Sh. Subash Chander, Sirsa V. ITO, Sirsa

ITA 20/CHANDI/1999

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2479 (ITAT-CHANDIGARH)
• Duration Of Justice: 14 year(s) 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-06-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 25-04-2013
• Assessment Year: 1992-1993
• Appeal Filed On: 06-01-1999
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: D K GOYAL
• Keywords: Search and seizure; Loose papers; Opportunity of being heard; Revised return; Reason to believe; Documents seized
• Section: 143(3); 142(1); 133A; 234B; 139(5); 68; 144; 90; 2; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.20 /CHD/1999 (ASSESSMENT YEAR : 1992-93) SHRI SUBHASH CHANDER VS. THE INCOME TAX OFFICE R, PROP.M/S SUBHASH ENTERPRISES, WARD-1, SIRSA. SIRSA. PAN: (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI D.K.GOYAL RESPONDENT BY : SHRI AKHILESH GUPTA, DR DATE OF HEARING : 25.04.2013 DATE OF PRONOUNCEMENT : 10.06.2013 O R D E R PER SUSHMA CHOWLA, J.M. : THE APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORD ER OF THE COMMISSIONER OF INCOME-TAX (APPEALS), ROHTAK DATED 2.11.1998 RELATING TO ASSESSMENT YEAR 1992-93 AGAINST THE ORDER PASSED U/S 143(3)/147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE RE AD AS UNDER: I) THAT THE LD. COMMISSIONER OF INCOME-TAX (APPEAL S) HAS ERRED IN LAW AS WELL AS INFACT IN UPHOLDING THE ADDITIONS MADE OF RS.5328809/- I.E. 5332425 3616 AS TAKEN OUT IN VA RIOUS GROUNDS OF APPEAL FROM GROUND NO.4 TO 21. II) THAT THE LD. COMMISSIONER OF INCOME-TAX (APPEAL S) HAS FURTHER ERRED IN LAW AS WELL AS INFACT IN NOT ADJUDICATING UPON EACH GROUNDS OF APPEAL TAKEN BEFORE DETAILED AS UNDER: 1) THAT THE ORDER DATED 24-3-98 OF THE LD. INCOME- TAX OFFICER, WARD-1, SIRSA IS BAD IN LAW AND REQUIRE D TO BE QUASHED SINCE IT IS WITHOUT JURISDICTION. 2) THAT THE LD. INCOME-TAX OFFICER, IN VIEW OF TH E FACTS AND CIRCUMSTANCES OF THE CASE HAS ERRED IN LAW IN FRA MING THE 2 ASSESSMENT U/S143(3). THE FACTS OF THE CASE WARRAN TED THE ASSESSMENT, TO BE COMPLETED U/S 144 AND NOT U/S 143 (3). 3) THAT THE ALLEGATION OF THE ASSESSING OFFICER T HAT THE ASSESSEE HAS BEEN AVOIDING THE SERVICE OF NOTICE & NON- COOPERATING IN COMPLETING THE ASSESSMENT IS TOTALLY AGAINST THE FACTS. RATHER THE LD. ASSESSING OFFICER FAILED TO SUPPLY EVEN THE COPY OF THE ALLEGED UCHANTI PAPERS/BOOKS O N THE BASIS OF WHICH HE PROCEEDED WITH TO COMPLETE THE ASSESSMENT. 22) THAT WITHOUT PREJUDICE TO OUR ARGUMENTS VIDE GROUND NO. 4 TO 21 THE LD. INCOME-TAX OFFICER HAS ERRED IN LAW AS WELL AS INFACT IN MAKING THE SEPARATE ADDITI ON FOR EACH FIGURE OF ALLEGED UCHANTI LOOSE PAPER AND BOOKS. R ATHER HE SHOULD HAVE CALCULATED PEAK INVESTMENT/CREDIT BASED ON THOSE LOOSE PAPERS/BOOKS. 23) THAT THE LD. INCOME-TAX OFFICER HAS FURTHER ERR ED IN LAW AS WELL AS INFACT IN CHARGING INTEREST U/S 234-A RS.413322/- AND U/S 234-B RS.4251312/-. III) THAT THE APPELLANT RESERVES RIGHT TO ADD, ALTE R, AMEND OR WITHDRAW ANY GROUND OF APPEAL TILL THE APPEAL IS FINALLY DEC IDED AND DISPOSED OFF. 3. BEFORE ADDRESSING THE ISSUE ON THE MERITS OF THE ISSUES RAISED BY THE ASSESSEE, IT IS IMPERATIVE THAT THE BRIEF FACTS IN RELATION TO DIFFERENT PROCEEDINGS CONDUCTED IN THE CASE OF THE ASSESSEE N EEDS TO BE REFERRED TO. THE ASSESSMENT IN THE CASE WAS FIRST COMPLETED BY THE ASSESSING OFFICER ON 13.3.1995 AND THE MATTER TRAVELED UP TO THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE FIRST ROUND, WHICH IN TUR N SET ASIDE THE MATTER TO THE TRIBUNAL. THE TRIBUNAL DECIDED THE ISSUE OF JURISDICTION IN FAVOUR OF THE ASSESSEE WHICH WAS REVERSED BY THE HON'BLE P UNJAB & HARYANA HIGH COURT AND SLP FILED BY THE ASSESSEE WAS REJECT ED BY THE HON'BLE SUPREME COURT. THE DATE-WISE LIST OF DIFFERENT ORD ERS PASSED IN THE CASE OF THE ASSESSEE ARE TABULATED HEREUNDER, COPIES OF WHICH HAVE BEEN FILED BY THE ASSESSEE ON RECORD WHICH ARE AS UNDER: DATE NATURE OF ORDER PASSED PAGE NO. FIRST ROUND 13.3.1995 COPY OF ORDER OF ASSESSMENT 1-17 U/S 143(3) OF THE ACT, 1961 3 10.10.1995 COPY OF ORDER OF CIT(A) 18-19 --ASSESSMENT SET ASIDE TO A.O. 31.5.2002 COPY OF ORDER OF TRIBUNAL 20-21 -- ON JURISDICTION 23.2.2004 COPY OF ORDER OF ASSESSMENT 22-41 U/S 143(3) OF THE ACT,1961 8.2.2005 COPY OF ORDER OF HON'BLE HIGH COURT 42-4 7 OF PUNJAB & HARYANA AT CHANDIGARH -- SET ASIDE TO TRIBUNAL 30.12.2005 COPY OF ORDER OF CIT(A) 48-49 -- APPEAL INFRACTUOUS 9.10.2006 COPY OF ORDER OF TRIBUNAL 50-54 -- DISMISSED THE GROUND RELATING TO JURISDICTION OF THE A.O. 7.12.2007 COPY OF ORDER OF HON'BLE HIGH COURT 55-6 5 OF PUNJAB & HARYANA AT CHANDIGARH -- UPHELD ORDER OF TRIBUNAL -- HON'BLE SUPREME COURT DISMISSED SLP FILED BY THE ASSESSEE SECOND ROUND: AS A RESULT OF ORDER OF CIT(A) DATED 10.10.1995 24.3.1998 COPY OF ORDER OF ASSESSMENT 66-95 U/S 143(3) OF THE ACT, 1961 2.11.1998 COPY OF ORDER OF CIT (A) 96-101 29.1.2004 COPY OF ORDER OF HON'BLE TRIBUNAL 102 -- DISMISSING THE APPEAL IN LIMINE 4. THE TRIBUNAL THEREAFTER RECALLED THE ORDER DATED 29.1.2004 VIDE ORDER PASSED IN MA NO.7/CHANDI/2007 ORDER DATED 4 .9.2009 AND POSTED THE APPEAL FOR HEARING AFRESH. THE PRESENT APPEAL IS CONSEQUENTLY FIXED FOR HEARING. THE LEARNED A.R. FOR THE ASSESSEE AT THE OUTSET POINTED OUT THAT GROUND NO.I RAISED IN THE PRESENT APPEAL IS GE NERAL IN NATURE. THUS, GROUND NO.I IS DISMISSED. 5. THE NEXT PLEA OF THE LEARNED A.R. FOR THE ASSESS EE THAT GROUND NO.II(1) AGAINST THE JURISDICTION OF THE ASSESSING OFFICER IN PASSING THE ORDER IS NOT PRESSED IN VIEW OF THE ISSUE BEING DEC IDED BY THE HON'BLE 4 SUPREME COURT IN ASSESSEES OWN CASE. THUS GROUND NO.II(1) IS ALSO DISMISSED. 6. THE ISSUE IN GROUND NO.II(2) IS THAT THE ASSESSE E IS AGGRIEVED BY THE ORDER BEING PASSED UNDER SECTION 143(3) OF THE ACT AND NOT BEING COMPLETED UNDER SECTION 144 OF THE ACT. THE LEARNE D A.R. FOR THE ASSESSEE POINTED OUT THAT ONCE SHOW CAUSE NOTICE IS SUED BY THE ASSESSING OFFICER WAS NON COMPLIED WITH, THEN THE ASSESSMENT BEING COMPLETED EX- PARTE, SHOULD HAVE BEEN COMPLETED UNDER SECTION 144 OF THE ACT. 7. THE LEARNED D.R. FOR THE REVENUE REFERRED TO THE OBSERVATIONS OF THE CIT (APPEALS) IN PARA 3.2 AND POINTED OUT THAT THE ASSESSEE FAILED TO FILE COMPLETE INFORMATION BEFORE THE ASSESSING OFFI CER DESPITE SEVERAL OPPORTUNITIES AND THEREAFTER THE CIT (APPEALS) ALSO ALLOWED OPPORTUNITY TO THE ASSESSEE TO FURNISH NECESSARY EVIDENCES AS I S EVIDENT FROM PARA 4 AT PAGE 5 OF THE APPELLATE ORDER BUT THE ASSESSEE F AILED TO GIVE ANY EXPLANATION IN THIS REGARD. IT WAS PUT TO THE LEAR NED A.R. FOR THE ASSESSEE DURING THE COURSE OF HEARING WHAT EXPLANAT ION WAS OFFERED TO THE CIT (APPEALS) AND THE LEARNED A.R. FOR THE ASSE SSEE REPLIED IN NEGATIVE AND ADMITTED THAT NO EXPLANATION WAS OFFER ED BEFORE THE CIT (APPEALS). THE LEARNED D.R. FOR THE REVENUE THUS P OINTED OUT THAT THE ORDER BEING PASSED UNDER SECTION 144 OR 143(3) OF T HE ACT WAS PREROGATIVE OF THE ASSESSING OFFICER AND EVEN UNDER SECTION 143(3) OF THE ACT, AN ORDER OF BEST JUDGMENT COULD BE PASSED. THE NEXT PLEA OF THE LEARNED D.R. FOR THE REVENUE WAS THAT IN VIEW OF TH E PROVISIONS OF SECTION 292B OF THE ACT, THE LEARNED A.R. FOR THE A SSESSEE COULD NOT RAISE THE PLEA DURING THE PRESENT PROCEEDINGS. THE LEARNED D.R. FOR THE REVENUE FURTHER SUBMITTED THAT EVEN THE CIT (APPEAL S) GAVE FURTHER OPPORTUNITY TO THE ASSESSEE WHICH WAS NOT AVAILED B Y THE LEARNED A.R. FOR THE ASSESSEE. 5 8. THE ASSESSEE VIDE GROUND NO.II (3) IS ALSO AGGRI EVED BY THE ORDER OF THE ASSESSING OFFICER UNDER WHICH THE ASSESSING OFFICER FAILED TO SUPPLY THE COPIES OF THE ALLEGED PAPERS/BOOKS ON TH E BASIS OF WHICH THE ASSESSMENT WAS COMPLETED. THE LEARNED A.R. FOR THE ASSESSEE STRESSED THAT NO DOCUMENTS WERE SUPPLIED TO THE ASSESSEE THO UGH REPEATED REQUESTS WERE MADE BY THE ASSESSEE IN THIS REGARD. 9. THE LEARNED D.R. FOR THE REVENUE REFERRED TO THE OBSERVATIONS OF THE ASSESSING OFFICER AT PAGE 5 OF THE ASSESSMENT O RDER AND FURTHER POINTED OUT THAT THE PRESENT CASE WAS A CASE OF SUR VEY AND THE DOCUMENTS WERE ALREADY IN POSSESSION OF THE ASSESSEE AND THER E WAS NO MERIT IN THE PRESENT PLEA OF THE ASSESSEE. 10. WE PROCEED TO ADJUDICATE THE GROUND NO.II(2) AN D II(3) RAISED BY THE ASSESSEE AS THE TWO ARE INTERRELATED. SURVEY O PERATIONS WERE CARRIED OUT AT THE BUSINESS PREMISES OF THE ASSESSEE ON 3.2 .1992 UNDER SECTION 133A OF THE ACT. DURING THE COURSE OF SURVEY FOUR DOCUMENTS/BOOKS MARKED AS D-1 AND D-4 WERE FOUND AND IDENTIFIED AN D COPIES OF ALL THE DOCUMENTS WERE TAKEN IN CUSTODY BY THE SURVEY TEAM. THE CASE OF THE ASSESSEE WAS FIXED ON VARIOUS DATES OF HEARING BETW EEN 14.6.1993 TO 10.3.1995 BUT THE ASSESSEE FAILED TO COOPERATE AND ASSESSMENT WAS MADE BY THE ASSESSING OFFICER OBSERVING AS UNDER: IT IS ABUNDANTLY CLEAR THAT THE ASSESSEE IS IN NO MOOD TO CO-OPERATIVE WITH THE DEPARTMENT AND THE REASONS FOR THE SAME ARE NOT FAR TO SEEK. WITH THE IMPOUNDING OF PARALLEL SET OF ACCOUNT BOOKS (COPIES DULY SIGNED BY THE ASSESSEE) BY THE DEPTT. AND THEN ISSUING OF DETAILED NOTICES POINTING OUT VARIOUS DISCREPANCIES REQUIRING CLARIFICATION AND EVIDENCE ON VARIOUS ISSUES, BEING UNABLE TO FILE ANY SATISFACTO RY REPLY, THE ASSESSEE HAS CHOSEN THIS WAY OF NON-CO- OPERATION WITH THE DEPTT. THE PHOTO COPIES OF THE REQUISITE DOCUMENTS HAD ALREADY BEEN GIVEN TO THE ASSESSEE AND ORIGINAL OF THE PARALLEL (UCHANTI) SET OF ACCOUNTS IS ALSO WITH HIM WHICH DESPITE REQUIRING T O PRODUCE THE SAME HAVE NEVER BEEN PRODUCED BEFORE TH E 6 DEPTT. EVEN WHEN THE ASSESSEE IS AVAILABLE AT SIRSA, HE REFUSES TO ACCEPT THE NOTICES. REFUSAL T ENT- AMOUNTS TO GOOD AND VALID SERVICE IN THE EYES OF LA W. HOWEVER, THERE WAS NO COMPLIANCE ON THE DATES FIXED . ALL THE ABOVE FACTS LEAD TO AN IRRESISTIBLE CONCLUS ION THAT THE ASSESSEE IS AVOIDING THE FINALIZATION OF ASSESSMENT PROCEEDINGS FOR THE SIMPLE REASON THAT H E HAS GOT NO EXPLANATION WHAT-SO-EVER TO THE TRANSACT IONS RECORDED IN THE DOCUMENTS NO.D-1 TO D-4 REFERRED TO ABOVE. UNDER THE ABOVE CIRCUMSTANCES, I AM LEFT WI TH NO CHOICE BUT TO COMPLETE THE ASSESSMENT ON MERITS AS PER LAW AND MATERIAL AVAILABLE ON RECORD (UNDERLINE PROVIDED BY US) 11. THE APPEAL OF THE ASSESSEE WAS SET ASIDE BY THE CIT (APPEALS) VIDE ORDER DATED 10.10.1995 AND THE ASSESSING OFFICER WA S DIRECTED TO ALLOW ADEQUATE OPPORTUNITY TO THE ASSESSEE TO REPRESENT I TS CASE AND ALSO TO SUPPLY THE COPIES OF THE DOCUMENTS, WHERE NECESSARY . FURTHER APPELLATE PROCEEDINGS WERE CARRIED OUT BEFORE THE TRIBUNAL, H ON'BLE PUNJAB & HARYANA HIGH COURT AND HON'BLE SUPREME COURT OF IND IA TO DECIDE THE ISSUE OF JURISDICTION OF THE ASSESSING OFFICER. TH E HON'BLE PUNJAB & HARYANA HIGH COURT VIDE JUDGMENT DATED 7.12.2007 DE CIDED THE ISSUE OF JURISDICTION IN FAVOUR OF THE REVENUE AND THE APPEA L OF THE ASSESSEE WAS DISMISSED. THE COPY OF THE ORDER OF THE HON'BLE PU NJAB & HARYANA HIGH COURT IS PLACED AT PAGES 55 TO 65 OF THE PAPER BOOK . THE HON'BLE SUPREME COURT OF INDIA, AS ADMITTED BY THE LEARNED A.R. FOR THE ASSESSEE IN THE INDEX TO PAPER BOOK, REJECTED THE SLP FILED BY THE ASSESSEE AND CONSEQUENTLY IT WAS HELD THAT THE ASSESSING OFFICER HAD THE JURISDICTION TO FRAME ASSESSMENT. 12. NOW COMING TO THE SECOND ROUND OF PROCEEDINGS B EFORE THE ASSESSING OFFICER AS A RESULT OF ORDER OF THE CIT ( APPEALS) DATED 10.10.1995 IN SETTING ASIDE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER. NOTICE UNDER SECTION 143(2) OF THE ACT WA S ISSUED TO THE ASSESSEE ON VARIOUS DATES WHICH WERE ATTENDED BY TH E ASSESSEE BUT ADJOURNMENT WAS SOUGHT ON ONE PRETEXT OR THE OTHER. THE ASSESSEE ALSO 7 REQUESTED FOR SUPPLY OF COPIES OF MATERIAL AND ALSO TRANSFER OF HIS CASE TO DELHI. REGARDING THE SUPPLY OF PHOTOCOPIES OF THE DOCUMENTS THE ASSESSING OFFICER VIDE OFFICE LETTER DATED 23.9.199 7 INFORMED THE ASSESSEE THAT THE SAME COULD BE OBTAINED ON ANY WOR KING DAY BETWEEN 10 AM TO 5 PM UPTO 30.10.1997. THE SAID LETTER COULD NOT BE SERVED THROUGH PROCESS SERVER OR INSPECTOR OF THE INCOME TAX AT TH E GIVEN ADDRESS OF THE ASSESSEE AND THE NOTICE WAS AGAIN SENT THROUGH REGI STERED POST TO THE ADDRESS OF THE ASSESSEE AT BOTH SIRSA AND DELHI. A S THE ASSESSEE FAILED TO APPEAR, ANOTHER NOTICE WAS SENT VIDE REGISTERED POS T ON 6.11.1997 AND ANOTHER QUESTIONNAIRE DATED 27.2.1998 WAS ISSUED TO THE ASSESSEE. THE ASSESSEE WAS ALSO GIVEN ONE MORE OPPORTUNITY TO TAK E THE PHOTOCOPIES IMMEDIATELY REQUIRED BY IT AND THE CASE WAS FIXED F OR HEARING ON 10.3.1998. HOWEVER, THE ASSESSEE FAILED TO APPEAR ON ANY OF THE DATES AND NO COMMUNICATION WHATSOEVER WAS RECEIVED FROM T HE ASSESSEE. DESPITE NON-COOPERATIVE ATTITUDE OF THE ASSESSEE, A NOTHER OPPORTUNITY WAS ALLOWED TO THE ASSESSEE AND NOTICES UNDER SECTI ON 142(1)/143(2 OF THE ACT WERE ISSUED TO THE ASSESSEE ON 11.3.1998, W HICH WERE SENT BY REGISTERED POST TO SIRSA ADDRESS OF THE ASSESSEE. THE ASSESSEE WAS ALSO SHOW CAUSED THAT IN CASE HE DID NOT ATTEND THE OFFI CE ON SAID DATE THE ASSESSMENT WOULD BE COMPLETED. ON THE APPOINTED DA TE OF HEARING I.E. 23.3.1998 NONE ATTENDED THE OFFICE OF THE ASSESSING OFFICER, HOWEVER, A LETTER WAS RECEIVED FROM THE ASSESSEE BY REGISTERED POST WHICH IS REPRODUCED AT PAGE 4 OF THE ASSESSMENT ORDER. IN T HE SAID LETTER THE ASSESSEE ADMITTED THAT IT HAD RECEIVED LETTER DATED 6.8.1998 WHICH WAS DULY REPLIED TO BY HIM AND THEREAFTER TWO MORE LETT ERS WERE RECEIVED LATE I.E. AFTER THE DATE FIXED IN THOSE LETTERS. THE A SSESSEE FURTHER CLAIMED THAT IN ORDER TO COMPLY TO THE SAID LETTERS HE DID COME TO THE OFFICE OF THE ASSESSING OFFICER, WHO WAS NOT AVAILABLE IN THE OFFICE ON THE SAID DATE/S. 8 13. THE SECOND GRIEVANCE OF THE ASSESSEE WAS THAT T HE DEPARTMENT WAS NOT COOPERATIVE IN NOT ASSESSING HIM AT THE PLACE H E WAS PRESENTLY RESIDING. A REQUEST FOR ADJOURNMENT WAS MADE ALONG WITH ANOTHER REQUEST FOR TAKING COPIES OF THE DOCUMENTS. THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAD FAILED TO PRODUCE ANY EVIDENCE TO ESTA BLISH ITS CASE OF COMING TO THE OFFICE OF ASSESSING OFFICER ON ANY DA TES. THE OFFICE RECORDS WERE ALSO PERUSED BY THE ASSESSING OFFICER WHICH DID NOT SUGGEST THAT THE ASSESSEE HAD EVER COME TO THE INCO ME TAX OFFICE. THE ASSESSEE HAD ALSO NOT MADE ANY ENTRY IN THE PESHI R EGISTER. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE HAD INTENTIONALLY AVOIDED ATTENDING THE INCOME TAX OFFICE THROUGH OUT THE ASSESSMENT PROCEEDINGS. IN RESPECT OF DEMAND FOR COPIES OF DO CUMENTS, THE ASSESSING OFFICER NOTED THAT THE MOST STARTLING FACT OF THIS CASE IS THAT THE ASSESSEE HAS DEMANDED THE PHOTOCOPIES OF THE DO CUMENTS WHICH ARE ALREADY IN HIS POSSESSION . THE ASSESSING OFFICER FURTHER OBSERVED THAT NUMEROUS OPPORTUNITIES WERE PROVIDED TO THE ASSESSE E BOTH DURING THE ORIGINAL ASSESSMENT PROCEEDINGS AND ALSO DURING THE SET ASIDE PROCEEDINGS, BUT THE ASSESSEE FAILED TO COMPLY WITH THE STATUTORY NOTICES AND CONSEQUENTLY THE ASSESSMENT WAS FINALIZED ON TH E BASIS OF THE MATERIAL AVAILABLE IN THE POSSESSION OF THE DEPARTM ENT. THE ASSESSING OFFICER THEREAFTER NOTED THE CONTENTS OF EACH OF TH E DOCUMENTS SEIZED DURING THE COURSE OF SURVEY AND ALSO NOTED THE FACT THAT THE ASSESSEE HAD FAILED TO EXPLAIN THE SOURCE AND GENUINENESS OF VAR IOUS ACCOUNTS APPEARING IN THE LEDGER AND THE SAME WERE NOT APPEA RING AND TALLIED WITH THE ENTRIES RECORDED IN THE REGULAR BOOKS OF ACCOUN T. IN VIEW THEREOF, ADDITION OF RS.30,05,592/- WAS MADE UNDER SECTION 6 8 OF THE ACT. ANOTHER ADDITION WAS MADE OF RS.85,604/- AND FURTHE R ADDITIONS WERE MADE ON ACCOUNT OF VARIOUS ENTRIES IN THE SECOND SE T OF BOOKS OF ACCOUNT AND DOCUMENTS SEIZED DURING THE COURSE OF SURVEY TO TALING 9 RS.22,41,229/-. THE ASSESSING OFFICER HAS TABULATE D VARIOUS LISTS OF ADDITIONS MADE AND HAD ANNEXED THE ANNEXURES TO THE ASSESSMENT ORDER. 14. THE CIT (APPEALS) NOTED THAT DURING THE COURSE OF SURVEY PROCEEDINGS CONDUCTED AT THE BUSINESS PREMISES OF T HE ASSESSEE ON 3.2.1992 A CASH BOOK MARKED D1 RELATING TO THE PERIOD 1.4.91 TO 1.2.92, LEDGERS MARKED D2 AND D3 AND LOOSE PAPERS MARKED D4 WERE FOUND ON WHICH MARKS OF IDENTIFICATION WERE PUT BY THE DEPAR TMENTAL OFFICERS CONDUCTING THE SURVEY. PHOTOCOPIES OF THESE DOCUME NTS WERE OBTAINED FROM THE APPELLANT AND ON COMPARISON WITH THE REGUL AR BOOKS OF ACCOUNT, IT WAS FOUND THAT THE APPELLANT HAD BEEN MAKING INV ESTMENTS, ADVANCING LOANS AND INCURRING THE EXPENSES ETC. WHICH WERE NO T FOUND RECORDED IN THE REGULAR BOOKS . THE ASSESSEE HAD FURNISHED RETURN OF LOSS DECLA RING NET LOSS OF RS.15,700/- AGAINST WHICH ASSESSMENT WA S COMPLETED UNDER SECTION 143(3) OF THE ACT AT RS.43,16,730/-. THE C IT (APPEALS) NOTED VARIOUS OPPORTUNITIES BEING GIVEN BY THE ASSESSING OFFICER AND NON- COOPERATIVE ATTITUDE OF THE ASSESSEE IN NOT FURNISH ING EXPLANATION REGARDING THE ENTRIES IN THE INCRIMINATING DOCUMENT S IN THE SECOND SET OF BOOKS OF ACCOUNT FOUND DURING THE COURSE OF SURVEY, EXCEPT THE ATTEMPTS OF THE ASSESSEE TO GET HIS CASE TO BE TRANSFERRED T O DELHI ON ONE PRETEXT OR THE OTHER. THE CIT (APPEALS) ALSO NOTED THAT IN THE SET ASIDE PROCEEDINGS, THE ASSESSING OFFICER FOR FRAMING FRES H ASSESSMENT HAD ALLOWED VARIOUS OPPORTUNITIES TO THE ASSESSEE. HOW EVER, DESPITE REPEATED OPPORTUNITIES, THE ASSESSEE FAILED TO FURN ISH COMPLETE INFORMATION BEFORE THE ASSESSING OFFICER. THE CIT (APPEALS) SUMMARIZED THE CONTENTS OF WRITTEN SUBMISSIONS FILE D BY THE ASSESSEE DURING THE APPELLATE PROCEEDINGS AND NOTED AS UNDER : A) THAT THE DOCUMENTS/BOOKS FOUND DURING THE SURVE Y DID NOT BELONG TO HIM AND WERE MERELY LYING IN THE FRONT ROOM OF HIS SHOP; 10 B) THAT IN ANY CASE, COPIES OF THE DOCUMENTS/BOOKS FOUND DURING THE SURVEY (ORIGINALS OF WHICH WERE, ADMITTEDLY, IN HIS POSSESSION) SHOULD HAVE BEEN SUPPLIED TO HIM BY THE A.O. DURING THE COURSE OF ASSESSMENT PROCEEDINGS; C) THAT PEAK INVESTMENT HAS BEEN CALCULATED BY TAKING THE ACCOUNTS OF INDIVIDUAL CREDITORS WHEREAS THE SAME SHOULD HAVE BEEN CALCULATED BY TAKING ALL THE CREDITORS TOGETHER AND, D) THAT ADDITIONS HAVE BEEN MADE ON THE BASIS OF CONJECTURES, SURMISES AND WRONG INTERPRETATION OF THE DOCUMENTS/BOOKS FOUND DURING THE SURVEY. 15. THE CIT (APPEALS) FURTHER ALLOWED ANOTHER OPPOR TUNITY TO THE ASSESSEE TO MAKE FACTUAL AND LEGAL SUBMISSIONS, REGARDING TH E ENTRIES FOUND IN THE DOCUMENTS NUMBERED D1 TO D4 AND THE MA TTER WAS ADJOURNED TO 13.10.98. THE APPELLANT APPEARED IN PERSON ON T HAT DATE AND STATED THAT HE HAD NOTHING FURTHER TO ADD AND THE APPEAL M AY BE DETERMINED ON CONSIDERATION OF THE WRITTEN SUBMISSIONS FURNISHED AT THE TIME OF EARLIER HEARING . THE CIT (APPEALS) VIDE PARA 4 HELD AS UNDER: 4. I HAVE CAREFULLY CONSIDERED THE FACTS ON RECORD AND THE CONSPECTUS OF THIS MATTER. TO MY MIND, THE CONCLUSION IS INESCAPABLE THAT THE APPELLANT HAS NO EXPLANATION TO OFFER REGARDING THE ENTRIES FOUND ON THE DOCUMENTS NUMBERED D1 TO D4 IDENTIFIED DURING THE SURVEY. I GET THE UNMISTAKABLE IMPRESSION THAT THE APPELLANTS INTEREST SEEMS TO BE LIMITED TO GETTING THE MATTER SETASIDE AGAIN AND AGAIN, ON ONE FLIMSY PRET EXT OF THE OTHER. THE APPELLANT WAS SPECIFICALLY INFOR MED BY ME, THAT IF THE BENEFIT OF TELESCOPING WAS BEING CLAIMED BY HIM IN RESPECT OF THE PEAK INVESTMENTS, THEN ONUS FOR PROVING THE NEXUS AND GIVING THE CALCULATI ONS LAY SQUARELY UPON HIM. HOWEVER, IN THE BRIEF GENER AL SUBMISSIONS MADE ON 18.9.98, NO CONCRETE EXPLANATIO N WAS FORTH COMING FROM THE APPELLANT . I HAVE CAREFULLY PERUSED THE IMPUGNED ORDER AND FIND THAT IT SUFFERS FROM NO INFIRMITY WHICH WOULD NEED INTERFERENCE AT MY HAND.(UNDERLINE PROVIDED BY US) 16. THE ASSESSEE IS IN APPEAL AGAINST THE ABOVE SAI D ORDERS OF BOTH THE ASSESSING OFFICER AND THE CIT (APPEALS) ALLEGING TH AT THE ASSESSING OFFICER HAD FAILED TO SUPPLY THE COPIES OF THE PAPE RS/DOCUMENTS TO THE 11 ASSESSEE AND ALSO COMPLETED THE ASSESSMENT UNDER SE CTION 143(3) OF THE ACT AS AGAINST UNDER SECTION 144 OF THE ACT. 17. IN THE TOTALITY OF THE FACTS AND CIRCUMSTANCES AS NOTED BY US IN THE PARAS HEREINABOVE, IT IS PURELY A CASE WHERE THE AS SESSEE HAD TRIED TO FIND ONE EXCUSE OR THE OTHER FOR NOT COMPLYING WITH THE NOTICES/SHOW CAUSE NOTICE/EXPLANATION SOUGHT BY THE AUTHORITIES BELOW. THE PLEA OF THE ASSESSEE THAT THE ASSESSMENT WAS COMPLETED WITH OUT CONFRONTING HIM WITH THE DOCUMENTS OR WITHOUT SUPPLYING HIM THE COP IES OF THE DOCUMENTS RELIED UPON ARE ILL-FOUNDED. THIS IS THE CASE OF SURVEY, WHERE THE DOCUMENTS FOUND FROM THE POSSESSION OF THE ASSE SSEE WERE ONLY IDENTIFIED BY PUTTING MARKS ON THE SAID DOCUMENTS A ND COPIES OF THE SAME WERE TAKEN BY THE SURVEY TEAM AND ORIGINAL WERE AVA ILABLE WITH THE ASSESSEE. DESPITE SHOW CAUSE NOTICES ISSUED TO HIM , THERE WAS NO COMPLIANCE AND ORIGINALS OF THE SAID IDENTIFIED DOC UMENTS/BOOKS WERE NOT PRODUCED BEFORE THE ASSESSING OFFICER IN THE OR IGINAL AND SET ASIDE PROCEEDINGS. THE PLEA OF THE ASSESSEE THAT THE ALL EGED DOCUMENTS WERE NEVER CONFRONTED TO HIM AND/OR PHOTO COPIES OF THE SAME NOT PROVIDED ARE BASELESS, AS THE IDENTIFIED DOCUMENTS AND THE A LLEGED PARALLEL BOOKS OF ACCOUNT FOUND DURING SURVEY WERE AT VARIANCE WIT H THE BOOKS OF ACCOUNT, ON THE BASIS OF WHICH RETURN OF INCOME WAS FILED AND WHICH WERE ALWAYS AVAILABLE WITH HIM. DURING SURVEY, THE SE DOCUMENTS/BOOKS WERE FOUND AND IDENTIFIED. THIS IS CASE OF SURVEY AND NOT SEARCH AND SEIZURE OPERATION WHERE DOCUMENTS AND BOOKS OF ACCO UNT FOUND ARE IMPOUNDED. THERE IS NO RECOURSE TO IMPOUNDING OF D OCUMENTS/BOOKS DURING THE SURVEY. DESPITE THE SAME, THE ASSESSING OFFICER GAVE NOTICE TO THE ASSESSEE TIME AND AGAIN TO COLLECT THE PHOTO COPIES OF THE SAID DOCUMENTS, WRE NOT COMPLIED WITH BY THE ASSESSEE, T HOUGH HE CLAIMS TO HAVE RECEIVED THE SAID NOTICES BELATEDLY. SUCH DEF AULTERS CANNOT TAKE 12 SHELTER UNDER THE PROVISIONS OF NON-ALLOWANCE OF OP PORTUNITY OR NON- CONFRONTATION OF THE ALLEGED DOCUMENTS. THE ASSESS EE HAS TIME AND AGAIN FAILED TO COMPLY WITH VARIOUS OPPORTUNITIES BEING A LLOWED AND IN SUCH CASES WHERE THE ASSESSEE IS FINDING ONE EXCUSE OR T HE OTHER FOR NON- COMPLIANCE BEFORE THE AUTHORITIES BELOW, WE FIND NO MERIT IN THE PLEAS RAISED BY THE ASSESSEE IN THE PRESENT CASE. THE GR OUND OF APPEAL NO.II(3) IS THUS DISMISSED. 18. NOW COMING TO THE ISSUE OF COMPLETION OF ASSESS MENT UNDER SECTION 143(3) OF THE ACT. THE GRIEVANCE OF THE ASSESSEE I N THIS REGARD IS THAT AS BEST JUDGMENT ASSESSMENT WAS MADE IN THE CASE OF AS SESSEE, THE SAME SHOULD HAVE BEEN COMPLETED UNDER SECTION 144 OF THE ACT AND NOT UNDER SECTION 143(3) OF THE ACT AND HENCE THE ASSESSMENT SO COMPLETED NEEDS TO BE QUASHED. 19. SECTION 143 READS AS UNDER: 143. [(1) WHERE A RETURN HAS BEEN MADE UNDER SECTION 139 , OR IN RESPONSE TO A NOTICE UNDER SUB-SECTION (1) OF SECTION 142 , SUCH RETURN SHALL BE PROCESSED IN THE FOLLOWING MANNER, NAMELY: (A) THE TOTAL INCOME OR LOSS SHALL BE COMPUTED AFT ER MAKING THE FOLLOWING ADJUSTMENTS, NAMELY: (I)ANY ARITHMETICAL ERROR IN THE RETURN; OR (II)AN INCORRECT CLAIM, IF SUCH INCORRECT CLAIM IS APPARENT FROM ANY INFORMATION IN THE RETURN; (B) THE TAX AND INTEREST, IF ANY, SHALL BE COMPUTE D ON THE BASIS OF THE TOTAL INCOME COMPUTED UNDER CLAUSE (A); (C) THE SUM PAYABLE BY, OR THE AMOUNT OF REFUND DU E TO, THE ASSESSEE SHALL BE DETERMINED AFTER ADJUSTMENT OF THE TAX AND INTEREST , IF ANY, COMPUTED UNDER CLAUSE (B) BY ANY TAX DEDUCTED AT SOURCE, ANY TAX C OLLECTED AT SOURCE, ANY ADVANCE TAX PAID, ANY RELIEF ALLOWABLE UNDER AN AGR EEMENT UNDER SECTION 90 OR SECTION 90A , OR ANY RELIEF ALLOWABLE UNDER SECTION 91 , ANY REBATE ALLOWABLE UNDER PART A OF CHAPTER VIII, ANY TAX PAID ON SELF- ASSESSMENT AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST; (D) AN INTIMATION SHALL BE PREPARED OR GENERATED A ND SENT TO THE ASSESSEE SPECIFYING THE SUM DETERMINED TO BE PAYABLE BY, OR THE AMOUNT OF REFUND DUE TO, THE ASSESSEE UNDER CLAUSE (C); AND (E) THE AMOUNT OF REFUND DUE TO THE ASSESSEE IN PU RSUANCE OF THE DETERMINATION UNDER CLAUSE (C) SHALL BE GRANTED TO THE ASSESSEE: PROVIDED THAT AN INTIMATION SHALL ALSO BE SENT TO THE ASSESS EE IN A CASE WHERE THE LOSS DECLARED IN THE RETURN BY THE ASSESSEE IS ADJU STED BUT NO TAX OR INTEREST IS PAYABLE BY, OR NO REFUND IS DUE TO, HIM: 13 PROVIDED FURTHER THAT NO INTIMATION UNDER THIS SUB-SECTION SHALL BE SENT AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YE AR IN WHICH THE RETURN IS MADE. EXPLANATION.FOR THE PURPOSES OF THIS SUB-SECTION, (A) AN INCORRECT CLAIM APPARENT FROM ANY INFORMAT ION IN THE RETURN SHALL MEAN A CLAIM, ON THE BASIS OF AN ENTRY, IN THE RETU RN, (I)OF AN ITEM, WHICH IS INCONSISTENT WITH ANOTHER ENTRY OF THE SAME OR SOME OTHER ITEM IN SUCH RETURN; (II)IN RESPECT OF WHICH THE INFORMATION REQUIRED T O BE FURNISHED UNDER THIS ACT TO SUBSTANTIATE SUCH ENTRY HAS NOT BEEN SO FURNISHED; OR (III)IN RESPECT OF A DEDUCTION, WHERE SUCH DEDUCTI ON EXCEEDS SPECIFIED STATUTORY LIMIT WHICH MAY HAVE BEEN EXPRESSED AS MONETARY AMO UNT OR PERCENTAGE OR RATIO OR FRACTION; (B) THE ACKNOWLEDGEMENT OF THE RETURN SHALL BE DEE MED TO BE THE INTIMATION IN A CASE WHERE NO SUM IS PAYABLE BY, OR REFUNDABLE TO, THE ASSESSEE UNDER CLAUSE (C), AND WHERE NO ADJUSTMENT HAS BEEN MADE U NDER CLAUSE (A). (1A) FOR THE PURPOSES OF PROCESSING OF RETURNS UNDE R SUB-SECTION (1), THE BOARD MAY MAKE A SCHEME FOR CENTRALISED PROCESSING OF RET URNS WITH A VIEW TO EXPEDITIOUSLY DETERMINING THE TAX PAYABLE BY, OR TH E REFUND DUE TO, THE ASSESSEE AS REQUIRED UNDER THE SAID SUB-SECTION. (1B) SAVE AS OTHERWISE EXPRESSLY PROVIDED, FOR THE PURPOSE OF GIVING EFFECT TO THE SCHEME MADE UNDER SUB-SECTION (1A), THE CENTRAL GOV ERNMENT MAY, BY NOTIFICATION IN THE OFFICIAL GAZETTE, DIRECT THAT A NY OF THE PROVISIONS OF THIS ACT RELATING TO PROCESSING OF RETURNS SHALL NOT APPLY O R SHALL APPLY WITH SUCH EXCEPTIONS, MODIFICATIONS AND ADAPTATIONS AS MAY BE SPECIFIED IN THAT NOTIFICATION; SO, HOWEVER, THAT NO DIRECTION SHALL BE ISSUED AFTER THE 31ST DAY OF MARCH, [ 2010 ] . (1C) EVERY NOTIFICATION ISSUED UNDER SUB-SECTION (1 B), ALONG WITH THE SCHEME MADE UNDER SUB-SECTION (1A), SHALL, AS SOON AS MAY BE AFTER THE NOTIFICATION IS ISSUED, BE LAID BEFORE EACH HOUSE OF PARLIAMENT.] [(2) WHERE A RETURN HAS BEEN FURNISHED UNDER SECTION 139 , OR IN RESPONSE TO A NOTICE UNDER SUB-SECTION (1) OF SECTION 142 , THE ASSESSING OFFICER SHALL, (I) WHERE HE HAS REASON TO BELIEVE THAT ANY CLAIM OF LOSS, EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF MADE IN THE RETURN I S INADMISSIBLE, SERVE ON THE ASSESSEE A NOTICE SPECIFYING PARTICULARS OF SUCH CL AIM OF LOSS, EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF AND REQUIRE HIM, ON A DATE TO BE SPECIFIED THEREIN TO PRODUCE, OR CAUSE TO BE PRODUCED, ANY EVIDENCE O R PARTICULARS SPECIFIED THEREIN OR ON WHICH THE ASSESSEE MAY RELY, IN SUPPO RT OF SUCH CLAIM: [ PROVIDED THAT NO NOTICE UNDER THIS CLAUSE SHALL BE SERVED ON THE ASSESSEE ON OR AFTER THE 1ST DAY OF JUNE, 2003;] (II) NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE (I), IF HE CONSIDERS IT NECESSARY OR EXPEDIENT TO ENSURE THAT THE ASSESSEE HAS NOT UNDERSTATED THE INCOME OR HAS NOT COMPUTED EXCESSIVE LOSS OR HAS NO T UNDER-PAID THE TAX IN ANY MANNER, SERVE ON THE ASSESSEE A NOTICE REQUIRING HI M, ON A DATE TO BE SPECIFIED THEREIN, EITHER TO ATTEND HIS OFFICE OR TO PRODUCE, OR CAUSE TO BE PRODUCED, ANY EVIDENCE ON WHICH THE ASSESSEE MAY RELY IN SUPPORT OF THE RETURN: [ PROVIDED THAT NO NOTICE UNDER CLAUSE (II) SHALL BE SERVED O N THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE FINANC IAL YEAR IN WHICH THE RETURN IS FURNISHED.]] [(3) ON THE DAY SPECIFIED IN THE NOTICE, (I) ISSUED UNDER CLAUSE (I) OF SUB-SECTION (2), O R AS SOON AFTERWARDS AS MAY BE, AFTER HEARING SUCH EVIDENCE AND AFTER TAKING IN TO ACCOUNT SUCH PARTICULARS AS THE ASSESSEE MAY PRODUCE, THE ASSESSING OFFICER SHA LL, BY AN ORDER IN WRITING, ALLOW OR REJECT THE CLAIM OR CLAIMS SPECIFIED IN SU CH NOTICE AND MAKE AN 14 ASSESSMENT DETERMINING THE TOTAL INCOME OR LOSS ACC ORDINGLY, AND DETERMINE THE SUM PAYABLE BY THE ASSESSEE ON THE BASIS OF SUCH AS SESSMENT; (II) ISSUED UNDER CLAUSE (II) OF SUB-SECTION (2), OR AS SOON AFTERWARDS AS MAY BE, AFTER HEARING SUCH EVIDENCE AS THE ASSESSEE MAY PRODUCE AND SUCH OTHER EVIDENCE AS THE ASSESSING OFFICER MAY REQUIRE ON SP ECIFIED POINTS, AND AFTER TAKING INTO ACCOUNT ALL RELEVANT MATERIAL WHICH HE HAS GATHERED, THE ASSESSING OFFICER SHALL, BY AN ORDER IN WRITING, MAKE AN ASSE SSMENT OF THE TOTAL INCOME OR LOSS OF THE ASSESSEE, AND DETERMINE THE SUM PAYABLE BY HIM OR REFUND OF ANY AMOUNT DUE TO HIM ON THE BASIS OF SUCH ASSESSMENT:] [ PROVIDED THAT IN THE CASE OF A (A) SCIENTIFIC RESEARCH ASSOCIATION REFERRED TO I N CLAUSE (21) OF SECTION 10 ; (B) NEWS AGENCY REFERRED TO IN CLAUSE (22B) OF SECTION 10 ; (C) ASSOCIATION OR INSTITUTION REFERRED TO IN CLA USE (23A) OF SECTION 10 ; (D) INSTITUTION REFERRED TO IN CLAUSE (23B) OF SECTION 10 ; (E) FUND OR INSTITUTION REFERRED TO IN SUB-CLAUSE (IV) OR TRUST OR INSTITUTION REFERRED TO IN SUB-CLAUSE (V) OR ANY UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION REFERRED TO IN SUB-CLAUSE (VI) OR ANY HOSPITAL OR O THER MEDICAL INSTITUTION REFERRED TO IN SUB-CLAUSE (VIA) OF CLAUSE (23C) OF SECTION 10 , WHICH IS REQUIRED TO FURNISH THE RETURN OF INCOME U NDER SUB-SECTION (4C) OF SECTION 139 , NO ORDER MAKING AN ASSESSMENT OF THE TOTAL INCOME OR LOSS OF SUCH SCIENTIFIC RESEARCH ASSOCIATION, NEWS AGENCY, ASSOC IATION OR INSTITUTION OR FUND OR TRUST OR UNIVERSITY OR OTHER EDUCATIONAL INSTITU TION OR ANY HOSPITAL OR OTHER MEDICAL INSTITUTION, SHALL BE MADE BY THE ASSESSING OFFICER, WITHOUT GIVING EFFECT TO THE PROVISIONS OF SECTION 10 , UNLESS (I) THE ASSESSING OFFICER HAS INTIMATED THE CENTR AL GOVERNMENT OR THE PRESCRIBED AUTHORITY THE CONTRAVENTION OF THE PROVI SIONS OF CLAUSE (21) OR CLAUSE (22B) OR CLAUSE (23A) OR CLAUSE (23B) OR SUB-CLAUSE (IV) OR SUB-CLAUSE (V) OR SUB-CLAUSE (VI) OR SUB-CLAUSE (VIA) OF CLAUSE (23C) OF SECTION 10, AS THE CASE MAY BE, BY SUCH SCIENTIFIC RESEARCH ASSOCIATION, NEWS A GENCY, ASSOCIATION OR INSTITUTION OR FUND OR TRUST OR UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION OR ANY HOSPITAL OR OTHER MEDICAL INSTITUTION, WHERE IN HIS VIEW SUCH CONTRAVENTION HAS TAKEN PLACE; AND (II) THE APPROVAL GRANTED TO SUCH SCIENTIFIC RESE ARCH ASSOCIATION OR OTHER ASSOCIATION [OR FUND OR TRUST] OR INSTITUTION OR UN IVERSITY OR OTHER EDUCATIONAL INSTITUTION OR HOSPITAL OR OTHER MEDICAL INSTITUTIO N HAS BEEN WITHDRAWN OR NOTIFICATION ISSUED IN RESPECT OF SUCH NEWS AGENCY OR FUND OR TRUST OR INSTITUTION HAS BEEN RESCINDED :] [ PROVIDED FURTHER THAT WHERE THE ASSESSING OFFICER IS SATISFIED THAT THE ACTIVITIES OF THE UNIVERSITY, COLLEGE OR OTHER INSTITUTION REF ERRED TO IN CLAUSE (II) AND CLAUSE (III) OF SUB-SECTION (1) OF SECTION 35 ARE NOT BEING CARRIED OUT IN ACCORDANCE WITH ALL OR ANY OF THE CONDITIONS SUBJECT TO WHICH SUCH UNIVERSITY, COLLEGE OR OTHER INSTITUTION WAS APPROVED, HE MAY, AFTER GIVING A RE ASONABLE OPPORTUNITY OF SHOWING CAUSE AGAINST THE PROPOSED WITHDRAWAL TO TH E CONCERNED UNIVERSITY, COLLEGE OR OTHER INSTITUTION, RECOMMEND TO THE CENT RAL GOVERNMENT TO WITHDRAW THE APPROVAL AND THAT GOVERNMENT MAY BY ORDER, WITH DRAW THE APPROVAL AND FORWARD A COPY OF THE ORDER TO THE CONCERNED UNIVER SITY, COLLEGE OR OTHER INSTITUTION AND THE ASSESSING OFFICER.] [(4) WHERE A REGULAR ASSESSMENT UNDER SUB-SECTION (3) OF THIS SECTION OR SECTION 144 IS MADE, (A) ANY TAX OR INTEREST PAID BY THE ASSESSEE UNDER SUB-SECTION (1) SHALL BE DEEMED TO HAVE BEEN PAID TOWARDS SUCH REGULAR ASSES SMENT ; (B) IF NO REFUND IS DUE ON REGULAR ASSESSMENT OR T HE AMOUNT REFUNDED UNDER SUB-SECTION (1) EXCEEDS THE AMOUNT REFUNDABLE ON RE GULAR ASSESSMENT, THE WHOLE 15 OR THE EXCESS AMOUNT SO REFUNDED SHALL BE DEEMED TO BE TAX PAYABLE BY THE ASSESSEE AND THE PROVISIONS OF THIS ACT SHALL APPLY ACCORDINGLY. (5) [OMITTED BY THE FINANCE ACT, 1999, W.E.F. 1-6-1 999.]] 20. SECTION 144 READS AS UNDER: 144. [(1)] IF ANY PERSON (A) FAILS TO MAKE THE RETURN REQUIRED [UNDER SUB-S ECTION (1) OF SECTION 139 ] AND HAS NOT MADE A RETURN OR A REVISED RETURN UNDER SUB-SECTION (4) OR SUB- SECTION (5) OF THAT SECTION, OR (B) FAILS TO COMPLY WITH ALL THE TERMS OF A NOTICE ISSUED UNDER SUB-SECTION (1) OF SECTION 142 [OR FAILS TO COMPLY WITH A DIRECTION ISSUED UNDER SUB-SECTION (2A) OF THAT SECTION], OR (C) HAVING MADE A RETURN, FAILS TO COMPLY WITH ALL THE TERMS OF A NOTICE ISSUED UNDER SUB-SECTION (2) OF SECTION 143 , THE [ASSESSING] OFFICER, AFTER TAKING INTO ACCOUNT ALL RELEVANT MATERIAL WHICH THE [ASSESSING] OFFICER HAS GATHERED, [SHALL, AFTER GIV ING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD, MAKE THE ASSESSMENT] OF THE TOTAL INCOME OR LOSS TO THE BEST OF HIS JUDGMENT AND DETERMINE THE SUM PAYA BLE BY THE ASSESSEE [* * *] ON THE BASIS OF SUCH ASSESSMENT : [ PROVIDED THAT SUCH OPPORTUNITY SHALL BE GIVEN BY THE ASSESS ING OFFICER BY SERVING A NOTICE CALLING UPON THE ASSESSEE TO SHOW CAUSE, ON A DATE AND TIME TO BE SPECIFIED IN THE NOTICE, WHY THE ASSESSMENT SHOU LD NOT BE COMPLETED TO THE BEST OF HIS JUDGMENT : PROVIDED FURTHER THAT IT SHALL NOT BE NECESSARY TO GIVE SUCH OPPORT UNITY IN A CASE WHERE A NOTICE UNDER SUB-SECTION (1) OF SECTION 142 HAS BEEN ISSUED PRIOR TO THE MAKING OF AN ASSESSMENT UNDER THIS SECTION.] [(2) THE PROVISIONS OF THIS SECTION AS THEY STOOD IMMEDIATELY BEFORE THEIR AMENDMENT BY THE DIRECT TAX LAWS (AMENDMENT) ACT, 1 987 (4 OF 1988), SHALL APPLY TO AND IN RELATION TO ANY ASSESSMENT FOR THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 1988, OR ANY EARLIER ASSES SMENT YEAR AND REFERENCES IN THIS SECTION TO THE OTHER PROVISIONS OF THIS ACT SH ALL BE CONSTRUED AS REFERENCES TO THOSE PROVISIONS AS FOR THE TIME BEING IN FORCE AND APPLICABLE TO THE RELEVANT ASSESSMENT YEAR.] 21. UNDER THE PROVISIONS OF SECTION 143 OF THE ACT WHERE THE PERSON HAS FURNISHED RETURN OF INCOME EITHER UNDER SECTION 139 OR IN RESPONSE TO NOTICE UNDER SECTION 142(1) OF THE ACT, SUB-SECTION (1) TO SECTION 143 OF THE ACT PROVIDES THE PROCESSING OF THE SAID RETURN AND ISSUE OF INTIMATION TO THE ASSESSEE IN THE GIVEN CIRCUMSTANCES. UNDER SUB-SECTION (2) TO SECTION 143 OF THE ACT, THE ASSESSING OFFICER IS EM POWERED TO ISSUE NOTICE TO THE ASSESSEE TO PRODUCE ANY EVIDENCE OR P ARTICULARS SPECIFIED THEREIN FOR THE ASSESSEE TO JUSTIFY ITS CLAIM OF LO SS, EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF. SUCH NOTICE IS TO BE ISSUED WHERE THE ASSESSING OFFICER HAS REASON TO BELIEF THAT ANY CLA IM OF 16 LOSS/EXEMPTION/DEDUCTION/ALLOWANCE OR RELIEF MADE I N THE RETURN OF INCOME IS INADMISSIBLE OR WHERE THE ASSESSING OFFIC ER CONSIDER IT NECESSARY OR EXPEDIENT TO ENSURE THAT THE ASSESSEE HAD NOT UNDERSTATED THE INCOME OR HAS NOT COMPUTED EXCESS LOSS. THE AS SESSING OFFICER IS TO FIX THE DATE OF HEARING IN THIS REGARD AND THE ASSE SSEE IN REPLY HAS TO FURNISH THE EVIDENCE OR PARTICULARS ON WHICH RELIAN CE IS TO BE PLACED IN SUPPORT OF THE RETURN. FURTHER UNDER SUB-SECTION (3) TO SECTION 143 OF THE ACT, AFTER HEARING THE ASSESSEE WITH EVIDENCE A ND AFTER PERUSING THE PARTICULARS SUBMITTED BY THE ASSESSEE, THE ASSESSIN G OFFICER IS TO PASS AN ORDER IN WRITING IN ORDER TO ALLOW OR REJECT THE CL AIM/CLAIMS OF THE ASSESSEE AND CONSEQUENTLY THERETO MAKING AN ASSESSM ENT DETERMINING THE TOTAL INCOME OR LOSS OF THE CAPTIONED ASSESSMENT YE AR. THE ASSESSING OFFICER IS TO THUS DETERMINE THE SUM PAYABLE BY THE ASSESSEE ON THE BASIS OF SUCH ASSESSMENT. 22. IN SPECIFIED CIRCUMSTANCES WHERE THE PERSON FAI LS TO COMPLY WITH THE SAID CIRCUMSTANCES, THE ASSESSING OFFICER AFTER TAKING INTO CONSIDERATION ALL THE MATERIAL GATHERED BY IT, AND TAKING INTO ACCOUNT ALL THE RELEVANT MATERIAL AND AFTER TAKING THE SAME INT O ACCOUNT THE ASSESSING OFFICER SHALL MAKE THE ASSESSMENT OF THE TOTAL INCOME OR LOSS TO THE BEST OF HIS JUDGMENT AND DETERMINE THE SUM P AYABLE BY THE ASSESSEE. PRIOR TO THE MAKING THE SAID ASSESSMENT IT IS PROVIDED IN SECTION 144 OF THE ACT THAT THE ASSESSING OFFICER S HALL GIVEN AN OPPORTUNITY OF HEARING TO THE ASSESSEE BY WAY OF SE RVING A NOTICE UPON THE ASSESSEE TO APPEAR ON A SPECIFIED DATE AND TIME AND ALSO TO SPECIFY IN THE SHOW CAUSE NOTICE AS TO WHY THE ASSESSMENT SHOU LD NOT BE COMPLETED TO THE BEST OF THE JUDGMENT OF THE ASSESSING OFFICE R. IT IS FURTHER PROVIDED UNDER THE SECTION THAT WHERE NOTICE UNDER SECTION 142(1) OF THE ACT HAD BEEN ISSUED PRIOR TO MAKING OF ASSESSMENT T HEN NO SUCH 17 OPPORTUNITY IS TO BE GIVEN I.E. SHOW CAUSING THE AS SESSEE AS TO WHY ASSESSMENT SHOULD NOT BE COMPLETED TO THE BEST OF T HE JUDGMENT. THE CIRCUMSTANCES IN WHICH BEST ASSESSMENT JUDGMENT COU LD BE COMPLETED ARE AS UNDER: (A) WHERE THE PERSON FAILS TO MAKE THE RETURN REQUI RED UNDER SECTION 139(1) OF THE ACT OR HAS NOT MADE A RETURN OR A REV ISED RETURN UNDER SECTION 139(4) OR SECTION 139(5) OF THE ACT; (B) WHERE THE PERSON FAILS TO COMPLY WITH ALL THE TERMS OF A NOTICE ISSUED UNDER SECTION 142(1) OR THE DIRECTIONS ISSUE D UNDER SECTION 142(2A) OF THE ACT; (C) WHERE THE PERSON AFTER FILING THE RETURN OF IN COME, FAILS TO COMPLY WITH ALL THE TERMS OF A NOTICE ISSUED UNDER SECTION 143(2) OF THE ACT. 23. THE READING OF THE ABOVE SAID SECTIONS 143 AND 144 OF THE ACT REFLECTS THE MANNER IN WHICH THE ASSESSING OFFICER IS TO PROCEED FOR COMPLETING THE ASSESSMENT IN THE HANDS OF THE ASSES SEE. THE PROVISIONS IN RESPECT OF NOTICE/S TO BE ISSUED AND THE ASSESSM ENT ORDER TO BE PASSED IN THE CASE ARE ALL PROVIDED UNDER SECTIONS143 AND 144 OF THE ACT. UNDER THE PROVISIONS OF SECTION 143(3) OF THE ACT, THE AS SESSING OFFICER IS EMPOWERED TO PASS THE ASSESSMENT ORDER AFTER HEARIN G SUCH EVIDENCE AS PRODUCED BY THE ASSESSEE AND AFTER TAKING INTO ACCO UNT SUCH PARTICULARS AS THE ASSESSEE MAY PRODUCE OR SUCH OTHER EVIDENCE AS THE ASSESSING OFFICER MAY REQUIRE ON SPECIFIC POINT. THE ASSESSI NG OFFICER THUS WHILE FRAMING THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT HAS TO CONSIDER THE PARTICULARS OF THE INCOME PRODUCED BY THE ASSES SEE AND ALSO TAKE INTO CONSIDERATION ANY OTHER EVIDENCE/PARTICULARS WHICH THE ASSESSEE MAY PRODUCE DURING THE COURSE OF ASSESSMENT PROCEEDINGS . THE ROLE OF THE ASSESSING OFFICER IS TO MAKE AN ASSESSMENT DETERMIN ING THE TOTAL INCOME OR LOSS OF THE ASSESSEE FOR THE RELEVANT ASSESSMENT YEAR AND THEREAFTER DETERMINE THE TOTAL SUM PAYABLE BY THE ASSESSEE ON THE BASIS OF SUCH ASSESSMENT. 18 24. THE PROVISIONS OF SECTION 144 OF THE ACT PROVID E FOR BEST JUDGMENT ASSESSMENT TO BE MADE PROVIDING THE CIRCUMSTANCES F OR THE BEST JUDGMENT ASSESSMENT TO BE MADE ARE APPLICABLE I.E. WHERE (A) NO RETURN OF INCOME HAS BEEN FILED BY THE ASSESSEE EITHER UNDER SECTION 139(1),(4) OR (5) OF THE ACT; (B) WHERE THE ASSESSEE FAILS TO COMPLY WIT H THE NOTICE UNDER SECTION 142(1) OR 142(2A) OF THE ACT; AND (C) HAVIN G FILED RETURN OF INCOME FAILS TO COMPLY WITH THE TERMS OF NOTICE ISS UED UNDER SECTION 143(2) OF THE ACT. THUS POWER OF THE ASSESSING OFF ICER IS TO MAKE BEST JUDGMENT AND ASSESSMENT WHERE THE ASSESSEE HAS FAIL ED TO FURNISH ANY RETURN OF INCOME. FURTHER THE POWER OF THE BEST JU DGMENT IS ENSHRINED IN THE ASSESSING OFFICER, IN CASE WHERE THE ASSESSEE F AILS TO COMPLY WITH ALL THE TERMS OF NOTICE ISSUED UNDER SECTION 142(1), 14 2(2A) OR 143(2) OF THE ACT. IN SUCH CIRCUMSTANCES, WHERE THERE IS COMPLET E FAILURE ON THE PART OF THE ASSESSEE, THE ASSESSING OFFICER AFTER TAKING INTO ACCOUNT ALL THE RELEVANT MATERIAL WHICH THE ASSESSING OFFICER HAD G ATHERED, SHALL PROVIDE AN OPPORTUNITY OF HEARING TO THE ASSESSEE A ND ALSO SHOW CAUSE THE ASSESSEE AS TO WHY ASSESSMENT SHOULD NOT BE COM PLETED TO THE BEST OF HIS JUDGMENT AND THEREAFTER DETERMINE THE TOTAL INC OME OR LOSS IN THE HANDS OF THE ASSESSEE, TO THE BEST OF HIS JUDGMENT. NO SUCH SHOW CAUSE NOTICE AS TO COMPLETION OF THE ASSESSMENT AS BEST J UDGMENT OF THE ASSESSING OFFICER, IS TO BE GIVEN BY THE ASSESSING OFFICER WHERE NOTICE UNDER SECTION 142(1) OF THE ACT HAS BEEN ISSUED TO THE ASSESSEE, AS PROVIDED BY THE 2 ND PROVISO UNDER SECTION 144 OF THE ACT. 25. THE GRIEVANCE OF THE ASSESSEE BEFORE US IS THAT WHEN THERE WAS NON- COMPLIANCE BY THE ASSESSEE BEFORE THE ASSESSING OFF ICER, THE ASSESSMENT IN THE CASE SHOULD HAVE BEEN COMPLETED UNDER SECTIO N 144 OF THE ACT AND NOT UNDER SECTION 143(3) OF THE ACT AND ERROR HAS C REPT IN THE ORDER OF THE ASSESSING OFFICER. IN THE FIRST INSTANCE THE A SSESSMENT COMPLETED BY 19 THE ASSESSING OFFICER CANNOT BE INVALIDATED ON THE SURMISES THAT IN THE PRESENT FACTS AND CIRCUMSTANCES OF THE CASE, THE AS SESSMENT SHOULD HAVE BEEN COMPLETED BY THE ASSESSING OFFICER BY PASSING AN ORDER UNDER THE PROVISIONS OF SECTION 144 OF THE ACT AND NOT UNDER SECTION 143(3) OF THE ACT. RECOURSE IS MADE TO THE PROVISIONS OF SECTION 292B OF THE ACT WHEREIN IT HAS BEEN CLEARLY PROVIDED THAT NO RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDINGS FU RNISHED TO BE MADE OR ISSUED OR PURPORTED TO HAVE BEEN FURNISHED, MADE OR ISSUED, IN PURSUANCE TO ANY OF THE PROVISIONS OF THIS ACT, SHA LL BE INVALID OR DEEMED TO BE INVALID, MERELY BECAUSE OF THE REASON OF ANY MISTAKE OR DEFECT OR ADMISSION IN SUCH RETURN OF INCOME, ASSES SMENT, NOTICE, SUMMONS OR OTHER PROCEEDINGS WHERE THE RETURN OF IN COME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDINGS ARE IN SUBSTAN CE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURP OSE OF THIS ACT. 26. THE ASSESSMENT PROCEEDINGS BEING COMPLETED UNDE R SECTION 143(3) OF THE ACT AND NOT UNDER SECTION 144 OF THE ACT IN VIEW OF THE PROVISIONS OF SECTION 292B OF THE ACT COULD NOT BE INVALIDATED . 27. FURTHER AS PROVIDED UNDER SECTION 144 OF THE AC T BY WAY OF 2 ND PROVISO WHERE NOTICE UNDER SECTION 142(1) OF THE AC T HAD BEEN ISSUED PRIOR TO MAKING AN ASSESSMENT UNDER SECTION 144 OF THE ACT, IT WAS NOT NECESSARY TO GIVE ANY SUCH OPPORTUNITY OF SHOW CAUS E AND IN THE FACTS OF THE PRESENT CASE, NOTICES UNDER SECTION 142(1)/143( 2) OF THE ACT WERE FIRST ISSUED ALONGWITH THE DETAILED QUESTIONNAIRE O N 27.2.1998 AND THEREAFTER ON 11.3.1998 AS MENTIONED AT PAGE 4 OF T HE ASSESSMENT ORDER. IN VIEW OF THE NOTICE BEING ISSUED UNDER SECTION 14 2(1) OF THE ACT, THE ASSESSMENT IN THE CASE HAVING BEEN COMPLETED CANNOT BE SAID TO HAVE VIOLATED ANY OF THE PROVISIONS OF SECTION 144 OF TH E ACT. 20 28. THE OTHER ASPECT OF THE ISSUE IS THAT WHETHER T HE PROVISIONS OF SAID SECTION 144 OF THE ACT ARE ATTRACTED IN THE PRESENT SET OF FACTS OR NOT. THE ORIGINAL ASSESSMENT IN THE CASE WAS COMPLETED U NDER SECTION 143(3) OF THE ACT AS ADMITTED BY THE ASSESSEE VIDE ORDER D ATED 13.3.1995. THE COPY OF THE SAID ORDER IS PLACED AT PAGES 1 TO 17 O F THE PAPER BOOK FILED BY THE ASSESSEE, WHICH ELABORATELY DEALS WITH THE P ROCEEDINGS BEFORE THE ASSESSING OFFICER. DURING THE COURSE OF SURVEY AT THE PREMISES OF THE ASSESSEE, A SECOND SET OF BOOKS OF ACCOUNT AND CERT AIN DOCUMENTS WERE FOUND AND PHOTO COPIES OF THE SAID DOCUMENTS/BOOKS WERE TAKEN BY THE SURVEY TEAM AND COMPARISON WAS MADE WITH THE ENTRIE S IN THE BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE AND IT WAS FOUND THAT ALL THE ENTRIES IN THE SAID DOCUMENTS FOUND DURING THE COURSE OF SU RVEY WERE NOT ENTERED IN THE REGULAR BOOKS OF ACCOUNT MAINTAINED BY THE A SSESSEE. THE ASSESSEE WAS ASKED TO FURNISH THE INFORMATION ON VA RIOUS POINTS BASED UPON THE IMPOUNDED BOOKS OF ACCOUNT AND DOCUMENTS A ND VARIOUS NOTICES OF HEARING WERE ISSUED TO THE ASSESSEE. THE ASSESS EE IN THE ORIGINAL ROUND OF PROCEEDINGS FAILED TO TAKE THE NOTICE ON S OME PLEA OR THE OTHER AND HIS CONSTANT ENDEAVOR WAS THAT ISSUE OF CHANGE IN JURISDICTION WAS FIRST DECIDED. THE ASSESSEE VIDE HIS REPLY DATED 1 0.3.1995 ACKNOWLEDGED THAT HE HAD RECEIVED THE NOTICE/S BUT AS HE HAD SHI FTED HIS BUSINESS TO DELHI, THERE WAS NON-COMPLIANCE HE ALSO MADE A REQ UEST TO THE ASSESSING OFFICER THAT THE COPIES OF ALL THE DOCUME NTS SHOULD BE SUPPLIED TO HIM. THE PHOTO COPIES OF THE REQUISITE DOCUMENTS WERE GIVEN TO THE ASSESSEE AND ORIGINAL OF THE PARALLEL SET OF ACCOUNTS WAS ALSO WITH THE ASSESSEE, WHICH WERE NEVER PRODUCED BEFORE THE ASSESSING OFFICER AND EVEN VARIOUS NOTICES ISSUED TO THE ASSESSEE WER E BEING REFUSED BY THE ASSESSEE AND ASSESSMENT WAS COMPLETED AFTER CONSIDE RING THE VARIOUS ENTRIES IN THE SAID PARALLEL SET OF ACCOUNTS AND VA RIOUS DOCUMENTS FOUND DURING THE COURSE OF SURVEY. 21 29. THE CIT (APPEALS) IN THE FIRST ROUND OF PROCEED INGS VIDE ORDER DATED 10.10.1995 HAD SET ASIDE THE ASSESSMENT MADE BY THE ASSESSING OFFICER TO BE MADE AGAIN AFTER PROVIDING ADEQUATE O PPORTUNITY OF HEARING TO THE ASSESSEE TO REPRESENT HIS CASE AND ALSO TO S UPPLY COPIES OF THE DOCUMENTS WHERE NECESSARY. THE PRESENT APPEAL BEF ORE US IS AGAINST THE SECOND ROUND OF ASSESSMENT PROCEEDINGS AS A RESULT OF ORDER OF CIT (APPEALS) DATED 10.10.1995. WHEN THE ASSESSMENT PR OCEEDINGS WERE TAKEN UP BY THE ASSESSING OFFICER, NOTICE WAS ISSUE D UNDER SECTION 143(2) OF THE ACT FOR 6.8.1996. IN REPLY THE ASSES SEE STATED THAT HE WAS FILING HIS RETURN OF INCOME AT NEW DELHI AND HE HAS PREFERRED AN APPEAL BEFORE THE TRIBUNAL AS THE ISSUE OF JURISDICTION WA S NOT DECIDED BY THE CIT (APPEALS). FURTHER PLEA OF THE ASSESSEE WAS TH AT IT HAD REQUESTED FOR SUPPLY OF THE COPIES OF THE MATERIAL AND TRANSFER O F HIS CASE TO DELHI. THE ASSESSING OFFICER NOTED THAT VIDE OFFICE LETTER DATED 23.9.1997, THE ASSESSEE WAS INFORMED BY HIS PREDECESSOR THE ISSUE OF JURISDICTION IN DETAIL. REGARDING SUPPLY OF PHOTO COPIES OF DOCUME NTS, IT WAS TOLD TO THE ASSESSEE THAT HE COULD ATTEND THE OFFICE ON ANY WORKING DAY BETWEEN 10 A.M. TO 5 P.M. UP TO 30.10.1997 TO GET THE PHOTO COPIES. THE SAID LETTER AND THE NOTICES THEREAFTER COULD NOT BE SERV ED UPON THE ASSESSEE EITHER THROUGH NOTICE SERVER OR THROUGH INSPECTOR O F THE OFFICE AND WERE SENT BY REGISTERED POST TO SIRSA AND DELHI ADDRESS OF THE ASSESSEE. THEREAFTER VARIOUS NOTICES WERE ISSUED TO THE ASSES SEE WHICH REMAINED NON-COMPLIED WITH. THE ASSESSING OFFICER ISSUED NO TICES UNDER SECTION 143(2)/142(1) OF THE ACT ALONGWITH DETAILED QUESTIO NNAIRE ON 27.2.1998 AND THE ASSESSEE WAS REQUESTED TO COOPERATE IN THE FINALIZATION OF THE ASSESSMENT PROCEEDINGS AND FURNISH CERTAIN INFORMAT ION. THE ASSESSEE WAS ALSO GIVEN ONE MORE OPPORTUNITY TO TAKE PHOTO C OPIES IMMEDIATELY REQUIRED BY HIM . THE CASE WAS FURTHER FIXED FOR 10.3.1998 BUT NON E ATTENDED THE PROCEEDINGS BEFORE THE ASSESSING OFFIC ER IN RESPONSE TO THE 22 ABOVE SAID NOTICE OR EVEN FURTHER NOTICES ISSUED UN DER SECTION 142(1)/143(2) OF THE ACT ON 11.3.1998. THE ASSESSE E DID NOT ATTEND THE OFFICE OF THE ASSESSING OFFICER BUT SENT A REGISTER ED POST LETTER IN WHICH HE ACCEPTED THAT LETTERS WERE BEING DELIVERED AT HI S ADDRESS IN SIRSA WHICH WERE SENT TO HIS ADDRESS IN DELHI AND THE ASS ESSEE ACCEPTED TO HAVE RECEIVED THE EARLIER LETTERS ALSO BUT AFTER TH E DATE FIXED IN THOSE LETTERS. THE ASSESSEE CLAIMED THAT IN ORDER TO COM PLY WITH THE SAID LETTERS HE HAD REACHED SIRSA BUT THE ASSESSING OFFI CER, AS PER HIM, WAS NOT AVAILABLE IN THE OFFICE. AGAIN A REQUEST WAS M ADE TO MAKE AVAILABLE COPIES OF THE DOCUMENTS. THE CONTENTIONS OF THE AS SESSEE WERE INVESTIGATED BY THE ASSESSING OFFICER AND IT WAS FO UND FROM THE OFFICE RECORD THAT THERE WAS NO ENTRY IN THE PESHI REGIST ER OR ANY OTHER EVIDENCE THAT THE ASSESSEE HAD EVER COME TO THE OFF ICE. IN VIEW OF THE ABOVE SAID FACTS AND CIRCUMSTANCES, THE ASSESSING O FFICER WAS OF THE VIEW THAT THE ASSESSEE WAS USING THE STRATEGY OF AV OIDING TO ATTEND THE OFFICE THROUGHOUT THE ASSESSMENT PROCEEDINGS AND TH EREAFTER ASSESSMENT WAS COMPLETED IN THE HANDS OF THE ASSESSEE. THE AS SESSING OFFICER AT PAGES 6 TO 15 OF THE ASSESSMENT ORDER ELABORATELY D EALT WITH VARIOUS ASPECTS OF THE DOCUMENTS/BOOKS FOUND DURING THE COU RSE OF SURVEY AND HAD TABULATED THE LIST OF CREDITORS AS PER ANNEXURE -A, RUNNING INTO PAGES 1 TO 15, WHICH IS ANNEXED TO THE ASSESSMENT ORDER A ND COMPUTED THE INCOME OF THE ASSESSEE BY MAKING THE TOTAL ADDITION OF RS.53,32,425/-. THE SAID ASSESSMENT BEING COMPLETED IN THE HANDS OF THE ASSESSEE WAS PURSUANT TO THE DIRECTIONS OF THE CIT (APPEALS) IN THE SECOND ROUND OF ASSESSMENT PROCEEDINGS WHERE CERTAIN INFORMATION WA S COLLECTED BY THE ASSESSING OFFICER BY WAY OF SURVEY AND RECONCILIATI ON WAS WORKED OUT IN THE HANDS OF THE ASSESSEE VIS--VIS REGULAR BOOKS O F ACCOUNT MAINTAINED BY THE ASSESSEE AND DISCREPANCY WAS FOUND TO THE EF FECT THAT THE ENTRIES IN THE SAID DOCUMENTS AND PARALLEL SET OF BOOKS OF ACCOUNT WAS NOT 23 REFLECTED IN THE REGULAR BOOKS OF ACCOUNT MAINTAINE D BY THE ASSESSEE. IN THE ABOVE SAID CIRCUMSTANCES WHERE CERTAIN INVESTIG ATION WAS BEING MADE BY THE ASSESSING OFFICER AND THEREAFTER THE INCOME OF THE ASSESSEE WAS DETERMINED ON THE BASIS OF THE AFORESAID DOCUMENTS, THE SAID ASSESSMENT BEING COMPLETED UNDER SECTION 143(3) OF THE ACT IS VALIDLY MADE. 30. NOW COMING TO THE PROVISIONS OF SECTION 144 OF THE ACT, ADMITTEDLY IT IS NOT THE CASE OF SUB-CLAUSE(A) OF SECTION 144( 1) OF THE ACT WHICH ARE TO BE APPLIED WHERE THE ASSESSEE HAD FAILED TO FURN ISH ANY RETURN OF INCOME. IN THE FACTS OF THE PRESENT CASE THE ASSES SEE HAD FURNISHED RETURN OF INCOME ON 1.3.1993 DECLARING LOSS OF RS.1 5,700/-, WHICH WAS PROCESSED ON 29.2.1993. THEREAFTER SURVEY UNDER SE CTION 133 OF THE ACT WAS CONDUCTED AT THE BUSINESS PREMISES OF THE ASSES SEE ON 3.2.1992 AND FOUR DOCUMENTS MARKED AS B-1 TO B-4 WERE FOUND AND IDENTIFIED AND THE COPIES OF THE DOCUMENTS WERE TAKEN BY THE SURVEY TE AM. NOW COMING TO CLAUSES (B) AND (C) OF SECTION 144(1) OF THE ACT, W E FIND THAT SAME ARE APPLICABLE WHERE THE ASSESSEE FAILS TO COMPLY WITH ALL THE TERMS OF NOTICE ISSUED UNDER SECTIONS142(1),142(2A) OR 143(2 ) OF THE ACT. HOWEVER, IN THE FACTS OF THE PRESENT CASE, FIRST AF TER FILING THE RETURN OF INCOME, SURVEY WAS CONDUCTED AT THE BUSINESS PREMIS ES OF THE ASSESSEE AND SURVEY INVESTIGATION WAS CARRIED OUT AND COMPAR ISON WAS MADE TO THE REGULAR BOOKS OF ACCOUNT MAINTAINED BY THE ASSESSEE AND THEREAFTER ORIGINAL ASSESSMENT WAS MADE. THE ASSESSEE APPEARE D BEFORE THE CIT (APPEALS) AND THE MATTER WAS REMANDED BACK TO THE A SSESSING OFFICER, WHO ISSUED VARIOUS NOTICES AND QUESTIONNAIRES TO TH E ASSESSEE, IN RESPONSE TO WHICH THE ASSESSEE TIME AND AGAIN RAISE D THE ISSUE ON JURISDICTION AND NON SUPPLY OF COPIES OF THE DOCUME NTS AVAILABLE ON RECORD. IN THE ENTIRETY OF THE FACTS AND CIRCUMSTA NCES, WE FIND NO MERIT IN THE PLEA OF THE ASSESSEE THAT THE ASSESSMENT MAD E UNDER SECTION 143(3) 24 OF THE ACT IN THE PRESENT SET OF FACTS IS INVALID. UPHOLDING THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER UN DER SECTION 143(3) OF THE ACT WE DISMISS GROUND NO.11(2) RAISED BY THE ASSESSEE. 31. ANOTHER ASPECT WHICH NEEDS TO BE TAKEN NOTE IS THAT WHILE THE PROCEEDINGS IN RELATION TO ISSUE OF JURISDICTION WE RE PENDING BEFORE DIFFERENT FORUMS/COURTS, ANOTHER ASSESSMENT ORDER W AS PASSED UNDER SECTION 143(3) OF THE ACT ON 23.2.2004 WHICH IS ANN EXED AT PAGES 22 TO 41 OF THE PAPER BOOK AND THE ASSESSMENT IN THE HAND S OF THE ASSESSEE WAS COMPLETED UNDER SECTION 143(3) OF THE ACT AGAIN MAK ING AN ADDITION OF RS.53,32,425/- ON THE BASIS OF THE DOCUMENTS/BOOKS FOUND DURING THE COURSE OF SURVEY. THE ASSESSEE FILED AN APPEAL BEF ORE THE CIT (APPEALS) AND THE APPEAL OF THE ASSESSEE WAS HELD TO BE INFRU CTUOUS AS THE PRESENT ASSESSMENT WAS MADE IN PURSUANCE TO THE PROVISIONS SETTING ASIDE THE ORDER OF THE TRIBUNAL BACK TO THE FILE OF THE TRIBU NAL. 32. NOW COMING TO THE ISSUE RAISED ON THE MERITS OF THE ADDITION, THE LEARNED A.R. FOR THE ASSESSEE FAILED TO PUT FORWARD ANY CONTENTION IN SUPPORT OF THE MERITS OF THE CASE. AS REFERRED TO BY US IN THE PARAS HEREINABOVE, THE AFORESAID ADDITION OF RS.53,32,425 /- HAS BEEN MADE IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF VARIOUS ENT RIES IN THE PARALLEL SET OF ACCOUNTS AND DOCUMENTS MARKED AS D-1 TO D-4 FOUN D DURING THE COURSE OF SURVEY. THE ASSESSEE HAS FAILED TO CONTROVERT T HE FINDINGS OF THE ASSESSING OFFICER IN THIS REGARD AND HAS EVEN FAILE D TO BRING ON RECORD ANY EVIDENCE EXPLAINING OR JUSTIFYING ITS STAND AS TO WHY THE SAID ADDITION SHOULD NOT BE MADE IN THE HANDS OF THE ASS ESSEE, EXCEPT THE PLEA OF PEAK INVESTMENT IN SUPPORT OF WHICH NO CALCULATI ON HAS BEEN FILED. THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS CAST UPON HIM. THE ASSESSING OFFICER HAS ELABORATELY CONSIDERED VARIOU S DOCUMENTS/BOOKS FOUND DURING THE COURSE OF SURVEY AND MADE THE RESP ECTIVE ADDITION BY 25 WAY OF THE DISCUSSION IN THE VARIOUS PARAS OF THE A SSESSMENT ORDER, TOTALING RS.53,32,425/-. IN THE ABSENCE OF ANY EVI DENCE TO THE CONTRARY WE UPHOLD THE ORDER OF THE ASSESSING OFFICER, WHICH IN TURN HAS BEEN CONFIRMED BY THE CIT (APPEALS) ON MERITS. WE FIND NO MERITS IN THE ISSUE RAISED BY THE ASSESSEE OF CALCULATION OF PEAK INVESTMENT/CREDIT BASED ON THE LOOSE PAPERS/BOOKS. THE ASSESSEE HAS ONLY RAISED AN ALTERNATE PLEA BY WAY OF GROUND NO.II(22) WHICH IN FACT IS GROUND NO.4 BEFORE US, WHEREIN THE ISSUE OF CALCULATION OF PEAK INVESTMENT/CREDIT HAS BEEN RAISED WHICH IS WITHOUT PREJUDICE TO THE ARGUM ENTS AGAINST THE ISSUE ON MERITS, WHICH WERE RAISED BEFORE THE CIT (APPEAL S) AND NO ISSUE AGAINST THE MERITS OF THE ADDITION HAS BEEN RAISED BEFORE US. IN THE ABSENCE OF ANY EXPLANATION BY THE ASSESSEE JUSTIFYI NG THE NATURE OF ENTRIES IN THE SAID DOCUMENTS FOUND DURING THE COUR SE OF SURVEY, WE FIND NO MERITS IN THE ALTERNATE GROUND OF APPEAL RAISED BY THE ASSESSEE. 33. THE LAST ISSUE RAISED BY THE ASSESSEE AGAINST C HARGING OF INTEREST UNDER SECTION 234A AND 234B OF THE ACT, WHICH ARE C ONSEQUENTIAL AND THE GROUND OF APPEAL IS DISMISSED AS SUCH. 34. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF JUNE, 2012. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 10 TH JUNE, 2013 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH