SHRI RAJESH CHUNARA, JAIPUR V. ITO, WARD-2(A), JAIPUR

ITA 91/JPR/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3983 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 21-01-2020
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MONISHA CHOUDHARY JCIT A
• Assessee Lawyers: SHAFI MOHAMMAND
• Keywords: Gift; Income from undisclosed sources; Principle of natural justice; Tangible material; Validity of assessment; Onus to prove
• Section: 143(3); 142(1); 234B; 133(6); 143(2); 13; 147; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S,A JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 91/JP/2020 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2008-09 SHRI RAJESH CHUNARA 183-C, YASH APARTMENT, MAHADEV NAGAR, SIRSI ROAD, JAIPUR. CUKE VS. THE ITO, WARD-2(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACZPC 4565 D VIHYKFKHZ@ AP PELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHAFI MOHAMMAND (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. MONISHA CHOUDHARY (JCIT) A LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 08/09/2021 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT :06/10/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A)-I, JAIPUR DATED 29.311.2019 FOR THE ASSESSME NT YEAR 2008-09 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND S OF APPEAL:- 1. THAT PROCEEDING INITIATED U/S 147/148 IS ILLEGA L AND AGAINST THE LAW AND THE LD. CIT (APPEALS) GROSSLY ERRED IN SUST AINING THE PROCEEDINGS U/S 147/148. 2. THAT THE LD. CIT (APPEALS) ERRED IN SUSTAINING T HE PROCEEDINGS U/S 147/148 AS THE PROCEEDINGS ARE AB-INITIO VOID B ECAUSE THE ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 2 ASSESSING OFFICER NOT PROVIDED THE REASONS AS WELL AS THE OTHER EVIDENCES USED AGAINST THE ASSESSEE. 3. THAT THE LD. CIT (APPEALS) IS ERRED IN SUSTAININ G THE ADDITIONS MADE BY THE ASSESSING OFFICER FOR RS. 3,82,079/-. 4. THAT THE LD. CIT (APPEALS) IS ERRED IN SUSTAININ G THE ADDITION OF RS. 4,74,040/-. 5. THAT THE LEVY OF INTEREST U/S 234A, 234B AND 234 C IS UNJUSTIFIED AND HENCE LIABLE TO BE DELETED. 2. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSES SMENT IN THIS CASE WAS COMPLETED U/S 148 R.W.S. 143(3) OF THE ACT DATE D 31.10.2015 WHEREIN THE ADDITION OF RS. 3,82,079/- WAS MADE ON ACCOUNT OF UNEXPLAINED SOURCE OF CASH TRANSACTIONS ON ACCOUNT OF CREDIT CARD USAGE AND ANOTHER ADDITION OF RS. 4,74,040/- WAS MADE ON ACCOUNT OF UNEXPLAINED SOURCE OF SHARE TRANSACTIONS AND ASSESS MENT WAS COMPLETED AT TOTAL ASSESSED INCOME OF RS. 9,64,820/ - AS AGAINST THE RETURNED INCOME OF RS. 1,08,700/-. ON APPEAL THE LD . CIT(A) HAS CONFIRMED THE SAID ADDITIONS AND AGAINST THE SAID F INDINGS, THE ASSESSEE IS IN APPEAL BEFORE US. 3. IN RESPECT OF GROUND NOS. 1 AND 2, THE LD. AR SU BMITTED THAT THESE GROUNDS OF APPEAL ARE RELATED TO THE PROCEEDI NGS UNDER SECTION 147/148. IT WAS SUBMITTED THAT THE ASSESSMENT WAS ILLEGAL AND AGAINST THE LAW BECAUSE THE ASSESSING OFFICER HAS NOT SUPPL IED THE COPY OF REASONS RECORDED FOR ISSUE OF NOTICE U/S 148. THE A SSESSING OFFICER IS UNDER LEGAL OBLIGATION TO SUPPLY THE REASONS FOR FI LING OF SUITABLE REPLY AND/ OR OBJECTIONS TO THE NOTICE U/S 148 BUT THE AS SESSING OFFICER DID NOT PROVIDE THE REASONS. THE NOTICE WITHOUT COPY OF REASONS RECORDED FOR ISSUE OF NOTICE U/S 148 IS AN INCOMPLETE NOTICE AND RESULTANTLY, THE ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 3 ASSESSMENT COMPLETED ON THE BASIS OF INCOMPLETE NOT ICE DOES NOT HAVE ANY FORCE IN THE EYE OF LAW. 4. IT WAS SUBMITTED THAT AS PER THE JUDICIAL PRONOU NCEMENTS, THE ASSESSING OFFICER WAS UNDER LEGAL OBLIGATION TO SUP PLY THE COPIES OF THE REASONS FOR ISSUE OF NOTICE U/S 148 HAND IN HAND. A PART FROM THIS, THE HONBLE SUPREME COURT HAS ALSO HELD THAT THE COPIES OF THE REASONS HAVE TO BE SUPPLIED TO THE ASSESSEE WITHIN REASONAB LE TIME. WHAT IS REASONABLE TIME HAS BEEN DISCUSSED BY THE HONBLE D ELHI HIGH COURT IN THE JUDGMENT OF HARYANA ACRYLIC MANUFACTURING COMPA NY V/S CIT REPORTED IN 308 ITR 38 BY CONSIDERING THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS (INDIA ) LTD. FURTHER, REFERENCE WAS DRAWN TO THE ORDER OF THE DELHI BENCH ES OF TRIBUNAL IN CASE OF SHRI BALWANT RAI WADHWA V/S ITO (ITA NO. 4806/DEL/10 DATED 14.01.2011) . IT WAS SUBMITTED THAT THE REASONS HAVE TO BE SUP PLIED ALONG WITH THE NOTICE OR WITHIN THE TIME PERIOD ALL OWED UNDER SECTION 149 OF THE INCOME TAX ACT I.E. 4 OR 6 YEARS, AS THE CASE MAY BE. 5. IT WAS SUBMITTED THAT THE ASSESSING OFFICER ISSU ED THE NOTICE UNDER SECTION 148 WITHIN THE TIME FRAME ALLOWED BY THE STATUE U/S 149 BUT WITHOUT COPIES OF REASONS RECORDED FOR ISSUE OF NOTICE. THE COPIES OF REASONS WERE NOT PROVIDED EVEN AFTER COMPLETION OF ASSESSMENT ON HIS OWN. THERE IS A SETTLED LAW, AS MENTIONED ABOVE, TH AT THE COPIES OF REASONS HAVE TO BE PROVIDED TO THE ASSESSEE WITHIN REASONABLE TIME OR WITHIN THE TIME FRAME ALLOWED UNDER SECTION 149 I.E . 4 YEARS OR 6 YEAR, AS THE CASE MAY BE, FROM THE END OF ASSESSMENT YEAR FOR WHICH IT WAS ISSUED. HERE IN THIS CASE, THE ASSESSEE REQUESTED F OR PROVIDE THE COPIES ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 4 OF REASONS RECORDED FOR ISSUE OF NOTICE UNDER SECTI ON 148 ON 05.08.2019. THE CERTIFIED COPY OF THE SAME WAS PROV IDED TO THE ASSESSEE AFTER FEW DAYS I.E. IN ON ABOUT 17 AUGUST 2019, WHICH IS TOO LATE AGAINST THE TIME PROVIDED UNDER THE STATUE. AC CORDING TO THE JUDGMENT OF THE HONBLE DELHI HIGH COURT AND DELHI TRIBUNAL, THE REASONS SHOULD BE SUPPLIED TO THE ASSESSEE ALONG WI TH THE NOTICE OR THE SAME SHOULD BE PROVIDED TO THE ASSESSEE WITHIN THE TIME FRAME, I.E. OF 6 YEARS FROM THE END OF THE ASSESSMENT YEAR FOR WHI CH THE NOTICE IS ISSUED, OTHERWISE THE ENTIRE ASSESSMENT PROCEEDING SHALL BE TREATED AS INVALID AND WITHOUT ISSUE OF ANY NOTICE. 6. IT WAS SUBMITTED THAT THE ASSESSING OFFICER IN H IS REMAND REPORT SUBMITTED ON THE OBJECTION TO THE ASSESSEE ABOUT SU PPLY OF THE REASONS RECORDED FOR ISSUE OF NOTICE U/S 148. HE SUBMITTED THAT THE REASONS WERE APPRAISED TO A.R. AS PER ORDER SHEET ENTRY DAT ED 12.10.2015 AND 15.10.2015 BUT HE DIDNT UTTER A SINGLE WORD ABOUT SUPPLY OF REASONS. THE LAW REQUIRES SUPPLY OF REASONS NOT ABOUT THE AP PRAISAL OF REASONS. 7. PER CONTRA, THE LD. D/R SUBMITTED THAT SIMILAR C ONTENTIONS WERE RAISED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND TH E LD. CIT(A), AFTER CALLING FOR THE REMAND REPORT FROM THE ASSESSING OF FICER, HAS HELD THAT THE SAID CONTENTION IS NOT FACTUALLY CORRECT AS THE REASONS FOR REOPENING THE CASE OF THE ASSESSEE WAS DULY BROUGHT TO THE NO TICE OF THE ASSESSEE THROUGH THE ORDER SHEET ENTRY. IN THIS REGARD, OUR REFERENCE WAS DRAWN TO THE FINDINGS OF THE LD CIT(A) WHICH READ AS UNDE R: 3.1.2(II) DURING THE APPELLATE PROCEEDINGS, THE A PPELLANT CHALLENGED THE REOPENING U/S 147 OF THE ACT. THE ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 5 SUBMISSION OF THE APPELLANT WAS FORWARDED TO THE AO TO OFFER ITS COMMENTS. THE AO SUBMITTED THE REMAND REP ORT VIDE LETTER NO. 1172 DATED 03.10.2019. REGARDING TH E OBJECTIONS ON ACCOUNT OF REOPENING OF THE CASE, THE AO SUBMITTED AS UNDER:- 3. VALIDITY OF ASSESSMENT ORDER CHALLENGED ON THE REASONS OF NON SUPPLY OF REASONS RECORDED FOR INITIATING PROCE EDINGS U/S 147 OF IT ACT: 3.1 THE SUBMISSION OF THE ASSESSEE THAT THE ASSESSM ENT ORDER IS ILLEGAL AND AGAINST THE LAW BECAUSE THE ASSESSIN G OFFICER HAD NOT SUPPLIED THE COPY OF REASONS RECORDED FOR I SSUE OF NOTICE U/S 148 OF THE INCOME-TAX ACT, 1961 (HEREINA FTER REFERRED AS 'THE IT ACT' IS TOTALLY INCORRECT AND T HE SAME IS DESERVE TO BE REJECTED. REASONS WERE APPRISED TO TH E AR OF THE ASSESSEE WITHIN THE REASONABLE TIME VIDE NOTE S HEET ENTRY DATED 12.10.2015 AND 15.10.2015. THIS FACT HAS BEEN DULY INCORPORATED BY THE AO IN ASSESSMENT ORDER. THE A/R OF THE ASSESSEE DULY ACKNOWLEDGED THE SAME ON THE NOTE SHE ET. AS THE REASON WERE PROVIDED TO THE ASSESSEE THEREFORE, THE CASE LAWS RELIED UPON BY HIM ARE NOT APPLICABLE IN THIS CASE. 3.2 FURTHER, THE CLAIM OF THE ASSESSEE THAT THE REA SONS MUST BE SUPPLIED WITH THE TIME FRAME ALLOWED UNDER SECTION 149 I.E. 4 YEARS OR 6 YEARS, AS THE CASE MAY BE, FROM THE END OF THE ASSESSMENT YEAR FOR WHICH NOTICE U/S 148 WAS ISSUED IS NOT ACCEPTABLE. THERE ARE NO SUCH PROVISIONS WHICH MAKE IT MANDATORY TO PROVIDE THE REASONS RECORDED FOR ISSUA NCE OF NOTICE U/S 148 OF THE IT ACT WITHIN THE TIME LIMIT SPECIFIED U/S 149 OF THE IT ACT. SECTION 149 OF THE IT ACT SPEAKS ABOUT ISSUE OF NOTICE U/S 148 WITHIN THE TIME LIMIT. IT D OES NOT SPEAK ABOUT SERVICE OF REASONS RECORDED FOR ISSUANCE OF P ROCEEDINGS U/S 147 OF THE IT ACT. ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 6 3.3. AS DISCUSSED ABOVE, REASONS WERE SUPPLIED TO T HE AR OF THEASSESSEE DURING RE-ASSESSMENT PROCEEDINGS ITSELF THUS, THE CLAIM OF THE ASSESSEE THAT THE REASONS WERE SUPPLIE D TO HIM AFTER PASSING THE ASSESSMENT ORDER IS TOTALLY BASELESS. I T IS ALSO TRUE THAT THE CERTIFIED COPY OF THE REASONS RECORDED FOR INITIATING PROCEEDINGS U/S 147 OF THE IT ACT WERE AGAIN PROVID ED TO THE ASSESSEE ON 05.08.2019 ON THE REQUEST OF THE ASSESS EE. 3.4 THE CLAIM OF THE ASSESSEE THAT THE INFORMATION AVAILABLE ON AIR CANNOT BE BASIS FOR ISSUE OF NOTICE U/S 148 OF THE IT ACT HAS BEEN EXAMINED AND ON PERUSAL OF MATERIAL AVAILA BLE ON RECORDS, IT HAS BEEN GATHERED THAT BEFORE RECORDING REASONS THAT INCOME HAS ESCAPED ASSESSMENT, THE AO HAS ISSU ED NOTICE U/S 133(6) OF THE IT ACT BUT THE ASSESSEE DID NOT C OMPLY WITH THE SAME. IT IS EVIDENT THAT THE INFORMATION WAS AV AILABLE ON LTD DATABASE REGARDING FINANCIAL TRANSACTIONS MADE BY THE ASSESSEE DURING THE YEAR UNDER REFERENCE. THE ASSES SEE DID NOT FILE HIS RETURN OF INCOME FOR THE YEAR UNDER REFERE NCE. THE ASSESSEE WAS SPECIFICALLY ASKED TO EXPLAIN THE TRAN SACTIONS REFLECTED IN ITS DATA AND A SPECIFIC QUERY WAS RAIS ED BY THE AO BUT THE SAME WAS REMAINED UNANSWERED BY THE ASSESSE E. THEREFORE, THE CONTENTION OF THE ASSESSEE THAT THE NOTICE U/S 148 OF THE IT ACT WAS ISSUED ONLY ON THE BASIS OF A IR INFORMATION WITHOUT ANY CONCRETE EVIDENCES IS TOTAL LY INCORRECT. 3.5 APPROVAL FOR ISSUING NOTICE U/S 148 OF THE IT A CT WAS ACCORDED BY THE ADDITIONAL COMMISSIONER OF INCOME-T AX, RANGE-2, JAIPUR AFTER CONSIDERING THE MATERIAL AVAI LABLE ON RECORDS AND DULY SATISFYING WITH THE REASONS RECORD ED BY THE AO. THUS, THIS CLAIM OF THE ASSESSEE THAT THE APPRO VAL WAS GRANTED BY THE ADDITIONAL COMMISSIONER OF INCOME-TA X WITHOUT APPLICATION OF MIND IN MECHANICAL MANNER IS TOTALLY BASELESS AND THE SAME IS DESERVES TO BE REJECTED AT THE OUTS ET.' ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 7 (III) THUS, THE AO SUBMITTED THAT REASONS REGARDIN G REOPENING THE CASE WERE BROUGHT TO THE NOTICE OF THE APPELLAN T AND SAME HAS ALSO BEEN NOTED VIDE ORDER SHEET ENTRY DATED 12 .10.2015 AND 15.10.2015. IN THE REJOINDER, THE APPELLANT HAS AGAIN REITERATED THAT REASONS WERE NOT SUPPLIED, HOWEVER, THE FACTS OF COMMUNICATION OF THE REASONS THROUGH AN ORDER SH EET ENTRY WAS NOT DENIED. THUS, THE CONTENTION OF THE APPELLA NT REGARDING NON COMMUNICATION OF THE REASONS DOES NOT APPEAR TO BE CORRECT 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE, IT IS NO TED THAT NOTICE U/S 148 WAS ISSUED TO THE ASSESSEE ON 25.03.2015 AND IN RES PONSE, THE RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 12.10.2015. THEREAFTER, NOTICE U/S 143(2) AND 142(1) WERE ISSUED AND QUERIES WERE RAISED VIDE ORDER SHEET ENTRY DATED 12.10.2015, 15.10.2015 AND 30.10. 2015. IN RESPONSE, THE ASSESSEE HAS FILED HIS REPLIES ON 12. 10.2015, 15.10.2015, 26.10.2015 AND 30.10.2015 AND FINALLY, THE ASSESSME NT WAS COMPLETED U/S 143(3) R/W 147 VIDE ORDER DATED 31.10.2015. 9. IN TERMS OF REQUIREMENT OF SUPPLYING REASONS FOR INITIATING THE PROCEEDINGS UNDER SECTION 147 AS DIRECTED BY THE HO NBLE SUPREME COURT IN CASE OF GKN DRIVESHAFTS (INDIA) LTD VS ITO REPORTED IN 259 ITR 19, AS ALSO NOTED BY THE HONBLE DELHI HIGH COURT I N CASE OF HARYANA ACRYLIC MANUFACTURING CO. VS CIT(SUPRA), THE PROPER COURSE OF ACTION IS THAT THE ASSESSEE IS TO FILE RETURN OF INCOME AND S ECONDLY, WHERE THE ASSESSEE SEEKS REASONS FOR THE ISSUANCE OF NOTICE, THE ASSESSING OFFICER IS BOUND TO SUPPLY THE REASONS WITHIN A REASONABLE TIME AND IN THAT CONTEXT, WE HAVE TO APPRECIATE THE FINDINGS OF THE HONBLE DELHI HIGH ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 8 COURT WHERE IT SAYS THAT THE EXPRESSION WITHIN A REASONABLE PERIOD OF TIME AS USED BY THE SUPREME COURT IN GKN DRIVESHAF T (INDIA) LTD S CASE (SUPRA) CANNOT BE STRETCHED TO SUCH AN EXTENT THAT IT EXTENDS EVEN BEYOND THE SIX YEARS AS STIPULATED IN SECTION 149. IN THE INSTANT CASE, NOTICE U/S 148 HAS BEEN ISSUED ON 25.03.2015, THERE AFTER, THE RETURN OF INCOME HAS BEEN FILED ON 12.10.2015 AND AFTER FILIN G THE RETURN OF INCOME, THE ASSESSEE NEVER SOUGHT REASONS FOR INITI ATING THE PROCEEDINGS U/S 147 DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND PARTICIPATED IN SUCH PROCEEDINGS AND AS SUCH, NO OB JECTIONS HAVE BEEN FILED AGAINST SUCH AN ACTION ON PART OF THE ASSESSI NG OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THEREFORE, WHERE THE REASONS WERE NEVER SOUGHT BY THE ASSESSEE AT FIRST PLACE, THE AS SESSEE CANNOT BE ALLOWED TO TAKE THE PLEA THAT REASONS WERE NOT SUPP LIED TO HIM OR THE REASONS HAVE NOT BEEN SUPPLIED WITHIN A REASONABLE PERIOD OF TIME TAKING SUPPORT FROM THE DIRECTIONS OF THE HONBLE S UPREME COURT IN CASE OF GKN DRIVESHAFTS (SUPRA). THE MANDATE OF THE DIRE CTIONS AND THE COURSE OF ACTION TO BE FOLLOWED IS THAT WHEN THE NO TICE IS ISSUED U/S 148, THE ASSESSEE ON RECEIPT OF SUCH NOTICE IS REQU IRED TO FILE THE RETURN OF INCOME, WHERE HE SO DESIRES, HE CAN SEEK REASONS FOR ISSUE THE NOTICE U/S 148 AND ON SUCH REQUEST OF THE ASSESSEE, THE AO HAS TO SUPPLY OR COMMUNICATE THE REASONS TO THE ASSESSEE A ND THE ASSESSEE IS AT LIBERTY TO FILE OBJECTIONS AND WHERE SUCH OBJECT IONS ARE FILED, THE AO IS REQUIRED TO DISPOSE OFF SUCH OBJECTIONS BY WAY O F A SPEAKING ORDER. IN THE INSTANT CASE, AS WE HAVE HELD ABOVE, THERE I S NO REQUISITION ON PART OF THE ASSESSEE SEEKING THE REASONS FOR ISSUAN CE OF NOTICE U/S 148 AND THEREFORE, THE MANDATE OF THE DIRECTIONS AND CO URSE OF ACTION SO ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 9 LAID DOWN BY THE HONBLE SUPREME COURT CANNOT BE SA ID TO BE VIOLATED BY THE AO. 10. WE FURTHER NOTE THAT THE LD CIT(A) HAS RECORDED A FINDING THAT THE AO SUBMITTED THAT REASONS REGARDING REOPENING THE CASE WERE BROUGHT TO THE NOTICE OF THE APPELLANT AND SAME HAS ALSO BEEN NOTED VIDE ORDER SHEET ENTRY DATED 12.10.2015 AND 15.10.2 015. IN THE REJOINDER, THE APPELLANT HAS AGAIN REITERATED THAT REASONS WERE NOT SUPPLIED, HOWEVER, THE FACTS OF COMMUNICATION OF TH E REASONS THROUGH AN ORDER SHEET ENTRY WAS NOT DENIED. THUS, THE CONT ENTION OF THE APPELLANT REGARDING NON COMMUNICATION OF THE REASON S DOES NOT APPEAR TO BE CORRECT. WE THEREFORE FIND THAT THE REASONS WERE DULY COMMUNICATED TO THE ASSESSEE DURING THE COURSE OF A SSESSMENT PROCEEDINGS AND THE LD CIT(A) HAS RECORDED A SPECIF IC FINDING TO THIS EFFECT AFTER CALLING FOR THE REMAND REPORT FROM THE AO WHERE THE AO HAS BROUGHT THE FACT OF COMMUNICATION OF REASONS TO THE ASSESSEE WHICH IS DULY ACKNOWLEDGED BY THE ASSESSEE ON THE NOTE SHEET . THEREFORE, EVEN IN TERMS OF PRINCIPAL OF NATURAL JUSTICE WHERE AN A DVERSE ACTION IS INITIATED BY THE AO, THE AO HAS COMMUNICATED THE RE ASONS TO THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDING S AND THERE IS THUS COMPLETE ADHERENCE ON PART OF THE AO IN TERMS OF PR INCIPAL OF NATURAL JUSTICE EVEN WHEN THE ASSESSEE HAS NOT SOUGHT THE R EASONS AT FIRST PLACE. WE ARE THEREFORE OF THE CONSIDERED VIEW THA T THERE IS NO VIOLATION ON PART OF THE ASSESSING OFFICER IN TERMS OF DIRECTIONS SO LAID DOWN BY THE HONBLE SUPREME COURT AS WELL AS IN TER MS OF PRINCIPAL OF NATURAL JUSTICE AND THE CONTENTIONS SO RAISED BY TH E LD A/R CANNOT BE ACCEPTED AND THE GROUNDS OF APPEAL ARE DISMISSED. ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 10 11. REGARDING GROUND NO. 3, THE LD. AR SUBMITTED TH AT THE LD. ASSESSING OFFICER MADE ADDITION OF RS. 382,079/- ON ACCOUNT OF UNEXPLAINED SOURCE OF CASH TRANSACTION ON ACCOUNT O F CREDIT CARD. IN THIS CONNECTION, IT WAS SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS SUBMITTED THAT BEING AN OLD MATTER, HE DIDNT REMEMBER MAKING ANY CASH PAYMENT AND FURTHER , HE WAS NOT HAVING THE REQUISITE BANK AND CREDIT CARD STATEMENT S AND THE AO WAS REQUESTED TIME AND AGAIN TO PROVIDE SUCH DETAILS IN HIS POSSESSION WHICH HE HAS FAILED TO PROVIDE. THE ASSESSEE IS EN TITLED TO GET ALL THE EVIDENCES AND COPIES OF THE DOCUMENTS WHICH ARE GOI NG TO BE USED AGAINST THE ASSESSEE BEHIND HIS BACK. HERE IN THIS CASE, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE AGAI N AND AGAIN REQUESTED TO PROVIDE THE COPIES OF THE DOCUMENTS BE CAUSE THE MATTER IS QUITE OLD ONE AND HE IS NOT HAVING ANY PROPER DETAI LS AS REQUIRED BY THE ASSESSING OFFICER. IN SUPPORT OF THIS, WE ARE ENCLO SING HEREWITH SOME LETTERS BY WHICH THE ASSESSEE HAS CONTINUOUSLY REQU ESTED TO PROVIDE THE COPIES OF THE DOCUMENTS AND INFORMATION SO THAT THE PROPER SUBMISSION CAN BE MADE TO THE SATISFACTION OF ASSESSING OFFICE R BUT HE DIDNT PROVIDE THE SAME AND COMPLETED THE ASSESSMENT. 12. IT WAS FURTHER SUBMITTED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS TRIED TO EXPLAIN THE SOURCE OF THIS AMOUNT BY WAY OF AN AFFIDAVIT OF ACKNOWLEDGMENT OF GIFT BY THE MOTHER OF THE ASSESSEE WHO HAS GIFTED RS. 5,00,000/- (FIVE LACS) TO HIM BUT THE LD. ASSESSING OFFICER HAS NOT ACCEPTED THE SAME WITHOUT MENTIONING ANY COGENT REASONS AND MADE THE ADDITION. IT WAS SUBMIT TED THAT DURING THE ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 11 COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFF ICER NEVER CROSS EXAMINED THE DEPONENT. HE SIMPLY REFUSED TO ACCEPT THE CONTENTIONS MADE IN THE AFFIDAVIT. IN ABSENCE OF CROSS EXAMINAT ION OF THE DEPONENT, THE CONTENTS MADE IN THE AFFIDAVIT SHOULD BE TREATE D AS CORRECT AS HELD IN VARIOUS DECISIONS BY THE TRIBUNAL. 13. IT WAS FURTHER SUBMITTED THAT FROM THE PERUSAL OF THE ASSESSMENT ORDER, IT MAY BE NOTED THAT THE CREDIT CARD TRANSAC TIONS ARE IN TWO NAMES I.E. RAJESH CHUNARA/ASHOK K CHUNARA. THIS SHO WS THAT THE ENTIRE TRANSACTIONS ARE NOT OF THE ASSESSEE ALONE. THE SAM E ARE IN TWO NAMES AND IN CASE THE ASSESSING OFFICER WANTS TO MAKE ADD ITION ON THIS ACCOUNT, THE SAME MUST BE IN TWO NAMES ON EQUAL BAS IS. THE ASSESSEE CAME TO KNOW THIS FACT ON RECEIPT OF ASSESSMENT ORD ER BECAUSE THE ASSESSING OFFICER DIDNT PROVIDE THE COPIES OF THE REASONS BEFORE COMPLETION OF ASSESSMENT. THEREFORE, THE ADDITION S O MADE OF RS. 382,079/- IS NOT CORRECT IN THE HANDS OF THE ASSESS EE AND THE SAME MAY BE DIRECTED TO BE DELETED. 14. REGARDING ASSESSING OFFICERS CONTENTION IN THE REMAND REPORT SUBMITTED BEFORE THE LD CIT(A), IT WAS SUBMITTED TH AT THE ASSESSEE HAS SUBMITTED AN AFFIDAVIT OF HIS MOTHER FROM WHOM THE AMOUNT OF RS. 5 LAC WAS RECEIVED. THE AFFIDAVIT IS ITSELF EVIDENCE IN T HE EYE OF LAW. AS FAR AS THE CREDITWORTHINESS AND GENUINENESS OF THE GIFT IS CONCERNED, IT IS SUBMITTED THAT THERE IS SON AND MOTHER RELATIONSHIP AND THE SON IS IN NEED OF FUNDS TO SETTLE HIS OWN LIABILITIES, THEREF ORE THE OCCASION IS GENUINE. THE ASSESSEE PROVED THE SOURCE OF AMOUNT R ECEIVED BY SUBMISSION OF AN AFFIDAVIT OF THE MOTHER. HE IS NOT SUPPOSED TO PROVE ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 12 THE SOURCE OF SOURCE AS SUCH HE IS NOT LIABLE TO PR OVE THE SOURCE OF SOURCE. BY SUBMISSION OF AN AFFIDAVIT, THE ASSESSEE HAS DISCHARGED HIS INITIAL BURDEN OF PROOF. 15. PER CONTRA, THE LD. DR HAS RELIED ON THE FINDIN GS OF THE LOWER AUTHORITIES AND OUR REFERENCE WAS DRAWN TO THE FIND INGS OF THE LD CIT(A) WHICH READ AS UNDER:- 3.2.2 (I) IT IS SEEN THAT THE AO MADE THE ADDITION OF RS. 3,82,079/- ON ACCOUNT OF CASH PAYMENT AGAINST CREDI T CARD BILLS. THE RELEVANT PORTION OF THE ASSESSMENT ORDER IS REPRODUCED AS UNDER: 'ADDITION ON ACCOUNT OF UNEXPLAINED SOURCE OF CASH DEPOSIT/CREDIT CARD TRANSACTIONS RS.3,82,079/- 5. ON PERUSAL & EXAMINATION OF THE DETAILS/EVIDENCE AND REPLIES FILED BY THE ASSESSEE, AS DISCUSSED HEREIN ABOVE, IT IS REVEALED THAT THE ASSESSEE HAS MADE CASH DEPOSIT/PA YMENT OF RS.3,82,079/- AGAINST CREDIT CARD BILLS, IT IS ALSO FURTHER REVEALED FROM THE INCOME & EXPENDITURE ENDING ON 31 /3/2008 THAT THE ASSESSEE HAS SHOWN NET PROFIT OF RS. 1,08, 700/- ON TOTAL GROSS TOTAL RECEIPTS OF RS.2,64,900/-FROM JOB WORK CHARGES & BROKERAGE ON ACCOUNT OF MANUFACTURING OF JEWELLERY AND THE SAME INCOME HAS BEEN SHOWN IN THE ELTR FILE D IN RESPONSE TO THE NOTICE U/S 148. THE ASSESSEE HAS FA ILED TO FURNISH COMPLETE DETAILS OF JOB WORK CHARGES & BROK ERAGE AND CLAIMS OF DIFFERENT EXPENSES DEBITED TO THE L&E ACC OUNT. THE AR HAS ADMITTEDLY SUBMITTED THAT THE ASSESSEE HAS N O RECORD IN POSSESSION TO EXPLAIN THE SOURCE OF CASH PAYMENT MADE TOWARDS CREDIT CARD BILLS ALTHOUGH HE HAS TIME AND AGAIN TAKEN REPEATEDLY A PLEA TO PROVIDE CERTIFIED COPY OF AIR/ CIB DATA INSTEAD OF EXPLAINING THE SOURCE OF THE CASH CREDIT EVEN AFTER THE DATA WERE SHOWN TO HIM VIDE ORDER SHEET ENTRY D ATED ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 13 12/10/2015 DURING THE COURSE OF ASSESSMENT PROCEEDI NGS. THE A/R HAS ADMITTEDLY FURTHER SUBMITTED THAT THE ASSES SEE DID NOT REMIND TO MAKE CASH PAYMENT TOWARDS CREDIT, CARD BI LLS. MOREOVER, THE A/R HAS FAILED TO EXPLAIN THE GENUINE NESS, IDENTITY AND CREDITWORTHINESS OF THE CASH GIFT IN F ORM OF AN AFFIDAVIT OF MOTHER OF THE ASSESSEE, WHO IS A HOUSE LADY HAVING NO SUBSTANTIAL SOURCE OF INCOME. THE AYR HAS NOT FURNISH ANY EVIDENCE OF GIVING CASH OR CHEQUE GIFT TO ANY OF HER OTHER FAMILY MEMBERS TOWARDS NATURAL LOVE & AFF ECTION IN THE PAST. MOREOVER, AN AFFIDAVIT CANNOT BECOME A GI FT DEED ON FACE VALUE OF RS.10/- ONLY WHEREAS THE ALLEGED GIFT VALUE EXCEEDS RS.100/- I.E. SHOWN THE VALUE OF RS.5 LAC W HICH IS NOT CONSIDERED A PROPER GIFT DEED AS PER THE LAW. THE A /R HAS ALSO FAILED TO SUBSTANTIATE THE USAGE OF CASH GIFT IN AN Y OF THE TRANSACTIONS HELD BY THE ASSESSEE DURING THE YEAR U NDER CONSIDERATION. THE ASSESSEE HAS NOT FURNISHED ANY C OPY OF GIFT DEED, IF ANY, RECEIVED BY HIM AND ALSO THE USAGE OF THE GIFT. THE A/R OF THE ASSESSEE HAS SUBMITTED THAT THE ASSE SSEE HAS BEEN FILING OF HIS ITR SINCE LONG TIME BUT HE HAS N OT FURNISHED ANY EVIDENCE ABOUT THE SOURCE OF INCOME, ITR AND CO PY OF BANK ACCOUNT TO SUPPORT OF HIS CLAIM. THE ASSESSEE HAS NOT DISCLOSED THE TRANSACTIONS IN HIS ELTR AND THE STAT EMENT OF ACCOUNTS. THE ASSESSEE HAS ALSO NOT DENIED TO THE T RANSACTIONS HELD DURING THE YEAR UNDER CONSIDERATION. IN VIEW O F THE ABOVE, THE REPLY OF THE ASSESSEE IS NOT FOUND SATISFACTORY IN JUSTIFICATION OF THE SOURCE OF TRANSACTIONS.' (II) DURING THE APPELLATE PROCEEDINGS, THE APPELLAN T AGAIN REITERATED THE FACT THAT HE RECEIVED GIFT IN CASH F ROM HIS MOTHER AMOUNTING TO RS. 5,00,000/-. HOWEVER, NO EVIDENCES REGARDING CREDITWORTHINESS OF THE MOTHER WAS SUBMITTED. SHE IS NOT ASSESSED TO TAX AND NO SOURCE OF INCOME WAS DISCLOSED TOWARDS MAKING SUCH GIFT. THUS , THERE IS NO EXPLAINED SOURCE FOR CASH PAYMENT TOWAR DS CREDIT CARD BILLS. IN VIEW OF THE ABOVE FACTS, THE AO WAS ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 14 JUSTIFIED IN MAKING SUCH ADDITION. THESE GROUNDS OF APPEAL ARE DISMISSED. 16. REGARDING GROUND NO. 4, THE LD. AR SUBMITTED TH AT THE LD. ASSESSING OFFICER MADE THE ADDITION OF RS. 474040/- ON ACCOUNT OF INVESTMENT IN SHARES. THE ASSESSEE GOT THE DETAILS OF THESE TRANSACTIONS IN THE ASSESSMENT ORDER ONLY. THE ASSESSING OFFICER DIDNT PROVIDE THE COPIES OF THE SAME DURING THE COURSE OF ASSESSMENT, DESPITE OF REPETITIVE REQUESTS. IT REVEALS FROM THESE TRANSACT ION AS SHOWN IN THE ASSESSMENT ORDER THAT THE ASSESSING OFFICER TOOK ON LY AMOUNT OF INVESTMENT OR THE AMOUNT PAID TO THE SHARE BROKER B UT HE HAS NOT CONSIDERED THE ENTIRE STATEMENT OF ACCOUNT OF SHARE S TRANSACTION. FOR MAKING ANY ADDITION ALL THE DEBIT AND CREDIT ENTRIE S SHALL BE CONSIDERED. 17. IT WAS FURTHER SUBMITTED THAT DESPITE OF SEVERA L REQUESTS, THE ASSESSING OFFICER NOT PROVIDED THE COPIES OF DOCUME NT OR EVIDENCES HE IS HAVING IN HIS POSSESSION WHICH WAS USED AGAINST THE ASSESSEE. THIS ALSO SHOWS THE INTENTION OF THE ASSESSING OFFICER A GAINST THE ASSESSEE. THE ASSESSEE IS ENTITLED TO GET ALL THE EVIDENCES A ND COPIES OF THE DOCUMENTS WHICH ARE GOING TO BE USED AGAINST THE AS SESSEE BEHIND HIS BACK. HERE IN THIS CASE, DURING THE COURSE OF ASSES SMENT PROCEEDINGS, THE ASSESSEE AGAIN AND AGAIN REQUESTED TO PROVIDE T HE COPIES OF THE DOCUMENTS BECAUSE THE MATTER IS QUITE OLD ONE AND H E IS NOT HAVING ANY PROPER DETAILS AS REQUIRED BY THE ASSESSING OFFICER . IN SUPPORT OF THIS, WE ARE ENCLOSING HEREWITH SOME LETTERS BY WHICH THE ASSESSEE HAS CONTINUOUSLY REQUESTED TO PROVIDE THE COPIES OF THE DOCUMENTS AND INFORMATION SO THAT THE PROPER SUBMISSION CAN BE MA DE TO THE ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 15 SATISFACTION OF ASSESSING OFFICER BUT HE DIDNT PRO VIDE THE SAME AND COMPLETED THE ASSESSMENT. 18. IT WAS SUBMITTED THAT THE ASSESSING OFFICER IS UNDER LEGAL OBLIGATION TO SUPPLY THE EVIDENCES WHICH HE WANTS T O BE USED AGAINST THE ASSESSEE BUT DESPITE OF REQUEST OF THE ASSESSEE THE SAME WERE NOT PROVIDED TILL NOW. IT WAS ACCORDINGLY REQUESTED TO DELETE THE ADDITION SO MADE ON THIS ACCOUNT IN ABSENCE OF SUPPLY OF COPIES OF THE SAME TO THE ASSESSEE. IN ABSENCE OF SUPPLY OF DOCUMENTS AND EVI DENCES ON WHICH THE ASSESSING OFFICER RELIED ON FOR MAKING ADDITION S EVEN ON THE SPECIFIC DEMAND OF THE ASSESSEE, ADDITIONS SO MADE BY USING THE EVIDENCE BEHIND THE BACK THEREFORE SAME IS NOT ONLY UNJUSTIF IED AND ILLEGAL, HENCE LIABLE TO BE DELETED. IN THIS REGARD, IT WAS SUBMIT TED THAT AS PER THE PROVISIONS OF SECTION 114 ILLUSTRATION (G) OF INDIA N EVIDENCE ACT, THE EVIDENCE WITHHOLD BY THE PERSON WHO IS HAVING POSSE SSION OF THAT AND RELYING ON THE SAME WITHOUT SUPPLYING TO THE PERSON AFFECTED WITH EVIDENCE THEN INFERENCE IS DRAWN AGAINST THE PERSON WHO HOLD THE EVIDENCE AND NOT SUPPLIED TO THE AFFECTED PARTY. FO R CONVENIENCE, THE RELEVANT PORTION OF SECTION 114 OF INDIAN EVIDENCE ACT IS REFERRED AS UNDER:- 114- COURT MAY PRESUME EXISTENCE OF CERTAIN FACTS. THE COURT MAY PRESUME THE EXISTENCE OF ANY FACT WHICH IT THIN KS LIKELY TO HAVE HAPPENED, REGARD BEING HAD TO THE COMMON COURS E OF NATURAL EVENTS, HUMAN CONDUCT AND PUBLIC AND PRIVAT E BUSINESS, IN THEIR RELATION TO THE FACTS OF THE PARTICULAR CA SE. ILLUSTRATIONS - THE COURT MAY PRESUME ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 16 (G) THAT EVIDENCE WHICH COULD BE AND IS NOT PRODUCE D WOULD, IF PRODUCED, BE UNFAVOURABLE TO THE PERSON WHO WITHHOL DS IT; 19. IT WAS SUBMITTED THAT ACCORDING TO THESE PROVIS IONS OF THE INDIAN EVIDENCE ACT, THE ADDITION MADE BY THE ASSESSING OF FICER IS NOT TO BE SUSTAINED AND LIABLE TO BE DELETED. 20. IT WAS SUBMITTED THAT IN THE ASSESSMENT ORDER A T PAGE 4 PARA 3.1, IT IS MENTIONED THAT THE COPIES OF REASONS RECORDED UNDER SECTION 147 PROVIDED TO THE ASSESSEE AND INFORMATION FOR DATA F OR TRANSACTION IN SHARES OF RS. 474040/- AND CASH DEPOSIT OF RS. 3820 79/- SHOWN TO THE A.R. OF THE ASSESSEE ON 12TH OCTOBER 2015 BUT IN FA CT THE COPIES OF THE REASONS WERE NOT PROVIDED AND DESPITE OF REPEATED R EQUEST THE COPIES OF THE OTHER DOCUMENTS ON WHICH HE IS RELYING FOR M AKING ADDITION WERE ALSO NOT PROVIDED TO THE ASSESSEE BEFORE COMPLETION OF ASSESSMENT. IT WAS SUBMITTED THAT DESPITE OF SEVERAL REQUESTS, THE ASSESSING OFFICER NOT PROVIDED THE COPIES OF DOCUMENT OR EVIDENCES HE IS HAVING IN HIS POSSESSION WHICH WAS USED AGAINST THE ASSESSEE FOR MAKING ADDITION OF RS. 382,079/- AND 474,040/-. 21. PER CONTRA, THE LD. DR HAS DRAWN OUR REFERENCE TO THE FINDINGS OF THE LD CIT(A) WHICH READ AS UNDER:- 3.3.2 (I) IT IS SEEN THAT THE AO MADE THE ADDITION ON ACCOUNT OF UNDISCLOSED INVESTMENT IN SHARE TRANSACTION. IT WAS NOTED BY THE AO THAT THE APPELLANT HAS SHOWN INCOME FROM JOB WORK CHARGES AND BROKERAGE ON ACCOUNT OF MANUFACTUR ING OF JEWELLERY IN ITS RETURN OF INCOME. HOWEVER, NO INVE STMENT/ INCOME WAS SHOWN IN THE RETURN OF INCOME. IT WAS SU BMITTED BY THE APPELLANT BEFORE THE AO THAT HE HAS NO RECOR D IN HIS ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 17 POSSESSION TO EXPLAIN THE SOURCE IN SHARE TRANSACTI ON. IN ABSENCE OF ANY EXPLANATION/DOCUMENTARY EVIDENCES FI LED, THE AO TREATED RS. 4,74,040/- AS INCOME OF THE APPELLAN T FROM UNDISCLOSED SOURCES. (II) DURING THE APPELLATE PROCEEDINGS, THE APPELLAN T AGAIN FAILED TO BRING ANY EVIDENCE ON RECORD TO EXPLAIN T HE SOURCE OF INVESTMENT IN SHARE TRANSACTIONS. CONSIDERING TH IS, IT IS HELD THAT THE AO WAS JUSTIFIED IN TREATING RS. 4,74 ,040/- AS INCOME FROM UNDISCLOSED SOURCES. HENCE, THIS GROUND OF APPEAL IS DISMISSED. 22. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE ADDITION OF RS 382,079/- HAS BEEN MADE BASIS REASONS RECORDED BEFORE ISSUANCE OF NOTI CE U/S 148. AS PER THE REASONS SO RECORDED, THE ASSESSEE HAS MADE PAYM ENT AGAINST CREDIT CARD BILL AMOUNTING TO RS 3,82,079/- FROM HIS BANK ACCOUNT WITH ICICI BANK DURING THE FINANCIAL YEAR 2007-08 RELEVANT TO ASSESSMENT YEAR 2008-09. AS PER THE REASONS SO RECORDED, THE INFORM ATION WHICH IS IN POSSESSION OF THE AO IS IN RESPECT OF PAYMENT TOWAR DS THE CREDIT CARD BILL MADE FROM THE ASSESSEES BANK ACCOUNT. AS AGA INST THAT, IF WE LOOK AT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFF ICER, THE ADDITION HAS BEEN MADE ON ACCOUNT OF THE REASON THAT THE ASS ESSEE HAS FAILED TO EXPLAIN THE SOURCE OF CASH DEPOSITS/PAYMENTS TOWARD S CREDIT CARD BILLS. THERE IS HOWEVER NOTHING ON RECORD IN TERMS OF ASSE SSEES BANK STATEMENT AND CREDIT CARD STATEMENT WHICH SHOWS THA T CASH HAS BEEN WITHDRAWN FROM THE ASSESSEES BANK ACCOUNT AND THER EAFTER, THE PAYMENT HAS BEEN MADE TOWARDS DISCHARGE OF CREDIT C ARD LIABILITY. IN ABSENCE OF THE SAME, IT CAN BE REASONABLY CONCLUDED THAT THE PAYMENT HAS BEEN MADE THROUGH BANKING CHANNELS TOWARDS DISC HARGE OF CREDIT ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 18 CARD LIABILITY AND THERE IS THUS CLEARLY A MISMATCH BETWEEN THE REASONS SO RECORDED AND BASIS OF THE ADDITION SO MADE BY TH E ASSESSING OFFICER. 23. HAVING SAID THAT, IT IS NOTED THAT DURING THE C OURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS SUBMITTED THAT THE MA TTER BEING VERY OLD, HE DIDNT REMEMBER MAKING CASH PAYMENT TOWARDS CRED IT CARD BILLS AND HE DIDNT EVEN HAVE ANY RECORDS IN HIS POSSESSION T O DETERMINE AND EXPLAIN WHETHER ANY SUCH CASH PAYMENT WAS MADE AND HAS REQUESTED THE AO TIME AND TIME TO PROVIDE THE DETAILS AND EVI DENCE IN HIS POSSESSION IN ORDER TO EXAMINE AND PROVIDE NECESSAR Y EXPLANATION. IN RESPONSE, IT IS NOTED THAT THE AO HAS SHOWN HIM THE AIR/CIB INFORMATION VIDE ORDER SHEET ENTRY DATED 12/10/2015 AND THE PARTICULARS THEREOF ARE AS UNDER:- (A) CASH TRANSACTIONS/DEPOSITS AGAINST CREDIT CARD BILLS (ICICI BANK LTD.) NAME & ADDRESS WITH PAN CREDIT CARD BANK & AIR FILER TRAN SACTIO N AMOUNT TRANSACTIO N DATE RRR DATE PAN: ACZPC4565D RAJESH CHUNARA/ ASHOK K. CHUNARA, YESH APARTMENT, PLAT -1, PLOT NO. 183, PANCHAWALA, JAIPUR. ICICI BANK LTD., TI BANDRA (E), MUMBAI- 400051. RS. 3,82,079/- 31/3/2008 30/9/2008 24. ON PERUSAL OF THE AIR INFORMATION, IT IS NOTED THAT THE INFORMATION TALKS ABOUT THE ASSESSEE AND ANOTHER PERSON BY NAME OF ASHOK K CHANARA, NAME OF THE BANK WHICH HAS ISSUED THE CRED IT CARD, THE ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 19 TRANSACTION AMOUNT OF RS 3,82,079/- AND DATE OF TRA NSACTION I.E, 31.03.2008. THE QUESTION FOR CONSIDERATION IS WHETH ER THIS PIECE OF INFORMATION IS SUFFICIENT ENOUGH TO FASTEN THE TAX LIABILITY ON THE ASSESSEE. TO OUR MIND, THE AIR INFORMATION SO RECE IVED BY THE AO COULD BE A STARTING POINT FOR FURTHER EXAMINATION A ND VERIFICATION AND CANNOT BY ITSELF BE HELD AS CONCLUSIVE AND DEFINITE . ONCE THE ASSESSEE HAS EXPRESSED HIS INABILITY TO PROVIDE THE NECESSAR Y EXPLANATION IN VIEW OF THE FACT THAT THE MATTER IS PRETTY OLD AND HE DO ESNT REMEMBER MAKING ANY CASH PAYMENT AND DOESNT EVEN HAVE IN HI S POSSESSION THE NECESSARY RECORDS IN TERMS OF BANK AND CREDIT CARD STATEMENTS AND HAS REQUESTED THE AO TO SHARE THE RELEVANT INFORMATION IN ORDER TO EXAMINE AND SUBMIT NECESSARY EXPLANATION, IT WAS INCUMBENT ON PART OF THE AO TO CARRY OUT FURTHER ENQUIRIES DIRECTLY WITH THE BA NK AND CREDIT CARD COMPANY AND SOUGHT DETAILS OF THE CREDIT CARD NUMBE R, IN WHOSE NAME THE CREDIT CARD HAS BEEN ISSUED, AS TO HOW TWO NAME S ARE APPEARING IN THE AIR STATEMENT AND ALSO SOUGHT COPIES OF DETAIL OF THE TRANSACTIONS IN FORM OF TRANSACTION STATEMENT FOR THE RELEVANT PERI OD AND THE SAME WOULD THEN HAVE BEEN SHARED WITH THE ASSESSEE IN OR DER TO ENABLE THE LATTER TO PROVIDE NECESSARY EXPLANATION. HOWEVER, THERE IS NOTHING ON RECORD THAT BESIDES THE AIR INFORMATION, THE AO HAS EITHER THESE DETAILS IN HIS POSSESSION OR HAVE SOUGHT THESE DETAILS BY C ONDUCTING FURTHER INDEPENDENT AND DIRECT ENQUIRY DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND WHICH EXPLAINS AS TO WHY THE SAME W ERE NEVER SHARED WITH THE ASSESSEE. THEREFORE, IN SUCH PECULIAR CIR CUMSTANCES, WHERE THE ASSESSEE IS DISPUTING MAKING ANY CASH PAYMENTS AND IN ABSENCE OF ANY TANGIBLE MATERIAL BROUGHT ON RECORD BY THE REVE NUE AND SHARED WITH THE ASSESSEE IN ORDER TO ENABLE THE LATTER TO PUT FORWARD HIS ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 20 EXPLANATION, WE DONOT SEE ANY JUSTIFIABLE BASIS TO MAKE THE ADDITION IN THE HANDS OF THE ASSESSEE AND THE ADDITION SO MADE IS HEREBY DIRECTED TO BE DELETED. 25. WE FIND THAT SIMILAR SITUATION PERSIST IN RESPE CT OF OTHER ADDITION OF RS 474,040 MADE BY THE AO WHEREIN THE ASSESSEE H AS AGAIN REQUESTED TO PROVIDE THE REQUISITE INFORMATION/MATE RIAL IN POSSESSION OF THE AO AND WE FIND THAT BESIDES THE AIR INFORMATION , THE AO HAS NEITHER THESE DETAILS IN HIS POSSESSION NOR HAVE SO UGHT THESE DETAILS BY CONDUCTING FURTHER ENQUIRY DURING THE COURSE OF ASS ESSMENT PROCEEDINGS AND HENCE, THE SAME WERE NEVER SHARED W ITH THE ASSESSEE. THEREFORE, IN SUCH PECULIAR CIRCUMSTANCES, IN ABSEN CE OF ANY TANGIBLE MATERIAL BROUGHT ON RECORD BY THE REVENUE AND SHARE D WITH THE ASSESSEE IN ORDER TO ENABLE THE LATTER TO PUT FORWA RD HIS EXPLANATION, WE DONOT SEE ANY JUSTIFIABLE BASIS TO MAKE THE ADDITIO N IN THE HANDS OF THE ASSESSEE AND THE ADDITION SO MADE IS HEREBY DIRECTE D TO BE DELETED. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISPOS ED OFF IN LIGHT OF AFORESAID DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 06/10/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 06/10/2021. *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: ITA NO. 91/JP/2020 SHRI RAJESH CHUNARA VS. ITO 21 1. VIHYKFKHZ@ THE APPELLANT- SHRI RAJESH CHUNARA, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD- 2(1), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 91/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR