SMT. UMA MANDAL, 754, LADHON KA MOHALLA, BEHIND MINERVA CINEMA, M.D. ROAD, JAIPUR-302004,JAIPUR vs. INCOME TAX OFFICER WARD-5(2), JAIPUR, WARD-5(2), JAIPUR

ORDER PER: SANDEEP GOSAIN, J.M. This appeal has been filed by the assessee against the order of the ld. CIT(A)-2, Jaipur dated 22/02/2019 for the A.Y. 2010-11, wherein following grounds have been taken: “1. On the facts & circumstances of the case, the Ld. CIT(A) has grossly erred in law and facts by confirming the action of Ld. A.O. in assessing the income of the assessee at Rs. 2037281.00 rejecting the claim of the assessee that he earned only commission income at the rate of 0.25 percent and treating percent of the deposits in her bank account as her income. The additions of pursuance of same, are prayed to be deleted

3. On the facts & circumstances of the case, the Ld.CIT(A) erred in confirming the action of Ld. A.O. of reopening of the assessment under section 147/148 as proper sanction U/s 151 was not obtained before issuing notice. The Ld. Authority is prayed hereby to render such action as illegal.

Ground No. 5: On the facts and circumstances of the case, the impugned assessment order passed by the AO u/s. 147/143(3) of the Act is invalid and void ab initio for want of valid notice u/s. 143(2) as per law as evident from fact that when return in response to notice u/s. 148 was admittedly filed on 13.10.2017, notice u/s. 143(2) is issued on very same day that is 13.10.2017 which shows non application of mind in issuing notice u/s. 143(2) and thereafter in framing the assessment and accordingly all proceedings are nullity.

2. The hearing of the appeal was concluded through video conference in view of the prevailing situation of Covid-19 Pandemic.

3 ITA 466/JP/2019_ Uma Mandal Vs ITO short, the Act) was issued on 27/03/2017 after recording reasons and obtaining necessary approval from the competent authority and the same was served upon the assessee through post. In compliance thereof, the assessee filed her return of income on 13/10/2017 declaring total income of Rs. 1,01,860/- under the head ‘Business Income”. Thereafter notices were issued by the A.O. and after making detailed enquiry, the A.O. passed assessment order on 28/12/2017 assessing total income of assessee at Rs. 20,37,281/-.

4. Aggrieved by the order of the A.O., the assessee carried the matter before the ld. CIT(A), who after considering the submissions of both the parties as well as material placed on record, dismissed the appeal filed by the assessee. Against the said order of ld. CIT(A), the assessee has preferred present appeal before the ITAT on the grounds mentioned above.

4 ITA 466/JP/2019_ Uma Mandal Vs ITO the Bench and after raising the additional ground in prescribed proforma then the Tribunal may consider for admission or decision of the additional ground. In this appeal, the assessee has not raised additional ground in prescribed proforma then in that eventuality, we dismiss the additional ground i.e. ground No. 5 of appeal being not maintainable.

The assessee is an illiterate housewife and her husband is a labour/job worker who belongs to an economic very weaker section of the society. They even did not own any house or two wheeler and were living in a rented accommodation. During the period under consideration, the husband of the assessee in anticipation of some work and commission allowed one Mr Sitaram Khandelwal to use her account. This account was opened by that person only taking assesse with him to a bank. The assesse intimated the department about the details of said persons that were known to her but she was not aware of present day whereabouts of said person. Further, the assessee was completely unaware and ignorant about the quantum and nature of transactions that were routed out through her account.

It was a practice which was prevalent in the market and numerous cases came to department also where bank accounts of labour class people were misused by many businessman for their malafied intention possibly suppression of profits. The fact about the financial status of the assessee was also verified during the assessment proceedings and department was also satisfied about this contention.

6 ITA 466/JP/2019_ Uma Mandal Vs ITO The nature of transactions was that cheques were received in her account with Fingrowth Cooperative Bank Ltd., Johri bazar, Jaipur (C.A No. 1120-Name M/s Jaipur Vision) and same day or within a short span of time cash was withdrawn leaving negligible balance. Some cash was also deposited. The copy of bank account of the assessee for the relevant period is enclosed as a part of paper book (Page No. 38-49). This modus operandi in bank account of the assesse has been duly accepted by the Ld. A.O during the proceedings and even at page 2 of the assessment order where it has been mentioned that 'the amount deposited is immediately withdrawn by cash either on same day or in couple of days leaving negligible balance".

The Ld. Assessing officer was also of the view that the assesse was only earning the commission income as his account was misused by some other person. This is evident from the letter dated 11.12.2017 sent by Ld. A.O (copy enclosed at page no. 52-53 of paper book) for seeking directions U/s 144A of the act where he mentioned as under:

Hence, in the above facts and circumstances, it appears that the assesse is totally unaware about the transactions recorded in above bank account and it appears to have used this account by someone else for other purposes. Deposit of cheque and immediately withdrawal in cash does not indicate the normal trading activities in the business. This type of modus operandi is generally found in the; case of accommodation entries by issue of bogus sale bills. In such type of work, after receiving the money through cheque, entire amount after deducting the commission is returned to the party A.O also referred in said letter about case of Hansa Vijay for assessment year 2007-08 where only commission income was assessed. Now the extract as well as entire letter shows the stand of 7 ITA 466/JP/2019_ Uma Mandal Vs ITO the Ld. A.O on the nature of transactions. However, on directions from Ld. JCIT, he inquired from the commercial tax department where he got the details of VAT registration of the party. However, it is pertinent to note that these details were already with the Ld. A.O as mentioned in Page 2 of assessment order (Para 1) which has been obtained under section 133(6). It was further informed by the commercial taxes department vide letter dated 27.12.2017 that the assesse has not filed any return or declared any turnover in VAT for relevant period and onwards. Thus, in absence of any new material coming into his notice, it is hereby clear that the view taken in assessment order was totally different to that he mentioned in the letter wrote to Ld. JCIT. Thus, on one hand, he has accepted the modus operandi of the assessee and on the other hand, it has made an addition applying a arbitrary profit rate which is in alternate too excessive. The Ld. A.O also ignored the statement of Mr Bankim Mandel & Mr Vichy Dabi who clearly vetted the facts as stated above and who were called for recording statement in the matter by the Ld. A.O. Thus, the department ignored the evidences in the form of statements. The copy of statements of both these persons are also enclosed as a part of paper book vide Page No. 35-36 & 37.

In the statement of Mr Bankam Mandal, husband of the assesse, he declared following facts. The copy of same is already enclosed with paper book at Page 35-36:

1. That he is a labourer doing job work related to jewellery.

2. That he or his family was not having any bank account. The relevant bank account in which credits came was also closed.

3. He admitted that said bank account was opened and operated (to some extent) by him and not Mrs Uma Mandal.

8 ITA 466/JP/2019_ Uma Mandal Vs ITO 4. That some Mr Sitaram Khandlwa got this account opened in his wife's name and cheque book (signed) was also kept by him only.

In the statement of Mr Vicky Debi, neighbor of the assesse, he declared following facts. The copy of same is already enclosed with paper book at Page 37.

1. That the assessee's husband was doing labour job work.

3. That assesse or her husband were not engaged in any business activity and they do not possess even a two wheeler.

The Ld. A.0 has relied on the order if the H'ble ITAT, Jaipur Bench in the case of Smt 'Anita Choudhary, Kishangarh in dated 07.05.2010 and further the H'ble Rajasthan High Court dated 14.10.2011 in DBIT No. 289/2010 dated 14.10.2011. However, the assessee is entitled to additional relief as the facts in the alleged case are distinguishable from the facts in question in this case. In the said case, the assessee was a businessman actively carrying on business whereas in the present case, she was just a housewife and wife of a labour whose account was misused and who never carried on any, business. Thus, by no stretch of mind her misused bank account receipts can be reckoned as turnover.

The relevant extracts of that decision are as follows:

"We have heard both the parties. The Tribunal vide order dated 29th May. 2009 in the case of Shri Ram Swaroop in for the A.Y. 2005- 06 had an occasion to consider the cash deposits of Rs.22.86 lakhs made in the account of Shri Ram Swaroop in IDBI Bank. The deposits were similar of the nature as are available in this case. The Tribunal after considering the facts of the case held that income of 9 ITA 466/JP/2019_ Uma Mandal Vs ITO Rs.1.25. lacs to be estimated and accordingly directed the AO to add the same of Rs. 1.25 Lacs as against cash deposit during the entire year. The Ld. AR has filed before us the copy of the bank account. The copy of the bank account contains 9 pages. There are number of entries in each month. The maximum credit balance in the bank account is to the extent of Rs.1,51,905/- as on 11.08.2004. The minimum balance is of Rs.563/-. The credit balance as on 31.03.2004 is Rs. 56,558/- while credit balance as on31.03.2005 is Rs.566/-. This shows that the amount deposited during the year is less as compared to the withdrawal made during the year. This is not the case of the revenue that withdrawals made in this account have been utilised elsewhere. In case the amounts have been deposited by the assessee in the bank account then revenue is required to consider the availability of such deposits from the withdrawals made from such bank account. It is true that the assessee has not been able to give the required details because such details have not been kept by the assessee. Under such circumstances, one has to consider the totality of the circumstances and accordingly one will have to consider income portion from the turnover as mentioned in the bank account. It is an accepted position that the assessee is doing the business in marble and the assessee is not having any other source of income. Once the assessee has offered an explanation and the revenue has not established that explanation is false then one will have to consider the income generated from the turnover as in the bank account. It is true that the assessee has shown gross profit in the marble business and the Id. CIT(A) has partly upheld the addition by applying the gross profit rate of 8.78%. We feel that in case where funds are received for the purchase of marble and the assessee has to render the services for purchases of marble and transportation then the gross profit rate will be slightly higher and we feel that the income from the turnover to the extent of Rs. 25,20,272/- should be estimted at Rs. 2.52 lacs. After considering the excess income declared in the return to the extent of Rs. 2.10 lacs.

10 ITA 466/JP/2019_ Uma Mandal Vs ITO The balance addition will remain to the extent of Rs. 42,000/- as against Rs. 11,271/- confirmed by the Id. CIT(A). Thus the solitary ground of the revenue is partly allowed."

'Further, the Ld. A.O also ignored the evidences in the form of affidavit filed by the assessee confirming the above facts which is enclosed at paper book Page No. 51. On filing of affidavit by the assessee, the Ld. A.O skipped to cross examine the facts mentioned therein and controvert them or accept them.

A.O also referred in said letter seeking directions U/s 144A about case of Hansa Vijay for assessment year 2007-08 where only commission income was assessed. Another order of Ramgopal vs ACIT Jaipur dated 28.02.2013 was referred to by the assesse during assessment proceedings where only commission income was assessed in such cases.

Thus, it could be clearly concluded that the turnover in bank was not the turnover of the assessee related to any business carried on by her.

The Ld. CIT(A) rejected the contentions of the assesse summarily mentioning that assesse did not discharge her onus of proving the fact that the credits in account of assesse was not her turnover (Copy of appellate order appended as part of paper book Page No. 20-27). However, the Ld. CIT (A) failed to take into account various evidences as mentioned above and enlisted below again given by the assesse or available on record in support of her contentions: a. Inquiry by department about financial status of the assesse where it was clearly an admitted fact that she was a housewife and married to a labour class person

11 ITA 466/JP/2019_ Uma Mandal Vs ITO b. Letter of Ld. AD seeking directions under section 144A where he himself admitted this fact c. Statement of husband of the assesse d. Modus operandi in the bank account of the assesse e. Statement of neighbor of the assesse f. Affidavit filed by the assesse where she wrote that she provided only accommodation entry and earned commission income. Further, she declared that she did not give any confirmation of account to any party. g. The order in the matter of Mrs Hansa Vijay & one more case quoted by assesse and again quoted by AD himself in the letter seeking directions under section r1.4A where the department has taken the view that only commission will be treated as income in such cases h. Reply by the commercial taxed department where it was mentioned that the assesse has not deposited any returns for the period under consideration or subsequent periods and thus not declared any sort of turnover.

Further the Ld. CIT(A) also rejected the contention of the assesse as an alternative plea that the net profit rate adopted of 5% is on higher side stating that the assesse did not give any comparable case. Firstly, the assesse was not given any show cause notice of intent of Ld. A.O of treating the entire gross receipts as turnover of the assesse. Secondly, here the Ld. A.O was expected not to use his powers of making addition arbitrarily and apply a rate that is comparable. The Ld. CIT(A) here also rejected the contentions of the assesse summarily without taking into account facts and law in 12 ITA 466/JP/2019_ Uma Mandal Vs ITO the matter. The LD. CIT(A) while making his order also did not adjudicate the ground related to sanction U/s 151 at all. We draw the attention of the Ld. Bench to Page 7 & 8 or order where the question raised by the assesse was regarding sanction under section 151 of the act but the matter dealt was sufficiency of reason to believe. This clearly shows that the appeal was dismissed without taking account the relevant facts on record.

In light of above discussions, it is hereby prayed to the bench to allow this ground of appeal of the assesse by holding that the assesse only earned commission income and the entire receipts in her bank account was not turnover of the assesse. As an alternative plea, it is hereby prayed to the bench that in case the H'ble bench also treats it as turnover of the assesse, a net profit rate of 0.5% may be applied considering the facts of the case.”

13 ITA 466/JP/2019_ Uma Mandal Vs ITO “2.3 I have perused the facts of the case, the assessment order and the submissions of the appellant. It is seen that the Assessing Officer treated the entire deposit in bank account of assessee as sale of assessee and estimated net profit by applying net profit rate of 5%. The Ld. Authorized Representative argued that assessee was housewife not doing any business. She allowed Mr. Sitaram Khandelwal to use her bank account for issuing bogus bills on which she earned commission income.

2.3.1 Ld. Authorized Representative argued that profit rate at 5% much higher in case of assessee is being treated as carrying on business of jewellery and gemstone. On perusal of facts, it is seen that the credit is in the bank account of the assessee and its the onus of appellant to prove correct nature of the credits. She has not given any evidence to prove that this is not the turnover. The affidavit filed by her is not supported by any evidence and is self serving. Therefore, action of the Assessing Officer in treating the entire credits as turnover of the assessee is confirmed.

2.3.2 So far as net profit rate of 5% is concerned. The same is reasonable. The appellant did not furnish any comparative cases where the net profit rate is lesser than 5%. Therefore, the addition made by applying net profit of 5% is confirmed. This ground of appeal is dismissed.”

The ld. CIT(A) has held that the Assessing Officer treated the entire deposit in bank account of assessee as sale of assessee and estimated net profit by applying net profit rate of 5%. The Ld. Authorized Representative argued that assessee was housewife not doing any 14 ITA 466/JP/2019_ Uma Mandal Vs ITO business. She allowed Mr. Sitaram Khandelwal to use her bank account for issuing bogus bills on which she earned commission income. Ld. Authorized Representative also argued that profit rate at 5% much higher in case of assessee is being treated as carrying on business of jewellery and gemstone. On perusal of facts, it is seen that the credit is in the bank account of the assessee and it is the onus of assessee to prove correct nature of the credits. She has not given any evidence to prove that this is not the turnover. The affidavit filed by her is not supported by any evidence and is self-serving. So far as net profit rate of 5% is concerned, the same is reasonable. The assessee did not furnish any comparative cases where the net profit rate is lesser than 5%. The case laws relied upon the ld. AR are not applicable on the facts of the present case, therefore, we do not find any reason to interfere into or deviate from the findings so recorded by the ld. CIT(A) and we uphold the same qua the issue under consideration.

15 ITA 466/JP/2019_ Uma Mandal Vs ITO and relied on the written submissions filed before the Bench and the same is reproduced below:

“On the facts and circumstances of the case, the reopening of the assessment under section 1471148 is bad in law as proper sanction U/s 151 was not obtained before issuing notice. The Ld. Pr CIT —II wrote only 'Yes' while recording sanction as per section 151. In addition to this, the additional CIT also wrote only yes and that too even 'undated. This clearly shows that sanction was accorded in a mechanical manner without application of independent mind by the Ld. Authorities. Thus, such an approval is no approval in the eyes of the law having been granted without application of mind.

The Ld. CIT(A) also while making his order did not adjudicate this ground at all. We draw the attention of the H'ble Bench to Page 7 & 8 or order where the question raised by the assesse was regarding sanction under section 151 of the act but the matter dealt was sufficiency of reason to believe. This clearly shows that the appeal was dismissed without taking account the relevant facts on record.

We also produce gist of important judicial pronouncements on the same where the judicial authorities has rendered entire proceedings as null and void in absence of proper recording of satisfaction by the requisite authority. He relied on the following judicial pronouncements:

(i) Pr.CIT Vs M/s NC Cables Ltd. In (Delhi High Court)

(ii) CIT Vs S. Goyanka Lime & Chemicals Ltd. (2015) 56 taxmann.com 390 (MP)

16 ITA 466/JP/2019_ Uma Mandal Vs ITO (iii) CIT Vs S. Goyanka Lime & Chemicals Ltd. (2015) 64 taxmann.com 313 (SC)

(iv) Virat Credit & Holdings (P) Ltd. Vs ITO (CO No. 57/Del/2012 in ITA No. 89/Del/2012).

(v) Hari Ram Gupta Vs ITO in ITA 5111/Del/2013 order dated 07/07/2016. (vi) M/s Tara Alloys Ltd. Vs ITO in (Del Trib) (vii) Chhugamal Rajpal Vs S.P. Chaliha 79 ITR 603 (SC) (viii) DCIT Vs Kanchan India Pvt. Ltd. & 1281/JP/2018.”

“3.3 I have perused the facts of the case, the assessment order and the submissions of the appellant. The Assessing Officer reopened the assessments proceedings after recording the due reasons and due satisfaction after following the due process.

17 ITA 466/JP/2019_ Uma Mandal Vs ITO The case of the assessee was reopened in the light of information/documents to the extent which were available with the AO. The material before the Assessing Officer was relevant and affords a live link or nexus to the formation of the prima facie belief that income chargeable to tax has escaped assessment in the hands of the assessee. The sufficiency and correctness of material need not be looked at the initial stage at the time of reopening of the case. While considering whether commencement of reassessment proceedings was valid, the court has only to see whether there was prima facie some material on the basis of which the department could reopen the case. The sufficiency or correctness of the material is not anything to be considered at that stage.

The "reason to believe" would mean cause or justification. If the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, he can be said to have reason to believe that an income had escaped assessment. The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion and what is required is "reason to believe", but not the established fact of escapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have formed a requisite belief.

In view of above finding I do not find any legal infirmity on the plea of the appellant. Therefore, the Assessing Officer rightly initiated the proceedings u/s 148 of the Act. The additional ground of appeal is dismissed.”

18 ITA 466/JP/2019_ Uma Mandal Vs ITO The ld. CIT(A) has held that he Assessing Officer reopened the assessments proceedings after recording the due reasons and due satisfaction after following the due process. The case of the assessee was reopened in the light of information/documents to the extent which were available with the AO. The material before the Assessing Officer was relevant and affords a live link or nexus to the formation of the prima facie belief that income chargeable to tax has escaped assessment in the hands of the assessee. The sufficiency and correctness of material need not be looked at the initial stage at the time of reopening of the case. While considering whether commencement of reassessment proceedings was valid, the court has only to see whether there was prima facie some material on the basis of which the department could reopen the case. The sufficiency or correctness of the material is not anything to be considered at that stage. The "reason to believe" would mean cause or justification. If the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, he can be said to have reason to believe that an income had escaped assessment. The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion and what is required is "reason to believe", but not the established fact of 19 ITA 466/JP/2019_ Uma Mandal Vs ITO escapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have formed a requisite belief. The case laws relied upon the ld. AR are not applicable on the facts of the present case, therefore, in view of the above facts and circumstances of the case, we do not find any reason to interfere into or deviate from the findings so recorded by the ld. CIT(A) and we uphold the same qua the issue under consideration.

Sd/- Sd/- ¼foØe flag ;kno½ ¼lanhi x®lkÃa½ (VIKRAM SINGH YADAV) (SANDEEP GOSAIN) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 16/04/2021 *Ranjan आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- Smt. Uma Mandal, Jaipur. 1. izR;FkhZ@ The Respondent- The I.T.O., Ward 5(4), Jaipur. 2. vk;dj vk;qDr@ CIT 3. vk;dj vk;qDr¼vihy½@The CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 466/JP/2019) 6. vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत