VIMLA DEVI MEENA,DAUSA V. ITO WARD- DAUSA, DAUSA

ITA 1034/JPR/2024

AI Insights

The case involves Smt. Vimla Devi Meena, who appealed against the orders of the Income Tax Officer and the CIT(A) regarding the reassessment of her income for the assessment year 2011-12. The primary contention was the alleged illegal and invalid reassessment proceedings initiated under sections 147 and 148 of the Income Tax Act, 1961, which included an addition of Rs. 28,02,415 as income from undisclosed sources. The Tribunal examined the procedural validity of the notices issued and the substantive legality of the additions made. It was found that the notices were not properly served and the additions were made without specific legal provisions being cited, leading to the quashing of the reassessment.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 472771 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 24-09-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 07-08-2024
• Other Referred Cases: Collector, Land Acquisition vs. Mst. Katiji, M/s K.P. Cold Storage Vs ITO, Keshab Narayan Banerjee vs. CIT, Shri Chetan Gupta vs. ACIT, Indo Arab Air Services vs. CIT, Varshaben Sanatbhai Patel vs. ITO, Hitesh Ashok Vaswani Vs DCIT, Dhakeshwari Cotton Mills vs. CIT, R.B.N.J. Naidu vs. CIT, Kanpur Steel Co. Ltd. vs. CIT, CIT vs. Kulwant Rai, CIT vs. Shalimar Buildwell Pvt Ltd, Arvind Kumar Nehra vs. ITO, Rajendra Kumar Meena vs. ITO, M/S. Pasari Casting And Rolling Mills vs. Income-Tax Department, New Delhi Television Ltd. vs. DCIT
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAUTAM SINGH CHAUDHARY; DR
• Assessee Lawyers: SARWAN KUMAR GUPTA; MISS. LAKSHITA DEORA; REGISTERED POST BUT IT WAS NOT SHOWN
• Keywords: Condonation of delay; Set aside; Capital asset; Opportunity of being heard; Reassessment proceedings; Unexplained investment; Document seized; Documents seized; Bogus purchase; Principle of natural justice; Assessment record; Competent authority; Reason to believe; Tangible material; Borrowed satisfaction; Bogus
• Section: 147; 148; 144; 143(3); 142(1); 143(2); 68; 43; 69; 69C; 13; 69A; 5(2)

Judgement Text

" vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ds le{k BEFORE: HON’BLE SHRI SANDEEP GOSAIN, JM vk;dj vihy la-@ITA No. 1034/JP/2024 fu/kZkj.k o\"kZ@Assessment Year : 2011-12. Vimla Devi Meena R/o V.P. Daglav Post Surajpura, Tehshil & District Dausa, Dausa. cuke Vs. Income Tax Officer, Ward Dausa, Dausa. LFkk;h ys[kk la-@thvkbZvkj la-@ PAN/GIR No. EOSPM 3462 N vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Sarwan Kumar Gupta, Advocate & Miss. Lakshita Deora, Advocate. jktLo dh vksj ls@ Revenue by : Shri Gautam Singh Chaudhary, JCIT D/R lquokbZ dh rkjh[k@ Date of Hearing : 24/09/2024 mn?kks\"k.kk dh rkjh[k@Date of Pronouncement : 01/10/2024 vkns'k@ ORDER PER: SANDEEP GOSAIN, J.M. This appeal by the assessee is directed against the order dated 17.07.2023 of ld. CIT (Appeals), National Faceless Appeal Centre (NFAC), Delhi passed under section 250 of the Income Tax Act, 1961 for the assessment year 2011-12. The grounds raised in the appeal are reproduced as under :- 1. The impugned order u/s 147 rws 144) of the I.T. Act, 1961 dated 28.12.2018 as well as the notice u/s 148 and action or proceedings u/s 2 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. 147/148 are illegal, bad in law, barred by limitation, without jurisdiction, without approval/satisfaction from the proper or competent authority, against the principle of natural justice and various other reasons or and further contrary to the real facts of the case hence the same may kindly be quashed. 1.2. The ld. AO has grossly erred in law as well as on the facts of the case order in passing the Ex-party order u/s 144 rws147 without providing the adequate and reasonable opportunity of being heard to the assessee in gross breach of law and are bad in law, invalid, illegal and on facts of the case, and hence the same may kindly be quashed and the resultant addition may kindly be deleted in full. 2.1 The ld. CIT(A) has grossly erred in law as well as on the facts of the case in dismissing the appeal of the assessee on the wrong allegation that the assessee has gone in “Vivad Se Vishwas Sceme /act 2020”, while assessee has not adopted or gone in “Vivad Se Vishwas Sceme /Act 2020” against this quantum Appeal. Further the date of hearing was given on 20.07.2023 and the ld. CIT(A) has passed the order on dt. 17.07.2023 before the due date of hearing, thus the order in passing the Ex-party order without providing the adequate and reasonable opportunity of being heard to the assessee and on wrong stands are in gross breach of law and are bad in law, invalid, illegal and on facts of the case, and hence the same may kindly be quashed and the resultant addition may kindly be deleted in full. 2.2 That due to wrong inaction of the ld. CIT(A) a poor illiterate assessee has to suffer for extra cost for appeal filling fees for appeal before this Honble Tribunal and fees and other expenses is also being paid to the advocate/counsel, when there was no default of the assessee. Hence all the cost which are being incurred by the assessee should be imposed on the ld. CIT(A) or revenue with compensation for harassment and hence the order of the ld. CIT(A) may kindly be quashed and the resultant addition may kindly be deleted in full. 3. Rs.28,02,415/- : The ld. CIT(A) has grossly erred in law as well as on the facts of the case in confirming the addition of Rs.28,02,415/- made by the ld. AO on account of purchase of property by treating as income form undisclosed sources as income from other sources, also erred in not invoking any provisions of law while making the addition. The Ld. AO and CIT(A) both have also erred in not considering the vital facts and material available on record in their true perspective and sense available on record. Hence the addition so made by the ld. AO and 3 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. confirmed by the ld. CIT(A) is also being contrary to the real facts of the case and not according to the provision of law, hence the same may kindly be deleted in full. 4. The ld. AO has grossly erred in law as well as on the facts of the case in charging the interest u/s 234A, B,C. The interest so charged is being totally contrary to the provision of law and on facts of the case and hence same may kindly be deleted in full. 5. That the appellant prays your honour indulgences to add, amend or alter of or any of the grounds of the appeal on or before the date of hearing. 2. From the record I find that there is a delay of 327 days in filing the present appeal and in this regard an application for seeking condonation of delay has been filed by the assessee. In support of the condonation application, the assessee has also filed an Affidavit which reads as under :- “I, Vimal Devi Meena W/o Sh. Deen Dayal Meena Age-40 years , R/o V.P. Daglav Post Surajpura, Tehshil District Dausa, Rajasthan 303303, do hereby solemnly affirm on oath as under: 1. That I am not a regular Income Tax Assesee and holding PAN : EOSPM3462N. 2.That an appeal is being filled by me before your honor for A.Y.2011-12 by the delay about 10 Months and 23 days. Although actually there is no delay if following facts are being considered. 3.That as per date of order the appeal was to be filed on or before 15.09.2024 but the same is being filed by delay of 10 Months 23 days. Although actually there is no delay if following facts are being considered. 4.That I would like to submit that actually there is no delay in the appeal filling, Still if your honor is of the view that the appeal is being filled with the delay. Then the reason of late filing was that as the ld. CIT(A) has send the hearing notice on dt.13.07.2023 in which the date of hearing was given on dt.20.07.2023. However the ld. CIT(A) has passed the order on dt. 17.07.2023, on wrong allegation that the assessee has gone in “Vivad Se Vishwas Sceme /act 4 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. 2020”, while I have not adopted or gone in “Vivad Se Vishwas Sceme /Act 2020” against this quantum Appeal and the ld. CIT(A) has passed the order on dt. 17.07.2023 before the due date of hearing i.e 20.07.2023, thus the order in passing the Ex-party order without providing the adequate and reasonable opportunity of being heard to me and on wrong stands are in gross breach of law and are bad in law, invalid, illegal and on facts of the case. 5.That when the counsel opened the window for the reply and to seek adjournment window SHOWING THAT Adjournment request could not be submitted as the proceedings is closed or blocked on 17.07.2023, and hence the I could not submit the reply. Hence I filed an Grievance on the same date i.e 20.07.2023 on portal through the counsel. Copy is enclosed. 6.That thereafter I left the matter on counsel to see for further step or action as the ld. Counsel had stated or advised that we have filed the Grievance and it may be possible that the department Suo-moto will rectify the mistake and the Assessing Officer may also write to the higher authorities for this blunder mistake of the ld. CIT(A), so we should wait for the same. 7.That after filling the Grievance I have not received the closed report order physically. However recently is the starting of August 2024 my husband went in the office of the counsel to know the status of Grievance and progress of the matter, then the counsel checked the income tax portal and has come to know that the Grievance has been closed on 22.07.2023 and no communication and no rectification action has been taken by the Assessing officer, his higher Authorities and CIT(A), then I consult with other CA/advocate who checked Income Tax portal and all the facts and matter and details. 9.That after seeing all above facts, details, position and bonafide advise given by the counsel, advised to file the appeal immediately with the condonation of delay being a very strong case in favour and sufficient reasons. As the I had proceeded on the bonafide advise given by the counsel as per his view or wisdom. 10.That thereafter I asked to the new counsel to prepare the appeal and is being filed it on 07/08/2024. 11.That this looking all these above facts there was no delay after coming to the knowledge of all the above facts and circumstances and there was neither my fault nor of the counsel who had given advice as per his view or wisdom on whom I was depended and the fault if any was of counsel(although not) and under impression that the order will be rectified by the ld. CIT(A), or action will be taken by the Assessing officer or his higher authorities who is also the affected parties. Thus due to all this reason the appeal could not be filed within time. 5 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. 12.That I am not much literate person and living in rural area. 13.That the contents or averment of application for condonation of delay are true and correct and may be treated as part of this affidavit. Place: Jaipur Date: .08.2024 Deponent ” Considering the reasons mentioned in the said application accompanied by an Affidavit of the assessee, I feel that the reasons mentioned in the application constitute sufficient cause for not filing the appeal within the time before the Tribunal. Moreover, no counter affidavit has been filed by the revenue. Therefore, taking a lenient view and considering the principles laid down in the case of Collector, Land Acquisition vs. Mst. Katiji, 1987 AIR 1353 (SC), I condone the delay in filing the appeal before me and decide the appeal herein below. 3. Ground nos. 1 and 2 of the appeal raised by the assessee relates to challenging the invalid action under section 147 read with section 148 and invalid and illegal assessment and illegal order by the ld. CIT (A). 4. The brief facts of the case are that the assessee is an Individual and derived her income from Other sources and agriculture and has not filed her return of income as her income was below the taxable limit. The assessee is not a regular income-tax assessee. The AO on the basis of information received, issued notice under section 148 on 27.03.2018 on the reason that ” On the basis of information received from ITO (I&CI), Alwar vide letter No.157 dt.23.10.2017 along-with copy of registry dt. 6 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. 29.10.2010, wherein it is stated that the assessee had jointly purchased an immovable property (land) at village Dholabas, Tehsil- Lalsot District Dausa by paying Rs.49,00,000/- and stamp duty of Rs.7,04,830/-. Whereas the DLC value of the property under consideration was Rs.1,63,63,200/- for the purpose of charging stamp duty and other charges, thus the total investment of Rs.56,04,830/-(Rs.49,00,000/- +7,04,830/-) was made by the assessee jointly. As the assessee has purchased the property jointly therefore the share of the assessee comes to Rs.28,02,415/-. Hence the source of the amount invested for purchasing of said property remained unverified, apparently the purchase of land was made out of undisclosed income and the assessee had not filed the ITR for A.Y. 2011-12. Therefore I have reason to believe that income to the extent of Rs.28,02,415/- has escaped assessment u/s 147”. Accordingly, the AO had issued notices u/s 142(1) dated 18.10.2018 and 05.12.2018 but these notices have also not been served upon the assessee. Thereafter, the AO has passed the ex-parte assessment order u/s 144 dated 28.12.2018 and made the addition of Rs.28,02,415/- of above investment in purchase of property as alleged undisclosed sources without invoking any provisions of law. Aggrieved by the order of the AO, the assessee preferred appeal before the ld. CIT (A). The ld. CIT (A) dismissed the appeal of the assessee by observing as under :- “ During the course of the appellate proceedings the appellant filed declaration and undertaking in Form -1, under section 4(1) of Direct tax Vivad Se Vishwas Act, 2020 (in short ‘the Act’), before the designated authority on 25.01.2021. A Certificate No. 233813890300121 in Form 3 was issued on 30.01.2021 by the designated authority under section 5(1) of the Act, directing the appellant to pay a sum of Rs. 3750/- before the 7 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. due date. The appellant paid a sum of Rs. 3750/- and the designated authority issued order on 04.03.2022 in Form–5 vide acknowledgement no. 286790001040322, u/s 5(2) of the Act, for the full and final settlement of tax-arrears. As per provisions of section 4(2) of the Act, any appeal, filed before Commissioner (Appeals), shall be deemed to have been withdrawn from the date on which certificate under section 5(1) of the Act, was issued by the designated authority.” In view of aforesaid facts of the case, this appeal is dismissed.” Against the said order of the ld. CIT (A), the assessee has preferred the present appeal before the Tribunal on the grounds mentioned above. 5. Before me, the ld. Counsel of the asseessee reiterated his submissions as made before the first appellate authority and submitted his written submissions which are being reproduced hereunder : “1. Notice u/s 148 not served upon the assessee: At the very outset it is submitted that the Ld. AO has erred in framing there assessment order without serving notice u/s 148 properly to the appellant and therefore assessment is made without jurisdiction and deserve to be quashed. In instant case the notice u/s 148 of the IT act was not served upon the assessee. As the Ld. AO has issued the Notice U/s 148 on dt.27/03/2018 and in the assessment order also the Ld. AO has nowhere stated that the Notice has been served upon the assessee, he stated only issued. And also on inspection of assessment record by the undersigned order on dt.06.09.2024 it is cleared that the notice has also not been sent on Email and on the order sheet also no mention of service further, there is also no delivery report of service of notice on the record. Further it is also very important to note that we had applied to Income Tax Officer Ward –Dausa for the certified copies of documents, with proof of service notice, in response thereto the ld. AO has given the documents but he has not given the proof of service notice u/s 148 and other notices also on inspection the assessment record the same was not available. Further the 8 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. notice issued was returned in the office without any reason which is available on the assessment record. Thus it has been proved that the notice u/s 148 has not been served, still if your honor is having any doubt the ld. AO may kindly be asked for provide the proof of services of the notices. The Ld. AO only commented that the notice u/s 148 issued but it is silent so far as on its proof of duly served upon the assessee and the same notice was not received by the assessee within time as prescribed by law. Assessee has come to know about the said notice only on receiving the assessment order, all these proves that the notices have not been served upon the assessee. And it is settled legal position of law that the proper service of the notice u/s 148 on the assessee is mandatory, without service of notice the subsequent proceedings are invalid and illegal and liable to be dropped. Thus the assessment order u/s 144/147 is bad in law and deserved to be quashed as the mandatory condition for reopening of the assessment could not have been fulfilled. Proper service of the notice u/s 148 is mandatory condition upon the assessee but Ld. AO could not have been served the notice as issued u/s 148 admittedly as per record. Further, notice issued u/s 148 is primary condition of law to initiate the re- assessment proceedings under section 147 could not have been served properly to the assessee appellant therefore mandatory condition could not have been fulfilled. The proper service of notice u/s 148 is a jurisdictional requirement that must be mandatorily complied with and in the absence of the same, the proceedings should not be initiated on the assessee. The same contention is favored by many land mark judgments which are as follows : Honorable ITAT, Agra Bench in M/s K.P. Cold Storage Vs ITO ITA No. 145/Agra/2018 had held that; In the present case AO on basis of information received from the ADIT(Inv.) that there were huge cash deposits in the bank accounts maintained by assessee during the period F.Y 2008-09, had issued notice under section 148 which culminated into assessment framed determining total income at Rs. 2,21,60,400/- as against Rs.12,45,390/- originally returned by assessee. Assessee contended that no notice under section 148 was served upon assessee and ex-parte assessment was completed without serving any notice under section 148 till the completion of assessment which rendered the assessment order to be held void-ab-initio. It was held a valid service of a valid notice under section 148, is not a mere procedural requirement, but is a condition precedent to the validity of any assessment, reassessment or re-computation to be made under section 147 and it is so because of the use of words “shall serve on the assessee” and also the 9 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. requirement to the effect “before making the assessment, reassessment or re- computation under section 147” in the section itself- meaning thereby that if no notice under section 148 is issued or if the notice so issued is shown to be invalid, or the service of notice so issued, is shown to be invalid, AO could not proceed with the subsequent proceedings for making assessment, reassessment or re-computation under section 147. Unless, the notice was served on the proper person in the manner prescribed under section 282, the service was insufficient and AO did not have jurisdiction to re-assess the escaped income. Thus, the service of notice under section 148 was no service in the eye of law and all subsequent proceedings including the ex parte assessment framed on 21.12.2016 in assessee’s case were illegal and void ab initio. [1999] 238 ITR 694 (CAL.) High Court Of Calcutta in Keshab Narayan Banerjee; Section 148, read with section 147 of the Income-tax Act, 1961 – Income escaping assessment – Issue of notice for – Assessment years 1983-84 to 1987-88 – Whether service of notice is condition precedent for passing orders under section 147 – Held, yes – Whether respondent made attempt to serve notice under section 148 to appellant by registered post but it was not shown that either appellant refused to take service of notice or that appellant was not available at his residence or that there was no one willing to accept service on his behalf, service of notice could not be said to be properly effected and, therefore, assessment order passed u/s 147 based on service was also bad in law –Held, yes (In favor of assesee). For taking any action u/s 148 a valid service of the notice is precondition. For reference kindly refer a direct decision of Shri Chetan Gupta vs. ACIT(2014) 160 TTJ 0009 (Del). For valid assumption of jurisdiction to frame a reassessment, a proper and valid service of notice u/s 148 on assessee is mandatory requirement violation thereof will result in quashing of the reassessment proceedings. Assessee has demonstrated that the notice was issued/sent at an address different than the one mentioned in his return of income. Department also admits that the notice was served not on assessee but on one Shri Ved Prakash who according to assessing officer is a responsible person working for the group entities of assessees family and this amounts to a proper service on assessee. These facts are admitted by the department which are evidenced by the remand report and field correspondence mentioned above. Assessee’s contention that said Ved Prakash was neither his employee nor his authorized agent, remains uncontroverted. Merely because he appeared in some other group entities will not detract the fact that notice was not served on assessee. During the course of reassessment AO was intimated about non service of notices u/s 148 and 143(2) but AO failed to take cognizance of 10 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. assessee’s intimation and objections. From the assessment record, remand reports, field correspondence and oral contentions, department could not demonstrate before us that notice u/s 148 was served on the assessee for A.Y. 2001-02. In the absence of a valid service of notice u/s 148 on the assessee the reassessment proceedings for AY2001-02 are bad in law, consequently they are quashed. CIT vs. Hotline International Pvt. Ltd 296 ITR 333 (Del); Hotel Blue Moon 321 ITR 362 (SC), followed. The above decision has been affirmed by the Honble High Court Delhi refer CIT v/s Chetan Gupta 94 CCH 13(Del). In the case of A.K. Kochandi & Ors. vs. AGRICULTURAL INCOME TAX OFFICER(1975) 43 CCH 0749 KerHC (1976) 1976 CTR 0072 (KER) : (1977) 110 ITR 0406held that Assessment—Best judgment assessment— Validity—Notice not served on assessee in accordance with Order V, rr. 17, 18 & 19 etc.—Ex parte assessment not valid. On this preposition also kindly refer a direct decision of Jodhpur Bench in the case of Sh. Panna Lal Bhil v/s ITO in ITA No. 453/Jd/2013 dt. 11.06.2014. Where it has been held that the notice u/s 148 of the Act is a jurisdictional notice and its service has to be as per law, failing which the entire edifice built on the basis of that notice will crumble down as a pack of card fall. Copy is enclosed. Thus on the above legal position of law the notice u/s 148 or proceedings u/s 147/148 and consequent assessment order liable to quashed. 2. Approval of 12 assessee;s in one letter illegal: Further the ld. Pr. CIT/JCIT has given one consolidated approval of 12 assessee’s through one letter dt. 21.03.2018(PB7) and this show how the Pr. CIT/JCIT has acted in formal way. On perusal of the assessment record and documents it is found that the approval was not in original letter or documents. The document of approval was in the photocopy. Further on the satisfaction on reasons there is no date on signature of the Pr. CIT and JCIT hence it is not clear that when they signed on the reasons recorded by the ld. AO there is no date given by the ld. AO. How the approval of all the 12 different assessee’s can be given in one documents, when all are the independent or separate assessee and reasons are different. Thus it all shows how the wrong and illegal manner have been adopted by all the authorities. On this preposition and issue kindly refer the decision of this Honble ITAT in the case of Sh. Satya Naraya Bairwa v/s ITO in ITA No. 867 & 869/Jp/2018 dt. 15.09.2021. Copy is enclosed, wherein under the same facts and circumstances the Honble ITAT has held that - 11 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. “20. The ld. A/R has also drawn our attention on the approval of the Pr. CIT placed at page Nos. 7-8 of the paper book and also from the assessment record placed before us, we found that he has given one consolidated approval of 56 different assessee’s in one shot through one letter dated 29.03.2016 which is even not signed by him but signed by ITO (T&J), who is not a competent authority to give and signed the approval letter, which shows how the PR. CIT has acted in very formal way. When we examined of the assessment record, it is gathered that the approval was in photocopy and not in original or there was no original letter or documents of approval. Further the name of the assessee was at Sr. 46 out of 56 assessee's and even there was no tick on the name of the assessee in the approval list, which creates a doubt that the approval has been received before the issue of notice u/s 148 of the Act as the approval letter lying on the file after issuance of the notice u/s 148 or not before or attached with the notice u/s 148 and may reach in the office of the AO after 31.03.2016. Thus, in our view, approval u/s 151 cannot be given of all the 56 assessee's in a single documents, as all assessee's are the independent and separate also the reason recorded are different in each case and it is not possible that there shall be same reasons. Looking to these facts and record it is also held that the procedures and way of approval and satisfaction is not proper. Here AO initiated proceedings u/s. 147 r.w.s. 148 on basis of information furnished and CIT gave approval without applying his mind in slipshod manner. As approval/sanction given by CIT was without recording his own independent satisfaction as noted above, therefore the reopening was not sustainable as per above judicial pronouncements and irregularities noted. There were clear irregularities and violation of the provision of Sec. 151 of the Act and very foundation of the issuance of the notice u/s 148 was not as per law. Then in that eventuality, we are of the view that the issuance notice 148 of the Act and all the consequent proceedings and assessment order passed was not in accordance with law. The case laws relied upon by the ld. DR are not tenable in the facts and circumstances of present case, therefore, considering the totality of facts and circumstances of the case as well as the judicial pronouncements qua the issue under consideration, we find merit in the contention of the ld AR, therefore, we quash the proceedings U/s 147 of the Act.” Here is the same position. 3. No income escaped: further it is submitted that the notice u/s 148 can be issued only when there is any escape of income because S. 147 provides that If the Assessing Officer has reason to believe that an income chargeable to tax has escaped assessment for any assessment year, here the assessee has not escaped any income because the assessee has never having the undisclosed or unexplained income. Which shows that there was no escapement of income by the assessee, as the assessee has not purchased the property during the year the same was purchased in the year 1999 by the family members who paid the consideration in the year 1999. Hence if there is neither the escapement of income by the assessee nor proved then the notice issued u/s 148 is invalid. 12 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. 4. Re-assessment is based on borrowed satisfaction; The Ld. AO has issued notice u/s 148 on the basis of borrowed information from the Sub Registrar for valuation of the immovable property, without verifying the correctness of the information and therefore re-assessment proceedings is absolutely bad in law and without jurisdiction and further AO not recorded his satisfaction and re-assessment is based on borrowed satisfaction which was not sufficient to confer power on the AO to initiate reassessment proceedings against assessee. CIT vs. Shree Rajasthan Syntex Ltd. (2009)313 ITR 231 (Raj.) SLP dismissed (2009) 313 ITR (St.) 27 (SC); Sun. Pharmaceutical Industries Ltd. Vs. DY. CIT (2016)287 CTR(Del.)621; The Impugned initiation of assessment proceedings had started by the AO on borrowed satisfaction but not their own which is mandatory condition of the law as provided for re –opening of any assessment. Section 147 of Act clearly specify. In impugned case the Ld. AO had claimed that a certain transaction of bogus LTCG on the basis of statements as recorded of third party and Ld. AO could not have been made any enquiry regarding both the facts and without conducting any enquiry/investigation re-opened the case and issued the notices which is completely based on perverse findings and deserve to be declared as null and void ab initio. Here in impugned case AO’s self-satisfaction regarding escapement of income is not bringing on record which is mandatory condition of law under section 147 of Income Tax Act, 1961, it could have been come only after conducting enquiry and investigation but Ld. AO did not make such therefore complete re- assessment proceedings come under suspicious circle, various honorable courts propounded and led on this aspect and issue direction to handle such situation. Similarly in the case of CIT v. Indo Arab Air Services (2016) 130 DTR 78/ 283 CTR 92 (Delhi)(HC) it was held that mere information that huge cash deposits were made in the bank accounts could not give the AO prima facie belief that income has escaped assessment. The AO is required to form prima facie opinion based on tangible material which provides the nexus or the link having reason to believe that income has escaped assessment. The AO was also required to examine whether the cash deposits were disclosed in the return of income to form an opinion that income has escaped assessment. The power to reopen an assessment is conditional on the formation of a reason to believe that income chargeable to tax has escaped assessment. The power is not akin to a review. The existence of tangible material is necessary to ensure against an arbitrary exercise of power. Aventis Pharma Ltd. vs. ACIT (2010) 323 ITR 570 (Bom). In the matter of Varshaben Sanatbhai Patel v. ITO (2016) 282 CTR 75 (Guj.)(HC) Hon’ble Gujarat High court held that:- 13 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. “S. 147 : Reassessment – Within four years – The basis of formation of belief by the AO that income liable to tax has escaped assessment must form part of reasons recorded by him – AO could not initiate reassessment proceedings merely on the basis of information supplied by DGIT (Inv.) which is an external source of material not forming part of reasons recorded – Thus basic requirement of section 147 was not satisfied and the reassessment notices were quashed. [S. 143(1)] For the relevant assessment years, the returns filed by the assessee were processed under section 143(1). Subsequently, the AO issued notice under section 148 seeking to reopen the assessment on ground that on verification of details available on record, it was found that assessee had made bogus purchases and to that extent profit had escaped assessment from tax. The assessee filed its objections to the reopening of assessment. The AO passed an order rejecting the objections raised by the petitioner which showed that the reopening was based on material received from the DGIT (Inv.), Mumbai, pursuant to inquiries made by him (the DGIT). On writ filed by the petitioner against reassessment, the HC observed that the material on the basis of which the AO sought to assume jurisdiction under section 147 of the Act, was the information received from an external source viz., from the DGIT and not the material on record as reflected in the reasons recorded. Since the belief of the AO was not based upon the material on record, but on some other material from an external source which did not find reference in the reasons recorded by him, it was held that the basic requirement of section 147 was not satisfied. Hence, the HC quashed and set aside the impugned notices under section 148 of the Act. (AY. 2009-10 to 2011-12)” In an identical matter of “Hitesh Ashok Vaswani Vs DCIT (ITAT Ahmedabad) dated 12/11/2020” Hon’ble ITAT Ahemdabad held that “the information received from investigation wing, emanating from the search records would not per se empower the Assessing Officer to exercise the power of reassessment. Such information with regard to escapement of income which comes into possession of an Assessing Officer has to be processed and, on the basis, thereof an opinion has to be formed objectively before issuing notice under Section 148 of the Act to an assessee”:- “87. Coming to the second question of the assessee, we note that the power of reassessment is conferred on the Assessing Officer by the provisions of Section 147/148 of the Act. But such power is subject to the certain conditions laid down under Section 147/148/149/151 of the Act. One of the very first condition is that before issuing notice under Section 148 of the Act for reassessment proceeding under Section 147 of the Act the AO must have reason to believe that income has been escaped assessment. Thus the AO for that purpose has to record a 14 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. satisfaction note which must fulfill the parameters of the undefined expression ‘reason to believe’. The expression ‘reason to believe’ occurring in Section 147 of the Act has been interpreted by various Hon’ble High Courts as well as the Hon’ble’ Supreme Court of India in numerous cases. The question in the present case is as to whether the information received from the investigation wing/search team would constitute ‘reason to believe’ empowering the Assessing Officer to reopen the assessment. Indeed the ‘reason to believe’ being a condition precedent for reopening the assessment is a question of jurisdiction. 88. The expression ‘reason to believe’ occurring in Section 147 of the Act inter- alia postulates that the information received from investigation wing, emanating from the search records would not per se empower the Assessing Officer to exercise the power of reassessment. Such information with regard to escapement of income which comes into possession of an Assessing Officer has to be processed and, on the basis, thereof an opinion has to be formed objectively before issuing notice under Section 148 of the Act to an assessee. In other words the information received from the investigation wing cannot be said to be tangible material per se without a further inquiry being undertaken failing which the decision of the Assessing Officer in issuing notice for reopening of assessment would be a result of borrowed satisfaction and notices would be as a result of assumption of jurisdiction. While the report of the Investigation Wing might have constituted material on the basis of which the Assessing Officer formed the reasons to believe, the process of arriving at such satisfaction could not be a mere repetition of the report of investigation wing. 89. In the assessee’s case, the crucial link between the information made available to the Assessing Officer and the formation of belief was absent. The “reasons to believe” recorded were not reasons but only conclusions and a reproduction of the information received from the Director (Investigation). Hence it is nothing but a “Borrowed satisfaction”. 90. The AO, in the reasons recorded, discussed in details the materials found by the search team and thereafter initiated the proceedings by observing as detailed under: On the basis of analysis base on above seized documents it has been found that these transaction are done in cash by ASV (Ashok Sunderdas Vaswani) for the relevant assessment year 2008-09. 91. Thus what is inferred from the satisfaction recorded by the AO is that there was no application of the mind of the AO which was pre-requisite for acquiring the jurisdiction under Section 147/148 of the Act. As such the AO in the reason recorded nowhere mentioned how he reached to believe that the information received from the investigation wing represent income of the assessee and such income has escaped assessment. There is no mention in reasons recorded with 15 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. respect to the fact that whether the assessee has filed original return or weather assessment under Section 143(3) was made earlier or not. if assessment under Section 143(3) completed earlier then how it was failure on the part of the assessee to disclose all material facts fully and truly during assessment proceeding for initiating reassessment proceeding after expiry of 4 year from the end of relevant assessment year.” Prayer: In view of the above facts , circumstances the case and legal position the notice as well as the assessment may kindly be quashed. GOA-2; illegal order passed by the ld. CIT(A): Facts: Kindly refer facts as mentioned in GOA-1 SUBMISSIONS: 1. As the ld. CIT(A) has grossly erred in law as well as on the facts of the case in dismissing the appeal of the assessee on the wrong allegation that the assessee has gone in “Vivad Se Vishwas Scheme/act 2020”, while assessee has not adopted or gone in “Vivad Se Vishwas Scheme /Act 2020” against this quantum Appeal. As the assessee went in this Scheme in the penalty of Rs.10,000/- u/s 271(1)(b) and in penalty of Rs.5,000/- u/s 271F for that assessee had deposited only Rs.3,750/- which is 25% of penalty amount of Rs.15,000/- (10,000/-+5,000). While in the quantum appeal the tax amount was of Rs.7,12,477/-. In support we are enclosing herewith the copy of Form- 3,4,5 of VSV, CIT(A) order u/s 271(1)(b) and 271F. hence how the ld. CIT(A) can give such illegal order when assessee has not adopted the VSVS Scheme. This show that the ld. CIT(A) has blindly passed the order without going the facts and details. 2. Further the ld. CIT(A) had given the date of hearing of appeal on dt. 20.07.2023 through the notice dt. 13.07.2023 and the ld. CIT(A) has passed the order on dt. 17.07.2023 before the due date of hearing i.e 20.07.2023, thus he passed the Ex-party order without providing the adequate and reasonable opportunity of being heard to the assessee and without allowing the assessee to file the reply on wrong stands which is against the principal of natural justice and are in gross breach of law and are bad in law, invalid, illegal and on facts of the case, and hence the same may kindly be quashed and the resultant addition may kindly be deleted in full. 3. That due to above wrong inaction of the ld. CIT(A) a poor illiterate assessee who is illiterate lady belongs to a rural area has to suffer for extra cost for appeal filling fees for appeal before this Hon’ble Tribunal and fees of counsel or advocates and other expenses are also being paid, when there was no default of the assessee. She has suffered as mentally harassment, hence all the cost which are being incurred by the assessee should be imposed on the ld. CIT(A) or revenue with compensation for harassment. As the assessee and revenue both are equal parties before the Honble Court/Tribunal, so the above cost should also be imposed on the revenue and the order of the ld. CIT(A) may kindly be quashed and the resultant addition may kindly be deleted in full.” 16 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. 6. On the other hand, the ld. D/R has vehemently supported the orders of the Revenue authorities. 7. I have considered the rival contentions of both the parties and perused the material available on record. From perusal of the record, I observe that the AO has reopened the case of the assessee for escaping the income of Rs. 28,02,415/- on account of alleged unexplained investment in purchase of property and assessee has also not filed her return of income and accordingly issued notice under section 148 of the IT Act on 27.03.2018 after recording reasons that income of the assessee had escaped assessment within the meaning of section 147 of the IT Act, 1961. Thereafter the AO framed assessment under section 144 r.w.s. 147 of the IT Act by making addition of Rs. 28,02,415/- of the above investment in purchase of property as alleged undisclosed sources without invoking any provisions of law. The assessee agitated the addition in the appeal before the ld. CIT (A), who dismissed the appeal of the assessee by observing as under :- “ During the course of the appellate proceedings the appellant filed declaration and undertaking in Form -1, under section 4(1) of Direct tax Vivad Se Vishwas Act, 2020 (in short ‘the Act’), before the designated authority on 25.01.2021. A Certificate No. 233813890300121 in Form 3 was issued on 30.01.2021 by the designated authority under section 5(1) of the Act, directing the appellant to pay a sum of Rs. 3750/- before the due date. The appellant paid a sum of Rs. 3750/- and the designated authority issued order on 04.03.2022 in Form–5 vide acknowledgement no. 286790001040322, u/s 5(2) of the Act, for the full and final settlement of tax-arrears. As per provisions of section 4(2) of the Act, any appeal, filed before Commissioner (Appeals), shall be deemed to have been withdrawn from 17 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. the date on which certificate under section 5(1) of the Act, was issued by the designated authority.” In view of aforesaid facts of the case, this appeal is dismissed.” In this regard the assessee has drawn my attention to the fact that the assessee has not sought any immunity under the scheme of “Vivad Se Vishwas Scheme/Act, 2020” against quantum appeal. Instead, assessee has sought immunity under the scheme of “Vivad Se Vishwas Scheme/Act, 2020” against Penalty appeal levying penalty of Rs. 10,000/- under section 271(1)(b) and penalty of Rs. 5,000/- under section 271F of the IT Act, 1961. During appellate proceedings the assessee filed declaration and undertaking in Form-1 under section 4(1) of Direct Tax Vivad Se Vishwas Act, 2020 before the designated authority on 25.01.2021 and on the direction of the designated authority the assessee deposited a sum of Rs. 3750/- which is 25% of penalty amount of Rs. 15,000/- (Rs. 10,000 + Rs. 5,000), whereas in quantum appeal, tax amount was Rs. 7,12,477/-. In support of assessee’s contention, the assessee has placed on record copy of Form-3, 4, 5 of Vivad Se Vishwas Act, 2020, CIT (A)’s order under section 271(1)(b) and 271F. On perusal of record, I further find that vide notice under section 250 dated 13.07.2023 issued by the appellate authority the assessee was required to furnish his written submission on or before 20.07.2023 whereas the ld. CIT (A) has passed the order ex parte on 17.07.2023 before assessee could submit his written submission on 20.07.2023. From the above facts, it is clear that the ld. CIT (A) has passed a wrong order in quantum appeal, that too without giving adequate opportunity 18 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. of being heard, allowing the assessee to file the reply on wrong stands taken by the appellate authority which is against the principles of natural justice. 7.1 Before me, the ld. A/R of the assessee submitted that the assessee was not served with the notice under section 148 of the Act. In this regard, he also submitted that the assessment order was silent in respect of service of notice on the assessee, the assessment order only mentioned that the notice under section 148 was issued. The AO has not placed any evidence that the notice under section 148 was served on the assessee. In this regard, the ld. A/R placed reliance on various cases laws. For taking any action under section 148 a valid service of the notice is pre-condition. Reference is made to judgment of Hon’ble Delhi High Court in case of Shri Chetan Gupta vs. ACIT (2014) 160 TTJ 09 (Del.). For valid assumption of jurisdiction to frame a reassessment, a proper and valid service of notice u/s 148 on assessee is mandatory requirement violation thereof will result in quashing of the reassessment proceedings. Assessee has strongly demonstrated that the notice was not served on him, on the contrary, AO also has not brought on record any evidence that the notice was actually served on the assessee. Reference is also made to the decision of Hon’ble Calcutta High Court in the case of Keshab Narayan Banerjee, 238 ITR 694(Cal.) wherein the question was Whether service of notice is condition precedent for passing orders under section 147 – Held, yes – Whether respondent made attempt to service notice under section 148 to appellant by registered post but it was not shown that either appellant refused to take service of notice or that appellant was not available at his residence or that there was 19 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. no one willing to accept service on his behalf, service of notice could not be said to be properly effected and, therefore, assessment order passed under section 147 based on service was also bad in law – Held, yes. 7.2 The ld. A/R has also drawn my attention on the approval of the Pr. CIT placed at page no. 7 of the paper book and also from the assessment record placed before me, I found that the ld. CIT (A) has given one consolidated approval of 12 different assessees in one short through one letter dated 21.03.2018 which is even not signed by him but signed by ITO, who is not a competent authority to give and sign the approval letter, which shows how the Pr.CIT has acted in very formal way. It is also noticed from the assessment record that the approval was in photocopy and not in original or there was no original letter or documents of approval. Further, on the satisfaction on reasons, there is no date on signature of the Pr. CIT and JCIT hence it is not clear that when they signed on the reasons recorded by the AO, there is no date given by the AO. How the approval of all the 12 different assesses can be given in one document, when all are independent or separate assessee and reasons are different. Thus it all shows that wrong and illegal manner has been adopted by all the authorities. On this preposition and issue, reference is made to decision of Coordinate Bench of the Tribunal in the case of Shri Satya Narayan Bairwa vs. ITO in ITA No. 867 & 869/JP/2018 dated 15.09.2021 wherein it has been held as under :- “20. The ld. A/R has also drawn our attention on the approval of the Pr. CIT placed at page Nos. 7-8 of the paper book and also from the assessment record placed before us, we found that he has given one consolidated approval of 56 different assessee’s in one shot through one letter dated 29.03.2016 which is 20 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. even not signed by him but signed by ITO (T&J), who is not a competent authority to give and signed the approval letter, which shows how the PR. CIT has acted in very formal way. When we examined of the assessment record, it is gathered that the approval was in photocopy and not in original or there was no original letter or documents of approval. Further the name of the assessee was at Sr. 46 out of 56 assessee's and even there was no tick on the name of the assessee in the approval list, which creates a doubt that the approval has been received before the issue of notice u/s 148 of the Act as the approval letter lying on the file after issuance of the notice u/s 148 or not before or attached with the notice u/s 148 and may reach in the office of the AO after 31.03.2016. Thus, in our view, approval u/s 151 cannot be given of all the 56 assessee's in a single documents, as all assessee's are the independent and separate also the reason recorded are different in each case and it is not possible that there shall be same reasons. Looking to these facts and record it is also held that the procedures and way of approval and satisfaction is not proper. Here AO initiated proceedings u/s. 147 r.w.s. 148 on basis of information furnished and CIT gave approval without applying his mind in slipshod manner. As approval/sanction given by CIT was without recording his own independent satisfaction as noted above, therefore the reopening was not sustainable as per above judicial pronouncements and irregularities noted. There were clear irregularities and violation of the provision of Sec. 151 of the Act and very foundation of the issuance of the notice u/s 148 was not as per law. Then in that eventuality, we are of the view that the issuance notice 148 of the Act and all the consequent proceedings and assessment order passed was not in accordance with law. The case laws relied upon by the ld. DR are not tenable in the facts and circumstances of present case, therefore, considering the totality of facts and circumstances of the case as well as the judicial pronouncements qua the issue under consideration, we find merit in the contention of the ld AR, therefore, we quash the proceedings U/s 147 of the Act.” Looking to these facts and record, it is also held that the procedures and way of approval and satisfaction is not proper. Here, the AO initiated proceedings under section 147 read with section 148 on basis of borrowed information received from the Sub Registrar for valuation of the immovable property, without verifying the correctness of the information and CIT gave approval without applying his mind in slipshod manner. As approval/sanction given by CIT was without recording his own independent satisfaction as noted above, therefore, the reopening was not sustainable 21 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. as per above judicial pronouncements and irregularities noted. Thus, in that eventuality, I am of the view that the issuance of notice under section 148 of the IT Act and all the consequent proceedings and assessment order passed was not in accordance with law. The case laws relied upon by the ld. D/R are not tenable in the facts and circumstances of the present case, therefore, considering the totality of facts and circumstances of the case as well as the judicial pronouncements qua the issue under consideration, I find merit in the contention of the ld. A/R, therefore, I quash the proceedings under section 147 of the Act. 7.3 The order of the ld. CIT (A) is also dismissed as he has passed a wrong order in quantum appeal because the assessee has not applied for any immunity under “Vivad Se Vishwas Scheme/Act, 2020” in quantum appeal. From the order of the ld. CIT (A), it is clear that the order relates to penalty under section 271(1)(b) and 271F. Therefore, the order passed by ld. CIT (A) is quashed. Ground No. 3 : Addition of Rs.28,02,415/- on account of alleged unexplained investment in purchase of property. FACTS : Kindly refer facts mentioned in GOA 1. SUBMISSION: “1. No provisions has been applied by the ld. AO: At the very outset it is submitted that the ld. AO made the addition of Rs.28,02,415/- but he has not invoked or applied any provisions of law while making the addition. The ld. AO has not stated under what provision of law he has made the addition and under what head whether, under business or trading income, agriculture income, capital gain or u/s 48, 56 or u/s 68 or 69. Thus the addition so made without any provision of act is also against the law and liable to be deleted on this ground alone. When the ld. AO has not invoked any provision of Act/law then also how the ld.AO can make the addition. When in the law and in the Act for each and every offence specific provisions are given to held any person as victim defaulter, then without applying any provision for that a person cannot be taxed and 22 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. penalized. When the ld. AO himself has not stated that under what provision the assessee liable to be taxed or penalized or under what provision his offence falls then how the addition can be made. On this preposition we also would like to draw your kind attention toward the recent decision of this Honble ITAT in the case of Arvind Kumar Nehra V/s ITO Ward 7(1), Jaipur 32/Jp/2024 dt 10.04.2024 where it has been held “It is also noteworthy to mention from the entire conspectus of the case that the AO has also not invoked any provisions of IT Act while making the lump Sum addition of Rs.50,00,000/- for cash deposits in the bank account during the Demonetization Period, Unsecured Loan & capital introduced. Hence, in our view lump-sum addition cannot be made under these accounts. The AO must have referred the specific amount with specific details and documents which he has not provided and as to what basis lump sum addition has been made and also failed to mention that on which account and as to what amount of addition consists of. It is also noted that the AO has not stated under which provisions or section he has made the lump-sum addition either u/s 68 or 69 or 69A or trading or u/s 56 i.e. other sources. It may be worthwhile to mention that when in the Act for every additions, the provisions or section has been provided by the legislature, otherwise there shall be no meaning of the Act. Hence the addition is wrongly made against the Act . (vide page 21-22 of the order).” The same has also been held recently in the case of Rajendra Kumar Meena v/s ITO Swaimodhopur in ITA No.516/Jp/2024 dt. 2507.2024. In the case of M/S. Pasari Casting And Rolling Mills ... vs Income-Tax Department Through Its ... on 25 January, 2024 in W.P. (T) No. 1850/2022 dt. 25.01.2024 where it has been held that “ Furthermore, the recorded reason is also silent under which provision of the Act the additions are sought to be made i.e. whether Section 68, Section 69A, Section 69B, Section 69C or any other provisions of the Act. It is not the case of the Revenue that the Petitioner has paid any cash to the so-called accommodation entry provider to obtain the accommodation entry to plough back own funds, hence, there is no ground/material to form reasonable belief of any accommodation entry. (Refer PCIT Vs. Meenakshi Overseas P. Ltd. reported in [2017] 395 ITR 677 (Del). In the case of Oryx Fisheries Pvt. Ltd. Vs. UOI reported in (2010) 13 SCC 427, it is held by the Hon'ble Supreme Court that the show cause notice should give the noticee a reasonable opportunity of making objections against proposed charges indicated in the notice and the person proceeded against must be told the charges against him so that he can make his defense and prove his innocence. In the entire course of the proceeding, at no stage the Petitioner is made aware of the provisions of law which have been contravened and/or under which the additions are sought to be 23 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. made which is in gross violation of the principles of natural justice and the procedure adopted by the Department is not fair or proper. In the case of New Delhi Television Ltd. Vs. DCIT reported in [2020] 424 ITR 607 (SC), it is held by the Hon'ble Apex Court that the Assessee must be put to notice of all the provisions on which the Department relies. Hence also the addition is liable to be deleted in full. 2. Correct facts misinterpreted by the ld. CIT(A):- 2.1 As the assessee is an agriculturist since long period, has not filed her return on income being no taxable income during the year . The ld. AO on the basis of information received from Income tax officer (I&CI) Alwar letter No 157 dated 23.10.2017 along with copy of registry dated 29.10.2010 has issued notice u/s 148 of the income tax act 1961 . 2.2 As we have already stated above that the assessee has not received any notice u/s 148 dated 27.03.2018. And also nor any notice u/s 142(1) and 144 of the Income tax Act 1961dated 18.10.2018, 05.12.2018. Thus the assessee could not submit her reply before the ld. AO despite non services of notices the ld. AO passed the order u/s 144 of the Income tax Act 1961 by making an addition of Rs. 28.02.415/- as Income from alleged undisclosed sources under the head \"Income from other sources\" for the A.Y 2011-12. The reason for making addition by the ld. AO was the assessee’s share of Rs. 28,02,415/- in purchase of property jointly with other persons namely Smt. Vimla Devi. 2.3 No any notice served upon the assessee:Further without serving the notices u/s 142(1), 144 or SCN no addition can be made in the entire assessment order the ld. AO has only stated that the notice issued but he has not brought any proof of service of notice and he has not stated that what recourses he has adopted for service of notice. Hence also the assessment order is illegal invalid and liable to be quashed as well as the addition is also liable to be deleted in full. 2.4 Further as the correct facts are that that the assessee has made a purchase registry of agricultural land Khasra number 3415 rakba 4.87 hectre from Kanhaiya Lai S/o Sukh Lai, Yogesh Kumar S/o Nanga, Smt Kamli W/o Nangaa, Kavita D/o of Nanga resident of Dholawas Tehsil Lalsot along with Vimla Devi w/o Shri Deen Dayal on dated 29.10.2010 for Rs 49,00, 000/-. The registry cost was 7,04,830/-. Total Cost Rs 56,04,830/-. But the above land was purchased and taken possession by her husband Sh. Ram Sahay S/o Sukdev R/o Daglov Tehsil Dausa along with Smt Rukmani W/o Shri Ramphool on dated 25.05.1999 at a sales consideration of Rs 4,00,000/- and made payment of sales consideration in cash also vide sales agreement dated 25.09.1999 duly notarized and possession has been taken by the purchaser on that date i.e 25.05.1999. At the time of this agreement and it had been decided by both the parties that registry can be done any time when the purchaser required the same. And he can do agricultural work, construction etc on that agricultural land. 24 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. On the basis of agreement dated 25.05.199 during the year 2010-11, Ram Sahay S/o Sukh Dev has decided to do registry of its share in above agricultural land in the favour of his Wife Smt. Prabhati Devi and Smt Rukhmani Devi W/o Shri Ram Phool has decided to do registry of her share in above agricultural land in favour of her daughter in law Smt. Vimla Devi W/o Deen Dayal. Thus during the year 2010-11 no financial transaction was executed for purchase of above Khasra number 3415 rakba 4.87 hectre by the purchaser of above land because the possession of the above possession and payment has already been done by purchaser family member on dated 25.05.1999. As per income tax act 1961, the transfer of immovable assets will be deemed when the possession of assets was handed over to purchaser by seller and payment of sales consideration has been completed. In our case possession was handed by the seller to purchaser on dated 25.05.1999 and payment of sales consideration was also made on 25.05.1999. So the actual transfer of this immovable agriculture land was done on dt. 25.05.1999 as per definition of transfer of immovable assets under I T Act 1961. Hence, the addition made by the ld. AO of Rs 28,02,415/- in A.Y. 2011-12 is illegal and unjustified because transfer of assets has already been taken place on dt. 25.05.1999 say A.Y 2000-2001. In support we had filled the copy of purchases agreement dated 25.05.1999(PB17-19) and copy of purchases registry dated 29.10.2010(PB8-16) before the ld. CIT(A) in the case of Smt. Prabhati Devi who is joint purchaser. However the ld. CIT(A) has wrongly stated that “The sale agreement also states that the total consideration of Rs.4,00,000/- was paid at the time of agreement in the year 1999. It is however, not clear how the payment is made i.e. whether in cash or by cheque. Moreover no evidence of payment of Rs.4,00,000/- is furnished and the only aversion about the payment is in the agreement. As on perusal of the page 2 para 1 PB (PB 19) where it has been written that “ we the seller had received entire amount in cash from the purchasers and given the real physical possession before us” (और हम \u0005व\u0007 ेता गणनी \u0007 ेतागण से \u0005व\u0007य धन क\u0013 स\u0014पूण\u0017 रा\u0018श अपने \u001bह\u001cसे अनुसार \u0007 ेतागण से रोकड़ी ा!त कर उ#त \u0005व\u0007य क\u0013 गयी भू\u0018म पर क%जा वा\u001cत\u0005वक 'प से क%जा हमारे समान करा \u001bदया|)Thus when the payment had given in cash then how the ld. CIT(A) can say that no mode of payment is given. How the ld. CIT(A) can say there is no evidence of payment when in the agreement itself it is mentioned, if he was having any doubt he could have asked to the ld. AO to make the inquiry from the seller and purchaser, and when the payment was made by the family member in the year 1999, then how the ld. CIT(A) can ask for the source in this year and when the payment has been made by the family members. Further the other allegation of the ld. CIT(A) that “It may be pointed out that all the transaction of immovable property are necessarily required to be register with a Registrar of Properties alongwith the payment of registration cost for giving the transaction legal and enforceable title to the parties. There is no option with transacting parties to either not register the document or register it at later date. Though the parties to the transaction may have agreed to postpone the registration of document to a later date, they do not have such option and the legal rights in the property are created only upon the registration of document and payment of requisite charges. The mere fact that the purchaser was permitted to carry out agricultural activity in the land does not 25 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. allowed the transaction to become legal and enforceable. The purchase deal is not complete without registration (which is the case happens in 2010).” However on perusal of these allegations it is clear that the same are baseless and far from the act and there is no link with the income tax act. The observations of the ld. CIT(A) are based on assumption, presumptions and suspicion and has intentionally and blindly ignored these very vital facts of the case and proceeded on their own guess work, assumption, presumption and suspicion and it is the settled legal position that no addition can be the basis of suspicion, assumptions’ and presumption. An allegation remains a mere allegation unless proved. Suspicion may be strong however cannot take the place of reality, are the settled principleskindly refer Dhakeshwari Cotton Mills 26 ITR 775 (SC) also refer R.B.N.J. Naidu v/s CIT 29 ITR 194 (Nag), Kanpur Steel Co. Ltd. v/s CIT 32 ITR 56 (All).Also refer CIT v/s KulwantRai 291 ITR 36( Del). In CIT v/s Shalimar Buildwell Pvt Ltd 86 CCH 250(All) it has been held that the AO made the addition merely on suspicion which was not desirable in the eye of law. Further in the income tax act nowhere given any prohibition that an agreement must be registered and payment made earlier shall not be accepted in want of the registration of the agreement. Here the matter of source and payment not of the registration of the documents. And the documents can be registered at any time. And in the income tax only condition of payment of full consideration and possession which had already been fulfilled in the present case and the ld. CIT(A) has not disprove the same with the help of any documentary evidences. For transfer definition kindly see definition in sec 2(47) of the IT Act. Hence all the above details may kindly be considered and taken on records. Prayer: Hence in view of the above facts, circumstances and legal position entire addition may kindly be deleted in full.” 8. On the other hand, the ld. D/R has vehemently supported the orders of the Revenue authorities. 9. At the very outset, on perusal of the assessment order, it is noticed that the AO while making the addition has not invoked or applied any provisions of law. The AO has not stated under what provision of law he has made the addition and under what head whether, under business or trading income, agriculture income, capital gain or under section 48, 56 or under section 68 or 69. Thus the addition so made without any provision of Act is also against the law and liable to be deleted on this ground alone. 26 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. Without invoking the provision of Act/law, the AO cannot make the addition. For each and every offence, specific provisions are given in the law/Act to hold any person as victim defaulter, therefore, without applying any provision for that a person cannot be taxed and penalized. As the AO himself has not stated under what provision the assessee is liable to be taxed or penalized or under that provision his offence falls, therefore, addition cannot be made against the assessee. On this preposition, I rely on the recent decision of Coordinate Bench of the Tribunal in the case of Arvind Kumar Nehra vs. ITO Jaipur in ITA No. 32/JP/2024 dated 10.04.2024 wherein it has been held as under :- “It is also noteworthy to mention from the entire conspectus of the case that the AO has also not invoked any provisions of IT Act while making the lump Sum addition of Rs.50,00,000/- for cash deposits in the bank account during the Demonetization Period, Unsecured Loan & capital introduced. Hence, in our view lump-sum addition cannot be made under these accounts. The AO must have referred the specific amount with specific details and documents which he has not provided and as to what basis lump sum addition has been made and also failed to mention that on which account and as to what amount of addition consists of. It is also noted that the AO has not stated under which provisions or section he has made the lump-sum addition either u/s 68 or 69 or 69A or trading or u/s 56 i.e. other sources. It may be worthwhile to mention that when in the Act for every additions, the provisions or section has been provided by the legislature, otherwise there shall be no meaning of the Act. Hence the addition is wrongly made against the Act . (vide page 21-22 of the order).” Similar view has been taken by the Coordinate Bench of the Tribunal in the case of Rajendra Kumar Meena v/s ITO Swaimodhopur in ITA No.516/JP/2024 dated 25.07.2024. 27 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. 9.1 I draw strength from the judgment of Hon’ble Jharkhand High Court at Ranchi In the case of M/S. Pasari Casting And Rolling Mills ... vs. Income-Tax Department in W.P. (T) No. 1850/2022 dated 25.01.2024 wherein it has been held that “ Furthermore, the recorded reason is also silent under which provision of the Act the additions are sought to be made i.e. whether Section 68, Section 69A, Section 69B, Section 69C or any other provisions of the Act. It is not the case of the Revenue that the Petitioner has paid any cash to the so-called accommodation entry provider to obtain the accommodation entry to plough back own funds, hence, there is no ground/material to form reasonable belief of any accommodation entry. (Refer PCIT Vs. Meenakshi Overseas P. Ltd. reported in [2017] 395 ITR 677 (Del). 9.2 I rely on the judgment of Hon’ble Supreme Court in the case of Oryx Fisheries Pvt. Ltd. Vs. UOI reported in (2010) 13 SCC 427, wherein the Hon'ble Supreme Court has observed that the show cause notice should give the noticee a reasonable opportunity of making objections against proposed charges indicated in the notice and the person proceeded against must be told the charges against him so that he can make his defense and prove his innocence. In the entire course of the proceeding, at no stage the Petitioner is made aware of the provisions of law which have been contravened and/or under which the additions are sought to be made which is in gross violation of the principles of natural justice and the procedure adopted by the Department is not fair or proper. 28 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. 9.3 In the case of New Delhi Television Ltd. Vs. DCIT reported in [2020] 424 ITR 607 (SC), it is held by the Hon'ble Apex Court that the Assessee must be put to notice of all the provisions on which the Department relies. 9.4 As stated herein above, the recorded reason/impugned assessment order is silent under which provision of the Act the addition is sought to be made. It is well settled that the reasons cannot be supplemented by assessment order or affidavit. Unless the assessee is put to the notice as to the exact contravention or provisions of law under which assessment or additions are sought to be made, the assessee cannot defend his case. 9.5. Having regards to the facts and circumstances of the case and the case law cited above, I set aside the findings of the revenue authorities and the addition made and sustained by the lower authorities deserves to be deleted. Therefore, I allow the present appeal. 10. In the result, appeal of the assessee is allowed. Order pronounced in the open court on 01/10/2024. Sd/- ¼lanhi xkslkbZ½ (SANDEEP GOSAIN) U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 01/10/2024. Das/ 29 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. vihykFkhZ@The Appellant- Smt. Vimla Devi Meena, Dausa. 2. izR;FkhZ@ The Respondent- ITO Ward Dausa. 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. 1034/JP/2024} vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar 30 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. 31 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. 32 ITA No. 1034/JP/2024 Smt. Vimla Devi Meena, Dausa. "