Udai Chand Jain, Kanpur V. Inocme Tax Officer-2(4), Kanpur

ITA 331/LKW/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4683 (ITAT-LUCKNOW)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-01-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 25-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Income from undisclosed sources; Period of limitation; Corroborative evidences; Validity of assessment; Procedural lapse; Assessment record; Block assessment; Reason to believe; Reassessment proceedings
• Section: 143(3); 142(1); 147; 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI. A. K. GARODIA , ACCOUNTANT MEMBER ITA NO. 331&332/LKW/2015 ASSESSMENT YEAR: 2008 - 09 & 2010 - 11 UDAI CHAND JAIN 76/158, HALSEY RO AD KANPUR V. INCOME TAX OFFICER 2(4) KANPUR T AN /PAN : AABOH5652J (APP ELL ANT) (RESPONDENT) APP ELL ANT BY: WRITTEN SUBMISSION RESPONDENT BY: SHRI. AMIT NIGAM, D.R. DATE OF HEARING: 19 01 201 6 DATE OF PRONOUNCEMENT: 02 03 201 6 O R D E R PER SUNIL K UMAR YADAV: THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINST THE RESPECTIVE ORDERS OF THE LD. CIT(A) FOR ASSESSMENT YEARS 2008 - 09 AND 2010 - 11. SINCE THESE APPEALS WERE HEARD TOGETHER, THESE ARE BEING DISPOSED OF THROUGH THIS CONSOLIDATED ORDER. 2 . IN THIS APPEAL, THE ASSESSEE HAS ASSAILED THE ORDER OF THE LD. CIT(A), INTER ALIA, ON THE FOLLOWING GROUNDS: - I.T.A . NO. 331/LKW/2015: 1 . BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE VALIDITY OF ASSESSMENT FRAMED UNDER SECTION 148/143(3) OF TH E I . T. ACT, 1961, WHICH ORDER IS BAD IN LAW AND BE QUASHE D FOR TH E REASON THAT THERE BEING NO NOTICE U/S 143(2) ISSUED AFTER THE FILING OF THE RETURN OF INCOME WHICH IS SINE QUA NON. : - 2 - : 2 . BECAUSE THERE BEING NO ISSUE OF NOTICE U/S 143(2) PURSUANT TO THE FILING OF RETURN UNDER SECTION 148 OF THE ACT, THE ENTIRE REASSESSMENT FRAMED UNDER SECTION 148 IS BAD IN LAW AND BE QUASHED. 3 . BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE ADDITION OF RS.12,71,488/ - UNDER SECTION 69 OF THE ACT, WHICH ADDITION IS CONTRARY TO FACTS, BAD IN LAW AND BE DELETED. 3 . THROUGH GROUNDS NO.1 AND 2, THE VALIDITY OF ASSESSMENT FRAMED UNDER SECTION 147/143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT THE ACT' ) IS CHALLENGED. IN SUPPORT OF HI S CONTENTION, THE A SSESSEE HAS SUBMITTED THAT IN THE ABSENCE OF NOTICE UNDER SECTION 143(2) OF THE ACT, THE ASSESSMENT FRAMED UNDER SECTION 143(3) OF THE ACT IS NOT A VALID ASSESSMENT. OUR ATTENTION WAS INVITED TO THE FACT THAT THE ASSESSMENT WAS REOPENED UNDER SECTION 147 OF THE ACT AND NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 18.3.2013. COPY OF THE NOTICE UNDER SECTION 148 OF THE ACT IS AVAILABLE AT PAGE 13 OF THE COMPILATION OF THE ASSESSEE. IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT, THE ASSESSEE HAS S UBMITTED HIS REPLY AND REQUESTED THAT THE RETURN FILED ON 31.3.2009 FOR ASSESSMENT YEAR 2008 - 09 BE TREATED AS RETURN IN COMPLIANCE TO NOTICE UNDER SECTION 148 OF THE ACT DATED 18.3.2013 , VIDE LETTER DATED 4.4.2013. COPY OF THIS REPLY IS AVAILABLE AT PAGE 12 OF THE COMPILATION OF THE ASSESSEE. THEREAFTER , NO NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED TO THE ASSESSEE. HOWEVER, NOTICE UNDER SECTION 142(1) OF THE ACT WAS ISSUED ON 29.4.2013. OUR ATTENTION WAS FURTHER INVITED TO THE FACT THAT THE ASSE SSING OFFICER HAD ISSUED NOTICE UNDER SECTION 143(2) OF THE ACT ON 19.3.2013 WITHOUT WAITING FOR THE REPLY OF THE ASSESSEE WITH RESPECT TO THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT. NOTICE UNDER SECTION 143(2) OF THE ACT IS TO BE ISSUED ONLY AFTER FI LING OF THE RETURN OR REPLY OF THE ASSESSEE IN RESPONSE TO : - 3 - : NOTICE UNDER SECTION 148 OF THE ACT. THE ASSESSING OFFICER HAS ISSUED NOTICE UNDER SECTION 143(2) OF THE ACT ON THE VERY NEXT DAY OF ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT; WHEREAS THROUG H NOTICE UNDER SECTION 148 OF THE ACT DATED 18.3.2013 , 15 DAYS TIME WAS AFFORDED TO THE ASSESSEE TO SUBMIT THE RETURN OF INCOME IN THE PRESCRIBED FORMAT. SINCE NOTICE UNDER SECTION 143(2) OF THE ACT WAS NOT ISSUED AFTER FILING OF THE RETURN, THE ASSESSMEN T FRAMED CONSEQUENT THERETO ITSELF IS BAD IN LAW AND DESERVES TO BE ANNULLED. IN SUPPORT OF HIS CONTENTION, THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE UPON THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF ACIT VS. M/S GREATER NO I DA I NDUSTRIAL DEVELOPMENT AUTHORITY IN INCOME TAX APPEAL NO.142 OF 2015, IN WHICH THEIR LORDSHIPS HAVE HELD THAT WHERE THE ASSESSING OFFICER HAS FAILED TO ISSUE NOTICE WITHIN A SPECIFIED PERIOD UNDER SECTION 143(2) OF THE ACT, THE ASSESSING OFFICER HAD NO JURI SDICTION TO ASSUME JURISDICTION UNDER SECTION 143( 3 ) OF THE ACT AND THIS DEFECT CANNOT BE CURED BY TAKING RE COURSE OF THE DEEMING FICTION PROVIDED UNDER SECTION 292BB OF THE ACT. THEIR LORDSHIPS ACCORDINGLY CONFIRMED THE ORDER OF THE TRIBUNAL SETTING ASID E THE ORDER OF THE ASSESSING OFFICER AS WELL AS THE ORDER OF THE APPELLATE AUTHORITY. COPY OF THIS JUDGMENT OF THE HONBLE HIGH COURT IS PLACED ON RECORD. BESIDES, RELIANCE WAS ALSO PLACED UPON THE JUDGMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF PRINCIPLE CIT VS. SHRI. JAI SHIV SHANKER TRADERS PVT. LTD. IN I.T.A. NO. 519/2015 AND IN THE CASE OF ALPINE ELECTRONICS ASIA PTE LTD. VS. DIRECTOR GENERAL OF INCOME TAX IN WRIT PETITION (CIVIL) NO.7932/2010, IN WHICH THE HONBLE DELHI HIGH COURT HAS ALSO E XPRESSED THE SIMILAR VIEW S . 4 . THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A) WITH THE SUBMISSION THAT THE ASSESSEE HAS JOINED THE ASSESSMENT PROCEEDINGS, THEREFORE, HE CANNOT RAISE ANY OBJECTION : - 4 - : WITH REGARD TO THE SERVI CE OF NOTICE UNDER SECTION 143(2) OF THE ACT. HE HAS ALSO PLACED RELIANCE UPON THE PROVISIONS OF SECTION 292BB OF THE ACT. 5 . HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD IN THE LIGHT OF THE RIVAL SUBMISS IONS, WE FIND THAT UNDISPUTEDLY NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 18.3.2013 ASKING THE ASSESSEE TO FILE THE RETURN OF INCOME WITHIN A PERIOD OF 15 DAYS FROM THE DATE OF SERVICE OF NOTICE. THEREAFTER , VIDE LETTER DATED 4.4.2013 THE ASSESSEE HAS REQUESTED THE ASSESSING OFFICER TO TREAT THE RETURN FILED ON 30.3.2009 FOR ASSESSMENT YEAR 2008 - 09 AS RETURN FILED IN COMPLIANCE TO NOTICE UNDER SECTION 148 OF THE ACT DATED 18.3.2013, MEANING THEREBY THE DATE OF FILING OF THE RETURN IN RESPONSE TO NO TICE UNDER SECTION 148 OF THE ACT CAN ONLY BE 4.4.2013, O N WHICH THE ASSESSEE MADE A REQUEST TO TREAT THE ORIGINAL RETURN FILED AS THE RETURN FILED IN COMPLIANCE TO THE NOTICE UNDER SECTION 148 OF THE ACT. THE PROVISIONS OF SECTION 143(3) OF THE ACT ARE T O BE APPLIED WHILE COMPLETING THE REOPENED ASSESSMENT UNDER SECTION 147 OF THE ACT. AFTER 4.4.2013 , NO NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED AND THE ASSESSING OFFICER HAS ONLY ISSUED NOTICE UNDER SECTION 142(1) OF THE ACT ON 29.4.2013. HOWEVE R, THE ASSESSING OFFICER HAS ISSUED NOTICE UNDER SECTION 143(2) OF THE ACT ON 19.3.2013 WHICH IS THE NEXT DA Y FROM THE ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT. THE ISSUANCE OF THIS NOTICE COULD NOT MEET THE REQUIREMENT OF LAW. AS PER REQUIREMENT OF LAW, NOTICE UNDER SECTION 143(2) OF THE ACT IS TO BE ISSUED ONLY AFTER FILING OF THE RETURN OF INCOME AND NOT BEFORE THAT. 6 . WE HAVE ALSO CAREFULLY EXAMINED THE JUDGMENT OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF ACIT VS. M/S GREATER NOIDA INDUSTR IAL DEVELOPMENT AUTHORITY (SUPRA), IN WHICH IT HAS BEEN HELD THAT TO ASSUME JURISDICTION TO FRAME ASSESSMENT, THE ASSESSING OFFICER IS REQUIRED TO ISSUE NOTICE UNDER SECTION 143(2) OF THE ACT AND IF THE NOTICE : - 5 - : IS NOT ISSUED, THE ASSESSMENT FRAMED CONSEQUEN T THERETO IS INVALID AND DESERVES TO BE QUASHED DESPITE THE FACT THAT THE ASSESSEE HAS JOINED THE ASSESSMENT PROCEEDINGS. THE HONBLE HIGH COURT HAS ALSO HELD THAT DEFECT OF NON - ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT CANNOT BE CURED BY TAKING RECOURSE TO THE DEEMING FICTION PROVIDED UNDER SECTION 292BB OF THE ACT. THE RELEVANT OBSERVATIONS OF THE HONBLE HIGH COURT ARE EXTRACTED HEREUNDER FOR THE SAKE OF REFERENCE: - 10. IN ORDER TO UNDERSTAND THE CONTROVERSY AS TO WHETHER A NOTICE UNDER SECTI ON 143(2) OF THE ACT IS ESSENTIAL TO BE ISSUED AND SERVED UPON THE ASSESSEE IN REASSESSMENT PROCEEDINGS IT WOULD BE APPROPRIATE TO REFER TO THE SAID SECTION. FOR FACILITY, THE PROVISIONS OF SECTION 143(2) OF THE ACT IS EXTRACTED HEREUNDER: SECTION 143 (2 ) WHERE A RETURN HAS BEEN FURNISHED UNDER SECTION 139, OR IN RESPONSE TO A NOTICE UNDER SUB - SECTION (1) OF SECTION 142, THE ASSESSING OFFICER SHALL, (I) WHERE HE HAS REASON TO BELIEVE THAT ANY CLAIM OF LOSS, EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF MADE IN THE RETURN IS INADMISSIBLE, SERVE ON THE ASSESSEE A NOTICE SPECIFYING PARTICULARS OF SUCH CLAIM OF LOSS, EXEMPTION, DEDUCTION, ALLOWANCE OR RELIEF AND REQUIRE HIM, ON A DATE TO BE SPECIFIED THEREIN TO PRODUCE, OR CAUSE TO BE PRODUCED, ANY EVIDENCE OR P ARTICULARS SPECIFIED THEREIN OR ON WHICH THE ASSESSEE MAY RELY, IN SUPPORT OF SUCH CLAIM: PROVIDED THAT NO NOTICE UNDER THIS CLAUSE SHALL BE SERVED ON THE ASSESSEE ON OR AFTER THE 1ST DAY OF JUNE, 2003; (II) NOTWITHSTANDING ANYTHING 9 CONTAINED IN CLAUSE ( I), IF HE CONSIDERS IT NECESSARY OR EXPEDIENT TO ENSURE THAT THE ASSESSEE HAS NOT UNDERSTATED THE INCOME OR HAS NOT COMPUTED EXCESSIVE LOSS OR HAS NOT UNDERPAID THE TAX IN ANY MANNER, SERVE ON THE ASSESSEE A NOTICE REQUIRING HIM, ON A DATE TO BE SPECIFIED THEREIN, EITHER TO ATTEND HIS OFFICE OR TO PRODUCE, OR CAUSE TO BE PRODUCED, : - 6 - : ANY EVIDENCE ON WHICH THE ASSESSEE MAY RELY IN SUPPORT OF THE RETURN: PROVIDED THAT NO NOTICE UNDER CLAUSE (II) SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED. 11. UNDER CLAUSE (II) OF SUB - SECTION (2) OF SECTION 143, THE ASSESSING OFFICER IS REQUIRED TO SERVE, ON THE ASSESSEE, A NOTICE REQUIRING HIM TO ATTEND THE OFFICE OR TO PRODUCE EVIDENCE ON W HICH THE ASSESSEE MAY RELY IN SUPPORT OF THE RETURN, IF THE ASSESSING OFFICER CONSIDERS IT NECESSARY OR EXPEDIENT TO ENSURE THAT THE ASSESSEE HAS NOT UNDERSTATED THE INCOME OR HAS NOT COMPUTED EXCESSIVE LOSS OR HAS NOT UNDER - PAID THE TAX IN ANY MANNER. UND ER THE PROVISO TO CLAUSE(II), IT HAS 10 BEEN SPECIFIED THAT NO NOTICE UNDER CLAUSE (II) SHALL BE SERVED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS FURNISHED. SERVICE ON THE ASSESSEE OF A NOTICE WITHIN THE PERIOD PRESCRIBED BY THE PROVISO PRESUPPOSES THE ISSUANCE OF A NOTICE FOR, IT IS ONLY WHEN A NOTICE IS ISSUED, THAT IT CAN BE SERVED. THEREAFTER, THE PROVISIONS OF SUBSECTION (3) OF SECTION 143 OF THE ACT STIPULATE THAT ON THE DATE SPECIFIED IN THE NOTICE ISSUED UNDER CLAUSE (II) OF SUB - SECTION (2) OF SECTION 143 OF THE ACT, THE ASSESSING OFFICER SHALL, AFTER HEARING THE EVIDENCE AS THE ASSESSEE MAY PRODUCE AND CONSIDERING SUCH OTHER EVIDENCE AS HE MAY REQUIRE AND UPON TAKING INTO ACCOUNT ALL REL EVANT MATERIAL, BY AN ORDER IN WRITING MAKE AN ASSESSMENT OF THE TOTAL INCOME OR LOSS OF THE ASSESSEE. 12. THE JURISDICTION OF THE ASSESSING OFFICER TO MAKE AN ASSESSMENT UNDER SECTION 143(3) (II) OF THE ACT IS PREMISED ON THE ISSUANCE OF A NOTICE UNDER C LAUSE (II) OF SECTION 143(2) OF THE ACT. THE PROVISO TO CLAUSE (II) OF SUB - SECTION (2) OF SECTION 143 OF THE ACT STIPULATES THAT A NOTICE MUST BE SERVED ON THE ASSESSEE NOT LATER THAN THE EXPIRY OF 11 SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN HAS BEEN FURNISHED. IF A NOTICE IS NOT EVEN ISSUED WITHIN THE PERIOD OF SIX MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE RETURN IS : - 7 - : FURNISHED, THERE WOULD BE NO OCCASION TO SERVE IT UPON THE ASSESSEE WITHIN THE STIPULATED PERIOD. 13. T HE SUPREME COURT IN ASSISTANT COMMISSIONER OF INCOME TAX AND ANOTHER VS. HOTEL BLUE MOON, (2010) 321 ITR 362 (SC), WHILE CONSIDERING THE PROVISION OF CHAPTER XIV - B OF THE ACT IN RELATION TO BLOCK ASSESSMENTS CONSIDERED THE EFFECT OF SECTION 143(2) OF THE A CT AND HELD: ..........BUT SECTION 143(2) ITSELF BECOMES NECESSARY ONLY WHERE IT BECOMES NECESSARY TO CHECK THE RETURN, SO THAT WHERE BLOCK RETURN CONFORMS TO THE UNDISCLOSED INCOME INFERRED BY THE AUTHORITIES, THERE IS NO REASON, WHY THE AUTHORITIES SHO ULD ISSUE NOTICE UNDER SECTION 143(2). HOWEVER, IF AN ASSESSMENT IS TO BE COMPLETED UNDER SECTION 143(3) READ WITH SECTION 158 - BC, NOTICE UNDER SECTION 143(2) SHOULD BE ISSUED WITHIN ONE YEAR FROM THE DATE OF FILING OF BLOCK RETURN. OMISSION ON THE PART OF THE ASSESSING AUTHORITY TO ISSUE NOTICE UNDER SECTION 12 143(2) CANNOT BE A PROCEDURAL IRREGULARITY AND THE SAME IS NOT CURABLE AND, THEREFORE, THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) CANNOT BE DISPENSED WITH. 14. THE SUPREME COURT CLEARLY HELD THAT OMISSION ON THE PART OF THE ASSESSING OFFICER IS NOT A PROCEDURAL IRREGULARITY AND IS INCURABLE AND, THEREFORE, THE REQUIREMENT OF NOTICE UNDER SECTION 143(2) OF THE ACT CANNOT BE DISPENSED WITH. 15. SIMILAR VIEW WAS HELD BY A DIVISION BENCH OF THIS COURT IN COMMISSIONER OF INCOME TAX II LUCKNOW VS. SALARPUR COLD STORAGE (P) LTD. , (2014) 50 TAXMAN.COM.105, COMMISSIONER OF INCOME - TAX, FAIZABAD VS. ADARSH TRAVEL BUS SERVICE, (2012) 17 TAXMANN. CO 140(ALL.) AS WELL AS IN COMMISSIONER OF INCOME - TAX VS. M UKESH KUMAR AGRAWAL, 345 ITR 29 AND COMMISSIONER OF INCOME - TAX VS. RAJEEV SHARMA, (2010) 192 TAXMAN 197 (ALL.). : - 8 - : 15. IN THE LIGHT OF THE AFORESAID DECISIONS, IT IS APPARENTLY CLEAR THAT THE JURISDICTION OF THE ASSESSING OFFICER TO MAKE AN ASSESSMENT UNDER SECTION 143(3) (II) OF THE ACT IS BASED ON THE ISSUANCE OF A NOTICE UNDER SECTION 143(2)(II) OF THE 13 ACT. THE PROVISO TO CLAUSE (II) OF SUB SECTION (2) OF SECTION 143 CLEARLY STIPULATES THAT A NOTICE MUST BE SERVED ON THE ASSESSEE. 16. IN THE LIGHT OF THE AFORESAID, WE HAVE TO SEE AS TO WHETHER THE WORD NOTICE SPECIFIED IN PARAGRAPH 16 OF THE SUPPLEMENTARY AFFIDAVIT IS IN FACT A NOTICE ISSUED UNDER SECTION 143 (2) OF THE ACT. THE LEARNED COUNSEL WAS DIRECTED TO SHOW THE SAID NOTICE FROM THE ORIGINAL A SSESSMENT RECORDS. THE RELEVANT NOTICE WAS SHOWN TO THE COURT. THE NOTICE WHICH HAS BEEN MENTIONED IN PARAGRAPH 16 OF THE SUPPLEMENTARY AFFIDAVIT IS A NOTICE DATED 10.12.2013, WHICH ACCOMPANIES THE QUESTIONNAIRE DATED 10.12.2013. THE LAST PARAGRAPH OF THE QUESTIONNAIRE INDICATES THAT THE ACCOMPANYING NOTICE IS BEING ISSUED UNDER SECTION 142(1) OF THE ACT. FROM THE SAID NOTICE, IT IS CLEAR THAT THE NOTICE WHICH THE APPELLANT IS ASSERTING TO BE A NOTICE UNDER SECTION 143(2) IS PATENTLY ERRONEOUS AND MISCHIEVO US. IT IS NOTHING ELSE BUT A NOTICE UNDER SECTION 142(1) OF THE ACT. THE RECORD DOES NOT INDICATE ANY OTHER NOTICE BEING ISSUED, WHICH COULD PURPORT TO BE ONE UNDER SECTION 143(2) OF THE ACT. WE ARE, THEREFORE, OF THE OPINION THAT FROM A PERUSAL OF THE ORI GINAL 14 ASSESSMENT RECORD, WE FIND THAT NO NOTICE UNDER SECTION 143(2) OF THE ACT WAS EVER ISSUED. 17. THE SUBMISSION OF THE LEARNED COUNSEL FOR THE APPELLANT THAT THE ASSESSEE HAD PARTICIPATED IN THE REASSESSMENT PROCEEDINGS AND, THEREFORE, CANNOT ASSER T THAT THE NOTICE WAS NOT SERVED IN VIEW OF SECTION 292BB IS PATENTLY ERRONEOUS. FOR FACILITY, SECTION 292BB OF THE ACT IS EXTRACTED HEREUNDER: . '292 BB. WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDING OR COOPERATED IN ANY INQUIRY RELATING TO AN ASSESSME NT OR REASSESSMENT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF THIS ACT, WHICH IS REQUIRED TO : - 9 - : BE SERVED UPON HIM, HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT AND SUCH ASSESSEE SHALL BE PRECLUDED FROM T AKING ANY OBJECTION IN ANY PROCEEDING OR INQUIRY UNDER THIS ACT THAT THE NOTICE WAS - (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER: PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY WHER E THE ASSESSEE HAS RAISED SUCH OBJECTION BEFORE THE COMPLETION OF 15 SUCH ASSESSMENT OR REASSESSMENT. 18. SECTION 292 BB OF THE ACT WAS INSERTED BY THE FINANCE ACT, 2008 WITH EFFECT FROM 1 APRIL 2008. SECTION 292 BB OF THE ACT PROVIDES A DEEMING FICTION. THE DEEMING FICTION IS TO THE EFFECT THAT ONCE THE ASSESSEE HAS APPEARED IN ANY PROCEEDING OR COOPERATED IN ANY ENQUIRY RELATING TO AN ASSESSMENT OR REASSESSMENT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER THE PROVISIONS OF THE ACT, WHICH IS REQUIRED TO BE S ERVED ON THE ASSESSEE, HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THE ACT. THE ASSESSEE IS PRECLUDED FROM TAKING ANY OBJECTION IN ANY PROCEEDING OR ENQUIRY THAT THE NOTICE WAS (I) NOT SERVED UPON HIM; OR (II) NOT SERVED UPON HIM IN TIME; OR (III) SERVED UPON HIM IN AN IMPROPER MANNER. IN OTHER WORDS, ONCE THE DEEMING FICTION COMES INTO OPERATION, THE ASSESSEE IS PRECLUDED FROM RAISING A CHALLENGE ABOUT THE SERVICE OF A NOTICE, SERVICE WITHIN TIME OR SERVICE IN AN IMPROPER MAN NER. THE PROVISO TO SECTION 292 BB OF THE ACT, HOWEVER, CARVES OUT AN EXCEPTION TO THE EFFECT THAT THE SECTION SHALL NOT APPLY WHERE THE ASSESSEE HAS RAISED AN OBJECTION BEFORE THE 16 COMPLETION OF THE ASSESSMENT OR REASSESSMENT. SECTION 292 BB OF THE ACT CANNOT OBVIATE THE REQUIREMENT OF COMPLYING WITH A JURISDICTIONAL CONDITION. FOR THE ASSESSING OFFICER TO MAKE AN ORDER OF ASSESSMENT UNDER SECTION 143 (3) OF THE ACT, IT IS NECESSARY TO ISSUE A NOTICE UNDER SECTION 143 (2) OF THE ACT AND IN THE ABSENCE OF A NOTICE UNDER SECTION 143(2) OF THE ACT, THE ASSUMPTION OF JURISDICTION ITSELF WOULD BE INVALID. : - 10 - : 19. IN VIEW OF THE AFORESAID, WE ARE OF THE OPINION THAT SECTION 292BB, WHICH WAS INSERTED WITH EFFECT FROM 01.04.3008 IS NOT APPLICABLE TO THE PROCEEDINGS FOR THE ASSESSMENT YEAR 2006 - 07, 2007 - 08, 2008 - 09. WE ARE ALSO OF THE OPINION THAT SECTION 292BB OF THE ACT IS NOT APPLICABLE ALSO FOR THE ASSESSMENT YEARS 2009 - 10, 2010 - 11 AND 2011 - 12. THE DEEMING FICTION THAT ONCE AN ASSESSEE HAS APPEARED IN ANY PROCEEDI NG OR PARTICIPATED IN ANY QUERY RELATING TO ASSESSMENT OR REASSESSMENT, IT SHALL BE DEEMED THAT THE NOTICE UNDER THE PROVISIONS OF THE ACT, WHICH IS REQUIRED TO BE SERVED HAS BEEN DULY SERVED UPON HIM IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AND, THERE FORE, IS PRECLUDED FROM CONTENDING THAT THE 17 NOTICE WAS NOT SERVED UPON HIM OR WAS NOT SERVED UPON HIM IN TIME OR WAS NOT SERVED UPON HIM IN A PROPER MANNER, IN OUR VIEW, IS NOT APPLICABLE FOR THE FOLLOWING REASON. 20. THERE IS A CLEAR DISTINCTION BETWE EN ISSUE OF NOTICE AND SERVICE OF NOTICE. IN R.K.UPADHYAYA VS. SHANABHAI P. PATEL, 166 ITR 163, THE CONTROVERSY WAS THAT A NOTICE UNDER SECTION 148 WAS ISSUED ON 31.03.1970 I.E. THE LAST DATE OF LIMITATION, WHICH NOTICE WAS SERVED ON THE ASSESSEE ON 03 .04.1970, AFTER THE EXPIRY OF LIMITATION. THE HIGH COURT HELD THAT SINCE THE NOTICE WAS SERVED AFTER THE EXPIRY OF THE PERIOD, THE ASSESSMENT ORDER WAS INVALID AND HAD ACCORDINGLY QUASHED THE NOTICE FOR REASSESSMENT ISSUED UNDER SECTION 147 OF THE INCOME T AX ACT,1961. THE SUPREME COURT HELD THAT THE SCHEME OF 1961 ACT IN SO FAR AS THE NOTICE FOR REASSESSMENT WAS CONCERNED WAS QUITE DIFFERENT THAN THAT CONTAINED UNDER SECTION 34 OF THE INCOME TAX ACT, 1922. THE SUPREME COURT HELD THAT A CLEAR DISTINCTION HAS BEEN MADE BETWEEN ISSUE OF NOTICE AND SERVICE OF NOTICE UNDER THE ACT. THE SUPREME COURT HELD THAT ONCE A NOTICE IS ISSUED WITHIN THE PERIOD OF LIMITATION, THE INCOME 18 TAX OFFICER GETS THE JURISDICTION TO PROCEED TO REASSESS AND MAKE THE ASSESSMENT ORDER. THE MANDATE OF SECTION 148(1) OF THE ACT IS, THAT REASSESSMENT SHALL NOT BE MADE UNTIL THERE HAS BEEN A SERVICE OF NOTICE WHICH IS A CONDITION PRECEDENT TO MAKING AN ORDER OF ASSESSMENT. THE SUPREME COURT FURTHER HELD THAT THE REQUIREMENT OF : - 11 - : ISSUE O F NOTICE IS SATISFIED WHEN A NOTICE IS ACTUALLY ISSUED AND THAT SERVICE UNDER THE ACT, 1961 IS NOT A CONDITION PRECEDENT TO CONFERMENT OF JURISDICTION ON THE INCOME TAX OFFICER TO DEAL WITH THE MATTER BUT IT IS ONLY A CONDITION PRECEDENT TO THE MAKING OF T HE ORDER OF ASSESSMENT. THE SUPREME COURT HELD: SECTION 34, CONFERRED JURISDICTION ON THE INCOME - TAX OFFICER TO REOPEN AN ASSESSMENT SUBJECT TO SERVICE OF NOTICE WITHIN THE PRESCRIBED PERIOD. THEREFORE, SERVICE OF NOTICE WITHIN LIMITATION WAS THE FOUNDAT ION OF JURISDICTION. THE SAME VIEW HAS BEEN TAKEN BY THIS COURT IN JANNI V. INDU PRASAD BHAT, 72 ITR 595 AS ALSO IN C.I.T. V. ROBERT, 48 ITR 177. THE HIGH COURT IN OUR OPINION WENT WRONG IN RELYING UPON THE RATIO OF 53 ITR 100 IN DISPOSING OF THE CASE IN H AND. THE SCHEME OF THE 1961 ACT SO FAR AS NOTICE FOR REASSESSMENT 19 IS CONCERNED IS QUITE DIFFERENT. WHAT USED TO BE CONTAINED IN SECTION 34 OF THE 1922 ACT HAS BEEN SPREAD OUT INTO THREE SECTIONS, BEING SECTIONS 147, 148 AND 149 IN THE 45 1961 ACT. A CLE AR DISTINCTION HAS BEEN MADE OUT BETWEEN 'ISSUE OF NOTICE' AND 'SERVICE OF NOTICE' UNDER THE 1961 ACT. SECTION 149 PRESCRIBE THE PERIOD OF LIMITATION. IT CATEGORICALLY PRESCRIBES THAT NO NOTICE UNDER SECTION 149 SHALL BE ISSUED AFTER THE PRESCRIBED LIMITAT ION HAS LAPSED. SECTION 148(1) PROVIDES FOR SERVICE OF NOTICE AS A CONDITION PRECEDENT TO MAKING THE ORDER OF ASSESSMENT. ONCE A NOTICE IS ISSUED WITHIN THE PERIOD OF LIMITATION, JURISDICTION BECOMES VESTED IN THE INCOME - TAX OFFICER TO PROCEED TO REASSESS. THE MANDATE OF SECTION 148(1) IS THAT REASSESSMENT SHALL NOT BE MADE UNTIL THERE HAS BEEN SERVICE. THE REQUIREMENT OF ISSUE OF NOTICE IS SATISFIED WHEN A NOTICE IS ACTUALLY ISSUED. IN THIS CASE, ADMITTEDLY, THE NOTICE WAS ISSUED WITHIN THE PRESCRIBED PERI OD OF LIMITATION AS MARCH 31, 1970, WAS THE LAST DAY OF THAT PERIOD. SERVICE UNDER THE NEW ACT IS NOT A CONDITION : - 12 - : PRECEDENT TO CONFERMENT OF JURISDICTION IN THE INCOME - TAX OFFICER TO DEAL WITH THE MATTER BUT IT IS A CONDITION PRECEDENT TO 20 MAKING OF THE ORDER OF ASSESSMENT. THE HIGH COURT IN OUR OPINION LOST SIGHT OF THE DISTINCTION AND UNDER A WRONG BASIS FELT BOUND BY THE JUDGMENT IN 53 ITR 100. AS THE INCOME - TAX OFFICER HAD ISSUED NOTICE WITHIN LIMITATION, THE APPEAL IS ALLOWED AND THE ORDER OF THE HIG H COURT IS VACATED. THE INCOME - TAX OFFICER SHALL NOW PROCEED TO COMPLETE THE ASSESSMENT AFTER COMPLYING WITH THE REQUIREMENTS OF LAW. SINCE THERE HAS BEEN NO APPEARANCE ON BEHALF OF THE RESPONDENTS, WE MAKE NO ORDERS FOR COSTS. 21. FROM THE AFORESAID, IT IS CLEAR THAT THE ESSENTIAL REQUIREMENT IS ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT. THE DEEMING FICTION UNDER SECTION 292BB OF THE ACT IS WITH REGARD TO SERVICE OF NOTICE. SINCE THE INITIAL REQUIREMENT OF ISSUANCE OF NOTICE WAS NOT MADE BY THE ASSE SSING OFFICER, THE DEEMING FICTION OF SERVICE OF NOTICE UNDER SECTION 292BB OF THE ACT, CONSEQUENTLY, DOES NOT ARISE AND IS NOT APPLICABLE. 22. IN THE LIGHT OF THE AFORESAID, SINCE THE ASSESSING OFFICER FAILED TO ISSUE NOTICE WITHIN THE SPECIFIED PERIOD UNDER SECTION 143(2) OF THE ACT, 21 THE ASSESSING OFFICER HAD NO JURISDICTION TO ASSUME JURISDICTION UNDER SECTION 143(2) OF THE ACT AND THIS DEFECT CANNOT BE CURED BY TAKING RECOURSE TO THE DEEMING FICTION PROVIDED UNDER SECTION 292BB OF THE ACT. C ONSEQUENTLY, THE TRIBUNAL WAS JUSTIFIED IN SETTING ASIDE THE ORDER OF THE ASSESSING OFFICER AS WELL AS THE ORDER OF THE APPELLATE AUTHORITY. 7 . SIMILAR VIEWS WERE ALSO EXPRESSED BY THE HONBLE DELHI HIGH COURT IN THE CASE OF ALPINE ELECTRONICS ASIA PTE LTD. VS. DIRECTOR GENERAL OF INCOME TAX (SUPRA) AND IN THE CASE OF PRINCIPLE CIT VS. SHRI. JAI SHIV SHANKER TRADERS PVT. LTD. (SUPRA). THE LUCKNOW BENCH OF THE TRIBUNAL : - 13 - : IN THE CASE OF INCOME TAX OFFICER, HARDOI VS. SHRI. HIRA LAL GUPTA IN I.T.A. NO. 310/LKW/2 013 HAS ALSO EXPRESSED THE S IMILAR VIEW S . 8 . IN THE LIGHT OF THE LEGAL PROPOSITION, WE ARE OF THE VIEW THAT SINCE NOTICE UNDER SECTION 143(2) OF THE ACT WAS NOT ISSUED AFTER FILING THE RETURN OF INCOME, THE ASSESSMENT FRAMED UNDER SECTION 143(3) READ WITH SEC TION 147 OF THE ACT , IS NOT VALID AND DESERVES TO BE QUASHED. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND QUASH THE ASSESSMENT ORDER. 9 . IN THIS APPEAL, THE ASSESSEE HAS ASSAILED THE ORDER OF THE LD. CIT(A) ON A SOLITARY GROUND THAT THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE ADDITION OF RS.24,13,237/ - AS UNEXPLAINED AND INCOME FROM UNDISCLOSED SOURCES BEING THE AMOUNTS DEPOSITED IN BANK. I.T.A. NO. 332/LKW/2015: 10 . THE FACTS IN BRIEF BORNE OUT FROM THE RECORD ARE THAT DURING THE C OURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS NOTICED THAT THE ASSESSEE HAS MAINTAINED VARIOUS BANK ACCOUNTS. THE ASSESSING OFFICER HAS NOTED THAT IN THE BANK ACCOUNT WITH HDFC BANK, SAGAR, M.P. BEARING ACCOUNT NO.04491930000386, CASH MORE TH AN RS.10 LAKHS WAS DEPOSITED DURING THE YEAR. COPY OF THE SAID ACCOUNT WAS OBTAINED FROM THE HDFC BANK AND IT REVEALS THAT CASH OF RS.22,00437/ - WAS DEPOSITED FROM DALHOUSIE, UJJAIN, KOLKATA, JABALPUR, SAGAR, DAMOH AND KHANDAWA. THE DEPOSIT OF RS.2,12,80 0/ - WAS MADE THROUGH CHEQUE. THUS TOTAL DEPOSIT OF RS.24,13,237/ - WERE MADE DURING THE YEAR. THIS AMOUNT WAS NOT SHOWN BY THE ASSESSEE NEITHER IN THE BALANCE SHEET AND RETURN OF INCOME NOR DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE ASSESSING OFFIC ER ACCORDINGLY FORMED AN OPINION THAT THE ASSESSEE WAS WILLFULLY AND FRAUDULENTLY WITH MALAFIDE INTENTION HIDING THE FACTS REGARDING THE SAID BANK ACCOUNT. THE ASSESSEE WAS ACCORDINGLY ASKED : - 14 - : THROUGH SHOW CAUSE NOTICE TO FURNISH THE SOURCE OF DEPOSITS. VI DE REPLY DATED 9.2.2013 THE ASSESSEE HAS SUBMITTED THAT THE CREDIT ENTRIES REPRESENT AMOUNTS RECEIVED FROM EMKAY G LOBAL, PRESIDENT MOTORS, DIVIDEND ON SHARES, BIRLA SUN LIFE, RELIANCE MUTUAL FUNDS, ETC. HE HAS ALSO FILED SUPPORTING EVIDENCE IN THIS REGARD . IT WAS ALSO INFORMED THAT HE HAS DONE BUSINESS OF SALES AND PURCHASE OF SHARES AND HAS INCURRED LOSS OF RS.4,26,366/ - AND IN SUPPORT OF HIS CLAIM THE ASSESSEE HAS FILED COPY OF DEPOSITORY SERVICES OF HDFC BANK. THE ASSESSEE HAS ALSO FURNISHED OTHER REL EVANT EVIDENCE TO JUSTIFY THE SOURCE OF DEPOSIT, BUT THE ASSESSING OFFICER WAS NOT CONVINCED WITH IT AND HE MADE THE ADDITION OF RS.24,13,237/ - . 11 . AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A) AND FURNISHED DETAILED EXPLANATIONS. ON TH E EXPLANATIONS, THE LD. CIT(A) HAS CALLED A REMAND REPORT FROM THE ASSESSING OFFICER AND DURING THE REMAND PROCEEDINGS THE ASSESSEE HAS SUBMITTED DETAILS OF CASH DEPOSITS IN THE BANK ACCOUNT AND IN SUPPORT OF HIS CONTENTIONS T HE ASSESSEE HAS PRODUCED COPY OF CASH BOOKS ALONG WITH COPY OF THE ACCOUNT AS APPEARING IN THE BOOKS OF ACCOUNT OF BHAGWAN DAS SHOB HA L AL JAIN, SAGAR, M.P. , PARTNERSHIP CONCERN, IN WHICH ASSESSEE IS ONE OF THE PARTNERS. RECORDS WERE VERIFIED BY THE ASSESSING OFFICER AND THE ASSESSING OFFICER HAS OBSERVED THAT IT IS FOUND THAT CASH DEPOSITS IN THE SAID BANK ACCOUNT WAS MADE EITHER FROM WITHDRAWAL S MADE FROM THE PARTNERSHIP FIRM OF BHAGWAN DAS SHOBHA LAL JAIN OR FROM HIS OWN CASH ACCOUNT AS REFLECTED IN CASH BOOK. HE HAS ALSO ENCLOSED C ASH BOOK OF THE ASSESSEE, COPY OF ACCOUNTS APPEARING IN THE BOOKS OF ACCOUNT OF BHAGWAN DAS SHOBHA LAL JAIN AND COPY OF STATEMENT ALONG WITH RECORD SUBMITTED BEFORE THE LD. CIT(A). THE LD. CIT(A) DID NOT RELY UPON THE REMAND REPORT AND CONFIRMED THE ADDIT ION. : - 15 - : 12 . NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL WITH THE SUBMISSION THAT THERE WAS DEPOSIT OF RS.24,13,237/ - IN THE ASSESSEES ACCOUNT AND SOURCE OF DEPOSIT OF THE SAID AMOUNT WAS DULY EXPLAINED BEFORE THE ASSESSING OFFICER AND THE LD. CIT(A). THE RELEVANT EVIDENCE INCLUDING THE CASH BOOK, COPY OF ACCOUNT OF BHAGWAN DAS SHOBHA LAL JAIN, ETC . WERE FILED TO EXPLAIN THE SOURCE OF DEPOSITS. BUT THE LD. CIT(A) DID NOT APPRECIATE THE EVIDENCE FILED BY HIM. IT WAS FURTHER CONTENDED THAT IN THE REMAND PRO CEEDINGS, THE ASSESSING OFFICER HAS ACCEPTED THE EXPLANATIONS OF THE ASSESSEE AND IN THE LIGHT OF THESE FACTS, THE LD. CIT(A) IS NOT JUSTIFIED IN CONFIRMING THE ADDITIONS. 13 . THE LD. D.R., ON THE OTHER HAND, HAS PLACED RELIANCE UPON THE ORDER OF THE LD. CIT(A ). 14 . HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS FILED ALL THE RELEVANT EVIDENCE TO EXPLAIN THE SOURCE OF DEPOSITS, BUT THE AS SESSING OFFICER HAS NOT APPRECIATED THE EVIDENCE FURNISHED BY HIM AND MADE THE ADDITION. DURING THE COURSE OF APPELLATE PROCEEDINGS, THE ASSESSEE HAS FILED THE RELEVANT EVIDENCE , ON WHICH REMAND REPORT WAS CALLED BY THE LD. CIT(A). D URING THE REMAND PROC EEDINGS, THE ASSESSING OFFICER HAS EXAMINED EACH AND EVERY ASPECT WITH RESPECT TO THE DEPOSIT WITH BANK AND BEING CONVINCED WITH THE EXPLANATIONS FURNISHED BY THE ASSESSEE, THE ASSESSING OFFICER HIMSELF HAS OBSERVED THAT CASH DEPOSIT IN THE SAID BANK ACCOU NT WAS MADE EITHER FROM WITHDRAWAL S FROM PARTNERSHIP FIRM, BHAGWAN DAS SHOBHA LAL JAIN OR FROM HIS OWN CASH ACCOUNT AS REFLECTED IN THE CASH BOOK. HE HAS ALSO ANNEXED ALL THE RELEVANT EVIDENCE ALONG WITH HIS REPORT, BUT THE LD. CIT(A) EVEN DID NOT APPRECI ATE THE REMAND REPORT OF THE ASSESSING OFFICER. FOR THE SAKE OF REFERENCE, WE EXTRACT THE REPORT OF THE ASSESSING OFFICER IN THIS REGARD AS UNDER: - : - 16 - : THIS ADDITION WAS MADE BY THE THEN ASSESSING OFFICER ON ACCOUNT OF CASH DEPOSITS MADE IN ACCOUNT NO. 04491 930000386 BEING MAINTAINED BY THE ASSESSEE WITH HDFC BANK, SAGAR (MP), TREA T ING THE SAME AS UNEXPLAINED CASH DEPOSITS. DURING REMAND PROCEEDINGS, THE ASSESSEE HAS AGAIN SUBMITTED THAT THE CASH WAS DEPOSITED IN THE BANK ACCOUNT BELONGED TO THE ASSESSEE. IN SUPPORT OF HIS CONTENTION, THE ASSESSEE PRODUCED THE COPY OF CASH BOOK ALONG WITH COPY OF ACCOUNT AS APPEARING IN THE BOOKS OF M/S. BHAGWAN DAS SHOBHA LAL JAIN, SAGAR (MP) A PARTNERSHIP CONCERN IN WHICH THE ASSESSEE IS ONE OF THE PARTNERS. ON VERIFICATION OF THE CASH BOOK AND COPY OF ACCOUNT OF THE ASSESSEE IN THE BOOKS OF M/S. BHAGWAN DAS SHBBHU LAL JAIN, SAGAR (MP), IT IS FOUND THAT THE CASH DEPOSITS IN THE SAID BANK A/C WAS MADE EITHER FROM THE WITHDRAWALS MADE FROM THE PARTNERSHIP FIRM M/S. BHAGWAN DAS SHOBHA LAL JAIN, SAGAR (MP) OR FROM HIS OWN CASH ACCOUNT AS REFLECTED IN CASH BOOK; COPY OF CASH BOOK OF THE ASSESSEE AND COPY OF ACCOUNT AS APPEARING IN THE BOOKS OF M/S BHAGWAN DAS SHOBHA LAL JAIN, SAGAR (MP) ALONG WITH COPY OF BANK STATEMENT ARE ENCLOS ED HEREWITH FOR YOUR HONOUR'S KIND PERUSAL. 15 . FROM A CAREFUL PERUSAL OF THE REMAND REPORT OF THE ASSESSING OFFICER IN THE REMAND PROCEEDINGS, WE FIND THAT THE ASSESSING OFFICER HIMSELF HAS EXAMINED THE DETAILED EVIDENCE FILED BY THE ASSESSEE AND BEING CONV INCED WITH IT, HE HAS OBSERVED THAT IT IS FOUND THAT CASH DEPOSIT IN THE SAID BANK ACCOUNT OF THE ASSESSEE MADE EITHER FROM WITHDRAWAL S MADE FROM THE PARTNERSHIP FIRM OF BHAGWAN DAS SHOBHA LAL JAIN OR FROM HIS OWN CASH ACCOUNT AS REFLECTED IN CASH BOOK. O NCE THE ASSESSING OFFICER IS CONVINCED WITH THE EXPLANATIONS FURNISHED BY THE ASSESSEE IN THE REMAND PROCEEDINGS, THE LD. CIT(A) HAS NO JURISDICTION TO CONFIRM THE ADDITION MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT : - 17 - : ORDER. WE ARE, THEREFORE, OF THE V IEW THAT IN SUCH CIRCUMSTANCES THE ADDITION MADE BY THE LD. CIT(A) IS NOT SUSTAINABLE. WE ACCORDINGLY SET ASIDE THE ORDER OF THE LD. CIT(A) AND DELETE THE ADDITION. 16 . IN THE RESULT, BOTH THE APPEAL S OF THE ASSESSEE ARE ALLOWED. ORDER WAS PRONOUNCED IN TH E OPEN COURT ON THE DATE MENT I ONED ON THE CAPTION ED PAGE. SD/ - SD/ - [ A. K. GARODIA ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 2 ND 1 . APPELLANT MARCH , 2016 JJ: 2302 COPY FORWARDED TO: 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR