Shri Nitinkumar K. Shah, Ahmedabad V. The Income Tax Officer, Ward-11(2), Ahmedabad

ITA 128/AHD/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4101 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 13-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANTOSH KANNAN
• Assessee Lawyers: J P SHAH
• Keywords: Gift; Principle of natural justice
• Section: 147; 133(6)

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./ ITA NO.126 AND 127/AHD/2017 / ASSTT. YEAR: 2005-06 AND 2006-07 ALPA NITINKUMAR SHAH B-11, PRATIKSHAH APARTMENT NR.LAXMIVARDHAK JAIN MANDIR SHANTIVAN, PALDI AHMEDABAD 380 007. PAN : ARKPS 1166 J VS. ITO, WARD-11(1) AHMEDABAD. ./ ITA NO.128 AND 129/AHD/2017 / ASSTT. YEAR: 2005-06 AND 2006-07 SHRI NITINKUMAR K. SHAH B-11, PRATIKSHAH APARTMENT NR.LAXMIVARDHAK JAIN MANDIR SHANTIVAN, PALDI AHMEDABAD 380 007. PAN : BMBPS 8400 E VS. ITO, WARD-11(1) AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI J.P. SHAH, AR REVENUE BY : SHRI SANTOSH KANNAN, SR.DR ! / DATE OF HEARING : 14/02/2019 '#$ ! / DATE OF PRONOUNCEMENT: 15 /02/2019 %& / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: PRESENT FOUR APPEALS ARE DIRECTED AT THE INSTANCE O F THE ASSESSEES AGAINST ORDERS OF THE LD.CIT(A)-5, AHMEDA BAD DATED 13.10.2016 PASSED ON THE RESPECTIVE APPEALS OF THE APPELLANTS IN THE ASSTT.YEARS 2005-06 AND 2006-07. ITA NO.126/AHD/2017 AND 3 OTHERS 2 2. GROUNDS OF APPEAL TAKEN BY THE ASSESSEES ARE NOT IN CONSONANCE WITH RULE 8 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES; THEY ARE DESCRIPTIVE AND ARGUMENTATIVE IN NA TURE. IN BRIEF GRIEVANCE OF BOTH THE ASSESSEES IS THAT WHETHER ANY UNEXPLAINED CASH WAS DEPOSITED IN THE BANK ACCOUNT WITH BANK OF INDIA, NEW CLOTH MARKET AND THE SAME DESERVES TO BE ADDED IN T HEIR HANDS. 3. FACTS ON ALL VITAL POINTS ARE COMMON, THEREFORE FOR THE FACILITY OF REFERENCE, WE ARE TAKING UP THE FACTS FROM THE A PPEAL OF SMT.ALPA NITINKUMAR SHAH. 4. BRIEF FACTS OF THE CASE ARE THAT THE AO HAS RECEI VED INFORMATION THAT SAVING BANK ACCOUNTS BEARING NO.201010100018723 AND 20101010001724 WERE OPENED W ITH BANK OF INDIA, NEW CLOTH MARKET, AHMEDABAD IN THE NA MES OF SMT.ALPA NITINKUMAR SHAH AND NITINKUMAR K. SHAH. I N THESE ACCOUNTS, CASH WAS DEPOSITED IN THE ACCOUNTING YEAR RELEVANT TO THE ASSTT.YEAR 2005-06 AND 2006-07. THE AO VERIFIE D THE DATA OF BOTH THESE ASSESSEES WITH INCOME TAX DEPARTMENT AND FOUND THAT THEY HAVE NOT FILED ANY RETURN OF INCOME. THEREFOR E, HE ISSUED NOTICE UNDER SECTION 147 AND SOUGHT THEIR EXPLANATI ON ABOUT THE NATURE OF THE TRANSACTIONS AND SOURCE OF DEPOSITS. BOTH THE ASSESSEES REMAINED ABSENT, HENCE IN AN EX PARTE ASSESSMENT ORDER, HE MADE ADDITION OF RS.45,25,600/- IN THE CA SE OF ALPA NITINKUMAR SHAH AND RS.29.00 LAKHS IN THE ASSTT.YEA R 2006-07. SIMILARLY, ADDITIONS HAVE BEEN MADE IN THE HANDS OF HER HUSBAND. DISSATISFIED WITH THE ADDITIONS, BOTH THE ASSESSEES CARRIED THE MATTER IN APPEAL BEFORE THE LD.CIT(AL). THEY CON TENDED THAT THEY ITA NO.126/AHD/2017 AND 3 OTHERS 3 HAVE NOT OPENED BANK ACCOUNT AS ALLEGED BY THE AO. THEY HAVE APPLIED UNDER RTI ACT FOR OBTAINING VARIOUS INFORMA TION HOWEVER, THEY WERE NOT ABLE TO GET SUFFICIENT MATERIAL. HOW EVER, IN ORDER TO DO SUBSTANTIAL JUSTICE, THE LD.CIT(A) CALLED FOR RE MAND REPORT FROM THE AO AND APPRAISED HIM TO CONDUCT INVESTIGATION O N THE FOLLOWING POINTS: 6. YOU ARE ACCORDINGLY REQUESTED TO KINDLY CO NDUCT FOLLOWING INQUIRIES:- I) RECORD STATEMENT OF APPELLANT U/S.131 SO AS TO E STABLISH WHETHER SHE HAS ANY KNOWLEDGE, RELATIONSHIP OR ACQUAINTANCE, BU SINESS OR PERSONAL WITH EITHER THE PERSON WHO INTRODUCED HER AT THE TI ME OF OPENING THE BANK ACCOUNT (ACCOUNT HOLDER NO. 18630). OR THE PER SONS IN WHOSE FAVOUR CHEQUES WERE ISSUED. II) RECORD STATEMENT OF PERSON I.E. ACCOUNT HOLDER NO. 18630 U/S.131 SO AS TO ESTABLISH WHETHER HE/SHE HAS ANY KNOWLEDGE, R ELATIONSHIP OR ACQUAINTANCE, BUSINESS OR PERSONAL WITH THE APPELLA NT AND UNDER WHAT CIRCUMSTANCES HE HAD INTRODUCED THE ACCOUNT. WHILE RECORDING HIS STATEMENT PLEASE ESTABLISH AS TO WHETHER HE KNEW TH E PERSON WHOSE PHOTOGRAPH WAS PASTED OR THE APPELLANT. III) RECORD STATEMENT OF PERSON I.E. RECIPIENTS OF CHEQUE PAYMENTS FROM THIS ACCOUNT U/S.131 SO AS TO ESTABLISH WHETHER HE /SHE HAS ANY KNOWLEDGE, RELATIONSHIP OR ACQUAINTANCE, BUSINESS O R PERSONAL WITH THE APPELLANT AND UNDER WHAT CIRCUMSTANCES THEY HAD REC EIVED THE IMPUGNED AMOUNT MONIES FROM APPELLANT. IV) RECORD STATEMENT U/S.1231 OF THE PERSON WHO WAS BANK MANAGER ON THE DATE OF OPENING OF ACCOUNT OPENING WHO HAS AUTH ORIZED OPENING OF THIS ACCOUNT AS TO HOW AGAINST NAME AND ADDRESS OF APPELLANT, PHOTOGRAPH OF SOME OTHER LADY WAS PASTED ON THE ACC OUNT OPENING FORM AND ALSO INQUIRE FROM THE BANK AS TO WHAT EVIDENCE TOWARDS RESIDENTIAL PROOF INDICATED IN THE BANK ACCOUNT WAS OBTAINED AT THE TIME OF ACCOUNT OPENING. V) CONDUCT INQUIRIES FROM THE ASSESSING OFFICER OF CENTRAL CIRCLE AS TO WHETHER ANY LOAN OR GIFT WAS GIVEN BY APPELLANT TO SALASAR LAMINATES PVT. LTD. AND IF YES, RELEVANT COPIES THEREOF. ITA NO.126/AHD/2017 AND 3 OTHERS 4 7. YOU ARE FURTHER REQUESTED TO CONDUCT ALL OR ANY OTHER INQUIRIES WHICH YOU DEEM FIT SO AS TO PROVE THE HYPOTHESIS OBSERVED BY ME IN PARA-5 ABOVE. YOUR REPORT ON THE MATTER SHOULD REACH THIS OFFICE ON OR BEFORE 31.10.2013.' 5. THE LD.AO CARRIED OUT THE INVESTIGATION AND SUBM ITTED REMAND REPORT WHICH HAS BEEN REPRODUCED BY THE LD.C IT(A) ON PAGES NO.15 TO 17 OF THE PAPER BOOK. IT IS PERTINE NT TO TAKE NOTE OF THIS REMAND REPORT AS UNDER: 2. AS PER THE DIRECTIONS CONTAIN IN PARA 6 OF LETTER REFERRED TO ABOVE MY REPORT IS SUBMITTED AS UNDER: THE BANK MANAGER, BANK OF INDIA, NEW CLOTH MARKET , RAIPUR, AHMEDABAD WAS SPECIFICALLY REQUESTED TO PROVIDE THE INFORMATION/ DETAILS/ NAME OF PERSONS, ADDRESSES ETC. IN RESPECT OF PERSONS ABOUT WHOM THE INQUIRY WAS REQUIRED TO BE CONDUCTED AS PE R YOUR DIRECTIONS. THE DETAILS WERE CALLED FOR UNDER THE PROVISIONS OF SECTION 133(6) OF THE I. T. ACT, 1961. THE REPORT MENTIONED BELOW IS BASE D ON THE DETAILS PROVIDED TO THIS OFFICE. PARA 6(1) TO RECORD THE STATEMENT OF APPELLANT. THE STATEMENT OF SMT. ALPABEN NITINKUMAR SHAH WAS R ECORDED ON 13.12.201. THERE WAS DIRECT QUESTION ABOUT THE OPEN ING / HAVING THE S. B. ACCOUNT WITH BANK OF INDIA, NEW CLOTH MARKET BRA NCH, RAIPUR, AHMEDABAD. SHE HAS CATEGORICALLY DENIED TO HAVE OPE NED THE ACCOUNT OR HAVING S. B. ACCOUNT WITH BANK OF INDIA, NEW CLO TH MARKET BRANCH, AHMEDABAD. THE QUESTION REGARDING SHRI CHETANKUMAR KANTILAL SHAH WHO HAS GIVEN INTRODUCTION TO OPEN THE ACCOUNT WAS ASKE D TO HER. WHETHER SHE KNOWS HIM AND HAVE ANY KIND OF PERSONAL OR BUSI NESS RELATION WITH HIM. SHE HAS STATED THAT SHE DOES NOT KNOW ANY CHET ANKUMAR KANTILAL SHAH OR SHE HAS NO ANY PERSONAL OR BUSINESS RELATIO N WITH HIM. SHE WAS ASKED DO YOU WANT TO SAY ANYTHING IN THIS REGARD. SHE HAS CLARIFIED THAT SHE HAS NOT DONE ANY TRANSACTION S THROUGH THE BANK ACCOUNT IN RESPECT OF WHICH THE QUESTION WAS ASKED. FURTHER, IT WAS REPORTED BY HER THAT SHE HAS LODGED A COMPLAINT ON 13.01.2013 IN KARANJ POLICE STATION, AHMEDABAD CITY, AHMEDABAD AN D SHE HAS ITA NO.126/AHD/2017 AND 3 OTHERS 5 CALLED FOR DETAILS UNDER RTI ACT FROM BANK AND INCO ME TAX DEPARTMENT. IT WAS FURTHER REPORTED BY HER THAT SHE IS GETTING THREATENING TELEPHONES FROM THE NUMBERS MENTIONED BELOW. 1. 9227166448 2. 9737896913 SECONDLY, IT WAS REPORTED BY HER THAT HER PAN HAS BEEN MISUSED AND SHE IS BEING HARASSED UNNECESSARILY. PARA 6(2) TO RECORD THE STATEMENT OF PERSONS I.E. A CCOUNT HOLDER NUMBER 18630. AS PER DETAILS OBTAINED FROM BANK U/S. 133(6) OF I .T. ACT, 1961 SHRI CHETANKUMAR KANTILAL SHAH WHO IS HOLDING S. B. A/C. NO. 18630 WAS SUMMONED AND REQUESTED TO ATTEND THE OFFICE OF THE UNDERSIGNED. HIS ADDRESS IS AS UNDER: NEAR OLD POST OFFICE, JAIN DERASARI, AT AND POST. VASO, TAL. NADIAD. PIN. 387380. SHRI CHETANKUMAR KANTILAL SHAH HAS GIVEN SIGNATURE AS INTRODUCTORY TO OPEN THE ACCOUNT OF APPELLANT IN BA NK OF INDIA. HE WAS DIRECTED TO ATTEND THE OFFICE OF THE UNDERSIGNED ON 11.12.2013 BY LETTER AND SUMMON DATED 29.11.2013. THE LETTER / SUMMON WA S SENT BY SPEED POST. THE POSTAL DEPARTMENT RETURNED THE COVER WITH ENDORSEMENT 'EXPIRED'. ACCORDINGLY, FRESH LETTER/SUMMON DATED 24 .12.2013 WAS ISSUED TO SHRI CHETANKUMAR KANTILAL SHAH. THE WARD INSPECT OR WAS DIRECTED VIDE THIS OFFICE LETTER DATED 24.12.2013 TO SERVE L ETTER/ SUMMON AND TO INQUIRE ABOUT HIS EXISTENCE IN THIS WORLD. THE WARD INSPECTOR HAS REPORTED THAT THE RESIDENTIAL HOUSE OF SHRI CHETANK UMAR KANTILAL SHAH REMAINS CLOSED AND FURTHER REPORTED THAT AS PER INQ UIRY CONDUCTED FROM NEIGHBORS, SHRI CHETANKUMAR KANTILAL SHAH EXPIRED S INCE LONG. THE SAID PREMISES ARE CLOSED SINCE LAST THREE -FOUR YEARS I. E. AFTER DEATH OF SHRI CHETANKUMAR KANTILAL SHAH. HIS WIFE AND SON HAVE SH IFTED TO AHMEDABAD AND STAYING AT VATVA AFTER DEATH OF SHRI CHETANKUMAR KANTILAL SHAH. SO PRACTICALLY IT WAS NOT POSSIBLE BY WARD INSPECTOR T O COLLECT ANY FURTHER DETAILS OR DEATH CERTIFICATE ETC. OR PRESENT ADDRES S OF HIS WIFE AND SON. PARA 6(2) TO RECORD THE STATEMENT OF SHRI INDRAKUMA R D. AGARWAL. ITA NO.126/AHD/2017 AND 3 OTHERS 6 SHRI INDRAKUMAR D. AGARWAL HAS SIGNED OR GIVEN HIS SIGNATURE AT THE TIME OF OPENING THE ACCOUNT OF SHRI CHETANKUMAR KANTILAL SHAH. HIS S. B, ACCOUNT NUMBER IS 17953. HIS RESIDENTIAL ADDRES S, AS PROVIDED BY BANK IS AS UNDER: HOUSE NO. 14A, SARVODAY PARK, B/H. BALAJI NO KUVO, B/H. BHIKSHUK GRUH, . ODHAV, AHMEDABAD HE WAS DIRECTED TO ATTEND THE OFFICE OF THE UNDERS IGNED ON 11.12.2013 VIDE LETTER/ SUMMON DATED 29.11.2013. HE HAS NOT ATTENDED OR NOT MADE ANY COMPLIANCE ON THE DATE OF HEARING. ACCO RDINGLY, WARD INSPECTOR WAS DIRECTED VIDE LETTER DATED 19.12.2013 TO GET THE LETTER/ SUMMON SERVED UPON SHRI AGARWAL. IT HAS BEEN REPORTED BY WARD INSPECTOR/ T.A. VIDE L ETTER DATED 27.12.2013 THAT SHRI INDRAKUMAR AGARWAL IS ON DEATH BAD, HE IS NOT ABLE TO MOVE AS HE IS SUFFERING FROM PARALYSIS AND HIS L EG IS EFFECTED FOR GAGARING. HIS WIFE HAS ACCEPTED THE LETTER/ SUMMON AND STATED THAT HE WILL NOT BE ABLE TO ATTEND THE OFFICE. IN THIS CIRCUMSTA NCES, IT-IS NOT PRACTICALLY POSSIBLE TO RECORD HIS STATEMENT. PARA 6(3) - TO RE CORD THE STATEMENT OF PERSONS I.E. RECEPTIONIST OF CHEQUES PAYMENT FROM A PPELLANT' S ACCOUNT. THE COPY OF BANK ACCOUNT STATEMENT IN RESPECT OF S .B. ACCOUNT NUMBER 18723 IN THE CASE OF SMT. ALPABEN N. SHAH WAS OBTAINED FROM THE BANK FOR THE PERIOD 01.04.2004 TO 31.03.2005. THE S CRUTINY OF SAID BANK STATEMENT REVEALS THAT AMOUNT OF CASH DEPOSITED WAS WITHDRAWN IMMEDIATELY AFTER CASH DEPOSITED. IT IS SEEN THAT T HERE ARE NUMBER OF PERSONS WHOSE ACCOUNTS THE FUND WAS TRANSFERRED. IT IS SEEN THAT EVERY TIME THE FUND IS TRANSFERRED TO DIFFERENT PERSONS A CCOUNT. THERE ARE 65 PERSONS IN WHOSE ACCOUNTS THE FUND WAS TRANSFERRED. IT WAS TOLD BY THE BANK AUTHORITY THAT IT IS OLD MATTER AND PRACTICALL Y IT IS NOT POSSIBLE TO TRACE OUT ACCOUNT OF ALL THESE PERSONS BECAUSE THEY ARE NOT HAVING ACCOUNT IN THIS BANK. THESE DETAILS CAN BE AVAILABL E FROM THE PERSONS WHO HAVE MANAGED TO TRANSFER THE FUND. IN THESE CIRCUMS TANCES, IT IS NOT PRACTICALLY POSSIBLE BY THIS OFFICE TO RECORD THE S TATEMENT OF PERSONS IN WHOSE ACCOUNTS THE FUND WAS TRANSFERRED. PARA 6(IV) - TO RECORD THE STATEMENT OF PERSONS WHO WAS BANK MANAGER ON THE DATE OF OPENING THE ACCOUNT OF APPELLANT. THE PRESENT BANK MANAGER/ OFFICER IN-CHARGE WAS SPE CIFICALLY REQUESTED TO FURNISH THE DETAILS U/S. 133(6) OF I.T . ACT, 1961 VIDE THIS OFFICE LETTER DATED 24.10.2013. IT WAS REPORTED VIDE LETTE R DATED 30.10.2013 THAT ITA NO.126/AHD/2017 AND 3 OTHERS 7 THE MATTER IS ABOUT 10 YEARS OLD AND RECORDS HAVE B EEN CALLED FOR. IT WAS REQUESTED TO GIVE TIME FOR 10 DAYS VIDE BANK'S LETT ER DATED 30.10.2013 RECEIVED IN THIS OFFICE ON 21.11.2013. THEREAFTER T ELEPHONICALLY INQUIRY WAS MADE BUT IT WAS REPORTED THAT IT IS OLD MATTER ABOUT 10 YEARS OR SO AND VERY DIFFICULT TO HAVE SUCH DETAILS. PARA 6(V) - TO CONDUCT INQUIRY FROM A.O., CENTRAL CI RCLE - 1(3), AHMEDABAD AS TO WHETHER ANY LOAN OR GIFT WAS MADE BY APPELLANT TO SALASAR LAMINATES PVT. LTD. THE CASE RECORDS WERE WITH ACIT, CENTRAL CIRCLE - 1(3), AHMEDABAD. THE SAID A.O. WAS SPECIFICALLY REQUESTED V IDE THIS OFFICE LETTER DATED 27.09.2013 TO FURNISHED THE DETAILS. T HERE WAS NO COMPLIANCE. AS SUCH REMINDER LETTER DATED 24.10.2013 WAS SENT. H OWEVER THERE WAS NO RESPONSE HENCE PERSONAL INQUIRY WAS MADE IN THE OFF ICE OF THE ACIT, CENTRAL CIRCLE - 1(3), AHMEDABAD. IT WAS ASCERTAINED THAT THE CASE RECORDS HAVE BEEN TRANSFERRED TO OSD, CIRCLE - 8, AH MEDABAD. THE SAID A.O. WAS REQUESTED VIDE THIS OFFICE LETTER DATED 19. 11.2013 TO COMPLY BY 30.11.2013. THERE WAS NO COMPLIANCE HENCE REMINDER DATED 23.12.2013 WAS SENT. THE REPORT IS AWAITED. I HOPE ABOVE CLARIFICATION/DETAILS WILL MEET WITH YOUR REQUIREMENTS. 6. THE LD.CIT(A) THEREAFTER CONSIDERED THE ISSUE AN D CONFIRMED THE ADDITION. THE RELEVANT FINDING RECORDED IN THE CASE OF ALPA NITINKUMAR IN THE ASSTT.YEAR 2005-06 IS WORTH TO NO TE, WHICH READS AS UNDER: IN RESPONSE TO THIS THE APPELLANT HAS SUBMITTED A REJOINDER VIDE LETTER DTD. 14.09.2016, WHICH IS REPRODUCED AS UNDER: - WITH REFERENCE TO THE ABOVE REFERRED REMAND REPORT SUBMITTED BEFORE YOUR GOODSELF BY LD. ITO WARD 5(3) (1), AHMED ABAD, THE COPIES WHICH HAVE BEEN PROVIDED TO ME, I HAVE TO ST ATE AS UNDER: 1. THE BANK OFFICIAL REFUSED TO PROVIDE ANY DOCUMENTS I.E. BANK ACCOUNT OPENING FORM, BANK STATEMENT FOR THE RELEVA NT PERIOD ETC. OR DETAILS STATING THE REASON THAT SINCE THE ACCOUN T DID NOT BELONG TO US, THEY COULD NOT PROVIDE THE SAME. SO, WE HAD NO DETAILS WHICH WE COULD PRODUCE BEFORE THE LD. ITO. IN SPITE OF BE ING REPEATEDLY INTIMATED ABOUT THE FACT, THE FRAUDULENT NATURE OF TRANSACTIONS AND HIMSELF HAVING DOCUMENTS RELATING TO THE ABOVE REFE RRED BANK ITA NO.126/AHD/2017 AND 3 OTHERS 8 ACCOUNTS AND, THE LD. AO NEVER ATTEMPTED TO SIMPLY V ERIFY THE BASIC FACTS I.E. PHOTO AND SIGNATURE ON ACCOUNT OPENING FO RM AND PAN WITH THAT OF OURS, DETAILS OF INTRODUCERS TO THE AC COUNT, AREA OF RESIDENCE WHERE WE USED TO RESIDE I.E. PALDI AND THE BRANCH I.E. NEW CLOTH MARKET WHERE THE ACCOUNT WAS OPENED AND O THER RELEVANT FACTS. 2. THE LD. ITO DID NOT CARE TO CALL VARIOUS PARTIES CO NCERNED LIKE BANK OFFICIALS, THE PERSONS WHO HAD OPENED AND OPER ATED THE ACCOUNT AND RECORD THEIR STATEMENTS. 3. THE LD. ITO DID NOT CARE TO CALL THE PERSONS WHO IN TRODUCED THE ACCOUNT AND RECORD THEIR STATEMENTS. 4. THE LD. ITO IN SPITE OF KNOWING THE FACT ABOUT OUR FIR FILED TO KAGDAPITH POLICE STATION, AHMEDABAD TO INVESTIGATE M ATTER, DID NOT TRY TO INQUIRE ANYTHING AS TO THE FACTS OF THE CASE AND THE STATUS OF THE INVESTIGATION. YOU HONOUR MAY PLEASE NOTE THAT HAD WE BEEN AT FAUL T WE COULD NOT HAVE FILED THE FIR AND PURSUED THE MATTER WITH VARIOU S AUTHORITIES LIKE RBI BANKING OMBUDSMEN, ENFORCEMENT DIRECTORATE, INVESTIGATION UNIT-I, AHMEDABAD, FIR TO KAGDAPITH POLI CE STATION, AHMEDABAD AND METROPOLITAN COURT OF AHMEDABAD, 5. THE LD. ITO DID NOT MAKE ANY EFFORTS TO VERIFY THE DETAILS AND FACTS OF THE CASE WHICH IN HER WISDOM AND AUTHORITY SHE C AN DO AND SIMPLY SITTING IN HER CABIN HAD PREPARED THE REMAND REPORT WITHOUT CONSIDERING THE FACTS AND EXERCISING HER AUTHORITY TO VERIFY THE VERACITY OF THE DOCUMENTS, IDENTITY OF THE PEOPLE W HO OPENED AND OPERATED THE ACCOUNTS, WHO BECAME WITNESS FOR OPENI NG THE ACCOUNT AND THE AUTHORITIES WHO ALLOWED SUCH ACCOUN T TO BE OPENED AND OPERATED, THE PERSONS WHO WERE INVOLVED IN THE FRAUDULENT TRANSACTIONS ETC. THE ABOVE FACTS SHOW CLEAR NEGLIGENCE ON THE PART O F LD AO AND LACK OF APPLICATION OF THE MIND AND THE PRINCIPLES OF NATURAL JUSTICE. THE REMAND REPORT SO PREPARED AND SUBMITTED BEFORE YOUR GOODSELF IS WITHOUT CONSIDERING AND VERIFICATION OF THE FACT S OF THE CASE AND DEVOID OF THE FACTUAL POSITION OF THE CASE AND HENC E WE REQUEST YOUR GOODSELF NOT TO CONSIDER THE SAME WHILE DISPOSING T HE APPEAL. 3.7. THE FACTS OF THE CASE AND THE SUBMISSIONS ARE CONSIDERED. THE CASE OF THE AO IS THAT THE ASSESSEE HAD DEPOSITED CASH A MOUNTING TO RS.45,25,600/- IN THE BANK ACCOUNT WITH BOI, AHMEDA BAD AND THE ASSESSEE HAS FAILED TO EXPLAIN THE SOURCE OF THESE DEPOSITS. THE ASSESSMENT IN THIS CASE WAS REOPENED ON THE BASIS O F INFORMATION AND DETAILS THAT THE ASSESSEE IS AN ENTRY PROVIDER TO T HE DIRECTOR OF SALASAR LAMINATES GROUP AND THEIR RELATIVE BY WAY OF ALLEGE D GIFT AND HE HAD ITA NO.126/AHD/2017 AND 3 OTHERS 9 DEPOSITED SUBSTANTIAL CASH IN THE BANK ACCOUNT. ON THE OTHER HAND THE CASE OF THE APPELLANT IS THAT THIS ACCOUNT DOESNT BELONGED TO HER AND SHE HAS NEVER OPENED THIS BANK ACCOUNT. THE MAIN CO NTENTION OF THE APPELLANT IS THAT SHE HAS NOT SUBMITTED ANY DOCUMEN TS TO ANY PARTY IN CONNECTION WITH THE SAME AND NOT CARRIED OUT ANY TR ANSACTIONS IN THAT ACCOUNT AND THAT WAS PURELY ON ACCOUNT OF FRAUDULEN T ACCOUNT OBTAINED BY SOMEBODY ON HER BEHALF TO CARRY OUT TRANSACTIONS . THE APPELLANT HAS ALSO FILED FIR BEFORE THE KAGDAPITH POLICE STATION AND COMPLAINT FILED BEFORE METROPOLITAN MAGISTRATE. THE INVESTIGATION O F POLICE IS STILL PENDING. THE APPELLANT HAS ALSO MADE INQUIRIES FROM THE BANK AUTHORITIES WHICH ARE ALSO PENDING. THE ONLY BASIS OF THE CONTENTION OF THE APPELLANT THAT ACCOUNT IS NOT BELONGED TO HER I S THAT THE PHOTOGRAPH AFFIXED ON THE ACCOUNT OPENING FORM IS NOT THAT OF THE ASSESSEE BUT THAT OF SOME OTHER LADY AND SIGNATURE APPEARING IN THE A CCOUNT OPENING FORM DEFERS FROM THE SIGNATURE ON PAN CARD. OTHER T HAN THIS THE ASSESSEE HAS FAILED TO PROVIDE ANY CONCRETE EVIDENC E TO SUBSTANTIATE HER CLAIM THAT THE TRANSACTION MADE IN THE BOI DO NOT P ERTAINED TO HER. MERE FILING OF STATEMENT AND PROOF FOR FILING PETIT IONS BEFORE VARIOUS AUTHORITIES ARE NOT SUFFICIENT TO CONCLUDE THAT THE BANK ACCOUNT IN QUESTION AS WELL AS TRANSACTIONS MADE THERE FROM DO NOT BELONGED TO HER. ALL DOCUMENTARY EVIDENCES SUCH AS PAN, NAME AN D ADDRESS OF ACCOUNT HOLDER ETC. IN THE BANK ACCOUNT INDICATES P ERTAINING TO THE APPELLANT. THE PRIMARY ONUS ON THE ASSESSEE WHICH H AS NOT BEEN DISCHARGED BY THE ASSESSEE. NEITHER BANK AUTHORITIE S NOR POLICE INVESTIGATION HAVE INDICATED THAT THIS BANK ACCOUNT DOES NOT BELONG TO THE APPELLANT. WITHOUT ANY SUBSTANTIAL EVIDENCES AN D DOCUMENTS, IT CANNOT BE SAID THAT BANK ACCOUNT IS FRAUDULENTLY OP ENED BY SOME OTHER PERSON IN THE NAME OF THE APPELLANT THE APPELLANT H AS TAKEN THIS PLEA THAT THE ACCOUNT DOESN'T BELONGED TO HER FIRST TIME DURING THE APPELLATE PROCEEDINGS. A PERUSAL OF ASSESSMENT ORDER SHOWS TH AT THE AO HAS GIVEN SUFFICIENT OPPORTUNITIES TO THE ASSESSEE TO E XPLAIN THE DETAILS OF SOURCE OF CASH DEPOSITS IN THE BANK ACCOUNT HOWEVER , ASSESSEE FAILED TO COMPLY WITH THE NOTICES ISSUED BY THE AO. DURING TH E APPELLATE PROCEEDINGS THE APPELLANT HAS SIMPLY STATED THAT SH E IS A LAYMAN AND HOUSEWIFE AND COULD NOT UNDERSTAND THE NOTICES ISSU ED BY THE ITO AND HER HUSBAND ON BEHALF OF HER VERBALLY EXPLAINED THE BASIC FACTS OF THE CASE THAT THE ACCOUNT ALONGWITH THE ENTRIES THEREIN NEVER BELONGED TO HER. THIS SHOWS THAT THE ASSESSEE HAS INTENTIONALLY AVOIDED THE COMPLIANCES DURING THE ASSESSMENT PROCEEDINGS. NOW SHE CAME WITH THE PLEA THAT APPELLANT DOESN'T BELONGS TO HER THAT ALSO WITHOUT ANY SUBSTANTIAL AND CONCRETE BASIS. ALL THESE CIRCUMSTA NCES INDICATES THAT THE APPELLANT IS NOT ABLE TO EXPLAIN THE SOURCE OF THE CASH DEPOSITED IN THE BANK ACCOUNT AS ALL DOCUMENTARY EVIDENCES SHOWS THAT THE ACCOUNT ITA NO.126/AHD/2017 AND 3 OTHERS 10 BELONGS TO THE APPELLANT AND SHE HAS FAILED TO EXPL AIN THE SOURCE OF DEPOSITS MADE THEREIN, THE VIEW TAKEN BY THE AO THA T THESE DEPOSITS ARE UNEXPLAINED IS CORRECT. CONSIDERING ALL THESE FACT S, THE ADDITION MADE BY THE AO IS JUSTIFIED AND THE SAME IS CONFIRMED. THUS THE GROUNDS OF APPEAL IS DISMISSED. 7. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE RECORD. THE STAND OF BOTH THE ASSESSEE S WAS THAT THEY HAVE NOT OPENED ANY BANK ACCOUNT. THESE ACCOU NTS DID NOT BELONG TO THEM. THEY HAVE LODGED FIR WITH THE POLI CE AND THEY HAVE MADE COMPLIANT TO THE BANK AND ALSO APPRAISED THE AO. AT THE COST OF REPETITION, WE WOULD LIKE TO REITERATE THE OBSERVATION OF THE AO IN THE SECOND REMAND REPORT, WHICH READS AS UNDER: 6.1 SCRUTINY OF THE ACCOUNT OPENING FROM REVEALS T HAT THE PHOTOGRAPH AFFIXED ON THE ACCOUNT OPENING FORM IS NOT THAT OF THE ASSESSEE BUT THAT OF SOME OTHER LADY. LIKEWISE, SIGNATURE APPEARING IN THE ACCOUNT OPENING FORM DIFFERS FROM THE SIGNATURES ON PAN CARD AND IDE NTITY CARD ISSUED BY ELECTION COMMISSION. HOWEVER, NAME ADDRESS AND PAN AR E THAT OF THE ASSESSEE. THEREFORE, UNTIL AND UNLESS FURTHER INVES TIGATION IS MADE, IT IS PRACTICALLY IMPOSSIBLE TO ARRIVE AT A CONCLUSION WH ETHER THE ACCOUNT OPENING FORM PERTAINS TO THE ASSESSEE AND THE BANK ACCOUNT IN QUESTION WAS ACTUALLY OPERATED BY THE ASSESSEE. THE ASSESSEE HAS NOT SUBMITTED ANY CONCRETE EVIDENCES WHICH COULD PROVE THAT THE SAVIN GS BANK ACCOUNT AND THE CASH DEPOSITS MADE IN THE SAID BANK ACCOUNT FOR THE A.Y. 2005-06 DO NOT BELONG TO HER. THE PRIMARY ONUS IS ON THE ASSES SEE TO PROVE/DISPROVE TRANSACTION. 8 A PERUSAL OF THE ABOVE REPORT WOULD INDICATE THAT THE AO HIMSELF WAS NOT SATISFIED WITH THE QUALITY OF EVIDE NCE COLLECTED BY HIM OR PRODUCED BEFORE HIM IN ORDER TO RESOLVE THAT THESE ACCOUNTS BELONG TO THE ASSESSEE. HE WAS OF OPINION THAT FURTHER INVESTIGATION IS REQUIRED. THE LD.CIT(A) CONFIRMED THE ADDITION, AS IF IT WAS THE ONUS OF THE ASSESSEE TO PROVE THAT TH ESE ACCOUNTS DO NOT BELONG TO THEM. ONUS UPON THE ASSESSEE WAS TO PROVE FROM WHERE THE AMOUNTS HAVE BEEN DEPOSITED IN THE ACCOUN TS. BUT IT IS ITA NO.126/AHD/2017 AND 3 OTHERS 11 FOR THE AO FIRST TO ESTABLISH THAT THESE ACCOUNTS B ELONGED TO THE ASSESSEE. WHAT POOR FELLOW CAN DO EXCEPT BRINGING INTO NOTICE OF ALL THE AUTHORITIES. THEY HAVE LODGED FIR. THEY H AVE MADE COMPLAINTS TO THE BANK; THEY HAVE POINTED OUT TO TH E AO THAT IF THE INVESTIGATION AGENCIES LIKE POLICE OR THE AO CA NNOT CONCLUSIVELY ESTABLISH THAT THESE ACCOUNTS BELONGS TO THE ASSESS EE, OR TO SOMEONE, HOW THESE TWO ASSESSEES CAN PROVE THAT FAC T ? THEREFORE, IN THE ABOVE CIRCUMSTANCES, WE DEEM IT A PPROPRIATE TO REMIT THIS ISSUE BACK TO THE FILE OF AO FOR CARRYIN G OUT FURTHER INVESTIGATION. IT IS FOR THE REVENUE FIRST TO ESTA BLISH THAT THESE ACCOUNTS BELONG TO THE ASSESSEE. THEY CANNOT BE EX PECTED TO PROVE NEGATIVE THAT THESE ACCOUNTS DO NOT BELONG TO THEM. IN LAW NEGATIVE CANNOT BE PROVED NOR CAN BE EXPECTED. THER EFORE, WE SET ASIDE ALL THE ORDERS IN BOTH THE ASSESSMENT YEARS, AND RESTORE THIS ISSUE TO THE FILE OF THE AO FOR RE-ADJUDICATION. 9. IT IS PERTINENT TO OBSERVE THAT THE OBSERVATION MADE BY US WILL NOT IMPAIR OR INJURE THE CASE OF THE AO AND CA USE ANY PREJUDICE TO THE DEFENCE/EXPLANATION OF THE ASSESSE E. THE LD.AO SHALL DECIDE THE ISSUE IN ACCORDANCE WITH LAW. THE OBSERVATIONS ARE MADE FOR BRING THE POINT AT HOME. 10. IN THE RESULT, APPEALS OF THE ASSESSEE ARE ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 15 TH FEBRUARY, 2019. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 15/02/2019