SH. TILAK RAJ S/O. SH. BANARSI DASS, HOSHIARPUR V. INCOME TAX OFFICER WARD-4, HOSHIARPUR

ITA 218/ASR/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 2663 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 1 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-05-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 03-04-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SUDERSHAN KAPOOR
• Keywords: Opportunity of being heard; Additional evidence; Assessment record
• Section: 148; 142(1); 143(2); 6(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER I.T.A. No. 218/Asr/2019 Assessment Year: 2010-11 Tilak Raj S/o Sh. Banarsi Dass, VPO Mananhana, Tehsil Garhshankar, Distt. Hoshiarpur-144023 [PAN: AORPR 7160K] Vs. The Income Tax Officer, Ward-4, Hoshiarpur (Appellant) (Respondent) Appellant by : Sh. Sudershan Kapoor & Sh. J.P. Bhatia, Advs. Respondent by: Sh. S. M. Surendranath, Sr. DR Date of Hearing: 21.03.2022 Date of Pronouncement: 10.05.2022 ORDER Per Anikesh Banerjee, JM: The instant appeal is filed by the assessee against the order passed by the Ld. Commissioner of Income Tax (Appeals)-1, Jalandhar [in brevity the CIT(A)], bearing Appeal No. CIT(A)-1/JAL/10257/2017-18 dated 22.02.2019 passed u/s 144 r.w.s. 147 of the Income Tax Act, 1961[in brevity the Act], in respect of Assessment Year 2010-11. 2. The grounds of the appeal of the assessee are as follows:- ITA No. 218/Asr/2019 Tilak Raj v. ITO 2 ITA No. 218/Asr/2019 Tilak Raj v. ITO 3 3. Brief fact of the case is that the ld. counsel of the assessee challenged the service of the notice u/s 148 of the Act. As per the ld. Assessing Officer, the notice u/s 148 on dated 29.03.2017 related assessment year 2010-11 was served upon assessee through registered post dated 30.03.2017. As per the ld. counsel of the assessee, the notice U/s 148 of the Act was not served as the assessee was permanently staying in foreign country. So, the entire assessment made by the Assessing Officer (in brevity the AO) U/s 144/147 of the Act is quashed. Before the bench, the ld. counsel of the assessee only challenged the technical ground and no other grounds are pressed. 3.1 The Ld. CIT(A) completed the proceeding by considering the Rule 46A of the Income Tax Rule,1962 by taking cognizance the additional evidence filed by the assessee. The Ld. CIT(A) also considered the technical ground of the assessee in his order which is reproduced as under, Page 5, point-3 of the Appeal Order:- “3. With regard to the above, it is submitted that an assessee is entitled to produce before CIT(A), additional evidence under rule 46A of the Income Tax Rules, 1962 in the following circumstances. (a) Where the Assessing Officer has refused to admit evidence which ought to have been admitted; or (b) Where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the Assessing Officer; or (c) Where the appellant was prevented by sufficient cause from producing before the Assessing Officer any evidence which is relevant to any ground of appeal; or (d) Where the Assessing Officer has made the order appealed against without giving sufficient opportunity to the appellant to adduce evidence relevant to any ground of appeal; 3.1. In view of above, it is submitted that I have carefully gone through the assessment record for the year under appeal and it was noticed that the additional evidence furnished by the ITA No. 218/Asr/2019 Tilak Raj v. ITO 4 assessee before your good-self during the course of appellate proceedings, does not fall in any of above mentioned circumstances as laid down under Rule 46A of the Income Tax Rules, 1962. In the light of above, the assessee may not be allowed to adduce the additional evidence under Rule 46A of the Income Tax Rules, 1962. However, without prejudice to the admissibility of additional evidence, my comments on additional evidence as furnished by the assessee during the course of appellate proceedings, in view of facts and circumstances of the case are submitted as under: 3.2. Brief facts of the case are that the assessee is an individual. Further, Income Tax Officer, Ward-1, Hoshiarpur, vide his office letter No. ITO/W-l/AIR/HSP/2016-17/8977 dated 15.03.2017, intimated to this office that during the course of verification of AIR in the case of Smt. Daljil Kaur W/o Shri Tilak Raj, VPO Mananhana, Tehsil Garhshanakar, Hoshiarpur for the F.Y.2009-10 relevant to the A.Y.2010-11, it was noticed by him that Smt. Daljit Kaur W/o Shri Tilak Raj, R/o., VPO Mananhana, Tehsil Garhshanakar, Hoshiarpur was maintaining a Joint account with her husband Shri Tilak Raj S/o Shri Banarsi Dass VPO Mananhana, Tehsil Garhshanakar, in Canara Bank, Kot 'Fatuhi, District Hoshiarpur. Further, on perusal of statement of Bank account No. 2526104002252 maintained with Canara Bank Kot-Fatuhi, Tehsil Garhshankar, district Hoshiarpur, it was noticed that the assessee maintained a joint Saving Bank account with his Wife Smt. Daljit Kaur and during the year under consideration the assessee deposited cash of Rs.30,00,000/- therein. Since, the assessee failed to explain the source of Cash deposits of Rs.30,00,000/-found deposited in his above mentioned bank account, therefore, proceedings u/s 147 r.w.s. 148 were initiated in the case of Shri Tilak Raj S/o Shri Banarsi Dass R/o., VPO Mananhana, Tehsil Garhshanakar with the prior approval of Pr. Commissioner of Income tax- Jalandhar. Notice u/s 148 issued & despatched to the assessee vide Registred letter bearing No. 616159414 IN dated 29.0f 2017, Photostat copy marked as Annexure-1 is enclosed herewith. The Postal Authorities returned the above mentioned Registered Letter dated 29.03.2017 with the remarks that the said person had gone to abroad, therefore R.L. returned back. Photostat copy of Envelops (undelivered Registered letter dated 29.03.2017), marked as Annexure-II is enclosed herewith 3.3 It is further submitted that since the assessee did not comply with notice u/s 148 dated 29.03.2017, therefore. Notice u/s 142(1) of the act, 1961 dated 08.05.2017 issued & sent 10 the assessee through Registered Post. Further, as the notice u/s 148 dated 29.03.2017 could not be served upon the assessee in ordinary way, therefore, the undersigned directed the Inspector of this office to serve a copy of Notice u/s 148 dated 29.03.2017 alongwith a copy of Notice u/s 142(1) dated 08.05.2017, by affixture as per the rules of code of Civil Procedure, 1908 on the conspicuous part of the place where the assessee is known to have last resided or carried out business or personally worked for gain or presently residing. Further, in order to provide natural justice to the assessee, another opportunity of being heard way offered to the assessee by ITA No. 218/Asr/2019 Tilak Raj v. ITO 5 issuing another notice u/s 142(1) dated 06.11.2017 and the proceedings were fixed for hearing on 16.11.2017. As per report of Inspector of this, he affixed a copy of the Notice u/s 148 dated 29.03.2017 alongwith a copy of notice u/s 142(1) dated 08.05.2017 on the gate of Shri Tilak Raj S/o Shri Banarsi Dass, R/o., VPO Mananhana, Tehsil Garhshanakar for the A.Y.2010-11 on 09.11.2017. Report of inspector of this office alongwith proof of affixture of Notice u/s 148 dated 29.03.2017 marked as Aitnexure-III is enclosed herewith. 3.4. It is further added that proof of service of Notice u/s 148 dated 29.03.2017 alongwith the Notice u/s 142(1) dated 08.05.2017 & 06.11.2017, by affixture as per the code of Civil Procedure, 1908, in the case of Shri Tilak Raj S/o Shri Banarsi Dass, R/o VPO Mananhana, Tehsil Garhshanakar (assessee), for the A.Y.2010-11, is corroborated from one Shri Paramjil Singh who vide application dated 13.11.2017, returned the Notice u/s 148 dated 29.03.2017 alongwith the Notices u/s 142(1) dated 08.05.2017 & 06.11.2017 which were served upon the assessee by this office Affixture Order dated 06.11.2017 by simply submitting that Shri Tilak Raj S/o Shri Banarsi Dass, R/o VPO Mananhana, Tehsil Garhshanakar(assessee) is a Non Resident and his permanent Address is RUA FERREORA DE CASTRO N2396 ID 1950-134 LOSBOA PORTUGAL. No documentary evidence to substantiate that Shri Tilak Raj S/o Shri Banarsi Dass, R/o VPO Mananhana, Tehsil Garhshanakar(assessee) is a Non Resident was furnished. Photostat copy of application of one Shri Paramjit Singh dated 13.11.2017 received in this office on 16.11.2017 marked as Annexure-IV is enclosed herewith. 3.5 Further, in connection with the written submission dated 20.10.2018 as furnished by the assessee before your good-self, it is respectfully submitted that assessment in the case ofShri Tilak Raj S/o Shri Banarsi Dass, R/o VPO Mananhana, Tehsil Garhshanakar(assessee) for the A. Y. 2009- 10 was completed by this office vide order dated 20.06.2016 u/s 147 r.w.s. 148 of the act (Photostat copy marked as Annexure-V is enclosed herewith) and during the course of assessment proceedings the assessee nowhere mentioned that he is a Non Resident. Further, the contention of the assessee as mentioned in Para 1(b) above that " no notice u/s 148 dated 29.3.2017 of the Income Tax Act had been ever served on the Applicant who is Non-resident" is in correct as notice u/s 148 dated 29.03.2017 had duly been served upon the assessee by affixture order dated 06.11.2017 as mentioned above as per the last address mentioned by the assessee on his ITR filed in response to Notice u/s 148 on 15.06.2016for the A. Y.2009-10. Photostat copy of ITR e-ftled by the assessee on 15.06.2016 marked as Annexure-VI is enclosed herewith. Beside this, who is Shri Paramjit Singh. This office did not know the identity of Shri Paramjit Singh as he was never authorize by the assessee as his legal representative. In addition to this, Shri Paramjit Singh did not furnish any documentary evidence to substantiate his contention that Shri Tilak Raj S/o Shri Banarsi Dass, R/o VPO Mananhana, Tehsil Garhshanakar(assessee) is a Non Resident. Further, to claim. Non Residential Status, one has to satisfy the basic conditions as laid down in section 6(1) and additional conditions in section 6(6) of the income tax act. Further, during the course of ITA No. 218/Asr/2019 Tilak Raj v. ITO 6 assessment proceedings, the assessee never claim that during the year under consideration he was a non Resident. Further the facts of the case law relied upon by the assessee in the case of Shri Om Parkash Sharma, 61, Keshav Nagar, Mithapur Road, Jalandhar vs. ITO, Ward-lII(3), Jalandhar, pronounced by the hon'ble 1TAT, Amritsar in appeal No. ITA No. 500(Asr)2017 dated 09.10.2018 are quite different than the case of the assessee. In the case of Shri Om Parkash Sharma, Notice u/s 143(2) of the act was sent to the assessee at the address i.e. 2-D.C. Nagar, Cannt Road, Mathapur, Jalandhar through Speed Post, however, address mentioned on the ITRs of the assessee was Keshav Nagar, Mithapur Road, Jalandhar whereas in the instant case, notice u/s 148 dated 29.03.2017 were served upon the assessee by this office affixture order dated 06.11.2017 by following the procedure as laid down in the Code of Civil Procedure, 1908 as per the address mentioned by the assessee on his ITR for the A.Y.2009-10, e-filed onl5.06.2016 i.e. immediately preceding the Assessment Year under consideration. 3.6 The assessee in Para 1(e) of his written submission dated 20.10.2018, pointed out to rule 127 of the Income tax rules, 1962. In this connection, it is submitted that notice u/s 148 dated along with notice u/s 142(1) dated 08.05.2017 were served upon the assessee by this office affixture order dated 06.11.2017 as per the address mentioned by the assessee on his ITR for the A.Y.2009-10, e-filed onl5.06.2016. 3.7 Without prejudice to the above, my comments on additional evidence, furnished by the assessee, before your good-self, vide written submission dated 20.10.2018, are submitted as under: (a). that, a sum of Rs. 30,00,000/- (Rs. Thirty lakh) on account of cash deposits were found deposited into the Saving bank Account No. 2526104002252 of the assessee, maintained jointly with his wife Smt. Daljit Kaur in Canara Bank, Kot-Fatuh Branch, Tehsil Garhshankar, District Hoshiarpur. (b). that, on perusal of statement of above mentioned bank account of the assessee, it was noticed that cash of Rs. 30,00,000/- (Rs. Thirty lakh) were deposited into the said Saving bank Account No. 2526104002252 of the assessee as per details given below: Dated Amount (in Rs.) 20.06.2009 15,00,000 05.08.2009 2,00,000 12.10.2009 5,00,000 05.11.2009 5,00,000 26.11.2009 3,00,000 Total 30,00,000 ITA No. 218/Asr/2019 Tilak Raj v. ITO 7 (c). that, vide above mentioned written Submission dated 20.10.2018, the asses: claimed that he deposited the above mentioned cash of Rs. 30,00,000/-, out of the amount Rs.31,12,500/- including interest received on 19.06.2009from Late Sh. Mohan Singh S/o S. Char. Singh R/o Mahalla Pensarian Tehsil Garhshankar District Hoshiarpur to whom he had advanced Rs. 30,00,000/- on 02.02.2009 against the Promissory Note. In support of his contention, the assessee furnished Photostat copy of the Promissory Note executed by the above person marked as Annexure-VII enclosed herewith. In this regard, it is submitted that on perusal of Photostat copy of the Promissory Note dated02.02.2009, it was noticed that Sh. Mohca Singh S/o S. Chanan Singh R/o MahallaPensarian Tehsil Garhshankar District Hoshiarpur claimed to have received Rs. 30,00,000/- from Shri Tilak Raj S/o Shri Banarsi Dass, R/o VPO Mananhana TehsilGarhshanakar (assessee) @ 0.75/- per month on 02.02.2009 for domestic needs and Shr. Tilak Raj S/o Shri Banarsi Dass, R/o VPOMananhana, Tehsil Garhshanakar (assessee) admitted vide Receipt dated 19.06.2009 that he received Rs. 31,12,500/- including interest from Sh. Mohan Singh S/o S. Chanan Singh R/o Mahalla PensarianTehsil Garhshankar District Hoshiarpur which showed that the assessee received Rs. 1,12,500/- on account of interest @ 0.75% per month for the period 02.02.2009 to 19.06.2009 (4 Mon tits and 17 days). However, interest on Rs. 30,00,000/- @ 0.75% per month for the period 02.02.2009 to 19.06.2009 (i.e. 4 Months and 17 days) come to Rs. 1,02,750/-., thus the contention of the assessee that the source of Cash deposits ofRs.30,00,000/- in his bank account, maintained with Canara Bank, Kot Faturi, TehsilGarhshankar was out of the amount of Rs. 31,12,500/- including interest received from Sh. Mohan Singh S/o S. Chanan Singh R/o Mahalla Pensarian Tehsil Garhshankar District Hoshiarpur is unjustifiable. (d) that, the assessee, vide above referred written submission furnished Photostat copy of the Promissory Note dated 02.02.2009 and stated in the receipt dated 19.06.2009 that Original Promissory Note dated 02.02.2009 had been handed over to Shri Mohan Singh S/o Sh. Chanan Singh R/o Mahalla Pensarian Tehsil Garhshankar District Hoshiarpur. Further Photostat copy of a document could be manipulated as held by Punjab and 'Haryana High Court and the same cannot be taken into evidence. The Hon'ble Punjab and Haryana Court held in the case of Suman Devi and others Ks Pawan and Others on 10/12/2008 in F.A.O. no. 1167 of2007 "photo copies of documents can be prepared by manipulation and presented as original. Therefore, it would normally be unsafe on the mere asking to allow production of photo stat copies as secondary evidence. These are admittedly not certifed copies of the original and it is not clear as to whether these are the copies of the original". (e) . that, neither the assessee mentioned on the Photostat copy of Receipt dated 19.06.2009 nor Shri Mohan Singh S/o S. Chanan Singh R/o Mahalla Pensarian Tehsil Garhshankar District Hoshiarpur to whom the assessee stated to have advanced Rs. ITA No. 218/Asr/2019 Tilak Raj v. ITO 8 30,00,000/- in cash, mentioned on the Photostat copy of Promissory Note dated 02.02.2009, that Shri Tilak Raj S/o ShriBanarsi Dass. R/o VPO Mananhana, Tehsil Garhshanakar(assessee) during the year under consideration was a NON Resident. (f) that, the assessee vide above mentioned written submission dated 20.10.2018 in Para 1 (c) himself admitted and proved that service of notice u/s 148 dated 29.03.2017 was made through this office Affixture Order dated 06.11.2017 by returning the Original Affixture order dated 06.11.2017 alongwith the Notice u/s 148 dated 29.03.2017 and 06.11.2017. (g) That, during the course of assessment proceedings for the A.Y.2CK&-+Z, furnished Cash Flow Statement of his bank account which was reproduced by the A.O. in the assessment order dated 20.06.2016, marked page No. 14 of the present report under consideration. On perusal of Cash Flow Statement and Statement of bank account of the assessee for the F.Y.2008-09 relevant to the A. Y.2009-10, it was noticed that the assessee made cash withdrawal of Rs. 7,00,0007- only on 01.01.2009, therefore the contention of the assessee as mentioned in Para 2 of the above mentioned written submission dated 20.10.2018 that he had advanced Rs. 30,00,000/- lo late Shri Mohan Singh S/o S. Chanan Singh R/o Mahalla Pensarian Tehsil Garhshankar against the Promissory Note viz-a-viz the source of cash deposits to the tune of Rs. 30,00,000/- made in his bank account out of the amount of Rs. 31,12,500/- Including interest received from late Sh. Mohan Singh S/o Sh. Chanan Singh R/o Mohalla Pensarian Tehsil Garhshankar on 19.06.2009, apparently appeared to be in-genuine / In view of the above submissions and in view of in totality offacts & circumstances of the case, the appeal of the assessee is deserved to be dismissed.” 4. Aggrieved assessee had filed appeal before us. 5. During the financial year 2009-10, the assessee deposited cash Rs. 30,00,000/- in his saving account of Canara Bank bearing account no- 2526104002252. The cash deposit was unexplained before both the revenue authorities. Even before the bench no explanation related deposit of cash was not submitted. Considering the available records here we are adjudicating only the technical ground of the assessee. ITA No. 218/Asr/2019 Tilak Raj v. ITO 9 6. The Ld. DR vehemently argued and relied upon the assessment order and the appellate order of the Revenue. It is very clear that the assessee did not inform to the Ld. AO about his change of residential or communication address before issuance of notice. The letter related change of address was filed on dated 13/11/2017 & the letter was submitted by “Paramjit Kaur”. Here the copy of letter dated 13/11/2017 is annexed as below:- ITA No. 218/Asr/2019 Tilak Raj v. ITO 10 ITA No. 218/Asr/2019 Tilak Raj v. ITO 11 7. We heard both the parties and consider the documents available in record. The moot point is that the notice was issued by the revenue within the time on dated 29/03/2017 but unable to serve the assessee due to his absence. Later the ld AO completed service by affixture as per the Code of Civil Procedure, 1908. The ld. counsel of the assessee draw our attention in the judgment of honourable Delhi High Court CIT Central-1 versus Chetan Gupta [2015] 62 taxmann.com 249 (Delhi). With Respectful observation of the Judgment, the notice should mandatorily be served upon the assessee. The Assessing Officer cannot complete the reassessment without service of the notice. So notice should be issued upon the assessee in accordance with section 282 (1) of the Act. This judgment is distinguishable on peculiar facts of the present case. Here, the ld AO served notices on assessee as per the available address record with him. The judgment of honourable Supreme Court in case of Pr. CIT, Mumbai v. I-Ven Interactive Ltd [2019] 110 taxmann.com 332 (SC) observed that scrutiny notice issued to assessee under section 143(2) at address available as per PAN database was justified as change in address had not been intimated to Assessing Officer. Here, the assessee had not informed about his change of address to the revenue authority. Honourable jurisdictional Punjab & Hariyana High Court in case of VRA Cotton Mill observed that the expression serve and issue are interchangeable. The issue of notice is equivalent to its service. In the case of CIT vs Jai Prakash Singh crushing 219 ITR 737 SC observed that lack of service of notice does not tantamount to the revenue authority having had no jursidiction. The ld. assessing Officer issued notice and served as per address, available in record. Further the notice affixed in the premises of the assessee as per the direction of Code of Civil Procedure, 1908. In the remand report the ld. appellate authority verified the fact which is reproduced above in this order. There is no lacuna on part of the ld. Assessing Officer about the service of the notice. The duty of the assessee was to inform authority about the change of ITA No. 218/Asr/2019 Tilak Raj v. ITO 12 jurisdiction. But he failed so. In our view, the ld Assessing Officer has acted within his jurisdiction and so completed assessment. 8. In the result, the appeal of the assessee is dismissed. Order pronounced in the open court on 10.05.2022 Sd/- Sd/- (Dr. M. L. Meena) (Anikesh Banerjee) Accountant Member Judicial Member Date: 10.05.2022 *GP/Sr. PS* Copy of the order forwarded to: (1) The Appellant: (2) The Respondent: (3) The CIT(A), (4) The CIT concerned (5) The Sr. DR, I.T.A.T (6) The Guard File True Copy By Order