Ramesh Chandra Garg, New Delhi V. ITO, Ward- 41(5), New Delhi

ITA 2995/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0947 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 27-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Assessee Lawyers: RAKESH KHETAN
• Keywords: Income from undisclosed sources; Principle of natural justice; Opportunity of cross examination; Reasonable cause; Tangible material; Difference of opinion; Accommodation entries; Onus to prove; Reason to believe; Change of opinion; Reassessment proceedings
• Section: 69C; 147; 68; 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: SMC, NEW DELHI BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER ITA NO. 2995/DEL/2018 ASSESSMENT YEAR: 2005-06 RAMESH CHANDRA GARG, VS. ITO, WARD 41(5), HOUSE NO. 4, ROAD NO. 7, NEW DELHI EAST PUNJABI BAGH, NEW DELHI (PAN: AAGHR2553F) (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. RAKESH KHETAN, CA REVENUE BY : SH. SL ANURAGI, SR. DR. ORDER THE ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDE R DATED 28.3.2018 OF THE LD. CIT(A)-14, NEW DELHI PERTAINI NG TO ASSESSMENT YEAR 2005-06 ON THE FOLLOWING GROUNDS:- 1. THAT THE ASSESSEE HAS RECEIVED REFUND OF RS. 2,50,0 00/- FROM SH. NIRAJ JAIN / POOJA EXPO INC. OUT OF PAYMEN T OF RS. 3,00,000/- PAID TO HIM EARLIER AS ADVANCE AGAIN ST PROPERTY LEAVING A BALANCE OF RS. 50,000/-. THE AO TREATED THIS AMOUNT OF RS. 2,50,000/- RECEIVED FROM NIRAJ JAIN/ POOJA EXPO INC. AS UNACCOUNTED INCOME O F THE ASSESSEE. ADDITION HAS BEEN MADE ON SURMISES AN D CONJECTURES, PRESUMPTION AND WITHOUT BRINGING ANY 2 EVIDENCE ON RECORD THAT IT IS THE UNACCOUNTED INCOM E OF THE ASSESSEE, HENCE, THE ADDITION MADE IS TOTALLY WRONG, BAD IN LAW AND NEEDS TO BE QUASHED. 2. THAT THE ADDITION MADE WITHOUT CROSS EXAMINATION OF NIRAJ JAIN IS TOTALLY WRONG, BAD IN LAW AND NEEDS T O BE QUASHED. 3. THAT THE ADDITION MADE U/S. 68 WITHOUT CONSIDERING THE FACTS THAT THE ASSESSEE HAS FULFILLED THE CONDITION S OF SECTION 68 IS TOTALLY WRONG, BAD IN LAW AND NEEDS TO BE QUASHED. 4. THAT THE NOTICE U/S. 148 ISSUED AFTER THE PERIOD OF FOUR YEARS WITHOUT MENTIONING IN THE RECORDED REASONS TH AT THE ESCAPEMENT OF CHARGEABLE INCOME FROM TAX WAS DU E TO OMISSION OR FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSA RILY FOR ASSESSMENT IS INVALID, BAD IN LAW AND NEEDS TO BE QUASHED. 5. THAT THE ORDER OF THE LD. CIT(A) IN CONFIRMING ADDI TION OF RS. 12,500/- AS COMMISSION PAID WITHOUT BRINGING ANY EVIDENCE IS WRONG AND NEEDS TO BE DELETED. 6. THE ABOVE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE T O ONE ANOTHER AND ASSESSEE PRAYS PERMISSION TO ADD, DELETE OR AMEND ONE OR MORE GROUNDS OF APPEAL. 3 7. THAT THE ASSESSEE ASSURES UNSTINTED COOPERATION IN ALL PROCEEDINGS BEFORE YOUR GOODSELF. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE OR IGINAL ASSESSMENT WAS COMPLETED U/S. 143(3)/148 OF THE INCOME TAX AC T, 1961 (IN SHORT ACT) ON 27.2.2013 AT RS. 3,62,900/- AGAINST THE R ETURNED INCOME OF RS. 1,00,400/-. THE ASSESSEE FILED AN APPEAL BEFORE T HE LD. CIT(A) WHO VIDE ITS ORDER DARTED 16.7.2014 DISMISSED THE APPAEL OF THE ASSESSEE. FURTEHR THE ASSESSEE MOVED TO THE ITAT AGAINST THE ORDER OF THE LD. CIT(A) AND THE TRIBUNAL VIDE ITS ORDER DATED 6.8.2015 RESTORE D THE MATTER BACK TO THE FILE OF THE AO WITH THE DIRECTIONS TO DECIDE TH E MATTER AFRESH UNDER THE LAW, AFTER CONSIDERING THE RELEVANT EVIDENCES, AFTER GIVING FULL OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. FOLLOW ING THE DECISION AND DIRECTIONS OF THE ITAT, THE AO COMPLETED THE ASSESS MENT PROCEEDINGS U/S. 254 OF THE ACT R.W.S. 143(3)(/148 OF THE AT ON 30.1 1.2016 BY MAKING THE ADDITIONS OF RS. 2,50,000/- AS UNEXPLAINED CASH CR EDIT AND RS. 1,2500/- FOR THE COMMISSION AND ASSESSED THE INCOME OF THE A SSESSEE AT RS. 3,62,900/-. AGGRIEVED WITH ABOVE DISALLOWANCES THE ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE HIS IMPUGNED ORDER DATED 28.3.2018 HAS DISMISSED THE APPEAL OF THE ASSESSEE. AGAINST THE IMPUGNED ORDER DATED 28.3.2018, ASSESSEE IS IN APPEAL BEFORE THE TRIBUN AL. 3. DURING THE HEARING, LD. COUNSEL FOR THE ASSESSEE HAS ARGUED ON THE MERITS OF THE CASE AND STATED THAT ASSESSEE HAS REC EIVED REFUND OF RS. 2,50,000/- FROM SH. NIRAJ JAIN / POOJA EXPO INC. OU T OF PAYMENT OF RS. 4 3,00,000/- PAID TO HIM EARLIER AS ADVANCE AGAINST P ROPERTY LEAVING A BALANCE OF RS. 50,000/-. HOWEVER, THE AO TREATED TH IS AMOUNT OF RS. 2,50,000/- RECEIVED FROM NIRAJ JAIN/ POOJA EXPO INC . AS UNACCOUNTED INCOME OF THE ASSESSEE AND ADDITION HAS BEEN MADE O N SURMISES AND CONJECTURES, PRESUMPTION AND WITHOUT BRINGING ANY E VIDENCE ON RECORD THAT IT IS THE UNACCOUNTED INCOME OF THE ASSESSEE, HENCE, HE SUBMITTED THAT THE ADDITION MADE IS TOTALLY WRONG, BAD IN LA W AND NEEDS TO BE QUASHED. IT WAS FURTHER SUBMITTED THAT THAT THE AD DITION MADE IS WITHOUT CROSS EXAMINATION OF NIRAJ JAIN IS TOTALLY WRONG, B AD IN LAW AND NEEDS TO BE QUASHED. THAT THE ADDITION MADE U/S. 68 WITHOUT CONSIDERING THE FACTS THAT THE ASSESSEE HAS FULFILLED THE CONDITIONS OF S ECTION 68 IS TOTALLY WRONG, BAD IN LAW AND NEEDS TO BE QUASHED. IT WAS F URTHER SUBMITTED THAT THE NOTICE U/S. 148 OF THE ACT WAS ISSUED AFTER THE PERIOD OF FOUR YEARS WITHOUT MENTIONING IN THE RECORDED REASONS THAT THE ESCAPEMENT OF CHARGEABLE INCOME FROM TAX WAS DUE TO OMISSION OR F AILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATER IAL FACTS NECESSARILY FOR ASSESSMENT IS INVALID, BAD IN LAW AND NEEDS TO BE Q UASHED. IT WAS FURTHER SUBMITTED THAT THE ORDER OF THE LD. CIT(A) IN CONFI RMING ADDITION OF RS. 12,500/- AS COMMISSION PAID WITHOUT BRINGING ANY EV IDENCE IS WRONG AND NEEDS TO BE DELETED. IN SUPPORT OF THE AFORESAID CO NTENTION, THE LD. COUNSEL FOR THE ASSESSEE HAS FILED A PAPER BOOK CO NTAINING PAGES 1-60 IN WHICH HE HAS ATTACHED THE COPY OF WRITTEN SUBMISSIO NS BEFORE THE LD. CIT(A); COPY OF REASONS PROVIDED FOR ISSUING NOTICE U/S. 148 DATED 4.8.2018 WITH TRACKING REPORT; COPY OF REASONS PROV IDED FOR ISSUING NOTICE 5 U/S. 148 DATED 29.11.2012; COPY OF LETTER DATED 14. 7.2016, 26.7.2016, 1.9.2016 AND 29.9.2016 TO AO REGARDING CROSS EXAMIN ATION OF SH. NEERAJ JAIN; COPY OF LETTER DATED 21.6.2017 TO CIT(A) FOR REMAND REPORT; COPY OF LETTER DATED 21.7.2017 TO AO & CIT(A) FOR REMAND RE PORT; COPY OF LETTER DATED 8.2.2013 TO AO; COPY OF ACKNOWLEDGEMENT OF RE TURN, COMPUTATION AND BALANCE SHEET OF AY 2005-06; COPY OF ACKNOWLEDG EMENT OF RETURN AND BALANCE SHEET OF AY 2004-05; COPY OF ACKNOWLEDGEME NT OF RETURN OF SH. NEERAJ JAIN; COPY OF PASS BOOK OF ASSESSEE AND COPY OF LETTER DATED 22.3.2018 TO CIT(A) AND RELIED UPON THE ITAT DECISI ON DATED 3.3.2016 PASSED IN THE CASE OF VS CAPITAL SERVICES PVT. LTD. IN ITA NO. 6162/DEL/2012 (AY 2002-03) BY PLACING THE COPY THER EOF. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND STATED THAT THEY HAVE PASSED WELL REASO NED ORDERS, WHICH DO NOT NEED ANY INTERFERENCE AND NEEDS TO BE UPHELD. 5. I HAVE HEARD BOTH THE PARTIES AND PERUSED AND CO NSIDERED THE RECORDS ESPECIALLY THE IMPUGNED ORDER AS WELL AS TH E PAPER BOOK AND THE CASE LAW RELIED UPON BY THE ASSESSEES COUNSEL. I FIND THAT LD. CIT(A) HAS ELABORATELY DISCUSSED THE ISSUES IN DISPUTE A ND ADJUDICATED THE SAME VIDE PARA NO. 5 TO 6 AT PAGE NO. 14 TO 22, WHI CH ARE REPRODUCED HEREUNDER:- 5.1 AFTER PERUSING THE AFORESAID FINDINGS OF THE L D. CIT(A), WE FIND THAT 5. EXAMINATION OF THE ISSUE AND DECISION:- 6 I HAVE CONSIDERED THE FACTS OF THE CASE, THE BASIS OF THE ADDITIONS MADE BY THE AO AND THE SUBMISSIONS AND TH E PAPER BOOKS PLACED ON RECORD BEFORE ME BY THE APPELLANT. BY WAY OF FACTS, THE AO HAS RECEIVED A REPORT FROM THE INVESTIGATION WING, EVIDENCING THAT THE APPELLANT H AS RECEIVED AN ACCOMMODATION ENTRY OF RS. 2,50,000 FRO M MR NIRAJ JAIN PROP. POOJA EXPO INC. ON THE BASIS OF SUCH INFORMATION, THE AO HAS RECORDED THE REASONS TO BEL IEVE AND ISSUED NOTICE UNDER SECTION 147/148 OF THE ACT. THE APPEAL RELATES TO MAIN ISSUE RELATING TO ADDITI ON OF CASH CREDIT AMOUNTING TO RS. 2,50,000 RECEIVED FROM POOJA EXPO INC. UNDER SECTION 68 AND COMMISSION AMOUNTING TO RS, 12,500/- FOR OBTAINING ACCOMMODATI ON ENTRY OF RS. 2,50,000/-. THE MATTER IS IN THE SECOND ROUND OF APPEAL, AFTER HONBLE ITAT HAS REFERRED THE MATTER BACK TO THE FI LES OF THE AO FOR FRESH DISPOSAL. HONBLE TRIBUNAL IN ITS COMMON ORDER IN THE CASES O F RAMESH CHANDER GARG HUF AND KAVITA GUPTA DATED 06.08.2015 IN ITA NO. 5190/DEL/2014 AND ITA NO. 5191/DEL/2014 REMITTED BACK THE ISSUE TO THE FILE O F AO BY HOLDING THAT: 7 THEREFORE, IN THE INTEREST OF NATURAL JUSTICE, I R EMIT BACK THE ISSUE IN DISPUTE TO THE FILE OF THE AO WIT H THE DIRECTIONS TO DECIDE THE SAME AFRESH, UNDER THE LAW , AFTER CONSIDERING ALL THE RELEVANT EVIDENCES, AFTER GIVING FULL OPPORTUNITY TO THE ASSESSEE OF BEING HEARD. TH E ASSESSEE IS ALSO DIRECTED TO FURNISH ALL THE EVIDEN CES BEFORE THE AO TO SUBSTANTIATE HIS CASE. THE AO REFIXED THE MATTER POST THE DECISION OF THE ITAT AND GAVE AMPLE OPPORTUNITY TO THE AO. HOWEVER, THE APPELLANT DID NOT APPEAR BEFORE THE AO PURSUANT TO FIRST TWO NOTICES DATED 18.05.2016 AND 01.06.2016. THE APPELLANT FILED FIRST LETTER BEFORE THE AO ON 14.07 .2016 REQUISITIONING THE CROSS-EXAMINATION OF MR. NIRAJ J AIN OWNER OF POOJA EXPO INC. IN PERSON. THE AO SUMMONED MR. NIRAJ JAIN, BUT MR. JAIN DID NO T APPEAR BEFORE THE AO FOR THE PURPOSE OF CROSS- EXAMINATION. THE AO THEN REQUISITIONED THE APPELLAN T TO PROVE THE IDENTITY, CREDIT WORTHINESS AND GENUINENE SS OF THE TRANSACTION AND FIXED THE MATTER TO NOVEMBER 21 , 2016. HOWEVER, AGAIN NO ONE APPEARED ON NOVEMBER 21, 2016 NOR ANY COMMUNICATION WAS RECEIVED FROM TH E ASSESSEE IN THIS REGARD. 8 AO PLACING RELIANCE ON THE PREVIOUS ORDER PASSED, M ADE THE ADDITION UNDER SECTION 68 OF THE ACT AMOUNTING TO RS. 2,50,000 AND FURTHER ADDED A SUM AMOUNTING TO R S. 12,500/- ON ACCOUNT OF COMMISSION PAID TO OBTAIN TH E ABOVE MENTIONED ENTRY. BEFORE THE AO AT THE TIME OF ORIGINAL ASSESSMENT, T HE APPELLANTS STAND WAS THAT THE AMOUNT OF RS. 2,50,0 00 WAS RECEIVED BACK ON ACCOUNT OF THE ADVANCE OF RS. 3,00,000 PAID IN CASH BY THE APPELLANT TO MR. NIRAJ JAIN FOR PURCHASE OF PROPERTY. HOWEVER, THE DEAL COULD N OT MATERIALISE AND MR. NIRAJ JAIN ONLY RETURNED RS. 2,50,000/- AND FORFEITED RS. 50,000/-. BEFORE ME THE APPELLANT RAISED TWO GROUNDS OF APPEA L. ONE PERTAINING TO ADDITION OF RS. 2,50,000/- MADE UNDER SECTION 68 OF THE ACT AND OTHER AGAINST ADDIT ION OF UNACCOUNTED EXPENSES OF RS. 12,500/-. HOWEVER, VIDE LETTER DATED 18.04.2017, THE APPELLAN T RAISED ADDITIONAL GROUNDS. THE APPELLANT RAISED A G ROUND STATING THAT THE AO HAS ERRED IN REOPENING THE CASE UNDER SECTION 148 OF THE ACT. ADDITIONAL GROUNDS OF APPEAL RAISED DURING THE APPELLATE PROCEEDINGS ARE AS FOLLOWS:- 9 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, LD. AO ERRED IN REOPENING OF THE C ASE U/S 148 DUE TO FOLLOWING REASONS:- A TOTAL LACK OF TANGIBLE MATERIAL AND/OR REASONABLE CAUSE, ABSENCE OF NEXUS (MUCH LESS LIVE NEXUS) BETW EEN ALLEGED INFORMATION (UNKNOWN WHETHER EXISTS ON THE FILE OR NOT) AN TENTATIVE INFERENCE DRAWN, NON APPLICATI ON OF MIND MUCH LESS INDEPENDENT APPLICATION OF MIND, TOT AL LACK OF CLARITY ON THE NATURE OF TRASNSACTION IN TH E REASONS RECORDED. RAMESH CHANDER GARG (HUF) APPEAL NO 187/16-17, AY: 2005-06 B IN THE REASONS RECORDED ON PAGE NO 2 OF THE ASSESSMENT ORDER HAS BEEN MENTIONED AS RAMESH CHAND GARGE (HUF.) HAS OBTAINED FOLLOWING ACCOMMODATION ENTRY DURING THE F. Y 2004-05, RELEVA NT TO A. Y 2005-06 DATE CHEQUE NO. AMOUNT BENEFICIARY NAME BENEFICIARY BANK BENEFICIARY BRANCH NAME NAME BANK A/C NO. 22.8.04 045888 250000 RAMESH CHAND GARG (HUF) PNB PUNJABI BAGH POOJA EXPO INC. CORPORATION BANK, KAMLA NAGAR 3950 FURTHER, IN THE ORIGINAL ASSESSMENT ORDER DATED 27.02.2013, IT HAS BEEN MENTIONED THAT THE ADVANCE 10 WAS RECEIVED BACK FROM MANOJ JAIN WHEREAS NO MONEY WAS RECEIVED FROM MANOJ JAIN. IT IS SETTLED THAT REASONS CANNOT BE RECORDED IN A PIECEMEAL MANNER AND IS NOT EMPTY RITUAL. C. THE ADDITION IS MADE ON THE DIRECTIONS AND DICTATES OF INVESTIGATION WING TREATING ITS RECOMMENDATION AS GOSPEL TRUTH. D. ADVERSE INTERFERENCE IS AUTOMATICALLY DRAWN SOLELY AND MERELY BECAUSE OF NON- APPEARANCE OF SH. NIRAJ JAIN IN SPITE OF THE FACT THAT DEPARTMENT HAS COMPLETE DETAILS OF SH. NIRAJ JAIN, PROP, OF POOJA EXPO INC. FINDINGS ON ADDITIONAL GROUND VIDE SUBMISSION DATED 5/5/2017 BEFORE ME, THE APPELLANT HAS SUBMITTED AND AVERRED THAT THE REOPEN ING IS BAD IN LAW AND TOTALLY WRONG AND THUS THE REASSESSMENT PROCEEDINGS MUST BE QUASHED AS NOTICE UNDER SECTION 148 WAS NOT PROPERLY SERVED AND THAT THE REASON TO BELIEVE OF THE AO IS NOT PROPER. AFTER CAREFULLY CONSIDERING THE SUBMISSION OF THE APPELLANT AND THE ORDER PASSED BY THE AO, IT IS NOT ICED THAT NO SUCH CONTENTION WAS EVER RAISED BY THE 11 APPELLANT BEFORE THE AO. FURTHER, THE APPELLANT NEV ER RAISED ANY SUCH CONTENTION IN THE FIRST ROUND OF AP PEAL BEFORE ANY OF THE AUTHORITY BE IT CIT(A) OR HONBLE TRIBUNAL. RAMESH CHANDER GARG (HUF) APPEAL NO. 187/16-17, AY: 2005-06 HOWEVER, CONSIDERING THE PRINCIPLES OF NATURAL JUST ICE, THE ADDITIONAL GROUNDS OF APPEAL RAISED BY THE APPE LLANT ARE CONSIDERED. BEFORE ME THE APPELLANT HAS FURNISHED A WRITTEN SUBMISSION DATED 05.05.2017 AND AT THE OUTSET STATE D THAT THE INITIATION OF REASSESSMENT PROCEEDINGS IS BARRED BY LIMITATION AS NOTICE ISSUED UNDER SECTION 147 OF THE ACT WAS NOT SERVED WITHIN THE PRESCRIBED TIME LIMIT S. IN THIS REGARD, FIRSTLY NO SUCH GROUND OF APPEAL IS RA ISED BY THE APPELLANT, FURTHER NO ADDITIONAL GROUND OF APPE AL IS ALSO RAISED BY THE APPELLANT ON SUCH ISSUE. HOWEVER , HAVING CONSIDERED SO, EVEN ON MERITS, IT IS WORTH T AKING NOTE THAT AS PER THE PROVISIONS OF SECTION 147/148 OF THE ACT, THE AO HAS TO ISSUE THE NOTICE WITHIN THE PRESCRIBED TIMELINES AND IT IS NOT NECESSARY THAT T HE ORDER IS SERVED TO THE ASSESSEE WITHIN THE SAID TIMELINES. IF THE NOTICE IS ISSUED WITHIN THE SUGGE STED 12 TIMELINES IT IS A VALID NOTICE AND NOT BARRED BY LI MITATION. IN THE INSTANT CASE THE NOTICE WAS ISSUED ON 16.03. 2012 MUCH BEFORE THE LIMITATION HENCE, THE NOTICE IS NOT BARRED BY LIMITATION. FURTHER, THE APPELLANT HAS SUBMITTED THAT THERE IS NO NEXUS BETWEEN ALLEGED INFORMATION AND TENTATIVE INFERENCE, NON-APPLICATION OF MIND MUCH LESS INDEPENDENT APPLICATION OF MIND, TOTAL LACK OF CLAR ITY ON THE NATURE OF TRANSACTION AND HENCE THE ADDITION MA DE AND ORDER PASSED UNDER SECTION 147/148 IS BAD IN LA W. BEFORE ME THE APPELLANT HAS ALSO SUBMITTED FEW CASE LAWS ON DIFFERENT ISSUES. APPELLANT HAS MIXED TWO T HREE ISSUES SUCH AS CHANGE OF OPINION', COHERENCE OF REASON TO BELIEVE, DEFINITIVE RECORDING OF REASON S THAT THERE IS ESCAPEMENT OF INCOME AND HAS QUOTED THE CASE LAWS WITHOUT REALISING THAT THE SAME DO NOT PE RTAIN TO THE GROUNDS OF APPEAL OF THE APPELLANT. ONE SHOU LD NOT JUST FOR THE SAKE OF PROVING A POINT QUOTE A DE CISION WHICH DOES NOT RELATE TO THE SUBMISSIONS MADE. I HAVE GONE THROUGH THE REASONS RECORDED BY THE AO FOR THE PURPOSE OF REOPENING THE ASSESSMENT. EVEN THOUG H, THE AO HAS RELIED ON THE INFORMATION RECEIVED FROM THE 13 INVESTIGATION WING, THE AO HAS APPLIED HIS MIND BEF ORE ISSUING THE NOTICE UNDER SECTION 148 OF THE ACT. THE SUBMISSION OF THE APPELLANT THAT THE REOPENING IS BAD IN LAW BECAUSE THERE IS TOTAL LACK OF CLARITY O N THE NATURE OF TRANSACTION IN THE REASONS RECORDED IS TO TALLY BASELESS. ONE HAS TO UNDERSTAND THAT AT THE TIME OF RECORDING REASON IT IS A BELIEVE THAT THE INCOME HAS ESCAPED ASSESSMENT. SUCH BELIEF MAY OR MAY NOT LEAD TO ADDITION TO THE INCOME OF THE ASSESSEE AND WILL TOT ALLY DEPEND UPON HOW THE APPELLANT DISCHARGES HIS ONUS B Y SUBMITTING THE EVIDENCE ON RECORD. THE PROVISION OF THE ACT ONLY MANDATES THAT FROM THE INFORMATION AVAILAB LE ON RECORD, THE AO AFTER APPLYING HIS MIND INDEPENDE NTLY IS PRIMA FACIE OF THE VIEW AND HAVE REASON TO BELIE VE THAT THE INCOME HAS ESCAPED ASSESSMENT. THUS, THE ADDITIONAL GROUND OF APPEAL RAISED BY THE APPELLANT IS REJECTED. FURTHER, BEFORE ME, THE APPELLANT HAS SUBMITTED AND AVERRED AT LENGTH WITH CASE LAWS THAT THE APPELLANT REQUISITIONED THE CROSS-EXAMINATION OF MR. NIRAJ JA IN, HOWEVER, THE AO DID NOT PROVIDE THE SAID CROSS- EXAMINATION, HENCE THE ADDITION IS BAD IN LAW AS NO 14 EVIDENCE CAN BE USED AGAINST THE APPELLANT WITHOUT GRANTING ANY OPPORTUNITY TO CROSS- EXAMINE THE SAME , IN VIEW OF THE PRINCIPLES OF NATURAL JUSTICE. HERE, IT IS IMPORTANT TO NOTE THAT THOUGH THE AUTHO RISED REPRESENTATIVE FOR AND ON BEHALF OF THE APPELLANT H AS MADE LENGTHY SUBMISSION BEFORE ME, BUT AGAIN NO GROUND OF APPEAL WAS RAISED ON THE SAID CONTENTION BEFORE ME, THUS THE SUBMISSIONS OF THE APPELLANT CA NNOT BE CONSIDERED AS NO SUCH GROUND OF APPEAL IS RAISED BEFORE ME AND NOR EVEN ANY APPLICATION FOR ADDITION AL GROUND OF APPEAL WAS FILED ON SUCH CONTENTION. ANY JUDICIAL AUTHORITY OR QUASI-JUDICIAL AUTHORITY, CAN RENDER ITS DECISION ONLY ON THE GROUND OF APPEAL RA ISED BEFORE THE SAID AUTHORITY. THE AUTHORITY CANNOT GO BEYOND THE GROUNDS RAISED. GROUND NUMBER 1 NOW, CONSIDERING THE GROUND NUMBER 1 RAISED BY THE APPELLANT, A BARE PERUSAL OF THE SAME WOULD REVEAL THAT IT APPEARS TO BE A STATEMENT OF FACT RATHER THAN A GROUND OF APPEAL. HOWEVER, FROM PERUSAL OF THE SAME , ONE COULD GATHER THAT THE CONTENTION OF THE APPELLA NT IS THAT NO ADDITION COULD BE MADE IN THE ABSENCE OF AN Y EVIDENCE ON RECORD. 15 IN THIS R EGARD, I HAVE TAKEN NOTE OF THE ORDER PASSED THE AO GAVE AMPLE OPPORTUNITY TO THE APPELLANT TO PROV E THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF T HE TRANSACTION. BUT INSTEAD OF SUBMITTING ANYTHING ON RECORD, THE APPELLANT CHOSE TO KEEP QUITE AFTER FIL ING A LETTER FOR REQUISITIONING THE CROSS-EXAMINATION. TH E WHOLE ACT OF THE APPELLANT ITSELF SUGGEST THAT THE APPELLANT WAS TOTALLY BUILDING UP ITS CASE ON THE L EGAL GROUNDS OF CROSS-EXAMINATION WITHOUT BRINGING ANYTH ING ON RECORD TO SUBSTANTIATE ITS CLAIM. AS REGARDS THE ISSUE OF PROVIDING AN OPPORTUNITY OF CROSS EXAMINATION OF MR. JAIN, THE ASSESSEE CANNOT SHUN I TS DUTY AND RESPONSIBILITY AS A TAXPAYER AND TAKE THE SHELTER OF SUCH ARGUMENTS INSTEAD OF LEADING EVIDEN CES IN SUPPORT OF HIS CLAIM. ONCE THE APPELLANT WAS MAD E AWARE OF THE RESULT OF INVESTIGATION CARRIED OUT BY THE INVESTIGATION WING IN RESPECT OF ENTRY PROVIDERS AN D THE NAME OF THE ASSESSEE APPEARED AS A BENEFICIARY, THE ONUS UNDER SECTION 101 OF THE INDIAN EVIDENCE ACT, 1972 WAS ON THE ASSESSEE TO PROVE THAT IT HAS ENTER ED INTO A GENUINE TRANSACTION WITH MR. NIRAV JAIN AS I T IS THE ASSESSEE WHO IS ASSERTING A CLAIM THAT THE HUF HAD ENTERED INTO GENUINE TRANSACTIONS. IT IS RELEVANT T O NOTE HERE THAT HON'BLE SUPREME COURT IN THE CASE OF SHRI 16 CHARAN SINGH ' VERSUS CHANDRA BHAN SINGH AIR 1988 S C 637 HAS CLARIFIED THAT THE BURDEN OF PROOF LIES ON THE PARTY WHO SUBSTANTIALLY ASSERTS THE AFFIRMATIVE OF THE ISSUE AND NOT UPON THE PARTY WHO DENIES IT. IT HAS BEEN FURTHER HELD THAT THE PARTY CANNOT, ON FAILURE TO E STABLISH A PRIMA FACIE CASE, TAKE ADVANTAGE OF THE WEAKNESS OF HIS ADVERSARY'S CASE. THE PARTY MUST SUCCEED BY THE STRENGTH OF HIS OWN RIGHT AND THE CLEARNESS OF HIS OWN PROOF. HE CANNOT BE HEARD TO SAY THAT IT WAS TOO DI FFICULT OR VIRTUALLY IMPOSSIBLE TO PROVE THE MATTER IN QUES TION. SINCE IN THIS CASE THE APPELLANT HAD MADE THE CLAIM THAT MONEY WAS GIVEN FOR PURCHASE OF A PROPERTY, ALL THE FACTS WERE ESPECIALLY WITHIN ITS KNOWLEDGE. SECTION 102 OF INDIAN EVIDENCE ACT MAKES IT CLEAR THAT INITIAL ONUS IS ON PERSON WHO SUBSTANTIALLY ASSERTS A CLAIM. IF THE ONUS IS DISCHARGED BY HIM AND A CASE IS MADE OUT, THE ON US SHIFTS ON TO DEPONENT. IT IS PERTINENT TO MENTION H ERE THAT THE PHRASE 'BURDEN OF PROOF IS USED IN TWO DIS TINCT MEANINGS IN THE LAW OF EVIDENCE VIZ, THE BURDEN OF ESTABLISHING A CASE', AND 'THE BURDEN OF INTRODUCIN G EVIDENCE'. THE BURDEN OF ESTABLISHING A CASE REMAIN S THROUGHOUT TRIAL WHERE IT WAS ORIGINALLY PLACED, IT NEVER SHIFTS. THE BURDEN OF EVIDENCE MAY SHIFT CONSTANTLY AS EVIDENCE IS INTRODUCED BY ONE SIDE OR THE OTHERS. I N THIS 17 CASE, ONCE THE EVIDENCE THAT ASSESSEE HAS OBTAINED ACCOMMODATION ENTRY WAS INTRODUCED BY THE AO, THE BURDEN OF EVIDENCE SHIFTED TO THE ASSESSEE.. DURING THE ASSESSMENT PROCEEDING AND EVEN DURING THE APPELLATE PROCEEDING, THE ASSESSEE HAS FAILED TO PRODUCE ANY EVIDENCE TO PROVE THAT THE TRANSACTION IN QUESTION WAS GENUINE. IT HAS ALSO BEEN CONTESTED BY THE APPELLANT THAT TH E ASSESSEE WAS NOT PROVIDED WITH OPPORTUNITY TO CROSS EXAMINE THE PERSONS/WITNESS WHO ACCORDING TO REVENU E WAS AN ACCOMMODATION ENTRY PROVIDER, I FIND THAT SU CH RIGHT AS HELD IN VARIOUS DECISIONS, IS NOT AN ABSOL UTE RIGHT AND DEPENDS NOT ONLY THE CIRCUMSTANCES OF THE CASE BUT ALSO ON THE STATUTE CONCERNED. THE HONBLE SUPREME COURT HAS HELD IN THE CASE OF STATE OF J&K VS BAKSHI GULAM MOHD. AIR 1967 (SC) 122, AND IN THE CASE OF NATH INTERNATIONAL SALES VS. UOI AIR 1992 D EL 295 THAT THE RIGHT OF HEARING DOES NOT INCLUDE A RI GHT TO CROSS EXAMINE. THE RIGHT TO CROSS EXAMINE MUST DEPE ND UPON THE CIRCUMSTANCES OF EACH CASE AND ALSO ON THE STATUTE CONCERNED. IN THE CASE OF T. DEVASAHAYA NAD AR VS. CIT (1965) 51 ITR 20 (MAD) IT WAS HELD THAT IT IS NOT AN UNIVERSAL RULE THAT ANY EVIDENCE UPON WHICH THE DEPARTMENT MAY RELY SHOULD HAVE BEEN SUBJECTED TO 18 CROSS-EXAMINATION. IF THE AO REFUSES TO PRODUCE AN INFORMANT FOR CROSS EXAMINATION BY THE ASSESSEE THE RE CANNOT BE ANY VIOLATION OF NATURAL JUSTICE. IN THE CASE OF GTC INDUSTRIES LTD. VS ACIT(1998) 60 TTJ(BOMB-TR IB) 308, IT WAS HELD THAT WHERE STATEMENT AND REPORT OF THIRD PARTIES ARE ONLY THE SECONDARY AND SUBORDINAT E MATERIAL WHICH WERE USED TO BUTTRESS THE MAIN MATTE R CONNECTED WITH THE AMOUNT OF ADDITION, DENIAL OF OPPORTUNITY TO CROSS EXAMINE THIRD DID NOT AMOUNT T O VIOLATION OF NATURAL JUSTICE. EACH CASE HAS GOT TO BE DECIDED ON THE FACTS AND CIRCUMSTANCES OF THAT CASE . THE RELEVANT FACTORS TO BE CONSIDERED ARE SURROUNDI NG CIRCUMSTANCES, OBJECTIVE FACTS, EVIDENCES ADDUCED, PRESUMPTION OF FACTS BASED ON COMMON HUMAN EXPERIENCE IN LIFE AND REASONABLE CONCLUSIONS. IN T HE PRESENT CASE, AS DISCUSSED ABOVE, THERE IS OVERWHELMING EVIDENCES THAT THE TRANSACTIONS ON WHI CH ADVERSE VIEWS HAVE BEEN TAKEN ARE NOT GENUINE TRANSACTIONS BUT ACCOMMODATION ENTRIES. AGAINST THE ABOVE BACKGROUND, IT IS WORTH REITERATI ON THAT IN TERMS OF THE PROVISIONS OF SECTION 68 OF TH E ACT, INITIAL ONUS IS ON THE APPELLANT TO SUBSTANTIATE TH E IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION. IT IS NOT A CASE WHERE THERE WAS NO EN TRY IN 19 THE BOOKS OF ACCOUNTS OF THE APPELLANT AND AN ARBIT RARY ADDITION WAS MADE. THERE WAS VERY MUCH A CREDIT ENT RY IN THE BOOKS OF ACCOUNTS OF THE APPELLANT, FOR WHIC H THE AO ASKED THE APPELLANT TO PROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION . THUS, IN TERMS OF THE PROVISIONS OF THE ACT WHERE T HE DUTY IS CAST UPON THE APPELLANT TO DISCHARGE THE ON US OF PROVING THE IDENTITY, CREDITWORTHINESS AND GENUINEN ESS, THE GROUND OF THE APPELLANT THAT THE AO FAILED TO B RING ANY EVIDENCE ON RECORD IS TOTALLY BASELESS AND AGAI NST THE PRINCIPLES OF LAW. BEFORE ME AND THE AO, THE APPELLANT DID NOT FURNISH ANYTHING ON RECORD TO JUSTIFY THE SAME. THE APPELLA NT ONLY PLACED ONE STORY ON RECORD WITHOUT ANY EVIDENC E/ DOCUMENTS TO SUGGEST THE SAME. THE APPELLANT HAS NO T FURNISHED ANY CONFIRMATION, ANY DOCUMENT TO SUGGEST ANY SUCH TRANSACTION. THE APPELLANT HAS ALSO NOT SUBMITTED THE DETAILS OF THE PROPERTY FOR WHICH THE ADVANCE WAS GIVEN. EVEN IF AS PER THE SUBMISSION OF THE APPELLANT, THE APPELLANT RETURNED THE ORIGINAL RECE IPT TO MR. NIRAJ JAIN, THE APPELLANT MUST HAVE KEPT A PHOTOCOPY OF THE SAME FOR RECORDS, FURTHER THE APPE LLANT MUST BE AWARE OF THE PROPERTY FOR WHICH SUCH ADVANC E WAS GIVEN, FURTHERMORE, THERE SHOULD HAVE BEEN SOME 20 MOU AND AGREEMENT TO SALE DISCLOSING THE TOTAL CONSIDERATION OF THE PROPERTY AT THAT TIME AND OTHE R TERMS AND CONDITIONS. HOWEVER, NOTHING WAS PLACED O N RECORD BY THE APPELLANT. HERE, IT IS ALSO WORTH NOTING THAT THE HONBLE TRIB UNAL IN ITS ORDER DATED 06.08.2015 AT PARA 7 OF THE ORDER H AS CLEARLY QUOTED THAT THE ASSESSEE IS ALSO DIRECTED TO FURNISH ALL THE EVIDENCES BEFORE THE AO TO SUBSTANT IATE HIS CASE.' HOWEVER, IN VIEW OF THE ABOVE, IT IS OBVIOUS THAT T HE APPELLANT HAS FAILED TO FURNISH EVEN A SINGLE DOCUM ENT ON RECORD TO SUBSTANTIATE ITS STAND. IN SUCH A SCENARIO, CONSIDERING THE SUBMISSION AND THE GROUNDS RAISED, THIS GROUND OF APPEAL IS REJECTED, AND THE ADDITION OF RS. 2,50,000/- IS SUSTAINED. FINDINGS ON GROUND NUMBER 2 THE APPELLANT HAS ALSO RAISED A GROUND WITH REGARD TO ADDITION ON ACCOUNT OF EXPENSES OF COMMISSION AT TH E RATE OF 5% AMOUNTING TO RS. 12,500 MADE UNDER SECTION 69C OF THE ACT. THE GROUND REALITY THAT ARRANGING OF ACCOMMODATION ENTRY NECESSARILY ENTAILS PAYMENT OF COMMISSION TO 21 ENTRY PROVIDERS CANNOT BE IGNORED. I FIND THE RATE OF COMMISSION HAS REASONABLY BEEN ESTIMATED BY THE AO AT THE RATE OF 5% ON THE AMOUNT OF ACCOMMODATION ENTRY. ACCORDINGLY, ADDITION OF RS.12,500/- IS ALSO CONFIRMED. 6. IN THE RESULT, THE APPEAL IS DISMISSED. 5.1 AS FAR AS GROUND NO. 1 & 3 RELATING TO ADDITIO N OF RS. 2,50,000/- MADE UNDER SECTION 68 OF THE ACT IS CONCERNED, I FI ND THAT THAT INITIAL ONUS IS ON THE ASSESSEE TO SUBSTANTIATE THE IDENTITY, CR EDITWORTHINESS AND GENUINENESS OF THE TRANSACTION. IT IS NOT A CASE WH ERE THERE WAS NO ENTRY IN THE BOOKS OF ACCOUNTS OF THE ASSESSEE AND AN ARB ITRARY ADDITION WAS MADE. THERE WAS VERY MUCH A CREDIT ENTRY IN THE BOO KS OF ACCOUNTS OF THE APPELLANT, FOR WHICH THE AO ASKED THE ASSESSEE TO P ROVE THE IDENTITY, CREDITWORTHINESS AND GENUINENESS OF THE TRANSACTION . THUS, IN TERMS OF THE PROVISIONS OF THE ACT WHERE THE DUTY IS CAST UPON T HE ASSESSEE TO DISCHARGE THE ONUS OF PROVING THE IDENTITY, CREDITW ORTHINESS AND GENUINENESS, THE GROUND OF THE ASSESSEE THAT THE AO FAILED TO BRING ANY EVIDENCE ON RECORD IS TOTALLY BASELESS AND AGAINST THE PRINCIPLES OF LAW. IT IS NOTED THAT THE ASSESSEE HAS NOT FURNISHED ANY C ONFIRMATION, ANY DOCUMENT TO SUGGEST ANY SUCH TRANSACTION. THE ASSES SEE HAS ALSO NOT SUBMITTED THE DETAILS OF THE PROPERTY FOR WHICH THE ADVANCE WAS GIVEN. EVEN IF AS PER THE SUBMISSION OF THE ASSESSEE, THE ASSESSEE RETURNED THE ORIGINAL RECEIPT TO MR. NIRAJ JAIN, THE ASSESSEE MU ST HAVE KEPT A 22 PHOTOCOPY OF THE SAME FOR RECORDS, FURTHER THE ASSE SSEE MUST BE AWARE OF THE PROPERTY FOR WHICH SUCH ADVANCE WAS GIVEN, FURT HERMORE, THERE SHOULD HAVE BEEN SOME MOU AND AGREEMENT TO SALE DISCLOSING THE TOTAL CONSIDERATION OF THE PROPERTY AT THAT TIME AND OTHE R TERMS AND CONDITIONS. HOWEVER, NOTHING WAS PLACED ON RECORD BY THE ASSESS EE AND HE HAS FAILED TO FURNISH EVEN A SINGLE DOCUMENT ON RECORD TO SUBS TANTIATE ITS STAND. THEREFORE, LD. CIT(A) HAS RIGHTLY CONFIRMED THE ADD ITION OF RS. 2,50,000/-, WHICH DOES NOT NEED ANY INTERFERENCE ON MY PART, H ENCE, I UPHOLD THE ACTION OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE AN D REJECT THE GROUNDS RAISED BY THE ASSESSEE. IT IS ALSO NOTED THAT THE CASE LAWS CITED BY THE LD. COUNSEL FOR THE ASSESSEE IS DISTINGUISHED ON FACTS . 5.2 AS REGARDS ISSUE INVOLVED IN GROUND NO. 2 RELA TING TO CROSS EXAMINATION OF SH. NIRAJ JAIN IS CONCERNED, ASSESSE ES COUNSEL ARGUED THAT AO AS WELL AS LD. CIT(A) HAS NOT GRANTED OPPORTUNIT Y TO CROSS EXAMINE SH. NIRAJ JAIN, THEREFORE, THE ASSESSMENT IN DISPUT E MAY BE QUASHED. AFTER GOING THROUGH THE ORDERS PASSED BY THE REVENU E AUTHORITIES AS WELL AS ARGUMENTS ADVANCED BY THE LD. COUNSEL FOR THE AS SESSEE ON THE ISSUE INVOLVED IN GROUND NO. 2, I AM OF THE CONSIDERED VI EW THAT ASSESSEE HAS NOT TAKEN ANY SPECIFIC GROUND BEFORE THE LD. CIT(A) AND THEREFORE, THE LD. CIT(A) HAS RIGHTLY REJECTED THE REQUEST OF THE ASSE SSEE FOR CROSS EXAMINATION OF SH. NIRAJ JAIN. THEREFORE, NO INTER FERENCE IS REQUIRED ON MY PART IN THE WELL REASONED ORDER OF THE LD. CIT(A ) ON THIS ISSUE, HENCE, I UPHOLD THE ACTION OF THE LD. CIT(A) ON THIS ISSUE AND DISMISS THE GROUND RAISED BY THE ASSESSEE. 5.3 AS REGARDS GROUND NO. 4 RELATING TO ISSUE OF N OTICE U/S. 148 OF THE ACT AFTER THE PERIOD OF FOUR YEARS WITHOUT MENTIONI NG IN THE RECORDED REASON THAT THE ESCAPEMENT OF CHARGEABLE INCOME FRO M TAX WAS DUE TO 23 OMISSION OR FAILURE ON THE PART OF THE ASSESSEE TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARILY FOR ASSESSMENT IS IN VALID, BAD IN LAW AND NEEDS TO BE QUASHED IS CONCERNED, I FIND THAT THE S AID GROUND WAS NOT ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE, HENCE, THE SAME IS DISMISSED AS SUCH. HOWEVER, LD. CIT(A) HAS RIGHTLY ADJUDICATE D THE LEGAL GROUND AGAINST THE ASSESSEE AT PAGE NO. 17 & 18 OF THE IM PUGNED ORDER WHICH DOES NOT REQUIRE ANY INTERFERENCE ON MY PART. 5.4 AS REGARDS GROUND NO. 5 RELATING TO CONFIRMATI ON OF ADDITION OF RS. 12,500/- AS COMMISSION PAID IS CONCERNED, I FIND TH AT THE RATE OF COMMISSION HAS REASONABLY BEEN ESTIMATED BY THE AO AT THE RATE OF 5% ON THE AMOUNT OF ACCOMMODATION ENTRY AND THEREFORE, LD. CIT(A) HAS RIGHTLY CONFIRMED THE ADDITION IN DISPUTE, WHICH DO ES NOT NEED ANY INTERFERENCE ON MY PART, HENCE, I UPHOLD THE ACTION OF THE LD. CIT(A) ON THE ISSUE IN DISPUTE AND REJECT THE GROUND RAISED B Y THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 25-03-2019. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATE: 25/03/2019 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4.CIT (A) 5. D R, ITAT BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES