Simar Kaur, Kurukshetra V. ACIT, Circle, Kurukshetra

ITA 220/CHANDI/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4298 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 17-03-2021
• Assessment Year: 2010-2011
• Appeal Filed On: 05-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK KHANNA CIT
• Keywords: Invalid notice; Gift; Source of fund; Reason to believe
• Section: 143(3); 11A; 142(1); 48; 13; 119; 147; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH SMC CHANDIGARH !', # BEFORE: SMT. DIVA SINGH, JM ./ ITA NO. 220/CHD/2019 / ASSESSMENT YEAR : 2010-11 SMT. SIMAR KAUR, W/O SHRI SWARN SINGH, VILLAGE SARASWATI KHERA, TEHSIL-PEHOWA, DISTT. KURUKSHETRA. VS THE ACIT, CIRCLE, KURUKSHETRA. ./ PAN NO: DOAPK3225J / RESPONDENT ! ' / ASSESSEE BY : SHRI SUDHIR SEHGAL # ! ' / REVENUE BY : SHRI ASHOK KHANNA, ADDL. CIT $ % ! &/ DATE OF HEARING : 17.03.2021 '()* ! &/ D ATE OF PRONOUNCEMENT : 25.05.2021 HEARING CONDUCTED VIA WEBEX $%/ ORDER THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER DATED 16.01.2019 OF CIT(A) KARNAL PERTAIN ING TO 2010- 11 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS: 1. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER WITH REGARD TO REOPENING OF THE CASE U/S 148 AND AL SO ON MERITS. 2. THAT THE LD. CIT(A) HAS ERRED IN HOLDING THE PROCEE DINGS U/S 148 AS VALID EVEN THOUGH THERE WERE NO REASONS TO BELIEVE THAT THE IN COME OF THE ASSESSEE AS ESCAPED ASSESSMENT UNDER SUCH SECTION TO THE TUNE OF RS. 63.51 LACS. 3. THAT THE LD. CIT(A) HAS ERRED IN HOLDING THE PROCEEDINGS U/S 148 AS VAL ID EVEN THOUGH THE APPROVAL FOR INITIATING PROCEEDINGS UNDE R SECTION 147 GIVEN BY THE ITA 220/CHD/2019 A.Y. 2010-11 PAGE 2 OF 14 PCIT/JCIT-KARNAL HAS BEEN GIVEN IN MECHANICAL MANNE R WITHOUT APPLICATION OF MIND. 4. THAT THE ID. CIT(A) HAS ERRED IN HOLDING THAT THE NOTICE U/S 148 WAS LEGALLY VALID AND HAS FAILED TO CONSIDER THE FACT THAT THE NOTICE U/S 148 WAS NEVER SERVED UPON THE ASSESSEE AND WAS RETURNED BACK TO THE DEPARTMENT UNSERVED ON 10 TH OF APRIL 2017 AND, AS SUCH, THE PROCEEDINGS ARE VOID-AB-INITIO 5. THAT THE NOTICE U/S 148 OF THE ACT HAS NOT BEEN SERVED AS PER SECTION 282 OF T HE INCOME TAX ACT READ WITH CPC PROCEDURE. 6. NOTWITHSTANDING THE ABOVE SAID GROUND OF APPEAL, THE LD. CIT (A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 28,60,000/- AS U NEXPLAINED INVESTMENT BY NOT CONSIDERING OUR SUBMISSIONS PROPERLY. 7. THAT THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS FINALLY HEARD OR DISPOSED OFF 2. INVITING ATTENTION TO GROUNDS 1 TO 5 RAISED HERE IN ABOVE, IT WAS HIS SUBMISSION THAT BY WAY OF THESE GROUNDS, TH E ASSESSEE HAS CHALLENGED THE JURISDICTION AND VIDE GROUND NO. 6 THE CHALLENGE IS POSED ON THE MERITS OF THE ADDITION MA DE. 3. ADDRESSING THE RESPECTIVE ORDERS OF THE TAX AUTH ORITIES, THE LD. AR CHALLENGED THE ORDER ON THE GROUND THAT THE ORDER FOR WANT OF JURISDICTION DESERVES TO BE QUASHED AS NOTICE TO THE ASSESSEE WAS NEVER ISSUED BY THE ASSESSING OFFICER. THIS CHA LLENGE, IT WAS SUBMITTED REMAINS UN-ASSAILED ON RECORD. JURISDICTI ON WAS ALSO CHALLENGED ON THE GROUNDS OF BEING ARBITRARY AS IT WAS EXERCISED MECHANICALLY. IT WAS SUBMITTED THIS FACT WAS EVIDEN T FROM THE RECORD ITSELF AS NO EFFORT, AS A MATTER OF RECORD W AS MADE TO SEE THE ACTUAL PROPORTIONATE SHARE OF THE ASSESSEE'S CO NTRIBUTION AND THE REASONS RECORDED WOULD SHOW THAT ENTIRE HUNDRED PERCENT INVESTMENT IN THE PROPERTY WAS WRONGLY CONSIDERED T O HAVE BEEN ITA 220/CHD/2019 A.Y. 2010-11 PAGE 3 OF 14 MADE BY THE ASSESSEE. THIS MISTAKE AND INCORRECT FA CT RECORDED IN THE REASONS RECORDED, IT WAS SUBMITTED, HAD BEEN CORRECTED BY THE ASSESSING OFFICER HIMSELF AT THE ASSESSMENT STA GE AS ULTIMATELY ADDITION WAS MADE TO THE PROPORTION RELA TABLE TO THE ASSESSEE'S SHARE. THE SAID ADDITION IS ALSO CHALLE NGED ON MERITS. HOWEVER, REVERTING TO THE JURISDICTIONAL CHALLENGE, IT WAS ARGUED THAT THE APPROVAL WAS MECHANICALLY GIVEN BY THE APP ROVING AUTHORITY. ON THE BASIS OF THESE ARGUMENTS RELYING ON JUDICIAL PRECEDENT AVAILABLE IT WAS HIS PRAYER THAT THE ORDE R OF A.O. MAY BE QUASHED. 3.1 NOTWITHSTANDING THE ABOVE ARGUMENTS, IT WAS HIS SUBMISSION THAT THE IMPUGNED ORDER DESERVES TO BE S ET ASIDE ON MERITS ALSO. REFERRING TO THE RECORD IT WAS SUBMIT TED, THAT THE ASSESSEE'S SUBMISSIONS AND EVIDENCES REMAINED IGNO RED. THE ORDER WAS ASSAILED STATING THAT NO EFFORT EVEN TO D ISCUSS THEM WAS MADE BY THE APPELLATE AUTHORITY. ATTENTION WAS INVITED TO THE FACT THAT AN EXPLANATION ALL ALONG WAS OFFERED WITH OUT PREJUDICE TO THE PRIMARY OBJECTION AND THIS WAS EVIDENT FROM THE DISCUSSION THEREOF IN THE ASSESSMENT ORDER, ITSELF THOUGH THE DISCUSSION WAS INCOMPLETE. FOR THE SAID PURPOSES ATTENTION WAS I NVITED TO THE DOCUMENTS ON RECORD. IT WAS SUBMITTED THAT APART F ROM THE SYNOPSIS WHICH HAS SUMMED UP THE LEGAL ARGUMENT AND THE CASE LAW BEING RELIED UPON, RELIANCE WAS PLACED ON PAPER BOOK NO. 1. THE PAPER BOOK CONTAINS THE DOCUMENTS RUNNING FROM PAGE 1 ITA 220/CHD/2019 A.Y. 2010-11 PAGE 4 OF 14 UPTO PAGE 49; AND PAPER BOOK NO. 2 RUNNING FROM 50 TO 63 AND CASE LAWS PAPER BOOK RUNNING UPTO 154 PAGES IN TOTA L. IT WAS SUBMITTED, THAT THE DOCUMENTS CONTAINED IN PAPER B OOK-1 ARE CERTIFIED COPIES OF RECORD OBTAINED FROM THE OFFICE OF THE AO. 4. RELYING ON THE SYNOPSIS AND READING THROUGH THE BACKGROUND OF THE CASE AND THE ISSUES INVOLVED, FAC TS AND RECORDS AVAILABLE WERE HIGHLIGHTED. FOR READY REFER ENCE, PARA 1 TO 4 OF THE SYNOPSIS BEING RELIED UPON IS EXTRACTED HE REUNDER: 1. THE CASE OF THE ASSESSEE WAS REOPENED BY ISSUE O F NOTICE U/ SEC 148 OF THE ACT. 2. SUCH CASE WAS REOPENED BASED ON INFORMATION ABO UT A PROPERTY PURCHASED BY THE APPELLANT TO THE TUNE OF RS. 63.51 LACS AND THE ASSESSING OFFICER ('AO') FRAMED THE ASSESSMENT ASSESSING THE INCOME AT RS. 28.04 LA CS FOR THE SHARE OF THE APPELLANT IN SUCH PROPERTY. 3. THE ASSESSMENT WAS FRAMED IGNORING THE FACTS TH AT: THE NOTICE FOR ATTAINING JURISDICTION I.E. NOTICE U / SEC 148 WAS NEVER SERVED ON THE ASSESSEE AND THE SUBMISSIONS EXPLAINING THE SOURCES OF SUCH PUR CHASE OF PROPERTY WHICH WERE DULY BROUGHT ON RECORD BY THE ASSESSEE FOR RS. 27.8 1 LACS BEING 42.78% OF RS. 65.41 OF WHOLE PROPERTY TRANSACTION VALUE (I.E. RS. 63.51 LACS TRANSACTION VALUE & RS. 1.9 LACS STAMP DUTY)). [REASONS AT PAGE-1 PAPERBOOK ('P B')]. 4. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A), KARNAL, AND DULY EXPLAINED THAT THE PROCEEDINGS ITSELF WERE VOID IN CASE OF TH E APPELLANT; IN THE ABSENCE OF VALID SERVICE OF NOTICE U/ S 148 & IN THE ABSENCE OF VALID REASONS TO BELIEVE FOR REO PENING THE CASE U/S 148 & IN THE ABSENCE OF VALID SATISFACTION OF THE PR. CIT , KARNAL FOR REOPENING THE CASE U/S 148 BESIDES THE FACT THAT THE SOURCES OF PURCHASE OF P ROPERTY WERE DULY SUBMITTED TO THE AO, WHICH WERE IGNORED BY THE WORTHY CIT(A) AND THE CAS E WAS DECIDED AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. THE LEGAL CHALLENGE ADDRESSED VIDE GROUND NO. 1 TO 5 AS SET OUT IN PAGE 2 OF THE SYNOPSIS WAS REFERRED TO SO AS TO SET OUT THE FOLLOWING FACTS : ITA 220/CHD/2019 A.Y. 2010-11 PAGE 5 OF 14 A. ISSUE OF NOTICE U/S 148 OF THE ACT FOR RE-ASSESSMEN T PROCEEDINGS U/SEC 147 OF THE ACT BEING VOID AB INITIO, BEING BASED ON NOTICE WHICH W AS NEVER SERVED ON THE ASSESSEE AND B. NOTICE U/S 148 ISSUED WITHOUT ANY VALID 'REA SONS TO BELIEVE', WHICH IS CLEARLY EVIDENT FROM THE FACT THAT THE INCOME ALLEGED AS ESCAPED IN THE REASONS BEING RS. 63.51 LACS OF PURCHASE CONSIDERATION WAS ITSELF REVISED TO RS.28. 04 LACS AT THE TIME OF ASSESSMENT FINALIZATION. C. ISSUE OF REOPENING OF THE ASSESSMENT BASED ON MECHANICAL SATISFACTION OF THE PR. CIT, KARNAL WITHOUT APPLICATION OF MIND 6. THE REASONING OF THE AO AND OF THE FIRST APPELLA TE AUTHORITY UPHOLDING THE AO WAS ASSAILED ON THE FOLLOWING GROU NDS: AT THE OUTSET, IT IS SUBMITTED THE NOTICE U/S 148 W AS NEVER SERVED ON THE ASSESSEE AND THEREFORE THE JURISDICTION FOR REASSESSMENT ASSUMED ON THE BA SIS OF SUCH NOTICE ISSUED U/S 148 OF THE ACT IS BAD IN LAW AND MUST BE RESTORED TO NULLITY. MOREOVER, DURING THE ASSESSMENT PROCEEDINGS, WHEN T HE ASSESSEE RECEIVED A NOTICE U/S 142(1) OF THE ACT, HE: I. ATTENDED THE ASSESSMENT PROCEEDINGS THOUGH HIS AUTH ORIZED REPRESENTATIVE; II. BROUGHT OUT THE ISSUE OF NON-SERVICE OF NOTICE US 1 48 OF THE ACT TO THE AO; III. FILED A RETURN U.S 148 UNDER PROTEST, WITHOUT WAIVI NG OFF HIS RIGHTS TO CHALLENGE THE JURISDICTIONAL WRONGLY ASSUMED BY THE ASSESSEE IN H IS CASE. NON-SERVICE OF NOTICE U/S 148 ON INSPECTION OF THE FILE, IT WAS DISCOVERED THAT T HE BASIS OF ASSUMING JURISDICTION IN CASE OF THE ASSESSEE BEING THE NOTICE U/S 148 WAS NEVER SER VED ON THE ASSESSEE AND AS SUCH THE NOTICES ISSUED SUBSEQUENT TO THE NOTICE U/S 148 HAVE NO SAN CTITY LEFT AS THE PROCEEDINGS THEMSELVES HAVE BECOME NULL AND VOID. COPY OF SUCH NOTICE U/S 148 ISSUED TO THE ASSESSEE, WHICH WAS DULY RETURNED BACK TO THE DEPARTMENT UNSERVED AND WHICH WAS NEVER SERVED ON THE ASSESSEE TILL DATE IS ATTACHED AT PAGES 4-5 OF THE PB. IT IS ALSO SUBMITTED THAT ONCE THE ASSESSEE, DULY C HALLENGED THE NON-SERVICE OF THE NOTICE ISSUED U/S 148 DURING THE ASSESSMENT PROCEEDINGS IT SELF, THE ONUS OF HAVING SERVED THE SAID NOTICE U/S 148 ON THE ASSESSEE LIED WITH THE AO ONL Y. ALSO, NO AFFIXTURE ORDER WAS MADE IN ORDER TO ENSUR E SERVICE AS PER THE PROCEDURE LAID DOWN UNDER IN SECTION 282 (1) OF THE ACT READ WITH ORDER V RULE 12 CPC AND ORDER III RULE 6 CPC FOR SERVICE OF NOTICE AND THUS EVEN ON THIS BASIS T HE SERVICE OF NOTICE WAS NOT PROPERLY MADE. THE ABOVE CLEARLY SHOWS THAT NO ACTION WAS TAKEN BY THE AO TO ENSURE THE SERVICE OF SUCH NOTICE AND NO SUCH PROOF OF SERVICE WAS BROUGHT ON RECORD BY THE LD. AO. ITA 220/CHD/2019 A.Y. 2010-11 PAGE 6 OF 14 THUS, THE ACTION OF THE AO IN RE-ASSESSING THE INCO ME OF THE ASSESSEE U/S 147 R.W.S. 143(3) OF THE ACT WAS WITHOUT JURISDICTION AND DESERVES TO BE REDUCED TO NULLITY. RELIANCE IN THIS REGARD IS PLACED ON THE FOLLOWING JUDGMENTS: COMMISSIONER OF INCOME TAX V/S CHETAN GUPTA 62TAXMA NN.COM249 DEL-HC (PAGES 15-29 OF JUG SET) SHRI RATHI STEEL LTD. V/S ASSISTANT COM MISSIONER OF INCOME TAX 104 TAXMANN.COM 400 DEL-TRIB. (PAGES 9-14 OF THE JUG SET) CHARAN SINGH V/S ITO WARD- BHIWADI OF THE ITAT, JAI PUR BENCH ITA NO. 906/JP/2018 (PAGES 1-8 OF THE JUG SET) CIT VS. NAVEEN CHANDER (P&H HC) 323 ITR 49 S WG. CDR. SUCHA SINGH VS. ITO AS REPORTED IN ITA NO. 1605/DEL/2012 MOREOVER, THE CONTENTION OF THE AO, IN PARA 6 (PAGE 3) OF HIS ORDER, THAT SINCE THE ASSESSEE ATTENDED THE ASSESSMENT PROCEEDINGS AND FILED A RET URN U/S 148 OF THE ACT, THE SERVICE OF NOTICE CAN BE ASSUMED TO HAVE BEEN MADE IS WRONG AN D IS AGAINST THE FACTS OF THE CASE. LD. AO HAS MISTAKEN IN ASSUMING THE BONAFIDE ACT OF THE AS SESSEE TO ABIDE BY THE PROCEEDINGS OF INCOME TAX DEPARTMENT, AFTER HE GOT TO KNOW ABOUT SUCH PRO CEEDINGS IN HIS CASE THROUGH SERVICE OF NOTICES U/S 142(1) OF THE ACT, AS THE WAIVER OF HIS RIGHTS TO CHALLENGE THE JURISDICTION ASSUMED BY THE AO WITHOUT SERVICE OF NOTICE U/S 148, WHICH IS AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. JUDGEMENT RELIED BY AO & CIT(A) DISTINGUISHED: V.R. A. COTTON MILLS (P.) LTD. REPORTED AT [2013] 359 ITR 495 (PH HC) IS BASED ON THE ISSUE OF 'TIME LIMIT FOR ISSUE OF NOTICE' WHEREIN IT WAS HELD THAT THE DATE OF SERVICE OF NOTICE IS NOT RELEVANT, INCASE THE NOTICE WAS ISSUED WITHIN TIME LIMIT AND SERVED AFTER THE TIME LIMIT FOR ISSU E OF NOTICE. HOWEVER, IN THE CASE OF THE ASSESSEE, THE NOTICE U/ S 148 WAS NEVER SERVED ON THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS AND THEREFORE THE AFORESAID JUDGEMENT IS NOT AT ALL APPLICABLE TO THE CASE OF THE ASSESSEE. FURTHER THE RE-OPENING OF THE CASE U/S 148 IS BAD I N LAW DUE TO THE FOLLOWING REASONS: FACTUALLY WRONG 'REASONS TO BELIEVE' THE CASE OF THE ASSESSEE HAS BEEN BASED ON REASONS TO BELIEVE THAT THE INCOME HAS ESCAPED ASSESSMENT TO THE TUNE OF RS. 63.51 LACS BEING THE FULL TRANSACTION VALUE OF THE PROPERTY ALLEGED TO BE PURCHASED TO BY THE ASSESSEE. HOWEVER , DURING THE ASSESSMENT PROCEEDINGS ITSELF, THE AO HAS REVISED THE ASSESSMENT TO THE SH ARE OF THE ASSESSEE INVESTED IN SUCH PROPERTY AT RS. 28.04 LACS, (WRONGLY TAKEN EQUAL TO THE SOUR CES OF INVESTMENT IN SUCH PROPERTY EXPLAINED BY THE ASSESSEE INSTEAD OF RS. 27.81/- BE ING THE SHARE OF THE ASSESSEE IN SUCH PROPERTY PURCHASE). IT IS CLEAR FROM THE ABOVE THAT THE CASE OF THE ASS ESSEE WAS REOPENED ON THE BASIS OF FACTUALLY WRONG REASONS AND REASSESSMENT BASED ON SUCH FAULTY REASONS TO BELIEVE MUST BE RESTORED TO NULLITY. RELIANCE IN THIS REGARD IS PLACED ON THE RECENT JUD GEMENT OF THE HON'BLE ITAT, AMRITSAR IN THE CASE OF GAURAV JOSHI VS ITO, AS REPORTED AT 197 TTJ 946 ASR-TRIB., PLACED AT PAGES 30-35 OF ITA 220/CHD/2019 A.Y. 2010-11 PAGE 7 OF 14 THE JUDGEMENT SET, WHEREIN THE ASSESSMENT WAS HELD TO BE INVALID FOR FACTUALLY WRONG REASONS RECORDED AS THE AMOUNT ALLEGED M REASONS TO BE DEPO SITED HI BANK AND ACTUAL AMOUNT DEPOSITED WERE FOUND TO BE DIFFERENT DURING THE ASS ESSMENT PROCEEDINGS. MONIKA RANI VS ITO IN ITA NO.582/CHD/2019 DATED 28. 02.2020 SAGAR ENTERPRISES VS. ACIT (2002) 257 ITR 335 (GUJA RAT HIGH COURT) HARJEET SINGH VS ITO (ITAT DELHI), ORDER DATED 12.11.2018, IN ITA NO. 2013/DEL/2015 KMV COLLEGIATE SR. SEC. SCHOOL V. ITO (2017) 1 63 ITD 653(ASR.) (TRIB.): FROM THE ABOVE DISCUSSION, IT IS EVIDENT THAT BOTH THE REASONS RECORDED BY THE AO FOR REOPENING THE COMPLETED ASSESSMENTS OF THE ASSESSEE ARE BASED ON FACTUAL ERRORS, RENDERING THE NOTICE ISSUED U/S 147, FINDING ITS BA SIS IN THE AFORESAID REASONS, TO BE AN INVALID NOTICE, IN KEEPING WITH THE DECISION OF THE HON'BLE SUPREME COURT IN 'KELVINATOR OF INDIA LTD.' (SUPRA), AS CONSIDERED IN 'DR. AJIT GUP TA' (SUPRA). CONSEQUENTLY, ALL PROCEEDINGS PURSUANT THERETO, CULMINATING IN THE IM PUGNED ORDER FOR THE A.Y. 2007-08, ARE ALSO FIELD TO BE NULL AND VOID. BABA KARTAR SINGH DUKKI EDUCATIONAL TRUST V. ITO (2016) 158 ITD 965 (CHD.)(TRIB.) REASONS TO SUSPECT AND NOT REASONS TO BELIEV E THE FACT THAT THE AMOUNT ALLEGED IN REASONS TO BELI EVE AS HAVING ESCAPED ASSESSMENT WAS REVISED DURING THE ASSESSMENT PROCEEDINGS CLEARLY S HOWS THAT THE REASONS WERE ACTUALLY REASONS TO SUSPECT AND MADE WITH THE INTENT OF MAKI NG ROVING ENQUIRIES WITHOUT ANY EVIDENCE AGAINST THE ASSESSEE IN THIS REGARD, WHICH IS PROHI BITED BY LAW. FURTHER RELIANCE IN THIS REGARD IS PLACED ON THE FO LLOWING JUDGEMENTS, WHEREIN FOR MISSING 'REASONS TO BELIEVE', THE ASSESSMENTS WERE REDUCED TO NULLITY, NAMELY: AMRIK SINGH VS ITO REPORTED AT 142 DTR 6 ASR-TRIB. ) PLACED AT PAGES 51-64 OF JUD. SET HOLY FAITH INTERNATIONAL PVT. LTD. VS DCIT IN ITA N O. 181/ASR/2017 ASR-TRIB. PLACED AT PAGES 75-89 OF THE JUG. SET PR. CIT VS MEENAKSHI OVERSEAS REPORTED AT 82 TAXMANN.COM 300 (DEL HC) PLACED AT PAGES 118-129 OF THE JUD. SET MECHANICAL SATISFACTION OF THE PR. CIT FOR APPROVIN G RE-OPENING NOTWITHSTANDING THE SUBMISSIONS ABOVE, YOUR KIND ATTENTION IS BROUG HT TO THE FACT THAT THE LD. PR. CIT, KARNAL HAS SIMPLY STATED 'YES, I AM SATISFIED' WHILE APPROVING THE REOPENING OF THE ASSESSMENT IN CASE OF THE ASSESSEE. THUS, THE P ROCEEDINGS INITIATED U/S 147 BASED ON SUCH MECHANICAL SATISFACTION ARE ALSO VOID AB IN ITIO. RELIANCE IN THIS REGARD IS PLACED ON THE JUDGEMENTS OF: HON'BLE MP HIGH COURT IN THE CASE OF CIT VS S. GOV ANKA LIME AND CHEMICAL LTD REPORTED AT [2015] 56 TAXMANN.COM 390 (MADHYA PRADESH) HON'BLE APEX COURT IN THE CASE OF CIT VS S. GOVANKA LIME AND CHEMICAL LTD, DISMISSED THE APPEAL OF THE DEPARTMENT AGAINST THE AFORESAID ORDER OF MP HC, VIDE ITS ORDER DATED 08.07.2015 REPORTED IN 12 TMI1334 ( 2015)/237 TAXMAN 0378 (SC) (2016) ITA 220/CHD/2019 A.Y. 2010-11 PAGE 8 OF 14 HON'BLE IT AT DELHI IN THE CASE OF ITO VS M/S OBSE RVER INVESTMENT & FINANCE PVT. LTD. IN ITA NO. 1185 & 1186/DEL/2009 & CO NO. 118 & 119 /DEL/2009 DATED 24.02.2016; 6.1 THE DECISION OF THE CIT(A) IN HOLDING ..THE NOTICE IS ISSUED WITHIN THE PRESCRIBED TIME LIMIT FOR ISSUE O F NOTICE U/S 148 OF THE ACT. WAS ASSAILED ON THE GROUNDS THAT IT EVADED THE ISSUE. 7. THE ORDER WAS ASSAILED ON THE GROUND THAT TH E APPROVAL GRANTED WAS ASSAILED AS A MECHANICAL EXERCISE OF PO WER AND HENCE THE ORDER DESERVES TO BE QUASHED ON THE BASIS OF THE FOLLOWING SUBMISSIONS : 1. THE ASSESSEE CLEARLY BROUGHT ON RECORD THE EVIDENCE S IN SUPPORT OF HER CLAIM. HOWEVER, THE AO CLEARLY IGNORED THE SUBMISSIONS OF THE ASSESSEE MADE IN THIS REGARD. INFACT, ON AN INSPECTION OF THE FILE A COPY WAS TAKEN OF THE E VIDENCES FILED BY THE ASSESSEE IN SUPPORT OF HER CLAIM. YOUR ATTENTION IS BROUGHT TO THE FACT THAT THE ASSE SSEE WAS MAINTAINING A LIST OF REMITTANCES IN A HAND-WRITTEN DIARY AND THE TYPED VERSION OF WHICH CONTAINING THE DETAILS OF THE REMITTANCES RECEIVED BY THE ASSESSEE'S HUSBAND AND HER CLOSE RE LATIVES FROM HER SON SH. DALJINDER SINGH LIVING ABROAD, DIRECTLY OR INDIRECTLY WAS DULY PLAC ED ON RECORD, SHOWING EVIDENCE OF SOURCE OF FUND RS. 20 LACS APPROX. RECEIVED FROM ABROAD. ALSO SAMPLE MONEY GRAM AND WESTERN UNION RECEIPTS WERE DULY PLACED ON RECORD. COPY OF SAMPLE WESTERN UNION RECEIPTS PLACED AT PAGES 39-40 OF THE PB AND COPY OF LIST OF REMITTANCES PLA CED AT PAGE 46 OF THE PB. ALSO, THE COPY OF THE RELEVANT EXTRACT OF HAND WRITTEN DIARY BEING FURNISHED SEPAR ATELY FOR YOUR READY REFERENCE. HOWEVER, THE WITHOUT ANY GIVING ANY BENEFIT OF SUCH EVIDENCES PLACED ON RECORD AND WITHOUT ANY FINDING OF FACT AGAINST THE ASSESSEE THAT SHE H AD I COME FROM ANY OTHER SOURCE DURING THE RELEVANT PERIOD THE CONTENTION OF ASSESSEE WAS REJECTED BY THE AO AND NO BENEFIT WAS GIVEN TO HER FOR THE SOURCES SHOWN BY HER. INFACT, THE SOURCES EXPLAINED HAVE BEEN ADDED BY TH E AO AS THE INCOME OF THE ASSESSEE INSTEAD OF THE SHARE OF THE ASSESSEE IN THE PURCHASE OF SUCH P ROPERTY LURING THE RELEVANT YEAR, CLEARLY SHOWING THE CARELESSNESS AND GROSS UN-JUSTICE DONE TO THE ASSESSEE AT THE HANDS OF THE AO. OTHER THAN THE ABOVE THE ASSESSEE AND HER HUSBAND H AD HOUSEHOLD SAVINGS FROM THE AGRICULTURAL INCOME OF THE HUSBAND OF THE ASSESSEE AND REMITTANC ES RECEIVED FROM THEIR SON IN THE PAST, SAMPLE J FORMS PLACED AT PAGES 31-38 OF THE PB) ITA 220/CHD/2019 A.Y. 2010-11 PAGE 9 OF 14 THUS, THE FACT REMAINS THAT THE SOURCES OF THE INVE STMENT IN THE IMPUGNED PROPERTY FOR THE SHARE OF THE ASSESSEE WAS DULY EXPLAINED AND WERE SIMPLY IGNORED BY THE AO AND THUS THE ADDITION MADE IN THIS REGARD CLEARLY DESERVES ' BE DELETED, EVEN ON THAT BASIS. 8. ON MERITS, THE FOLLOWING ARGUMENTS WERE ADVANCED : 9. ATTENTION WAS INVITED TO THE FOLLOWING DOCUMENTS AND EVIDENCES ON RECORD: COPY OF THE REPLY FILED BEFORE THE LD. AO ON 12.09. 2017 EXPLAINING THE SOURCES OF PURCHASE OF THE SHARE OF THE ASSESSEE IN THE IMPUGN ED PROPERTY PURCHASED DURING THE RELEVANT PERIOD ALONG WITH THE FOLLOWING RELEVA NT ANNEXURES: I) COPY OF THE PURCHASE DEED OF THE IMPUGNED LAND PURC HASED BY THE ASSESSEE DURING THE RELEVANT PERIOD.OF VALUE 63,51,000/- IN WHICH THE ASSESSEE HAD A SHARE AMONG 4 OTHER BUYERS. II) COPY OF THE BANK STATEMENT OF THE ASSESSEE WITH SBI, PEHOWA FOR THE RELEVANT PERIOD III) COPY OF THE PROOF OF MONEY SENT BY THE ASSESSEE'S S ON DALJINDER SINGH FROM ABROAD TO HER CANARA BANK ACCOUNT IN THE YEARS PRIO R TO THE RELEVANT PERIOD IV) COPY OF SAMPLE J FORMS EVIDENCING THE AGRICULTURAL INCOME OF THE HUSBAND OF THE ASSESSEE ITA 220/CHD/2019 A.Y. 2010-11 PAGE 10 OF 14 V) COPY OF SAMPLE WESTERN UNION RECEIPTS EVIDENCING TH E MONEY SENT TO THE ASSESSEE'S HUSBAND BY HER SON SH. DALJINDER SINGH L IVING ABROAD, IN THE YEARS PRIOR TO THE RELEVANT PERIOD. VI) COPY OF THE LETTER FILED ON 18.12.2017 TO THE JCIT, KURUKSHETRA FOR INTERVENTION U/S 144A OF THE ACT IN CASE OF THE ASS ESSEE VII) COPY OF THE REPLY OF THE ASSESSEE FILED ON 26A2.20M AS FILED BEFORE THE AO, AGAIN EXPLAINING THE SOURCES OF PURCHASE OF THE SHA RE OF THE ASSESSEE IN THE IMPUGNED PROPERTY PURCHASED DURING THE RELEVANT PER IOD ALONG WITH THE FOLLOWING RELEVANT ANNEXURES: I) COPY OF THE BANK PASSBOOK OF THE HUSBAND OF THE ASS ESSEE SH. SWARAN SINGH, WITH STATE BANK OF PATIALA PEHOWA BRA NCH UPDATED TILL THE RELEVANT PERIOD II) COPY OF THE DETAILED LIST OF REMITTANCES RECEIVED B Y THE ASSESSEE & HER FAMILY FROM THEIR RELATIVES ABROAD VIII) COPY OF THE REPLY OF THE ASSESSEE DATED 27.12.2018 AS FILED BEFORE THE WORTHY CIT(A), KARNAL IN THE FIRST STAGE APPELLATE PROCEED INGS. 10. THE LD. SR.DR RELIED UPON THE IMPUGNED ORDER. T HE ARGUMENTS ON FACTS ON THE LEGAL ISSUE OF THE MAINTA INABILITY OF THE ADDITION ON MERITS WERE NOT SPECIFICALLY ADDRES SED. 11. I HAVE HEARD THE SUBMISSIONS AND PERUSED THE MA TERIAL ON RECORD. IT IS SEEN THAT THE ASSESSEE HAS CONSISTEN TLY MAINTAINED ITS CHALLENGE THAT NOTICE WAS NOT ISSUED AS IT HAS NOT BEEN SERVED. THE TAX AUTHORITIES HAVE REJECTED THE CHAL LENGE HOLDING THAT NON-RECEIPT IS NOT EQUIVALENT TO NON-SERVICE. IT IS SEEN THAT THOUGH THE CHALLENGE IS RECORDED THE WORDING IN ITS REJECTION HAS BEEN REMAINED AMBIVALENT AS NO SPECIFIC FINDING IS FOUND TO HAVE BEEN GIVEN HOLDING THAT THE NOTICE WAS ISSUED ON A SPECIFIC DATE. NOR IS THERE ANY REFERENCE ADDRESSING THE MODE AND MANNER OF ITS ISSUANCE NOR THE FACT THAT IT WAS ISSUED AT THE COR RECT ADDRESS. IN ORDER TO HOLD THAT THE NOTICE WAS ISSUED, THESE ABO VE FACTS NEED TO BE RECORDED AND AVAILABLE ON RECORD SO AS TO ENA BLE AN ITA 220/CHD/2019 A.Y. 2010-11 PAGE 11 OF 14 ADJUDICATING AUTHORITY TO CONCLUSIVELY UPHOLD THE F INDING AS OTHERWISE SANS FACTS THE CONCLUSION IS OPEN TO THE CHALLENGE OF BEING ARBITRARY DEHORS FACTS AND HENCE NON-MAINTAINABLE. THUS, THOUGH THE DISMISSAL OF THE GROUND IN THE MANNER WO RDED IN THE FACE OF THE CHALLENGE DOES NOT INSPIRE MUCH CONFIDE NCE IN ITS CORRECTNESS, HOWEVER, EVEN OTHERWISE, I FIND THAT T HE ASSESSEE HAS A GOOD CASE ON THE LEGAL CHALLENGE POSED AS WELL AS ON MERITS. NO DOUBT MENTION OF THE FULL INVESTMENT VALUE FINDS A MENTION IN THE REASON TO BELIEVE, THE FACT REMAINS THAT ADDITION HAS BEEN MADE PROPORTIONATE TO THE ASSESSEE'S SHARE. THIS FACT B Y ITSELF MAY NOT LEAD GENERALLY TO THE CONCLUSION THAT THE RE-OPENIN G WAS MECHANICAL. HOWEVER, IN THE FACTS OF THE PRESENT CA SE, WHEN THE SALE DEED IS TAKEN INTO CONSIDERATION, IT IS CLEARL Y EVIDENT THAT IT SPELLS OUT THE FACT THAT ONLY PART CONSIDERATION WA S MOVING FROM THE ASSESSEE AND THUS IF THIS BARE DOCUMENT ITSELF HAD BEEN SEEN BEFORE THE FORMATION OF THE BELIEF BY THE A.O. THEN WHILE RECORDING THE REASONS THE AO WOULD NOT HAVE RECORDED THE ENTI RE CONSIDERATION AS ASSESSEE'S CONTRIBUTION AND WOULD HAVE NOTICED THAT THERE WERE OTHER CONTRIBUTORS ALSO. THE FACT THAT THIS DOCUMENT WAS PROPERLY SEEN AT THE ASSESSMENT STAGE AS ULTIMATELY INSTEAD OF RS. 63.51 LAKHS WAS LIMITED TO RS. 28,03,753/- I.E. THE ASSESSEE'S SHARE. NO DOUBT THE ASSESSEE WAS NOT A REGULAR TAX PAYER AND THUS, NO RETURN COULD B E CONSULTED BY THE ASSESSING OFFICER WHILE EXERCISING THE POWER S OF RE- ITA 220/CHD/2019 A.Y. 2010-11 PAGE 12 OF 14 OPENING. HOWEVER, THE FACT REMAINS THAT IT WAS INC UMBENT ON HIM TO AT LEAST CHECK THE FACTS RECORDED IN THE SA LE DEED CAREFULLY ASCERTAINING THE EXTENT OF THE ASSESSEE'S CONTRIBUTION. SINCE THE FACTS SET OUT IN THE SALE DEED COGNIZANCE OF WHICH WAS TAKEN BY THE ASSESSING OFFICER HIMSELF WHILE MAKING THE ADDITION WERE UN-DISPUTABLY CLEAR AS IS EVIDENT FROM PAPER B OOK PAGES 10, 11, 11A AND 12 THE CONCLUSION THAT ADMITTEDLY ITS P ROPER CONSIDERATION ESCAPED THE NOTICE OF NOT ONLY THE A. O. BUT THE APPROVING AUTHORITY ALSO IS CLEARLY EVIDENT FROM RE CORD. THUS NOT FINDING FAULT IN THE MANNER OF THE SPECIFIC WORDS R ECORDED IN THE ORDER TO GRANT APPROVAL, WHICH HAS BEEN THE CRUX OF LD ARS ARGUMENT THE OBJECTION IS SUSTAINED ON THE FACT THA T NO CARE OR ATTENTION EVIDENTLY WAS TAKEN TO CONSIDER THE BARE PRELIMINARY FACTS ITSELF AND THE POWER WAS EXERCISED MECHANICAL LY WITHOUT EXAMINING THE RECORD. AN AUTHORITY VESTED WITH THE ONEROUS POWERS OF RE-OPENING U/S 147 AND GRANTING OF APPROV AL IS EXPECTED TO EXERCISE ITS POWER CONSCIOUSLY, CAREFUL LY AND WITH FULL AWARENESS. THE PUBLIC AT LARGE CANNOT BE PUT TO TH E MERCIES OF CARELESS, CASUAL, ARBITRARY OR WHIMSICAL EXERCISE O F POWER. THE ORDER DESERVES TO BE QUASHED ON THIS COUNT ITSELF. ORDERED ACCORDINGLY. 12. SINCE ARGUMENTS HAVE BEEN ADVANCED ON MERITS A LSO I DEEM IT APPROPRIATE TO ADDRESS THESE. ON A CAREFUL CONS IDERATION OF EXPLANATION OFFERED RIGHT AT THE ASSESSMENT STAGE P ARTIALLY ITA 220/CHD/2019 A.Y. 2010-11 PAGE 13 OF 14 RECORDED IN THE ORDER, I FIND THAT EVEN ON MERITS THE ASSESSEE HAS SUFFICIENTLY EXPLAINED THE AVAILABILITY OF FUND S. SPECIFIC REFERENCE IS MADE TO THE EXPLANATION OFFERED AT THE FIRST INSTANCE BEFORE THE AO ITSELF: TOTAL AMOUNT OF PURCHASE-DEED RS. 65.51.000/-. I PURCHASED AGRI. LAND MEASURING 24 KANALS AT VILLA GE SARASWATI KHERA ALONG-WITH OTHER CO- SHARERS SURINDER KAUR, SATVINDER KAUR, BALJINDER KA UR & RAVINDER KAUR, RESIDENTS OF VILLAGE NIVARSI, TEHSIL THANESAR FOR RS. 63,51,000/- + 1900 00/- STAMP-DUTY AND MY SHARE OF INVESTMENTS COMES OUT OF RS. 27,81,000/-, THE ABOVE CO-SHARERS INVESTED THE AMOUNT OF THEIR SHARE THEMSELVES, DOCUMENT WAS REGISTERED AS PER CO LLECTOR-RATE. SIR, AS PER FACTS OF THE CASE, THE ABOVE LAND WAS UNDER THE POSSESSION OF THIRD-PA RTIES BUT WE DID NOT PAY THE AMOUNT TO THE SELLERS AS PER THE AMOUNT WRITTEN IN PURCHASE-DEED BUT PAID THE AMOUNT MUCH LESSOR, I AM ENCLOSING THE DOCUMENTS OF CIVIL-SUIT, COURT-ORDER AND THE ORDER OF CONCERNED TEHSILDAR FOR YOUR KIND CONSIDERATION. 2. SOURCE OF INVESTMENT :- I AM HOUSE-WIFE, MY HUSBAND IS RETIRED EMPLOYEE OF HARYANA ROADWAYS, MY SON & DAUGHTER ARE WELL SETTLED IN ABROAD, SOURCES OF INCOME OF FA MILY ARE AGRI. INCOME, PENSION AND GIFTS SENT BY OUR SON & DAUGHTER ON SPECIAL OCCASIONS, IN-FACT THE ABOVE LAND IS PURCHASED BY MY FAMILY & MY HUSBAND ARRANGED THE MONEY (OUT OF HIS PREVIOU S & PAST SAVINGS OF AGRI. INCOME, RETIREMENT-BENEFITS, GIFTS RECEIVED FROM SON & DAUG HTER FOR THE PURCHASE OF AGRI. LAND) AND AT THE TIME OF REGISTERING THE DOCUMENT AT PEHOWA TEHS IL 'HE WAS ADVISED BY A DOCUMENT WRITER TO GET IT REGISTERED IN THE NAME OF ANY LADY AND BY DO ING SO YOU WOULD BE BENEFITED OF 2% OF STAMP-DUTY, SO TO AVOID 2% OF STAMP-DUTY HE GOT REGISTERED THE DOCUMENT IN MY NAME BUT OTHERWISE THE TRUE FACTS ARE THE ABOVE PROPERTY BELONGS TO MY FAM ILY AND EVERYBODY CONTRIBUTED. I AM ENCLOSING THE RELEVANT PAPERS AS A PROOF OF INVESTM ENT BY EACH OF OUR FAMILY MEMBERS. YOUR HONOR IS REQUESTED TO FINALIZE THE ASSESSMENT PROCEEDINGS KEEPING IN VIEW THE TRUE FACTS OF THE CASE AND EVID ENCES GIVEN IN A PAPER-BOOK. 12. I HAVE SEEN THE EVIDENCES RELIED UPON AT PAGE 1 3 WHICH LD. AR HAS CLARIFIED, WERE MONEY TRANSACTIONS FROM A MI DDLE EAST COUNTRY WHERE THE ASSESSEES SON WAS WORKING WHO UL TIMATELY SHIFTED TO USA. THE MONEY TRANSFER DETAILS CLEARLY ESTABLISH ITA 220/CHD/2019 A.Y. 2010-11 PAGE 14 OF 14 SUFFICIENCY OF FUNDS. NO INFIRMITY IN THE EVIDENCES RELIED UPON AND AVAILABLE ON RECORD HAS BEEN POINTED OUT. SATI SFIED BY THE AVAILABILITY OF FUNDS, I FIND THAT EVEN ON MERITS, THE ASSESSEE DESERVES RELIEF. ORDERED ACCORDINGLY. 13. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED ON 25.05.2021. SD/- ( !' ) (DIVA SINGH) # / JUDICIAL MEMBER ' ( / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / CIT 4. ( )/ THE CIT(A) 5. , , / DR, ITAT, CHANDIGARH 6. / GUARD FILE / BY ORDER, / ASSISTANT REGISTRAR