TaxTMI 
TaxTMI 
2024 (10) TMI 851
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....e appellant and also thereby taking / estimating the value of investment at 3 times the registry value. 4. On the facts and in the circumstances of the case, the Id. Commissioner of Income Tax (Appeals) was not justified in holding that the nature and source of the deposits in cash in the following bank accounts of the appellant were not explained by the appellant and therefore not belonging to the appellant. S.No. Bank Account No. Cash Deposit (Rs.) 1 Axis Bank Ltd. M.P. Nagar, Bhopal 044010100027478 19,61,500 2 Canara Bank, BHEL, Bhopal S.B. 302 1,30,000 3 IDBI Bank, Bhopal 030104000063124 1,60,000 4 Standard Chartered, Bhopal 801-1-000223-5 2,13,000 5 State Bank of Mysore (350), Bhopal 54022178067 8,34,000 6 Punjab National Bank, Govindpura, Bhopal. 1250001002633 45,000 7 State Bank of Mysore (530) Near Apsara Cinema, Bhopal 01050061088 3,95,000 On the name M/s J.K. Resort, Proprietary Concern. 5. On the facts and in the circumstances of the case, the Id. Commissioner of Income Tax (Appeals) was not justified in confirming the findings of the Id. Assessing Officer that the cash deposits in the above-mentioned bank account were made out of fun....
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....10.10.2011 for A.Y. 2004-05 to 2009-10 and also filed the regular return of income for A.Y. 2010-11 on 24.10.2011. The AO completed the assessment vide composite assessment order dated 30.12.2011 whereby the AO has made various additions in the hands of assessee for all these years on substantive and protective basis as the corresponding substantive additions were in the hands of Shri Arvind Joshi. The assesse challenged the action of the AO before the CIT(A) who has upheld the order of the AO in respect of the protective additions as well as the substantive additions in the hand of the assessee made in respect of the unexplained investment in the properties purchased in the name of the family members of the assessee for assessment years 2007-08 onwards. The objection of the assessee against the validity of assessment order was also rejected by the CIT(A) after recording the finding that the assessment order was passed on 30.12.2011 and also dispatched on the same date as per endorsement on the office copy to the assessment order itself as well as speed post registration details. 4. Before the Tribunal the Ld. AR of the assessee has submitted that the assessee has received the ass....
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....livered to the assessee under the BNPL scheme of postal department to the authorized person of the postal department then the order was held to be issued well within period of limitation though it was served upon the assessee subsequently. Thus Ld. DR has submitted that when the order was passed and issued within the period of limitation then the subsequent registration/booking by the postal department and service on the assessee after the limitation period is irrelevant. 6. In rejoinder the Ld. Counsel for the assessee has submitted that though the AO has filed photo copy of some computer generated seat (booking general) but the AO has not produced the original dispatched register and given reasons that after laps of 13 years of passing the order the register is not readily available. The said document though bears a seal and signature with date 30.12.2011 but of some unknown person as it is not clear as who signed it and who has put the seal. He has objected to the record filed by the revenue on the ground that in absence of the original dispatch register and complete documents the same cannot be accepted. 6.1 He has reiterated his contention that when the speed post number sho....
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.... scheme the copy which is produced by the AO is one of the triplicate copies of the articles prepared for handing over of these articles to the authorized person. Further in the office copy of the assessment order the AO has also made endorsement of the sending assessment order as under: 7.3 This fact is also recorded by the CIT(A) while discussing this issue in the impugned order in para 3.2 as under: "3.2 Appellant's submissions along with assessment order have been considered carefully. Assessment records of the appellant along with assessment order and records of Shri Arvind Joshi have also been perused. It is seen that during the course of search operations u/s 132(1) on 04.02.2010 at premises of Shri Arvind Joshi and Shri Pawan Agarwal, various incriminating documents pertaining to the appellant and his business concerns viz M/s J.K. Resorts (proprietorship concern of appellant) and J.K. Wines (family partnership firm) have been found and seized therefrom. Accordingly, A.O. has recorded detailed reasons u/s 153C of the IT Act, as mentioned in Pg No.2 to 38 of the assessment order, for issue of such notice u/s 153C for A.Ys. 2004-05 to 2009-10. These notices have been f....
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.... department on 02.01.2012 therefore, the time gap from collecting the articles from the Income Tax department and finally the booking done on the system will not alter the fact that the assessment order had already gone out of the control of the AO on 30.12.2011. The delay in booking the articles on the system of the post office may be due to the reason that the article was handed over on 30.12.2011 which was Friday and thereafter due to Saturday and Sunday the booking was finally done on 02.01.2012 by the post office department. In any case once the assessment order handed over to the authorized person of the postal department to be served on the assessee it is considered as issued by the AO and therefore, the limitation for the purpose of the issuance of the assessment order will be considered on the date when the AO has handed over the order to the authorized person of the postal department to be served to the assessee. The Hon'ble Gujarat High Court in case of Rajesh Sunderdas Vaswani (supra) has considered the identical situation and question in para 8 to 13 as under: "8. Having heard learned counsel for the parties and having perused the documents on record, regarding t....
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....amping envelope with adequate postal stamp, would not be germane.] 10. In this context, the crucial question would be, was the envelope containing the notice for reopening addressed to the petitioner, handed over to the postal department for delivery on 31.3.2015 as averred by the petitioner or as strongly contended by the petitioner, this happened only on 1.4.2015? In this context, the petitioner points out that the postal department had booked the post only on 1.4.2015. The certificate issued by the Head Sorting Assistant, Shri C.I. Limbola on 15.5.2015 was later on retracted. Said Shri Limbola was not even on duty on the said date and therefore, could not have issued any such certificate. On the other hand, we find that on behalf of the department in the affidavit in reply dated 12.3.2016 filed by Shri Chandra Prakash Meena, it has been stated as under: "In this connection, it is to state that there is a general practice of the Postal Department that a Post Man picks up the speed post articles between 04.00-05.00 PM daily from the Aayakar Bhawan, Income Tax Cross Roads, Ahmedabad and deposits the same to the Postal Department at his convenience. Thereafter, le, after 04.00/0....
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....ered along with other 23 articles and the same is in continuation of further speed post articles bearing Sr.No.25 to 39 on the same date which were booked directly by the staff of this office and proof of the same has been affixed on the outward register itself on the date of 31.03.2015. Here, it is pertinent to mention that the Sr. No. of the envelope containing the impugned notice is No.3 and thereafter, there were other speed post articles from 4 to 24 handed over to the pickup man and other speed post articles from 25 to 39 booked through the staff of this office. Thus, if there was any malafide intention, then, there would not be any further speed post articles, other than the impugned notice on 31.03.2015 and there would be another date. However, it is not so and it is evident from the outward register that the impugned notice noted at Sr.No.3 on 31.03.2015 has been handed over along with other articles mentioned at Sr. No 4 to 24 to the pick-up man of the postal authority on 31.03.2015 itself and the same is confirmed from the fact that on the same date, further articles from Sr.No.25 to 39 have also been booked ie. 31.03.2015 for which necessary receipt issued by the postal....
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....abad to collect Tapal which is the usual practice followed by the offices located in Aayakar Bhavan. 4. The receipts of these 24 dak handed over to the pickup man has been duly acknowledged by him by putting his signature/initial on the outward register on 31st March, 2015 itself. This practice of collecting daks and by putting signature in outward register (copy enclosed of 31st March, 2015) has been followed by the postal pickup man since last many years." 12. The documents also include a letter from the Assistant Postmaster General to the Chief Postmaster General in which he had conveyed as under: "With reference to above, visited BNPL Center at National Sorting Hub, Shahibaug and inquired the matter in detail. In this regard written statement of Shri. N A Parmar, (MTS-earlier Gr. D) Pick up man who is entrusted the job to pick up the articles for booking under BNPL from the premises of INCOME TAX Department, was obtained me in the presence of two Witnesses. As per his written statement Shri. N A Parmar has stated that he has picked 24 articles from the premises of Income Tax Department on dated 31.03.2015 and he has confirmed his signature availabie in outward registe....
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....cretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. v. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. v. Gujarat Ambuig Cement Ltd. (2005) 6 SCC499)." 7.5 Accordingly in the facts and circumstances of the case and in view of the judgment of Hon'ble Guarat High Court in case of Rajesh Sunder das Vaswani (supra) we hold that the assessment order was issued by AO on 30.12.2011 which is within the period of limitation provided u/s 153B of the Act. Though Ld. AR has questioned the veracity of the record filed by the AO for want of the original outward register/booking ledger however, from the details as recorded as booking ledger we....
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.....2.2010 Add. DIT (Inv.) Bhopal 6 Shri H.M. Joshi, Nirmala Joshi, Tinno Joshi Locker No.204, Sadguru Nagrik Sahkari Bank,E-5/13, Arera Colony Bhopal 9.2.2010 Add. DIT (Inv.) Bhopal 7 Rajiv Joshi & Anuradha Joshi Locker No.224, Sadguru Nagrik Sahkari Bank,E-5/13, Arera Colony Bhopal 3.3.2010 Add. DIT (Inv.) Bhopal 8 S.P. Sharma Locker No.179, Sadguru Nagrik Sahkari Bank,E-5/13, Arera Colony Bhopal 19.2.2010 Add. DIT (Inv.) Bhopal 7. All the cases of assesse, family members and other related/associates persons were centralized vide order u/s 127 of the Act passed by the CIT. The AO consequently issued notices u/s 153A of the Act for A.Ys. 2004-05 to 2009-10 and u/s 143(2) for A.Y. 2010-11. A composite assessment order was passed on 30.12.2011 whereby the AO has made various additions and year wise details of the additions are given at page no.1318 to 1329 as under: xxxxxxxx 8. The assesse filed appeal before the Ld. CIT(A) and raised various grounds to challenge the order passed by the AO interalia on the ground of violation of principle of natural justice. The CIT(A) has rejected the objection of the assesse challenging the assessment order on the ground of viol....
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....ts and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. 7. As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price....
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....as supplied to the assessee only after the assessment order was passed. We are of the opinion that there is a violation of principle of natural justice as the assesse was deprived of the information/evidence which was considered by the AO while passing the assessment order. It is incumbent on the assessing officer to disclose and confront to the assessee all the material on the basis of which he is going to pass the order. Similarly if the AO proposes to conduct an inquiry then he must communicate the same to the assesse about the outcome of such inquiry and information/evidence gathered as a result of such inquiry. The assesse has all the rights to know the evidence and information which was to be used by the AO against him so that he would bring his own stands and material to meet such information/evidence brought against him by the AO. There is no dispute that the AO has the jurisdiction and authority to collect material to facilitate the assessment but the assessee must be informed about the material so collected and desired to be used against the assessee so that the assesse get an adequate opportunity to explain it and controvert the contents of the same. If the assesse is de....
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....led out. Further Shri H.M. Joshi is not a third person witness but he is one of the searched person and father of the assesse, managing all the alleged elicit income, investment and affairs of the certain concerns wherein the alleged investment was made by the assesse. Therefore, to the extent of the objection against the statement of Shri H.M. Joshi we do not find any merit or substance. However, it is a matter of consideration while deciding the merits of the addition whether the statement of Shri H.M. Joshi can be a basis of addition or not. 14. The next objection of the Ld. Sr. counsel for the assesse is regarding the report of hand writing expert obtained by the AO without giving the opportunities to assesse of cross examination. Further the Ld. Sr. counsel has submitted that the AO has not considered the objections raised by the assesse against report of the hand writing expert. He has also questioned the qualification and competence of the hand writing experts. On the perusal of the report of the hand writing expert we find that all the details of the handwriting expert such as qualification and experience are given in the letter head on which the report is submitted. Furt....
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....as completed. Since the AO has passed the composite order for all the assessment years 2004 to 2010-11 using the same evidence and statements. Therefore, the matters for assessment years 2004-05 to 2010-11 are set aside to the record of the AO for re-adjudication as per the directions above." 9.1 Accordingly when the issue is common and over lapping in the assessment of the assessee as well as in the assessment of Shri Arvind Joshi then the matter regarding the addition made by the AO in the hands of the assessee on protective basis as well as otherwise are required to be reconsidered in the light of the outcome of the set aside proceeding in the case Arvind Joshi. Hence, the issue of merits of the addition for all the assessment year is set aside to the record of the AO for fresh adjudication as per the outcome of the set aside proceedings in case of Arvind Joshi. Needless to say the assessee be given an appropriate opportunity of hearing before passing fresh order. 9.2 During the course of hearing Ld. AR of the assessee has also raised a plea that the assessment year 2004-05 is beyond the scope of assessment u/s 153C of the Act. In support of his contention he has relied upon j....