUBMITTED THAT THE LD. A.O. HAS MADE THE SAI D ADDITION ON ACCOUNT OF PURCHASE OF BONDS/DEBENTURES OF RS. 20,00,000/- ON THE BASIS OF MERELY INDIVIDUAL TRANSACTION STATEMENT DOWNLOADED FROM ITD SYSTEM OF DEPARTMENT. HERE, IT IS SUBMITTED THAT INDIVIDUAL TRANSACTION STATEMENT PROVIDES ONLY INFORMATION WHI CH MAY BE TRUE OR FALSE? NO ANY INFORMATION MAY BE DECLARED OF THE ASSESSEE WITHOUT FURTHER CONFIRMING THE TRANSACTION FROM THE CONCERNED PERSON, HERE, M/S RELIGARE FINVE ST LTD. AND HERE, THE LD. A.O. HAS NOT DONE ANYTHING REGARDING THE SAME. IT IS FURTHER SUBMITTED THAT THE LD. A.O. HAS MADE THE SAID ADDITION SAYING SOURCE OF I INVESTMENT REMAINS UNEXPLAINED U/S 68 OF THE I. T . ACT, 1961, WHICH IS BAD IN LAW AT ALL AS THE SECTION 68 RELATES TO THE CASH CREDIT RECORDED IN THE BOOKS OF A/C ONLY. HENCE, IT MAY BE SAID THAT THE LD. CIT(A) HAS ERRED IN SUSTAINING THE BASELESS ADDITION ON ACCOUNT OF PURCHASE OF BONDS/DEBENTURES OF RS. 20,0 0,000/- AS UNEXPLAINED INVESTMENT U/S 68 OF THE I.T. ACT, 1961 AS THE LD. A.O. HAS MADE T HE SAID ADDITION MERELY ON THE BASIS OF INFORMATION, WITHOUT PROVING THE INVESTMENT HAS BEE N MADE BY THE ASSESSEE 2. GROUND NO. 3 - THAT THE LD. CIT(A) HAS ERRED IN SUSTAINING THE BASELESS ADDITION ON ACCOUNT OF PURCHASE OF EQUITY SHARES OF RS. 68,07,9 00/- AS UNEXPLAINED INVESTMENT U/S 68 OF THE I.T. ACT, 1961 AS THE LD. A.O. HAS MADE THE SAID ADDITION MERELY ON THE BASIS OF INFORMATION, WITHOUT PROVING THE INVESTMENT HAS BEE N MADE BY THE ASSESSEE. IT IS SUBMITTED THAT THE LD. A.O. HAS MADE THE SAID ADDITION ON ACCOUNT OF PURCHASE OF EQUITY SHARE OF VARIOUS LISTED COMPANIES OF RS. 68, 07,900/- ON THE BASIS OF MERELY INDIVIDUAL TRANSACTION STATEMENT DOWNLOADED FROM IT D SYSTEM OF DEPARTMENT. HERE, IT IS SUBMITTED THAT INDIVIDUAL TRANSACTION STATEMENT PRO VIDES ONLY INFORMATION WHICH MAY BE TRUE OR FALSE? NO ANY INFORMATION MAY BE DECLARED O F THE ASSESSEE WITHOUT FURTHER CONFIRMING THE TRANSACTION FROM THE CONCERNED PERSO N, HERE, VARIOUS LISTED COMPANIES AND HERE, THE LD. A.O. HAS NOT DONE ANYTHING REGARDING THE SAME. IT IS FURTHER SUBMITTED THAT THE LD. A.O. HAS MADE THE SAID ADDITION SAYING SOURCE OF INVESTMENT REMAINS UNEXPLAINED U/S 68 OF THE I.T. ACT, 1961, WHICH IS BAD IN LAW AT ALL AS THE SECTION 68 RELATES TO THE CASH CREDIT RECORDED IN THE BOOKS OF A/C ONLY. HENCE, IT MAY BE SAID THAT THE LD. CIT(A) HAS ERRED IN SUSTAINING THE BASELESS ADDITION ON ACCOUNT OF PURCHASE OF EQUITY SHARES OF RS. 68,07,9 00/- AS UNEXPLAINED INVESTMENT U/S 68 OF THE I.T. ACT, 1961 AS THE LD. A.O. HAS MADE THE SAID ADDITION MERELY ON THE BASIS OF INFORMATION, WITHOUT PROVING THE INVESTMENT HAS BEE N MADE BY THE ASSESSEE. AT LAST, I RESPECTFULLY PRAY THAT THE LD. CIT(A) HA S ERRED IN SUSTAINING THE ASSESSMENT ORDER AND ALL THE ADDITIONS LIABLE TO BE DELETED. FOR THI S ACT OF KINDNESS, I, AS DUTY BOUND, SHALL EVER PRAY. ITA NO.- 1089/DEL/2017 SH. CHAKRA DHARI SUREKA PAGE 7 OF 10 [E] AT THE TIME OF HEARING, REVENUE WAS REPRESENTE D BY MS. NIDHI SRIVASTAVA, THE LEARNED COMMISSIONER OF INCOME TAX (DEPARTMENTAL RE PRESENTATIVE [LD. CIT (DR), FOR SHORT]. HOWEVER, NONE WAS PRESENT FROM THE ASSESSEE S SIDE. IN THE ABSENCE OF ANY REPRESENTATION FROM THE ASSESSEES SIDE AT THE TIME OF HEARING BEFORE US, WE HEARD THE LEARNED CIT (DR) WHO RELIED UPON THE AFORESAID ASSE SSMENT ORDER DATED 31.03.2016 AND THE AFORESAID IMPUGNED APPELLATE ORDER DATED 23 .12.2016 OF THE LEARNED CIT(A). [F] AFTER HEARING THE LEARNED CIT DR, AND AFTER PER USAL OF THE MATERIALS ON RECORD, WE FIND THAT THE LD. CIT(A) HAS PASSED A SPEAKING O RDER ON MERITS. RELEVANT PORTION OF THE IMPUGNED APPELLATE ORDER OF THE LEARNED CIT(A) HAS ALREADY BEEN REPRODUCED IN FOREGOING PARAGRAPH [C] OF THIS ORDER. WE FIND THAT THE LEARNED CIT(A) HAS GIVEN DETAILED REASONS FOR HIS DECISION ON MERITS IN THE AFORESAID IMPUGNED APPELLATE ORDER DATED 23.12.2016 OF THE LEARNED CIT(A). IN THE WRIT TEN SUBMISSIONS FILED BY THE ASSESSEE IT HAS BEEN CONTENDED THAT AO HAD NOT GIVE N OPPORTUNITY OF BEING HEARD. HOWEVER, THIS CONTENTION LACKS CREDIBILITY ON PERUS AL OF PARAGRAPHS 2 & 3 OF THE ASSESSMENT ORDER (ALREADY REPRODUCED IN FOREGOING P ARAGRAPH [B] OF THIS ORDER). ON ITS PERUSAL, WE FIND THAT THE ASSESSING OFFICER HAD PRO VIDED REASONABLE OPPORTUNITY. IN THE WRITTEN SUBMISSIONS, THE ASSESSEE HAS FURTHER CONTE NDED THAT THE ADDITION OF RS. 20 LAC WAS MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LEARNED CIT(A) MERELY ON THE BASIS OF INDIVIDUAL TRANSACTIONS STATEMENT FROM ITD SYSTEM OF INCOME TAX DEPARTMENT. HOWEVER, ON PERUSAL OF RECORDS, WE FIND THAT THE AS SESSEE HAS BROUGHT NO MATERIAL ON RECORD TO PROVE THAT THE AFORESAID INVESTMENT AMOUN TING TO RS. 20 LAC WAS NOT MADE BY THE ASSESSEE (OR MADE OUT OF EXPLAINED SOURCES O F INCOME/WEALTH); DESPITE THE ITA NO.- 1089/DEL/2017 SH. CHAKRA DHARI SUREKA PAGE 8 OF 10 OPPORTUNITIES AVAILABLE TO THE ASSESSEE BEFORE ASSE SSING OFFICER (DURING ASSESSMENT PROCEEDINGS, OR DURING APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) AND OR NOW IN ITAT). IN THE WRITTEN SUBMISSIONS FILED BY THE ASSE SSEE IT HAS BEEN FURTHER CONTENDED THAT THE ADDITION OF RS. 68,07,900/- IN EQUITY SHAR ES HAS BEEN MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LEARNED CIT(A) MERELY ON THE BASIS OF INDIVIDUAL TRANSACTIONS STATEMENT FROM ITD SYSTEM OF INCOME TA X DEPARTMENT. HOWEVER, ONCE AGAIN ON PERUSAL OF RECORDS, WE FIND THAT ASSESSEE BROUGHT NO MATERIAL ON RECORD TO PROVE THAT THE AFORESAID INVESTMENT AMOUNTING TO RS . 68,07,900/-WAS NOT MADE BY THE ASSESSEE (OR MADE OUT OF EXPLAINED SOURCES OF INCOM E/WEALTH) DESPITE THE OPPORTUNITIES AVAILABLE TO THE ASSESSEE BEFORE ASSE SSING OFFICER DURING ASSESSMENT PROCEEDINGS, OR DURING APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A) OR NOW IN ITAT. IN VIEW OF THE FOREGOING, WE FIND NO MERIT IN THE WRIT TEN SUBMISSIONS FILED BY THE ASSESSEE. WE ARE OF THE VIEW, AFTER PERUSAL OF MATERIALS ON R ECORD INCLUDING THE AFORESAID ASSESSMENT ORDER DATED 31.03.2016, THE AFORESAID IM PUGNED APPELLATE ORDER DATED 23.12.2016 OF THE LEARNED CIT(A), AND THE AFORESAID WRITTEN SUBMISSIONS FILED FROM THE ASSESSEES SIDE; THAT NO CONVINCING CASE HAS BEEN M ADE TO PERSUADE AS TO TAKE A VIEW DIFFERENT FROM THE VIEW TAKEN BY THE LEARNED CIT(A) , ON MERIT, IN THE AFORESAID IMPUGNED APPELLATE ORDER DATED 23.12.2016. THEREFOR E, WE DECLINE TO INTERFERE WITH THE AFORESAID IMPUGNED APPELLATE ORDER DATED 23.12.2016 OF THE LEARNED CIT(A); AND DISMISS THIS APPEAL FILED BY THE ASSESSEE. [G] BEFORE WE PART; WE EXPLICITLY CLARIFY THAT THE ASSESSEE WILL BE AT LIBERTY TO APPROACH ITAT FOR RESTORATION OF THE APPEAL IN ACCO RDANCE WITH PROVISO TO ITA NO.- 1089/DEL/2017 SH. CHAKRA DHARI SUREKA PAGE 9 OF 10 RULE 24 OF INCOME TAX (APPELLATE TRIBUNAL), RULES, 1963. IF THE ASSESSEE DOES APPROACH ITAT FOR RESTORATION OF THE APPEALS I N ITAT, THE MATTER WILL BE CONSIDERED IN ACCORDANCE WITH LAW HAVING REGARD TO THE FACTS AND CIRCUMSTANCES. [H] IN THE RESULT, APPEAL FILED BY ASSESSEE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18/10/2019. SD/- SD/- (SUDHANSHU SRIVASTAVA) (ANADEE NATH MISSHRA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 18/10/2019 SH COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI