Sh. Karamjit S. Jaiwswal, New Delhi V. DCIT, New Delhi

ITA 3247/DEL/2016

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 6082 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 08-05-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 02-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR PRABHA KANT
• Assessee Lawyers: R S SINGHAVI
• Keywords: Reopening of assessment; Unexplained investment; Income from undisclosed sources; Residential status; Opportunity of being heard; Principle of natural justice; Peak credit; Source of fund; Deemed to accrue or arise in india; Tangible material; Onus to prove; Reason to believe; Reassessment proceedings
• Section: 142(1); 5(2); 251; 139(1); 13; 22; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH, D: NEW DELHI (THROUGH VIDEO CONFERENCING) BEFORE SHRI R.K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NOS.3247 & 3248/DEL/2016 ASSESSMENT YEARS : 200 6-07 & 2007-08 SH. KARAMJIT S. JAISWAL, LEGAL HEIR LATE SH. LADLI PERSHAD JAISWAL, 6, THE GREEN RAJOKRI, NEW DELHI-110038 PAN-AAJPJ5836C VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-2(2)(1), INTERNATIONAL TAXATION, ROOM NO.411, BLOCK-E-II, PRATYAKSH KAR BHAWAN, CIVIC CENTRE, NEW DELHI-110002 (APPELLANT) (RESPONDENT) ITA NOS.3730 & 3731/DEL/2016 ASSESSMENT YEARS : 200 6-07 & 2007-08 ANAND PERSHAD JAISWAL, 54-RING ROAD, LAJPAT NAGAR- III, NEW DELHI-110024 PAN-ADRPJ2549M VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-2(2)(1), INTERNATIONAL TAXATION, ROOM NO.411, BLOCK-E-II, PRATYAKSH KAR BHAWAN, CIVIC CENTRE, NEW DELHI-110002 (APPELLANT) (RESPONDENT) APPELLANT BY : MS. R.S. SINGHAVI, CA . RESPONDENT BY : DR. PRABHA KANT CIT - DR DATE OF HEARING : 02.02.2021 DATE OF PRONOUNCEMENT : 23.04.2021 ORDER PER R.K. PANDA, AM : ITA NO.3247/DEL/2016 & ITA NO.3248/DEL/2016 FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE COMMON ORDER DATED 21.04.2016 OF THE ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 2 LEARNED CIT(A)-43, NEW DELHI, RELATING TO ASSESSMENT YEARS 2006-07 AND 2007-08 RESPECTIVELY. ITA NO.3730/DEL/2016 & ITA NO.373 1/DEL/2016 FILED BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DAT ED 21.04.2016 OF THE LEARNED CIT(A)-43, NEW DELHI, RELATING TO ASSESSMENT YEARS2 006-07 AND 2007-08. SINCE, COMMON ISSUES ARE INVOLVED IN ALL THESE APPE ALS, THEREFORE, THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMO N ORDER. 2. FIRST, WE TAKE UP ITA NO.3247/DEL/2016 AS THE LEAD C ASE. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS AN IN DIVIDUAL AND IS NOT ORDINARY RESIDENT AS MENTIONED BY THE ASSESSING OFFICER IN CLAUSE 5 OF PAGE1 OF THE ASSESSMENT ORDER. THE ASSESSING OFFICER IN THE INSTA NT CASE, REOPENED THE ASSESSMENT AFTER RECORDING THE FOLLOWING REASONS:- REASONS FOR REOPENING U/S. 147 OF THE INCOME TAX AC T, 1961 IN THE CASE OF LATE SH. LADLIPERSHADJAISWAL THROUGH ALL HIS LEGAL HEIRS FOR THE A.Y. 2006-07. INFORMATION HAS BEEN RECEIVED IN THIS CASE FROM THE INVESTIGATION WING, DELHI. AS PER INFORMATION LATE SH. LADLI PERSHAD JAISWAL WAS HAVING A BANK ACCOUNT WITH HSBC GENEVA WITH CLIENT PROFILE NAMES 4487AA, 22628AA AN D SEAROSE FOUNDATION HAVING CLIENT PROFILE CODES 5091 264834, 5091262009 AND 5091195751 RESPECTIVELY. BUP_SIFICJPER_ID OF LATE SH. LADLI PERSHAD JAISWAL IS 5090130944. LATE SH. LADLI PERSHAD JAISWAL HAS EXPI RED AND SH. JAGAJIT JAISWAL, SH. KARAMJEET JAISWAL AND SH. ANAND PERSHAD JAISWAL ARE HIS SONS AND HIS LEGAL HEIRS. THE MAXIMUM OUTSTANDING BALANCE IN CLIENT PROFILE N AME 22628AA DURING THE PERIOD F.Y. 2005-06 WAS USD 3048891.78 (RS.13,70,47,686/-) IN JANUARY 2006 AND MAXIMUM OUTSTANDING BALANCE DURING THE PERIOD FY 20 06-07 WAS USD 3510614.27 (RS. 2,03,75,814/-) IN FEBRUARY 2007. THE WHOLE AMOUNT DEPOSITED IN HSBC BANK, GENEVA IS UNDISCLOSED TO THE IT AUTHORITIES OF INDIA BY LATE SH. LADLIPERSHADJAISWAL AND HIS LEGAL HEIRS WHICH NEEDS TO BE ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 3 TAXED. IT IS NOTICED FROM THE INFORMATION THAT SH. ANANDPERSHADJAISWAL IS HE JOINT ACCOUNT HOLDER OF T HE ABOVE STATE BANK ACCOUNT IN GENEVA. THE BUP_SIFIC_PER__ID ALLOTTED TO SH. ANAND PERSHAD IS 5090145761. THE BA NK ACCOUNT WAS CREATED ON 02.02.1997 AND MODIFIED ON 29.07.2004. THE LEGAL ADDRESS FOR SH. LADLI PERSHAD JAISWAL IS APPEARED AS B-69, GREATER KAILASH, PART-I, NEW DELH I-10048 HOWEVER, FOR SH. ANAND PERSHAD JAISWAL THEIR LEGAL ADDRESS IS 12, EAGLE PLACE, LANDON SW7-3RG, UNITED KINGDOM. THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME FOR THE A.Y. 2006-07. AS THE ASSESSEE HAD NOT OFFERED ANY INCOME ON THIS ACCOUNT, I HAVE REASON TO BELIEVE THAT INCOME AMOUN TING RS. 13,70,47,686/- (USD1=INR 44.95) CHARGEABLE TO TAX H AS ESCAPED ASSESSMENT IN A.Y. 2006-07. THIS MAY BE ISS UED TO THE ASSESSEE AT HIS LEGAL ADDRESS. THIS WILL BE PERTINENT TO MENTION THAT THIS CASE IS RELATED TO ASSETS LOCATED OUTSIDE INDIA THEREFORE, SECTION 149 (1)(C) WILL BE APPLICABLE FOR DETERMINING THE TIME LIMIT FOR REOPE NING THIS CASE. SECTION 149(1)(C) IS REPRODUCED HEREUNDER FOR READY REFERENCE: 149. (1) NO NOTICE UNDER SECTION 148 SHALL BE ISSUE D FOR THE RELEVANT ASSESSMENT YEAR (C) IF YOUR YEARS, BUT NOT MORE THAN SIXTEEN YEARS, HAVE ELAPSED FROM THE END OF THE RELEVANT ASSESSMENT YEAR UNLESS THE INCOME IN RELATION TO ANY ASSET (INCLUDING FINANCIA L INTEREST IN ANY ENTITY) LOCATED OUTSIDE INDIA, CHARGEABLE TO TA X HAS ESCAPED ASSESSMENT. SINCE FOUR YEARS FROM THE END OF THE RELEVANT ASSES SMENT YEAR HAVE BEEN EXPIRED, AN APPROVAL U/S. 151(2) OF THE I .T. ACT, 1961 IS SOLICITED. ACCORDINGLY, PUT FOR PERUSAL AND APPROVAL PLEASE. DATE: 30/03/2014 NISHTHATIWARI DY. DIRECTOR OF INCOME TAX, CIRCLE 3(1), INTL. TAXATION, NEW DELHI. SD/- ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 4 DY. COMMISSIONER OF INCOME TAX, CIRCLE-2(2)(1), DELHI (INTL.TAX) ROOM NO. 411, 4 TH FLOOR, E-2, BLOCK, PRATYAKSHKARBHAWAN, CIVIC CENTRE, J.L. NEHRU MARG, NEW DELHI-110002. 3. HE, THEREFORE, ISSUED NOTICE U/S 148 OF THE INCOME TA X ACT, 1961 (IN SHORT THE ACT) TO THE ASSESSEE. DURING THE C OURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE ASSESSE E HAS FILED HIS RETURN OF INCOME ON 28.07.2006 AT INCOME OF RS.6,92,310/-. TH IS RETURN HAS BEEN FILED IN THE STATUS OF NOT ORDINARILY RESIDENT IN THE INTERNATIONAL TAXATION CIRCLE-1(DEL.). HE NOTED THAT THE ASSESSEE HAS BE EN FILING RETURN OF INCOME IN THE STATUS OF NONRESIDENT FROM THE ASSESSMENT YEARS 1993-94 TO 2004-05. SINCE, SHRI LADLI PERSHAD JAISWAL HAS DIED ON 11.0 8.2005, A NOTICE WAS SENT TO HIS LEGAL HEIR. SUBSEQUENTLY, NOTICE U /S 142(1) OF THE ACT WAS ISSUED IN WHICH A CONSENT & WAIVER FORM RELATING T O THE DISCLOSURE OF INFORMATION AND GIVING CONSENT TO THE HSBC AUTHORITIES T O SHARE INFORMATION WITH THE INDIAN REVENUE AUTHORITIES IN RESPECT OF BANK ACCOUNTS WAS SENT TO THE ASSESSEE. 4. THE ASSESSEE EXPLAINED THAT THE RETURN ALREADY FILED U/S 139(1) OF THE ACT SHOULD BE TREATED AS RETURN FILED IN RESPECT OF NOTICE U/S 148 OF THE ACT. THE ASSESSEE ALSO REQUESTED TO PROVIDE THE RE ASONS FOR REOPENING OF ASSESSMENT U/S 147/148 OF THE ACT. WHICH WERE DULY PRO VIDED TO THE ASSESSEE. 5. THE ASSESSEE FILED HIS OBJECTIONS FOR REOPENING OF ASSE SSMENT STATING THE FOLLOWING ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 5 I. VERY BASIS OF ASSUMPTION OF JURISDICTION U/S 147 IS FALSE, BASELESS AND ILLEGAL II. REASONS OF REOPENING ARE BASED ON CONJECTURES, SURM ISES AND ARE NON-EXISTENT. III. THAT ASSESSEE HAS FILED RETURNS FOR A.Y. 2006-07 & 2007-08 AND THE ASSESSING OFFICER HAS WRONGLY MENTIONED IN THE REASONS THAT NO RETURN HAS BEEN FILED. IV. THAT THERE IS NO IOTA OF EVIDENCE OF ANY UNDISCLOSE D INCOME CHARGEABLE TO TAX AS ESCAPED ASSESSMENT AS PER REAS ONS RECORDED. V. THAT FROM A.Y. 2005-06 HIS STATUS WAS NOT ORDINARY RESIDENT AND-THAT AFTER HIS DEATH ON 11TH AUG0ST;2005, HIS S ON SH. KARANHJIT S. JAISWAL FILED INCOME TAX RETURN OF THE ESTATE OF LATE LADLI PERSHAD JAISWAL SINCE A.Y. 2006-07 ONWARDS. VI. THAT LALE LADLI PERSHAD JAISWAL WAS LIVING INDEPEND ENTLY IN UK AND LOOKING AFTER HIS PERSONAL AFFAIRS AND IN VIEW OF. SEC 5(2) OF THE INCOME TAX ACT HE CANPOT BE SUBJECT TO TAX FOR HIS INCOME OUTSIDE INDIA. VII. THAT SH. KARAMJIT S JAISWAL HAS NO KNOWLEDGE OF BAN K ACCOUNT OF LATE LADLI PERSHAD JAISWAL AND UNDER THE CIRCUMSTAN CES, THE BALANCE OUTSTANDING AS SHOWN IN.THE REASONS CONNOT BE TAXED IN HIS HANDS. 6. HOWEVER, THE ASSESSING OFFICER REJECTED THE OBJECTIONS FILED BY THE ASSESSEE BY OBSERVING AS UNDER:- THE OBJECTION OF THE ASSESSEE ARE ANSWERED AS UNDER :- 1. IN THIS CASE IT IS VERY IMPORTANT TO UNDERSTAND THA T THIS IS A CASE WHERE PROVISIONS OF EXPLANATION 2(D) TO SECT ION 147 ARE APPLICABLE AS IN THIS CASE THE ASSESSEE IS FOUND TO HAVE AN ASSET LOCATED OUTSIDE INDIA AND THIS IS DEEMED TO BE A CA SE WHERE INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. AC CORDINGLY, PROVISION OF SECTION .149(1) (C) WILL BE APPLICABLE FOR DETERMINING THE TIME LIMIT FOR RE-OPENING THIS CASE. THEREFORE, THE PROCEEDINGS U/S 147/148 ARE NOT BARRED BY TIME LIMITATIONS IN THIS C ASE. 2. AS REGARDS THE CONTENTION OF THE ASSESSEE THAT THE AO IN THE REASONS HAS WRONGLY MENTIONED THAT NO RETURN WA S FILED FOR THESE ASSESSMENT YEARS AND HENCE THE RE-OPENING IS BAD IN LAW, THIS ISSUE HAS BEEN EXAMINED AND IT IS FOUND THAT T HE PROVISIONS OF FIRST PROVISO TO SECTION 147 ARE NOT APPLICABLE IN THE CASE OF ASSESSES WHERE ANY INCOME IN RELATION TO ANY ASSET LOCATED, ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 6 OUTSIDE INDIA HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAN THEREFORE FILING OF RETURN OF INCOME IN WHICH THERE IS NO DISCLOSURE OF INCOME FROM ASSET LOCATED OUTSIDE IND IA DOES NOT GIVE IMMUNITY TO THE ASSESSEE FROM ASSESSMENT OR REASSESS MENT OF SUCH UNDISCLOSED INCOME SUBSEQUENTLY. 3. IN VIEW OF THE ABOVE, THE ASSUMPTION OF JURISDICTIO N U/S 147 IS PERFECTLY LEGAL AND CORRECT. 4. AS REGARDS CLAIMS OF THE ASSESSEE BEING NON-RESIDEN T SINCE A.Y. 1993- 94 TO 2004-05 AND BEING NOT ORDINA RY RESIDENT IN A.Y. 2006-07 & 2007- 08, FIRSTLY THE ONUS TO PROVE RESIDENTIAL STATUS FOR ALL THESE YEARS IS ON THE ASSESSEE [IN T HIS CASE LEGAL HEIR). APART FROM WRITTEN SUBMISSION, NO SUPPORTING DOCUMENTS/EVIDENCE ETC HAVE BEEN FILED FROM WHERE T HE STATUS COULD BE ASCERTAINED. THE ASSESSEE IS REQUESTED TO PROVIDE THE DETAILS IN ORDER TO SUBSTANTIATE ITS CLAIM THAT HE WAS NON-RESIDENT AND/OR NOT ORDINARY RESIDENT DURING ABOVE PERIOD AN D THAT THE INCOME IN RELATION TO THE ASSETS LOCATED OUTSIDE IN DIA ACCRUES & ARISES TO HIM OUTSIDE INDIA. IN THE ABSENCE OF ANY SUCH EVIDENCE AND EXPLANATION, THE ASSESSEES INCOME IN RELATION TO ASSET LOCATED OUTSIDE INDIA CANNOT BE HELD TO BE THE INCOME ACCRU ING/ARISING OUTSIDE INDIA AND IN SUCH A SITUATION, THE ARGUMENT OF THE ASSESSEE THAT IT CANNOT BE SUBJECT TO TAX IN INDIA HOLDS NO GROUND. 5. SH. KARAMJIT S JAISWAL HAS BEEN FILING RETURN OF IN COME AS LEGAL HEIR OF LATE LADLI PERSHAD JAISWAL AND ACCORD INGLY FOR ABOVE DISCUSSED INCOME, REASSESSMENT PROCEEDING HAVE BEEN CORRECTLY INITIATED IN HIS HANDS AS LEGAL HEIR OF LATE SH. L ADLI PERSHAD JAISWAL. AS REGARDS GATHERING INFORMATION FROM SH. ANAND PERSHAD JAISWAL, THE ASSESSMENT PROCEEDINGS ARE PEN DING IN HIS CASE AND DUE COURSE OF ACTION IS BEING TAKEN AS PER LAW AND FACTS OF THE CASE. 6. AS THE OBJECTIONS RAISED BY THE ASSESSEE HAVE BEEN REPLIED TO AND STAND MET WITH, YOU ARE REQUESTED-TO PROVIDE INFORMATION AS CALLED ABOVE AND COOPERATE IN THE MA TTER RELATING THE COMPLETION OF ASSESSMENT IN YOUR CASE. FOR THIS PURPOSE THE CASE IS FIXED FOR HEARING ON 27.11.2014 AT 11.30 AM . IN THIS WAY THE OBJECTION OF THE ASSESSEE WERE ADDR ESSED TO DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 7 7. THE ASSESSEE HAS BEEN CLAIMING THAT IT WAS NON-RE SIDENT FROM A.Y. 1993-94 TILL A.Y. 2004-05 AND THEREAFTER NOT ORDINARY RESIDENT IN A.Y. 2005-06 TO A.Y. 2007-08 AND AS PER THE PROVISIONS OF SECTION 5(2) HE CANNOT BE SUBJECTED TO TAX IN IN DIA AS INCOME REGARDING THESE DEPOSITS HAS NOT BEEN RECEIVED OR D EEMED TO BE RECEIVED IN INDIA BY HIM OR ACCRUES OR ARISES OR DE EMED TO ACCRUE OR ARISE IN INDIA. 7. SO FAR AS THE CLAIM OF THE ASSESSEE THAT IT WAS NON- RESIDENT FROM 1993-94 TILL 2004-05 AND THEREAFTER NOT ORDINARY RES IDENT IN AY 2005- 06 TO AY 2007-08 AND AS PER PROVISIONS OF SECTION 5(2) OF THE ACT, HE CANNOT BE SUBJECTED TO TAX IN INDIA AS INCOME REGARDING THESE DEPOSITS HAS NOT BEEN RECEIVED OR DEEMED TO BE RECEIVED IN INDIA BY HIM OR ACCRUES OR ARISES OR DEEMED TO ACCRUE OR ARISE IN INDIA IS CONCERNED, THE ASSESSING OFFICER OBSERVED AS UNDER:- IN THIS REGARD, THE CLAIM OF RESIDENT STATUS OF TH E ASSESSEE IS NOT BEING CHALLENGED IN THIS ASSESSMENT. THIS ISSUE IN THE CASE IS THAT OF SOURCE OF INVESTMENTS IN FIDUCIARY DEPOSITS IN S WISS BANK. DESPITE OPPORTUNITY, THE ASSESSEE HAS DENIED KNOWLE DGE OF ANY SUCH ACCOUNT AND HAS THEREFORE FAILED TO PROVIDE AN Y LEGITIMATE SOURCE OUTSIDE INDIA LEADING TO THE DEPOSITS OF SUC H SUMS IN THIS ACCOUNT. IN MORE SPECIFIC TERMS, THE ASSESSEE HAS F AILED TO EXPLAIN BEFORE THE ASSESSING OFFICER AS TO WHETHER THE SOUR CE OF SUCH DEPOSITS IS FROM THE INCOME EARNED OUTSIDE INDIA OR WHETHER THE SOURCE OF SUCH DEPOSITS IS OUT OF THE INCOME EARNED IN INDIA ON WHICH DUE TAXES HAVE BEEN PAID. IN EITHER CASE, THE ASSESSEE HAS NOT PROVIDED COMPLETE TRAIL OF THE FUNDS LEADING TO SUCH DEPOSITS. IN VIEW OF THE DISCUSSION MADE IN PARAS ABOVE ON TH E NATURE & PURPOSE/PLANNING OF MAKING FIDUCIARY DEPOSITS IN SW ISS BANKS AND FAILURE ON THE PART OF THE ASSESSEE TO EXPLAIN THE SOURCE OF SUCH DEPOSITS, IT CANNOT BE HELD THAT SUCH DEPOSITS ARE OUT OF THE INCOMES EARNED FROM OUT OF INDIA BY THE NON-RESIDEN T ASSESSEE OR NOT ORDINARY RESIDENT ASSESSEE. 8. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASS ESSING OFFICER NOTED THAT THE ASSESSEE HAS FILED RETURN OF INCOME DISCLOSING EARNING OF INTEREST INCOME ON INCOME TAX REFUND FOR EARLIER YEARS A ND INTEREST FROM SAVING BANK ACCOUNT AND THE TOTAL RETURNED INCOME WAS RS.6,92,310/-. ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 8 VIDE LETTER DATED 15.07.2014, THE ASSESSEE FILED A LETTER B EFORE THE AO THAT HE HAS NO KNOWLEDGE OF BANK ACCOUNT AT HSBC PRIVATE BA NK (SWISS)S.A. IT WAS FURTHER STATED THAT SIMILAR REPLY WAS FILED BEFORE DY. D IRECTOR (INVESTIGATION) UNIT-6, DELHI. 9. THE ASSESSING OFFICER ASKED THE ASSESSEE TO INFORM THE DATE AND PERIOD OF MAKING THE INITIAL DEPOSITS IN THESE ACCOUNTS, SOUR CE OF DEPOSITS IN THESE ACCOUNTS AND TO EXPLAIN AS TO WHETHER THE SOURC E OF SUCH DEPOSITS IS OUT OF THE INCOME EARNED IN INDIA AND ON WHICH DUE TAXES HAVE BEEN PAID AND/OR THESE INVESTMENTS ARE MADE FROM THE INCOME EARNED OUTSIDE INDIA. 10. REJECTING THE VARIOUS EXPLANATION GIVEN BY THE ASSE SSEE, THE ASSESSING OFFICER HELD THAT PROVISION OF EXPLANATION 2(D) TO SE CTION 147 OF THE ACT ARE APPLICABLE IN THIS CASE, SINCE, THE ASSESSEE IS FOUND TO HAVE AN ASSET LOCATED OUTSIDE INDIA. HE NOTED THAT AN AMOUNT OF INVESTMENT O F US $ 3048891.78 OF INR13,70,47,686/- BEING UNEXPLAINED INVESTMENT FROM UNDISCLOSED AND UNEXPLAINED SOURCES OF INCOME IN INDIA IS CH ARGEABLE TO TAX FOR AY 2006-07. HE FURTHER NOTED THAT FROM THE SAID CLIENT PROFILE N AME 22628AA, A SIGNIFICANT SUM OF USD $3055208.56 HAS BEEN DEP OSITED AS FIDUCIARY DEPOSIT AS ON JANUARY 2006. THEREFORE, HE HELD T HAT THE UNEXPLAINED INVESTMENT PERTAINS TO AY 2006-07 AND THE P EAK AMOUNT OF INR 13,70,47,686/- HAS TO BE ADDED TO THE TOTAL INCOME O F THE ASSESSEE BEING UNEXPLAINED INVESTMENT IN THE ASSETS HELD OUTSIDE IN DIA FROM AN UNDISCLOSED AND UNDECLARED SOURCE OF INCOME FROM INDIA. H E MADE THIS ADDITION TO THE TOTAL INCOME SUBSTANTIVELY IN THE HANDS OF SH. KARAMJIT S JAISAWAL AS LEGAL HEIR OF LATE LADLI PERSHAD JAISWAL BECAUSE S H. LADLI ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 9 PERSHAD JAISWAL IS THE PRIME ACCOUNT HOLDER I.E. ACCOUNT HO LDER-1 AND SH. KARAMJIT S JAISWAL HAS BEEN FILING RETURN OF INCOME OF ESTAT E OF LATE LADLI PERSHAD JAISWAL AS HIS LEGAL HEIR. 11. BEFORE THE LEARNED CIT(A), THE ASSESSEE MADE ELABORAT E ARGUMENTS. HOWEVER, THE LEARNED CIT(A) ALSO DID NOT FIND A NY MERIT IN THE ARGUMENTS AND UPHELD THE ADDITION IN PRINCIPLE BUT WAS OF T HE VIEW THAT SUBSTANTIVE ADDITION IS REQUIRED TO BE MADE IN THE HANDS OF SH. ANAND PERSHAD JAISWAL AS HE WAS THE JOINT ACCOUNT HOLDER OF TH E FOREIGN BANK ACCOUNT. ACCORDINGLY, THE SUBSTANTIAL ADDITION MADE IN THE HANDS OF THE SH. KARAMJIT S. JAISWAL WAS CONVERTED INTO PROTECTIVE ADD ITION AND VICE VERSA WAS DONE IN THE CASE OF ANAND PERSHAD JAISWAL. 12. AGGRIEVED WITH SUCH ORDER OF THE LEARNED CIT(A), THE A SSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS OF APPEAL:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E CIT(A) WAS NOT JUSTIFIED IN CONFIRMING INITIATION OF REASSESSM ENT PROCEEDINGS U/S. 148 EVEN THOUGH INITIATION OF PROCEED INGS U/S. 148 ARE ILLEGAL, ARBITRARY AND WITHOUT JURISDICTION IN THE ABSENCE OF TANGIBLE MATERIAL AND RECORDING OF PROPER SATISFACTION. 2. THAT IN THE ABSENCE OF ASSESSING OFFICER HAVING AUT HENTIC COPY OF ANY SUCH ACCOUNT OR PROPER APPRECIATION OF NATURE OF ENTRIES IN THE BANK ACCOUNT, THERE COULD BE NO JUSTIF ICATION FOR RECORDING OF SATISFACTION AND ASSUMPTION OF JURISDI CTION U/S. 148 OF THE I.T. ACT, 1961. 3. THAT EVEN OTHERWISE, REASSESSMENT PROCEEDINGS ARE NO T SUSTAINABLE AS SAME WERE WITHOUT REQUISITE APPROVAL IN TERMS OF PROVISIONS OF SEC. 251 OF THE I.T. ACT, 1961. ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 10 4I). THAT CIT(A) HAVING CONFIRMED THE ADDITION ON SUBS TANTIVE BASIS IN THE CASE OF ANAND PERSHAD JAISWAL, THERE IS NO JUSTIFICATION FOR HOLDING THE SAME ON PROTECTIVE BAS IS IN THE CASE OF APPELLANT. (II) THAT THE OBSERVATION AND CONCLUSION OF THE CIT(A) ARE ILLEGAL, ARBITRARY AND AGAINST THE SCHEME OF THE ACT. 5(I). THAT ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE CIT(A) HAS ERRED IN CONFIRMING ADDITION OF RS. 13,70,47,6 87/- ON PROTECTIVE BASIS IN THE CASE OF THE APPELLANT. (II). THAT WHOLE BASIS OF ADDITION IS ILLEGAL, ARBITRARY A ND MERELY BASED ON PRESUMPTION AND SURMISES. (III) THAT THERE IS NO LEGAL BASIS FOR PROTECTIVE ASSESSMEN T AND CONSEQUENTIAL TAX DEMAND AND SAME IS HIGHLY ARBITRARY AN D IN DISREGARD TO PROVISIONS OF SEC.159 OF THE I.T. ACT, 1961. 6(I). THAT ADDITION WAS MADE WITHOUT GOING INTO THE NAT URE OF DEPOSIT AND IN THE ABSENCE OF PROPER APPRECIATION O F FACTS, THERE COULD BE NO VALID BASIS FOR ANY SUCH ADDITION. (II). THAT THE FINDING OF LOWER AUTHORITIES ARE NOT B ASED ON PROPER APPRECIATION OF THE ENTRIES IN THE BANK ACCOU NT AND ADDITION WAS MADE ON MECHANICAL BASIS. 7. THAT THE ASSESSE IS NOT LIABLE TO ANY TAX LIABILITY AS LEGAL HEIR IN THE LIGHT OF PROVISIONS OF SEC. 159(4) OF THE I.T. ACT, 1961. 13. THE LEARNED COUNSEL FOR THE ASSESSEE STRONGLY CHALLE NGED THE ORDER OF THE LEARNED CIT(A) IN CONFIRMING THE ADDITION MADE B Y THE ASSESSING OFFICER AS WELL AS UPHOLDING THE VALIDITY OF REASSESS MENT PROCEEDINGS. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMIT TED THAT SH. LADLI PERSHAD JAISWAL WAS NON-RESIDENT FROM AY 1993-94 TO 200 4-05 AND WAS NOT ORDINARILY RESIDENT IN INDIA DURING THE AY 2005-06 AN D 2006-07. THIS POSITION HAS BEEN ACCEPTED BY THE ASSESSING OFFICER AT PA GE 9, PARA-7 OF THE ASSESSMENT ORDER. HE SUBMITTED THAT FOREIGN BANK ACCOU NT WITH HSBC ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 11 GENEVA (CLIENT PROFILE 22628AA) IS IN THE JOINT NAME OF THE AS SESSEE LATE SH. LADLI PERSHAD JAISWAL AND SH. ANAND PERSHAD JAISWAL. FURTH ER, THERE IS NO CASE OF ANY DEPOSITS IN THE YEAR UNDER REFERENCE I.E. F.Y. 2005-06 AND THE CREDIT ENTRY IN THE BANK ACCOUNT IS PROCEEDS FROM MATUR ITY OF BONDS. FURTHER, THE AMOUNT SO CREDITED INTO THE ACCOUNT WAS P OST DEMISE OF LATE SH. LADLI PERSHAD JAISWAL. HE SUBMITTED THAT THERE IS NO NE XUS OR CONNECTION OF AMOUNT LYING IN THE SAID BANK ACCOUNT WITH ANY INCOME FROM INDIA AND SAME IS NEITHER SOURCED NOR EARNED FROM INDIA IN TERMS OF SECTION 5 OF THE I.T. ACT. HE SUBMITTED THAT IN ABSENCE OF ANY IN COME CHARGEABLE TO TAX IN INDIA HAVE ESCAPED ASSESSMENT, THE ASSUMPTION OF JURISDICTION U/S 148 IS ILLEGAL AND BAD IN LAW. 13.1. REFERRING TO THE FOLLOWING DECISIONS, HE SUBMITTED THAT REOPENING OF THE ASSESSMENT U/S 148 OF THE ACT IS NOT IN ACCORDANCE WITH LAW AND HAS TO BE QUASHED. I. PCIRT VS RMG POLYVINYL (I) LTD. [2017] 396 ITR 5 (DELHI) II. GORIKA INVESTMENT AND EXPORTS PVT. LTD. VS ITO (ITA NO.3396/DEL/2018) HE ACCORDINGLY SUBMITTED THAT SINCE THE ASSESSING OFFICER HAS REOPENED THE ASSESSMENT IN A MECHANICAL MANNER, THEREFOR E SUCH REOPENING OF ASSESSMENT HAS TO BE TREATED AS NULL AND VOID. 14. HE SUBMITTED THAT THE ASSESSING OFFICER IN UTTER DISRE GARD OF THE PROVISION OF LAW AND FACTS OF THE CASE MADE SUBSTANTIV E ADDITION OF RS.13,70,47,686/- BEING THE PEAK BALANCE IN THE BANK ACCO UNT IN THE ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 12 HANDS OF SH. KARAMJIT S. JAISWAL IN THE CAPACITY OF LEGAL HEIR OF THE ASSESS EE AND PROTECTIVE BASIS IN THE HANDS OF THE SH. ANAND PERSH AD JAISWAL IN AY 2006-07. 15. HE SUBMITTED THAT THE DISPUTE IN THE INSTANT CASE R ELATES TO THE FOREIGN BANK ACCOUNT AND DESPITE REPEATEDLY BEING ASKED NO CERTIFIED COPY OF THE SAME WAS MADE AVAILABLE TO THE ASSESSEE. HE SUBMIT TED THAT THE REASSESSMENT PROCEEDINGS IN THE INSTANT CASE ARE WITHOU T JURISDICTION AND BAD IN LAW AS THE REASONS RECORDED FAILED TO SATISFY THE JURISDICTIONAL REQUIREMENT OF SECTION 147 OF THE ACT. HE SUBMITTED THAT THE ASSESSING OFFICER IN THE INSTANT CASE HAS ASSUMED JURISDICTION MERELY ON THE BASIS OF UNSUBSTANTIATED INFORMATION FROM THE INVESTIGATION WING AND WITHOUT APPLICATION OF INDEPENDENT MIND BY HIM OR CARRYING OUT ANY ENQUIRY. FURTHER, SH. LADLI PERSHAD JAISWAL WAS A NONRESIDENT FOR SE VERAL YEARS AND THEREFORE, IN ABSENCE OF ANY EVIDENCE OR MATERIAL TO ESTAB LISH THE SOURCE OF SUCH DEPOSITS BEING INCOME EARNED OR DERIVED IN INDIA, THE RE IS NO CASE OF ANY INCOME CHARGEABLE TO TAX IN INDIA IN TERMS OF PROVISION S OF SECTION 5 OF THE ACT, WHICH COULD BE CONSIDERED AS UNDISCLOSED INCOME OF THE ASSESSEE LATE SH. LADLI PERSHAD JAISWAL. HE SUBMITTED THAT THE LEAR NED CIT(A) CONFIRMED THE ADDITION ON PROTECTIVE BASIS IN THE HANDS O F THE SH. KARAMJIT S. JAISWAL AND SUBSTANTIVE BASIS IN THE HANDS OF SH. ANAND PERSHAD JAISWAL. RELYING ON VARIOUS DECISIONS, THE LEARNED COUNSEL FO R THE ASSESSEE SUBMITTED THAT THE FIRST APPELLATE AUTHORITY COULD NOT HA VE MADE PROTECTIVE ADDITION IN ONE HAND AND SUBSTANTIVE ADDITION IN THE OTHER HAND AS IT IS NOT OPEN TO HIM TO MAKE ANY INCONCLUSIVE ADDITION. REFERRING TO THE DECISION OF ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 13 THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF PRAKASH W INE AGENCIES VS ITO REPORTED IN 38 TTJ 39 (ALLAHABAD), THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF NARTWARLAL RADHESHYAM BAGADIY A VS ACIT (ITA NO.715 TO 719/PUNE/2007), ORDER DATED 13.04.2011, HE SUB MITTED THAT RIGHT TO MAKE PROTECTIVE ASSESSMENT HAS BEEN GIVEN TO ITO BUT APPELLATE AUTHORITY CANNOT EVADE DETERMINATION OF ISSUE AS TO WHO IS THE O WNER OF REAL INCOME WHEN IT IS BROUGHT BEFORE IT BY WAY OF AN APPEAL. 16. SO FAR AS, THE MERIT OF THE CASE IS CONCERNED, THE LEA RNED COUNSEL FOR THE ASSESSEE, REFERRING TO PAGE 9, LAST PARA O F THE ASSESSMENT ORDER SUBMITTED THAT THE ASSESSING OFFICER IN THE INSTANT CASE HAS MADE OBSERVATIONS THAT LATE SH. LADLI PERSHAD JAISWAL WAS HAVIN G SUBSTANTIAL INTEREST IN MILKFOOD LTD. AND JAGATJIT INDUSTRIES LTD. FURTH ER, THE ASSESSING OFFICER HAS OBSERVED THAT THE ASSESSEE WAS CHAIRMAN AND MANAGING DIRECTOR TILL 31.11.1992 AND THEREAFTER HE RESIGNED AND SHIFT ED TO UK. HOWEVER, AS PER CERTIFICATE PLACED ON RECORD, DURING THE AY 2006-07 AND 2007-08, THE ASSESSEE WAS HAVING FOLLOWING SHARE HOLDING IN MILKFOOD LTD. AND JAGATJIT INDUSTRIES LTD. I. MILKFOOD LTD. 4 SHARES II. JAGATJIT INDUSTRIES LTD. 100 SHARES 17. THEREFORE, THE OBSERVATION OF THE ASSESSING OFFICER THA T THE ASSESSEE WAS HAVING SUBSTANTIAL INTEREST IN THESE CONCER NS RELEVANT TO AY 2006-07 AND 2007-08 IS FACTUALLY INCORRECT AND MISCONCEIVED. ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 14 18. REFERRING TO PROVISION OF SECTION 5(1) OF THE ACT, HE S UBMITTED THAT AS PER THE REASONS IN THE ASSESSMENT ORDER, THER E IS NO REFERENCE TO FACT, FINDING OR EVIDENCE TO THE EFFECT THAT THERE IS ANY UN DISCLOSED INCOME IN TERMS OF SECTION 5(1) OF THE ACT AND THE SAME HAS ANY NEXUS WITH THE DEPOSIT IN THE SAID OVERSEAS BANK ACCOUNT. HE SUBMITTED THAT UNDISP UTEDLY, THE ASSESSEE EXPIRED ON 11.08.2005, THEREFORE, HOW COULD T HERE BE ANY UNDISCLOSED INCOME IN RELATION TO DEPOSIT IN JANUARY 2006. 19. REFERRING TO THE TWO UNAUTHENTICATED SHEETS OF PAP ER AS PROVIDED BY LEARNED CIT(DR) IS CONCERNED, HE SUBMITTED TH AT AS PER THE REASONS, ADDITION WAS IN RESPECT OF CREDIT IN THE SAID ACC OUNT IN JANUARY 2006 WHICH WAS IN RELATION TO MATURITY OF OLD BONDS AND TH ERE IS NO CASE OF ANY FRESH DEPOSIT OR CREDIT BASED ON CASH OR CHEQUE EN TRY. HE SUBMITTED THAT DESPITE SPECIFIC REQUEST, THE LEARNED DR ALSO COULD NO T PROVIDE CERTIFIED COPY OF THE SAID ACCOUNT AND ANY EVIDENCE IN RESPECT OF SUBSTANTIAL INTEREST OF THE ASSESSEE WITH MILKFOOD LTD. AND JAGATJIT INDUSTRIES LTD. DURING THE RELEVANT ASSESSMENT YEARS AND THE BASIS FOR PRESUMPTIO N OF UNDISCLOSED INCOME AND NEXUS OF SAME WITH DEPOSIT IN OVERSEAS BANK ACCOUNT. 20. AS REGARDS THE ISSUE OF FOREIGN BANK ACCOUNT IS CONC ERNED, THE LEARNED COUNSEL FOR THE ASSESSEE REFERRING TO THE FOLLOWING DECISIONS SUBMITTED THAT THE ADDITION TO THE ASSESSEES INCOME IN RESPECT OF UNDISCLOSED AMOUNT KEPT IN FOREIGN BANK ACCOUNT CANNOT B E ADDED TO THE TOTAL INCOME OF THE ASSESSEE WHEN DOCUMENTS RELIED UPON BY THE REVENUE ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 15 AUTHORITIES DO NOT CONTAIN SIGNATURE OF BANK OFFICIAL AND REQ UISITE INFORMATION WAS NOT REPLIED FROM FOREIGN BANKING AUTHORITY. I. SHYAM SUNDER JINDAL VS ACIT 188 TTJ 404 (DEL. TRIB.) II. DCIT VS RAHUL RAJNIKANT PARIKH (ITAT MUMBAI DATED 01.06.2018) III. DCIT VS HEMANT MANSUKHLAL PANDYA (ITAT MUMBAI DATE 16.11.2018) IV. DCIT VS DIPENDU BAPALAL SHAH (ITAT MUMBAI DATED 19.06.2018) 21. HE ACCORDINGLY SUBMITTED THAT BOTH LEGALLY AND FACT UALLY, THE ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY T HE LEARNED CIT(A) IS NOT ACCORDANCE WITH LAW. THE ASSESSING OFFICER HAS FAILE D TO TAKE NOTE OF SECTION 159 OF THE ACT WHICH CONTAINS EXPRESS PROVISIONS IN RESPECT OF LIABILITY OF REPRESENTATIVE ASSESSEE IN CASE OF DEATH OF THE ASSESSEE. HE HAS FAILED TO ESTABLISH ANY LINK BETWEEN THE SO CALLED DEPOSIT IN THE FOREIGN BANK ACCOUNT AND INCOME EARNED/DERIVED FROM INDIA AND THEREFO RE, THERE IS NO CASE OF INCOME CHARGEABLE TO TAX U/S 5 OF THE ACT. 22. LEARNED CIT-DR, ON THE OTHER HAND, HEAVILY RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. HE SUBMITTED THAT THE ASSESSEE IN THE INSTANT CASE HAS NOT DISCHARGED THE ONUS CAST UPON IT BY ESTABLISHIN G THAT BALANCE APPEARING IN THE FOREIGN BANK ACCOUNT WAS EARNED OUTSID E INDIA. HE SUBMITTED THAT THE ASSESSING OFFICER IN THE INSTANT CASE H AS RIGHTLY PRESUMED THAT THE SOURCE OF DEPOSIT IN FOREIGN BANK ACC OUNT IS FROM INDIA AS THE ASSESSEE LATE SH. LADLI PERSHAD JAISWAL WAS A DIREC TOR AND WAS ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 16 HAVING SUBSTANTIAL INTEREST IN MILKFOOD LTD. AND JAGATJIT I NDUSTRIES LTD. IN INDIA BEFORE BECOMING NONRESIDENT. HE ACCORDINGLY SUBMIT TED THAT GROUNDS RAISED BY THE ASSESSEE SHOULD BE DISMISSED AND THE ORD ER OF THE LEARNED CIT(A) SHOULD BE UPHELD. 23. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BO TH THE SIDES, PERUSED THE ORDERS OF THE ASSESSING OFFICER AND LEAR NED CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE A LSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND THAT THE ASSES SING OFFICER IN THE INSTANT CASE REOPENED THE ASSESSMENT ON THE GROUND T HAT THE ASSESSEE WAS HAVING A FOREIGN BANK ACCOUNT MAINTAINED WITH HSBC BANK G ENEVA, IN THE JOINT NAME OF SH. LADLI PERSHAD JAISWAL (DECEASED) AND SH. AN AND PERSHAD JAISWAL WITH CLIENT PROFILE 22628AA. THE REASON FOR SUCH REO PENING HAS ALREADY BEEN REPRODUCED IN THE PRECEDING PARAGRAPHS. I T IS THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT SUCH REASS ESSMENT PROCEEDINGS U/S 147 OF THE ACT IS WITHOUT JURISDICTION AND BAD IN LAW, S INCE, THE REASONS RECORDED ARE BASED ON REPORT OF THE INVESTIGATION WING AND NOT ON DUE APPLICATION OF INDEPENDENT MIND BY THE ASSESSING OFFICER OR C ARRYING OUT ANY ENQUIRY. FURTHER, ACCORDING TO THE LEARNED COUNSEL FO R THE ASSESSEE, ALTHOUGH THE ASSESSING OFFICER CAN MAKE PROTECTIVE ADDITION HOWEVER, THE LEARNED CIT(A) HAS NO AUTHORITY TO MAKE ADDITION ON PROTE CTIVE BASIS IN ONE HAND AND SUBSTANTIVE BASIS IN ANOTHER HAND. HE CANNOT E VADE DETERMINATION OF ISSUE AS TO WHO IS OWNER OF REAL INCOME W HEN IT WAS BROUGHT BEFORE HIM BY WAY OF AN APPEAL. IT IS ALSO HIS ARG UMENT THAT WHEN THE ASSESSEE WAS NONRESIDENT UPTO AY 2004-05 AND THE REAFTER WAS NOT ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 17 ORDINARILY RESIDENT FOR AY 2006-07 AND 2007-08 AND WHEN SH. LADLI PERSHAD JAISWAL EXPIRED ON 11.08.2005 AND WHEN THE AMOUN T CREDITED IN THE BANK ACCOUNT IN THE MONTH OF JANUARY 2006 WHICH WE RE THE MATURITY PROCEED OF SUM INVESTED EARLIER, THE ADDITION MADE BY THE ASSESSING OFFICER AND SUSTAINED BY THE LEARNED CIT(A) IS NOT JUSTIFIED. 24. WE FIND SOME FORCE IN THE ABOVE ARGUMENTS OF THE LEAR NED COUNSEL FOR THE ASSESSEE. A PERUSAL OF THE REASON TO BELIE VE WHICH IS REPRODUCED IN THE PRECEDING PARAGRAPH REVEALS THAT THE ASSESSING OFFICER HAS ASSUMED JURISDICTION U/S 147 OF THE ACT ON THE BASIS OF INFORMATION RECEIVED FROM THE INVESTIGATION WING ABOUT THE FOREIGN BA NK ACCOUNT IN THE NAME OF LATE SH. LADLI PERSHAD JAISWAL. THE REASONS ALSO CO NTAIN FACTUAL INFORMATION ABOUT THE QUANTUM OF DEPOSITS IN THE FOREIGN BA NK ACCOUNT AND THE LEGAL HEIR OF SH. LATE LADLI PERSHAD JAISWAL NAMELY SH. KARANJIT S. JAISWAL AND SH. ANAND PERSHAD JAISWAL. AS HELD IN VARIOUS D ECISIONS, FOR THE PURPOSE OF ASSUMING JURISDICTION U/S 147 OF THE ACT, T HE ASSESSING OFFICER SHOULD FORM REASON TO BELIEVE BASED ON TANGIBLE MATERIAL THAT INC OME HAS ESCAPED ASSESSMENT. FURTHER, SUCH BELIEF SHOULD NOT BE ON MERE SUSPICION BUT ON THE BASIS OF SOME OBJECTIVE MATERIAL THAT LEADS TO PRIMA FACE CASE OF ESCAPEMENT OF INCOME. ALTHOUGH IN THE PRESEN T CASE ASSESSING OFFICER WAS IN POSSESSION OF REPORT OF THE INVESTIGATION WIN G ABOUT THE EXISTENCE OF FOREIGN BANK ACCOUNT WHICH HAS NOT BEEN DEN IED BY THE LEGAL HEIR, HOWEVER, THERE IS NO DETAILS OR EVIDENCE THAT MONEY LYING IN THE BANK ACCOUNT REPRESENT UNDISCLOSED INCOME IN TERMS OF SECTION 5(1) OF THE INCOME TAX ACT. WE FIND THE ASSESSING OFFICER IN THE INSTANT CASE HAS FAILED EVEN TO ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 18 TAKE NOTE OF THE INCOME TAX RETURN FILED BY THE ASSESSEE WHILE RECORDING REASONS WHICH IN OUR OPINION SHOWS NON APPLICATION OF MIND. T HE REASONS RECORDED DO NOT INSPIRE CONFIDENCE TO MAKE OUT A PRIMA FACIE CASE FOR ESCAPEMENT OF INCOME AND THE ASSESSING OFFICER IN THE INST ANT CASE WAS CARRIED AWAY BY THE MERE FACT OF EXISTENCE OF FOREIGN BANK ACCOUNT. DESPITE OUR DIRECTION TO THE LEARNED CIT-DR TO PRODUCE CERTIFIED COPY OF THE BANK STATEMENT AND ALSO TO CLARIFY THE BASIS OF TREATING DEPOS IT IN THE BANK ACCOUNT AS UNDISCLOSED INCOME IN TERMS OF SECTION 5 OF TH E ACT, HOWEVER, THE LEARNED DR WAS UNABLE TO PRODUCE THE SAME DESPITE MULTIPLE OPPORTUNITIES GIVEN. THEREFORE, ARGUMENT OF THE LEARNED CO UNSEL FOR THE ASSESSEE THAT REASSESSMENT PROCEEDING ARE TO BE HELD AS INVALID FIND SOME FORCE. HOWEVER, SINCE, THE ASSESSEE ALSO COULD NOT PRODUCE THE DETAILS AND THE ISSUE INVOLVED IN THE INSTANT CASE ARE IMPORTANT BEIN G DEPOSITS IN THE FOREIGN BANK ACCOUNT, WE PROCEED TO ADJUDICATE THE ADDITION ON ME RIT. 25. AS MENTIONED IN THE PRECEDING PARAGRAPHS, THE ASSES SING OFFICER HAD MADE ADDITION OF RS. 13,70,47,686/- ON SUBSTANTIV E BASIS IN THE HANDS OF THE SH. KARAMJIT S JAISWAL AND ON PROTECTIVE BAS IS IN THE HANDS OF SH. ANAND PERSHAD JAISWAL. WE FIND THE LEARNED CIT(A) CONVER TED THE SUBSTANTIVE ADDITION INTO PROTECTIVE ADDITION ON THE GROUN D THAT THE CO- OWNER OF THE FOREIGN BANK ACCOUNT WAS SH. ANAND PERSHAD JAIWSAL AND AS SUCH SH. ANAND PERSHAD JAISWAL SHOULD BE TREATED AS LEGA L HEIR AND OWNER OF THE BANK ACCOUNT POST DEMISE OF ASSESSEE LATE SH. LAD LI PERSHAD JAISWAL. ACCORDING TO HIM MERELY BECAUSE SH. KARAMJIT S. JAISWAL FILE D THE ITR AS LEGAL HEIR OF THE ASSESSEE LATE SH. LADLI PERSHAD JAISWAL, TH E SAME WILL NOT ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 19 ABSOLVE SH. ANAND PERSHAD JAISWAL OF HIS LIABILITY AS LEGAL HEIR. ACCORDING TO THE LEARNED CIT(A) , THERE IS NO ESTOPPELS AGAINST LAW. 26. BEFORE PROCEEDING INTO LEGALITY OF ADDITION WE DEEM IT P ROPER TO ADDRESS THE ISSUE RAISED BY THE LEARNED COUNSEL FOR THE ASSESSEE REGARDING THE PROTECTIVE ADDITION MADE BY THE LEARNED CIT(A). THERE IS NO DISPUTE OR CONTROVERSY THAT THE ASSESSING OFFICER, IF THE FACTS SO WA RRANT, CAN MAKE SUBSTANTIVE ADDITION IN THE HAND OF ONE PERSON AND PROTE CTIVE ADDITION IN THE HANDS OF ANOTHER PERSON WHERE IT IS DIFFICULT TO ATTRIBU TE THE INCOME IN THE HANDS OF THE PARTICULAR PERSON. THE PURPOSE OF MAKING PROTECTIVE ADDITION IS TO SAFEGUARD THE INTEREST OF THE REVENUE IN TH E EVENT WHERE THE APPELLATE AUTHORITY REACHES TO A CONCLUSION THAT INCOME IS TAXABLE IN THE HANDS OF EITHER OF THE TWO PERSONS. HOWEVER, THE FIRST A PPELLATE AUTHORITY BEING A QUASI JUDICIAL AUTHORITY CREATED FOR INDEPENDENT AD JUDICATION OF APPEAL FILED BY THE ASSESSEE CANNOT BE EXPECTED TO RESO RT TO MAKING PROTECTIVE ADDITION FOR SAFEGUARDING THE INTEREST OF THE RE VENUE. IT IS INCOMPREHENSIBLE THAT AN APPELLATE AUTHORITY OF THE RANK O F COMMISSIONER (APPEALS) REMAINS DOUBTFUL REGARDING RIGHTFUL OWNER OF ANY INCO ME AND MAKING THE PROTECTIVE ADDITION IN THE HANDS OF THE ASSESS EE PARTICULARLY WHEN THE CONCLUSION REGARDING SUBSTANTIVE ADDITION HAS ALR EADY BEEN ARRIVED AT BY THE SAME AUTHORITY. THE DECISION OF THE ALLA HABAD BENCH OF THE TRIBUNAL IN THE CASE OF PRAKASH WINE AGENCIES VS ITO (SUPRA) AND THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE OF N ATWARLAL RADHESHYAM BAGADIYA VS ACIT (SUPRA) SUPPORT THE CASE OF THE ASSESSEE WHEREIN, IT WAS HELD THAT IT IS NOT OPEN TO THE APPELLATE A UTHORITY TO MAKE ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 20 THE ADDITION ON PROTECTIVE BASIS. WE, THEREFORE, HOLD THAT ONCE, THE LEARNED CIT(A) HAS MADE SUBSTANTIVE ADDITION OF RS.13,70,47,686/- IN THE HAND S OF SH. ANAND PERSHAD JAISWAL, THERE WAS NO VALID JUSTIFICATION OR BASIS FOR MAKING PROTECTIVE ADDITION IN THE HAND OF SH. KARAMJIT S. J AISWAL. FURTHER, SINCE THE REVENUE HAS NOT FILED ANY APPEAL AGAINST THE OR DER OF THE LEARNED CIT(A), IT IS CLEAR THAT THE REVENUE HAS ACCEPTED THE SUB STANTIVE ADDITION IN THE HANDS OF SH ANAND PERSHAD JAISWAL AND AS SUCH PROT ECTIVE ADDITION MADE IN THE HANDS OF THE SH. KARAMJIT S. JAISWAL CANNOT S URVIVE AS IT HAS NO LEGS TO STAND. 27. FROM THE VARIOUS DETAILS FILED BY THE ASSESSEE, WE FIND THE ASSESSING OFFICER IN THE INSTANT CASE HAS MADE ADDITION OF R S. 13,70,47,686/- WHICH IS THE PEAK DEPOSIT APPEARING IN THE FO REIGN BANK ACCOUNT IN THE F.Y. 2005-06. WE FIND DESPITE FILING A CONSENT LETTER BEFORE THE ASSESSING OFFICER AND RTI APPLICATION, THE REVENUE AUTH ORITIES HAVE NOT PROVIDED CERTIFIED COPY OR ANY AUTHENTIC COPY OF BANK ACC OUNT. DESPITE THE DIRECTION GIVEN BY THE BENCH, THE LEARNED CIT-DR ALSO COU LD NOT PRODUCE CERTIFIED COPY OF BANK STATEMENT AND WHAT IS AVAILABLE IN TH E PAPER BOOK IS PHOTOCOPY OF SHEET OF PAPER WHICH IS NOT CAPABLE OF BEING CONVERTED INTO EVIDENCE. WE FIND NEITHER THE ASSESSING OFFICER NOR THE LEAR NED CIT(A) COULD PROVIDE THE NATURE OF ENTRY IN THE SAID ACCOUNT OR HOW THE SAME ARE RELATED TO UNDISCLOSED INCOME UNDER THE PROVISIONS OF INCOME TAX ACT. WE ARE CONSTRAINED TO OBSERVE THAT EVEN THOUGH THE ENTIRE PR EMISES OF REOPENING AND CONSEQUENTIAL OF ADDITION IS THE FOREIGN BANK ACCOUNT , NONE OF THE PARTIES WAS ABLE TO PRODUCE A COPY OF BANK STATEMENT B EFORE US WHICH IS A ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 21 CRUCIAL PIECE OF EVIDENCE. UNDER THESE FACTS AND CIRCUMST ANCES, WE ARE NOT IN A POSITION TO VERIFY THE AUTHENTICITY OF THE ALLEGED BANK STATEMENT OR QUANTUM OR NATURE OF DEPOSITS THEREIN AND ITS RELEVANCE FOR THE YEAR UNDER CONSIDERATION. 28. WE FIND FROM A PERUSAL OF THE ASSESSMENT ORDER, THAT THE ASSESSING OFFICER HIMSELF HAS MENTIONED THAT THE ASSESSEE LA TE SH. LADLI PERSHAD JAISWAL WAS NON-RESIDENT OF INDIA DURING AY 1993 -94 TO 2004-05 AND NOT ORDINARILY RESIDENT FOR AY 2006-07 AND 2007-08. THE ASSESSING OFFICER IN THE ASSESSMENT ORDER AT CLAUSE 5 HAS ALSO MENT IONED THAT ASSESSEE IS NOT ORDINARILY RESIDENT. UNDER THESE CIRCUMS TANCES AND IN ABSENCE OF ANY FACTUAL FINDING, IT IS NOT OPEN TO DISPUTE THE CLAIM OF RESIDENTIAL STATUS AS DECLARED IN THE RETURN OF INCOME. SINCE, THE PROCEEDINGS U/S 147 ARE EXTRAORDINARY PROCEEDINGS, THE ONUS IS ON THE REVENUE TO ESTABLISH THE EXISTENCE OF UNDISCLOSED INCOME. MERE DISCOVERY OF A FOREIGN BANK ACCOUNT IN THE NAME OF THE ASSESSEE IS NOT SUFFICIENT TO THRUST THE TAX LIABILITY WITHOUT BRINGING ON RECORD THE CH ARGEABILITY OF THE SAME UNDER THE PROVISIONS OF THE INCOME TAX ACT,1961. I T IS THE SETTLED PROPOSITION OF LAW THAT ASSESSMENT CANNOT BE CARRIED OUT ON THE BASIS OF GUESS WORK AND THERE MUST BE MORE THAN MERE SUSPICION . IN THE PRESENT CASE, IT IS SEEN THAT THERE IS NO WHISPER OF ANY ENQUIRY O R INVESTIGATION CARRIED OUT BY THE ASSESSING OFFICER TO DEMONSTRATE THE EXISTENCE OF SOURCE OF INCOME IN INDIA IN RESPECT OF DEPOSIT FOUND IN FOREIGN BANK ACCOUNT. MOREOVER, THE ASSESSING OFFICER HAS NOT BROUGHT ANYTHING ON RECO RD TO PROVE THAT THERE IS MONEY TRAIL WHICH ACTUALLY FLEW FROM INDIA TO THE FOREIGN BANK ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 22 ACCOUNT MAINTAINED ABROAD. FURTHER, THE LEARNED COUNSEL FO R THE ASSESSEE ALSO CLARIFIED THAT SH. LADLI PERSHAD JAISWAL WAS NOT HAVING AN Y MAJOR STAKE OR FINANCIAL INTEREST OR BUSINESS CONNECTION IN INDIA DURING THE AY 2006-07 AND 2007-08. THEREFORE, WE FIND IT DIFFICULT TO SUBSCRIBE TO THE REASONING GIVEN BY THE ASSESSING OFFICER WHILE ASSUMING THAT DEPOSIT IN THE FOREIGN BANK ACCOUNT IN THE YEAR UNDER CONSIDERATION WAS SOURC ED FROM INDIA. IN ANY CASE, WHEN THE ADDITION MADE BY THE ASSESSING OFFICER IS ON THE BASIS OF PEAK CREDIT IN THE MONTH OF JANUARY 2006 AND WHEN SH. LADLI PERSHAD JAISWAL EXPIRED ON 11.08.2005, IT IS NOT UNDERSTOOD AS TO H OW ANY CREDIT IN JANUARY 2006 COULD BE ATTRIBUTED TO THE DECEASED. 28.1. IN THE LIGHT OF OUR DISCUSSION WE ARE OF THE CONSID ERED OPINION THAT THE ASSESSMENT ORDER IS NOT IN ACCORDANCE WITH LAW AND IS LIABLE TO BE SET-ASIDE. HOWEVER, IN THE INTEREST OF JUSTICE AND AS REQ UESTED BY THE LEARNED CIT-DR AT THE TIME OF HEARING BEFORE US, THE MAT TER IS BEING RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIR ECTION TO ARRIVE AT SPECIFIC FINDING BASED ON CERTIFIED COPY OF THE BANK STATEMEN T AND THE NATURE OF CREDIT ENTRY IN THE SAID BANK ACCOUNT. IN CASE , THERE IS NO GROUND OR BASIS TO ESTABLISH ANY NEXUS BETWEEN THE ALLEGED DEPO SITS IN THE BANK ACCOUNT AND ANY UNDISCLOSED INCOME UNDER THE PROVISIONS OF INCOME TAX ACT OR HOW SUCH CREDIT ENTRIES ARE ATTRIBUTABLE TO THE ASSESSEE WHO EXPIRED ON 11.08.2005 THERE WILL BE NO CASE FOR ASSUMING JURISDICTION U/S 148 OR CONSEQUENTIAL ADDITION ON MERIT. NEEDLESS TO SAY THE AO SHALL GIVE DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND DECIDE T HE ISSUE AS PER FACT AND LAW AFTER PROVIDING RELEVANT DOCUMENTS OR EVIDENCES T HAT MAY BE TAKEN ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 23 INTO CONSIDERATION WHILE DECIDING THE ISSUE. IT IS FURTHER CLA RIFIED THAT THE ASSESSING OFFICER SHALL RESTRICT HIS VERIFICATION ONLY ON THE BASIS OF DOCUMENTS WHICH ARE ALREADY AVAILABLE ON RECORD AND SHALL NOT RESORT ANY ROVING AND FISHING ENQUIRY IS PERMITTED. THE GROUNDS RAISED BY TH E ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 29. GROUNDS RAISED IN OTHER APPEALS ARE AS UNDER:- ITA NO.3248/DEL/2016 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E CIT(A) WAS NOT JUSTIFIED IN CONFIRMING INITIATION OF REASSESSM ENT PROCEEDINGS U/S. 148 EVEN THOUGH INITIATION OF PROCEEDINGS U/S. 148 ARE ILLEGAL, ARBITRARY AND WITHOUT JURISDICTION IN THE ABSENCE O F TANGIBLE MATERIAL AND RECORDING OF PROPER SATISFACTION. 2. THAT IN THE ABSENCE OF ASSESSING OFFICER HAVING AUT HENTIC COPY OF ANY SUCH ACCOUNT OR PROPER APPRECIATION OF NATUR E OF ENTRIES IN THE BANK ACCOUNT, THERE COULD BE NO JUSTIFICATION FOR R ECORDING OF SATISFACTION AND ASSUMPTION OF JURISDICTION U/S. 14 8 OF THE I.T. ACT, 1961. 3. THAT EVEN OTHERWISE, REASSESSMENT PROCEEDINGS ARE N OT SUSTAINABLE AS SAME WERE WITHOUT REQUISITE APPROVAL IN TERMS OF PROVISIONS OF SEC. 251 OF THE I.T. ACT, 1961. 4I). THAT CIT(A) HAVING CONFIRMED THE ADDITION ON S UBSTANTIVE BASIS IN THE CASE OF ANAND PERSHAD JAISWAL, THERE IS NO J USTIFICATION FOR HOLDING THE SAME ON PROTECTIVE BASIS IN THE CASE OF APPELLANT. (II) . THAT THE OBSERVATION AND CONCLUSION OF THE CIT(A) ARE ILLEGAL, ARBITRARY AND AGAINST THE SCHEME OF THE AC T. 5(I). THAT ON THE FACTS AND CIRCUMSTANCES OF THE CA SE, THE CIT(A) HAS ERRED IN CONFIRMING ADDITION OF RS. 2,03,75,814/- O N PROTECTIVE BASIS IN THE CASE OF THE APPELLANT. (II) . THAT WHOLE BASIS OF ADDITION IS ILLEGAL, ARBITRAR Y AND MERELY BASED ON PRESUMPTION AND SURMISES. (III) THAT THERE IS NO LEGAL BASIS FOR PROTECTIVE ASSESSM ENT AND CONSEQUENTIAL TAX DEMAND AND SAME IS HIGHLY ARBITRA RY AND IN DISREGARD TO PROVISIONS OF SEC. 159 OF THE I.T. ACT , 1961. 6(I). THAT ADDITION WAS MADE WITHOUT GOING INTO THE NATURE OF DEPOSIT AND IN THE ABSENCE OF PROPER APPRECIATION OF FACTS, THERE COULD BE NO VALID BASIS FOR ANY SUCH ADDITION. ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 24 (II). THAT THE FINDING OF LOWER AUTHORITIES ARE NOT BASED ON PROPER APPRECIATION OF THE ENTRIES IN THE BANK ACCOUNT AND ADDITION WAS MADE ON MECHANICAL BASIS. 7. THAT THE ASSESSE IS NOT LIABLE TO ANY TAX LIABILITY AS LEGAL HEIR IN THE LIGHT OF PROVISIONS OF SEC. 159(4) OF THE I.T. ACT, 1961. 8. THAT ORDERS OF THE LOWER AUTHORITIES ARE NOT JUSTI FIED ON FACTS AND SAME ARE BAD IN LAW. ITA NO.3730/DEL/2016 1. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) [CIT (A)] ERRED ON FACTS AND IN LAW IN NOT HOLDING THAT THE A SSESSMENT ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 147/143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) IS BEYOND J URISDICTION, ILLEGAL, BAD IN LAW AND VOID-AB-INITIO. 2. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN UPHOL DING VALIDITY OF RE-ASSESSMENT PROCEEDINGS WITHOUT APPRE CIATING THAT THE SAME WAS INITIATED WITHOUT THERE BEING REASON TO BELIEVE THAT INCOME OF THE APPELLANT HAD ESCAPED ASSESSMENT . 3. THAT THE CIT(A) ERRED IN NOT APPRECIATING THAT THE REASSESSMENT PROCEEDINGS INTENDED TO BRING TO TAX A LLEGED ESCAPED INCOME ON PROTECTIVE BASIS WAS BEYOND JUR ISDICTION AND BAD IN LAW. 4. THAT THE CIT(A) ERRED IN NOT APPRECIATING THAT REA SSESSMENT PROCEEDINGS UNDER SECTION 147 OF THE ACT HAVING BEE N INITIATED MERELY ON THE BASIS OF CERTAIN UNRELIABLE/ UNCORROB ORATED THIRD PARTY INFORMATION, WITHOUT INDEPENDENT APPLICATION OF MIND BY THE ASSESSING OFFICER, WAS ILLEGAL AND BAD IN LAW. 5. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN NOT AP PRECIATING THAT THE IMPUGNED PROCEEDINGS HAVING BEEN INITIATED WITHOUT OBTAINING REQUISITE SANCTION IN TERMS OF SECTION 15 1 OF THE ACT WAS BEYOND JURISDICTION AND BAD IN LAW. WITHOUT PREJUDICE 6. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN NOT D ELETING THE ADDITION OF RS. 13,70,47,686 MADE BY THE ASSESSING OFFICER ON PROTECTIVE BASIS; INSTEAD IN DIRECTING THE SAME TO BE MADE ON SUBSTANTIVE BASIS IN THE HANDS OF THE APPELLANT, WI THOUT ANY VALID JUSTIFICATION. 7. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN HOLDI NG THAT BALANCE IN THE FOREIGN BANK ACCOUNT WITH HSBC BANK, GENEVA, REPRESENTED THE APPELLANTS INCOME FROM UNDISCLOSED SOURCES. 8. THAT THE CIT(A) FAILED TO APPRECIATE THAT - (A) TH E ABOVE ALLEGED FOREIGN BANK ACCOUNT DID NOT BELONG TO THE APPELLANT; (B) ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 25 NONE OF THE DEPOSITS, AS ALLEGED, RELATED TO THE AP PELLANT; AND (C) NO TRANSACTION WAS MADE BY THE APPELLANT, AND THERE FORE, THE QUESTION OF MAKING ANY ADDITION IN THE HANDS OF THE APPELLANT COULD NOT AT ALL ARISE. 9. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN NOT J UDICIOUSLY EXAMINING/ CONSIDERING THE DETAILED AVERMENTS/ SUBM ISSIONS MADE BY THE APPELLANT DURING THE COURSE OF APPELLAT E PROCEEDINGS AND CONCLUDING THAT THE APPELLANT ALLEGEDLY MAINTAI NED AND OPERATED A FOREIGN BANK ACCOUNT WITH HSBC BANK, GEN EVA. 10. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN DRAWI NG ADVERSE INFERENCE AGAINST THE APPELLANT ON THE BASIS OF SOM E GENERAL/ VAGUE PARTICULARS APPEARING IN SOME UNSIGNED/ UNDAT ED/ UNAUTHENTICATED LOOSE PIECE OF PAPERS, SOURCE WHERE OF IS ALSO NOT KNOWN. 11. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN CONFI RMING THE ADDITION MADE, WITHOUT MAKING AVAILABLE COPIES OF B ANK STATEMENTS AND OTHER EX-PARTE MATERIAL(S) ON THE BA SIS OF WHICH ADDITION WAS MADE IN THE HANDS OF THE APPELLANT, IN GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 12. WITHOUT PREJUDICE, THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN NOT APPRECIATING THAT THE APPELLANT WAS A NO N-RESIDENT INDIAN FOR PAST MORE THAN TWENTY FIVE YEARS AND THU S INCOME ON ACCOUNT OF ALLEGED DEPOSIT IN FOREIGN BANK ACCOUNT, IF ANY, WAS EVEN OTHERWISE NOT LIABLE TO BE TAXED IN INDIA. 13. THAT THE CIT(A) FAILED TO APPRECIATE THAT THERE WAS NO EVIDENCE ON RECORD TO CORROBORATE THAT DEPOSIT(S) I N THE ALLEGED FOREIGN BANK ACCOUNT REPRESENTED INCOME EARNED/ REC EIVED BY THE APPELLANT IN INDIA. 14. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN PRESU MING THAT THE ALLEGED FOREIGN BANK ACCOUNT WAS OPERATED BY TH E APPELLANT SUBSEQUENT TO HIS FATHERS DEATH. 15. FURTHER, WITHOUT PREJUDICE THAT THE CIT(A) ERR ED ON FACTS AND IN LAW IN HOLDING THAT RS. 13,70,47,686 REPRESENTED THE UNDISCLOSED INCOME FOR THE YEAR UNDER APPEAL. 16. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN DI RECTING THE ASSESSING OFFICER TO LEVY INTEREST UNDER SECTION 23 4B OF THE ACT. ITA NO.3731/DEL/2016 1. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) [CIT (A)] ERRED ON FACTS AND IN LAW IN NOT HOLDING THAT THE A SSESSMENT ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 147/143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) IS BEYOND J URISDICTION, ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 26 ILLEGAL, BAD IN LAW AND VOID-AB-INITIO. 2. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN UPHOL DING VALIDITY OF RE-ASSESSMENT PROCEEDINGS WITHOUT APPRE CIATING THAT THE SAME WAS INITIATED WITHOUT THERE BEING REASON TO BELIEVE THAT INCOME OF THE APPELLANT HAD ESCAPED ASSESSMENT . 3. THAT THE CIT(A) ERRED IN NOT APPRECIATING THAT THE REASSESSMENT PROCEEDINGS INTENDED TO BRING TO TAX A LLEGED ESCAPED INCOME ON PROTECTIVE BASIS WAS BEYOND JUR ISDICTION AND BAD IN LAW. 4. THAT THE CIT(A) ERRED IN NOT APPRECIATING THAT REA SSESSMENT PROCEEDINGS UNDER SECTION 147 OF THE ACT HAVING BEE N INITIATED MERELY ON THE BASIS OF CERTAIN UNRELIABLE/ UNCORROB ORATED THIRD PARTY INFORMATION, WITHOUT INDEPENDENT APPLICATION OF MIND BY THE ASSESSING OFFICER, WAS ILLEGAL AND BAD IN LAW. 5. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN NOT AP PRECIATING THAT THE IMPUGNED PROCEEDINGS HAVING BEEN INITIATED WITHOUT OBTAINING REQUISITE SANCTION IN TERMS OF SECTION 15 1 OF THE ACT WAS BEYOND JURISDICTION AND BAD IN LAW. WITHOUT PREJUDICE 6. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN NOT D ELETING THE ADDITION OF RS.2,03,75,814/- MADE BY THE ASSESSING OFFICER ON PROTECTIVE BASIS; INSTEAD IN DIRECTING THE SAME TO BE MADE ON SUBSTANTIVE BASIS IN THE HANDS OF THE APPELLANT, WI THOUT ANY VALID JUSTIFICATION. 7. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN HOLDI NG THAT BALANCE IN THE FOREIGN BANK ACCOUNT WITH HSBC BANK, GENEVA, REPRESENTED THE APPELLANTS INCOME FROM UNDISCLOSED SOURCES. 8. THAT THE CIT(A) FAILED TO APPRECIATE THAT - (A) TH E ABOVE ALLEGED FOREIGN BANK ACCOUNT DID NOT BELONG TO THE APPELLANT; (B) NONE OF THE DEPOSITS, AS ALLEGED, RELATED TO THE AP PELLANT; AND (C) NO TRANSACTION WAS MADE BY THE APPELLANT, AND THERE FORE, THE QUESTION OF MAKING ANY ADDITION IN THE HANDS OF THE APPELLANT COULD NOT AT ALL ARISE. 9. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN NOT J UDICIOUSLY EXAMINING/ CONSIDERING THE DETAILED AVERMENTS/ SUBM ISSIONS MADE BY THE APPELLANT DURING THE COURSE OF APPELLAT E PROCEEDINGS AND CONCLUDING THAT THE APPELLANT ALLEGEDLY MAINTAI NED AND OPERATED A FOREIGN BANK ACCOUNT WITH HSBC BANK, GEN EVA. 10. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN DRAWI NG ADVERSE INFERENCE AGAINST THE APPELLANT ON THE BASIS OF SOM E GENERAL/ VAGUE PARTICULARS APPEARING IN SOME UNSIGNED/ UNDAT ED/ UNAUTHENTICATED LOOSE PIECE OF PAPERS, SOURCE WHERE OF IS ALSO NOT KNOWN. ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 27 11. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN CONFI RMING THE ADDITION MADE, WITHOUT MAKING AVAILABLE COPIES OF B ANK STATEMENTS AND OTHER EX-PARTE MATERIAL(S) ON THE BA SIS OF WHICH ADDITION WAS MADE IN THE HANDS OF THE APPELLANT, IN GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 12. WITHOUT PREJUDICE, THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN NOT APPRECIATING THAT THE APPELLANT WAS A NO N-RESIDENT INDIAN FOR PAST MORE THAN TWENTY FIVE YEARS AND THU S INCOME ON ACCOUNT OF ALLEGED DEPOSIT IN FOREIGN BANK ACCOUNT, IF ANY, WAS EVEN OTHERWISE NOT LIABLE TO BE TAXED IN INDIA. 13. THAT THE CIT(A) FAILED TO APPRECIATE THAT THERE WAS NO EVIDENCE ON RECORD TO CORROBORATE THAT DEPOSIT(S) I N THE ALLEGED FOREIGN BANK ACCOUNT REPRESENTED INCOME EARNED/ REC EIVED BY THE APPELLANT IN INDIA. 14. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN PRESU MING THAT THE ALLEGED FOREIGN BANK ACCOUNT WAS OPERATED BY TH E APPELLANT SUBSEQUENT TO HIS FATHERS DEATH. 15. FURTHER, WITHOUT PREJUDICE THAT THE CIT(A) ERR ED ON FACTS AND IN LAW IN HOLDING THAT RS. 13,70,47,686 REPRESENTED THE UNDISCLOSED INCOME FOR THE YEAR UNDER APPEAL. 16. THAT THE CIT(A) ERRED ON FACTS AND IN LAW IN DI RECTING THE ASSESSING OFFICER TO LEVY INTEREST UNDER SECTION 23 4B OF THE ACT. 29.1. AFTER HEARING BOTH SIDES, WE FIND THE GROUNDS RAISE D IN ALL THESE APPEALS ARE IDENTICAL TO GROUNDS RAISED IN ITA NO.3247/D EL/2016. WE HAVE ALREADY DECIDED THE ISSUE AND THE GROUNDS RAISED BY TH E ASSESSEE HAVE BEEN ALLOWED FOR STATISTICAL PURPOSES. FOLLOWING SIMILAR REASONING, TH E GROUNDS RAISED IN THE ABOVE APPEALS ARE ALSO ALLOWED FOR STATISTICAL PURPOSES. 30. IN THE RESULT, ALL APPEALS FILED BY THE RESPECTIVE ASSE SSES ARE ALLOWED FOR STATISTICAL PURPOSE. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 23.04.2021. SD/- SD/- (SUCHITRA KAMBLE) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DELHI/DATED- 23.04.2021 ITA NOS.3730, 3731, 3247 & 3248/DEL/2016 28 F{X~{T COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT BY ORDER ASSISTANT REGISTRAR, ITAT, DELHI