Shri Surinder Singh Deceased, Amritsar. V. The Income Tax Officer, Amritsar.

ITA 357/ASR/2016

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 3776 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2002-2003
• Appeal Filed On: 23-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S NEGI
• Assessee Lawyers: JATINDER NAGPAL
• Keywords: Source of fund; Additional evidence; Onus to prove; Reassessment proceedings
• Section: 143(3); 147; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (SMC) BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER I.T.A. NO. 357/ASR/2016 AS SESSMENT YEAR: 2002-03 SURINDER SINGH (DECEASED) (THROUGH LR, JATINDER KAUR), C/O HOTEL NEW BHARAT, 11- LINK ROAD, AMRITSAR [PAN: ABQPS 7481J] VS. THE INCOME TAX OFFICER, WARD-5(4), AMRITSAR (APPELLANT) (RESPONDENT) APPELLANT BY : SH. JATINDER NAGPAL (ADV.) RESPONDENT BY: SH. S. S. NEGI (D.R. ) DATE OF HEARING: 14.05.2019 DATE OF PRONOUNCEMENT: 31.07.2019 ORDER PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-2, AMRITSAR (' CIT(A)' FOR SHORT) DATED 17.3.2016, DISMISSING THE ASSESSEES APPEAL CONTEST ING HER ASSESSMENT U/S. 143(3) R/W S. 147 OF THE INCOME TAX ACT, 1961 ('THE ACT' H EREINAFTER) DATED 24.12.2009 FOR THE ASSESSMENT YEAR (AY) 2002-03. 2. THE FACTS OF THE CASE, AS EXPLAINED BY THE LD. C OUNSEL FOR THE ASSESSEE, SH. NAGPAL, ARE THAT THE ASSESSEE, SH. SURINDER SINGH, WHO EXPIRED ON 30.8.2005, WAS, ITA NO. 357/ASR/2016 (AY 2002-03) SURINDER SINGH (DECD.) V. ITO 2 ON THE BASIS OF A COMPLAINT, FOUND BY THE REVENUE T O HAVE DEPOSITED RS.10 LACS CASH IN HIS SAVINGS BANK ACCOUNT (# 604147) WITH IN DIAN OVERSEAS BANK, BRANCH ST. FRANCIS SCHOOL, AMRITSAR, BRANCH (IOB) ON 16.4. 2001, WHICH WAS WITHDRAWN, AGAIN IN CASH, THE VERY NEXT DAY, I.E., 17.4.2001. AS PER THE INFORMATION WITH THE REVENUE, THE DEPOSIT AS WELL AS THE WITHDRAWAL OF C ASH WAS FOR THE PURPOSE OF PURCHASE OF A PROPERTY. ON BEING QUESTIONED IN THIS RESPECT DURING THE REASSESSMENT PROCEEDINGS, INITIATED THROUGH ISSUE OF NOTICE U/S. 148(1) ON 26.3.2009, HIS WIFE SMT. JATINDER KAUR, FILED A REPLY DATED 08.12.2009 (THROUGH HER COUNSEL, SH. NAGPAL), REPRODUCED AT PAGE 3 OF THE ASSESSMENT ORD ER, STATING TO BE NOT AWARE OF ANY SUCH BANK ACCOUNT OF HER LATE HUSBAND AND, IN A NY CASE, OF ANY SUCH MONEY BELONGING TO HIM, OR OF ANY PROPERTY PURCHASED BY, OR BELONGING TO, HIM. AN AFFIDAVIT TO THIS EFFECT, DATED 16/12/2009 (PB PG. 2), WAS ALSO FILED BY HER IN RESPONSE TO SUMMONS U/S. 131(1) OF THE ACT. THE SAI D EXPLANATION, HOWEVER, DID NOT CUT ANY ICE WITH THE ASSESSING OFFICER (AO), WH O HELD THAT MERE DENIAL OF THE BANK ACCOUNT WHICH SHE DID IN THE EARLIER PART OF HER LETTER DATED 08.12.2009, OR HER IGNORANCE ABOUT THE AFFAIRS OF HER HUSBAND, WOU LD NOT BE OF MUCH CONSEQUENCE; THE FACT OF THE ASSESSEES BANK ACCOUNT AND DEPOSIT THEREIN BEING IRREFUTABLE. IN APPELLATE PROCEEDINGS, THE ASSESSEE GATHERED INFORM ATION IN THE MATTER (UNDER THE RTI ACT), AND FURNISHED THE SAME. THE SIGNATURES OF SH. SURINDER SINGH ON THE DEPOSIT SLIP (DATED 16.4.2001/PB PG. 59) AND THE WI THDRAWAL CHEQUE (DATED 17.4.2001/PB PG. 60) WERE ALLEGED TO BE FABRICATED. FURTHER, THE MONEY WITHDRAWN WAS GIVEN TO ONE, SH. AMARJIT SINGH, WHOSE SIGNATUR E APPEAR ON THE BACK-SIDE OF THE WITHDRAWAL CHEQUE. SH. AMARJIT SINGH, CLAIMING HIMSELF TO BE THE POWER OF ATTORNEY (POA) HOLDER ON BEHALF OF THE ASSESSEE FOR THE PURCHASE OF THE SAID PROPERTY, FILED A CIVIL SUIT (NO. 256, WITH ADDITIO NAL CIVIL JUDGE (JUNIOR DIVISION), AMRITSAR (PB PGS. 35-37) FOR SPECIFIC PERFORMANCE O N ONE, S. JOGINDER SINGH ARORA, ON THE BASIS OF AN AGREEMENT TO SELL (IN THE FORM OF A RECEIPT DATED ITA NO. 357/ASR/2016 (AY 2002-03) SURINDER SINGH (DECD.) V. ITO 3 27/12/2000), ON 23/5/2001. THE ASSESSEE, REPRESENTE D BY HIS WIFE AND SON, SH. PARMINDER SINGH, WHO HAD SINCE TURNED MAJOR, DENIED TO BE AWARE ANY POA HAVING BEEN GIVEN TO S. AMARJIT SINGH FOR THE PURCHASE OF ANY PROPERTY, OR OF ANY ADVANCE GIVEN TOWARD THE SAME OR, IN FACT, OF ANY PROPERTY HAVING BEEN PURCHASED. THE POA ITSELF WAS STATED TO BE FABRICATED. THE SUIT HA S SINCE BEEN DECIDED. THE AO HAD PROCEEDED ON INCOMPLETE FACTS. ALL THIS, HOWEVE R, DID NOT FIND FAVOUR WITH THE LD. CIT(A) AS THE CLAIM OF THE SIGNATURE (OF S. SUR INDER SINGH) ON THE DEPOSIT SLIP AND THE CHEQUE BEING FABRICATED, WAS NOT SUPPORTED BY ANY REPORT BY A FORENSIC EXPERT, FOR IT TO BE GIVEN COGNIZANCE TO. THE ADDIT ION WAS, ACCORDINGLY, CONFIRMED, EVEN THOUGH HE ENTERTAINED DOUBT AS TO THE OWNERSHI P OF THE IMPUGNED SUM BY SH. SURINDER SINGH, AS IT WAS APPARENT THAT THE AMOUNT HAD BEEN USED BY SH. AMARJIT SINGH, WHO WAS IN LITIGATION WITH SOME PERSON FOR A PROPERTY DEAL. AGGRIEVED, THE ASSESSEE IS IN SECOND APPEAL. 3. BEFORE ME, SH. NAGPAL WOULD ARGUE THAT THE ASSES SEE HAS SINCE PROCURED A REPORT FROM A FORENSIC EXPERT, SH. ARUN SHARMA, ON 02/5/2019, WHICH WAS PRAYED TO BE ADMITTED IN EVIDENCE INASMUCH AS IT GOES TO T HE ROOT OF THE MATTER. THE SAME COULD NOT BE PROCURED EARLIER AS THERE WAS NO RECOR D OF THE SIGNATURE OF SH. SURINDER SINGH, WITH WHICH THEREFORE HIS SIGNATURES ON THE CHEQUE AND DEPOSIT SLIP, CLAIMED TO BE FORGED, COULD BE COMPARED. THE BANK H AD NOT COOPERATED IN THE MATTER, STATING THE CLOSURE OF HIS ACCOUNT SINCE AS THE REASON, AND IT WAS WITH GREAT DIFFICULTY THAT A COPY OF THE ASSESSEES RETURN OF INCOME (FOR THE RELEVANT YEAR, FILED ON 06.9.2002/PB PG. 42) WAS OBTAINED FROM THE REVEN UE ONLY ON 10/4/2019. IT WAS ONLY THEREAFTER THAT THE SPECIMENS WERE GIVEN TO TH E FORENSIC EXPERT FOR HIS EXAMINATION AND REPORT. FURTHER, HE WOULD CONTINUE, THE HONBLE COURT FOUND NO MERIT IN THE CLAIM/S RAISED BY THE (3) PETITIONERS, BEING SMT. JATINDER KAUR, HER DAUGHTER AND SON, AND DISMISSED THE SAID SUIT (PB P GS. 14-28). ON BEING ASKED ITA NO. 357/ASR/2016 (AY 2002-03) SURINDER SINGH (DECD.) V. ITO 4 ABOUT THE POA AND THE RECEIPT DATED 27/12/2000, HE WOULD CONCEDE THAT THE SAME ARE NOT AVAILABLE WITH THE ASSESSEE, THOUGH WOULD H AVE BEEN FILED WITH THE COURT BY SH. AMARJIT SINGH, WHO HAD IN FACT FILED THE SUIT F OR SPECIFIC PERFORMANCE, ACTING FOR THE PETITIONER/S AS THE POA. THERE WAS ALMOST N IL BALANCE IN THE BANK ACCOUNT THROUGHOUT, I.E., EXCEPT FOR THE IMPUGNED DEPOSIT O F RS.10 LACS, WITHDRAWN IMMEDIATELY. THE FAMILY HAD IN FACT NO MEANS TO DEP OSIT THE SAID SUM. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) WOULD, ON THE OTHER HAND, SUBMIT THAT THE REVENUE HAD A CLEAR AND DEFINITE EVIDENCE OF THE ASSESSEE HAVING DEPOSITED MONEY HIS BANK ACCOUNT. WHAT WAS THE PURPOSE OF THE DEPOSIT AND ITS WITHDRAWAL IS NOT RELEVANT, BEING KNOWN TO THE ASSESSEE, THE DEPO SITOR AND THE WITHDRAWER. WHERE IS THE QUESTION OF FRAUD WHEN THE MONEY IS DEPOSITE D IN THE ASSESSEES OWN ACCOUNT. THE CHARGE OF FRAUD HAS IN ANY CASE NOT BE EN PROVED, I.E., EVEN GOING BY THE DECISION BY THE CIVIL COURT. THE ONUS THEREFORE WAS ON THE ASSESSEE TO EXPLAIN THE SOURCE THEREOF. THAT HIS FAMILY WAS, UNTIL BROU GHT TO ITS NOTICE, UNAWARE OF THE SAID BANK ACCOUNT OR THE DEPOSIT THEREIN, ASSUMING SO, IS, AGAIN, NOT MATERIAL. FURTHER, SURE, THE DISCLOSED AND RETURNED INCOME OF RS.87,400 IS NOT REPRESENTATIVE OF THE REAL INCOME OF SH. SURINDER SINGH, BUT ONLY OF THAT HE HAD BEEN DISCLOSING TO THE DEPARTMENT. THE SAME WOULD NOT THEREFORE BY ITS ELF INDICATE THAT HE DID NOT HAVE THAT KIND OF MONEY. THE RELIANCE ON HIS RETURN ED INCOME, TO CONTEND THAT HE, RUNNING AN INN, COULD NOT HAVE DEPOSITED MONEY IN H IS BANK ACCOUNT, IS MISPLACED. IT WAS NOT FOR THE REVENUE TO INVESTIGATE OR FIND A S TO WHAT THE UNDISCLOSED SOURCE OF INCOME WITH THE ASSESSEE COULD BE, BEING EVEN OT HERWISE DIFFICULT, IF NOT IMPOSSIBLE. 4. I HAVE HEARD THE PARTIES, AND GIVEN A CAREFUL CO NSIDERATION TO THE MATTER. 4.1 THE FIRST THING THAT STRIKES ONE IN THE PRESENT CASE IS THAT WHY WOULD ANYONE DEPOSIT CASH IN HIS ACCOUNT ONLY TO WITHDRAW IT THE NEXT DAY. THOUGH POSSIBLE, AS ITA NO. 357/ASR/2016 (AY 2002-03) SURINDER SINGH (DECD.) V. ITO 5 INDEED IT IS IN THE PRESENT CASE, THE SAME HAS TO H AVE AN EXPLANATION, WHICH IS ABSENT. IN THE INSTANT CASE, THE BEHAVIOR DOES NOT AGREE WITH THE STATED PURPOSE OF THE SAID DEPOSIT AND WITHDRAWAL, I.E., PURCHASE OF PROPERTY. ONE DOES NOT NEED TO DEPOSIT CASH IN HIS BANK ACCOUNT IF THE SAME IS TO BE GIVEN (IN CASH) TO THE SELLER/S, EITHER AS AN ADVANCE OR AS A CONSIDERATION, FOR THE PURCHASE OF A PROPERTY. A POSSIBLE REASON COULD BE THAT THE AMOUNT, DEPOSITED IN BANK FOR BEING TRANSFERRED THROUGH THE BANKING CHANNEL, WAS SUBSEQUENTLY CHANG ED TO BE PAID IN CASH. THE MATTER, IT IS TO BE BORNE IN MIND, CAME TO SURFACE ON THE BASIS OF A COMPLAINT. THEN, AGAIN, WHY WOULD ONE, AS SH. SURINDER SINGH OSTENSI BLY DOES, GIVE POA TO ANOTHER, AN UNRELATED PERSON? THIS IS MORE SO AS BOTH ARE RE SIDENTS OF AMRITSAR, SO THAT NO USEFUL PURPOSE WOULD STAND TO BE SERVED BY THE GRAN T OF POA. ALL THIS LENDS CREDENCE TO THE FACT THAT THE DEPOSIT AND WITHDRAWA L OF CASH MAY BE A PART OF A COVER-UP EXERCISE FOR SOME ULTERIOR PURPOSE, PARTIC ULARLY CONSIDERING THE CLAIM OF THE POA BEING A FABRICATED DOCUMENT. EVEN ASSUMING BEING IN FACT NOT FAR- FETCHED IN-AS-MUCH AS MANY BUSINESSMEN DO NOT SHARE THEIR BUSINESS DEALINGS (AS THE SUBJECT PROPERTY COULD BE FOR HIS BUSINESS) OR INVESTMENT DETAILS WITH THEIR FAMILIES, THAT HIS FAMILY WAS NOT AWARE OF THE TRAN SACTION, THIS IS THE FIRST THING THAT SH. AMARJIT SINGH, BEING PURPORTEDLY A CLOSE CONFID ANTE OF SH. SURINDER SINGH, AND A WELL-WISHER OF THE FAMILY, LEFT WITHOUT A BREAD E ARNER, WOULD DO, I.E., INFORM THE FAMILY ABOUT, I.E., ON THE DEMISE OF SH. SURINDER S INGH (SS). THAT HE DOES NOTHING OF THE SORT IS APPARENT AS IN THAT CASE THE FAMILY (BEING SSS WIFE, JATINDER KAUR, HIS DAUGHTER AND SON) WOULD NOT STATE BEFORE THE CIVIL COURT OF BEING NOT AWARE OF PURCHASE OF ANY PROPERTY BY SS, OR OF ANY MONEY WIT H HIM, AND WHICH LED TO THE DISMISSAL OF THE CIVIL SUIT. RATHER, IT CLAIMS IN T HE INSTANT PROCEEDINGS THE POA TO BE A FABRICATED DOCUMENT. HOW COULD THIS BE WHEN TH E PETITION (FOR SPECIFIC PERFORMANCE) HAS BEEN FILED BY THE POA HIMSELF AND, FURTHER, EVEN THOUGH MOVED EARLIER, WAS PROSECUTED ONLY AFTER THE DEATH OF SS, WITH THE DECISION BY THE HONBLE ITA NO. 357/ASR/2016 (AY 2002-03) SURINDER SINGH (DECD.) V. ITO 6 COURT RENDERED IN NOVEMBER, 2011. THIS IS AS, IN TH AT CASE, ALL THAT WAS REQUIRED TO DISMISS THE PETITION WAS FOR THE PETITIONERS TO STA TE SO, I.E., OF THE POA BEING A FABRICATED DOCUMENT, SO THAT NO ACTION UNDERTAKEN O N ITS BASIS COULD SURVIVE OR BE REGARDED AS VALID. IN SHORT, THERE ARE MANY GAPS IN THE EXPLANATION AS FURNISHED BY THE ASSESSEE OR, IN ANY CASE, SEVERAL ASPECTS OF TH E MATTER REMAIN UNEXPLAINED. THE FACTS OF THE CASE, AS INDEED THE MATTER ITSELF, REQ UIRES BEING EXAMINED FURTHER, I.E., IN LIGHT OF THE MATERIAL ON RECORD AND THE PLEADING S MADE. THAT IS, CANNOT BE DECIDED SUMMARILY ON THE BASIS OF THE PLEADINGS MAD E, BEING ESSENTIALLY QUA THE ADMISSION OF THE FORENSIC REPORT AS ADDITIONAL EVID ENCE AS RELIEF STOOD DENIED BY THE LD. CIT(A) IN ITS ABSENCE. 4.2 TOWARD THIS, THE DECISION BY THE ADDITIONAL CIV IL JUDGE (SENIOR DIVISION), AMRITSAR IN CIVIL SUIT (NO. 256 OF 23.05.2001/14.06 .2011, DATED 05.11.2011) WAS PURSUED. SEVERAL FACTS, NOT DISCLOSED HERE-IN-BEFOR E, OR EXPLAINED EARLIER, CAME TO LIGHT. SHRI AMARJIT SINGH (AS), WHO HAD IN FACT FIL ED THE CIVIL SUIT AS HIS POA, WAS THE BROTHER OF SS AND, FURTHER, A TENANT OF ONE OF THE SIX SHOPS (ALONG WITH THE TERRACE) AT RAILWAY LINK ROAD, AMRITSAR, I.E., THE PROPERTY UNDER REFERENCE. WHY DID HE, RATHER THAN SS, THE PETITIONER AND PLAINTIF F, AND WHO HAD ENTERED INTO AN ORAL CONTRACT WITH SH. JOGINDER SINGH (JS) FOR PURCHASE OF THE SAID PROPERTY (GIVING HIM AN ADVANCE OF RS. 50,000/- VIDE TWO RECEIPTS, BOTH DATED 27.12.2000), FILED THE SUIT, REMAINED A MYSTERY EVEN IN THE CIVIL PROCEEDINGS, E VEN AS THAT DID NOT CONCERN THE CIVIL COURT. EVEN THOUGH IT WAS ALLEGED BY THE DEFE NDANTS (BEING JS AND TWO OTHERS TO WHOM THE SUIT PROPERTY WAS CLAIMED TO HAVE BEEN SOLD BY HIM ON 03.02.2001) THAT IT WAS AS WHO HAD BEEN ALL ALONG PURSUING THE MATTER BY, IN FACT, IMPERSONATING HIS BROTHER, SS, HE WAS HIS POA, WHO, NEVERTHELESS, COULD NOT STEP INTO HIS SHOES (I.E., OF THE PLAINTIFF). HE WAS IN FACT CLAIMED TO HAVE VISITED THE OFFICE AS WELL AS THE RESIDENCE OF JS (AT 1, NILGIR I APARTMENTS, ALAKNANDA, NEW ITA NO. 357/ASR/2016 (AY 2002-03) SURINDER SINGH (DECD.) V. ITO 7 DELHI) ON 07.02.2001, AND THREATENED HIM IN THE MAT TER, COMPLAINT IN RESPECT WHEREOF HAD BEEN FILED AT CHITRANJAN PARK POLICE ST ATION, NEW DELHI ON 08.02.2001. THE SAID CIVIL SUIT WAS NOT, AS CLAIMED, DISMISSED. THE MATTER WAS EXAMINED BY THE HON'BLE COURT FROM THE STANDPOINT OF WHETHER SS, THE PETITIONER/PLAINTIFF, WAS READY AND WILLING TO PERFORM HIS PART OF THE CO NTRACT (OF PURCHASE OF THE SUIT PROPERTY FROM JS), VALIDLY ENTERED INTO ON THE BASI S OF THE RECEIPTS DATED 27.12.2000. THE CONDUCT OF SS WAS, ACCORDINGLY, EXA MINED. HE HAD FAILED TO TENDER RS. 70,000/- TO JS BY 05.01.2001, BY WHICH D ATE (AS PER THE RECEIPTS DATED 27.12.2000) HE WAS REQUIRED TO, BEING THE BALANCE O F RS.1,20,000, I.E., 10% OF THE SALE CONSIDERATION (OF THE SUIT PROPERTY) OF RS. 12 LACS. HE WAS UNDER OBLIGATION TO DO SO AT NEW DELHI - THE PLACE WHERE THE CONTRACT W AS ENTERED INTO AND PART ADVANCE GIVEN, AND MERELY STATING THAT THE SELLER ( JS) DID NOT TURN UP AT AMRITSAR TO RECEIVE THE AMOUNT WAS OF NO CONSEQUENCE. THE FAILU RE TO PAY THE SAID SUM BY 05.01.2001, BEING OF ESSENCE, FAILED THE CONTRACT. THE CONDUCT OF SS WAS EXAMINED FURTHER. HE COULD NOT SHOW THAT HE HAD THE CAPACITY TO PAY THE BALANCE CONSIDERATION OF RS. 11.50 LACS, WHICH WAS STATED T O BE READY FOR BEING PAID TO THE SELLER, FIRSTLY, ON 17.4.2001, AND THEN AGAIN ON 02 .5.2001. THOUGH THE BANK ACCOUNT (WITH IOB) OF SS WAS ADDUCED IN EVIDENCE (EX.D1), T HE COURT RELIED ON THE LETTER WRITTEN BY HIS WIFE, JATINDER KAUR, TO THE AO (ITO, WARD 5(4), AMRITSAR) TO THE EFFECT THAT SHE WAS NOT AWARE OF THE MONEY WITH HER HUSBAND AND HAD IN FACT NEVER SEEN SUCH A BIG AMOUNT (RS. 10 LACS) IN HER MARRIED LIFE; AND, FURTHER, HAD NO CLUE OF THE SOURCE OF MONEY DEPOSITED IN THE BANK; RATHE R, OF THE SAID BANK ACCOUNT ITSELF. AS, WHO HAD IN FACT FILED THE SAID BANK STA TEMENT (PARA 16 OF THE JUDGMENT - J), ALSO COULD NOT GIVE ANY CLUE AS TO THE SOURCE O F THE DEPOSIT (IN THE BANK ACCOUNT) OR, IN FACT, EVEN OF RS.40,000 (BEING THE SECOND IN STALLMENT OF RS.50,000 PAID ON 27.12.2000). HE ALSO ADMITTED THAT THE DATES 17.4. 2001 AND 02.5.2001, ON WHICH ITA NO. 357/ASR/2016 (AY 2002-03) SURINDER SINGH (DECD.) V. ITO 8 THE BALANCE CONSIDERATION WAS CLAIMED TO BE AGREED TO BE PAID, WERE NOT FIXED IN HIS PRESENCE (PARA 17 OF J). IN VIEW OF THE AFORESAID FACTS, THE HONBLE COURT W AS OF THE VIEW THAT SS WAS NOT READY AND WILLING TO PERFORM HIS PART OF TH E CONTRACT. HE COULD NOT THEREFORE SEEK SPECIFIC PERFORMANCE THEREOF (PARA 1 7). THE ALTERNATE CLAIM OF REFUND OF ADVANCE (RS.50,000/-) AND DAMAGES (RS.50,000/-), ALONG WITH INTEREST (@24% PER ANNUM), WAS ACCEPTED IN PART, I.E., TO THE EXTE NT OF THE ADVANCE, WITH INTEREST @12% P.A. THIS WAS AS THE RECEIPTS CONSTITUTING THE CONTRACT DID NOT MENTION THAT A FAILURE TO PAY THE BALANCE WOULD RESULT IN THE FORF EITURE OF THE AMOUNT PAID (NOR WAS ANY NOTICE IN ITS RESPECT GIVEN BY THE SELLER TO TH E BUYER-PLAINTIFF), NOR OF ANY DAMAGES (PARAS 18-26 OF J). IT IS THIS DECISION THA T HAD LED TO THE OBSERVATION HEREINBEFORE THAT IT WAS INCORRECT TO SAY THAT THE SUIT HAD BEEN DISMISSED; THE ALTERNATE PLEA HAVING BEEN IN FACT ACCEPTED, EVEN I F IN PART. 4.3 THE VALIDITY OF THE POA STANDS ACCEPTED IN THE CIVIL SUIT PROCEEDINGS, SO THAT THE SAME CANNOT BE SAID TO BE A FABRICATED DOCUMENT OR CALLED INTO QUESTION IN THE INSTANT PROCEEDINGS. TWO, THE ENTERING INTO OF AN A GREEMENT ON 27/12/2000 BY SS, PAYING RS.50,000/- AND AGREEING TO PAY THE BALANCE ADVANCE (RS.70,000/-) BY 05/01/2001, IS AN ADMITTED FACT. IT IS IN FACT THIS , I.E., THE SAID AGREEMENT, THAT GIVES RISE TO THE FUTURE CONDUCT OF THE PARTIES TO THE CO NTRACT (OF SALE OF THE SUIT PROPERTY), INCLUDING THE SUIT FOR INJUNCTION OR, ALTERNATIVELY , FOR RECOVERY ALONG WITH DAMAGES. HOW COULD, THEN, IT BE CONTENDED THAT SS WAS NOT IN VOLVED IN THE PROCEEDINGS ? RATHER, ACCEPTING THE SAID, ALTERNATE PLEA, THE PET ITIONERS, BEING HIS FAMILY, HAD BEEN ALLOWED REFUND OF THE ADVANCE WITH INTEREST IN A CIVIL SUIT. AS, IT WAS CLAIMED BY THE DEFENDANTS, TO BE A DEFAU LTING TENANT, HAVING NOT PAID RENT FOR TEN MONTHS (APPARENTLY, IN DECEMBER, 2000), AND CONTINUING TO BE A DEFAULTING TENANT, AND WHICH WAS STATED (BY THE DEF ENDANTS) TO BE THE REASON BEHIND ITA NO. 357/ASR/2016 (AY 2002-03) SURINDER SINGH (DECD.) V. ITO 9 HIS HIDING HIS IDENTITY, AND PROJECTING HIS BROTHER , SS, INSTEAD (PARA 2 OF J). THOUGH THE CHARGE OF IMPERSONIFICATION (OF SS) FAILED AS N O EVIDENCE COULD BE LED IN ITS RESPECT JS ALSO DYING DURING THE PENDENCY OF THE SUIT (PARA 6), IT IS CLEAR THAT AS HAD A SUBSTANTIAL ROLE IN THE MATTER. IT WAS HE WHO ACCOMPANIED HIS BROTHER, SS, ALONG WITH THE BROKER (SHRI NAND KISHORE) TO NEGOTI ATE THE PROPOSED SALE WITH JS AT NEW DELHI ON 27.12.2000, AND WAS WITNESS TO THE ORA L AGREEMENT BETWEEN THE PARTIES. THAT HE IS A TENANT OF ONE OF THE SHOPS CO MPRISING THE PROPERTY UNDER REFERENCE WHICH MAY WELL BE THE REASON FOR HIS IN TEREST IN THE TRANSACTION, IS NOT DENIED. IT WAS HE, AS STATED BY THE DEFENDANTS, WHO , ALONG WITH THE BROKER, HAD BARGAINED THE PRICE OF RS.12 LACS (I.E., RS. 2 LAC PER SHOP), AND, IN ANY CASE, I.E., EVEN GOING BY THE VERSION OF THE PLAINTIFF, PRESENT ALONG WITH HIS BROTHER, SS, NEGOTIATING THE BARGAIN (FOR AND ON HIS BEHALF) (RE FER PARAS 1,2 OF J). IT MAY BE THAT HE WAS INTERESTED IN PURCHASING THE SUIT PROPERTY. IT COULD AGAIN BE THAT HE, INTERESTED IN RETAINING THE RENTED SHOP, BEING AN A SSET OF HIS BUSINESS, WITH A MONTHLY RENT AS LOW AS RS.500 P.M. (PARA 2), MADE I NQUIRY WITH HIS BROTHER, SS, WHO BECAME INTERESTED TO PURCHASE THE SHOPS, PARTIC ULARLY CONSIDERING THE PRICE BEING SUGGESTED. SS WAS NOT ONLY RUNNING AN INN, BU T ALSO DOING THE BUSINESS OF A MONEY CHANGER, AS DEPOSED BY SH. NAND KISHORE BEFOR E THE COURT (PARA 13). AGAIN, IT COULD WELL BE THE BOTH THE BROTHERS JOINE D HANDS FOR THE TRANSACTION, EVEN AS SS ONLY WAS PROJECTED AS THE PARTY, AS AS, A DEF AULTER, WAS FEARED FOR BEING REJECTED, EVEN AS CONTENDED BY THE DEFENDANTS BEFOR E THE HONBLE COURT (PARA 2). WHATEVER BE THE REASON FOR AS JOINING HIS BROTHER ( OR VICE VERSA), HE IS, WITHOUT DOUBT, A PRINCIPAL CHARACTER IN THE ENTIRE EPISODE . IT WAS, AGAIN, HE WHO FILED THE SUIT AS THE POA OF HIS BROTHER AND, FURTHER, LED TH E EVIDENCE OF THE BANK STATEMENT (EX. D1) BEFORE THE COURT, AND IT IS HIS SIGNATURE WHICH APPEAR ON THE BACK SIDE OF THE CHEQUE WITHDRAWING THE AMOUNT (RS. 10 LACS). ITA NO. 357/ASR/2016 (AY 2002-03) SURINDER SINGH (DECD.) V. ITO 10 EVEN IF THE FAMILY OF SS WAS NOT AWARE OF THE BANK ACCOUNT, OR OF DEPOSIT THEREIN, THE SAME DOES NOT APPEAR TO BE THE CASE FO R SS HIMSELF. THE SIGNATURE ON THE DEPOSIT SLIP (DATED 16.4.2001), SURE, DO NOT AP PEAR TO BE OF SS. HOWEVER, THAT ON THE CHEQUE DATED 17.4.2001 (AND ON ITS BACK), W HICH ARE THE SAME, APPEAR TO BE HIS, I.E., COMPARING THEM WITH THAT ON HIS RETURN O F INCOME. IF HE HAS INDEED SIGNED THE CHEQUE WITHDRAWING THE AMOUNT (RS. 10 LACS), AS APPEARS TO BE THE CASE, HE CANNOT BUT BE AWARE OF THE DEPOSIT (OF THE SAID AMO UNT). THE DEPOSIT AND ITS WITHDRAWAL THE NEXT DAY, AS IT APPEARS, IS WITH A V IEW TO CREATE EVIDENCE WITH REGARD TO THE AVAILABILITY OF FUNDS ON 17.4.2001, T HE DATE ON WHICH THE CONSIDERATION WAS, AS CLAIMED, TO BE PAID. IN FACT, EVEN THE COURT OBSERVED SS TO BE CREATING EVIDENCES RATHER DEMONSTRATING INTENT FOR EXECUTING THE CONTRACT (PARA 14 OF J). FURTHER, ASS SIGNATURE APPEARING ON THE BAC K SIDE OF THE CHEQUE, IT IS, IN ANY CASE OF THE MATTER, HE, THE POA OF HIS BROTHER, SS, AND NOT A STRANGER, WHO HAS TAKEN DELIVERY OF THE CASH WITHDRAWN. NOW, IT WOULD BE PRESUMPTUOUS TO SAY THAT HE STOLE HIS BROTHERS CHEQUE BOOK, SO THAT THE AMO UNT RECEIVED BY AS HAS ONLY BEEN FOR AND ON BEHALF OF HIS BROTHER, SS, WHO GAVE HIM THE CHEQUE, I.E., AFTER SIGNING THE SAME. IT IS SURPRISING THAT HE (AS), AS SOCIATED WITH THE TRANSACTION THROUGHOUT, AND IN COMPLETE KNOW OF THE FACTS, DID NOT COME FORWARD TO EXPLAIN THE ANOMALIES AND ABERRATIONS NOTED, AT ANY STAGE OF TH E PROCEEDINGS, PARTICULARLY CONSIDERING THAT IT IS CLEAR THAT NONE OTHER THAN H IM, IN THE ABSENCE OF SS, COULD DO SO. HE IS, IN ANY CASE, THE ASSESSEES WITNESS, WHO SHOULD HAVE BEEN PRODUCED, RATHER THAN HIS IDENTITY CONCEALED. IT IS ALSO NOTA BLE THAT AS DID NOT COME FORWARD IN THE HEARING IN THE CIVIL SUIT TO CLAIM OF ANY PA RT OF THE IMPUGNED SUM AS CONTRIBUTED BY HIM, EVEN AS IT WAS CLEAR THAT AN IN ABILITY TO EXHIBIT THE AVAILABILITY OF FUNDS WOULD DEFEAT THE CASE. THIS IS PRESUMABLY IN THE ABSENCE OF HIS HAVING ANY DISCLOSED SOURCE OF MONEY, WHICH ALSO EXPLAINS A DO RMANT, RATHER THAN A CURRENT ACCOUNT BEING USED TO DEPOSIT THE MONEY . THE INSTANT PROCEEDINGS, IT MAY BE ITA NO. 357/ASR/2016 (AY 2002-03) SURINDER SINGH (DECD.) V. ITO 11 RECALLED, STAND INITIATED ON THE BASIS OF A COMPLAI NT, AND IT WAS APPARENT THAT ANY SUCH DEPOSITION BY AS WOULD BE TAKEN NOTE OF BY THE REVENUE, SOMETHING OF WHICH HE COULD NOT BUT BE AWARE AND CONSCIOUS OF. 4.4 THE CIVIL SUIT FAILED DUE TO THE FAILURE TO OBS ERVE THE TERMS OF THE CONTRACT BY THE PLAINTIFF, OR SHOWING HIS CAPACITY TO DO SO, CO UPLED WITH HIS CONDUCT BEING NOT BONA FIDE . HOWEVER, THE DEPOSIT OF THE FUNDS (R. 10 LACS) IN THE ASSESSEES BANK ACCOUNT IS AN ADMITTED FACT, AS IS HIS ENTERING INT O A CONTRACT FOR THE PURCHASE OF THE SUIT PROPERTY, WHICH ALSO PROVIDES THE BASIS FOR TH E DEPOSIT OF THE SUM IN THE BANK ACCOUNT. IT IS THIS INABILITY TO PROVE THE SOURCE T HAT WOULD, IN THE PROCEEDINGS UNDER THE ACT, LEAD TO THE SAID DEPOSIT BEING DEEMED AS T HE ASSESSEES UNEXPLAINED INCOME U/S. 69A. WHEN THE HONBLE COURT SAYS THAT S OURCE IS NOT PROVED OR SHOWN, IT REFERS TO A DISCLOSED SOURCE. THAT IS, THE VERY SAME REASON THAT LED TO THE FAILURE OF THE CIVIL SUIT, ALSO IMPUGNS THE ASSESSEES CASE IN THE PROCEEDINGS UNDER THE ACT. THAT IS, THE LACK OF AWARENESS OF HIS FAMILY ABOUT THE TRANSACTION, A FACT WHICH ALSO PREVAILED WITH THE COURT, NOTWITHSTANDING. 4.5 THE NEXT QUESTION THAT REQUIRES CONSIDERATION I S THE ADMISSIBILITY OF THE ASSESSEES APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE, I.E., THE FORENSIC REPORT DATED 02.5.2019. IT MAY BE RELEVANT TO, TOWARD THIS , ADVERT TO THE LAW IN THE MATTER, WHICH IS WELL-SETTLED, AND QUA WHICH THE ASSESSEE HAS ALSO REFERRED TO THE DECISI ON IN CIT V. TEXT HUNDRED INDIA PVT. LTD . [2013] 351 ITR 57 (DEL), WHEREIN THE LAW STANDS REITERATED. WHERE SOME INHERENT LACUNAE OR D EFECT BECOMES APPARENT TO THE APPELLATE COURT, COMING IN THE WAY OF PRONOUNCING T HE JUDGMENT, IT HELD, THE EXPRESSION TO ENABLE IT TO PRONOUNCE THE JUDGMENT CAN BE INVOKED. REFERENCE TO PRONOUNCING THE JUDGMENT, IT WAS EXPLAINED, IS NOT FOR PRONOUNCING IT IN A PARTICULAR WAY , BUT IS TO PRONOUNCE IT SATISFACTORILY TO THE MIND OF THE COURT ITA NO. 357/ASR/2016 (AY 2002-03) SURINDER SINGH (DECD.) V. ITO 12 DELIVERING IT . THE PROVISION DOES NOT APPLY WHERE WITH THE EXIST ING EVIDENCE ON RECORD, THE APPELLATE COURT COULD PRONOUNCE A JUDGM ENT SATISFACTORILY. THAT IS, THE REQUIREMENT OF THE COURT TO ENABLE IT TO PRONOUNCE A JUDGMENT DOES NOT REFER TO PRONOUNCEMENT OF THE JUDGMENT ONE WAY OR THE OTHER, BUT IS ONLY TO THE EXTENT WHETHER SATISFACTORY PRONOUNCING OF THE JUDGMENT ON THE BASIS OF THE MATERIAL ON RECORD IS POSSIBLE. IN SUM, IS NOT REFERABLE TO ANY RIGHT OF THE PARTY TO PRODUCE THE EVIDENCE, BUT IS DEPENDENT SOLELY ON THE REQUIREMEN T OF THE COURT . WHERE, THEREFORE, THE APPELLATE COURT CONSIDERS THAT SUCH AN ADDITION AL EVIDENCE WOULD BE NECESSARY FOR PROPER ADJUDICATION OF THE MATTER, I.E., WHERE IT CANNOT, IN THE ABSENCE OF THE SAID EVIDENCE, PRONOUNCE A JUDGMENT SATISFACTORILY, IT IS TO INVOKE ITS DISCRETION EVEN IF THE EVIDENCE BEING FURNISHED BEFORE IT IS F OR THE FIRST TIME, AND THERE HAS BEEN NO DENIAL OF OPPORTUNITY BY THE AUTHORITY BELO W (I.E., BEFORE WHOM IT OUGHT TO HAVE BEEN FURNISHED) FOR ADDUCING THE SAID EVIDENCE . THIS, THEN, EXPLAINS THE LAW IN THE MATTER. REFERENCE IN THIS CONTEXT MAY ALSO BE M ADE TO THE DECISIONS, INTER ALIA , IN VELJI DEORAJ & CO. V. CIT [1968] 68 ITR 708 (BOM) AND KAMAL ASHISH SINGH V. ITO (IN ITA NO. 721/ASR/2017, DATED 24/6/2019). THE MATTER, ACCORDINGLY, IS TO BE CONSIDERED FROM T HE STAND-POINT OF THE REQUIREMENT OF THE SAID REPORT FOR DECIDING THE INS TANT APPEAL. THE TWIN ISSUES THAT EMANATE ON THE BASIS OF THE FACT AND CIRCUMSTANCE O F THE CASE, ARE: (A) WHETHER THE NATURE AND THE SOURCE OF THE CASH DEPOS ITED IN THE BANK ACCOUNT OF SS ON 16.04.2001 HAS BEEN SATISFACTORILY EXPLAIN ED OR NOT? (B) IF THE ANSWER TO THE QUESTION AT (A) IS IN THE NEG ATIVE, THE PERSON IN WHOSE HANDS THE ADDITION U/S. 69/69A IN ITS RESPECT IS, I N THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, CALLED FOR? THE ANSWER TO THE FIRST QUESTION (A) IS, AS A READI NG OF THE FOREGOING WOULD SHOW, CLEARLY AND UNDERSTANDABLY IN THE NEGATIVE THERE WO ULD BE IN FACT NO NECESSITY FOR FURTHER EVIDENCE IF THE SOURCE OF THE CASH DEPOSIT (OF RS.10 LACS) IN THE BANK ITA NO. 357/ASR/2016 (AY 2002-03) SURINDER SINGH (DECD.) V. ITO 13 ACCOUNT OF SS ON 16/4/2001 IS EXPLAINED. IT IS THE SECOND QUESTION (B) TOWARD WHICH THE SAME IS BEING SOUGHT TO BE ADDUCED. THAT IS, BY SEEKING TO SHOW THAT SS DID NOT DEPOSIT OR WITHDRAW THE AMOUNT IN HIS BANK ACCOUNT . NOW, THE SIGNATURE ON THE DEPOSIT SLIP (DATED 16/4/2001) IS PATENTLY NOT OF SS, EVEN AS OBSERVED BY THE LD. CIT(A), SO THAT NO FURTHER EVIDENCE IN ITS RESPECT IS REQUIRED. THE SAME, HOWEVER, IS NOT MATERIAL AS A PERSON COULD ASK ANY OTHER KNO WN PERSON TO DEPOSIT AN AMOUNT IN HIS BANK ACCOUNT. THE BANK ALSO DOES NOT THEREFO RE MAKE ANY VERIFICATION OF THE SIGNATURE OR OF THE PERSON DEPOSITING AN AMOUNT IN A BANK ACCOUNT. BESIDES, WHY WOULD ANY PERSON DEPOSIT AN AMOUNT IN ANOTHERS BAN K ACCOUNT? TRUE, IN THE INSTANT CASE, THE DEPOSITOR SEEKS TO CONCEAL HIS ID ENTITY IN-AS-MUCH AS THE SIGNATURE ON THE DEPOSIT SLIP IS PURPORTEDLY OF SS. HOWEVER, ESTABLISHING THAT THE SAID SIGNATURE IS NOT OF SS, IS, AS AFORE-EXPLAINED, NEI THER HERE NOR THERE; THE BENEFICIARY THEREOF BEING, IN ANY CASE, THE ACCOUNT HOLDER . FURTHER, IF THE SIGNATURES ON THE CHEQUE, WHICH ARE MARKEDLY DIFFERENT FROM THAT ON T HE DEPOSIT SLIP, COULD BE FORGED, SO COULD BE THAT ON THE DEPOSIT SLIP. IT IS THE SIGNATURE ON THE WITHDRAWAL CHEQUE, THEN, THAT IS OF PRIME RELEVANCE, PARTICULA RLY IN THE INSTANT CASE. THE SAME, APART FROM SIGNIFYING THE IDENTITY OF THE PERSON WI THDRAWING THE AMOUNT, IMPLIES KNOWLEDGE OF THE DEPOSIT, MORE SO WHERE THE ACCOUNT LYING DORMANT, WITNESSES A DEPOSIT OF THE LIKE AMOUNT A DAY BEFORE. DISTINGUIS HING THE SIGNATURES ON THE CHEQUE (WHICH APPEAR BOTH AT ITS FRONT AND THE BAC K SIDE) ON THE BASIS OF THE FORENSIC REPORT, I.E., AS BEING NOT OF SS, IS WITH A VIEW TO SHOW THAT HE HAD NO KNOWLEDGE OF EITHER THE DEPOSIT OR WITHDRAWAL IN HI S BANK ACCOUNT. NOW THE SIGNATURE ON THE CHEQUE WOULD NOT IN ANY MANNER CLA RIFY AS TO WHO DEPOSITED THE AMOUNT IN THE BANK. AS REGARDS THE SIGNATURES ON TH E CHEQUE, THE SAME ARE APPARENTLY, AS OBSERVED EARLIER, OF SS. THE QUESTIO N THAT THEREFORE ARISES IS AS TO ON WHAT BASIS THE SAME ARE BEING CONTENTED TO BE NOT H IS, OR A DOUBT IN RESPECT THEREOF ENTERTAINED? I FIND NONE. ITA NO. 357/ASR/2016 (AY 2002-03) SURINDER SINGH (DECD.) V. ITO 14 THE CHEQUE, AND SIGNIFICANTLY SO, STANDS CLEARED BY THE BANK, AND WHICH WOULD ONLY BE UPON DUE VERIFICATION OF THE SIGNATUR E/S. IN FACT, NOT ONLY THAT, THE BANK HAS ALLOWED THE WITHDRAWAL OF CASH IN SUCH A B IG SUM. THIS IS EMPHASIZED AS THE BANKS NORMALLY DO NOT DO SO UNTIL THEY ARE SURE OF THE IDENTITY OF THE PAYEE, AND TOWARD WHICH HIS SIGNATURE IS OBTAINED ON THE BACK SIDE OF THE CHEQUE. THIS IS PARTICULARLY SO IN THE INSTANT CASE AS THE ACCOUNT, OPENED IN 1995, WAS A DORMANT ACCOUNT. THEN, AGAIN, THERE IS SIGNATURE OF AS ALSO , I.E., APART FROM SS, ON THE BACK SIDE OF THE CHEQUE, IMPLYING HIM TO HAVE TAKEN THE DELIVERY OF THE CASH, AS OTHERWISE THERE WAS NO NEED FOR HIM TO HAVE SIGNED THE CHEQUE. AS PER THE STANDARD OPERATING PROCEDURE, THE PERSON SIGNING THE CHEQUE (AND, THUS, AUTHORIZING THE PAYMENT THEREBY), IS ALSO REQUIRED TO SIGN ON THE B ACK SIDE OF THE CHEQUE WHICH SIGNIFIES HIS AUTHORIZATION FOR CASH TO BE GIVEN TO THE PERSON SIGNING ON THE BACK SIDE THE CHEQUE IN TOKEN OF HIS HAVING RECEIVED THE CASH. AS IS NOT AN UNRELATED, UNKOWN PERSON, AS MADE OUT DURING HEARING, BUT A CLOSELY RELATED PERSON, WHO IS IN FACT KEENLY INVOL VED IN THE ENTIRE TRANSACTION. HIS INVOLVEMENT IS QUIZZICAL, BUT THEN THE SAME COULD A GAIN BE EXPLAINED ONLY BY SS OR, IN HIS ABSENCE, AS HIMSELF. HOW DID HE GET THE CHEQUE, IF NOT FROM SS ? A THIRD PERSON WOULD, RATHER, NOT EVEN BE AWARE OF THE BANK ACCOUNT, FOR HIM TO DEPOSIT, MUCH LESS WITHDRAW, THE AMOUNT FROM THE BANK ACCOUN T OF ANOTHER. THIS IS MORE SO AS THE SAID ACCOUNT IS NOT A REGULAR ACCOUNT. ON WHAT BASIS, THEN, IT IS CONTENDED THAT THE SIGNATURES ON THE CHEQUE ARE NOT OF SS ? OR THAT HE WAS NOT AWARE OF THE DEPOSIT AND WITHDRAWAL IN HIS BANK ACCOUNT, WHICH I S THE PURPORT OF DISTINGUISHING HIS SIGNATURES ON THE CHEQUE, I.E., BY ADDUCING THE FORENSIC REPORT SOUGHT TO BE ADMITTED. THE DELIVERY OF CASH TO AS IS ONLY FOR AN D ON BEHALF OF SS. WHY WAS THE MONEY GIVEN TO AS ? THE ANSWER TO THIS QUESTION, NOT CLEAR, COULD, AG AIN, ONLY BE ANSWERED BY SS OR AS. THE SAME, IT WOULD BE NOTED, IS CLOSELY RELATED TO THE ANSWER TO THE SIMILAR QUESTION, UNANSWERED, AS TO W HY POA WAS GIVEN BY SS TO AS . ITA NO. 357/ASR/2016 (AY 2002-03) SURINDER SINGH (DECD.) V. ITO 15 FROM THE STAND-POINT OF THE OWNERSHIP OF FUNDS, BEI NG STATUTORILY PRESUMED TO BE OF SS, WHICH HE IS THEREFORE REQUIRED TO DISLODGE (ALS O SEE S. 110 OF THE EVIDENCE ACT), IT WOULD THOUGH MATTER LITTLE. THE CASH WAS C LEARLY ALLOWED (BY SS) TO BE PAID TO AS. I AM CONSCIOUS THAT IT MAY WELL BE THAT THE MONEY, IN WHOLE OR IN PART, BELONGS TO AS. IT IS HOWEVER FOR THE ASSESSEE TO, W HERE SO, AS CONTENDED, ALBEIT OBLIQUELY, SHOW SO. IT IS FOR THIS REASON THAT IT S TANDS AFORE-NOTED THAT AS DID NOT COME FORWARD DURING THE CIVIL SUIT PROCEEDINGS TO D IVULGE THE OWNERSHIP OF THE FUNDS DEPOSITED IN THE BANK A FACT OF WHICH HE CO ULD NOT BUT BE AWARE OF, I.E., BEFORE THE HON'BLE COURT, EVEN AS AN INABILITY TO E XHIBIT THE SOURCE OF FUNDS WOULD, AS WAS APPARENT, LEAD TO THE FAILURE OF THE SUIT, A S IT INDEED DID. AS HAS NOT BEEN PRODUCED AT ANY STAGE OF THE PROCEEDINGS, EVEN AS H E IS THE PRINCIPAL PERSON, AND WHO, AS APPARENT, TOOK DELIVERY OF THE CASH WITHDRA WN FROM THE BANK. THE BANK STATEMENT WAS IN FACT ADDUCED IN EVIDENCE TO ESTABL ISH THE AVAILABILITY OF THE REQUIRED FUNDS WITH SS (ON 17.04.2001). ALSO RELEVA NT IS THAT THE POA WAS NOT WITHDRAWN BY HIS LEGAL HEIRS EVEN AFTER THE DEMISE OF SS (THIS IS ASSUMING THAT IT DID NOT BIND HIS LEGAL HEIRS; THE POA HAVING NOT BE EN PRODUCED ON RECORD). RATHER THAN BEING PRODUCED AT ANY STAGE OF THE PROCEEDINGS , THE IDENTITY OF AS (AS THE BROTHER OF SS) AND A PRINCIPAL CHARACTER IN THE ENT IRE TRANSACTION, WAS SOUGHT TO BE CONCEALED . WITHHOLDING OF BEST EVIDENCE WOULD ENTITLE THE CO URT TO DRAW AN ADVERSE INFERENCE ( UOI V. RAI SINGH DEB SINGH BIST [1973] 88 ITR 200 (SC)), EVEN AS, CLEARLY, THE ASSESSEE HAS NOT MET THE BURDEN OF PROOF ON IT TO SATISFACTORILY EXPLAIN THE IMPUGNED CASH DEPOSIT, SO THAT, IN LAW, THE AMOUNT WOULD STAND TO BE ASSESSED IN THE HANDS OF THE ASSESSEE (SS), THE BEN EFICIARY OF THE BANK ACCOUNT. THIS ANSWERS Q. (B) ABOVE. IT IS, UNDER THE CIRCUMSTANCES, NEITHER NECESSARY N OR PROPER TO ADMIT THE ADDITIONAL EVIDENCE. THE PRAYER THEREFOR IS, RATHER , WITHOUT BASIS ON FACTS OR IN LAW. ITA NO. 357/ASR/2016 (AY 2002-03) SURINDER SINGH (DECD.) V. ITO 16 THERE IS NOTHING TO DOUBT THE VERACITY OF THE SIGNA TURES OF SS ON THE CHEQUE DULY CLEARED BY THE BANK, EVEN AS THE ACCOUNT WAS NOT OP ERATIVE AND THE TRANSACTION UNUSUAL, IMPLYING EXTRA CAUTION BY THE BANK IN VERI FYING HIS SIGNATURES AND SANCTIONING THE WITHDRAWAL. THE DELIVERY OF CASH WA S TAKEN BY AS, HIS BROTHER, AND A PERSON INVOLVED IN THE ENTIRE TRANSACTION, WHO HA D, FURTHER, BEEN CONSTITUTED AS HIS ATTORNEY BY SS FOR THE PURPOSE OF FILING AND PU RSUING THE SUIT AGAINST JS. ON THE CONTRARY, SSS FAMILY, BEING HIS WIFE, JATINDER KAU R IN THE MAIN HIS DAUGHTER AND SON BEING MINORS AT THE TIME, WAS NOT AWARE OF THE TRANSACTION, INCLUDING THE ENTERING INTO OF AN AGREEMENT FOR PURCHASE OF A PRO PERTY BY SS, OR OF THE EXISTENCE OF HIS BANK ACCOUNT WITH IOB, MUCH LESS THE DEPOSIT OF CASH THEREIN. HOW COULD THEN, ONE MAY ASK, IT ALLEGE THE IMPUGNED DEPOSIT A ND WITHDRAWAL TO BE NOT BY, OR KNOWN TO, SS ? THE PURPOSE OF THE ALLEGED FORGERY IS IN FACT DEF EATED IN VIEW OF THE SIGNATURE OF AS ON THE (BACK SIDE OF THE) CHEQUE. A S QUA POA, THERE IS NO BASIS FOR THE ALLEGATION THAT THE SIGNATURES OF SS ON THE CHE QUE ARE FORGED, OR ARE NOT HIS. THE ALLEGATION IS FURTHER IN CONTRADICTION TO THE RELIA NCE ON THE BANK STATEMENT BEFORE THE HON'BLE COURT AS WELL AS SEEKING REFUND THEREFR OM OF THE AMOUNT PAID ADVANCE BY SS TOWARD THE PURCHASE OF THE SAID PROPERTY, ALO NG WITH INTEREST AND DAMAGES. IN FACT, THE PLEA FOR ADDITIONAL EVIDENCE IS TOWARD MEETING THE OBSERVATION BY THE LD. CIT(A) THAT THE ASSESSEES CONTENTION OF THE SI GNATURES BEING NOT OF SS IS NOT SUBSTANTIATED WITH ANY EVIDENCE. HIS SAID OBSERVATI ON IS, AS WOULD BE APPARENT FROM THE FORE-GOING, WITHOUT EXAMINING OR REFERENCE TO THE FACTS OF THE CASE, WITH HE, HAVING ADMITTED THE EVIDENCE IN THE FORM OF JUD GMENT IN CS # 256 OF 23.5.2001/14.6.2011, DATED 05/11/2011, OUGHT TO HAV E EXAMINED IT; RATHER, CALLED FOR A REMAND REPORT BY THE AO IN TERMS OF R. 46A. I T MAY BE THAT AS HAD USED THE BANK ACCOUNT LYING DORMANT, OF SS, BUT, THEN, THE LATTER HAD CONSCIOUSLY ALLOWED IT TO BE. THAT IS, WAS WITH THE CONSENT OR, AS THE CASE MAY BE, CONNIVANCE, OF SS. IT IS IN ANY CASE FOR THE ASSESSEE TO SHOW SO, I.E., T HAT THE MONEY DEPOSITED BELONGS, IN ITA NO. 357/ASR/2016 (AY 2002-03) SURINDER SINGH (DECD.) V. ITO 17 WHOLE OR IN PART, TO AS, WHO HAS, AS AFORE-OBSERVED , NOT BEEN PRODUCED AT ANY STAGE OF THE PROCEEDINGS. WITHHOLDING OF EVIDENCE WOULD E NTITLE THE COURT TO DRAW AN ADVERSE INFERENCE, EVEN AS, CLEARLY, THE ASSESSEE H AS NOT MET THE BURDEN OF PROOF ON IT TO SATISFACTORILY EXPLAIN THE IMPUGNED CASH DEPO SIT, SO THAT, IN LAW, THE AMOUNT WOULD STAND TO BE ASSESSED IN THE HANDS OF THE ASSE SSEE AND NOT AS. 5. CONCLUSION THE ASSESSEE HAS, WITHOUT DOUBT, NOT MET THE BURDE N OF PROOF THAT LAY ON HER TO EXPLAIN THE SOURCE OF THE FUNDS DEPOSITED CASH B Y SS IN HIS BANK ACCOUNT ON 16/4/2001. IT IS NOT BY DENIAL, BUT BY LEADING POSI TIVE EVIDENCE THAT IT WOULD BE ABLE TO DO SO. THAT THE MONEY WAS GIVEN BY HIM TO AS, HI S BROTHER, WHO, ALONG WITH HIM, WAS INVOLVED IN THE PURCHASE OF SOME PROPERTY, IS, HOWEVER, A MATERIAL FACT OVERLOOKED BY THE REVENUE, AS HE THUS BECOMES THE R ECIPIENT OF THE IMPUGNED SUM. THIS IS TO BE FURTHER SEEN IN THE CONTEXT OF THE FA CT/S THAT THE DEPOSIT WAS NOT IN A REGULAR ACCOUNT; ITS WITHDRAWAL IMMEDIATE AND, FUR THER, AS AFORE-NOTED, WITH A VIEW TO EXHIBIT THE AVAILABILITY OF FUNDS, WHICH THOUGH DID NOT FIND FAVOUR IN THE CIVIL PROCEEDINGS. NO POSITIVE STATEMENT IN ITS RES PECT, IT MAY BE NOTED, EMANATED FROM AS IN THE SAID PROCEEDINGS, EVEN AS HE COULD N OT BUT BE AWARE OF THE SOURCE AND DESTINATION OF FUNDS. AND WHICH IS QUIZZICAL WH EN COUPLED WITH THE FACT THAT HE WAS IN THE POSSESSION OF THE FUNDS, WHICH NEVER REA CHED THE STATED DESTINATION, I.E., THE SELLER OF THE SUIT PROPERTY. THAT IS, EVEN AS T HE PRIMARY ONUS TO PROVE THE SOURCE OF THE FUNDS DEPOSITED IN HIS BANK ACCOUNT IS ON TH E ASSESSEE, LEST THE STATUTORY PRESUMPTION OF HIS OWNERSHIP THEREOF SHALL PREVAIL, AND WHICH CONTINUES TO BE NOT DISCHARGED, THERE IS A DISTINCT POSSIBILITY OF THE IMPUGNED FUNDS, AS CONTENDED, NOT BELONGING TO HIM. THIS IS NOTWITHSTANDING HIS CONSC IOUS ALLOWANCE OF HIS BANK ACCOUNT TO BE USED FOR THE PURPOSE. WHY WOULD, ONE MAY ASK, IF THE MONEY BELONGED TO HIM, WAS IT GIVEN BY SS, AND CONSCIOUSL Y SO, TO AS ? THE PRIVITY OF ITA NO. 357/ASR/2016 (AY 2002-03) SURINDER SINGH (DECD.) V. ITO 18 CONTRACT WITH JS, HE WAS ACUTELY AWARE, WAS WITH HI M, AND IT WAS HE WHO COULD; RATHER, WAS OBLIGED TO, PAY THE AMOUNT TO THE SELLE R. IS IT THAT THE MONEY WAS RECEIVED BY AS IN HIS OWN RIGHT ? AS REGARDS THE NON-PRODUCTION OF AS , IT NEEDS TO BE BORNE IN MIND THAT THE MATTER IS BEING PROSECUTE D BY THE LEGAL REPRESENTATIVE/S OF SS, WHO, AS APPARENT, IS NOT AWARE OF THE FACTS OF THE CASE, AND IS BEING GUIDED IN THE MATTER BY THE COUNSEL/S. THE PURVIEW OF ANY COU RT IS, NEVERTHELESS, TO SUB-SERVE THE ENDS OF JUSTICE. AS EXPLAINED IN CIT V. WALCHAND & CO. PVT. LTD . [1967] 65 ITR 381 (SC), THE TRIBUNAL IS TO DEAL WITH AND DETERMINE ALL THE QUESTIONS WHICH ARISE OUT OF THE SUBJECT MATTER OF THE APPEAL, IN L IGHT OF THE EVIDENCE AND CONSISTENTLY WITH THE JUSTICE OF THE CASE. THE MATTER, IN MY CONSIDERED VIEW, NEEDS FURTHER EX AMINATION AND VERIFICATION. A DEFINITE FINDING IN THE MATTER THOU GH COULD ONLY BE ISSUED AFTER EXAMINING, BESIDES OTHERS, AS, WHOSE ATTENDANCE, IN CASE OF NON-COOPERATION, COULD BE ENFORCED THROUGH SUMMONS AND, IN ANY CASE, INVITE ADVERSE INFERENCE. THE POA IN HIS FAVOUR, IS, AGAIN, A VITAL DOCUMENT. REF ERENCE IN THIS REGARD IS MADE TO EXPLANATION 2 TO SECTION 153 OF THE ACT, AS SUBSTITUTED BY FINAN CE ACT 2016, W.E.F. 01.6.2016. IN VIEW OF THE FOREGOING, SETTING ASIDE THE ASSESSMENT AND VACATING THE FINDINGS BY THE REVENUE, I RESTORE THE MATTER FOR A SSESSMENT/S AFRESH TO THE FILE OF THE AO, WHO SHALL DO SO IN EARNEST, IN A TIME BOUND MANNER (REFER SECTION 153, PROVIDING FOR A REVISED TIME LIMIT) PER A SPEAKING ORDER, ISSUING DEFINITE FINDINGS OF FACT AFTER ALLOWING A REASONABLE OPPORTUNITY OF HEA RING TO THE ASSESSEE/S. THE AO SHALL ALSO CAUSE TO IMPLEAD THE DAUGHTER AND SON OF SS, WHO HAVE SINCE BECOME MAJORS. FURTHER, THE ASSESSEE, THOUGH RELYING ON TH E ORIGINAL RETURN FILED ON 06/9/2002, HAS NOT, AS IT APPEARS, FORMALLY COMPLIE D WITH THE NOTICE U/S. 148(1). WHERE SO, THE AO SHALL CAUSE ITS COMPLIANCE AS OTH ERWISE THE ASSESSMENT WOULD BE TECHNICALLY ONE U/S. 144 R/W S. 147. I DECIDE ACCORDINGLY. ITA NO. 357/ASR/2016 (AY 2002-03) SURINDER SINGH (DECD.) V. ITO 19 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN CO URT ON JULY 31, 2019 SD/- (SANJAY ARORA) ACCOUNTANT MEMBER DATE: 31.07.2019 /GP/SR. PS. COPY OF THE ORDER FORWARDED TO: (1) THE APPELLANT: SURINDER SINGH (DECEASED) (T HROUGH LR, JATINDER KAUR), C/O HOTEL NEW BHARAT, 11- LINK ROAD, AMRI TSAR (2) THE RESPONDENT: THE INCOME TAX OFFICER, WAR D-5(4), AMRITSAR (3) THE CIT(APPEALS)-2, AMRITSAR (4) THE CIT CONCERNED (5) THE SR. DR, I.T.A.T TRUE COPY BY ORDER