Shri Namdev Arora, Kapurthala V. The Income-tax Officer, Kapurthala

ITA 13/ASR/2012

• Counselvise Citation: 1320914 RSA 2012
• Duration Of Justice: 1 year(s) 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 02-12-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 09-01-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S K BANSAL
• Keywords: Gift
• Section: 133(6); 131; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.13 (ASR)/2012 ASSESSMENT YEAR:2008-09 PAN :ACUPRD-2437L SHRI NAMDEV ARORA VS. INCOME TAX OFFICER, C/O ARORA RICE & GENERAL MILLS, WARD-2, VPO IBRAHIMWAL, KAPURTHALA. DISTT. KAPURTHALA. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.S.K.BANSAL, ADVOCATE RESPONDENT BY:SH.TARSEM LAL, DR DATE OF HEARING:02/12/2013 DATE OF PRONOUNCEMENT:13/12/2013 ORDER PER BENCH ; THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF THE CIT(A), JALANDHAR, DATED 15.12.2011 FOR THE ASSESSMENT YEAR 2008-09. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT THE LD. AO WRONGLY MADE AN ADDITION OF RS .19.3 LACS UNDER HEAD CASH CREDITS U/S 69A DURING THE YEAR N OW UNDER APPEAL ( WHEN THE LOANS WERE TAKEN BY FOUR P/A CH EQUES). ITA NO.13(ASR)/2012 2 2. THAT THE LD. CIT(A), ON APPEAL, ENHANCED THE ADDITI ON UNDER THE HEAD CASH CREDITS FROM RS.19.3 LACS TO RS.30 LA CS UNDER THE SAME SECTION 69A. 3. THAT THE LD. CIT(A) WRONGLY CONFIRMED THE ADDITION OF RS.30 LACS UNDER HEAD CASH CREDITS UNDER THE SAME SECTION 69A, WHEN IT IS NOT A CASE SEARCH, SEIZURE OR SURVEY AND NO M ONEY, BULLION, JEWELLERY WAS FOUND FROM THE APPELLANT ( WHEN THE L OANS WERE TAKEN BY 4 P/A CHEQUE). 4. THAT THE OPENING BALANCE WITH THE BANK OF THE DEPOS ITOR IS RS.6,29,472/- AND NOT RS.4,972 AS CONFIRMED BY CIT( A). 5. THAT THE LD. CIT(A) HAS NOT APPRECIATED THE FACT TH AT THE DEPOSITOR HAS DEPOSITED THE CHEQUES AT RS.7,68,935 + OTHER DEPOSITS AT RS.1,14,081 + RS.8,83,016/- IN THE SAME BANK A/C. 6. THAT THE LD. CIT(A) HAS NOT APPRECIATED THE FACT TH AT THE DEPOSITOR HAS WITHDRAWN IN THE IMMEDIATE 31/2 MONTH S (BEFORE DEPOSIT) A SUM OF RS.35.5 LACS IN CASH FROM KOTAK M AHINDRA BANK, KAPURTHALA AND DEPOSITOR DEPOSITED A SUM OF R S.25.2 LACS OUT OF THE ABOVE WITHDRAWALS FROM THE SAME BANK A/C . 7. THAT THE LD. CIT(A) HAS NOT APPRECIATED THE FACT OF IDENTITY, CREDITWORTHINESS AND GENUINENESS OF TRANSACTION OF THE DEPOSITOR AS BROUGHT ON RECORD BY THE APPELLANT. 8. ALTERNATIVE GROUND: THAT THE LD. AO/CIT(A) HAS NOT APPRECIATED THE REQ UEST OF THE APPELLANT VIDE LETTER DATED 24.12.2010, 23.03.2011 AND 16.11.11 TO SUMMON THE DEPOSITOR U/S 131 AND IGNORED THE DE CISION OF THE CALCUTTA HIGH COURT APPEARING IN 2263 ITR 692 (CAL .). 9. THAT THE ORDER OF CIT(A) IS BAD IN LAW AS WELL A S ON FACTS. 2. THE BRIEF FACTS OF THE CASE AS ARISING FROM AOS ORDER ARE REPRODUCED FOR THE SAKE OF CONVENIENCE AS UNDER: ITA NO.13(ASR)/2012 3 3. UNEXPLAINED DEPOSITS IN BANK ACCOUNT AND ADDITION T O HIS CAPITAL ACCOUNT U/S 69A. 3.1. DURING THE F.Y. 2007-08 THE ASSESSEE HAS DEPOSITED IN HIS BANK ACCOUNT NO.0258000100727048 WITH PNB KAPURTHALA A SUM OF RS.1,77,50,000/- ON VARIOUS DATES. DURING ASSESSME NT PROCEEDINGS THE ASSESSEE WAS ASKED TO EXPLAIN THE SOURCE OF THESE BANK DEPOSITS. IN RESPONSE THERETO, THE ASSESSEE FURNISHED WRITTEN R EPLY DATED 14.12.2010 EXPLAINING THE SOURCE OF DEPOSITS AS UN DER: RS.10 LAKH 16.4.2007 FROM SHRI D. PARTI RS. 10 LAKH 1.4.2007 FROM SHRI D. PARTI RS. 5 LAKH 19.4.2007 FROM D.PARTI RS.5 LAKH 14.6.2007 FROM D. PARTI RS.15 LAKH 19.4.2007 FROM T.R.AGRO IND. RS.10000/- 19.4.2007 FROM T.R.AGRO IND. RS.14 LAKH 3.7.2007 FROM T.R.AGRO IND. RS.24 LAKH 15.6.2007 SALE OF JR PROPERTY RS.4.80 LAKH 23.6.2007 SALE OF JR PROPERTY RS.28.80 LAKH 23.6.2007 SALE OF JR PROPERTY RS.6 LAKH 29.6.2007 FROM ARORA RICE & GENL. MILLS RS.8.90 LAKH ON 9.7.2007 FROM ARORA RICE & GENL. MILLS RS.15 LAKH ON 3.10.2007 FROM ARORA RICE & GENL. M ILLS RS.15 LAKH ON 3.10.2007 FROM ARORA RICE & GENL. M ILLS RS.15 LAKH ON 3.10.2007 FROM ARORA RICE & GENL. M ILLS THEREUPON VIDE THIS OFFICE LETTER DATED 14.12.2010 THE ASSESSEE WAS ASKED TO FURNISH DOCUMENTARY EVIDENCE OF THE SO URCE OF THE AFORESAID DEPOSITS AND PRODUCE SHRI D. PARTI FOR EX AMINATION ALSO. THE ASSESSEE WAS ALSO ASKED TO PRODUCE BOOKS OF ACC OUNT OF M/S. T.R.AGRO INDUSTRY, M/S. ARORA RICE & GENERAL MILLS AND M/S. KHARBANDA TRADERS AND FURNISH CERTIFIED COPIES OF H IS ACCOUNT AS APPEARING IN THEIR BOOKS OF ACCOUNT. IN RESPONSE THERETO HE FURNISHED COPIES OF HIS ACC OUNTS AS APPEARING IN THE AFORESAID FIRMS AS ALSO COPIES OF PURCHASE/SALE DEEDS OF THE LANDS. AS REGARDS SH. D.PARTI, HE NEITHER FU RNISHED HIS CONFIRMATION NOR PRODUCED HIM FOR EXAMINATION ON TH E GROUND THAT SH. D.PARTI WAS A NON-RESIDENT AND EAS THEREFORE NO T AVAILABLE FOR EXAMINATION. VIDE ORDER SHEET ENTRY DATED 20.12.201 0 HE WAS AGAIN ITA NO.13(ASR)/2012 4 ASKED TO FURNISH CONFIRMATION OF SH. D.PARTI AND PR ODUCE HIM FOR EXAMINATION. IN RESPONSE THERETO HE AGAIN EXPRESSED HIS INABILITY TO FURNISH CONFIRMATION FROM D.PARTI ON THE PLEA THAT HE WAS OUT OF INDIA. IN VIEW OF NON-AVAILABILITY OF SH. DHRUV PARTI A NON RESIDENT COPY OF HIS BANK ACCOUNT NO. 02520150000603 WITH KO TAK MAHINDRA BANK LTD; KAPURTHALA WAS REQUISITIONED U/S 133(6) T O EXAMINE THE AVAILABILITY OF CASH FOR BEING GIVEN TO THE ASSESSE E. PERUSAL OF HIS BANK ACCOUNT REVEALS THAT ON 29.3.2007, THERE WAS C REDIT BALANCE OF ONLY RS.4972 AND THEREAFTER DURING F.Y. 2007-08 HE DEPOSITED RS.15 LAKH AND RS.30,000/- IN CASH ON 16.4.2007 AND RS. 4 LAKH ON 18.4.2007. THESE CASH DEPOSITS CLEARLY SHOW THAT T HE ASSESSEE HAS HIMSELF DEPOSITED HIS UNEXPLAINED CASH IN HIS BANK ACCOUNT I.E. BANK ACCOUNT OF SHRI DHRUV PARTI AND THEREAFTER WITHDREW THE SAME AMOUNT TO DEPOSIT IN HIS OWN BANK ACCOUNT IN CASH. ACCORDI NGLY, IT IS HELD THAT A SUM OF RS.19,30,000/- (RS.15 + 4 + 30 + 19.30 LAK H) IS UNEXPLAINED MONEY OF THE ASSESSEE DURING F.Y. 2007-08 AND THE SAME IS ADDED TO HIS ASSESSABLE INCOME U/S 69A OF THE ACT. 3. BEFORE THE LD. CIT(A), THE ASSESSEE SUBMITTED TH AT DURING THE ASSESSMENT PROCEEDINGS, A REQUEST WAS MADE TO THE A O TO ISSUE SUMMONS U/S 131 O THE ACT TO SH. DHRUV PARTI VIDE LETTER DATED 24/29.12.2010 WHICH WAS NEVER CONSIDERED BY THE AO. THE ASSESSEE RELIED UPO N THE DECISION OF ITAT, MUMBAI BENCH, REPORTED IN 62 TTJ 357, WHERE IT HAS BEEN HELD FOR MERE NON-APPEARANCE OF THE DONOR, IN THE ABSENCE OF ANY EVIDENCE THAT DONATED AMOUNT REPRESENTED UNDISCLOSED INCOME OF THE ASSESS EE, NO ADDITION COULD BE MADE. THE LD. COUNSEL BEFORE THE LD. CIT(A) RELIED UPON VARIOUS OTHER DECISIONS MENTIONED IN THE ORDER OF THE LD. CIT(A) IN THIS REGARD. ITA NO.13(ASR)/2012 5 3.1. THESE SUBMISSIONS OF THE ASSESSEE, WERE FORWAR DED TO THE AO FOR COMMENTS. THE COMMENTS OF THE AO WERE THAT THE ASSE SSEE HAD FAILED TO FURNISH BANK STATEMENT OF SH. DHRUV PARTI DURING TH E ASSESSMENT PROCEEDINGS DESPITE SEVERAL OPPORTUNITIES GIVEN TO HIM. SHE FUR THER SUBMITTED THAT THE CASH DEPOSITS IN THE BANK ACCOUNT OF SH. DHRUV PART I SHOWED THAT THESE DEPOSITS WERE MADE BY THE ASSESSEE HIMSELF. ON THE ASSESSEES PLEA THAT SH. DHRUV PARTI WAS A RICH MAN, THE AO SUBMITTED THAT N O EVIDENCE TO SUPPORT THIS CLAIM HAD BEEN SUBMITTED AND THAT IN ANY CASE THE RETURNED INCOME OF SH. DHRUV PARTI WAS LESS THAN RS. 5 LACS AND HE COU LD NOT BE SAID TO BE A RICH PERSON. ON THE ASSESSEES CONTENTION THAT SUMMONS W ERE NOT ISSUED TO SH. DHRUV PARTI INSPITE OF REQUEST, THE AO SUBMITTED TH AT SINCE THE ASSESSEES COUNSEL HAS EXPRESSED HIS INABILITY TO FURNISH THE CONFIRMATION, THERE WAS NO JUSTIFICATION FOR SUMMONING THE PERSON CONCERNED. T HE AO STATED THAT THE DECISION RELIED UPON BY THE ASSESSEE WAS IN RELATIO N TO GIFT AND NOT FOR UNEXPLAINED MONEY. HE HAS SUBMITTED THAT IN ANY CAS E MERE RECEIPT OF AMOUNT THROUGH BANKING CHANNEL WAS NOT SUFFICIENT T O PROVE THE GENUINENESS OF GIFT, RELYING UPON RAJINDER K. MITTAL VS. ACIT I TA NO.1109/DEL/2007 DATED 7.9.2007. ON THE ASSESSEES CONTENTION THAT H E HAS PROVED THE ENTITY, CAPACITY AND GENUINENESS OF THE TRANSACTION WITH SH .DHRUV PARTI THE AO STATED THAT THIS CLAIM WAS INCORRECT SINCE THE ASSE SSEE HAS FAILED TO FURNISH ITA NO.13(ASR)/2012 6 THE CONFIRMATION OF THE CREDITOR, MUCH LESS PROVING HIS CAPACITY TO PAY AND GENUINENESS OF THE TRANSACTION BY WAY OF PRODUCING HIM FOR EXAMINATION. IN RESPONSE TO THE AOS COMMENTS, THE AR FOR THE ASSES SEE HAS SUBMITTED THAT THOUGH THE CREDIT BALANCE OF RS.4,972/- IN THE BANK ACCOUNT OF SH. DHRUV PARTI AS ON 23.3.2007 HAD BEEN MENTIONED IN THE ASS ESSMENT ORDER, THE FACT AS THAT THE BALANCE AS ON 31.3.2007 WAS RS.6,29,527 /-. THE AR SUBMITTED THAT SH. DHRUV PARTI WITHDRAWN A SUM OF RS.21,50,00 0/- IN CASH FROM HIS BANK ACCOUNT FROM 20.12.2006 TO 7.4.2007. HE SUBMIT TED THAT SH. DHRUV PARTI HAD 50% SHARE IN THE FIRM M/S. GOLDEN SERVICE STATION, NAGAL SALALA, BESIDES HAVING RENTAL INCOME FROM GODOWN LET TO FC I. HE HAS SUBMITTED THAT TRANSACTIONS IN SH. DHRUV PARTIS BANK A/C WERE IN CRORES AND HE HAD SUFFICIENT FUNDS TO DEPOSIT IN HIS BANK ACCOUNT. TH E AR SUBMITTED THAT THE AO HAD NOT ALLOWED REASONABLE OPPORTUNITY TO THE AS SESSEE BY NOT PROVIDING A COPY OF BANK ACCOUNT OF SH. DHRUV PARTI AND BY NO T ISSUING SUMMONS TO SH. DHRUV PARTI. HE SUBMITTED THAT THE ASSESSEE HAD PRODUCED THE FATHER OF SH.DHRUV PARTI BEFORE THE AO ON 31.12.2010, BUT HE COULD NOT BE EXAMINED. THE AR HAS SUBMITTED THAT SINCE SH. DHRUV PARTI WAS AN EXISTING ASSESSEE WHOSE BANK STATEMENT WAS ON RECORD AND THE AO HAD N OT ISSUED SUMMONS TO SH.DHRUV PARTI DESPITE REQUEST, THE ADDITION SHOULD BE DELETED. ITA NO.13(ASR)/2012 7 4. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESS EE AND THE REPORT OF THE AO, THE LD. CIT(A) DIRECTED THE AO TO ISSUE SUM MONS U/S 131 OF THE ACT, TO SH. DHRUV PARTI AND EXAMINE HIM ON OATH AS REGAR DS THE NATURE AND SOURCE OF THE MONEY ADVANCED TO THE ASSESSEE AND ABOUT HIS SOURCES OF HIS INCOME TO EXAMINE HIS CREDITWORTHINESS. THESE DIRECTIONS UNDER SECTION 254(2) OF THE ACT WERE ISSUED. ACCORDINGLY, THE REPORT OF TH E AO AND THE COMMENTS OF THE ASSESSEE IN THE FINDINGS OF THE LD. CIT(A) A RE REPRODUCED IN PARA 7 TO 9 WHICH FOR THE SAKE OF CONVENIENCE ARE REPRODUCED HE REUNDER: 7. THE AO VIDE HIS LETTER 18.10.2011 REPORTED THAT AS PER THE DIRECTIONS HE HAS ISSUED SUMMONS U/S 131 OF THE ACT IN THE NAME OF SH. DHRUV PARTI WHICH WAS SERVED ON SH. K.D . PARTI, HIS FATHER. IT WAS SUBMITTED THAT IN RESPONSE TO THE SU MMONS SH. K.D. PARTI HAD FURNISHED A WRITTEN REPLY STATING THAT HE WAS NOT SUPPOSED TO RECEIVE ANY LETTER NOT ADDRESSED TO HIM AND THAT HE WAS UNABLE TO ATTEND THE OFFICE AT SUCH A SHORT NO TICE. SH. K.D.PARTI HAD FURNISHED A WRITTEN REPLY STATING THA T HE WAS NO SUPPOSED TO RECEIVE ANY LETTER NOT ADDRESSED TO HIM AND THAT HE WAS UNABLE TO ATTEND THE OFFICE AT SUCH A SHORT NOT ICE. SH. K.D.PARTI FURTHER STATED THAT IF REQUIRED HE MAY BE ASKED IN WRITING TO APPEAR ON BEHALF OF HIS SON AND THAT HE WAS AN O LD RETIRED PERSON AND GOT TENSE BY DEEDS OF HIS SON.THE AO ISS UED ANOTHER SUMMONS IN THE NAME OF SH. DHRUV PARTI ON 11.10.201 1. THE OFFICE INSPECTOR, HOWEVER, REPORTED THAT EVEN AFTER VISITI NG THE HOUSE OF SH.DHRUV PARTI MANY TIMES, NONE OTHER THAN THEIR SE RVANTS WERE FOUND AVAILABLE. HE REPORTED THAT WHEN SH. DHRUV PA RTIS FATHER SH. K.D.PARTI WAS CONTACTED TELEPHONICALLY, HE INFO RMED THAT HIS SON WAS OUT OF INDIA AND THE DEPARTMENT SHOULD WRIT E DIRECTLY TO HIM. THE AP REPORTED THAT THE SUMMONS ISSUED IN THE NAME OF SH. DHRUV PARTI COULD NOT BE SERVED. 8. WHEN THE AFORESAID REPORT OF THE AO WAS FORWARD ED TO THE ASSESSEE FOR COMMENTS, THE AR FOR THE ASSESSEE STATED THAT NO ITA NO.13(ASR)/2012 8 OPPORTUNITY OF HEARING HAS BEEN ALLOWED TO THE ASSE SSEE. IT WAS SUBMITTED THAT SH. DHRUV PARTI HAD MADE SUBSTANTIAL WITHDRAWAL FROM THE FIRM M/S. GOLDEN SERVICE CENTRE DURING THE F.Y. 2010-11 FROM HIS CAPITAL ACCOUNT. A COPY OF THE BALANCE SHE ET OF M/S. GOLDEN SERVICE CENTRE FOR THE A.Y. 2011-2012 WAS FURNISHED (THOUGH IT IS NOT VERIFIED). THE AR WONDERED THAT I F SH. DHRUV PARTI WAS NOT IN INDIA, WHO TOOK THIS HUGE AMOUNT IN HIS BEHALF. HE SUBMITTED THAT THE AO HAD NOT MADE ANY SERIOUS EFFO RT TO LOCATE SH. DHRUV PARTI. 9. IN VIEW OF THE FACT THAT THE ASSESSEE WAS NOT ABLE TO FURNISH ANY CONFIRMATION FROM SH. DHRUV PARTI THAT THE SUM OF R S.30 LACS WAS LOAN ADVANCED TO SH. DHRUV PARTI TO THE ASSESSEE AN D BECAUSE SECTION 69A OF THE ACT IS ATTRACTED WHEN THE NATURE AND SOURCE OF ANY MONEY, BULLION ETC. WITH THE ASSESSEE IS NOT EX PLAINED OR THE EXPLANATION IS NOT SATISFACTORY, A SHOW CAUSE NOTIC E WAS ISSUED TO THE ASSESSEE ASKING HIM TO STATE AS TO WHY THE ENTI RE SUM OF RS. 30 LACS SHOULD NOT BE ADDED TO THE ASSESSEES TOTAL IN COME INSTEAD OF ONLY THE SUM OF RS.19,30,000/- ADDED BY THE AO IN R ESPECT OF THESE DEPOSITS. THE NOTICES WERE ISSUED U/S 251(2) OF THE INCOME-TAX ACT, 5. THE EXPLANATION OF THE ASSESSEE WAS NOT FOUND SA TISFACTORY AND ACCORDINGLY THE LD. CIT(A) DIRECTED THE AO TO MAKE AN ADDITION OF RS.30.00 LACS BY CONFIRMING THE ADDITION OF RS.19,30,000/- MADE BY THE A.O. AND RS.10.70 LACS BY WAY OF ENHANCEMENT. 6. THE LD. COUNSEL FOR THE ASSESSEE, MR. S.K.BANSAL , ADVOCATE, ARGUING GROUNDS NO. 1 TO 3 ON LEGAL ISSUED ARGUED THAT THE ADDITION HAS BEEN MADE BY THE AO AMOUNTING TO RS.19,30,000/- AND ENHANCED BY LD. CIT(A) TO RS.30,00 LACS UNDER THE HEAD SECTION 69A OF THE A CT WHEREAS THE SAME ITA NO.13(ASR)/2012 9 ADDITION HAD TO BE MADE U/S 68 OF THE ACT BEING T HE CASH CREDIT FOUND IN THE BOOKS OF ACCOUNT FOR WHICH THE EXPLANATION OFFERED BY THE ASSESSEE WAS NOT FOUND SATISFACTORY BY THE A.O. THE LD. COUNSEL FOR THE ASSESSEE READ SECTION 69A AND SECTION 68 OF THE ACT AND THEREFORE, PRAYE D THAT ON LEGAL GROUNDS ITSELF, THE ADDITION CONFIRMED AND ENHANCED BY THE LD. CIT(A) IS NOT LEGAL AND REQUIRED TO BE DELETED. THE LD. COUNSEL FOR THE ASSESSEE FURTHER ARGUED ON MERIT ON THE SIMILAR LINES AS SUBMITTED BEFORE T HE AO AND THE LD. CIT(A) AND ACCORDINGLY PRAYED TO DELETE THE ADDITIONS MADE . 7. THE LD. DR, MR. TARSEM LAL, ON THE OTHER HAND, A RGUED THAT THROUGHOUT THE LD. COUNSEL FOR THE ASSESSEE HAS BE EN SUBMITTING THAT REQUEST TO THE AO WAS MADE TO ISSUE SUMMONS U/S 131 OF THE ACT TO SH. DHRUV PARTI, WAS NEVER CONSIDERED BY THE AO. WHEREAS THE STAND O F THE REVENUE AT THE ASSESSMENT LEVEL AND EVEN BEFORE THE LD. CIT(A) IS THAT THIS IS THE MONEY WHICH BELONGS TO THE ASSESSEE, CREDITED IN THE BOOK S OF ACCOUNT FOR WHICH NO EXPLANATION HAS BEEN OFFERED. MERE THAT THE AO HAS NOT ISSUED SUMMONS U/S 131 OF THE ACT TO SH. DHRUV PARTI CANNOT PROVE THE GENUINENESS OF THE CREDIT FOUND IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. THE AO WAS DIRECTED BY THE LD. CIT(A) AS MENTIONED IN CIT(A)S ORDER TO ISSUE SUMMONS TO THE ASSESSEE AT THE AVAILABLE ADDRESS, WHICH WAS DONE. THE SAID NOTICE WAS SERVED ON SH. K.D.PARTI FATHER OF THE ASSESSEE. THE FATHER OF ASSESSEE MR. ITA NO.13(ASR)/2012 10 K.D. PARTI SUBMITTED IN WRITTEN REPLY THAT HE WAS NOT SUPPOSED TO RECEIVE ANY LETTER NOT ADDRESSED TO HIM AND HE WAS NOT ABLE TO ATTEND ANY OFFICE AT SUCH A SHORT NOTICE AND HE MAY BE ASKED TO APPEARED ON BEHALF OF HIS SON AND HE IS AN OLD RETIRED PERSON WHO GET TENSE BY THE DE EDS OF HIS SON. THE AO AGAIN ISSUED SUMMONS TO SH. DHRUV PARTI. THE OFFICE INSPECTOR VISITED THE HOUSE OF SH. DHRUV PARTI MANY TIMES BUT NONE WAS FO UND AVAILABLE AT THE GIVEN ADDRESS. TELEPHONICALLY THE FATHER OF ASSESSE E INFORMED THAT HIS SON IS OUT OF INDIA AND THE DEPARTMENT SHOULD WRITE DIRECT LY TO HIM. ON THE SAID REPORT OF THE AO, WHICH WAS FORWARDED TO THE ASSESS EE AGAIN, THE ASSESSEE STATED THAT NO OPPORTUNITY HAS BEEN ALLOWED TO THE ASSESSEE. RATHER THE AR SUBMITTED THAT SH. DHRUV PARTI HAS MADE SUBSTANTIAL WIDHRAWAL FROM THE GOLDEN SERVICE CENTRE DURING THE FINANCIAL YEAR 20 10-11 FROM HIS CAPITAL ACCOUNT. COPY OF THE BALANCE SHEET FOR THE ASSESSME NT YEAR 2011-12 WAS FURNISHED THOUGH THE SAME WAS NOT VERIFIED. RATHER THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE AO HAD NOT MADE ANY SER IOUS EFFORTS TO LOCATE SH. DHRUV PARTI. THE LD. DR, MR.TARSEM BHARTI ARGUE D THAT THE LD. COUNSEL FOR THE ASSESSEE HAS BEEN BLAMING THE DEPARTMENT TH ROUGHOUT BUT HE DID NOT SUBMIT EVEN THE CONFIRMATION OF THE ASSESSEE AND EV EN HE DID NOT PROCEED TO GET THE CONFIRMATION FROM THE ASSESSEE FOR THE REAS ONS BEST KNOWN TO HIM. THOUGH, IT IS THE MONEY OF THE ASSESSEE, WHICH HAS BEEN FOUND CREDITED IN ITA NO.13(ASR)/2012 11 THE BOOKS OF THE ASSESSEE ITSELF FOR WHICH NO EXPLA NATION HAS BEEN OFFERED AND WRONG SECTION EVEN HAS BEEN MENTIONED, IN SUM AND SUBSTANCE THE ASSESSEE HAS OFFERED NO EXPLANATION FOR THE SAME AN D, THEREFORE, ACTION OF THE LD. CIT(A) BE CONFIRMED. THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAS NOT BEEN GIVEN ANY SHOW CAUSE NOTICE FOR ENHANCEMEN T WHICH IN FACT HAS BEEN GIVEN, AS IS EVIDENT FROM THE ORDER OF THE LD. CIT(A) IN PARA-9 BUT NO SATISFACTORY EXPLANATION HAS BEEN SUBMITTED BY THE ASSESSEE AND ACCORDINGLY, THE LD. DR PRAYED TO CONFIRM THE ACTION OF THE LD. CIT(A). 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THERE IS NO DISPUTE TO THE FACT THAT DURING THE IMP UGNED YEAR CASH DEPOSIT OF RS.15 LACS AND RS. 30,000/- WAS FOUND ON 16.4.2007 AND RS. 4 LAKH ON 18.4.2007 IN THE BANK ACCOUNT OF SH. DHRUV PARTI AN D THEREAFTER CHEQUES WERE GIVEN TO THE ASSESSEE. THE CREDIT IS FOUND IN THE BOOKS OF ACCOUNT OF THE ASSESSEE FOR WHICH NO EXPLANATION HAS BEEN OFFE RED BY THE ASSESSEE. THE ALLEGATION OF THE LD. COUNSEL FOR THE ASSESSEE BEFO RE THE LD. CIT(A) WAS THAT THE AO HAS NOT ISSUED SUMMONS U/S 131 OF THE ACT TO SH.DHRUV PARTI BUT THE SAME WERE DIRECTED TO BE ISSUED BY THE LD. CIT(A) A ND THE AO ACCORDINGLY AS PER DIRECTIONS OF THE LD. CIT(A) ISSUED SUMMONS U/S 131 OF THE ACT TO SH. DHRUV PARTI. THE SAID SUMMON WAS SERVED ON THE FATH ER OF THE ASSESSEE, WHO IN FACT WAS NOT INTERESTED TO CO-OPERATE THE INCOME TAX DEPARTMENT AND ITA NO.13(ASR)/2012 12 SUBMITTED THAT HE GET TENSED BY THE DEEDS OF HIS SO N AND THE DEPARTMENT SHOULD CONTACT HIS SON DIRECTLY, WHO IS OUT OF INDI A. TIME AND AGAIN, THE INCOME TAX DEPARTMENT BY SENDING NOTICES THROUGH O FFICE INSPECTOR, COULD NOT CONTACT SH. DHRUV PARTI AT THE GIVEN ADDRESS. I T APPEARS THAT NO EFFORTS HAVE BEEN MADE BY THE ASSESSEE TO CONTACT SH. DHRUV PARTI OR TO GET THE CONFIRMATION FOR THE MONEY ADVANCED. THEREFORE, ALL EGATION OF ASSESSEE THAT AO HAS NOT ISSUED SUMMONS U/S 131 TO SH. DHRUV PART I IS WITHOUT ANY BASIS AND CAN NOT BE ACCEPTED. THE FILING OF THE RETURN B Y MR. DHRUV PARTI WITHOUT ANY EXPLANATION DOES NOT PROVE THE GENUINENESS OF T HE TRANSACTION. NOTHING HAS BEEN PLACED ON RECORD BY THE ASSESSEE BEFORE AN Y OF THE AUTHORITIES BELOW OR EVEN BEFORE US THAT THE MONEY FOUND DEPOSI TED IN THE ACCOUNT OF SH. DHRUV PARTI IN CASH OR OTHERWISE FOR WHICH CHE QUES HAVE BEEN RECEIVED BY THE ASSESSEE ARE ACTUALLY THE MONEY BELONGS TO S H.DHRUV PARTI. THERE IS EVERY POSSIBILITY THAT THE BANK ACCOUNT OF SH. DHAR UV PARTI BELONGS TO SH. DHRUV PARTI FOR BENEFICIAL PURPOSES, WHICH IN THE F ACTS AND CIRCUMSTANCES OF THE CASE FOR RECEIVING MONEY AMOUNTING TO RS.30 LAC S HAS BEEN CONTROLLED BY THE ASSESSEE HIMSELF. THE GENUINENESS OF THE TRANSA CTION, CREDITWORTHINESS AND EVEN THE IDENTITY OF SH. DHRUV PARTI HAS NOT BE EN PROVED BY THE ASSESSEE AND NO EFFORT IN THIS REGARD HAS BEEN MADE BY THE A SSESSEE TO PROVE THE SAME BEFORE ANY OF THE AUTHORITIES BELOW OR EVEN BEFORE US. THE EVIDENCES LIKE SH. ITA NO.13(ASR)/2012 13 DHRVU PARTI IS ASSESSED TO INCOME TAX ARE IRRELEVA NT WITH RESPECT TO SUCH PARTIES LIKE DHRUV PARTI AND THE PARTIES HAVING NON -OPERATIVE ATTITUDE, THE ASSESSEE HAS COMPLETELY FAILED TO IDENTIFY THE GENU INENESS AND CREDITWORTHINESS OF THE TRANSACTION. FOR THE CREDI TS FOUND IN THE BOOKS OF ACCOUNT OF THE ASSESSEE, NO EXPLANATION TO THE SAT ISFACTION OF THE AO HAS BEEN SUBMITTED. IT IS PERTINENT TO MENTION HERE THA T IF IN THE ABSENCE OF PROVING IDENTITY, GENUINENESS AND CREDITWORTHINESS OF THE TRANSACTION , FURNISHING OF PARTICULARS AND PAYMENT BY CHEQUE IS NOT SACROSANCT. ACCORDINGLY, THE ARGUMENTS MADE BY THE LD. COUNSEL FOR THE ASSESSEE AND THE LEGAL GROUNDS RAISED BEFORE US CANNOT HELP THE ASSE SSEE TO PROVE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION . 9. AS REGARDS THE LEGAL ISSUE OF MENTIONING SECTION 69A, THE ASSESSMENT HAS BEEN MADE THROUGHOUT WITH INTENT AND PURPOSE OF SECTION 68 OF THE ACT AND THAT NO EXPLANATION TO THE SATISFACTION OF THE AO HAS BEEN SUBMITTED AND IN SUM AND SUBSTANCE THE FINDINGS OF THE AO THROUGH OUT AND THAT OF THE LD. CIT(A) ARE IN ACCORDANCE WITH THE INTENT AND PURPOS E OF SECTION 68 OF THE ACT AND THEREFORE, MENTIONING OF SECTION 69A BY THE AO AND THE LD. CIT(A) SHALL NOT INVALIDATE THE ASSESSMENT MADE IN VIEW OF THE PROVISIONS CONTAINED IN SECTION 292B OF THE ACT. THE AO HAS VALIDLY MADE SUCH ADDITION, IN FACT, UNDER SECTION 68 OF THE ACT, WRONGLY MENTIONING SEC TION 69A BY BOTH THE ITA NO.13(ASR)/2012 14 AUTHORITIES BELOW. THEREFORE, THE GROUNDS ON LEGAL AS WELL AS ON MERITS OF THE ASSESSEE ARE DISMISSED. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO.13(ASR)/2012 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13TH DECEMBER. 2013. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 13TH DECEMBER, 2013 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. NAMDEV ARORA, VPO IBRAHIMWAL, DIST T. KAPURTHALA. 2. THE WARD 2, KAPURTHALA. 3. THE CIT(A), JLR. 4. THE CIT, JLR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.