CHANDRIKA TAPURIAH, MUMBAI V. DCIT CEN CIR 2, MUMBAI

ITA 8298/MUM/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4088 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 07-07-2015
• Assessment Year: 2001-2002
• Appeal Filed On: 08-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHETAN KARIA; HARESH P KENIA
• Assessee Lawyers: KADAMBARI DAVE
• Keywords: Unexplained expenditure; Capital asset; Recovery proceedings; Search and seizure; Document seized; Opportunity of being heard; Additional evidence; Difference of opinion; Capital receipt; Onus to prove; Reason to believe; Documents seized; Change of opinion
• Section: 143(3); 142(1); 153A; 68; 27; 148; 37; 56; 132; 144; 10; 11; 15; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI . , , BEFORE SHRI D. MANMOHAN, VP AND SHRI SANJAY ARORA, AM SR.NO. ITA NO S . APPELLAN T RESPONDENT A.Y S . 1. 3822/M/10 TO 3828/M/10 CHANDRIKA TAPURIAH 9, ROWDAN STREET, UDAYACHAL BUILDING, FLAT NO. 20, 5 TH FLOOR, KOLKATA - 700 017 PAN : ABPPT 9474 K DY. CIT, CENTRAL CIRCLE - 2, MUMBAI 200 1 - 0 2 TO 2007 - 08 2. 8298 TO 8304/M/11 CHANDRIKA TAPURI AH DY. CIT 200 1 - 0 2 TO 2007 - 08 / APPELLANT BY : SHRI CHETAN KARIA & SHRI HARESH P. KENIA / RESPONDENT BY : SHRI GIRISH DAVE & MS. KADAMBARI DAVE / DATE OF HEARING : 17.02.2016 / DATE OF PRONOUNCEMENT : 25 .0 4 .2016 / O R D E R PER SANJAY ARORA, A. M.: THE INSTANT APPEALS AGITATE SEPARATE ORDERS BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 36, MUMBAI ('CIT(A)') OF EVEN DATE (26.2.2010) DISMISSING THE ASSESSEES' APPEALS CONTESTING HIS ASSESSMENTS UNDER SECTION 1 53A R/W S. 143 (3) OF THE INCOME TAX ACT, 1961 ('THE ACT') FOR ASSESSMENT YEARS (A.YS.) 2001 - 02 TO 2006 - 07 AND U/S. 144 FOR 2007 - 08. THE OTHER SET OF SEVEN APPEALS IS IN RELATION TO THE PENALTY U/S. 271(1)(C) FOR THESE YEARS. THE APPEALS RAISING COMMON ISS UES, WERE TAKEN UP FOR HEARING, AND WERE ACCORDINGLY HEARD TOGETHER. 2 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) QUANTUM ASSESSMENTS 2. THE ASSESSMENTS PRESENTLY UNDER APPEAL BEFORE US (AS WELL AS THE CORRESPONDING PENALTY APPEALS) ARE CONSEQUENT TO A SEARCH ACTION U/S. 132(1) OF THE ACT AT THE AS SESSEES DIFFERENT, AS IT APPEARS, SHORT STREET AND CAMAC STREET , PREMISES, AT KOLKATA ON 05.1.2007. THE SAME FORMED PART OF A CONCERTED ACTION BY THE REVENUE ON HASSAN ALI KHAN AND OTHER RELATED PARTIES AT DIFFERENT PLACE S ACROSS INDIA. 3. THE FIRST FOU R GROUNDS OF APPEAL, AS UNDER, COMMON FOR ALL THE YEARS, RAISE LEGAL/JURISDICTIONAL ISSUES, AND ARE ACCORDINGLY TAKEN UP FIRST, I.E., PRIOR TO THE OTHER GROUNDS AGITATING TO THE VARIOUS ADDITIONS/DISALLOWANCES ON MERITS: 1. THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS) FAILED TO APPRECIATE THAT THE ASSESSMENT ORDER U/S. 143(3) R. W. S. 153A IS WITHOUT JURISDICTION AND BAD IN LAW. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT GRANTING A REASONABLE AND SUFFICIENT OPPORTU NITY OF BEING HEARD TO THE APPELL ANT. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) FAILED TO APPRECIATE THAT THE LEARNED ASSESSING OFFICER HAD NOT GRANTED REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE APPELL A N T. 4. THE LEARNED COMMISSIONER OF IN COME TAX (APPEALS) FAILED TO APPRECIATE THAT THE LEARNED ASSESSING OFFICER HAD RELIED ON INCOMPLETE INVESTIGATION AND HAD ALSO FAILED TO BRING ALL EVIDENCES AND FINDINGS OF INVESTIGATION ON RECORD AND ERRED IN NOT DIRECTING THE LEARNED ASSESSING OFFICER TO OBTAIN FINDINGS OF INVESTIGATIONS MADE BY ENFORCEMENT DIRECTORATE HAVING RELIED ON THE INFORMATION PROVIDED BY THE SAID DEPARTMENT. 4 .1 THE PLEADINGS WITH REGARD TO THE ASSESSMENT BEING WITHOUT JURISDICTION REVOLVE AROUND CANVASSING THE SCOPE OF THE AS SESSMENT, CLAIMED, RELYING ON THE DECISION IN THE CASE OF CIT VS. CONTINENTAL WAREHOUSING CORPORATION [2015] 374 ITR 645 (BOM), TO BE RESTRICTED WHERE THE ASSESSMENT IS NOT PENDING (AS ON THE DATE OF SEARCH U/S.132(1) OR REQUISITION U/S. 132A), SO THAT IT DOES NOT ABATE, TO THE BOOKS OF ACCOUNT, DOCUMENTS 3 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) AND MATERIALS, ETC. NOT PRODUCED, BUT FOUND DURING THE COURSE OF SEARCH OR REQUISITION, OR TO THE UNDISCLOSED INCOME DISCOVERED AS A RESULT OF SEARCH OR REQUISITION. THE REVENUES RESPONSE IS THAT THERE HA S BEEN NO ASSESSMENT EITHER U/S. 143( 3 ) OR 14 4 OR EVEN PROCESSI N G OF THE RETURN U/S. 143(1) AT ANY TIME PRIOR TO THE DATE OF SEARCH (05.1.2007). THIS IN FACT IS THE ADMITTED POSITION, REFLECTED IN THE TABULAR CHART PREPARED AND FURNISHED BY THE ASSESSEE (A PB 10/PG. 1823 ). THE LIMITATION ON THE SCOPE OF THE ASSESSMENT C OULD ONLY BE FOR A YEAR FOR WHICH ASSESSMENT STA NDS MADE , AS VIDE ORDER U/S. 143(3) OR S. 144 . THE INSTANT ASSESSMEN T S ARE THE FIRST (ORIGINAL) ASSESSMENTS, AND THERE IS THEREFORE NO QUESTION O F ANY RESTRICTION ON THEIR SCOPE TO THE FINDINGS OF SEARCH OR REQUISITION. THE ASSESSEES ARGUMENT AND, CONSEQUENTLY, OBJECTION IS THUS LARGELY TO NO AVAIL. WE MAY THOUGH CLARIFY THAT H ER CHALLENGE IS THUS NOT TO THE JURISDICTION TO ASSESS PER SE , TOWARD W HICH THE PROVISION OF SECTION 153A IS PLAINLY CLEAR, NOR ADVERSELY COMMENTED UPON IN CONTINENTAL WAREHOUSING CORPORATION (SUPRA), BUT TO THE SCOPE OF THE ASSESSMENT U/S. 153A WHERE IT FOLLOWS AN UNABATED ASSESSMENT, I.E., WHICH HAS ATTAINED FINALITY. 4 .2 THE ASSESSEE IN THIS REGARD ALSO ASSUMED ANOTHER ARGUMENT BEFORE THE FIRST APPELLATE AUTHORITY, I.E., AS TO NON - ISSUE OF NOTICE U/S. 143(2), TO WHICH PASSING REFERENCE WAS ALSO MADE BEFORE US AND, ACCORDINGLY, RESPONDED TO BY THE LD. SPECIAL COUNSEL, SH. GIRISH DAVE, BY PLACING RELIANCE ON THE DECISION IN THE CASE OF ASHOK CHADDHA VS. ITO [2011] 337 ITR 399 (DEL) , HOLDING THE ISSUE OF NOTICE U/S. 143(2) AS NOT MANDATORY IN THE CASE OF AN ASSESSMENT U/S. 153A AND, BESIDES, ON A THIRD MEMBER DECISION IN SUMA NLATA BANSAL VS. ASST. CIT (IN ITA NOS. 525 TO 530/MUM/2008 DATED 20.5.2015 - REPORTED AT 2015 - TIOL - 1053 - ITAT - MUM - TM) , PASSED FOLLOWING THE SAME. THE FACTUAL POSITION IS THAT THE ASSESSEE DID NOT FILE ANY RETURN IN RESPONSE TO THE NOTICE U/S. 153A. HOW COU LD THEN, IT IS WONDERED, S HE CLAIM NON - ASSUMPTION OF PROPER JURISDICTION BY THE ASSESSING OFFICER (A.O.) FOR WANT OF NOTICE U/S. 143(2)? TRUE, THE ASSESSEE CLAIMS TO HAVE COMMUNICATED TO THE A.O., VIDE LETTER DATED 31.3.2008, TO 4 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) TREAT THE RETURN/S ORIGINAL LY FILED U/S. 139 AS IN RESPONSE TO NOTICE U/S. 153A. SO, HOWEVER, WE DO NOT FIND ANY MERIT THEREIN AS THE NON - FURNISHING OF THE RETURN IN RESPONSE TO NOTICE U/S. 153A STANDS CONFIRMED IN VIEW OF THE LEVY OF PENALTY U/S. 271F OF THE ACT (FOR A.YS. 2001 - 02 TO 2006 - 07). THOUGH THERE IS NO ORDER BY THE TRIBUNAL CONFIRMING THE LEVY OF PENALTY U /S. 271F FOR NON - FILING OF RETURNS U /S. 153A ON RECORD, AS IN THE CASE OF THE ASSESSEES HUSBAND, KASHINATH TAPURIAH (KT), THE SAME STANDS LEVIED, FOR ALL THE RELEVANT YE ARS, VIDE ORDER/S DATED 05/3/2008, WHICH APPEARS TO HAVE NOT BEEN CONTESTED, ATTAINING FINALITY. IN FACT, ADMITTEDLY NO RETURN WAS FILED FOR A.Y. 2004 - 05 (APB 10, PAGE 1823), WHILE FOR A.Y. 2006 - 07 THE ORIGINAL RETURN WAS FURNISHED ONLY ON 26/5/2008, I.E., AFTER THE TIME PRESCRIBED UNDER SECTION 139(1) OR FOR A BELATED RETURN U/S. 139(4), SO THAT THE SAME IS A NON - EST RETURN IN LAW. THE ASSESSEE THEREFORE COULD NOT (FOR TH ESE YEAR S ) TAKE THE PLEA THAT ORIGINAL RETURN BE CONSIDERED AS IN RESPONSE TO A NOTICE U/S.153A, ISSUED IN ALL CASES ON 21/9/2007 CONSEQUENT TO THE TRANSFER OF THE ASSESSEES CASE WITH THE CENTRAL CHARGE, KOLKATA ON 07/8/2007 (REFER PARA 3 OF THE ASSESSMENT ORDER). IT IS NOTABLE THAT, DESPITE BEING CALLED FOR BY THE AO, THE ASSESSEE DID NOT ADDUCE COPY OF THE RETURN, STATED TO BE ORIGINALLY FILED, FOR ANY OF THE YEARS, I.E., WHILE STATING THAT THE RETURN/S FILED ORIGINALLY MAY BE TREATED AS THE RETURN/S IN RESPONSE TO THE NOTICE/S U/S.153A. FOR A.Y. 2007 - 08, THE SEARCH YEAR, THE RETURN COULD NOT HAVE BEEN FILED AS ON THE DATE OF SEARCH IN - AS - MUCH AS THE PREVIOUS YEAR HAD NOT ENDED BY THE N . IN FACT, THE ASSESSEE DID NOT ADMITTEDLY FILE ANY RETURN OF INCOME U/S. 139, ALSO NOT COMPLYING WITH NOTICES U/S. 142(1). THE IMPUGNED ASSESSMENT S , I.E., F OR ALL THE YEARS UNDER REFERENCE , IS ACCORDINGLY NEITHER WITHOUT JURISDICTION N OR BAD IN LAW. GD. 1 FOR ALL THE YEARS IS, THEREFORE, DISMISSED . 5 . NEXT, IS THE GRIEVANCE IN BEING NOT ALLOWED A REASONABLE OPPORTUNITY OF BEING HEARD BY THE LD. CIT(A). THE T HRUST OF THE ASSESSEES CASE QUA THIS GROUND IS THE NON ADMISSION OF ADDITIONAL EVIDENCE, SINCE SOUGHT TO BE ADDUCED BY H ER BEFORE THE LD. CIT(A) (APB 2 , PG S . 2 74 - 384 ). HOW COULD THEN, WE WONDER, IT BE CONSIDERED AS A 5 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) NON - ALLOWANCE OF PROPER OPPORTUNITY BY THE FIRST APPELLATE AUTHORITY, WHO IN FACT ALSO SOUGHT A REMAND REPO RT FROM THE A.O., PLACED AT APB - 2 (PGS. 294 - 295 ). THE DECISION TO ADMIT, OR NOT TO, THE SAID ADDITIONAL EVIDENCE IS A SUBJECT MATTER OF HIS APPELLATE ORDER, WHICH COULD BE IMPUGNED ON MER ITS ON ANY SCORE, INCLUDING ON THAT ASPECT. THE ASSESSEE IN FACT MADE A SIMILAR PRAYER BEFORE US AS WELL, PER HER SUBMISSIONS IN PURSUANCE TO GROUNDS 2 TO 4, AND WHICH WE SHALL CONSIDER SEPARATELY. 6 .1 GROUNDS 3 AND 4 OVERLAP, AND WERE ACCORDINGLY ARGUED TOGETHER. THE SAME ASSAIL THE IMPUGNED ORDER, AGAIN, FOR WANT OF PROPER OPPORTUNITY TO THE ASSESSEE TO EXPLAIN AND PRESENT H ER CASE BEFORE THE ASSESSING AUTHORITY IN - AS - MUCH AS THE LD. CIT(A) FAILED TO APPRECIATE THIS ASPECT, AS WELL FOR HAVING COMPLETED THE ASSESSMENT WITHOUT AWAITING THE COMPLETION OF THE INVESTIGATION IN THE MATTER BY THE DIRECTORATE OF ENFORCEMENT, THE AGENCY OF THE GOVERNMENT OF INDIA (GOI) INVESTIGATING ECONOMIC OFFENCES. WITH REGARD TO THE LATTER ASPECT, THE SAME ONLY NEEDS TO BE ST ATED TO BE REJECTED, THE PROCEEDINGS UNDER THE ACT BEING INDEPENDENT , STATUTORY PROCEEDINGS, WHICH ARE TO BE COMPLETED IN A TIME BOUND MANNER, ON THE BASIS OF AND UPON CONSIDERING THE MATERIAL (BROUGHT) ON RECORD AND THE EXPLANATION/S FURNISHED IN THE MATT ER, AND WHICH, NEEDLESS TO ADD, IS AN ASPECT THAT CONCERNS THE MERITS OF THE ASSESSMENT/S. ITS COMPLETION, IMPENDING THE INVESTIGATION BY ENFORCEMENT DIRECTORATE (ED), WHICH ALSO DOES NOT FORM PART OF THE REVENUE, CANNOT BE FAULTED WITH. REFERENCE IN THIS CONTEXT MAY ALSO BE MADE TO THE DETAILED OBSERVATIONS BY THE TRIBUNAL IN THE MATTER VIDE PARAS 11.2, 12 AND 128 OF ITS ORDER IN HASSAN ALI KHAN VS. DY. CIT (IN ITA NOS. 4156 - 4162 /M UM / 201 0 DATED 29.2.2016 ). 6 .2 AS REGARDS THE PLEA AS TO NON - ALLOWANCE OF PROPER OPPORTUNITY BY THE A.O., THE SAME WE FIND STANDS RAISED BEFORE THE FIRST APPELLATE AUTHORITY, AND DULY DEALT WITH HIM IN HIS ORDER (AS VIDE GROUND 3 AT PARA 7 FOR A.Y. 2001 - 02 , REPRODUCED AS UNDER ), 6 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) STATING THAT NO SUBMISSION IN THIS REGARD WAS MADE BEFORE HIM EVEN AS THE A.O. HAD ALLOWED SUFFICIENT OPPORTUNITY TO THE ASSESSEE : 7. THE APPELLANT NEITHER FILED ANY REPLY NOR ANY DETAILED SUBMISSIONS NOR APPEARED. DESPITE GIVING MANY OPPORTUNITIES, THE APPELLANT DID NOT PRODUCE ANY BOOKS OF ACCOUNTS. IN RESPONSE TO NOTICE U/S. 153A, THE APPELLANT DID NOT EVEN FILE THE COPIES OF RETURN CLAIMED TO HAVE BEEN ORIGINALLY FILED BY HER U/S. 139. THE APPELLANT DID NOT SUBMIT TO THE AO THE REQUISITE DETAILS SUPPORTED BY EVIDENCES AND BOOKS OF ACCOUNT TO SUBSTANTI ATE THE QUERIES RAISED. THE APPELLANT ADOPTED DELAYING TECHNIQUES AND DRAGGED THE CASE TILL THE TIME BARRING DATE ON 31.12.2008. THE AO THEREFORE APPLIED THE PROVISIONS OF SECTION 132(4A) AND 292C OF THE ACT IN THE CASE OF THE APPELLANT AND THE ASSESSMENT MADE ON THE VARIOUS ISSUES. THE LD. COUNSEL FOR THE ASSESSEE, SH. CHETAN KARIA, CA WOULD TOWARD THIS STATE THAT THE FIRST EFFECTIVE NOTICE SEEKING DETAILS AND CLARIFICATIONS ON THE SEIZED MATERIALS WAS ISSUED TO THE APPELLANT ONLY ON 07.11.2008, WHILE T HE INFORMATION RECEIVED FROM THE ED COMMUNICATED, ALSO SHOW CAUSING THE ASSESSEE IN ITS RESPECT, ONLY ON 19.12.2008. BOTH THESE WERE, THUS, TOWARD THE FAG END OF THE ASSESSMENT, LEAVING INSUFFICIENT TIME TO RESPOND TO THE DETAILED QUESTIONNAIRE/REQUISITION . THIS IS SUPPORTED BY A PLEA FOR ADMISSION OF ADDITIONAL EVIDENCES. THE REVENUE RESPONDS BY LISTING THE SEVERAL NOTICES TEN IN NUMBER, ISSUED U/S. 142(1), WHICH REMAINED UNCOMPLIED WITH . THE MATTER, THOUGH PERTINENT, IS PURELY FACTUAL IN - AS - MUCH AS , IF ADEQUATE OPPORTUNITY STANDS NOT ALLOWED BY THE ASSESSING AUTHORITY , IT MAY VITIATE THE PROCEEDINGS. THE CHARGE, HOWEVER, AS WE FIND, IS MISPLACED. THE ASSESSMENT ORDER (VIDE PARAS 3 TO 7 .4/PGS. 2 - 6 FOR A.Y. 2001 - 02) DEALS EXTENSIVELY WITH THE PROCEEDINGS AS TRANSPIRED BEFORE THE ASSESSING AUTHORITY, WITH THE ASSESSEE BEING CONVEYED, VIDE LETTER DATED 24.4.2008, THAT S HE MAY COLLECT THE COPIES OF THE SEIZED DOCUMENTS AS MAY BE DEEMED RELEVANT, AND THE COPIES BEING FURNISHED TO THE ASSESSEES REPRESENTATIVE SHRI PRAD I P SHAH (POWER OF ATTORNEY IN WHOSE FAVOUR WAS SUBMITTED ON 17.9.2008), EVEN AS HIS AUTHORIZATION ONLY EXTENDED TO REPRESENTATION AND NOT TO COLLECT/MAKE COPIES, ALSO ADVERTING TO THE ORDER SHEET ENTRIES DATED 05.9.2008, 25.9.2008, 7 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) 17.11.2008 , 21. 11.2008 , AND 02.12.2008 . TRUE, A DETAILED QUESTIONNAIRE STANDS ISSUED LATE INTO THE ASSESSMENT PROCEEDINGS, WHICH WERE ON IN PARALLEL FOR ALL THE YEARS UNDER REFERENCE, SIFTING THROUGH THE PLETHORA OF MATERIALS GATHERED. THE ASSESSEE WHOSE CASE IS ONE OF DENIAL, EITHER BEFORE OR SUBSEQUENT TO THE SAID NOTICES, WAS, HOWEVER, RECALCITRANT. HOW, THEN, IS THE SAID DATE RELEVANT THE ASSESSEE ONLY DENYING ANY KNOWLEDGE OF ANY ACCOUNT, THROUGHOUT DENYING HIS ASSOCIATION WITH HASSAN ALI KHAN (HAK) OR OF MAINTAI NING ANY FOREIGN BANK ACCOUNT? THE INFORMATION WITH REGARD THERETO COMPRISES THE BULK OF QUESTIONNAIRE BY THE REVENUE. THE QUERIES IN RESPECT OF DOMESTIC TRANSACTIONS, WE OBSERVE HAVE IN FACT BEEN RESPONDED TO, AS VIDE LETTERS DATED 01.12.2008 (SUBMITTED O N 05.12.2008), 05.12.2008 , 23.12.2008 & 25.12.2008 (SUBMITTED ON 26.12.2008 ) BY THE ASSESSEE. THIS IS ALSO WHAT THE A.O. STATES IN SUBSTANCE VIDE HIS REMAND REPORT DATED 04.2.2010 TO THE LD. CIT(A) (APB 2 , PGS. 2 9 4 - 295 ). THE ADDITIONAL EVIDENCE IS ALSO QUA TRANSACTIONS IN OR THROUGH SUCH FOREIGN BANK ACCOUNTS. THEN, AGAIN, THE ASSESSEE COULD HAVE FURNISHED HER EXPLANATION/S BEFORE THE FIRST APPELLATE AUTHORITY, MEETING ANY DEFICIENCY IN PRESENTING H ER CASE EARLIER. GROUND AFTER GROUND, WE FIND THE LD. CIT(A ) TO STATE OF EITHER THE ASSESSEE REITERATING H ER EXPLANATION BEFORE THE A.O. OR NOT MAKING ANY SUBSTANTIVE REPLY. NO WONDER, HEAVY EMPHASIS IS LAID DOWN BEFORE US ON ADMISSION OF ADDITIONAL EVIDENCE S , PLACING RELIANCE ON THE TWO LETTERS BY THE ASSESSEE TO THE A.O. (I .E., DATED 13.12.2011 AT APB - 5 , PGS. 871 - 873 ) , FOLLOWED BY LETTER DATED 12.9.2013 (AT APB 5, PGS. 853 - 854), LISTING EIGHT FOREIGN BANK ACCOUNTS IN THE NAMES OF HERSELF AND HER HUSBAND . THE SECOND LETTER, ISSUED IN RESPONSE TO A REQUISITION U/S. 142(1) TO FURNISH COPIES OF SUCH ACCOUNTS (APB - 5 , PG. 877), IS ACCOMPANIED BY EIGHT SEPARATE INSTRUCTIONS DATED 12.9.2013 (ONE DATED 20.9.2013) (APB 5, PGS. 855 870) BY KT , IN THE FORMAT SUGGESTED BY THE DEPARTMENT, TO THE RESPECTIVE BANKS FOR FURNISHIN G ALL THE ACCOUNTS RECORDED. BOTH THE LETTERS ARE MUCH AFTER THE COMPLETION OF THE ASSESSMENT PROCEEDINGS, NAY, EVEN AFTER THE CONCLUSION OF THE PROCEEDINGS AT THE FIRST APPELLATE STAGE. HOW, THEN, CAN THEY BE OF ANY CONSEQUENCE IN - SO - FAR AS THE ASSESSEES CHARGE OF NON - GRANT OF PROPER 8 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) OPPORTUNITY BY THE A.O. IS CONCERNED? HOW, RATHER, COULD THE REVENUE MODIFY THE IMPUGNED ASSESSMENTS IN ANY MANNER. IN FACT, THIS INFORMATION IS ALSO FURNISHED ONLY IN RESPONSE TO NOTICE U/S. 142(1) DATED 1 2 .12.2011 (APB - 5, PGS. 874 - 876) ISSUED IN PURSUANCE TO S. 148 PROCEEDINGS INITIATED ON 31.3.2011 IN THE ASSESSEES CASE FOR A.Y. 2004 - 05, WHICH ENLISTS ALL THESE EIGHT ( 8 ) FOREIGN BANK ACCOUNTS , INFORMATION ON WHICH , THUS, WAS WITH THE REVENUE. FURTHER , THESE ARE MERE REQUI SITIONS (ON THE RESPECTIVE BANKS), NOT ACCOMPANIED BY THE BANK ACCOUNT STATEMENTS, SO THAT BY ITSELF THIS IS OF LITTLE MOMENT AS FAR AS THE ASSESSMENTS ARE CONCERNED. ON THE CONTRARY, IT ESTABLISHES NON - CO - OPERATION AS WELL AS A DELIBERATE DESIGN TO MISLEA D THE REVENUE. ALL THAT THE SAI D LETTERS MAY THEREFORE EXHIBIT IS OF A CHANGE OF HEART AT THE END OF THE ASSESSEE, EVEN IF BELATEDLY , AND CORRESPONDINGLY AN ATTEMPT TO CO - OPERATE WITH THE REVENUE , EVEN IF ON BEING CORNERED . IN THIS REGARD, GIVEN THE SECREC Y/PRIVACY LAWS OF THE RELEVANT COUNTRIES, EVEN PERHAPS THE LETTER OF DECEMBER, 2011, NOT ACCOMPANIED BY A SIMILAR REQUISITION ON THE RESPECTIVE BANKS, DO NOT AMOUNT TO MUCH, EXCEPT PERHAPS SIGNIFY A WILLINGNESS TO CO - OPERATE AND MISLEAD NO LONGER, I.E., AS SUMING, AGAIN, THE LIST FURNISHED TO BE COMPLETE. THE SECOND LETTER, AFTER NEARLY TWO YEARS OF THE FIRST ONE, AND ONLY AT THE INSTANCE OF THE REVENUE, IS ONLY A FOLLOW UP OF THE FIRST LETTER. WE IN FACT OBSERVE A LACK OF EARNESTNESS ON THE PART OF THE DEPA RTMENT AS WELL, WHICH SHOULD HAVE ACTED WITH A MUCH MORE ALACRITY; IT REQUISITIONING THE SAID INFORMATION ONLY VIDE ITS LETTER DATED 11.7.2013. TRUE, THE ASSESSMENTS HAD ALREADY BEEN FRAMED, YET, THE SAME WERE PENDING IN APPEALS, SO THAT THE INFORMATION IS RELEVANT, BESIDES THE ACCOUNTS, PARTICULARLY WHERE NOT DISCLOSED, BEING IN VIOLATION OF OTHER LAWS AS WELL. SO, HOWEVER, THE BURDEN OF PROOF, IN VIEW OF THE MATERIALS IN THE POSSESSION OF THE REVENUE, DULY CONFRONTED TO THE ASSESSEE, CLEARLY IS ON THE ASS ESSEE, AND WHICH REMAINS COMPLETELY UN - DISCHARGED. THE ASSESSEES CASE, WITH REGARD TO THE RELEVANT GROUNDS, IN VIEW OF THE FOREGOING, RATHER THAN BEING PROVED, GETS DISPROVED, SO THAT THE SAME IS WITHOUT MERIT. 9 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) 6 .3 NEXT, WE MAY EXAMINE PLEA FOR ADMISSIO N OF ADDITIONAL EVIDENCE. THE ISSUE WAS ARGUED AT LENGTH BEFORE US. RULE 29 OF THE INCOME - TAX (APPELLATE TRIBUNAL) RULES, 1963, WHICH IS A PROVISION REGARDING PRODUCTION OF ADDITIONAL EVIDENCE BEFORE THE TRIBUNAL, AND READS AS UNDER: 29. PRODUCTION OF AD DITIONAL EVIDENCE BEFORE THE TRIBUNAL. THE PARTIES TO THE APPEAL SHALL NOT BE ENTITLED TO PRODUCE ADDITIONAL EVIDENCE EITHER ORAL OR DOCUMENTARY BEFORE THE TRIBUNAL, BUT IF THE TRIBUNAL REQUIRES ANY DOCUMENTS TO BE PRODUCED OR ANY WITNESS TO BE EXAMINED OR ANY AFFIDAVIT TO BE FILED TO ENABLE IT TO PASS ORDERS OR FOR ANY OTHER SUBSTANTIAL CAUSE, OR, IF THE INCOME - TAX AUTHORITIES HAVE DECIDED THE CASE WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO ADDUCE EVIDENCE EITHER ON POINTS SPECIFIED BY THEM, OR NOT SPECIFIED BY THEM, THE TRIBUNAL, FOR REASONS TO BE RECORDED, MAY ALLOW SUCH DOCUMENT TO BE PRODUCED OR WITNESS TO BE EXAMINED OR AFFIDAVIT TO BE FILED OR MAY ALLOW SUCH EVIDENCE TO BE ADDUCED. RELYING ON THE DECISION BY THE HONBLE APEX COURT IN T HE CASE OF K. VENKATARAMIAH VS. A. SEETHARAMA REDDY AIR 1963 SC 1526, 1530, IT WAS SUBMITTED THAT THE SCOPE OF THE WORDS SUBSTANTIAL CAUSE OCCURRING IN RULE 29 STANDS EXPLAINED THEREIN TO MEAN THAT WHERE EVIDENCE ON RECORD IS SUFFICIENT TO ENABLE THE COU RT TO PASS AN ORDER, IT MAY YET ADMIT ADDITIONAL EVIDENCE FOR ANY OTHER SUBSTANTIAL CAUSE. THE LD. SPECIAL COUNSEL FOR THE REVENUE WOULD RELY ON THE DECISION IN THE CASE OF IN IBRAHIAM UDDIN AND ANR. [2012] 8 SCC 148, SPECIFICALLY REFERRING TO PARA 41 (AT PAGE 168 THEREOF), TO SAY THAT THE POWER TO ADMIT ADDITIONAL EVIDENCE U/R. 29 FOR ANY OTHER SUBSTANTIAL CAUSE IS TO BE READ IN CONTEXT OF THE EARLIER WORDS REQUIRES TO ENABLE IT TO PASS ORDERS, AND CANNOT BE ADMITTED WHERE EVIDENCE ON RECORD ENABLES T HE TRIBUNAL TO PASS AN ORDER. THE ARGUMENT RAISED BY SH. KARIA IS, IN OUR VIEW, EVEN PRIMA FACIE NOT VALID. IF THE WORDS SUBSTANTIAL CAUSE IN RULE 29 ARE NOT TO BE READ IN THE CONTEXT OF THE WORDS REQUIRES TO ENABLE IT TO PASS AN ORDER, WHICH IS IMMIN ENT FROM A PLAIN READING OF THE RULE, HOW, IT MAY BE ASKED, IS THE SAME TO BE READ AND UNDERSTOOD AS? THAT IS, WHAT THEN WOULD INFORM OR GUIDE THE UNDERSTANDING OR THE MEANING OF THE SAID WORDS? SURELY, IF THE SAID WORDS HAD RECEIVED A DIFFERENT OR EXPAND ED MEANING, THE APEX 10 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) COURT WOULD HAVE EXPLAINED THE SAME, DILATING ON THE EXACT SCOPE OF THE SAID WORDS, AND HOW THE SAME ARE TO BE UNDERSTOOD AND APPLIED, SO THAT THE SAME COULD ONLY MEAN TO BE ABLE TO DO JUSTICE AS BETWEEN THE PARTIES, IN THE CONTEXT OF THE MATTER BEFORE IT. THE SCOPE OF THE WORDS SUBSTANTIAL CAUSE OCCURRING IN RULE 29, WHICH IS SIMILAR IN TERMS TO ORDER 41, RULE 27(1) OF THE CODE OF CIVIL PROCEDURE, 1908, WAS, WITH REFERENCE TO THE DECISION IN THE CASE OF K. VENKATARAMIAH (SUPRA), UND ERSTOOD TO MEAN THAT THOUGH THE COURT MAY NOT STRICTLY BE SAID TO REQUIRE ADDITIONAL EVIDENCE TO PRONOUNCE A JUDGMENT, IT STILL CONSIDERS THAT IN THE INTEREST OF JUSTICE SOMETHING WHICH REMAINS OBSCURE SHOULD BE FILLED UP, SO THAT IT COULD PRONOUNCE THE JU DGMENT IN A MORE SATISFACTORY MANNER, WHICH WOULD IN THAT CASE BE A CASE COVERED UNDER RULE 27(1)(B) OF THE SAID CODE. IN SHORT, THE POWER FOR ADMISSION OF ADDITIONAL EVIDENCE IS TO BE EXERCISED FOR A JUST AND FAIR DISPOSAL OF THE APPEAL. WE DO NOT FIND AN Y DICHOTOMY BETWEEN THE TWO DECISIONS BY THE HONBLE APEX COURT CITED SUPRA. THERE IS ACCORDINGLY NO QUESTION OF THE DECISION BY ITS DIVISION BENCH IN IBRAHIAM UDDIN AND ANR. (SUPRA) OVERRIDING OR PREVAILING OVER THE LARGER (FIVE MEMBER) BENCH DECISION IN THE CASE OF K. VENKATARAMIAH (SUPRA); IT ONLY EXPLAINING THE LATTER. THE FORMER DECISION, INCLUDING PARA 41 THEREOF, IS THUS JUDICIALLY BINDING ON US, AND ACCORDINGLY IS TO BE CONSIDERED AS CONCLUSIVE, SETTLING THE LAW IN THE MATTER. WE MAY IN THIS REGAR D ALSO PROFITABLY REFER TO THE DISCUSSION AT PARA 3.3 (PGS. 6 - 9) OF THE ORDER BY THE TRIBUNAL IN THE CASE OF HAK (SUPRA). THIS ORDER HAS IN FACT, DUE TO THE COMMONALITY AND OVER - LAP OF THE ISSUES; RATHER, EVEN TO A LARGE EXTENT THE EVIDENCES AS WELL AS THE ARGUMENTS ADVANCED, TO BE READ IN CONJUNCTION WITH THE SAID ORDER, TO WHICH THEREFORE FREQUENT (AND SPECIFIC) REFERENCES STAND MADE; THE REASONS AND PRINCIPLES GUIDING THE SAID DECISION, BEING EQUALLY APPLICABLE, INFORMING THE PRESENT DECISION AS WELL. TH E POWER OF THE TRIBUNAL TO ADMIT ADDITIONAL EVIDENCE, IT NOTES WITH REFERENCE TO THE SETTLED LAW IN THE MATTER, IS STRICTLY LIMITED. RULE 29 PLACES A TOTAL BAN ON THE PARTIES TO THE APPEAL TO PRODUCE ADDITIONAL EVIDENCE, ORAL OR DOCUMENTARY, BEFORE THE TRI BUNAL, WHICH THOUGH IS VESTED WITH JUDICIAL DISCRETION TO 11 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) ALLOW PRODUCTION OF THE SAME UNDER SPECIFIED CIRCUMSTANCES, I.E., EITHER TO ENABLE IT TO PASS AN ORDER OR FOR ANY OTHER SUBSTANTIAL CAUSE, OR WHERE THE REVENUE AUTHORITIES HAD DECIDED THE CASE WITHO UT AFFORDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO ADDUCE THE SAME. THE LATTER ASPECT IS NOT IN DISPUTE IN THE PRESENT CASE, WHICH, IT WOULD BE APPRECIATED, COULD NOT, WHERE SO, STRICTLY QUALIFY TO BE ADDITIONAL EVIDENCE THE ASSESSEE BEING PREVENTED TO PRODUCE IT IN THE FIRST PLACE. THE WORDS SUBSTANTIAL CAUSE, AS A HOLISTIC READING OF THE SEVERAL DECISIONS CITED AS WELL AS THE ANALYSIS IN THE CASE OF HAK (SUPRA) REFERRED TO WOULD SUGGEST, CANNOT BE READ REMOVED FROM OR DE HORS THE PURPOSE FOR AND T OWARD WHICH THE ADJUDICATION UNDER REFERENCE IS BEING MADE. AS EXPLAINED BY THE HON'BLE JURISDICTIONAL HIGH COURT IN AHMEDABAD ELECTRICITY CO. LIMITED VS. CIT [ 1993 ] 199 ITR 351 (BOM) (FB), THE JURISDICTION OF THE TRIBUNAL IS NOT RESTRICTED TO THE SUBJECT MATTER OF THE APPEAL, I.E., THE POINTS CHALLENGED IN THE MEMORANDUM OF APPEAL BEFORE IT, BUT RANGES OVER THE WHOLE ASSESSMENT. IF THE EVIDENCE IS NOT TO ENABLE IT TO PASS AN ORDER IN A MORE SATISFACTORY MANNER, WITH REFERENCE TO THE ISSUE/S ARISING, WHICH REQUIRE ITS DELIBERATION AND ADJUDICATION, WHAT PURPO SE, ONE MAY ASK, WOULD IT SERVE? THE SAME HAS TO NECESSARILY RELATE TO THE ADJUDICATION PROCESS AND, CONSEQUENTLY, TO PROPER ADJUDICATION, I.E., THE END TO WHICH THE ENTIRE EXERCISE IS GEARED TOWARD AND ATTEMPTS TO SEEK. 6 .4 THIS BRINGS US TO OUR FIRST OBSERVATION (FACTUAL) IN THE MATTER. WE FIND NO EVIDENCE WHICH WOULD ENABLE US TO ARRIVE AT A DECISION, MUCH LESS IN A SATISFACTORY MANNER. AS EXPLAINED BY THE HONBLE COURTS TIME AND AGAIN, THE ADMISSION OF ADDITIONAL EVIDENCE UNDER RULE 29 (WHICH IS PAR I MATERIA TO THE PROVISION OF ORDER 41, RULE 27(1) OF THE CPC) IS TO BE CONSIDERED AT THE STAGE OF CONSIDERING THE ISSUE ON MERITS. THE REASON IS, AGAIN, SIMPLE. IT IS ONLY UPON EXAMINING THE ISSUE ARISING BEFORE IT FOR ADJUDICATION, THAT THE TRIBUNAL COULD APPRECIATE THE IMPORT OR THE PURPORT OF THE EVIDENCE OR THE MATERIAL BEING NOW SOUGHT TO BE PRODUCED AND RELIED UPON, I.E., BY WAY OF ADDITIONAL EVIDENCE. IN OTHER WORDS, THE PROCESS NECESSARILY INVOLVES A 12 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) CORRELATION BETWEEN THE EVIDENCE AND THE ISSUE/ASPECT OF ASSESSMENT UNDER EXAMINATION, I.E., IS TO BE EVIDENCE ISSUE SPECIFIC; A PARTICULAR EVIDENCE MAY PASS MUSTER WHILE ANOTHER NOT. APART FROM, HOWEVER, BROADLY MENTIONING THE CONTENTS OF VARIOUS PAPER - BOOKS STATED AS CONTAINING ADDITIONAL EVIDENCES, NO SPECIFIC PLEADINGS WERE MADE QUA ANY EVIDENCE, SAVE ONE, AND WHICH, IT WOULD BE APPRECIATED, HAS TO BE WHILE PLEADING A SPECIFIC ISSUE/GROUND OF APPEAL. THE MATTER, GIVEN THE LAW IN THE MATTER, IS CLEARL Y FACTUAL, REQUIRING THE CONSIDERATION BY THE APPELLATE AUTHORITY IF PARTICULAR EVIDENCE SHALL BETTER SERVE THE CAUSE OF JUSTICE IN - SO - FAR AS IT RELATES TO ADJUDICATION OF ISSUE/S UNDER REFERENCE. THERE IS ACCORDINGLY NO SCOPE FOR GENERALIZED PLEADINGS, AS MADE. THE ONLY EVIDENCE TO WHICH OUR SPECIFIC ATTENTION WAS DRAWN WITH REFERENCE TO AN ISSUE IS THE ACCOUNT STATEMENTS (OF BANK ACCOUNT NO. 835 - 357 - 902 - 3 WITH CREDIT SUISSE PRIVATE BANKING, ZURICH) FOR THE PERIOD 01.7.2001 TO 28.12.2006 (APB - 5, PGS. 883 - 9 13). THE SAME WOULD, HOWEVER, BE OF NO AVAIL AS, AS POINTED OUT DURING HEARING BY SHRI DAVE, WITH REFERENCE TO THE DISCLAIMER QUALIFYING THE SAID STATEMENT (AT PG. 890), THAT THE SAID STATEMENT IS NOT SUITABLE FOR TAX PURPOSES . ALSO, AS ARGUED BY HIM, THE SAME ORIGINATING IN A FOREIGN TERRITORY, IS NOT APOSTILLED AND, ACCORDINGLY, CANNOT BE ACCEPTED IN EVIDENCE. THIS, THEN, MAKES A SHORT SHRIFT OF THE FORE - GOING DISCUSSION ON THE LAW IN THE MATTER, WHICH WAS YET PREFERRED BY US IN VIEW OF THE LENGTHY ARGUME NTS IN THE MATTER CANVASSED BEFORE US. NO WONDER, THE LD. AR HAS CHOSEN NOT TO MAKE A SEPARATE AND SPECIFIC PRAYER FOR ADMISSION OF ADDITIONAL EVIDENCE U/R. 29, AS OUGHT TO BE AND IS GENERALLY THE CASE, BUT SEEKS TO MAKE OUT A CASE IN ITS RESPECT, AND ARGU ES THE SAME WITH REFERENCE TO GROUNDS OF APPEAL, CONTESTING THE NON - ALLOWANCE OF PROPER OPPORTUNITY BY THE ASSESSING AND THE FIRST APPELLATE AUTHORITY. THE TWO ASPECTS, SAVE TO THE EXTENT ARE CLEARLY INTERRELATED, ARE S EPAR ATE AND DISTINCT . IF THERE HAS BE EN NON - ALLOWANCE OF PROPER OPPORTUNITY BY THE REVENUE AUTHORITIES, AN ASPECT CONSIDERED BY US EARLIER, THAT BY ITSELF IS A GROUND SUFFICIENT FOR SEEKING A SET ASIDE QUA THE RELEVANT ISSUE/S. THE SAME, DEPENDING ON THE FACTS AND CIRCUMSTANCES OF THE CASE, C OULD BE AN OPEN SET ASIDE OR FOR FURNISHING SOME SPECIFIC EVIDENCES, EITHER 13 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) WAY SERVING THE APPELLANTS CAUSE. RATHER, THE ADMISSION OF ADDITIONAL EVIDENCE AT FIRST APPELLATE STAGE ITSELF INCLUDES, AS A CONSIDERATION, THE REFUSAL TO OR NON - GRANT OF SUFFICI ENT OPPORTUNITY BY THE ASSESSING AUTHORITY TO PRODUCE THE SAME, BESIDES BEING PREVENTED BY SUFFICIENT CAUSE TO BE ABLE TO DO SO, BOTH GENERALLY AS WELL AS WHICH THE ASSESSEE WAS SPECIFICALLY CALLED UPON TO (RULE 46A(1) OF THE INCOME TAX RULES, 1962). THAT APART, THAT DOES NOT RESTRAIN THE FIRST APPELLATE AUTHORITY TO, TO ENABLE HIM TO DISPOSE AN APPEAL OR FOR ANY SUBSTANTIAL CAUSE, INCLUDING THE ENHANCEMENT OF ASSESSMENT, ADMIT THE EVIDENCE FOR THE FIRST TIME. THE DENIAL OF OPPORTUNITY TO FURNISH EVIDENCE B Y EITHER THE ASSESSING OR THE FIRST APPELLATE AUTHORITY, IN EXERCISE OF THEIR POWER TO ADJUDICATE, IS THUS A SEPARATE GROUND - NOT UNDER CHALLENGE BEFORE US, FROM THAT OF NON - ALLOWANCE OF OPPORTUNITY, EXCEPT WHERE THE LACK OF OPPORTUNITY ITSELF RELATES TO OR IS TOWARD NON - PRODUCTION OF THE EVIDENCE, SO AS TO FORM A SUB - SET THEREOF. THAT THERE HAS BEEN NO FAILURE TO PROVIDE PROPER OPPORTUNITY TO THE ASSESSEE TO PRESENT H ER CASE BEFORE THEM BY THE AUTHORITIES BELOW, I.E., AT THE ASSESSMENT AND THE FIRST APPEL LATE STAGE, HAS BEEN FOUND BY US AS A FACT. THE WHOLE PURPORT OF THE FOREGOING IS TO EXPLAIN THAT, SAVE AND TO THE EXTENT FACTUALLY INTERRELATED FOR WHICH THE LAW ITSELF PROVIDES, NON - GRANT OF OPPORTUNITY TO PRESENT ITS CASE BY THE REVENUE AND THE ADMISS ION OF ADDITIONAL EVIDENCE BEFORE THE TRIBUNAL, ARE SEPARATE AND DISTINCT ASPECTS OF THE APPELLATE PROCEEDINGS BEFORE IT. THIS CONSTITUTE OUR SECOND OBSERVATION IN REPELLING THE CASE FOR THE LATTER BEFORE US, THE FIRST BEING TOWARD THE MATTER BEING, IN SUB STANCE, FACTUAL. WE HAVE, IT MAY BE ADDED, ALREADY FOUND NO MERIT IN THE ASSESSEES ARGUMENT OF THE REVENUE TO HAVE AWAITED THE CONCLUSION OF THE PROCEEDINGS BEFORE THE ED PRIOR TO THE COMPLETION OF THE ASSESSMENT UNDER THE ACT AND, C ONSEQUENTLY, KEEPING E VEN THE ASSESSMENT PROCEEDINGS WHICH ARE ONLY AN EXTENSION OF THE APPELLATE PROCEEDINGS, IN ABEYANCE, ON THAT SCORE. THIS, THEN, BRINGS US TO THE THIRD LIMB OF THE DISCUSSION IN THE MATTER. THE ASSESSEE, AS DISCUSSED ABOVE, IN RESPONSE TO A REQUISITION U/S. 142(1), PLACED REQUEST ON DIFFERENT FOREIGN BANKS IN WHICH S HE AND H ER HUSBAND, KT , HAVE SINCE ADMITTED TO 14 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) HAVE ACCOUNTS, FOR FURNISHING COPIES OF ACCOUNT SINCE INCEPTION OF THE ACCOUNT TO ITS CLOSURE. WE HAVE ALREADY EXPLAINED THAT THE SAME CANNOT B Y ITSELF BE CONSIDERED AS AN EVIDENCE , BUT ONLY AN EXPRESSION OF EARNESTNESS ON THE PART OF THE ASSESSEE TO COME CLEAN. THERE IS ALSO NO WAY TO HOLD THE SAID LIST OF BANK ACCOUNTS AS EXHAUSTIVE . WE HAVE, HOWEVER, ADMITTED THE REPORT BY UBS AG, ZURICH, DATE D 30.10.2007 TO ED IN THE CASE OF HAK (SUPRA) (REFER PARA 3.3 OF THE SAID ORDER), TO WHICH REFERENCE STANDS ALSO MADE BY THE ASSESSEE IN SUPPORT OF H ER CASE, NOTING THAT THE SAME AS WELL AS THE FACSIMILE DATED 15.1.2007 BY THE SWISS FEDERAL GOVERNMENT TO T HE EMBASSY OF INDIA, BOTH AVAILABLE AT THE TIME OF ASSESSMENT, OUGHT TO HAVE BEEN TAKEN INTO ACCOUNT, PROVIDING, IN ALL FAIRNESS, A COPY THEREOF TO THE ASSESSEE. THE SAME, TO WHATEVER EXTENT, MAY HAVE A BEARING ON THE PRESENT ASSESSMENTS AS WELL. THIS IS A S THE TRANSFER INSTRUCTIONS (TIS), WHICH FORM THE BULK OF THE ADDITIONS TOWARD UNEXPLAINED BALANCES IN FOREIGN BANK ACCOUNTS, ARE FOR MOST PART FROM THE ACCOUNTS OF OR CONTROLLED BY HAK. THE BASIS OF THE TI BASED ADDITIONS IS THAT THE SAME WOULD ONLY BE GI VEN EFFECT TO, AND EVEN IF SOME REASON NOT, THE VERY FACT OF DRAWING THE TI IMPLIES BALANCE IN THE RELEVANT ACCOUNT, AT LEAST TO THE EXTENT. THE RATIONALE HAS BEEN FOUND BY US AS VALID. THE MATTER, HOWEVER, HAS BEEN, CONSIDERING THE ENTIRETY OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND FOR THE REASONS STATED THEREIN (REFER PARAS 11 - 12, 15, 25, 30, 49 , 65 A & 106 OF THE ORDER SUPRA IN CASE OF HAK), REMANDED BACK TO THE FILE OF THE A.O. TO ALLOW THE ASSESSEE AN OPPORTUNITY TO PRODUCE THE COPY OF THE RELEVAN T ACCOUNTS, ESTABLISHING HIS CASE, WHICH WOULD, IT OPINED, PROVE OR DISPROVE THE ASSESSEES, ON WHOM THE BURDEN OF PROOF LIES IN VIEW OF THE MATERIAL IN THE POSSESSION OF THE REVENUE, CASE. THIS, IT CONSIDERED AS TOWARD A JUST AND FAIR DISPOSAL OF THE APPE ALS IN THE GIVEN FACTS AND CIRCUMSTANCES, AS ANALYZED BY IT IN THE VARIOUS PARAGRAPHS TO WHICH REFERENCE HAS BEEN MADE, APPLYING THE LAW IN THE MATTER OF ADMISSION OF ADDITIONAL EVIDENCE BY THE TRIBUNAL IN CONFORMITY WITH ITS UNDERSTANDING THEREOF. NOW, I F, THE SAID ACCOUNT STATEMENT/S FOR THE RELEVANT PERIOD REVEALS NO BALANCE, OR A BALANCE WHICH DOES NOT MATCH AT ALL WITH THE TRANSFER INSTRUCTION, CLEARLY DRAWING OF THE TRANSFER INSTRUCTION 15 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) SHALL BE OF LITTLE CONSEQUENCE. THE FURTHER QUESTION OF IT BEING GIVEN EFFECT TO, AND THE INFERENCE FLOWING THERE - FROM, WOULD ALSO NOT ARISE. IN OTHER WORDS, AS A COROLLARY AND A NECESSARY ADJUNCT TO HAVING DECIDED IN FAVOUR OF THE RESTORATION OF THE ASSESSMENT QUA THE ADDITIONS MADE ON ACCOUNT OF TRANSFER INSTRUCTIONS FROM HAK/HAK CONTROLLED BANK ACCOUNTS, THE CORRESPONDING ADDITIONS WITH REFERENCE TO THE BALANCES IN THE TRANSFEREE ACCOUNTS WOULD REQUIRE A LIKE REMISSION. ACCORDINGLY, ALL OUR OBSERVATIONS AS STATED IN THE FOREGOING PARAGRAPHS IN THE ORDER OF HAK (SUPRA ), TO THE EXTENT RELEVANT AND NOT INCONSISTENT WITH THE FACTS AS MAY BE FOUND IN THE PRESENT CASE, WOULD EQUALLY APPLY AND HOLD FOR THE INSTANT APPEALS AS WELL. THIS, IT MAY BE STATED, DECIDES THE RELEVANT GROUNDS. TRUE, HOWEVER, IN - AS - MUCH AS THE CONSIDER ATIONS FOR THE SAME FLOW FROM THE PRINCIPLE INFORMING THE ADMISSION OF ADDITIONAL EVIDENCE/S BY US AS WELL AS, SIMILARLY, IN THE CASE OF HAK, THE SAME REPRESENTS OUR VIEW POINT IN THE MATTER, SO THAT IT WAS CONSIDERED ONLY PROPER TO STATE THE SAME WHILE DI SCUSSING THE SAID ASPECT OF THE ASSESSEES APPEALS. 6 .5 THE FOREGOING DISCUSSION DECIDES GROUNDS 3 AND 4 OF THE INSTANT APPEALS FOR ALL THE YEARS. A SST . Y EAR 2001 - 02 7. GROUND 5: ANNEXURE 12 TO THE ASSESSMENT ORDER IS A DETAIL OF TRANSFERS, MENTIONING TH E NAME/S; THE ACCOUNT NUMBER/S; AND AMOUNT/S, TO BE TRANSFERRED TO THE LISTED ACCOUNTS (WHICH STANDARD CHARTERED BANK, DUBAI), FROM UBS AG, ZURICH. THE SAME IS DATED 12/3/2001, BEARING THE ASSESSEES NAME AND ACCOUNT NUMBER (18 - 220 3316 - 01) FOR USD 7 M ILLION (INR 32,60,60,000) (APB - 2, PG. 381) . THE ASSESSEE, ON BEING SHOW CAUSED IN THE MATTER, DENIED THE TRANSACTION/S. THERE WAS SUFFICIENT EVIDENCE ON RECORD OF THE ASSESSEE AND HER HUSBAND, KT, HAVING LINKS WITH HAK AND, FURTHER, HOLDING BANK ACCOUNTS A ND INVESTMENTS OUTSIDE INDIA, PARTICULARLY AT DUBAI AND SWITZERLAND. NO IMPROVEMENT IN HER CASE HAVING BEEN MADE BY THE ASSESSEE, THE 16 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) AMOUNT OF THE TRANSFER INSTRUCTION, ASSESSED AS INCOME BY WAY OF UNEXPLAINED DEPOSIT, WAS CONFIRMED BY THE LD. CIT(A), SO THAT, AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL. 8. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THIS IS A TRANFER I NSTRUCTION (TI) BASED ADDITION, MADE AND CONFIRMED IN THE ABSENCE OF THE ASSESSEE FURNISHING ANY EXPLANATION QUA THE S AID TRANSACTION/ S OR EVEN INFORMATION AS TO THE S TATE D BANK ACCOUNT. SIMILAR ADDITIONS STAND MADE IN THE CASE OF HA K, HIS WIFE, RHEEM A HASSAN ALI KHAN (R HA K), AND K T , AND FOR PRINCIPALLY THE SAME REASONS. THE T RIBUNAL, IN SECOND APPEAL, FOUND THAT THE MATE RIAL ON RECORD CLEARLY ESTABLISHED THE ASSESSEES TO HAVE BUSINESS INTERESTS, INCLUDING, AS IT APPEARED, JOINT, ABROAD, PARTICULARLY AT SWITZERLAND, DUB AI , SINGAPORE AND LONDON (TO WHICH PLACES FREQUENT TRIPS WERE ALSO UNDERTAKEN BY THEM), AS WELL AS ACCESS TO LARGE, A LBEIT UN EXPLAINED, INVEST I BL E RESOURCES. THE INESCAPABLE INFE RE NCE WAS OF THE SAME BEING HELD IN SUCH ACCOUNTS, LOCKERS, BESIDES I N B ONDS (IN WHICH INVESTMENT WA S ENVISAGED TO YIELD GUARANTEED, EVEN IF COMPARATIVELY LOW , RETURNS ) , AND EVEN PROJ ECTS/REAL ESTATE PRO PERTIES , IN WHICH IN FACT BOTH HAK AND K T E V INCED CONSIDERABLE INTEREST, MAKING ENQUIRIES; HOLDING MEETINGS (WITH THE PROSPECTIVE SELLERS) IN WHICH THE OFFICIALS OF UBS AG, ZURICH WERE ALSO PRESENT . THE NOTARI Z ED STATEMENT DATED 3 0/ 6 /2 0 03 (AT LONDON) BY HA K, WHEREAT K T WAS ALSO PRESENT (FORMING PART OF THE TRIBUNALS ORDER IN THE CASE OF HAK DATED 29 /2/2 016 FOR THESE YEARS) , WHEREIN HE ADMITS TO HAVE OPENED H IS FIRST ACCOUNT WITH UBS, SINGAPORE IN 1982, IS RELEVANT IN THIS REGARD. THE AS SESSEE AND HUSBAND HAVE ALSO SUBSEQUENTLY SUPPLIED A LIST OF EIGHT FOREIGN BANK ACCOUNTS, OF WHICH THE EARLIEST DATES BACK TO 1960S. THE TRANSFEREE ACCOUNT SPECIFIED IN THE IMPUGNED TI, FINDS MENTION THEREIN. THOUGH THEREFORE THE ACTION OF THE R EVENUE CANN OT , IN VIEW THEREOF, BE ASSAILED IN PRINCIPLE, YET , THE MATTER, IN ALL FAIRNESS, CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, INCLUDING THE DOCUMENTS ADMITTED IN EVIDENCE AND THE FACTS AND BROUGHT ON RECORD/ TO LIGHT, DESERVES A SET ASIDE TO E NABLE THE ASSESSEE AN OPPORTUNITY TO EXPLAIN THE TRANSACTIONS, 17 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) ESTABLISHING FACTS. REFERENCE IN THIS REGARD IS ALSO MADE TO P ARAS 9 - 12 AND 6 - 7 IN THE CASE OF HA K (SUPRA) AND K T ( IN ITA NOS.3815 - 3821/MUM/2010) RESPECTIVELY (ANNEXED AS ANNEXURE A T O THIS ORDER). WE MAY THOUGH CLARIFY THAT WHERE THE AMOUNT IS NOT RECEIVED (OR TO THE EXTENT IT IS NOT), THE TI ITSELF CANNOT BE THE SOLE BASIS OF THE ADDITION, I.E., UNLESS THE REVENUE HAS MATERIAL TO EXHIBIT THE ASSESSEES RIGHT TO THE AMOUNT/S STATED TH EREIN. REFERENCE IS ALSO DRAWN TO P ARAS 15, 25, 30, 49, 65 A AND 106 OF THE ORDER IN THE CASE OF HA K (SUPRA) IN PUBLIC DOMAIN. THE MATTER, AS IN THE CASE OF OTHER ASSESSEES, IS ACCORDINGLY SET ASIDE TO THE FILE OF THE AO FOR FRESH DETERMINATION. ALL THE FA CE T S OF THE ISSUE, INCLUDING THE EXPLANATION OF THE TRANSACTIONS BY THE ASSESSEE, ARE KEPT OPEN. THIS DECIDES ALL TI - BASED ADDITIONS IN THESE APPEALS, VIZ. G D . 5 FOR AY S 2 002 - 0 3 AND 200 6 - 0 7. WE MAY, HOWEVER, BEFORE CONCLUDING THIS ASPECT, ADD THAT QUA SOME ACCOUNTS , THE ASSESSEE HAS STATED THAT THE BANK ACCOUNT /S UNDER REFERENCE DOES NOT BELONG TO HER BUT TO HER HUSBAND, K T AND, THEREFORE, NO ADDITION COULD BE MADE IN ITS RESPECT IN HER HANDS. THIS CONTENTION SHALL BE CONSIDERED ON MERITS QUA EACH ACCOUNT, I.E., WHERE MADE . IN RESPECT OF THE INSTANT G ROUND, THIS PLEA CANNOT BE ACCEPTED; THE ASSESSEE HERSELF ADMITTING HER ACCOUNT VI DE HER LETTER DATED 13 / 12 / 2011 (APB 6/PAGES 936 938). 9. THE ONLY OTHER G ROUND IN THIS APPEAL IS G D . # 6 , WHICH IS QUA DISALLO WANCE OF EXPENDITURE (RS. 20 ,2 20 / - ) CLAIMED PER THE P&L ACCOUNT, RETURNING A NET LOSS OF RS.750 / - . THE R EVENUE, IN ITS ZEAL TO DISALLOW EXPENSES, HA S IGNORED T HE RETURNED GROSS INCOME OF RS. 19 , 470 / - . THERE HAS BEEN NO ASSESSMENT UNDER SECTION 143 ( 3 ) ; IN FAC T , FOR ANY OF THE THE YEARS FOR WHICH SECTION 153A ASSESSMENT HAS BEEN FRAMED, NOR ANYTHING ON RECORD TO SHOW EVEN AN INTIMATION U /S.1 43 ( 1 ) FOR ANY OF THESE YEARS. REFERENCE TOWARD THE SCOPE OF AN ASSESSMENT U /S. 153A, WHERE NO COMPLETED ASSESSMENT STANDS F RAMED EARLIER (BY THE ASSESSING AUTHORITY) , MAY BE MADE TO PARA 18.2 AND 54 OF THE TRIBUNALS ORDER IN THE CASE OF K ASHINATH TAPURIAH (SUPRA) ( ANNEXURE B TO THIS ORDER). THE MATTER, ACCORDINGLY, IS SET ASIDE TO THE FILE OF THE AO 18 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) TO ALLOW THE ASSESSEE AN O PPORTUNITY TO CONSIDER THE MERITS OF THE ASSESSEES CLAIM PER ITS ORIGINAL RETURN, FILED U /S. 139 (4), BRINGING THE CORRECT INCOME TO TAX . WE DECIDE ACCORDINGLY. A SST. YEAR 2 002 - 0 3 10. GROUND 5 IS QUA A TI - BASED ADDITION IN THE SUM OF USD 100 M ILLION ( IN R 471.60 CRORES). THE SAME IS IN PURSUANCE TO A MINUTES AN D A GREEMENT DATED 0 7 / 8 / 2001 ENTERED INTO BETWEEN HA K AND K T, WHEREBY USD 200 M ILLION WERE TO BE TRANSFERRED TO K T NOMINATED ACCOUNTS TOWARDS K T S SHARE OF PROFITS EARNED ON ACCOUNT OF DIVERSE BUSIN ESS OPERATIONS, MAINLY IN INDIA, CONDUCTED IN JOINT - VENTURE BETWEEN HAK AND K T COMPANIES (SPECIFIED THEREIN) DURING THE YEARS 1983 TO 1990 , WHICH IS TO BE EFFECTED LATEST BY DECEMBER, 2001. THE A GREEMENT, FOUND IN SEARCH FROM THE RESIDENCES OF BOTH, HA K AN D K T , IS ANNEXED BY WAY OF A NNEXURE - C TO THIS ORDER. THE TRANSFER UNDER REFERENCE, A PART OF THE TOTAL TRANSFER OF USD 200 M ILLION, IS TO ROBERTS, MCLEAN & CO . (P.) LTD. THE ASSESSEES CASE IS THAT, QUITE CLEARLY, THE AMOUNT BELONGS TO K T , AND SO IS THE PO SITION WIT H REGARD TO THE BANK ACCOUNT ( # 0835 - 357902 3) WITH C REDIT SUISSE, ZURICH , I.E., THE ACCOUNT TO WHICH THE AMOUNT STANDS (OR IS TO BE) TRANSFERRED. IN SHORT, THE ASSESSEE IS NOWHERE INVOLVED, AND CANNOT THEREFORE BE IMPLICATED. 11. WE HAVE HE ARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE ENSUING DISCUSSION MAY BE READ IN CONJUNCTION AND IN CONTINUATION WITH PARA 8 OF THIS ORDER, WHICH FORMS PART OF OUR DISCUSSION QUA TI - BASED ADDITIONS. THE TI S FOUND FROM THE HAKS PUNE RESIDENCE (PA GES 18 AND 19 OF BUNDLE 7 OF ANNEXURE A DATED 0 5 / 1 / 2007 TO PA NCH NAMA DATED 6 . 1 . 2007), IS AS UNDER (IN THE RELEVANT PART): (AMOUNT IN USD M) S.NO. FAVOURING AMOUNT ACCOUNT PARTICULARS 1 TO 7 DIFFERENT ENTI T I ES DIFFERENT AMOUNTS SPECIFIED 19 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) 8. ROBERTS, M CLEAN & CO. LTD. 100.00 CREDIT SUISSE FIRST BOSTON ZURICH, SWITZERLAND FOR FURTHER CREDIT TO CREDIT SUISSE PRIVATE BANKING ZURICH, PARADEPLATZ 8, CH 8070 ZURICH SWIFE COUE: CRESCHZZ 80A BENEFICIARY ACCO U NT # 0835 - 357902 - 3 (CHANDRIKA) ATTN: MR. REMO MAURER 9. ROBERTS MCLEAN SERVICES PVT. LTD. 35.00 TO UNION BANCAIRE PRIVATE ZURICH ATTN. MR. W. MUELLER IN FAVOUR OF ACCOUNT # 713.169 AC CORRESPONDENT BANK - JP MORG AN CHASE BANK NEW YORK (SWIFT ADDRESS CHASUS 33) FOR FURTHER CREDIT UBP GENEVA (UBPGCHGG) FOR FURTHER CREDIT UBP ZURICH (UBPGCHZZ) 10. R M. INVESTMENT AND TRADING CO. PVT. LTD. 65.00 CREDIT L YONNAIS, BAHNHOFSTRASSE 3, ZURICH SWIFT: CRL YCHGG ACCOUNT # 08 - 06702.7 498.50 NOTE: PARTICULARS AT SR. NO. 1 TO 7, BEING NOT RELEVANT, HAVE NOT BEEN REPRODUCED. THE 3 TRANSFERS, WITH ONE OF WHICH WE ARE PRESENTLY CONCERNED (AT SERIAL NUMBER 8 ), STANDS DISCUSSED AT P ARAS 30.4 AND 30.5 OF THE ORDER DATED 29 / 2 / 2016 IN THE CASE OF HAK (SUPRA), REPRODUCED HERE - IN - BELOW: 30.4 AT THIS STAGE, IT MAY ALSO BE RELEVANT TO DWELL ON THE THREE (3) TRANSFERS, FOR USD 200M, LISTED AT SERIAL NUMBERS 8 TO 10 OF THE TABLE. THE SAME ARE APPARE NTLY IN PURSUANCE TO THE AGREEMENT DATED 07/8/2001 (REFER ANN. A). THOUGH NOT SO CONTENDED, IT MAY BE ARGUED, AND IS INDEED OPEN TO BE SO, THAT THE SAME ARE IN PURSUANCE TO THE SAID 20 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) AGREEMENT AND, THEREFORE, BEING ONLY TOWARD TRANSFER OF THE SHARE OF THE P ROFITS (OF KT) EARNED IN THE PAST, NO TAXABLE EVENT ARISES FOR THE CURRENT YEAR. THE ARGUMENT, APPEALING AT FIRST SIGHT, IS NOT TENABLE. FIRSTLY, IN - AS - MUCH AS THE PAYMENT UNDER THE AGREEMENT DATED 07/8/2001 IS TO BE MADE LATEST BY END DECEMBER, 2001, THE ONUS IS ON THE ASSESSEE TO SHOW TH AT NO PAYMENT/S THERE - UNDER WAS MADE, AND IT IS THIS PAYMENT/S, SOUGHT TO MADE/MADE IN NOVEMBER, 2002 (OR AROUND ABOUT). THAT IS, THE ONUS TO PROVE THE NEXUS, BY EXHIBITING THAT NO PAYMENT HAD BEEN MADE PRIOR THERETO, IS S QUARELY ON THE ASSESSEE. CONTINUING FURTHER, THE AGREEMENT, FOUND IN SEARCH FROM THE RESIDENCES OF BOTH THE ASSESSEE AND KT, IS, ON CLOSE EXAMINATION, FOUND TO BE A MAKE - BELIEVE, ENTERED PERHAPS WITH A VIEW TO TRANSFER FUNDS WITHOUT ATTRACTING CORRESPOND ING TAX LIABILITY BY ASCRIBING THEIR ORIGIN OR SOURCE TO PAST PROFITS. THE TOTAL AMOUNT OF PROFIT, WORKED METICULOUSLY (AT USD 280.54 M), MATCHES THE AMOUNT STATED TO HAVE BEEN EARNED BY THE ASSESSEE (FROM 1985 - 1989) FROM HIS TWO COMPANIES, STATED TO BE N OT FUNCTIONAL, IN WHICH HE HAS SOLE INVESTED INTEREST (REFER PARA 8.1). DO THE TWO IDENTICAL FIGURES REFER TO THE SAME PROFIT/S, STATED TO BE EARNED IN THE SAME TIME FRAME, AT ONE PLACE , BY THE ASSESSEE ABROAD (NO SUCH INCOME REPORTED IN INDIA) AND, AT ANO THER, THROUGH THEIR COMPANIES, FROM THEIR BUSINESS OPERATIONS MAINLY IN INDIA. BOTH THE ASSESSEE AND KT BEING TAX RESIDENTS IN INDIA FOR THOSE YEARS, WITH THEIR PROFIT SHARING RATIO - FROM THEIR JOINT VENTURE, BEING CLEARLY DEFINED, THE AMOUNT OUGHT TO HAV E BEEN, AND WOULD THEREFORE HAVE BEEN, WHERE SO, RETURNED FOR THOSE YEARS BY THE JOINT VENTURE COMPANY/ENTITY . AS ALSO THE INCOME, CLAIMED AS EARNED BY THE ASSESSEE FROM THE SAID COMPANIES, WHICH ASSUMES THE CHARACTER OF HIS PERSONAL INCOME. MUCH LESS, THE SAME FINDS NO REFERENCE IN THE ACCOUNTS OF ANY OF THE COMPANIES. WHAT ARE THEIR BUSINESSES, STATED TO BE CARRIED ON MAINLY IN INDIA, AND HOW DID IT RESULT IN ACCUMULATION OF FUNDS ABROAD ? IS THERE ANY LINK BETWEEN THE TWO IDENTICAL PROFITS? HOW IS THE SHA RE OF KT, AT 50%, WORK ED TO USD 200M? IS THERE ANY CONTEMPORANEOUS PROOF OF EARNING OF PROFITS, OR OF THEIR YIELDING FURTHER RETURNS, EITHER IN INDIA OR ABROAD? HOW HAS THE QUANTUM BEEN WORKED OUT, SUGGESTING MAINTENANCE OF ELABORATE ACCOUNTS. THAT, DESPI TE SO, THE TWO DID NOT SETTLE ACCOUNTS, OR EVEN APPROPRIATE THEIR RESPECTIVE SHARE IN ACCOUNTS, OR EVEN OTHERWISE SIGNIFY THE SAME, MUCH LESS RETURN OR REPORT THE SAME TO THE COMPETENT AUTHORITIES IN THE RELEVANT JURISDICTIONS, FOR OVER TWO DECADES. IT CAL LS FOR A COMPLETE AND WILLING SUSPENSION OF THE SENSE OF REALITY TO ACCEPT THE STATEMENT AT FACE VALUE . IN FACT, KT, PER HIS WRITTEN NOTES (APB - 5, PGS. 918 - 919) HIMSELF STATES THAT THE SAID DOCUMENT IS FABRICATED, AND THAT HE CAME TO KNOW HAK ONLY IN 1994. THERE IS NO 21 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) GAINSAYING THAT THE ENTIRE ENDEAVOUR, WHICH SHOULD UNDER NORMAL CIRCUMSTANCES YIELD A HOST OF EVIDENCES OR TRAIL, IS SANS ANY IN THE PRESENT CASE, VIZ. AS TO THE JOINT VENTURE OR ANY BUSINESS OPERATIONS UNDERTAKEN, THE NATURE OF WHICH IS ITSEL F UNSPECIFIED, YET, PROFITS WERE EARNED THERE - FROM, TRANSMITTED AND INVESTED - AS IT APPEARS, ABROAD, ALL WITHOUT ANY EVIDENCE. AND ALL THAT HAS BEEN RETAINED BY BOTH THE PARTIES, OR SURVIVES, IS THE A GREEMENT DATED 07/8/2001 ! EVEN IF THEREFORE IT IS SHO WN BY THE ASSESSEE THAT THE TIS FOR USD 200M ARE IN PURSUANCE OF THE AGREEMENT DATED 07/8/2001, THE SOURCE THEREOF AS BEING PROFITS EARNED TO THAT OR WHATEVER EXTENT, IN THE PAST, SHALL REQUIRE BEING SHOWN OR REASONABLY PROVED, FOR IT TO BE ACCEPTED. THE N, AGAIN, IS THE QUESTION OF AVENUES WHERE THE PROFITS WERE INVESTED, IN INDIA OR ABROAD, OR PARTLY IN ONE AND PARTLY IN ANOTHER, AND ALSO THE RETURNS FETCHED DURING THE INTERVENING YEARS. 30.5 THE MATTER, ACCORDINGLY, FOR BOTH THE SUMS, I.E., USD 140.5 MILLION (FOR WHICH THE TWO TI/S DATED 07.11.2002 HAVE BEEN FOUND), AS WELL AS FOR THE BALANCE, IS RESTORED TO THE FILE OF THE ASSESSING AUTHORITY FOR ADJUDICATION AFRESH, WITH OBSERVATIONS AND DIRECTIONS AS CONTAINED AT PARA 12 AND, AS THE CASE MAY BE, PAR A 8 OF THIS ORDER. WE MAY FURTHER ADD THAT THERE IS NOTHING TO SHOW THAT ANY TI WAS PROPOSED FOR AN AMOUNT OF USD 50 MILLION, WHICH IS STATED TO BE FOR PERSONAL REQUIREMENTS (APPEARING AT SR. NO. 7 OF THE TABLE). THE ADDITION TOWARD THE SAME IS DELETED . TW O, THE PAYMENT AS LISTED AT SR. NO. 6 OF THE TABLE, BEING IN RELATION TO AN AGREEMENT DATED 18.7.2001, DUE TO BE PAID, HAS BEEN ALSO NOTED BY US FOR A.Y. 2002 - 03 (VIDE PARA 22(B) OF THIS ORDER). WITHOUT DOUBT, THE SAME BEING IN RESPECT OF A SINGLE PAYMENT, COULD, EVEN ASSUMING SO, BE BROUGHT TO TAX FOR EITHER YEAR. THE A.O., WHO HAS ADDED THE PURCHASE AMOUNT AS WELL AS QUA PAYMENT IN ITS RESPECT, SHALL HAVE REGARD TO THIS ASPECT. WE DECIDE ACCORDINGLY, AND THE ASSESSEES GROUND IS PARTLY ALLOWED AND PARTLY ALLOWED FOR STATISTICAL PURPOSES. THE T RIBUNAL DID NOT, FOR THE REASONS STATED THEREIN, ACCEPT THE TRUTH OF THE A GREEMENT DATED 0 7 /8/ 2001, STATED AS A FABRICATED AND PLANTED DOCUMENT BY K T HIMSELF, AND THAT THE REAL FACTS OF THIS DOCUMENT BE ASCERTAINED (APB - 5, PG. 922). IT THOUGH ADMITTED THE TRANSFER INSTRUCTION/S , COVERED U /S. 292 - C. THAT IS, S AW THE TWO AS SEPARATE AND DISTINCT, DECOUPLING THEM, SO THAT THE APP E L LAN T WAS REQUIRED TO EXPLAIN THE TI, INCLUDING THE BASIS THEREOF. THE SAME SHALL HOLD EQUA LLY FOR THE TRANSFEREE AS WELL, AS DISCUSSED IN THE CASE OF K T (SUPRA) (PARA 7 ). THIS LEAVES US WITH THE 22 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) ASSESSEES CONTENTION THAT, EVEN SO, THE BANK ACCOUNT BELONGS TO K T AND, THEREFORE , THE AMOUNT COULD NOT BE A SSESSED AS INCOME IN HER HANDS. CHANDRIKA , AS STATED , IS JUST A NICKNAME OR THE TITLE OF THE AC COUNT, WHICH IN ANY CASE DOES NOT BE AR ANY DEPOSIT/ S . SURELY, INCOME CAN BE TAXED ONLY ON THE RIGHT PERSON, AND EVEN ITS BEING TAXED IN THE HANDS OF ANOTHER IS NO BAR FOR IT BEING BROUGHT TO TAX IN HAN DS OF THE RIGHT PERSON. THE FACTS OF THE CASE SHALL ACCORDINGLY WILL HAVE TO BE EXAMINED WITH A VIEW A S CERTAIN THE APPLICABILITY OF TH I S PRINCIPL E . THERE IS, TO BEGIN WITH, NO EVIDENCE TO SUGGEST IT TO BE THE BANK ACCOUNT OF K T , IN WHICH CASE IT WOULD CERT AINLY BE A CASE OF THE R EVENUE P U RS U ING THE WRONG PERSON. THE TI CLEARLY STATES THE BENEFICIARY S ACCOUNT NUMBER AND NAME. THERE IS NOTHING TO INDICATE OF IT BEING A NICKNAME OR TITLE. EVEN WHERE SO, THE NICKNAME IS ONLY PRESUMABLY OF THE BENEFICIARY. THE SAFE - KEEPING ACCOUNT STATEMENT (FOR THE PERIOD 1 / 7 / 2001 28 /12/ 2006/APB 5 , PGS . 8 83 - 913), ALSO REFERRED TO IN THE REMAND REPORT DATED 4 /2/ 2010 (APB 2, PGS . 294 - 295), MENTIONS THE NAME OF THE ACCOUNT HOLDER AS WELL AS OF THE CUSTOMER, AS CHANDRIKA, THE A SSESSEES INITIAL NAME . H OW WOULD, THEN , ONE MAY ASK, THE R EVENUE COME TO THE CONCLUSION THAT IT IS THE K T S ACCOUNT? UNLESS, THAT IS, HE OR HIS WIFE, WHO DENIED ANY KNOWLEDGE OF THE TRANSACTION/S OR OF HAVING ANY FOREIGN BANK ACCOUNT, HAD SPOKE N THE TRUTH , EXPLAINING THE TRANSACTION . THEN, BY LETTER DATED 16 /1/2 009, THE ASSESSEE SEEKS STATEMENT OF THE SAID ACCOUNT, SINCE INCEPTION, FROM THE B ANK (APB 5 , PGS . 88 0 - 881 ), POSTING ANOTHER REMINDER T HERETO ON 15 /2/ 2009 (THESE LETTERS ARE A PART OF THE R EVENUES RECORD). HOW, THEN, CAN THE ASSESSEE CLAIM OF BEING NOT AWARE OF OR NOT HOLDING ANY FOREIGN BANK ACCOUNT? HOW, AGAIN , HER CLAIM OF THE SAID ACCOUNT BEING OF K T BE ACCE PTED ? TRUE, THERE ARE SIMILAR LETTERS (TO THE BANK) BY K T AS WELL (APB - 5, PGS. 878 - 879), BUT WHAT DOES THAT PROVE ? ONLY THAT THE TWO WERE IN KNOWLEDGE OF THE SAID ACCOUNT, SINCE ITS INCEPTION, AS WELL AS OF BEING ASSOCIATED THEREWITH, WITH THE ASSESSEE HAVING PROPRIETARY INTEREST THEREIN. SURELY, IT IS NOT THE K T S BENAMI AC COUNT . THE PROVISIO N OF SEC . 106 OF THE E VIDENCE A CT , 1872 SHALL APPLY IN THE FACTS AND CIRCUMSTANCES OF THE CASE. FURTHER, WHY , WE WONDER, DID 23 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) NOT BE ASSESSEE STATE SO UPON BEING CONFRONTED THERE - WITH IN THE ASSESSMENT PROCEEDINGS ? SECTION 114, I LL . ( G ) OF THE E VIDENCE A CT, WOULD ENTITLE THE R EVENUE TO PRESUME THAT THE INFORMATION WITHHELD WOULD BE ADVERSE TO THE ASSESSEE. APP ARENT IS TO BE REGARDED AS REAL UNLESS SHOWN OTHERWISE, AND THE ONUS FOR THE SAME IS ON THE PERSON CLAIMING OTHERWISE. WHY, EVEN IF KT WERE TO BE THE AC COUNT HOLDER, MEN HANDLING THE FINANCES OF THEIR WOMEN F OLK IS NOT UNCOMMON IN INDIAN SOCIETY , AND IS RATHER A COMMON FEATURE OF THE BUSINESS (IN THE UNORGANIZED SECTOR) . THE ASSESSEE AS THE BENEFICIARY OF THE ACCOUNT HAS PROPRIETARY INTEREST THEREIN. IN F ACT, BOTH ASSESSEE AND K T DENIED HAVING ANY FOREIGN BANK ACCOUNT, EVEN DEPOSING TO THAT EFFECT ON OA TH BEFORE THE INVESTIGATING AUTHORITIES (OF THE R EVENUE), EVEN AS NOTED IN THE REMAND REPORT SUPRA. THEY NOW TURN - AROUND TO FURNISH A LIST OF EIGHT FOREIGN BANK ACCOUNTS, CLAIM ED AS BELONGING TO THEM, ESTABLISHING PE RJURY . THE HONBLE A PEX C OURT IN CHUHARMAL VS . CIT [ 1988 ] 172 ITR 250 (SC) CLARIFIED THAT WHEN IT IS SAID THAT THE RIGOUR OF THE RULES OF EVIDENCE AS CONTAINED IN THE EVIDENCE ACT ARE NOT APPLICAB LE TO TAX PROCEEDINGS, IT DOES NOT MEAN THAT WHEN THE TAXING AUTHORITIES WERE DESIROUS OF INVOKING THE PRINCIPLES OF THE EVIDENCE ACT IN PROCEEDINGS BEFORE THEM, THEY WERE PREVENTED FROM DOING SO. THE ASSESSEE, IN OUR VIEW, THUS CANNOT BE NOW ( I.E., BEFORE US) BE ALLOWED TO TAKE A STAND THAT IT IS NOT SHE , BUT HER HUSBAND, K T , TO WHOM THE ACCOUNT BELONGS TO, W ITH SHE BEING ONLY THE TITLE - HOLDER. THE PRINCIPL E OF TAX BEING IMPOSED ON THE RIGHT PERSON IS TRUE ENOUGH, BUT THE DISPUTE HERE IS OF WHO, IN THE FAC TS AND CIRCUMSTANCES THE CASE, IS TO BE REGARDED AS THE RIGHT PERSON , THE NAMED BENEFICIARY (AN D ACCOUNT HOLDER) OR ANOTHER. THE ASSESSEE CAN DEFINITELY BE REGARDED AS THE RIGHT PERSON. HERE IT IS ALSO BE CLARIFIED THAT THE ASSESSEES CLAIM OF BEING AN OUTSIDER, AND NOWHERE INVOLVED IN EITHER THE A GREEMENT DATED 0 7 /8/ 2001 BETWEEN HA K AND K T (OR WAS NOT AWARE OF IT), OR THEIR BUSINESS RELATIONSHIP OR VENTURES, BECOMES AN IRRELEVANT CONSIDERATION CONSIDERING THAT WE HAVE ALREADY IN THE CASE OF HA K ( SUPRA ) HELD THE SAID A GREEMENT TO BE A RUSE; K T HIMSELF DE NOUNCING IT. THE MUCH TOUTED BUSINESS 24 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) RELATIONSHIP/INTEREST IS SHROUDED IN COMPLETE MYSTERY /S ECRECY , FOR US TO GIVE ANY CREDENCE THERETO. WHAT ONLY SURVIVES IS A TRANSACTION OF TRANSFER OF FUNDS BY HAK TO THE ASSESSEES ACCOUNT, AND WHICH IS TO BE CONSIDERED ON THE ANVIL OF SECTION 69A. WE HAVE ALREADY FOUND THE PROVISION TO BE APPLICABLE EVEN IN THE CASE OF THE TRANSFEREE IN - AS - MUCH AS THE PRESUMPTION WOULD BE OF THE FUNDS HAVING BEEN RECEIVED (OR ENTITLED TO BE RECEIVED) ON OWN ACCOUNT. THE DECISION IN THE CASE OF TO LAR AM DAGA VS. CIT [1966] 59 ITR 6 3 2 (ASSAM), RELIED UPON BY THE ASSESSEE, HAS NO APPLICATION IN THE FACTS AND CIRCUMSTANCES OF THE CASE. IN THE FACTS OF THAT CASE, THE CREDIT BROUGHT TO TAX U / S. 68 WAS TO THE ACCOUNT OF THE ASSESSEES WIFE, IN THE BOOKS OF A FIRM IN WHICH THE ASSESSEE WAS A PARTNER. IT WAS UNDER THE SE CIRCUMSTANCES; THE WIFE ADMITTING TO THE DEPOSIT, THAT IT WAS HELD THAT THERE COULD BE NO INFERENCE OF THE SAME REPRESENTING THE ASSESSEES MONEY MERELY BECAUSE THE CREDITOR WAS HIS WIFE. THE FACTS OF THE INSTANT CASE, AS A READING OF THE FOREGOING PARAGRAPHS SHALL SHOW, ARE COMPLETELY DIFFERENT. THE MONIES STAND TRANSFERRED , OR ARE BEING SOUGHT TO BE TRANSFERRED , TO THE ASSESSEES ACCOUNT, WHO IS UNABLE TO SATISFACTORILY EXPLAIN THE NATURE AND THE SOURCE OF THE DEPOSIT OR OF HER ENTITLEMENT THERETO. THE ASSESSEE S SAID PLEA W OULD THUS BE TO NO AVAIL. ALL O THE R CONTENTIONS ARE KEPT OPEN. THE MATTER, AS IN THE CASE OF OTHER TI - BASED A D DITIONS, IS SET ASIDE TO THE FILE OF THE AO FOR FRESH DETERMINATION IN ACCORDANCE WITH LAW WITH LIKE DIRECTIONS. WE DECIDE ACCORDINGLY . 12. GD. # 6 IS QUA A DISALLOWANCE OF EXPENDITURE CLAIMED PER PROFIT AND LOSS ACCOUNT AT RS.25,855/ - A ND STANDS DECIDED VIDE PARA 9 O F THIS ORDER, ADJUDICATING GD. # 6 FOR A.Y. 2001 - 02 ; THE FACTS AND CIRCUMSTANCES AS WELL AS THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME. 25 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) A SST . Y EAR 2003 - 04 13. GD. # 5 IS QUA A DISALLOWANCE OF EXPENDITURE CLAIMED PER THE P ROFIT & L OS S A CCOUNT , AT RS.30,836/ - , A ND STANDS DECIDED VIDE PARA 9 O F THIS ORDER, ADJUDICATING GD. # 6 FOR A.Y. 2001 - 02; THE FACTS AND CIRCUMSTANCES AS WELL AS THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME. A SST . Y EAR 200 4 - 0 5 14. GD. # 5 IS TOWARD PURCHASE OF FOREIGN EXCHANGE (AT RS.74,614/ - ) FROM GLOBE FOREX, KOLKATA ON 15.1.2004 ON THE BASIS OF INFORMATION RECEIVED THERE - FROM. THE ASSESSEE HAVING NOT FILED ANY RETURN FOR THIS YEAR EITHER U/S. 139 OR SECTION 153A, THE IMPUGNED ASSESSMENT, WHICH IS THUS U/S. 1 53A R/W S. 144 (AND NOT U/S. 143(3)), IS THE ORIGINAL ASSESSMENT, WITH THIS BEING THE ONLY ADDITION, BEING ON ACCOUNT OF UNEXPLAINED EXPENDITURE U/S. 69C. THE ASSESSEES EXPLANATION, NOT ACCEPTED, IS OF THE SAME HAVING BEEN PURCHASED OUT OF HER WITHDRAWALS FOR THE YEAR, DISMISSED FOR BEING UNSUBSTANTIATED (REFER PARAS 8 AND 10 OF THE ASSESSMENT AND THE IMPUGNED ORDER RESPECTIVELY ). 15. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE RELEVANT INFORMATION REFLECTS THE MODE OF PAYMENT, ME NTIONING THE CHEQUE NUMBER AND THE BANK ON WHICH THE SAME IS DRAWN , WHICH IS (NOW) STATED TO BE THE BANK ACCOUNT OF KT (HUF). THOUGH, THUS, A TACIT ADMISSION O F THE EXPLANATION BEFORE THE REVENUE AS NOT TRUE, THERE IS BASIS FOR THE ASSESSEE TO STATE OF THE REVENUE HAVING MADE THE ASSESSMENT BY NOT APPLYING ITSELF TO THE ISSUE, DULY CONSIDERING THE MATERIAL ON RECORD. THE MATTER, ACCORDINGLY, AS WELL AS IN THE INTEREST OF JUSTICE, IS RESTORED BACK TO THE FILE OF THE A.O. TO DECIDE AFRESH IN ACCORDANCE WITH L AW , ALLOWING A REASONABLE OPPORTUNITY TO THE ASSESSEE TO STATE AND PRESENT HER CASE. WHETHER THE SAID BANK ACCOUNT OF HUF IS A REGULAR BANK ACCOUNT, DULY DISCLOSED, MAY BE A RELEVANT CONSIDERATION. WE MAY 26 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) THOUGH NOT BE CONSTRUED AS HAVING EXPRESSED ANY VIE W IN THE MATTER. THIS ALSO DECIDES GD. # 8 FOR A.Y. 2006 - 07. WE DECIDE ACCORDINGLY. A SST . Y EAR 2005 - 06 16. GD. # 5 IS QUA AN ADDITION FOR RS.1,90,874/ - ON THE BASIS OF THE WORKING OF CASH - IN - HAND WITH KT AND THE ASSESSEE FOR THREE YEARS, AS UNDER, BASE D ON SEIZED MATERIAL (PG S . 3 AND 4 OF ANNEXURE CIL - 1A DATED 05.1.2007), REVEALING AS UNDER: F. Y. 2004 - 05 RS.1,90,874/ - F.Y. 2005 - 06 RS.9,85,874/ - F.Y. 2006 - 07 RS.15,87,874/ - 17. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. WHILE THE ASSESSEE CLAIMS THE CASH TO B E ACCOUNTED, THE REVENUE STATES OF IT BEING NOT SO PROVED. BEFORE US, REFERENCE WAS MADE TO BALANCE - SHEET S AS ON 31.3.2005, 31.3.2006 AND 31.3.2007, REFLECTING CASH BALANCE OF RS.1,90,874/ - (APB - 7/PG. 1274); RS.5,64,374/ - (APB - 7/PG. 1331); AND RS.6,23,752/ - (APB - 7/PG. 134 1 ) RESPECTIVELY. WHETHER THESE BALANCE - SHEET S WERE FURNISHED ALONG WITH THE RESPECTIVE RETURNS OR NOT, IS NOT CLEAR. THE ADDITION S ARE BASED ON SEIZED MATERIAL , SO THAT BOTH THE WITHDRAWAL AND DEPOSIT OF CASH WO ULD BE REQUIRED TO BE EXPLAINED/VERIFIED. THEN, AGAIN, IT IS ONLY THE UNEXPLAINED CASH ARISING FOR EA CH YEAR THAT CAN BE SUBJECT TO ASSESSMENT AND , FURTHER , WOULD STAND TO BE AV AILABLE FOR OTHER APPLICATIONS/ EXPENDITURE, INCLUDING FOR HOUSEHOLD/PERSONAL P URPOSE S . THE MATTER, AS IN THE CASE OF KT (SUPRA) (REFER PARA 49) , IS RESTORED TO THE FILE OF THE A.O. FOR FRESH CONSIDERATION , ALLOWING THE ASSESSEE AN OPPORTUNITY TO ESTABLISH HER CLAIMS WITH VERIFIABLE DATA. THIS ALSO DECIDES GD. # 7 AND GD. # 5 FOR A.Y S. 2006 - 07 AND 2007 - 08 RESPECTIVELY. WE DECIDE ACCORDINGLY. 1 8 . GD. # 6 IS QUA A DISALLOWANCE OF EXPENDITURE CLAIMED PER THE P ROFIT & L OSS A CCOUNT , AT RS.3,64,462/ - AND STANDS DECIDED VIDE PARA 9 O F THIS ORDER, ADJUDICATING GD. # 6 FOR A.Y. 2001 - 02; THE FACTS AND CIRCUMSTANCES, AS WELL AS THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME. 27 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) A SST . Y EAR 2006 - 07 1 9 . GD. # 5: THIS RELATES TO AN ADDITION QUA 5 TIS ISSUED BY HAK (AGGREGATING TO USD 8.48 BILLION/INR 38,135.14 C RORES ) IN DECEMBER, 2005, IN RESPEC T OF HIS ACCOUNT NUMBER 206 - 794.786 WITH UBS AG , ZURICH , TO THE BENEFICIARY ACCOUNT (# 0835 - 357902 - 3) WITH CREDIT SUISSE PRIVATE BANKING, ZURICH . THE SAME WERE FOUND IN THE PEN DRIVE S SEIZED FROM THE KOLKA TA RESIDENCE OF THE ASSESSEE AND HER HUSBAND, KT. T HE HARD COPY THEREOF, FORMING PART OF THE SEIZED MATERIAL, IS TABULATED AS UNDER: NO. REFERENCE ANNEXURE/PAGE NO. DATE REMITTANCE REQUEST VIA TELEGRAPHIC TRANSFER VALUE DATE RELATED PARTICULARS GIVEN IN THE DOCUMENT 1 A - 6/6 -- TRIPLE A UBS BONDS OF THE VALUE OF US $ 1.7 BILLION 14.12.05 BENEFICIARY: ACCOUNT NO. 0835 - 899786 - 7 (BLACK PRI N CE) ATTEN: MR. REMO MAURER ACCOUNT WITH: CREDIT SUISSE PRIVATE BANKING ZURICH, PARADE PLATZ 8, CH 8070 ZURICH, SWIFT CODE: CRESCHZZ80A 2 A - 7/11 19.12.05 TRIPLE A UBS BONDS OF THE VALUE OF US $ 1.695 BILLIONS 06.01.06 BENEFICIARY: ACCOUNT NO. 0835 - 357902 - 3 (CHANDRIKA) ATTEN: MR. REMO MAURER PHONE - 44 33 29 041) ACCOUNT WITH: CREDIT SUISSE PRIVATE BANKING ZURICH, PARADE PLATZ 8, CH 8070 ZURICH, SWIFT CODE: CRESCHZZ80A 3 A - 7/12 19.12.05 TRIPLE A UBS BONDS OF THE VALUE OF US $ 1.695 BILLION 06.01.06 BENEFICIARY: ACCOUNT NO. 0835 - 899786 - 7 (BLACK PRINCE) ATTEN: MR. REMO MAURER PHONE - 44 33 29 041) ACCOUNT WITH: CREDIT SUISSE PRIVATE BANKING ZURICH, PARADE PLATZ 8, CH 807 0 ZURICH, SWIFT CODE: CRESCHZZ80A 4 A - 7/10 19.12.05 TRIPLE A UBS BONDS OF THE VALUE OF US $ 1.695 BILLION 04.01.06 BENEFICIARY: ACCOUNT NO. 0835 - 357902 - 3 (CHANDRIKA) ATTEN: MR. REMO 28 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) MAURER PHONE - 44 33 29 041) ACCOUNT WITH: CREDIT SUISSE PRIVATE BANKIN G ZURICH, PARADE PLATZ 8, CH 8070 ZURICH, SWIFT CODE: CRESCHZZ80A 5 A - 7/20 19.12.05 TRIPLE A UBS BONDS OF THE VALUE OF US $ 1.695 BILLION 04.01.06 BENEFICIARY: ACCOUNT NO. 0835 - 899786 - 7 (BLACK PRINCE) ATTEN: MR. REMO MAURER ( PHONE - 44 33 29 041) ACCOUN T WITH: CREDIT SUISSE PRIVATE BANKING ZURICH, PARADE PLATZ 8, CH 8070 ZURICH, SWIFT CODE: CRESCHZZ80A AS EVIDENT , THESE INSTRUCTIONS ARE: A) A DDRESS ED TO UBS AG, POST FACH 8098 ZURICH; B) I SSUED BY HASSAN ALI KHAN (HAK), IN DECEMBER, 2005; AND C) R EFER TO HIS A CCOUNT NO. 206 - 794.786 WITH UBS AG, ZURICH. THE IDENTITY OF MR. REMO MAURER IS NOT IN DOUBT. HE WAS IN FACT THE SAME BANK OFFICIAL OF WHOM KT COMPLAINED OF CREATING HURDLES IN THE PROGRESS OF THE WORK OF HAK IN HIS E - MAIL ( LETTER ) DATED 25.10.2006 TO ONE , RAVINDERJI (DOWNLOADED ON 08.1.2007 DURING THE COURSE OF SEARCH). I N VIEW OF THE REVENUE, KT AND HAK WERE ENGAGED IN MONEY LAUNDERING, TRANSFERRING FUNDS TO , AMONG OTHERS, THE ASSESSEES ACCOUNT. BOTH THE ACCOUNTS, TITLED B LACK P RINCE AND CHANDRIKA W ERE CONSIDERED BY THE REVENUE AS BELONGING TO THE ASSESSEE, I.E., OF HER BEING THE BENEFICIARY. KT, VIDE HIS LETTER DATED 05.12.2008, SUBMITTED IN THE ASSESSMENT PROCEEDINGS, REPLIED DENYING ANY KNOWLEDGE, FURTHER STATING THAT HE WAS NOT INVOLVED IN ANY SU CH (MONEY LAUNDERING) ACTIVITIES AND, FURTHER, THAT CHANDRIKA DOES NOT REFER TO OR MEAN CHANDRIKA TAPURIAH. THE ASSESSEE, VIDE HER REPLY TO THE A.O. OF EVEN DATE , ADVERT ED TO THE REPLY OF HER HUSBAND (KT) , WHICH REPLIES WERE CONSIDERED AS SELF - SERVING BY THE REVENUE. IN APPEAL, THOUGH THE ASSESSEE FURNISHED A COPY OF THE SAFE - KEEPING ACCOUNT 29 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) (# 0835 - 357902 - 3) FOR THE RELEVANT YEARS ( 01.7.2001 TO 28.12.2006/APB - 5, PGS. 883 - 913), THE SAME WAS NOT F OUND CONVINCING BY THE LD. CIT( A ); THE SAME BEARING NO DEB ITS OR CREDITS A ND, A GAIN, CARRYING A DISCLAIMER OF BEING NOT SUITABLE FOR TAX PURPOSE S . THE ADDITION, SINCE CONFIRMED, THE ASSESSEE IS IN FURTHER APPEAL. 20 . WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE DOCU MENTS HAVE BEEN FOUND I N SEARCH FROM THE ASSESSEES (THE PERSON SEARCHED) OWN RESIDENCE (COVERED UNDER SEARCH) (AS ANNEXURE - 7 TO PANCHANAMA DATED 06.1.2007). AS SUCH, THE PRESUMPTION OF S. 292C THAT THESE ARE TRUE , AND PERTAIN TO THE ASSESSEE , CANNOT BE FAULTED. WHY ELSE WO ULD , ONE MAY AS K , THE ASSESSEE RETAINS T HEM ? THE ASSESSEE IN FACT IS AN EDUCATED LADY , FREQUENTLY ACCOMPANYING HER HUSBAND ON FOREIGN TOURS. THEIR BUSINESS IN TERESTS, AS AFORE - NOTED, ARE SHROUDED IN MYSTERY , EVEN AS CONSIDERABLE MATERIAL TOWARD FINA NCIAL ASSETS AND/OR INVEST I BLE RESOURCES , HAS BEEN FOUND IN SEARCH, THE MATERIAL TRANSMITTED BY ED, WHICH ALSO JOIN ED THE SEARCH OPERATION S WITH THE D EPARTMENT, ALSO BOTH COMPLIMENTING AND SUPPLEMENTING THE SAME. WE HAVE ALREADY , WHILE DECIDING GD.5 FOR A.Y. 2002 - 03, CLARIFIED THAT THE ASSESSEES PLEA OF BEING NO T AWARE OF THE TRANSACTION /S OR OF ACCOUNT (# 0835 - 357902 - 3) AS BEING OF KT, SHALL NOT HOLD. THERE IS NO SUCH PLEA QUA THE OTHER ACCOUNT, CODE NAMED BLACK PRINCE. THE QUESTION IS NOT WHETHER THE ASSESSEE (OR , FOR THAT MATTER , KT AND HAK) WERE INVOLVED IN MONEY LAUNDERING TRANSACTIONS OR NOT. THERE IS MATERIAL ON RECORD TO SHOW THAT SUMS IN THE FORM OF UBS BONDS WE RE TRANSFERRED FROM AN ACCOUNT WITH UBS, ZURICH TO AN ACCOUNT (NU MBER SPECIFIED) WITH CREDIT SUIS SE PRIVATE BANKING, ZU RICH, OF WHICH THE ASSESSEE IS THE BENEFICIARY, I.E., HAS PROPRIETARY INTEREST. UNLESS, THEREFORE, EXPLAINED SATISFACTORILY AS TO ITS NATURE AND SOURCE , THE AMOUNT (VALUE OF THE UBS BONDS) TRANSFERRED ; THE VALUE DATES FALLING DURING T HE RELEVANT PREVIOUS YEAR, WOULD STAND TO BE DEEMED AS THE ASSESSEES UNEXPLAINED INCOME U/S. 69A. THAT IS THE FRAMEWORK UNDER WHICH THE TRANSACTION/S IS, IN OUR VIEW, REQUIRED TO BE 30 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) VIEWED/CONSIDERED, AND HAS BEEN BY US. THE REVENUE IS NOT, WHERE IT SEEKS TO INVOKE THE PROVISION OF , OR FINDS SECTION 69A (OR OTHER PROVISION OF THE RELEVANT CHAPTER) AS APPLICABLE, OBLIGED TO LOCATE THE EXACT SOURCE OF THE CREDIT; THE MANNER OF ITS EARNING , ETC. THE CHARGE OF MONEY LAUNDERING OR REFERENCE TO AN EMAIL BY ONE , RALPH GANTENB EI N, DIRECTOR OF CREDIT SUISSE, ZU RICH TO KT, TRANSMITTING THE TI S, WHICH ARE STATED TO BE IN TERMS OF A DISCUSSION BETWEEN THEM , IS SECONDARY. THE SAME WOULD BE RELEVANT AND MAY ASSUME SIGNIFICANCE HAD THE ASSESSEE OR KT (WHO DENIED ANY KNOW LEDGE THEREOF) EXPLAINED THE TRANSACTION /S RESULTING IN THE IMPUGNED TRANSFER S . THE MATTER, BOTH IN THE CASE OF HAK AND KT , STAND S S ET ASIDE FOR FRESH DETERMINATION WITH A VIEW TO ALLOW AN OPPORTUNITY TO EXPLAIN THE TRANSACTIONS. WE HAVE EXPLAINED, WITH RE FERENCE TO THE DECISION BY THE HON'BLE JURISDICTIONAL HIGH COURT IN AHMEDABAD ELECTRI CITY CO. LTD. ( SUPRA ), RENDERED RELYING ON SEVERAL DECISIONS BY THE HONBLE APEX COURT , HELD THAT THE APPELLATE JURISDICTION OF THE TRIBUNAL RANGES OVER THE WHOLE ASSESSME NT , AND IS NOT NECESSARILY CONFINED TO THE MATTERS RAISED BY THE ASSESSEE OR TO THE POINTS DECIDED BY THE FIRST APPELLATE AUTHORITY, WHICH MAY BE CHALLENGED IN APPEAL BEFORE IT (REFER PG. 368 C & D OF THE REPORTS ). T HE REVENUE IS AT LIBERTY TO ADOPT ANY CO URSE AS DEEMED PROPER IN LAW, WHERE AND TO THE EXTENT IT FINDS THE ASSESSEES EXPLANATION, WHICH MAY NOW BE FURNISHED IN THE SET ASIDE PROCEEDINGS, AS ACCEPTABLE OR , AS THE CASE MAY BE , UNEXPLAINED, I.E., CONSISTENT WITH ITS FINDINGS. WE MAY FURTHER A D D TH AT WE ARE CONSCIOUS THAT OF THE TWO ACCOUNTS, ONE IS TITLED CHANDRIKA AND THE OTHER BLACK PRINCE. EVEN THOUGH THERE IS NO MENTION OF THE ASSESSEES NAME IN THE SECOND CASE , THE VERY FACT OF THE TRANSFER BEING BY HAK/FROM HAK CONTROLLED ACCOUNT , FOUND F ROM THE ASSESSEES RESIDENCE, WOULD ONLY IMPLY OF IT PERTAINING (BELONGING) TO THE ASSESSEE OR, AT BEST, HER HUSBAND, KT (REFER S. 292C). THE SAID INFERENCE, THEREFORE, CANNOT IN LAW BE FAULTED WITH. WE, ACCORDINGLY, AS FOR THE OTHER TI BASED ADDITIONS IN THE CASE OF ASSESSEE (REFER PARA S 8 AND 11 ) , AS WELL AS OTHER ASSESSEES, RESTORE THE MATTER BACK TO THE FILE OF THE A. O . WITH LIKE DIRECTIONS FOR FRESH DETERMINATION IN ACCORDANCE WITH LAW. THE 31 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) ASSESSEE, NEEDLESS TO ADD, AND EVEN AS ASSURED BY THE LD. C OUN SEL, EXTEN D FULL CO - OPERATION TO THE REVENUE , WHOSE ENDEAVOR MUST BE TO ENFORCE THE LAW, BRIN G ING FULL FACTS ON RECORD. IT IS THIS, IT MAY BE APPRECIATED, THAT GUIDES AND INFORMS OUR DECISION FOR THE SET ASIDE. WE DECIDE ACCORDINGLY. 2 1 . GD. # 6 IS QUA AN ADDITION FOR RS.8,25,000/ - , BASED ON SEIZED MATERIAL, TOWARD EXPENSES FOR INTERIOR DESIGNING , AS PER THE CHARGES RAISED BY THE CONSULTANTS, SPAND I D DE SIGNERS PVT. LTD., OKHLA, NEW DELHI ON THE ASSESSEE VIDE THEIR INVOICE/COMMUNICATION DATED 31.3.2006. T HE SAME DELINEATES THE SCOPE OF THE WORK ; THE PART S OF THE RESIDENCE TO BE COVERED, ALSO STATING THE TIME SCHEDULE OVER WHICH THE TOTAL AMOUNT SHALL BE REQUIRED TO BE PAID TO IT ALONG THE PROGRESSION OF THE WORK, STA R T ING WITH RS.1 LAC AS AN ADVANCE, TO RS .25,000/ - ON COMPLETION (APB - 7, PG. 1275). THE ASSESSEES CASE IS OF THE WORK, I.E., TOWARD RENOVATION OF THE HOUSE PROPERTY AT 10A, PRITHVIRAJ ROAD, NEW DELHI, HAVING NOT COMMENCED DUE TO PAU CITY OF FUNDS, WHILE THE REVENUES CASE RESTS ON SECTION 292C OF THE ACT. BEFORE US, THE ASSESSEE CLAIMS THAT THE PROPERTY DOES NOT BELONG TO HER , BUT TO TWO OTHER GROUP CONCERNS, R. M. INVESTMENTS AND TRADING PVT. LTD. AND ROBERTS , MCLEAN INVESTMENTS P. LTD. 2 2 . WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE EXPENDITURE ON RENOVATION OF THE AFORE - SAID PROPERTY HAS ALSO BEEN THE SUBJECT MATTER OF ADDITION (AT RS.52.45 LACS) IN THE CASE OF KT (VIDE GD. # 5 FOR A.Y. 2005 - 06); THE SEARCH MATERIAL, IN EITHER CASE, HAVING BEEN FOUND FROM THE IR KOLKATA R ESIDENCE. THE SAME STANDS DISCUSSED AT PARAS 58 - 59 OF THE TRIBUNALS ORDER IN THE CASE OF KT (SUPRA) , CONFIRMING THE ADDITION, ALBEIT AFTER EXCLUDING THE DUPLICATION, I.E., A T RS.37.38 LACS, DEALING WITH LIKE CONTENTIONS AS RAISED HEREIN. THE ADDITION IN T HE HANDS OF THE ASSESSEE, AS WE GATHER, STANDS MADE ON THE GROUND THAT THE INVOICE IS ADDRESSED TO HER. THE SAME WOULD UNDERSTANDABLY BE ONLY ON THE PERSON DEALING WITH THE CONSULTANTS/ CONTRACTORS. THE SAME THOUGH INDICAT ES OF THE ASSESSEE BEING ALSO ACTI VELY INVOLVED IN 32 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) THE RENOVATION PROJECT OF THEIR SAID HOUSE PROPERTY, DOES NOT NECESSARILY IMPLY OF THE PAYMENT BEING MADE BY HER , OR EVEN OF ANY PAYMENT HAVING BEEN MADE . THOUGH NORMALLY SUCH PAYMENT WOULD BE MADE BY THE HUSBAND OR BY HIS HUF, THERE C AN B E NO HARD AND FAST RULE IN THE MATTER. FURTHER, THE RETENTION OF THE DOCUMENT ONLY CONFIRMS AN AGREEMENT OVER THE RATE QUOTED, STATED TO BE THE FINAL RATE . THERE IS NO INDICATION OF PAYMENT , WHICH EVEN WHERE SO, WOULD IMPLY A PAYMENT OF RS.1 LAC, I.E., AS AN ADVANCE. THE INTERIOR WORK WOULD COMMENCE ONLY LATE R, I.E., AFTER 31.3.2006 , AND THE PAYMENTS WOULD STAND TO BE MADE SUBSEQUENTLY , WITH THE PROGRESSION OF THE WORK. IN FACT, THE PAYMENT FOR CIVIL AND ELECTRICAL WORK IS ALSO STATED FOR BEING UNDERTAKEN D URING FEBRUARY AND MARCH, 2006, ONLY UPON COMPLETION OF WHICH THIS WORK WOULD COMMENCE. ACCORDINGLY, WE FIND NO BASIS TO HOLD OF ANY PAYMENT BEING MADE DURING THE CURRENT YEAR, SAVE RS.1 LAC ON THE ACCEPTANCE OF THE RATE , BY WAY OF AN ADVANCE AND, ACCORDIN GLY, DIRECT FOR DELETION OF THE BALANCE. WE DECIDE ACCORDINGLY , AND THE ASSESSEE GETS PART RELIEF FOR RS.7.25 LACS. 2 3 . GD. # 7 IS TOWARD AN ADDITION FOR UNEXPLAINED CASH - IN - HAND (RS.9,85,874/ - ) BASED ON THE SEIZED MATERIAL. THE SAME STANDS DECIDED VIDE PARA S 16 - 17 OF THIS ORDER, ADJUDICATING GD. # 5 FOR A.Y. 2005 - 06, THE FACTS AND CIRCUMSTANCES AND THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME. 2 4 . GD. # 8 IS IN RESPECT OF AN ADDITION FOR RS.74,614/ - ON ACCOUNT OF PURCHASE OF FOREIGN EXCHANGE FROM GLOBE FOREX, KOLKATA ON THE GROUND OF IT BEING UNEXPLAINED. THE SAME STANDS DECIDED VIDE PARA S 14 - 15 OF THIS ORDER, ADJUDICATING GD. # 5 FOR A.Y. 2004 - 05, THE FACTS AND CIRCUMSTANCES AND THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME. 2 5 . GD. # 9 IS Q UA AN ADDITION TOWARD UNEXPLAINED TRAVEL EXPENDITURE, AT RS.2,05,778/ - , INFORMATION IN RESPECT OF WHICH WAS OBTAINED FROM TRAVEL HUB P. LTD., KOLKATA; THE BOOKING DATES (OF JOURNEYS) FALLING DURING THE RELEVANT PREVIOUS YEAR. THE 33 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) SAME CAME TO BE ADDED AND CONFIRMED IN THE ABSENCE OF ANY SATISFACTORY EXPLANATION AS TO THE SOURCE OF THE SA ID, ADMITTED EXPENDITURE BY THE ASSESSEE. THE ASSESSEE BEFORE US STATES OF THE EXPENDITURE BEING DULY REFLECTED IN THE REGULAR ACCOUNTS OF KT AND KT (HUF) , ALSO ADVERTING TO SIMILAR ADDITIONS IN CASE OF HER HUSBAND, KT. THE MATTER, VERY CLEARLY, REQUIRES BEING RESTORED TO THE FILE OF THE A.O. TO ALLOW THE ASSESSEE AN OPPORTUNITY TO ESTABLISH HER CLAIMS OF THE EXPENDITURE CLAIMED TO BE INCURRED THROUGH CHEQUES, AS HAVING BEEN DULY DISCHARGED FROM THE REGULAR/ACCOUNTED/DISCLOSED SOURCES. THIS ALSO DECIDES GD. # 6 FOR A.Y. 2007 - 08. WE DECIDE ACCORDINGLY. 2 6 . GD. # 10 IS TOWARD THE DISALLOWANCE OF EXPENDITURE IN THE SUM OF RS.4,46,428/ - , CLAIMED PER THE PROFIT AND LOSS ACCOUNT I N - AS - MUCH AS THE BOOKS OF ACCOUNTS, VOUCHERS, DULY CALLED FOR, WERE NOT PRODUCED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AND STOOD CONFIRMED PER THE SAME REASON. BEFORE US, THE LD. AR WOULD, WITH REFERENCE TO THE ASSESSEES RETURN AND THE ACCOMPAN YING FINAL ACCOUNTS (APB - 2, PGS. 289 - 292), SHOW THAT OF THE SAME ONLY A SUM OF RS.52,975/ - HAD BEEN CLAIMED AS A DEDUCTIBLE EXPENSE , BEING INTEREST, AGAINST INTEREST INCOME OF RS.4,88,573/ - . 2 7 . WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE ASSESSEE HAS DECLARED DIVIDEND INCOME , CLAIMED AND ALLOWED TAX EXEMPT, BESIDES INVESTMENT IN CAPITAL ASSETS, INCLUDING JEWELLERY, LIABLE TO YIELD INCOME NOT FORMING PART OF THE TOTAL INCOME. CONSIDERING , HOWEVER, THE TOTALITY OF THE FACTS OF THE CASE, WE FIND THE ASSESSEES CLAIM ADMISSIBLE. ACCORDINGLY, THE ENTIRE DISALLOWANCE IS DELETED. 2 8 . GD. # 11 IS TOWARD THE CHARGE OF TAX ON SHORT - TERM CAPITAL GAIN (STCG) FOR RS.5,35,072/ - AT NORMAL RATE, I.E., AS AGAINST THE EXIGIBLE RATE OF 10%. THE SAME STOO D DISALLOWED IN THE ABSENCE OF ANY SUBSTANTIATION, THE ASSESSEE FAILING TO MAKE ANY SUBMISSIONS IN THIS REGARD EVEN BEFORE THE LD. CIT(A). 34 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) 2 9 . WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. ADMITTEDLY, NO EVIDENCE S, WHICH STAND ADDUCED BE FORE US (AT APB - 7/ PG. 1287 - 1326), WERE PRODUCED BEFORE THE REVENUE AUTHORITIES. HOW, WE WONDER, IS THEN THE AC TION OF THE REVENUE AUTHORITIES INFIRM IN LAW, LIABLE TO BE MODIFIED? IT IS NOT THE CASE OF THE ASSESSEES RETURN AND ACCOMPAN YING DOCUMENTS BEING NOT PROPERLY CONSIDER ED OR OF LACK OF PROPER OPPORTUNITY TO THE ASSESSEE TO PRESENT H E R CASE. THE ASSESSEES BALANCE - SHEET AS AT 31.3.2005 AND 31.3.2006, FILED ALONG WITH THE RETURNS FOR THE RESPECTIVE YEARS, REFLECT AN INVESTMENT IN SHARES AT RS.19.98 LA CS AND RS.13.91 LACS, INDICATING CHURNING OF SHARES, INCLUDING AS ITS APPEARS, FRESH INVESTMENTS THEREIN. WE, ACCORDINGLY, ONLY CONSIDER IT PROPER IN THE INTEREST OF JUSTICE TO ALLOW THE ASSESSEE A FINAL OPPORTUNITY TO PROVE HER CLAIMS BEFORE THE A.O. WE D ECIDE ACCORDINGLY. 30 . GD. # 12 IS TOWARD A CLAIM OF DONATION U/S. 80 - G AT RS.15,680/ - . WE ARE UNABLE TO UNDERSTAND THE BASIS OF THE ASSESSEES CLAIM; SHE HAVING BEEN ALLOWED DEDUCTION U/S. 80 - G , CLAIMED AT RS.2,65,680/ - PER HER RETURN OF INCOME, AT RS.2 ,50,000/ - , I.E., @ 50% ON THE DONATION OF RS.5 LACS. NO DONATION, APART FROM RS.5 LACS, STANDS ADMITTEDLY MADE NOR IS THERE ANY EVIDENCE TOWARD THE SAME. UNDER THE CIRCUMSTANCES, WE FIND NO BASIS FOR THE ASSESSEES CLAIM, AND NEITHER IS ANY BROUGHT TO OUR NOTICE AND, ACCORDINGLY, CONFIRM THE SAID DISALLOWANCE. WE DECIDE ACCORDINGLY. A.Y. 2007 - 08 31. GD. # 5 IS QUA AN ADDITION FOR RS.15,87,874/ - , B ASED ON SEIZED MATERIAL, TOWARD UNEXPLAINED CASH - IN - HAND. THE SAME STANDS DECIDED VIDE PARA S 16 - 17 OF THIS O RDER, ADJUDICATING GD. # 5 FOR A.Y. 2005 - 06; THE FACTS AND CIRCUMSTANCES AS WELL AS THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME. WE DECIDE ACCORDINGLY. 32. GD. # 6 IS TOWARD UNEXPLAINED EXPENDITURE ON FOREIGN TRAVEL IN THE SUM OF RS.66,304/ - . THE FACTS AND CIRCUMSTANCES AS WELL AS THE RESPECTIVE CASES OF THE PARTIES BEING THE SAME, OUR DECISION VIDE PARA 2 5 OF THIS ORDER, ADJUDICATING GD. # 9 FOR A.Y. 35 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) 2006 - 07, SHALL BE ONLY APPLICABLE FOR THE INSTANT GROUND AS WELL. WE DECIDE ACCORDINGLY. 33. IN THE RESULT, THE APPEALS ARE PARTLY ALLOWED. PENALTY APPEALS 34. WE NEXT CONSIDER THE PENALTY APPEALS, I.E., THE LEVY OF PENALTY FOR ALL THE YEARS UNDER REFERENCE U/S. 271(1)(C) OF THE ACT. THE ASSESSEES CASE IN THE QUANTUM PROCEEDINGS, AS SHALL BE APPA RENT FROM A READING OF THE TRIBUNALS ORDER ON QUANTUM, HAS BEEN LARGELY ONE OF DENIAL. THE TRIBUNAL, HOWEVER, CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE, CONSIDERED IT PROPER TO IN THE MAIN, RESTORE THE MATTER BACK TO THE FILE O F THE ASSESSING AUTHORITY, EITHER BY WAY OF AN OPEN SET ASIDE OR FOR A LIMITED PURPOSE, FOR FRESH DETERMINATION AFTER EXAMINING THE ASSESSEES CASE, PER A SPEAKING ORDER. THE ADDITIONS/DISALLOWANCES MADE IN THE FIRST ROUND MAY THUS NOT SURVIVE OR STAND MOD IFIED IN WHOLE OR IN PART, IN THE SET ASIDE PROCEEDINGS. IT WOULD, IN OUR VIEW, BE THEREFORE IMPROPER TO PROCEED TO EXAMINE THE CORRECTNESS OF THE LEVY OF PENALTY AT THIS STAGE. THE EXPLANATION/S THAT MAY NOW STAND TO BE OFFERED BY THE ASSESSEE, I.E., EV EN QUA THE ADDITIONS/DISALLOWANCES THAT STAND CONFIRMED BY US OR MAY OBTAIN IN THE SECOND ROUND, WHICH ARE SUPPOSED TO REFLECT THE FACTS, I.E., THE TRUTH OF THE MATTER, MAY BE SUBSTANTIALLY DIFFERENT FROM THAT OBTAINING IN THE FIRST ROUND - THE ASSESSEE H E RS ELF ADMITTING TO SEVERAL RELEVANT FACTS. ACCORDINGLY, WE SET ASIDE THE LEVY OF PENALTY FOR ALL THE YEARS UNDER REFERENCE. THE AO, AFTER PASSING FRESH ORDER/S OF ASSESSMENT IN PURSUANCE TO OUR ORDER IN QUANTUM PROCEEDINGS, SHALL QUA EACH ADDITION/DISALLOW ANCE MADE/SUSTAINED, CONSIDER THE ISSUE OF LEVY OF PENALTY AFRESH AS PER LAW, SHOW CAUSING THE ASSESSEE IN THE MATTER. NEEDLESS TO ADD, THE ASSESSEE SHALL BE ALLOWED PROPER OPPORTUNITY TO PRESENT H ER CASE BEFORE HIM. WE DECIDE ACCORDINGLY. 35. IN THE RES ULT, THE PENALTY APPEALS FOR ALL THE SEVEN YEARS UNDER REFERENCE ARE ALLOWED FOR STATISTICAL PURPOSES. 36 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 25 , 201 6 SD/ - SD/ - ( D. MANMOHAN ) (S ANJAY ARORA) / VICE PRESIDENT / A CCOUNTANT MEMBER MUMBAI ; DATED : 25 . 0 4 .201 6 . . ./ ROSHANI , SR. PS ENCL.: ANNEXURES A (A1 & A2) , B & C, FORMING AN INTEGRAL PART O F THIS ORDER . / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGI STRAR) , / ITAT, MUMBAI 37 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) T HIS PAGE IS LEFT INTENTIONALLY BLANK AS IT CONTAINS DETAIL S NOT FORMING PART OF THE ORDER BUT INTERNAL TO THE TRIBUNAL. 38 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) A NNEXURE A - 1 EXTRACT FROM THE ORDER OF HASSAN ALI KHAN (IN ITA NOS. 4156 - 4162/M/10 /M/10 ) 9. THE NEXT AND THE SIXTH GROUND IS IN RESPECT OF UNEXPLAINED MONEY WITH UBS AG, ZURICH, AT RS.447 CRORES. THE REVENUE, ON THE BASIS OF THE INFORMATION RECE IVED FROM THE ED, FOUND THE ASSESSEE TO HAVE ISSUED A TRANSFER INSTRUCTION TO UBS AG ON 16.7.2000 TO TRANSFER FUNDS IN THE SUM OF USD 1 MILLION DOLLARS (1000000) FROM HIS ACCOUNT NUMBER (SPACE LEFT BLANK) TO ANOTHER ACCOUNT WITH THE SAID BANK (ACCOUNT NUMB ER SPECIFIED) OF KT (NAME OF THE PERSON), FURTHER REQUESTING FOR AN IMMEDIATE ACTION IN THE MATTER (ANNEXED BY WAY OF ANNEXURE 11 TO THE ASSESSMENT ORDER). THE ASSESSEE WAS, ACCORDINGLY, SHOW CAUSED (VIDE NOTICE DATED 19.12.2008), TO WHICH NO EFFECTIVE REP LY WAS SUBMITTED; THE ASSESSEE MERELY DENYING HOLDING ANY FOREIGN BANK ACCOUNT. THE SAME WAS, IN THE VIEW OF THE A.O., CLEARLY UNACCEPTABLE IN THE FACE OF SUCH SPECIFIC INFORMATION, SO THAT THE ASSESSEE STATING OF BEING NOT AWARE OF ANY SUCH TRANSACTION OR BEING IGNORANT OF THE SAID DOCUMENT WOULD BE OF NO CONSEQUENCE. RATHER, SEVERAL OTHER DOCUMENTS WERE FOUND DURING SEARCH, WHICH INDEPENDENTLY ESTABLISHED CLOSE RELATIONSHIP BETWEEN THE ASSESSEE AND KT; THEIR FREQUENT TRAVEL ABROAD TOGETHER, AS WELL AS CRO SS BORDER TRANSACTIONS. IN FACT, SOME SUCH DOCUMENTS SUPPORT AND COMPLEMENT EACH OTHER, PROVIDING CORROBORATION, AS WELL AS ESTABLISHING THEIR TRUTH. REFERENCE TOWARD THE SAID DISCUSSION IS DRAWN TO PARAS 11.1 THROUGH 11.5 (PGS. 9 - 11) OF THE ASSESSMENT ORD ER. THE DOCUMENT CLEARLY ESTABLISHED FUNDS TO THAT EXTENT WITH THE ASSESSEE ON THAT DATE (16.7.2000), THE SOURCE OF WHICH HAD NOT BEEN SATISFACTORILY EXPLAINED. THE SAID AMOUNT WAS, ACCORDINGLY, ASSESSED AS INCOME AS UNEXPLAINED MONEY (DEPOSIT). THE NATU RE OF THE ASSESSEES ARGUMENTS IN SUPPORT AND TOWARD ITS CASE BEFORE THE LD. CIT(A) STAND ALREADY DISCUSSED AT PARA 6 ABOVE. 10. BEFORE US, THE ASSESSEE PER ITS WRITTEN SUBMISSIONS FOR THE RELEVANT YEAR (WS - 1) (PGS.11 - 13) RELIES ON THE COMMUNICATION DATED 30.10.2007 BY UBS AG TO THE HEAD OF 39 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) THE DEPARTMENT, SWISS NATIONAL BANK. THE SAME CLEARLY STATES THE ASSESSEE TO HAVE THREE ACCOUNTS WITH IT, OPENED ONLY IN THE YEAR 2001, BEARING NUMBERS 206 - 790786, 206 - 789758 AND 206 - 794786, THE THIRD BEING IN THE NAME OF HIS WIFE (RHAK), WITH THE ASSESSEE HOLDING A POWER OF ATTORNEY (IN HIS FAVOUR) IN ITS RESPECT. THE ASSESSEES ACCOUNTS, OPENED ON 30/7/2001, WERE NEVER FUNDED AND THERE WERE NO TRANSACTIONS OF ANY KIND (INCLUDING BOND AND OTHER SECURITY TRANSACTIONS). THE SAID ACCOUNTS WERE NEVER MADE OPERATIONAL, AND CLOSED ON 17.10.2001. THE THIRD ACCOUNT, ALSO OPENED ON 30/7/2001, CONTAINS ONLY ONE TRANSACTION BY WAY OF DEPOSIT OF USD 61,031.30 IN CASH ON 15.8.2001, OF WHICH USD 60,700 WAS TRANSFERRED BY WAY OF A WIR E TRANSFER TO A THIRD PARTY INDIVIDUAL (I.E., NOT MR. KHAN OR HIS FAMILY MEMBERS) TO A ACCOUNT AT A BANK IN UNITED EMIRATES (UAE) ON THE SAME DAY. THERE WERE NO OTHER TRANSACTIONS ON THIS ACCOUNT (INCLUDING NO BOOK OR REMITTED BOND OR OTHER SECURITY TRANSA CTION). THIS ACCOUNT WAS ALSO CLOSED ON 17.10.2001. THE FOURTH ACCOUNT DISCLOSED IN THE REPORT IS (#760001), WHICH IS STATED TO BE IN THE NAME OF AN INDIAN NATIONAL (WITH POA IN FAVOUR OF THE ACCOUNT HOLDERS WIFE), OPENED IN DECEMBER, 1994, AND CLOSED IN JANUARY, 1998, I.E., OVER 3 YEARS BEFORE THE ASSESSEE OPENED AN ACCOUNT WITH UBS. THE REASON FOR OPENING THIS ACCOUNT WAS BECAUSE THE ACCOUNT HOLDER WAS, AS STATED BY HIM, EXPECTING A TRANSFER FROM A HAK ACCOUNT WITH UBS, ZURICH (REFER PARA 3.4 OF THE RE PORT). THE SEVERAL TRANSFER INSTRUCTIONS (TIS) FOUND IN SEARCH REFLECT THIS ACCOUNT AS OF KT. ON THE BASIS OF THIS COMMUNICATION, THE ASSESSEE CLAIMS THAT IT STANDS ESTABLISHED THAT HE DID NOT HAVE ANY ACCOUNT (NO. 6667663) WITH UBS ZURICH, AS ALLEGED BY T HE A.O., OR ANY OTHER ACCOUNT FOR THAT MATTER. NO TAX LIABILITY WOULD, THEREFORE, STAND ATTRACTED ON THE BASIS OF ALLEGED TRANSFER OF FUNDS TO ANOTHER ACCOUNT WITH THE SAID BANK (#760001) IN THE NAME OF KT. THE LD. DR, ON THE OTHER HAND, WOULD SUBMIT THAT NO EXPLANATION, APART FROM DENYING THE SAID TRANSFER, PLEADING IGNORANCE, STANDS ADVANCED BY THE ASSESSEE AT ANY STAGE. HIS STATING OF HAVING NO FOREIGN BANK ACCOUNT STANDS ALSO CONCLUSIVELY 40 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) DISPROVED. IN THIS VIEW OF THE MATTER, THE SAME HAS TO BE CONCLU DED AGAINST THE ASSESSEE. 11. WE HAVE HEARD THE PARTY BEFORE US, AND PERUSED THE MATERIAL ON RECORD. 11.1 THE LETTER UNDER REFERENCE, REPRODUCED AT PARA 11 OF THE ASSESSMENT ORDER AS WELL AS, PRIOR THERETO, IN THE SHOW CAUSE NOTICE DATED 19.12.2008, REA DS AS UNDER: THE UNION BANK OF SWITZERLAND JULY 16, 2000 ZURICH ATTN. DR. WALLI (THROUGH UBS DUBAI) DEAR SIR, PLEASE TRANSFER A SUM OF US DOLLARS ONE HUNDRED MILLION (US $ 100,000,000) FROM MY ACCOUNT NO , TO THE ACCOUNT OF MR. KASHINATH TAPURIAH ACCOUNT NO. 760001, WITH YOUR BANK IN ZURICH. THIS MAY PLEASE BE TREATED AS MY INSTRUCTIONS, AND I REQUEST YOU TO TAKE IMMEDIATE ACTION AND CONFIRM. THANKING YOU, YOURS TRULY, HASSAN ALI KHAN THE TRANSFER INST RUCTION IS ON THE LETTER - HEAD OF HOTEL INTER - CONTINENTAL, DUBAI, BEARING ITS POSTAL ADDRESS, TELEPHONE AND FAX NUMBERS. THE ASSESSEE HAS NOT DENIED HAVING SIGNED THE SAID DOCUMENT (I.E., THE ORIGINAL COPY, MEANT FOR BEING TRANSMITTED TO THE BANK) OR OF B EING NOT IN DUBAI AT THE RELEVANT TIME (JULY, 2000), OR ON 16/7/2000 SPECIFICALLY (WHICH WOULD ALSO STAND TO BE CONFIRMED FROM HIS PASSPORT) AND, THUS, IN FACT TACITLY ADMITS TO HAVING INSTRUCTED HIS BANK IN THE MANNER STATED. WE ARE CONSCIOUS THAT THE DOC UMENT WAS NOT FOUND DURING S EARCH (OR SURVEY) U N DER THE ACT, FOR THE PRESUMPTION OF SEC TION 292 - C TO APPLY THERE TO . THE SAME HAS BEEN PROVIDED TO 41 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) IT BY ED, AND THERE IS NOTHING ON RECORD TO I NDICATE THAT IT HAS BEEN REQUISITIONED U/S.132 A. IN FACT, THE ED ITSELF JOINED THE SEARCH PROCEEDINGS UNDERTAKEN BY THE REVENUE ON 05.1.2007 (REFER STATEMENT OF FACTS BY THE ASSESSEE BEFORE THE FIRST APPELLATE AUTHORITY). THE DOCUMENT , HOWEVER, HAS BEEN OFFICIALLY TRANSMITTED BY ED, THE GOVERNMENT AGENCY INVESTIGATING T HE FOREIGN/CROSS BORDER TRANSACTIONS OF THE ASSESSEE, INCLUDING GENESIS OF S U M S IN TH E S E ACCOUNT S (AND NOW UNDER THE AUSPICES OF A SPECIAL INVESTIGATION TEAM (SIT) CONSTITUTED BY THE HONBLE APEX COURT), TO E NABLE THE REVENUE TO TAKE AP PROPR IATE PROCEEDING S UNDER THE ACT. FOR ALL WE K NO W , IT MAY W E LL BE ONE OF THE DOCUMENT S WITH THE REVENUE TO FO RM A REASON TO BELIEVE U/S. 132 OF THE ACT. THERE CAN BE IN ANY CASE NO PRESUMPTION THAT THE SAME HAS BEEN OBTAINED BY ED ILLEGALLY OR WITHOUT FOLLOWING THE DUE PRO CESS OF LAW. THE APEX COURT IN POORAN MAL VS. DIT (INV.) [1974] 93 ITR 505 (SC) CLARIFIED THAT THE TEST OF ADMISSIBILITY OF EVIDENCE UNDER THE INDIAN JURISPRUDENCE LIES IN ITS RELEVANCY, SO THAT UNLESS THERE IS AN EXPRESS OR NECESSARILY IMPLIED PROHIBITION IN THE CONSTITUTION OR OTHER LAW, EVIDENCE OBTAINED AS A RESULT OF ILLEGAL SEARCH OR SEIZURE IS NOT LIABLE TO BE SHUT OUT. THE RELIABILITY OF THE DOCUMENT CANNOT BE DOUBTED, AND IT HAS STRONG PERSUASIVE VALUE . IN FACT, THE ASSESSEE HIMSELF, A T N O STAGE, D ENIES THAT THE SAME WAS NOT RECOVERED FROM HIM. S UCH LIKE TRANSFER INSTRUCTION S WERE ALSO RECOVERED FROM THE ASSESSEES RESIDENCE AS WELL AS OF KT DURING SEARCH . WHY, ONE MAY ASK, SHOULD THE ASSESSEE (OR KT) RETAIN THEM FOR YEARS, WHICH ITSELF IS A STRONG INDICATOR OF THE TRUTH OF THE DOCUMENT, I.E., OF THE TRANSFER INSTRUCTION HAVING BEEN IN FACT ISSUED . IT IS N OTABLE THAT THE ASSESSEE DOES NOT , AT ANY STAGE , INCLUDING BEFORE US, EXPLAIN THE REASON FOR, AND /OR THE CIRCUMSTANCES UNDER WHICH THE TRANSFER INS TRUCTION WAS ISSUED. OR, FOR THAT MATTER, ANY OF THE TRANSFER INSTRUCTIONS, SOME OF WHICH BEAR HIS (TRANSFEROR) ACCOUNT NUMBER AS WELL AS HIS SIGNATURE. THAT IS, ON WHAT ACCOUNT WAS HE REQUIRED TO TRANSFER FUNDS TO KT. THE A GREEMENT DATED 07.8.2001 BETWEEN THEM (REFER RED TO EARLIER AT PARA 8.1/ENCLOSED AS ANN. A) APART, THE SEARCH REVEALED SEVERAL DOCUMENTS AND MATERIALS EVIDENCING A CLOSE RELATIONSHIP BETWEEN THE ASSESSEE AND KT. THE ASSESSEE PER HIS NOTARIZED STATEMENT 42 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) DATED 30/6/2003 INFRA ADMITS TO HIM BEING HIS ADVISOR. THEY TRAVELLED ABROAD TOGETHER FREQUENTLY (PGS. 35, 40, 43 - 45 OF ANNEXURE A - 2, SEIZED FROM KTS RESIDENCE). A SIGNED POWER OF ATTORNEY BY KT, JOINTLY WITH ANOTHER, AS REPRESENTATIVE OF ROBERTS, MCLEAN AND COMPANY LTD., KOLKATA, IN FAVOUR OF THE ASSESSEE, TO DEAL WITH THE PROPERTY AT 10A, PRITHVIRAJ ROAD, NEW DELHI (PG. 98 OF ANNEXURE A1) WAS FOUND, WHICH ALSO SHOWS THE ASSESSEE TO BE WELL CONNECTED. SIGNED BLANK PAPERS BY THE ASSESSEE WERE ALSO FOUND FROM THE POSSESSION OF KT (PAGES 68 - 70 /ANNEXURE A1). AGAIN, A LOAN OF RS. 5 CRORES FROM ASSESSEE (LENDER) TO RM CONSULTING LTD., KOLKATA (BORROWER), A COMPANY OF KT, WAS FOUND IN SEARCH (PGS. 71 - 94 OF ANNEXURE A - 1). FURTHER, THOUGH THE TRANSFER INSTRUCTION UNDER REFERENCE PREDATES THE SAID AGR EEMENT DATED 07.8.2001, IS IT THAT THE MONIES WERE SOUGHT TO BE TRANSFERRED TO KT IN SATISFACTION OF THE OBLIGATION RECOGNIZED, IN WRITING, SUBSEQUENTLY , BY THE SAID A GREEMENT ? WE SAY SO AS THE AGREEMENT IS ONLY WITH A VIEW TO SETTLE THE ACCOUNTS BETWEEN T HE ASSESSEE AND KT, SO THAT PENDING FINAL SETTLEMENT, TRANSFER COULD TAKE PLACE, I.E., IS A DISTINCT POSSIBILITY. 11.2 THE ASSESSEE CLAIMING THAT NO TRANSFER OF FUNDS HAD, HOWEVER, BEEN EFFECTED, WOULD BE OF LITTLE MOMENT IN - AS - MUCH AS THE ADDITION IS TO WARD UNEXPLAINED MONEY OR BANK DEPOSIT. TRUE, THE SAME MAY BE LYING IN HIS ACCOUNT, IN WHOLE OR IN PART, FROM AN ANTERIOR DATE, FALLING IN A PRECEDING YEAR. HOWEVER, IT IS FOR THE ASSESSEE TO EXHIBIT SO - IN EXPLANATION OF THE NATURE AND SOURCE OF ACQUISIT ION OF THE MONEY HE IS FOUND TO BE IN POSSESSION OF, AS STATUTORY OBLIGED TO U/SS. 69/69A, LEST THE DEPOSIT BE DEEMED AS HIS UNEXPLAINED INCOME FOR THE RELEVANT YEAR, I.E., THE YEAR FOR WHICH HE IS SO FOUND. IT IS OPEN FOR THE ASSESSEE TO SHOW THAT THE SU M OF MONEY TO WHATEVER EXTENT, IS BROUGHT FORWARD FROM AN EARLIER PERIOD, OR OTHERWISE DOES NOT REPRESENT HIS OWN CAPITAL AS WHERE IT IS BY WAY OF A LOAN, OR DESPITE BEING HIS CAPITAL, REPRESENTS A CAPITAL RECEIPT, SO THAT IT CANNOT BE BROUGHT TO TAX A S HIS INCOME. HE, HOWEVER, DOES NOT DO SO, AND MERELY DENIES THE EXISTENCE OF THE ACCOUNT WITHOUT ADDUCING ANY EVIDENCE TOWARD THE 43 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) SAME. AGAIN, IT IS OPEN TO BE ARGUED THAT THE TRANSFER INSTRUCTION WOULD NOT BY ITSELF ESTABLISH THE BALANCE IN ACCOUNT TO TH AT EXTENT. A TRANSFER INSTRUCTION (TI) IS AKIN TO A (NON - NEGOTIABLE) CHEQUE DRAWN ON HIS BANK BY THE ACCOUNT HOLDER, SPECIFYING ALSO THE ACCOUNT PARTICULARS OF THE TRANSFEREE. ITS PREPARATION ITSELF IS AN EXPERT JOB, WITH THE ASSESSEE BEING ASSISTED IN TH IS REGARD BY THE BANK OFFICIALS (ALSO REFER PARA 11.4). WE HAVE ALREADY CLARIFIED THAT THE DOCUMENT IS TO BE REGARDED AS RELIABLE, WITH PERSUASIVE EVIDENTIARY VALUE. THE SAME IMPLIES THAT SUCH AN INSTRUCTION WAS IN FACT ISSUED TO HIS BANK (UBS AG) BY THE A SSESSEE. IF THAT BE SO, THE SAID ACCOUNT, BY NECESSARY IMPLICATION, HAD BALANCE AT LEAST TO THAT EXTENT ON THE RELEVANT DATE. TRUE, THE BURDEN OF PROOF THAT THERE IS UNEXPLAINED MONEY, INVESTMENT, ETC. IS ON THE REVENUE. THE SAME, HOWEVER, CAN BE DISCHARGE D BY IT BY ESTABLISHING FACTS AND CIRCUMSTANCES FROM WHICH A REASONABLE INFERENCE TOWARD THE SAME CAN BE DRAWN (REFER: SUDHAKARAN (C. K.) VS. ITO [2001] 279 ITR 533 (KER)). THE ASSESSEE IS REQUIRED TO DISPROVE THE SAID DOCUMENT, AND THE LOGICAL INFERENCE/S THAT FLOWS THERE - FROM. THE ASSESSEE HAS, HOWEVER, PRODUCED BEFORE US THE COPY OF THE REPORT (DATED 30.10.2007) SUBMITTED BY UBS AG, ZURICH TO SWITZERLAND NATIONAL BANK, CLAIMING IT TO HAVE BEEN SINCE FORWARDED TO ED, AS ALSO PATENT FROM THE UBS LETTER D ATED 28.12.2007 TO ED (REFER PARA 3.1 - WHICH THOUGH BEING UNSIGNED HAS NOT BEEN ADMITTED IN EVIDENCE). THE SAID LETTER/REPORT (DATED 30.10.2007) HAS BEEN ADMITTED IN EVIDENCE. IT IS THEREFORE CLEAR THAT THE MATTER IS UNDER INVESTIGATION BY ED, WHICH HAS I NITIATED PROCEEDINGS UNDER PMLA AGAINST THE ASSESSEE, WHICH ARE - AS PER THE ASSESSEE, AND WHICH IS NOT DISPUTED BY THE REVENUE - UNDER - WAY. CLEARY, THE CHARGES UNDER PMLA SHALL ONLY OBTAIN WHERE THE ASSESSEE IS FOUND TO HAVE MAINTAINED BANK ACCOUNT/S ABRO AD, HOLDING SUBSTANTIAL SUMS THEREIN. THAT IS, THE VERY BASIS ON WHICH THE AMOUNT IS SOUGHT TO BE ASSESSED AS INCOME IN HIS HANDS IN - AS - MUCH AS THE SAME HAS NOT BEEN DISCLOSED OR SATISFACTORILY EXPLAINED AS TO ITS NATURE AND SOURCE OF ACQUISITION. THE QUES TION THAT, THEREFORE, ARISES IS WHETHER IT WOULD BE PROPER TO, PENDING THE 44 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) PROCEEDINGS UNDER PMLA, WHICH IN FACT THE REVENUE IS ONLY AWARE OF, CONCLUDE THE PROCEEDINGS UNDER THE ACT. THE ASSESSEE HAS ALSO SOUGHT TO RAISE TH IS ISSUE PER HIS WRITTEN SUBMISS IONS, STATING THAT THE ED CONCLUDED ITS INITIAL INVESTIGATION ONLY IN 2011, FILING A COMPLAINT AGAINST HIM (WITH THE HONBLE SESSIONS COURT, GREATER MUMBAI) ON 1/5/2011, SO THAT THE ASSESSMENTS WERE LIABLE TO BE SET ASIDE TO THIS SCORE ALONE. THE PROCEEDIN GS UNDER THE ACT ARE STATUTORY AND INDEPENDENT PROCEEDINGS, TO BE DECIDED ON THE BASIS OF THE MATERIALS AND EVIDENCES BROUGHT ON RECORD AS WELL AS THE EXPLANATIONS FURNISHED, I.E., ON THE BASIS OF THE FACTS AS ESTABLISHED THEREIN. T HEY ARE, FURTHER, TO BE CONCLUDED IN A TIME B OUND MANNER, WHICH, BEING A ST ATUTORY PRESCRIPTION , CANNOT BE BREACHED. IT IS T HE ASSSESSEE WHO, ON THE CONTRARY, HAS BEEN RECALCITRANT, DIS REGARDING THE S AID PROCEEDINGS, EVEN CHOOSING TO BE NOT REPRESENTED BEFORE US, RELYING OSTENSIB LY ON WRITTEN SUBMISSION S INSTEAD. THE SA ID NON - REPRESENTATION IS ONLY DELIBERATE, D E N YING VALUABLE ASSISTANCE TO THE COURT/ADJUDICATING AUTHORITY, A NEGATION OF THE DUE PROCESS OF LAW, BESIDES CAUSING LOSS OF VALUABLE COURT TIME, A NATIONAL ASSET, WHICH N EEDS TO BE CONSERVED AND PUT TO OPTIMUM USE. BE THAT AS IT MAY, THE PLEA OF SET ASIDE OF ASSESSMENT BY THE ASSESSEE ON THAT GROUND , WHICH IS DE HORS ANY GROUND OF APPEAL, IS WITHOUT MERIT. 11.3 THE TRANSFER INSTRUCTION UNDER REFERENCE DOES NOT BEAR THE A CCOUNT NUMBER OF THE ASSESSEE - TRANSFEROR, AND THE A.O. WRONGLY MENTIONS THE SAME AS 6667663 (REFER PARA 11 OF THE ASSESSMENT ORDER). WE ARE CONSCIOUS OF THIS FACT, AND WITHOUT WHICH THE DOCUMENT IS INCOMPLETE. IT ALSO DOES NOT BEAR THE ASSESSEES SIGNATU RE. AT THE SAME TIME, IT NEEDS TO BE BORNE IN MIND THAT THE OFFICE COPY OF A DOCUMENT GENERATED IS USUALLY RETAINED AS SUCH, I.E., WITHOUT SIGNING, OR ASCRIBING THEREON INFORMATION DEEMED CONFIDENTIAL. IT IS THIS THAT PREVAILED WITH US, SO AS TO EXAMINE TH E CASE FURTHER DESPITE THE DOCUMENT BEING NOT COMPLETE. WHY, ANNEXURE 12 TO THE ASSESSMENT ORDER, AGAIN A TRANSFER INSTRUCTION (DATED 23.7.2000) BY THE ASSESSEE ON UBS AG, ZURICH, 45 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) DULY SIGNED BY HIM , BEARS THE SAID ACCOUNT NUMBER (6667663). IT THE PROXIMIT Y OF THE DATES OF THE TWO TRANSFER INSTRUCTIONS THAT PERHAPS LED THE A.O. TO ASSUME THIS ACCOUNT NUMBER FOR TRANSFER INSTRUCTION DATED 16.7.2000 AS WELL. 11.4 WE, NEXT, CONSIDER THE UBS REPORT DATED 30.10.2007, ON WHICH THE ASSESSEE RELIES. WE APPRECIATE THAT THIS IS A COMMUNICATION BY THE BANK, LOCATED IN ANOTHER SOVEREIGN JURISDICTION, TO ANOTHER, EXERCISING REGULATORY POWER THEREON (AS PER THE LAWS OF THAT COUNTRY), SO THAT IT COULD BE ARGUED THAT IT CANNOT THEREFORE BE RELIED UPON; IT BEING EVEN NOT C LEAR IF THE SAME STANDS COMMUNICATED TO THE INDIAN INVESTIGATION AUTHORITIES. AT THE SAME TIME, HOWEVER, IT NEEDS TO BE APPRECIATED THAT THE SAME PERTAINS TO THE ASSESSEE. WHY, THE SAME IS ITSELF TITLED: RESULTS OF INVESTIGATION INTO HASSAN ALI KHAN AND H IS ALLEGED RELATIONSHIP WITH UBS . AND IS CLEARLY IN CONSEQUENCE TO THE DETAILS SOUGHT BY THE GOI (THROUGH PROPER CHANNEL), AS A SOVEREIGN, WITH REGARD TO THE ACTIVITIES OF ONE OF ITS NATIONALS IN THAT COUNTRY. SURELY, GOI IS CONCERNED WITH THE UNDERLYING ACTIVITIES RESULTING IN THE FINANCIAL FLOWS IN - SO - FAR AS THEY RELATE TO OR HAVE A BEARING ON THE CRIMINAL AND CIVIL (INCLUDING TAX) LIABILITY OF THAT PERSON AS PER THE LAWS OF INDIA. THE SAME, ALONG WITH THE REPORT DATED 29.10.2007 BY DELOITTE AG TO THE BA NK, HAS APPARENTLY BEEN CONVEYED BY IT TO ED VIDE ITS COMMUNICATION DATED 28.12.2007, AS THE ENCLOSURES TO THE SAID LETTER TO ED INDICATE, AND WHICH IS ALSO ONE OF THE DOCUMENTS SOUGHT TO BE ADDUCED BY THE ASSESSEE AS ADDITIONAL EVIDENCE. THE DELOITTE REP ORT MAKES IT ABUNDANTLY CLEAR THAT THE INFORMATION PROVIDED (BY UBS) WAS NOT COMPLETE (REFER PARAS 2.14, 3.3 AND 3.5 THEREOF). PARA 3 OF THE SAID REPORT CLEARLY BRINGS OUT THE SCOPE OF THE WORK PERFORMED AND ITS LIMITATIONS. IN RESPECT OF A FAX DATED 05.4 .1997 BY ONE, HASSAN ALI KHAN (FROM ACCOUNT NO. 710.085) TO ACCOUNT NO. 760001 (OF KT), IT STATES THAT THERE IS NO EVIDENCE IF THE SAID PERSON WAS THE SAME HASSAN ALI KHAN WHO IS THE SUBJECT OF THE REPORT (PARA 2.13). THEN, AGAIN, THE UBS REPORT (DATED 30. 10.2007) STATES THAT A/C NO. 760001 (THE BENEFICIARY ACCOUNT IN THE IMPUGNED TI) WAS CLOSED IN JANUARY, 1998, 46 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) WHILE AT THE SAME TIME STATING THAT THE SAID ACCOUNT WAS OPENED AS A TRANSFER FROM HAK ACCOUNT WAS EXPECTED (REFER PARA 9 ABOVE). THAT THE SAID AC COUNT BELONGS TO KT IS ADMITTED, STATED TO BE OPENED IN 1986 AND CLOSED IN THE YEAR 2000 (REFER COMMUNICATION BY CHANDRIKA TAPURIAH (CT) TO THE A.O. DATED 13.12.2011 (AT APB - 5 IN THE CASE OF KT/CT, PGS. 871 - 873)). THE UBS REPORT, HOWEVER, STATES OF THE S AID ACCOUNT HAVING BEEN CLOSED IN JANUARY, 1998, POINTING TO YET ANOTHER INCONSISTENCY WITH REFERENCE TO THE SAID REPORT. HOWEVER, THE MOOT QUESTION IS: IF THERE WAS NO HAK ACCOUNT AT THE RELEVANT TIME, HOW COULD THIS CONSTITUTE A BASIS FOR OPENING THE SA ID ACCOUNT ? THERE SHOULD THUS BE A HAK ACCOUNT/S WITH UBS AG AT THE RELEVANT TIME, OR, IN THE VERY LEAST, ONE (OR MORE) ACCOUNT, OPENING OF WHICH WAS CERTAIN, FOR THE BANK TO HAVE OPENED THE SAID ACCOUNT IN DECEMBER, 1994. THOUGH THE LETTER DATED 28.12.200 7, BEING UNSIGNED, HAS NOT BEEN ADMITTED BY US, IT IS CLEAR THAT THE REPORT DATED 30.10.2007, STATED TO BE ON THE BASIS OF AN INTERNAL INVESTIGATION BY THE BANK, IS BASED ON THE DELOITTE AG REPORT DATED 29.10.2007, AS ADMITTED BY THE ASSESSEE HIMSELF (REFE R HIS WRITTEN SUBMISSIONS, VIZ. PARA 10 OF WS - 1). THE ED, BY THE ASSESSEES OWN ADMISSION PER ITS WRITTEN SUBMISSIONS, HAS PRESSED CHARGES AGAINST THE ASSESSEE U/SS.3 AND 4 OF PMLA IN RESPECT OF TWO TRANSACTIONS (PG. 27 OF WS - 1): A) LAUNDERING OF 93 MILLION US D OLLAR S TO HAVE BEEN ACQUIRED BY THE APPLICANT IN THE YEAR 1997; B) USD 700,000 TO HAVE BEEN ACQUIRED BY THE ASSESSEE IN THE YEAR 2006. AS AFORE - REFERRED, THE ASSESSEE HAS HIMSELF, VIDE TRANSFER INSTRUCTION DATED 23.7.2000 , DULY SIGNED BY HIM, INSTRUCT ED UBS AG, ZURICH TO TRANSFER USD 500,000 FROM HIS ACCOUNT NUMBER 6667663, DISPROVING THE UBSS SAID REPORT. THE COMPLAINT UNDER PMLA BY ED, IN - AS - MUCH AS IT PERTAINS TO THE YEAR 1997, ALSO SUGGESTS THAT THE A/C NO. 710.085 (AS PER THE DELOITTE REPORT, R ELIED BY THE ASSESSEE) IS OF THE ASSESSEE. UBS OFFICIALS, SUCH AS MARKUS GROSSMAN, DR.PETER WEILLY, RETO HARTMANN, HAVE BEEN FOUND ASSOCIATED WITH, AND BEEN SPECIFICALLY ASSIGNED AS RELATIONSHIP MANAGER, PORTFOLIO MANAGER, ETC., TO THE ASSESSEE, TO LOOK A FTER HIS BUSINESS INTERESTS AND MANAGE 47 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) HIS ACCOUNTS. THE AGREEMENT DATED 18.07.2001 WITH M/S. CLAMAI AG (REFER PARAS 20 - 22 OF THIS ORDER) WAS FACILITATED BY THE BANK, WITH MEETINGS IN ITS RESPECT BEING ALSO HELD AT THE BANK PREMISES ITSELF. COMPLETE RELIAN CE THEREFORE CANNOT BE PLACED ON THE BANKS SAID REPORT . IN FACT, THE TRANSFER INSTRUCTIONS OR REFERENCE TO ACCOUNTS HAVE BEEN FOUND DURING SEARCH WHERE THE REFERENCE TO THE ACCOUNT IS NOT BY NAME /S BUT IN CODE / S . WE MAY, IF ONLY TO DEMONSTRATE THIS, REFER TO THE THREE (3) TRANSFER INSTRUCTIONS, WHICH ARE THE SUBJECT MATTER OF GD. 6 FOR AY 2002 - 03 (AT PARA 25 OF THIS ORDER), ALL THE THREE MENTIONING ONLY THE (BENEFICIARY) ACCOUNT NUMBER, WITH ONE BEING CODE NAMED, OR EUPHEMISTICALLY NAMED, AS BLACK PRINCE . THE SAID NAME, WHICH ALSO APPEARS IN TI FOR USD 72 M (REFER PARA 30.1), HAS BEEN FOUND BY THE LD. CIT(A) TO BE OF SOIR CONTRACTING AND GENERAL TRADING CO., WLL ZURICH, I.E., OF AN EXISTING COMPANY, ALSO CONFIRMING THE ACCOUNT NUMBER, WHICH IS THE SAME F OR BOTH THE TIS (REFER PAGE 37 OF HIS ORDER FOR A.Y. 2003 - 04). THE BANK RECOGNIZES THE ACCOUNT HOLDER ONLY BY THE CODE NAME, PROVIDING ACCESS UPON SUCCESSFULLY NAVIGATING THROUGH A FILTERING PROCESS, INCLUDING PASSWORDS, ETC. THE UBS REPORT ALSO CLARIFIE S (PER PARA 3.5 THEREOF) ON THE CODING CONFIGURATION ADOPTED BY THE BANK QUA ACCOUNT NUMBERS. WE MAY AT THIS STAGE ALSO NOTE, AS ALSO SOUGHT TO BE EMPHASIZED BY THE LD. DR DURING HEARING, THAT PRIVACY AND BANKING LAWS IN SWITZERLAND ENABLE OPENING OF BANK ACCOUNTS IN SUCH A MANNER, AS WELL AS PLACING STRINGENT CONDITIONS ON THE EXCHANGE OF INFORMATION IN RESPECT THEREOF. THE FACSIMILE DATE 15.1.2007 SUPRA, IN RESPONSE TO THE REQUEST FOR MUTUAL LEGAL ASSISTANCE BY THE GOI, WHICH IS THE OTHER DOCUMENT ADMITTE D BY US, VERY CLEARLY STATES THAT THE SWISS FEDERAL OFFICE OF JUSTICE SHALL REQUIRE, BESIDES OTHERS, A CONFIRMATION THAT THE INVESTIGATION (IN INDIA) IS IN RESPECT OF CRIMINAL PROCEEDINGS AND THERE IS A RELATION BETWEEN THE PREDICATE OFFENCES AND THE ACCOU NTS OF HASSAN ALI KHAN IN SWITZERLAND, BEFORE IT WOULD BE ABLE TO PROCEED WITH THE SAID REQUEST. THE SAME ONLY ENDORSES THE CONCERN EXPRESSED BY THE LD. DR, I.E., AS FAR AS TAX PROCEEDINGS IN INDIA ARE CONCERNED. WE MAY FURTHER ADD THAT IT IS ONLY AFTER SE PTEMBER, 2001 ATTACK IN NEW YORK, USA, 48 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) THAT THE BANKING INDUSTRY ACROSS THE GLOBE WOKE UP TO THE THREAT OF FINANCIAL FLOWS ARISING FROM OR IN RESPECT OF SUCH TERRORIST AND ILLEGAL ACTIVITIES, DEVISING KYC (KNOW YOUR CUSTOMER) NORMS. AND WHICH HAVE SINCE BE EN GRADUALLY UPDATED AND ADOPTED ACROSS NATIONS, INCLUDING INDIA. 11.5 THE REVENUE, TO PROCEED AGAINST THE ASSESSEE, MUST HAVE DEFINITE INFORMATION WITH REGARD TO THE ASSESSEE BEING IN POSSESSION OF MONIES OR HOLDING INVESTMENT. THIS IS IN VIEW OF THE SALUTARY PRINCIPLE OF COMMON LAW JURISPRUDENCE, EMBODIED U/S.110 OF THE EVIDENCE ACT, I.E., THAT POSSESSION IMPLIES OWNERSHIP, SO THAT THE ONUS OF PROVING THAT THE POSSESSOR IS NOT THE OWNER IS ON THE PERSON SO ALLEGING. THIS PRINCIPLE IS ALSO APPLICABLE T O TAX PROCEEDINGS, INCORPORATED IN THE ACT (UNDER CHAPTER VI), SO THAT THE PRINCIPLE WOULD BE ATTRACTED TO A SET OF CIRCUMSTANCES THAT SATISFIES ITS CONDITIONS. THE EXPRESSION INCOME UNDER THE ACT, A TERM OF WIDE IMPORT, IS APPLICABLE TO SECTION 69A, AMO NG OTHERS, OF THE ACT (REFER: CHUHARMAL VS. CIT [1988] 172 ITR 250 (SC)). THE ASSESSEE, CLAIMING TO HAVE NO FOREIGN BANK ACCOUNTS, CONCEDES SUBSEQUENTLY (ON THE BASIS OF A REPORT BY UBS AG, ZURICH - WHICH HAS BEEN TAKEN AS PART OF THE RECORD) TO HAVE A LIM ITED BANKING RELATIONSHIP WITH UBS AG, ZURICH. THE SAID REPORT, FOR THE REASONS AFORE - DISCUSSED, CANNOT BE CONSIDERED AS COMPLETELY RELIABLE. IN FACT, A NOTARIZED STATEMENT BY THE ASSESSEE (BY AND BEFORE NICHOLAS RONALD RATHBONE SMITH, NOTARY PUBLIC OF LON DON, ENGLAND ON 30/6/2003 ) AT LONDON (PROVIDED BY ED), REFERRED TO IN THE REVENUES PETITION DATED 01/6/2015 (REFER PARA 3.2) - A PART OF THE RECORD, BEING IN FACT ANNEXED TO THE ASSESSMENT ORDER FOR QUITE A FEW YEARS (AYS 2005 - 06 TO 2007 - 08/ANN. 13 FOR AY 2005 - 06), IS MOST REVEALING IN THIS REGARD, AND ANNEXED TO THIS ORDER AS PART THEREOF ( ANNEXURE C ). THE SAME CHARTS OR TRANSVERSES THE ASSESSEES RELATIONSHIP WITH UBS, COMMENCING WITH THE OPENING OF AN ACCOUNT WITH UBS, SINGAPORE (UBS - SIN) WITH AN AMOUNT OF USD 500,000 IN 1982, UP TO THE DATE OF THE STATEMENT. FURTHER, THAT THE ACCOUNT HAD A BALANCE OF USD 560 MILLION IN DECEMBER, 1997. DR. PETER WEILLY (WRONGLY SPELT AS DR. WALLI 49 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) IN THE TI DATED 16/7/2000), WHO ALSO VISITED INDIA SEVERAL TIMES DURING THE PERIOD THE ASSESSEE COULD NOT TRAVEL OUTSIDE INDIA, IS STATED TO BE THE ASSESSEES PORTFOLIO MANAGER, AND KASHINATH TAPURIA AS HIS ADVISOR . THE ACCOUNT WAS LATER MOVED TO UBS AG, ZURICH, SWITZERLAND, AS FIRST SUGGESTED BY DR. WEILLY IN 1986. IN DECEMBER, 2002, THE ASSESSEE AUTHORIZED ONE, PHILIP ANANDRAJ (WHO WAS FOUND STAYING AT HIS PUNE RESIDENCE AT THE TIME OF SEARCH), DULY ACCEPTED, TO OPERATE HIS LOCKER WITH BARCLAYS BANK, PLC, ISSUING A LETTER (DULY SIGNED) DATED 23.12.2002 TO THE SAID BANK, AT LONDO N. IN FACT, PAS WITH WHOM THE ASSESSEE ENTERED INTO A CONSULTING AGREEMENT TO REPRESENT HIM INTERNATIONALLY IN APRIL, 2001, EXTENDED STAY AT THE ASSESSEES RESIDENCE ITSELF CONFIRMS THE ASSESSEES OVERSEAS FINANCIAL AND BUSINESS INTERESTS. WE ARE CONSC IOUS THAT NO ACCOUNT NUMBER IS MENTIONED IN THE TRANSFER INSTRUCTION. COULD THAT, HOWEVER, BE INTERPRETED AS IT BEARING NO ACCOUNT NUMBER, DEFEATING THE EXERCISE OR THE VERY PURPOSE OF ISSUING THE SAME ? IT IS NOT UNUSUAL NOT TO WRITE INFORMATION, DEEMED CO NFIDENTIAL, EXCEPT IN THE ORIGINAL COPY, I.E., ON THE BASIS OF WHICH THE EXECUTION IS TO BE MADE/IS SOUGHT. LIKEWISE FOR THE NON SIGNING OF THE TRANSFER INSTRUCTION; IT BEING USUAL NOT TO ASCRIBE THE SIGNATURE ON THE OFFICE COPY. IN FACT, TIS HAVE BEEN FOU ND IN SEARCH, AS ANNEXURE 12 TO THE ASSESSMENT ORDER FOR THE CURRENT YEAR, WHICH BEARS BOTH THE ACCOUNT NUMBER (WRITTEN BY HAND IN THE PLACE PROVIDED FOR IT IN THE LETTER, AS IN THE INSTANT TRANSFER INSTRUCTION), AS WELL AS THE ASSESSEES SIGNATURE. THE AB SENCE OF THESE ATTRIBUTES WOULD, THUS, IN OUR VIEW, BE OF LITTLE MOMENT. IN - AS - MUCH AS, HOWEVER, THE ACCOUNT NUMBER, WHICH IS NOT MENTIONED, COULD BE ANY OF THE ACCOUNTS WHICH THE ASSESSEE IS FOUND TO BE ASSOCIATED WITH, HE SHALL BE REQUIRED TO OBTAIN THE RELEVANT RECORD OF HIS ACCOUNTS (I.E., ACCOUNTS OF WHICH HE IS EITHER THE HOLDER OR BENEFICIARY OR POA HOLDER), AND SATISFY THE REVENUE WITH REGARD TO THE NON - MAINTENANCE OF ANY BALANCE (OR OF A LOWER BALANCE) THEREIN AT THE RELEVANT TIME. FOR THE TRANSFER INSTRUCTION BEARING AN ACCOUNT NUMBER, AS THE ONE DATED 50 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) 23.7.2000 SUPRA, THE VALIDITY OR OTHERWISE OF THE INFERENCE COULD BE DISLODGED BY PRODUCING THE SAID INFORMATION WITH REGARD TO THE ACCOUNT NUMBER SPECIFIED THEREIN. CONCLUSION 12. THE MATTER, IN V IEW OF THE FOREGOING, WOULD ACCORDINGLY STAND TO BE RESTORED BACK TO THE FILE OF THE ASSESSING AUTHORITY. WE ARE CONSCIOUS THAT THE TRANSFER INSTRUCTION BEARS NO ACCOUNT NUMBER. TO ACCEPT, AS CONTENDED, THAT THE TRANSFER INSTRUCTION OF A SUM TO AN ACCOUNT WHICH, AS CONFIRMED BY THE SAID REPORT ITSELF, BELONGED TO AN INDIAN NATIONAL (THOUGH SINCE CLOSED) WAS ISSUED WITHOUT THERE BEING ANY ACCOUNT OF THE ISSUER OF THE INSTRUCTION AT THE RELEVANT TIME, IS FATUOUS, IF NOT ALSO FARCICAL. THE ASSESSEE HAS, AS IT TRANSPIRES, ISSUED NOT ONE BUT SEVERAL TRANSFER INSTRUCTIONS, FROM TIME TO TIME, WHICH HAVE BEEN FOUND AS A PART OF THE SEIZED MATERIAL FROM HIS RESIDENCES, OR THAT OF KT AT KOLKATA, SEARCHED SIMULTANEOUSLY. THE INFORMATION/TIS PROVIDED BY ED, WHO JOINED F ORCES WITH THE DEPARTMENT, BESIDES BEING EQUALLY RELIABLE, ARE CORROBORATIVE. THE SAME THUS HAVE STRONG EVIDENTIARY VALUE, QUITE APART FROM S. 292C, WHICH SHALL APPLY TO ALL THE DOCUMENTS FOUND IN SEARCH, SO THAT THEIR CONTENTS, UNLESS SHOWN OTHERWISE, ARE TO BE REGARDED AS TRUE (REF: SURENDRA M. KHANDHAR V. CIT [2010] 321 ITR 254 (BOM)). THE BENEFICIARY IS CLEARLY SPECIFIED, CONFIRMED BY THE REVENUE AS AN EXISTING PERSON, WITH COMPLETE BANK PARTICULARS, AGAIN, FOUND AS CORRECT. THAT, THEREFORE, THERE IS AN ACCOUNT/S, EVEN IF UNSPECIFIED, WITH REFERENCE TO WHICH THE TRANSFER INSTRUCTION WAS ISSUED BY THE ASSESSEE, IS THE ONLY REASONABLE INFERENCE THAT EMANATES IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THE PREMISE OF THE ASSESSEES - WHO HAS NOT EXPLAINED A S TO WHY THIS, OR ANY OF THE SEVERAL TRANSFER INSTRUCTIONS WERE ISSUED BY HIM TO DIFFERENT PERSONS, FOR DIFFERENT AMOUNTS, AND EVEN FROM DIFFERENT PLACES, FROM TIME TO TIME - CASE IS THAT THE REVENUE IS OBLIGED TO PROVE BEYOND DOUBT THAT INCOME WAS GENERAT ED BY HIM. COUPLE THIS WITH A COMPLETE DENIAL OF THE TRANSACTIONS, HIS CASE CANNOT BUT BE DISCOUNTENANCED. THE ASSESSEE, WHO IS IN FACT APPLIED FOR & OBTAINED A NEW PAN FROM THE DEPARTMENT AT 51 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) MUMBAI IN 2005, CLAIMING TO BE A NEW ASSESSEE NOTWITHSTANDING HE BEING AN EXISTING ASSESSEE - FILING RETURNS (UP TO A.Y. 1999 - 2000) AT HYDERABAD, SHALL, THEREFORE, BE REQUIRED TO OBTAIN A CLEAR CERTIFICATE OF NOT MAINTAINING ANY ACCOUNT, EITHER AS AN ACCOUNT HOLDER OR ITS BENEFICIARY OR AS ITS POA, I.E., OF WHICH HE IS THE OWNER OF OR COULD OPERATE, AS SPECIFIED IN THE VARIOUS DOCUMENTS FOUND IN SEARCH OR OTHERWISE TRANSMITTED TO THE REVENUE. HE CANNOT, AFTER ALL, IT MUST BE APPRECIATED, PROVE A NEGATIVE, I.E., THAT HE DOES NOT HAVE ANY ACCOUNT WITH UBS AG (ON WHICH TRA NSFER INSTRUCTION IS DRAWN), OTHER THAN HE IS FOUND TO BE ASSOCIATED WITH IN ANY CAPACITY, EITHER ON THE BASIS OF THE VARIOUS DOCUMENTS IN THE POSSESSION OF THE REVENUE OR PER THE UBS AG REPORT, SINCE ADMITTED IN EVIDENCE. FOR THESE ACCOUNTS, HOWEVER, HE I S OBLIGED TO PRODUCE AN AUTHENTIC STATEMENT OF ACCOUNT FOR THE RELEVANT PERIOD. THE ASSESSEE COULD DISPROVE THE SAID DOCUMENT BY A CERTIFICATE FROM HIS BANK THAT NO SUCH TRANSFER INSTRUCTION DATED 16.7.2000 (I.E., THE SPECIFIED TRANSFER INSTRUCTION) WAS IN FACT RECEIVED OR PROCESSED BY IT. IN - AS - MUCH AS THE ACCOUNT NUMBER (ON WHICH THE TI IS DRAWN), WHICH IS UNSPECIFIED, COULD BE ANY OF THE ACCOUNT NUMBERS WHICH FIND REFLECTION IN THE VARIOUS DOCUMENTS FOUND AND SEIZED BY THE REVENUE IN SEARCH OR OTHERWISE IN ITS POSSESSION FROM RELIABLE SOURCES, THE ASSESSEE, TO DECISIVELY DISPROVE THE DOCUMENT, WOULD REQUIRE A STATEMENT OF ACCOUNT FOR THE RELEVANT YEAR IN RESPECT OF SUCH ACCOUNTS. WE MAY HASTEN TO ADD THAT WE ARE, WHEN WE STATE SO, NOT FORECLOSING THE ASSE SSEES OPTIONS IN ANY MANNER. IT IS EQUALLY OPEN TO HIM TO EXPLAIN THE DOCUMENT, AS INDEED THE LAW OBLIGES HIM TO. THAT IS, WHY AND UNDER WHAT CIRCUMSTANCES THE TI WAS ISSUED ON HIS BANK, FOR A SPECIFIED AMOUNT, FAVORING A SPECIFIED BENEFICIARY (BY NAME AN D/OR ACCOUNT) AND, AS A CONCOMITANT, THE NATURE AND SOURCE OF THE FUNDS IN HIS ACCOUNT/S. THE NOTARIZED STATEMENT DATED 30/6/2003 (REFER PARA 11.5), AS APPARENT, DOES NOT THROW ANY LIGHT ON THIS ASPECT, EXCEPT THAT HAK HAD ACCESS TO HUGE FUNDS AND, BESIDES INVESTMENTS, WAS ALSO CALLED UPON TO FINANCE PROJECTS. 52 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) THE AO SHALL, ACCORDINGLY, ADJUDICATE AFRESH, BASED ON HIS FINDINGS IN THE SET ASIDE PROCEEDINGS, IN ACCORDANCE WITH LAW. THE SAID FINDINGS SHALL, INTER ALIA , ADDRESS THE ISSUES RAISED AND CONSIDERED PERTINENT BY US. NEEDLESS TO ADD, THE ASSESSEE SHALL BE ALLOWED A REASONABLE OPPORTUNITY OF HEARING. WE DECIDE ACCORDINGLY. 53 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) A NNEXURE A - 2 EXTRACT FROM THE ORDER OF KASHINATH TAPURIAH (IN ITA NOS. 3815 TO 3821/ /M/ 20 1 0 ) 6. GROUND # 5 IS IN RESPECT OF ADDITION FOR RS.447 CRORES TOWARD UNEXPLAINED DEPOSIT IN THE ASSESSEES BANK ACCOUNT NO. 760001 WITH UNITED BANK OF SWITZERLAND (NAME SINCE CHANGED TO UBS AG, ZURICH) DURING THE YEAR. THE REVENUE, ON THE BASIS OF THE INFORMATION RECEIVED FROM ED, FOUND THE ASSESSEE TO BE IN RECEIPT OF THE SAID SUM (USD 100 MILLION) FROM HAK, ON THE BASIS OF TRANSFER INSTRUCTION BY HAK, I.E., VIDE HIS LETTER DATED 16.7.2000 TO THE SAID BANK, EVEN AS THE ASSESSEE DENIED ANY KNOWLEDGE OF THE SAME OR EVEN OF THE EXISTENCE OF TH E SAID ACCOUNT. 7. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. 7.1 THE ADDITION, THUS, IS BASED ON A TRANSFER INSTRUCTION (TI), WHICH THOUGH IN THE INSTANT CASE IS IN THE FORM OF A LETTER, REPRODUCED AT PARA 11 OF THE ASSESSMENT ORDE R AS WELL AS, PRIOR THERETO, IN THE SHOW CAUSE NOTICE DATED 19.12.2008, READING AS UNDER: THE UNION BANK OF SWITZERLAND JULY 16, 2000 ZURICH ATTN. DR. WALLI (THROUGH UBS DUBAI) DEAR SIR, PLEASE TRANSFER A SUM OF US DOLLARS ONE HUNDRED MILLION (US $ 100,000,000) FROM MY ACCOUNT NO , TO THE ACCOUNT OF MR. KASHINATH TAPURIAH ACCOUNT NO. 760001, WITH YOUR BANK IN ZURICH. THIS MAY PLEASE BE TREATED AS MY INSTRUCTIONS, AND I REQUEST YOU TO TAKE IMMEDIATE ACTION AND CONFIRM. THANKING YOU, YOURS TRULY, HASSAN ALI KHAN THE ASSESSEES CASE, AS IN THE CASE OF HAK (IN WHOSE HANDS ALSO ADDITION STANDS MADE ON THE BASIS OF THE SAID LETTER), IS ONE OF COMPLETE DENIAL, WHICH IN VIEW OF THE 54 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) REVENUE CANNOT HOLD IN VIEW O F THE SPECIFIC INFORMATION CONTAINED THEREIN, RELIABILITY OF WHICH, BEING RECEIVED FROM AN OFFICIAL SOURCE, CANNOT BE DOUBTED. THE RESPECTIVE CASES OF THE PARTIES ARE THUS THE SAME, AS IN THE CASE OF HAK, WHICH STANDS DISCUSSED AT LENGTH BY THE TRIBUNAL AT PARAS 9 - 12 OF ITS ORDER (IN ITA NOS.4156 - 4162/MUM/2010 DATED 29.2.2016), WITH PARAS 11 AND 12 BEARING ITS FINDINGS. THE SAID ADDITION, IN FACT, HAPPENS TO BE THE FIRST SUCH ADDITION, I.E., BASED ON A TRANSFER INSTRUCTION (TI), IN THE CASE OF HAK (SUPRA), SEVERAL OF WHICH FOLLOW, AS A READING OF THE SAID ORDER WOULD SHOW, DISCUSSED IN ITS VARIOUS ASPECTS THEREIN, EVEN AS THE APPROACH AND THE RATIONALE UNDERLYING THE SAME AND, CONSEQUENTLY, THE RESULT, REMAINS THE SAME. REFERENCE TOWARD THIS MAY ALSO BE MAD E TO PARAS 15, 25, 30, 49, 65A AND 109 OF THE SAID ORDER. THE TRIBUNAL FOUND THE TIS, DESPITE BEING TRANSMITTED TO THE REVENUE BY ED, WHICH JOINED THE REVENUE IN THE SEARCH OPERATIONS, AND NOT FOUND BY THE LATTER ITSELF IN SEARCH U/S. 132(1), SO THAT SECTI ON 132(4) AS WELL AS THE STATUTORY PRESUMPTION OF SECTION 292C OF THE ACT WOULD, STRICTLY SPEAKING, NOT APPLY IN RELATION THERETO, TO YET HAVE A STRONG AND PERSUASIVE EVIDENTIARY VALUE. THE NON - MENTION OF THE TRANSFERORS BANK ACCOUNT NUMBER OR ITS NON - SI GNING BY HIM THOUGH OBTAINING IN SOME CASES, STANDS DISCUSSED, AS WERE THE OTHER ASPECTS IN RELATION THERETO, VIZ. THE BACKGROUND AND THE SURROUNDING FACTS AND CIRCUMSTANCES; THE BANK PARTICULARS, INCLUDING THE NAMES OF THE BANK OFFICIALS, THE ABIDING AN D APPARENT RELATIONSHIP BETWEEN THE ASSESSEE AND KT, IN THE SAID PARAS. THE SAME WOULD APPLY IN THE EQUAL MEASURE IN THE PRESENT CASE, WITH RATHER THE EXISTENCE OF THE ACCOUNT NUMBER 76001 (IN THE NAME OF THE ASSESSEE (KT)) BEING ADMITTED, BOTH BY HIM AS W ELL AS IN THE BANK REPORT. AS REGARDS THE REASON FOR THE HAK TO TRANSFER FUNDS IN SUCH HUGE SUMS TO HIM, THE ASSESSEE HIMSELF NOW (VIDE LETTER DATED 01.7.2009, PGS.914 - 917/APB - 5) EXPLAINS THAT TO BE THE SOLE PURPOSE AND THE RAISO N DETRE OF HIS RELATIONSHI P WITH HAK, WHO, CLAIMED TO HAVE ACCESS TO HUGE FUNDS, PROMISED TO INVEST IN THE ASSESSEES PROJECTS. WHETHER THAT BY ITSELF WAS SUFFICIENT FOR THE ASSESSEE TO HAVE, ON THE CONTRARY, AS CLAIMED, INCUR HEAVY EXPENDITURE OR, RATHER, TRANSFER NO INSUBSTANTIAL SUMS TO HAK, I.E., TO HAVE CONTINUED 55 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) TO BE DELUDED BY THE SAID PROMISE FOR SEVERAL YEARS, IS ANOTHER MATTER. THERE IS, HOWEVER, SUFFICIENT EVIDENCE ON RECORD TO SHOW THE TWO SHARING A CLOSE RELATIONSHIP FOR SEVERAL YEARS THE ASSESSEE CLAIMING TO KNOW HA K SINCE 1994, OF WHICH MUTUAL TRUST IS AN ESSENTIAL INGREDIENT, AS WELL AS, BY IMPLICATION, COMMON BUSINESS INTENT AND INTEREST. THERE IS AN AGREEMENT DATED 07.8.2001 BETWEEN THEM, AT DUBAI, RECOVERED FROM THE PREMISES OF BOTH IN SEARCH, ENVISAGING TRANSFE R OF HUGE FUNDS TO THE ASSESSEE (WHICH STANDS DISCUSSED EXTENSIVELY IN THE ORDER DATED 29.2.2016 (SUPRA) IN THE CASE OF HAK ), WHO THOUGH NOW DEBUNKS THE SAME. FURTHER, HAK VIDE HIS NOTARIZED STATEMENT DATED 30.6.2003 AT LONDON (FORMING ANNEXURE - C TO THE OR DER AFORE - MENTIONED), WHEREAT THE ASSESSEE WAS ALSO PRESENT, STATES OF HIM AS BEING HIS ADVISOR. IN FACT, HAK WAS FOUND TO HAVE LENT RS.5 CRS. TO R. M. CONSULTANTS P. LTD., KOLKATA A COMPANY OF KT (ASSESSEE) (REFER PARAS 11 - 12, 18, 30.2 OF THE ORDER AFORE - STATED). THE REVENUE IN FACT IS NOT OBLIGED TO PROVE THE NATURE OF THE RECEIPT OR TO LOCATE ITS SOURCE, SO THAT, WHERE NOT SATISFACTORILY EXPLAINED AS TO ITS NATURE AND/OR SOURCE, IT COULD BE DEEMED AS INCOME (REFER: CIT VS. DEVI PRASAD VISHWANATH PRASAD [ 1969] 72 ITR 194 (SC) ; SREELEKHA BANERJEE VS. CIT [1963] 49 ITR 112 (SC) ) . IN THE VIEW OF THE TRIBUNAL, THIS WAS A MATTER OF FACT, WHICH HAD TO BE ESTABLISHED BY DEFINITE MATERIAL/EVIDENCE, VIZ. THE COPY OF THE BANK ACCOUNTS, IN VIEW OF THE DEFINITE MATERI AL WITH THE REVENUE (IN THE FORM OF TIS), AND WHICH THEREFORE WOULD PRESUMABLY BE CONSIDERED AS HAVING BEEN GIVEN EFFECT TO. THEN, AGAIN, EVEN SO, THE ADDITION IS TOWARD UNEXPLAINED DEPOSIT (BALANCE) IN ACCOUNT, SIGNIFIED BY THE DRAWING OF THE TI ITSELF. A S SUCH, EVEN IF NOT GIVEN EFFECT TO, THE NECESSARY IMPLICATION AND THE INFERENCE OF THE BALANCE IN ACCOUNT SHALL FOLLOW AND HOLD, JUSTIFYING INVOCATION OF SECTION 69A. THE RE IS IMPLICATION FOR THE TRANSFEREES CASE AS WELL . THIS IS AS THE TI IMPLIES A RIGH T IN THE AMOUNT SOUGHT TO BE TRANSFERRED THEREBY, AND PRESUMABLY ONLY ON OWN ACCOUNT . THIS COULD THOUGH BE DISPROVED, ADDUCING, AGAIN, SATISFACTORY EXPLANATION AS TO THE NATURE OF THE FUNDS SOUGHT TO BE TRANSFERRED. ACCORDINGLY, A CONCOMITANT OF THE ASSESS EE BEING ENTITLED TO FUNDS IN THE SUM STATED IN THE TRANSFER INSTRUCTION, IN THE ABSENCE OF EXPLANATION AS TO 56 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) ITS NATURE, WOULD, EVEN WHERE NOT RECEIVED, ADMIT AN INFERENCE AS TO ACCRUAL OF INCOME, AS ALSO OF THE APPLICATION OF THE DEEMING FICTION OF SECTI ON 69A; THE ASSESSEE BEING FOUND TO BE A CREDITOR QUA A DEBT TO THAT EXTENT. THAT IS, THE NATURE OF THE DEBT, UNEXPLAINED, IS SUFFICIENT TO ATTRACT THE RIGOR OF THE PROVISION. 7.2 NO IMPROVEMENT IN HIS CASE STANDS MADE BY THE ASSESSEE, I.E., VIS - A - VIS THA T BEFORE THE REVENUE, EVEN AS INDICATED ABOVE WITH REFERENCE TO THE ARGUMENTS IN RESPECT OF ADMISSION OF ADDITIONAL EVIDENCE BY THE TRIBUNAL. SO, HOWEVER, AND EVEN AS WE SAY SO, WE CANNOT HELP BUT OBSERVING AND, ACCORDINGLY, STATE THAT THE TRIBUNAL IN THE CASE OF HAK (SUPRA), DECISION IN WHICH CASE SHALL FOR APPARENT REASONS STAND TO BE ADOPTED IN THE PRESENT CASE, I.E., A SET ASIDE TO THE FILE OF THE ASSESSING AUTHORITY TO ENABLE THE ASSESSEE TO CONCLUSIVELY PROVE THE FACTS, BESIDES BEING PRECISELY WHAT TH E LD. COUNSEL, SHRI CHETAN KARIA, CA, ARGUED AND WAS AT PAINS TO BRING HOME. IN THE PRESENT CASE, THE ACCOUNT NUMBER SPECIFIED IN THE DOCUMENT IS ADMITTED AND CONFIRMED TO BE THAT OF THE ASSESSEES BANK ACCOUNT WITH UBS AG, ZURICH. THE DECISION OF THE TRI BUNAL IN HAK (SUPRA) SHALL, ACCORDINGLY, APPLY ON ALL FOURS, WITH WE FINDING NO REASON TO TAKE ANY DIFFERENT VIEW IN THE MATTER. AS SUCH, FOR THE SAME REASONS AS STATED IN THE SAID ORDER, AND FOR WHICH REASONS REFERENCE IS DRAWN TO THE SIX (6) PARAS THEREO F ADVERTED TO ABOVE, WE DECIDE LIKEWISE, I.E., RESTORE THE MATTER BACK TO THE FILE OF THE A.O. TO ADJUDICATE AFRESH, ALLOWING THE ASSESSEE AN OPPORTUNITY TO ESTABLISH HIS CASE. HE SHALL BE REQUIRED TO PRODUCE THE RELEVANT BANK ACCOUNT/S TO EXHIBIT THE NON RECEIPT OF THE RELEVANT AMOUNT/S IN THE WHOLE OR IN PART DURING THE RELEVANT YEAR, OR AT ANY TIME LATER. WE STATE SO AS IT COULD WELL BE THAT THE TI GETS DELAYED IN EXECUTION FOR SOME REASON, AND IS GIVEN EFFECT TO AT A LATER POINT IN TIME. THE ADDITIO N THOUGH, WE MAY CLARIFY, EVEN IF THIS AMOUNT STANDS RECEIVED IN WHOLE OR IN PART, DURING A SUBSEQUENT YEAR, SHALL BE FOR THE CURRENT YEAR AS, AS PRESENTLY DISCUSSED, THE SAME IS ONLY IN PURSUANCE TO THE RIGHTS ALREADY INURED, I.E., IN DISCHARGE OF THE L IABILITY ALREADY ACCRUED/ARISEN. WHERE, HOWEVER, NO AMOUNT IS RECEIVED, THE 57 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) ADDITION, SOLELY ON THE BASIS OF A TI, THOUGH COULD BE MADE, WOULD ONLY BE WHERE THE REVENUE HAS ANY MATERIAL TO JUSTIFY THE ACCRUAL OF INCOME AND, ACCORDINGLY, WOULD REQUIRE BEING ADJUDICATED ON THE BASIS OF THE ENTIRETY AND FACTS AND CIRCUMSTANCES OF THE CASE. QUA TIS WHERE NO BANK ACCOUNT IS SPECIFIED THEREIN, IN - AS - MUCH AS THE ASSESSEE CANNOT PROVE A NEGATIVE, IT SHALL, AS ALSO CLARIFIED IN HAK (SUPRA), SUFFICE, I.E., THE BURDEN OF PROOF ON THE ASSESSEE SHALL STAND DISCHARGED, WHERE HE PRODUCES THE BANK STATEMENT OF ALL SUCH BANK ACCOUNTS, EITHER ADMITTED BY THE ASSESSEE OR HIS WIFE OR IN THE KNOWLEDGE OF THE REVENUE ON THE BASIS OF THE MATERIAL FOUND IN SEARCH OR OTHERWISE TRANS MITTED TO IT. WE MAY ALSO, BEFORE CONCLUDING, CLARIFY THAT IT SHALL BE OPEN FOR THE ASSESSEE TO, I.E., APART FROM THE COURSE SUGGESTED ABOVE, EXPLAIN THE TRANSACTION. THAT IS, THE BASIS OR THE REASON FOR THE DRAWING OF THE TI AND THE CONSEQUENT EVENTS LEAD ING TO THE RECEIPT IN WHOLE OR IN PART, OR THE NON - RECEIPT OF THE STATED SUM/S, EXPLAINING AS TO WHY THE RECEIPT SHOULD NOT BE DEEMED AS INCOME OR, AS THE CASE MAY BE, THE REASON FOR ITS NON - RECEIPT, AND WHERE SO, THE ASSESSING AUTHORITY SHALL DECIDE, GI VING REASONS IN SUPPORT OF HIS DECISION. WE DECIDE ACCORDINGLY. THIS ALSO DECIDES OTHER TI BASED ADDITIONS IN THESE APPEALS BY THE ASSESSEE, FACTS OF WHICH ARE PARI MATERIA , BEING IN FACT ALSO ARGUED TOGETHER, VIZ. GROUND # 6 (FOR THE CURRENT YEAR). 58 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) A N NEXURE B EXTRACT FROM THE ORDER OF KASHINATH TAPURIAH (IN ITA NOS. 3815 TO 3821/ /M/ 20 1 0 ) 18.2 WE MAY, HOWEVER, BEFORE WE BEGIN TO ADDRESS AND ADJUDICATE THE OTHER GROUNDS RAISED BY THE ASSESSEE, CLARIFY THAT FOR THIS YEAR ONLY THE ADDITIONS AND/OR DIS ALLOWANCE MADE OR EFFECTED ON THE BASIS OF THE MATERIAL OR EVIDENCES FOUND DURING SEARCH, OR THAT FOUND IN PURSUANCE THEREOF, I.E., AS A DIRECT RESULT OF SEARCH, ONLY WOULD, IN VIEW OF THE DECISION IN CONTINENTAL WAREHOUSING CORPORATION (SUPRA/ALSO AT APB - 11, PGS. 1888 - 1948), STAND TO BE ADJUDICATED ON MERITS, THE BALANCE BEING, AS HELD THEREIN, INCOMPETENT IN THE PRESENT PROCEEDINGS WHICH ARISE ONLY ON ACCOUNT OF A SEARCH U/S. 132 OR REQUISITION U/S. 132A OF THE ACT. THE SAID DECISION, BEING BY THE HONBLE JURISDICTIONAL HIGH COURT, IS JUDICIALLY BINDING. PER THE SAME, THE HONBLE COURT HAS HELD THAT THOUGH A NON OBSTANTE PROVISION, SO AS NOT TO RESTRICT THE POWER OF ASSESSMENT OF THE A.O. U/S. 153A, YET THE FOUNDATION OF ACTION U/S. 153A IS A SEARCH U/S. 1 32 OR REQUISITION OF BOOKS OF ACCOUNT OR OTHER ASSETS U/S. 132A. AS SUCH, SECTION 153A, ENABLING ASSESSMENT IN CASE OF A SEARCH OR REQUISITION, MAKING SPECIFIC REFERENCE TO THE CARRYING OUT OF SEARCH OR EXERCISE OF POWER OF REQUISITION, THE ASSESSMENT U/S. 153A IS ONLY IN FURTHERANCE TO WHAT IS CONTEMPLATED THEREIN. ACCORDINGLY, FOR COMPLETED ASSESSMENTS, WHICH DO NOT ABATE, ASSESSMENT SHALL BE MADE ON THE BASIS OF BOOKS OF ACCOUNT NOT PRODUCED IN THE COURSE OF ORIGINAL ASSESSMENT BUT FOUND IN THE COURSE OF SEARCH, AND UNDISCLOSED INCOME DISCOVERED IN THE COURSE OF SEARCH (REFER PARAS 18, 23, 28 - 31 OF THE JUDGMENT AS WELL AS PARAS 48 - 54 OF THE ORDER OF THE TRIBUNAL IN ALL CARGO GLOBAL LOGISTICS LTD . VS. D Y. CIT [ 2012 ] 23 T AXMANN.COM 103(MUM)(SB), REPRODUCED AT PARA 31). THE HONBLE APEX COURT IN P. R. METRANI VS. CIT [2006] 287 ITR 209 (SC) HAD AN OCCASION TO CONSIDER THE SCOPE OF THE SEARCH AND SEIZURE PROCEEDINGS UNDER THE ACT. APPROVING THE DECISIONS IN PUSHKAR NARAIN SARRAF VS. CIT [1990] 183 ITR 388 (A LL) AND DAYA CHAND VS. CIT [2001] 250 ITR 327 (DEL), AND THE REVERSING THE DECISION IN 59 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) CIT VS. P. R. METRANI (HUF) [2001] 251 ITR 244 (KAR), IT CLARIFIED THIS SCOPE TO BE VERY LIMITED, I.E., RESTRICTED TO A SUMMARY ASSESSMENT TOWARD RETAINING SUFFICIENT AS SETS TO MEET THE DEMAND OF TAX AND/OR PENALTY THAT MAY ARISE IN ASSESSMENT. SECTION 132, IT EXPLAINS, IS A COMPLETE CODE IN ITSELF, WHICH CANNOT INTRUDE INTO ANY OTHER PROVISION OF THE ACT AND, SIMILARLY, THE OTHER PROVISIONS OF THE ACT CANNOT INTERFERE WI TH THE SCHEME OF THE WORKING OF SECTION 132 OR ITS PROVISIONS. THE PRESUMPTION OF SECTION 132(4A) IS ONLY FOR THE LIMITED PURPOSE OF PASSING AN ORDER U/S. 132(5), AND WAS NOT AVAILABLE FOR FRAMING A REGULAR ASSESSMENT . THE HONBLE APEX COURT FOUND THE PROV ISIONS (FORMING PART OF CHAPTER XIII - C) TO HAVE ALL THE TRAPPINGS OF A SMALL CODE IN ITSELF, EMBODYING AN INTEGRATED SCHEME (SECTIONS 132 TO 132B) FOR A SPECIFIC PURPOSE, I.E., LAYING DOWN A COMPLETE PROCEDURE FOR SEARCH AND SEIZURE; THE POWER OF THE RELEV ANT AUTHORITIES, AND CONFISCATION OF THE ASSETS SEIZED. THE MATERIAL SEIZED THOUGH COULD BE USED AS A PIECE OF EVIDENCE IN ANY PROCEEDINGS UNDER THE ACT, WITH SECTION 132(4) ITSELF SO PROVIDING. THAT IS, THE PROVISIONS OF SECTIONS 132 AND 132A, SAVE TO THE EXTENT SPECIFICALLY PROVIDED, WOULD NOT IMPACT OR REGULATE THE PROCESS OF ASSESSMENT IN ANY MANNER. AN ASSESSMENT UNDER THE ACT, I.E., WHERE THE A.O. HAS THE POWER TO ASSESS INCOME AFTER MAKING ENQUIRIES, BY EFFECTING ADJUSTMENT/S TO THE RETURNED INCOME, CAN EVEN OTHERWISE BE MADE ONLY ON THE BASIS OF MATERIAL ON RECORD, APPLYING THE EXTANT LAW (OF - COURSE DULY CONFRONTING THE ASSESSEE THEREWITH) AND, BESIDES, IS IMPERMISSIBLE TO BE REVIEWED ( CIT VS. KELVINATOR OF INDIA LTD. [2010] 320 ITR 561 (SC)). BE THA T AS IT MAY, IN ALL CASES OF COMPLETED ASSESSMENT, AS HELD BY THE HONBLE COURT IN CONTINENTAL WAREHOUSING CORPORATION (SUPRA), BINDING ON US, THE SCOPE OF SECTION 153A ASSESSMENT SHALL BE CONFINED TO THE FINDINGS OF THE SEARCH OR, AS THE CASE MAY BE, REQU ISITION. 54. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. ADMITTEDLY, . . WE DECIDE ACCORDINGLY. 60 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) WE HAVE, HOWEVER, TWO OBSERVATIONS TO MAKE IN THIS REGARD. FIRSTLY, . . TWO, THERE IS NO INDICATION IF THE ASSESSMENT FOR THE CURRENT YEAR (A.Y. 2005 - 06) WAS FRAMED AT ANY TIME, I.E., PRIOR TO THE IMPUGNED ASSESSMENT. TRUE, ONE COULD ARGUE, AS INDEED IT WAS BEFORE US, THAT WHERE NO ASSESSMENT FOR THE YEAR IS PENDING, IN - AS - MUCH AS THE TIME PROVIDED FOR THE SERVICE OF NOTICE U/S. 143(2) UNDER THE ACT HAD EXPIRED, IT DID NOT ABATE, AND IT WAS BY IMPLICATION A CONCLUDED ASSESSMENT, WHICH CANNOT BE INTERFERED WITH IN SECTION 153A PROCEEDINGS. BOTH THE PARTIES BEFORE US RELIED, IN SUPPORT OF THEIR CASES, ON THE DECISION IN THE CASE OF CONTIN ENTAL WAREHOUSING CORPORATION (SUPRA). THERE IS, FIRSTLY, ADMITTEDLY NO INTIMATION U/S. 143(1) OR ORDER U/S. 143(3), SO THAT THE STATED ISSUE DOES NOT ARISE FOR CONSIDERATION, SAVE FOR A.Y. 2002 - 03, FOR WHICH, AS AFORE - DISCUSSED, CONCLUDED ASSESSMENT U/S. 143(3) STANDS MADE. FURTHER, THIS ISSUE WILL ALSO NOT ARISE FOR A.Y. 2007 - 08 FOR WHICH NO RETURN HAS ADMITTEDLY BEEN FILED U/S. 139 AND THE IMPUGNED ASSESSMENT (U/S. 144) FOR WHICH YEAR IS THE ORIGINAL ASSESSMENT. AS, HOWEVER, PROCESSING OF EACH RETURN, VA LIDLY FURNISHED, IS AN ESTABLISHED PROCEDURE, WE CONSIDER THIS ISSUE, WITHOUT PREJUDICE , MOVING ON THE PREMISE THAT THE SAME MAY HAVE BEEN SUBJECT TO PROCESSING U/S. 143(1), AND WHICH ISSUE WOULD THEREFORE SURVIVE FOR A.YS. 2001 - 02, 2003 - 04 TO 2005 - 06. THI S IS AS FOR A.Y. 2006 - 07, THE RETURN FILED PRIOR TO THE DATE OF SEARCH IS ON 28.5.2008, I.E., BEYOND THE TIME PRESCRIBED THEREFOR U/S. 139(1) OR FOR A BELATED RETURN U/S. 139(4). ON MERITS, THE GIST OF THE AFORE - SAID DECISION, EVEN OTHERWISE BINDING ON US, STANDS STATED AT PARA 18.2 OF THIS ORDER, MAKING REFERENCE TO DIFFERENT PARAGRAPHS THEREOF. THE SAME, CAREFULLY PERUSED, IN OUR VIEW, MAKES IT ABUNDANTLY CLEAR THAT WHEN THE HONBLE COURT SPEAKS OF A COMPLETED ASSESSMENT, IT ADVERTS AND REFERS TO JUST THA T, I.E., AN ASSESSMENT COMPLETED OBSERVING THE DUE PROCESS OF LAW, FOR WHICH THERE IS AN ORDER OF ASSESSMENT (OR REASSESSMENT) IN FORCE AS ON THE DATE OF SEARCH OR REQUISITION. IT, IN SO DOING, REITERATES ITS EARLIER DECISION IN CIT VS. MURLI AGRO PRODUCTS LTD. (IN ITA NO. 36 OF 2009 DATED 29.10.2010), WHICH IT IN FACT FOLLOWS, REPRODUCING THE RELEVANT PART (PARAS 8 - 13) AT PARA 28 OF ITS JUDGMENT (REPORTED 61 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) AT PGS. 658 660 OF THE REPORTS). VIDE PARA 10 (REPRODUCED) THE HONBLE COURT SPEAKS OF ASSESSMENT/RE ASSESSMENT WHICH STANDS FINALIZED AS NOT ABATING, SO THAT THE APPEAL OR REVISION PROCEEDINGS PENDING AGAINST SUCH FINALIZED ASSESSMENT WOULD NOT ABATE. THIS IS ALSO WHAT STANDS CLARIFIED BY THE BOARD PER ITS CIRCULARS. THEN, AT PARA 12 (REPRODUCED), IT CLA RIFIES THAT IN PASSING AN ASSESSMENT U/S. 153A R/W S. 143(3), THE A.O. CANNOT DISTURB THE FINALITY OF AN (RE)ASSESSMENT ORDER, UNLESS OF - COURSE THE RELIEF GRANTED UNDER A FINALISED ASSESSMENT IS CONTRARY TO THE FACTS UNEARTHED DURING THE COURSE OF SECTION 153A PROCEEDINGS. IT FURTHER EXPRESSES ITSELF UNEQUIVOCALLY AT PARA 29 (OF ITS LATER DECISION), AT PG. 660 OF THE REPORTS, AS UNDER: IF THEY WERE PENDING ON THE DATE OF INITIATION OF THE SEARCH U/S. 132 OR MAKING OF REQUISITION U/S. 132A, AS THE CASE M AY BE, THEY ABATE. IT IS ONLY THE PENDING PROCEEDINGS THAT WOULD ABATE AND NOT WHERE THERE ARE ORDERS MADE OF ASSESSMENT OR REASSESSMENT A RE IN FORCE ON THE DATE OF INITIATION OF THE SEARCH OR MAKING OF A REQUISITION . WHAT, ONE MAY ASK, COULD BE MORE EX PLICIT THAN THIS ? A FINALISED ASSESSMENT, IT CONTINUES TO EXPLAIN (AT PG. 661), CANNOT BE TOUCHED BY RESORTING TO THE PROVISION (SECTION 153A). WHETHER THE PROCESSING OF THE RETURN U/S. 143(1) COULD BE SAID TO BE AN ASSESSMENT IS A MATTER DEALT WITH, AND C AN BE SAID TO BE CONCLUDED BY THE DECISION BY THE HONBLE APEX COURT IN CIT VS. RAJESH JHAVERI STOCK BROKERS PVT. LTD. [2007] 291 ITR 500 ( SC). TRACING THE LEGISLATIVE HISTORY OF THE PROVISION, FOR WHICH IT MAKES REFERENCE TO ITS EARLIER DECISION IN APOGEE INTERNATIONAL LTD. VS. UNION OF INDIA [1996] 220 ITR 248 (SC), IT EXPLAINED THAT THE LEGISLATIVE INTENT IS VERY CLEAR FROM THE USE OF THE WORD INTIMATION AS SUBSTITUTED FOR ASSESSMENT, WHICH DENOTE DIFFERENT CONCEPTS. WHILE IN ASSESSMENT, THE A.O. IS FREE TO MAKE ANY ADDITION AFTER GRANT OF OPPORTUNITY TO THE ASSESSEE, NO SUCH ADDITION/ADJUSTMENT IS PERMISSIBLE U/S. 143(1), WHERE - UNDER HE CANNOT GO BEYOND THE RETURN, ACCOUNTS OR DOCUMENTS ACCOMPANYING THE RETURN, AND FOR THE REASON THAT NO OPPORTUNITY IS GRANTED TO THE ASSESSEE. SUBSTANTIAL CHANGES, IT NOTES, HAVE BEEN FURTHER MADE W.E.F. 01.6.1999, RESTRICTING THE POWER TO 62 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) MAKE ADJUSTMENT TO REMOVAL OF ARITHMETIC ERRORS OR THAT OTHERWISE APPARENT ON THE BASIS OF THE RETURN ITSELF OR THE DOCUMENTS ACCO MPANYING THE SAME. THE PROCESSING OF THE RETURN, LEADING TO AN INTIMATION U/S. 143(1), MAY NOT BE DONE BY THE AO HIMSELF AND, FURTHER, IS WITHOUT PREJUDICE TO THE PROVISION OF SECTION 143(2) (REFER PGS. 507 TO 510 OF THE REPORTS). THE INTIMATION U/S. 143(1 ), IT FURTHER EXPLAINS, IS NOT AN ASSESSMENT AND CANNOT BE TREATED AS AN ASSESSMENT ORDER, ALSO EXPLAINING THE PURPOSE FOR WHICH IT IS DEEMED AS A NOTICE OF DEMAND U/S. 156, I.E., TO ENABLE RECOVERY THEREOF, WHERE IT REFLECTS TAX PAYABLE. CONTINUING FURT HER, IT EXPLAINS THAT THE WORD ASSESSMENT IS USED IN THE ACT FOR CONVEYING DIFFERENT MEANINGS. IT MAY BE USED TO MEAN THE COMPUTATION OF INCOME, SOMETIMES THE DETERMINATION OF THE AMOUNT OF TAX PAYABLE AND SOMETIMES THE WHOLE PROCEDURE LAID DOWN IN THE ACT FOR IMPOSING LIABILITY UPON THE TAX PAYER (PGS. 507 - 510). WE HAVING SET OUT THE DECISION IN BRIEF, MAY AS WELL REPRODUCE A PART THEREOF (PGS. 509 - 510), AS UNDER: IN THE SCHEME OF THINGS, AS NOTED ABOVE, THE INTIMATION UNDER SECTION 143(1)(A) CANNOT BE TREATED TO BE AN ORDER OF ASSESSMENT . THE DISTINCTION IS ALSO WELL BROUGHT OUT BY THE STATUTORY PROVISIONS AS THEY STOOD AT DIFFERENT POINTS OF TIME. UNDER SECTION 143(L)(A) AS IT STOOD PRIOR TO APRIL 1, 1989, THE ASSESSING OFFICER HAD TO PASS AN ASSESSMENT ORDER IF HE DECIDED TO ACCEPT THE RETURN, BUT UNDER THE AMENDED PROVISION, THE REQUIREMENT OF PASSING OF AN ASSESSMENT ORDER HAS BEEN DISPENSED WITH AND INSTEAD AN INTIMATION IS REQUIRED TO BE SENT. VARIOUS CIRCULARS SENT BY THE CENTRAL BOARD OF DIRECT TAXES SPELL OUT THE INTENT OF THE LEGISLATURE, I.E., TO MINIMIZE THE DEPARTMENTAL WORK TO SCRUTINIZE EACH AND EVERY RETURN AND TO CONCENTRATE ON S ELECTIVE SCRUTINY OF RETURNS. THESE ASPECTS WERE HIGHLIGHTED BY ONE OF US (D. K. JAIN J) IN APOGEE INTERNATIONAL LIMITED V. UNION OF INDIA [(1996) 220 ITR 248]. IT MAY BE NOTED ABOVE THAT UNDER THE FIRST PROVISO TO THE NEWLY SUBSTITUTED SECTION 143(1) , WITH EFFECT FROM JUNE 1, 1999, EXCEPT AS PROVIDED IN THE PROVISION ITSELF, THE ACKNOWLEDGMENT OF THE RETURN SHALL BE DEEMED TO BE AN INTIMATION UNDER SECTION 143(1) WHERE (A) EITHER NO SUM IS PAYABLE BY THE ASSESSEE, OR (B) NO REFUND IS DUE TO HIM. IT IS SIGNIFICANT THAT THE ACKNOWLEDGMENT IS NOT DONE BY ANY ASSESSING OFFICER, BUT MOSTLY BY MINISTERIAL STA FF. CAN IT BE SAID THAT ANY ASSESSMENT IS DONE BY THEM? THE REPLY IS AN EMPHATIC N O . THE 63 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) INTIMATION UNDER SECTION 143(1)(A) WAS DEEMED TO BE A NOTICE OF DEMAND UNDER SECTION 156 , FOR THE APPARENT PURPOSE OF MAKING MACHINERY PROVISIONS RELATING TO RECOVERY OF TAX APPLICABLE. BY SUCH APPLICATION ONLY RECOVERY INDICATED TO BE PAYABLE IN THE INTIMATION BECAME PERMISSIBLE. AND NOTHING MORE CAN BE INFERRED F ROM THE DEEMING PROVISION. THEREFORE, THERE BEING NO ASSESSMENT UNDER SECTION 143(1)(A) , THE QUESTION OF CHANGE OF OPINION, AS CONTENDED, DOES NOT ARISE . FINALLY, WE MAY, FOR THE SAKE OF COMPLETENESS OF THE DISCUSSION IN THE MATTER, WHICH WE HAVE THOUGH FOUND AS COMPLETELY COVERED BY THE DECISIONS BY THE HONBLE JURISDICTIONAL AND THE HONBLE APEX COURT CITED SUPRA, CONSIDER THE ARGUMENT OF THE PROCESSING OF A RETURN U/S. 143(1) AS LEADING TO AN ASSESSM ENT, I.E., AFTER THE EXPIRY OF THE TIME PRESCRIBED FOR THE SERVICE OF NOTICE U/S. 143(2), IN THE CONTEXT OF SECTION 153A PROCEEDINGS OR A S. 153A ASSESSMENT. THERE IS NO CONCEPT OF DEEMED ASSESSMENT, I.E., BY LAPSE OF TIME, UNDER THE ACT, WHICH IS A POSITI VE ACT OF DETERMINATION OF INCOME. THE LAW DOES NOT CONTEMPLATE TWO ASSESSMENTS, I.E., ONE BY ISSUE OF NOTICE U/S. 143(2) AND THE OTHER, OTHERWISE, I.E., WITHOUT THE ISSUE OF THE SAID NOTICE. AS EXPLAINED BY THE HONBLE COURT PER ITS AFORE - REFERRED DECISIO NS, WHAT SECTION 153A CONTEMPLATES, QUITE SIMPLY, IS THAT THE RETURN (FOR A YEAR) THAT HAS UNDERGONE THE PROCESS OF VERIFICATION, RESULTING IN AN ORDER OF ASSESSMENT (OR REASSESSMENT), BECOMES FINALIZED AND CANNOT BE VISITED AGAIN. THAT IS, WHAT S. 153A CO NTEMPLATES IS AN ASSESSMENT OF TOTAL INCOME UPON A SCRUTINY OF THE ASSESSEES CLAIMS, I.E., FOLLOWING THE VERIFICATION PROCEDURE UNDER THE ACT, AND DUE APPLICATION OF MIND BY THE A.O. AND, IT IS PRECISELY FOR THIS REASON THAT WHERE ASSESSMENT STANDS SO FRA MED, PASSING AN ASSESSMENT ORDER, THE SAME IS HELD AS NOT LIABLE TO BE VISITED AGAIN EXCEPT WHERE ADVERSE MATERIAL IS FOUND IN SEARCH OR REQUISITION. THIS IS SUBJECT TO THE CAVEAT THAT NO ADVERSE MATERIAL, INCRIMINATING THE RETURN, IS FOUND IN SEARCH OR RE QUISITION (OF BOOKS OF ACCOUNT OR OTHER ASSETS). IT IS NOTABLE THAT EVEN INCOME RECORDED IN THE BOOKS OF ACCOUNT WOULD STAND TO BE INCLUDED IN A SECTION 153A ASSESSMENT, WHERE NOT PRODUCED BUT FOUND DURING SEARCH OR REQUISITION. THERE IS NO QUESTION OF CAL LING FOR THE BOOKS OF ACCOUNT, MUCH 64 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) LESS EXAMINING THEM, UNDER THE PROCESSING OF THE RETURN. AS EXPLAINED BY THE APEX COURT IN RAJESH JHAVERI STOCK BROKERS PVT. LTD. (SUPRA), THE QUESTION OF THE A.O. EXPRESSING HIS OPINION U/S. 143(1) DOES NOT ARISE. THERE IS NO DETERMINATION OF INCOME IN SUCH A CASE BY THE A.O., WHO IS PRECLUDED FOR MAKING ENQUIRIES, NAY, EVEN AFFECTING PRIMA FACIE ADJUSTMENTS TO THE RETURN (W.E.F. 01.6.1999). THE INCOME SO ACCEPTED, BEING NOT DETERMINED BY THE A.O. AND SANS ANY ASSESSMENT ORDER, CAN ONLY BE SAID TO BE RETURNED OR PROCESSED INCOME, AND NOT ASSESSED INCOME. THE ASSESSEES ARGUMENT, TO OUR MIND, CONSTRICTS THE SCOPE OF THE PROVISO TO SECTION 153A BEYOND ITS MANDATE, WHICH IS LIMITED TO ABATEMENT OF ASSESSMENTS PENDING ON T HE DATE OF INITIATION OF SEARCH OR, AS THE CASE MAY BE, MAKING THE REQUISITION. AS AFORE - DISCUSSED, THE LIMITATION ON THE SCOPE OF INQUIRY OR EXAMINATION ONLY TO THE FINDINGS OF SEARCH OR REQUISITION WHILE MAKING A S. 153A ASSESSMENT WOULD EXTEND ONLY TO C ONCLUDED ASSESSMENTS, SIGNIFIED BY ORDERS OF ASSESSMENT OR REASSESSMENT. THIS, WE FIND TO BE THE UNEQUIVOCAL VIEW EXPRESSED BY THE HONBLE COURT IN CONTINENTAL WAREHOUSING CORPORATION (SUPRA) AND MURLI AGRO PRODUCTS LTD. (SUPRA) , JUDICIALLY BINDING ON US, AND WHICH WE FURTHER FIND AS CONSISTENT WITH THE DECISION IN RAJESH JHAVERI STOCK BROKERS PVT. LTD. (SUPRA) AND KELVINATOR OF INDIA LTD. (SUPRA), AS ALSO THE SCOPE AND PURPORT OF A S. 153A ASSESSMENT AS EXPLAINED BY THE HONBLE COURTS OF LAW. 65 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) A NNEXURE C MINUTES AND AGREEMENT THIS AGREEMENT HAS BEEN ENTERED INTO ON THIS 7 TH DAY OF AUGUST 2001. BETWEEN MR. HASAN ALI KHAN (HAK) PRESENTLY STAYING AT EMA HOUSE, ZURICH AND MR. K TAPURIAH (KT) OF 27 - B, CAMAC STREET, KOLKATA, INDIA IN CONNECTION WITH THE FOLL OWING PREAMBLE MR. HASAN ALI KHAN WHO OWNS THE TWO COMPANIES NAMELY, AUTUMN HOLDINGS LTD. AND PAYSON LTD. THROUGH THEM HAD A BUSINESS RELATIONSHIP WITH THE INDIAN COMPANIES NAMED BELOW WHICH WERE AND CONTINUE TO BE OWNED BY MR. K. TAPURIAH, IN INDIA. THE INDIAN COMPANIES REFERRED TO ARE: ROBERTS, MCLEAN AND CO. LTD., R. M. INVESTMENT AND TRADING COMPANY PRIVATE LTD. AND ROBERTS, MCLEAN SERVICES PRIVATE LTD. ON THE BASIS OF AGREEMENTS ENTERED INTO BETWEEN THE COMPANIES NAMED ABOVE, HAKS COMPANIES AND KTS COMPANIES WERE INVOLVED IN DIVERSE BUSINESS OPERATIONS (ON A 50:50 BASIS) MAINLY IN INDIA AND HAD EARNED SUBSTANTIAL PROFITS THROUGH THIS JOINT VENTURE. THE TOTAL AMOUNT OF PROFITS EARNED BY THE JOINT VENTURE DURING THE YEARS 1983 TO 1990 AMOUNTED TO USD 280.54 MILLION. AS PER THE UNDERSTANDING BETWEEN HAK AND KT ALL THE EARNINGS WERE HELD IN THE ACCOUNT S MANAGED BY HAK. NOW IT HAS BEEN AGREED THAT HAK SHALL TRANSFER THE AMOUNT RELATING TO KTS SHARE OF PROFIT OF SUCH OFFSHORE ACCOUNTS AS MAY BE NOMI NATED BY KT. THE FACT THAT THE FUNDS DID NOT REMAIN IDLE AND DID EARN SOME RETURNS WAS DISCUSSED. AFTER DUE DELIBERATIONS IT WAS MUTUALLY AGREED THAT A LUMP - SUM OF USD 200 MILLION SHALL BE PAID TO KT BY HAK AND THE SAME SHALL BE CONSIDERED AS THE FINAL SE TTLEMENT. IT WAS AGREED THAT NO FURTHER CLAIMS IN RESPECT OF INTEREST OR OTHERWISE BY KT SHALL BE RAISED OR CONSIDERED. 66 ITA NO S . 3822/M/10 TO 3828/M/10 & 8298 TO 8304/M/11 CHANDRIKA TAPURIAH VS. DY. CIT (A.YS. 2001 - 02 TO 2007 - 08) THE SAID AMOUNT OF USD 200 MILLION SHALL BE SPLIT INTO 3 PARTS AS FOLLOWS: 1. USD 100 MILLION RELATING TO ROBERTS, MCLEAN AND CO. LTD. 2. US D 65 MILLION RELATING TO R. M. INVESTMENT AND TRADING COMPANY PVT. LTD. AND 3. USD 35 MILLION RELATING TO ROBERTS, MCLEAN SERVICES PVT. LTD. HAK ASSURED THAT PAYMENT IN RESPECT OF THIS ACCOUNT SHALL BE EFFECTED LATEST BY THE END OF DECEMBER 2001. SIGNED AN D EXECUTED ON THIS 7 TH DAY OF AUGUST 2001, AT DUBAI HASAN ALI KHAN K TAPURIAH