SHRI SURINDER SINGH DECEASED,AMRITSAR. vs. THE INCOME TAX OFFICER,, AMRITSAR.

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (SMC)

BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER

I.T.A. No. 357/Asr/2016 Assessment Year: 2002-03

Surinder Singh (Deceased) vs. The Income Tax Officer, (through LR, Jatinder Kaur), Ward-5(4), Amritsar c/o Hotel New Bharat, 11- Link Road, Amritsar [PAN: ABQPS 7481J] (Appellant) (Respondent)

Appellant by : Sh. Jatinder Nagpal (Adv.) Respondent by: Sh. S. S. Negi (D.R.)

Date of Hearing: 14.05.2019 Date of Pronouncement: 31.07.2019

ORDER Per Sanjay Arora, AM: This is an Appeal by the Assessee directed against the Order by the Commissioner of Income Tax (Appeals)-2, Amritsar ('CIT(A)' for short) dated 17.3.2016, dismissing the assessee’s appeal contesting her assessment u/s. 143(3) r/w s. 147 of the Income Tax Act, 1961 ('the Act' hereinafter) dated 24.12.2009 for the Assessment Year (AY) 2002-03.

2 ITA No. 357/Asr/2016 (AY 2002-03) Surinder Singh (Decd.) v. ITO on the basis of a complaint, found by the Revenue to have deposited Rs.10 lacs cash in his savings bank account (# 604147) with Indian Overseas Bank, Branch St. Francis School, Amritsar, Branch (IOB) on 16.4.2001, which was withdrawn, again in cash, the very next day, i.e., 17.4.2001. As per the information with the Revenue, the deposit as well as the withdrawal of cash was for the purpose of purchase of a property. On being questioned in this respect during the reassessment proceedings, initiated through issue of notice u/s. 148(1) on 26.3.2009, his wife Smt. Jatinder Kaur, filed a reply dated 08.12.2009 (through her counsel, Sh. Nagpal), reproduced at page 3 of the assessment order, stating to be not aware of any such bank account of her late husband and, in any case, of any such money belonging to him, or of any property purchased by, or belonging to, him. An affidavit to this effect, dated 16/12/2009 (PB pg. 2), was also filed by her in response to summons u/s. 131(1) of the Act. The said explanation, however, did not cut any ice with the Assessing Officer (AO), who held that mere denial of the bank account – which she did in the earlier part of her letter dated 08.12.2009, or her ignorance about the affairs of her husband, would not be of much consequence; the fact of the assessee’s bank account and deposit therein being irrefutable. In appellate proceedings, the assessee gathered information in the matter (under the RTI Act), and furnished the same. The signatures of Sh. Surinder Singh on the deposit slip (dated 16.4.2001/PB pg. 59) and the withdrawal cheque (dated 17.4.2001/PB pg. 60) were alleged to be fabricated. Further, the money withdrawn was given to one, Sh. Amarjit Singh, whose signature appear on the back-side of the withdrawal cheque. Sh. Amarjit Singh, claiming himself to be the Power of Attorney (POA) holder on behalf of the assessee for the purchase of the said property, filed a Civil Suit (No. 256, with Additional Civil Judge (Junior Division), Amritsar (PB pgs. 35-37) for specific performance on one, S. Joginder Singh Arora, on the basis of an agreement to sell (in the form of a receipt dated

3 ITA No. 357/Asr/2016 (AY 2002-03) Surinder Singh (Decd.) v. ITO 27/12/2000), on 23/5/2001. The assessee, represented by his wife and son, Sh. Parminder Singh, who had since turned major, denied to be aware any POA having been given to S. Amarjit Singh for the purchase of any property, or of any advance given toward the same or, in fact, of any property having been purchased. The POA itself was stated to be fabricated. The suit has since been decided. The AO had proceeded on incomplete facts. All this, however, did not find favour with the ld. CIT(A) as the claim of the signature (of S. Surinder Singh) on the deposit slip and the cheque being fabricated, was not supported by any report by a forensic expert, for it to be given cognizance to. The addition was, accordingly, confirmed, even though he entertained doubt as to the ownership of the impugned sum by Sh. Surinder Singh, as it was apparent that the amount had been used by Sh. Amarjit Singh, who was in litigation with some person for a property deal. Aggrieved, the assessee is in second appeal.

4 ITA No. 357/Asr/2016 (AY 2002-03) Surinder Singh (Decd.) v. ITO about the POA and the receipt dated 27/12/2000, he would concede that the same are not available with the assessee, though would have been filed with the court by Sh. Amarjit Singh, who had in fact filed the suit for specific performance, acting for the petitioner/s as the POA. There was almost nil balance in the bank account throughout, i.e., except for the impugned deposit of Rs.10 lacs, withdrawn immediately. The family had in fact no means to deposit the said sum. The ld. Departmental Representative (DR) would, on the other hand, submit that the Revenue had a clear and definite evidence of the assessee having deposited money his bank account. What was the purpose of the deposit and its withdrawal is not relevant, being known to the assessee, the depositor and the withdrawer. Where is the question of fraud when the money is deposited in the assessee’s own account. The charge of fraud has in any case not been proved, i.e., even going by the decision by the Civil Court. The onus therefore was on the assessee to explain the source thereof. That his family was, until brought to its’ notice, unaware of the said bank account or the deposit therein, assuming so, is, again, not material. Further, sure, the disclosed and returned income of Rs.87,400 is not representative of the real income of Sh. Surinder Singh, but only of that he had been disclosing to the Department. The same would not therefore by itself indicate that he did not have that kind of money. The reliance on his returned income, to contend that he, running an inn, could not have deposited money in his bank account, is misplaced. It was not for the Revenue to investigate or find as to what the undisclosed source of income with the assessee could be, being even otherwise difficult, if not impossible.

5 ITA No. 357/Asr/2016 (AY 2002-03) Surinder Singh (Decd.) v. ITO indeed it is in the present case, the same has to have an explanation, which is absent. In the instant case, the behavior does not agree with the stated purpose of the said deposit and withdrawal, i.e., purchase of property. One does not need to deposit cash in his bank account if the same is to be given (in cash) to the seller/s, either as an advance or as a consideration, for the purchase of a property. A possible reason could be that the amount, deposited in bank for being transferred through the banking channel, was subsequently changed to be paid in cash. The matter, it is to be borne in mind, came to surface on the basis of a complaint. Then, again, why would one, as Sh. Surinder Singh ostensibly does, give POA to another, an unrelated person? This is more so as both are residents of Amritsar, so that no useful purpose would stand to be served by the grant of POA. All this lends credence to the fact that the deposit and withdrawal of cash may be a part of a cover-up exercise for some ulterior purpose, particularly considering the claim of the POA being a fabricated document. Even assuming – being in fact not far- fetched in-as-much as many businessmen do not share their business dealings (as the subject property could be for his business) or investment details with their families, that his family was not aware of the transaction, this is the first thing that Sh. Amarjit Singh, being purportedly a close confidante of Sh. Surinder Singh, and a well-wisher of the family, left without a bread earner, would do, i.e., inform the family about, i.e., on the demise of Sh. Surinder Singh (SS). That he does nothing of the sort is apparent as in that case the family (being SS’s wife, Jatinder Kaur, his daughter and son) would not state before the Civil Court of being not aware of purchase of any property by SS, or of any money with him, and which led to the dismissal of the civil suit. Rather, it claims in the instant proceedings the POA to be a fabricated document. How could this be when the petition (for specific performance) has been filed by the POA himself and, further, even though moved earlier, was prosecuted only after the death of SS, with the decision by the Hon’ble

6 ITA No. 357/Asr/2016 (AY 2002-03) Surinder Singh (Decd.) v. ITO Court rendered in November, 2011. This is as, in that case, all that was required to dismiss the petition was for the petitioners to state so, i.e., of the POA being a fabricated document, so that no action undertaken on its basis could survive or be regarded as valid. In short, there are many gaps in the explanation as furnished by the assessee or, in any case, several aspects of the matter remain unexplained. The facts of the case, as indeed the matter itself, requires being examined further, i.e., in light of the material on record and the pleadings made. That is, cannot be decided summarily on the basis of the pleadings made, being essentially qua the admission of the forensic report as additional evidence as relief stood denied by the ld. CIT(A) in its absence.

4.2 Toward this, the decision by the Additional Civil Judge (Senior Division), Amritsar in civil suit (No. 256 of 23.05.2001/14.06.2011, dated 05.11.2011) was pursued. Several facts, not disclosed here-in-before, or explained earlier, came to light. Shri Amarjit Singh (AS), who had in fact filed the civil suit as his POA, was the brother of SS and, further, a tenant of one of the six shops (along with the terrace) at Railway Link Road, Amritsar, i.e., the property under reference. Why did he, rather than SS, the petitioner and plaintiff, and who had entered into an oral contract with Sh. Joginder Singh (JS) for purchase of the said property (giving him an advance of Rs. 50,000/- vide two receipts, both dated 27.12.2000), filed the suit, remained a mystery even in the civil proceedings, even as that did not concern the civil court. Even though it was alleged by the Defendants (being JS and two others to whom the suit property was claimed to have been sold by him on 03.02.2001) that it was AS who had been all along pursuing the matter by, in fact, impersonating his brother, SS, he was his POA, who, nevertheless, could not step into his shoes (i.e., of the plaintiff). He was in fact claimed to have visited the office as well as the residence of JS (at 1, Nilgiri Apartments, Alaknanda, New

7 ITA No. 357/Asr/2016 (AY 2002-03) Surinder Singh (Decd.) v. ITO Delhi) on 07.02.2001, and threatened him in the matter, complaint in respect whereof had been filed at Chitranjan Park Police Station, New Delhi on 08.02.2001. The said civil suit was not, as claimed, dismissed. The matter was examined by the Hon'ble Court from the standpoint of whether SS, the petitioner/plaintiff, was ready and willing to perform his part of the contract (of purchase of the suit property from JS), validly entered into on the basis of the receipts dated 27.12.2000. The conduct of SS was, accordingly, examined. He had failed to tender Rs. 70,000/- to JS by 05.01.2001, by which date (as per the receipts dated 27.12.2000) he was required to, being the balance of Rs.1,20,000, i.e., 10% of the sale consideration (of the suit property) of Rs. 12 lacs. He was under obligation to do so at New Delhi - the place where the contract was entered into and part advance given, and merely stating that the seller (JS) did not turn up at Amritsar to receive the amount was of no consequence. The failure to pay the said sum by 05.01.2001, being of essence, failed the contract. The conduct of SS was examined further. He could not show that he had the capacity to pay the balance consideration of Rs. 11.50 lacs, which was stated to be ready for being paid to the seller, firstly, on 17.4.2001, and then again on 02.5.2001. Though the bank account (with IOB) of SS was adduced in evidence (Ex.D1), the court relied on the letter written by his wife, Jatinder Kaur, to the AO (ITO, Ward 5(4), Amritsar) to the effect that she was not aware of the money with her husband and had in fact never seen such a big amount (Rs. 10 lacs) in her married life; and, further, had no clue of the source of money deposited in the bank; rather, of the said bank account itself. AS, who had in fact filed the said bank statement (para 16 of the Judgment - J), also could not give any clue as to the source of the deposit (in the bank account) or, in fact, even of Rs.40,000 (being the second installment of Rs.50,000 paid on 27.12.2000). He also admitted that the dates ‘17.4.2001’ and ‘02.5.2001’, on which

8 ITA No. 357/Asr/2016 (AY 2002-03) Surinder Singh (Decd.) v. ITO the balance consideration was claimed to be agreed to be paid, were not fixed in his presence (para 17 of J). In view of the aforesaid facts, the Hon’ble Court was of the view that SS was not ready and willing to perform his part of the contract. He could not therefore seek specific performance thereof (para 17). The alternate claim of refund of advance (Rs.50,000/-) and damages (Rs.50,000/-), along with interest (@24% per annum), was accepted in part, i.e., to the extent of the advance, with interest @12% p.a. This was as the receipts constituting the contract did not mention that a failure to pay the balance would result in the forfeiture of the amount paid (nor was any notice in its respect given by the seller to the buyer-plaintiff), nor of any damages (paras 18-26 of J). It is this decision that had led to the observation hereinbefore that it was incorrect to say that the suit had been dismissed; the alternate plea having been in fact accepted, even if in part.

4.3 The validity of the POA stands accepted in the civil suit proceedings, so that the same cannot be said to be a fabricated document or called into question in the instant proceedings. Two, the entering into of an agreement on 27/12/2000 by SS, paying Rs.50,000/- and agreeing to pay the balance advance (Rs.70,000/-) by 05/01/2001, is an admitted fact. It is in fact this, i.e., the said agreement, that gives rise to the future conduct of the parties to the contract (of sale of the suit property), including the suit for injunction or, alternatively, for recovery along with damages. How could, then, it be contended that SS was not involved in the proceedings? Rather, accepting the said, alternate plea, the petitioners, being his family, had been allowed refund of the advance with interest in a civil suit. AS, it was claimed by the defendants, to be a defaulting tenant, having not paid rent for ten months (apparently, in December, 2000), and continuing to be a defaulting tenant, and which was stated (by the defendants) to be the reason behind

9 ITA No. 357/Asr/2016 (AY 2002-03) Surinder Singh (Decd.) v. ITO his hiding his identity, and projecting his brother, SS, instead (para 2 of J). Though the charge of impersonification (of SS) failed as no evidence could be led in its respect – JS also dying during the pendency of the suit (para 6), it is clear that AS had a substantial role in the matter. It was he who accompanied his brother, SS, along with the broker (Shri Nand Kishore) to negotiate the proposed sale with JS at New Delhi on 27.12.2000, and was witness to the oral agreement between the parties. That he is a tenant of one of the shops comprising the property under reference – which may well be the reason for his interest in the transaction, is not denied. It was he, as stated by the defendants, who, along with the broker, had bargained the price of Rs.12 lacs (i.e., Rs. 2 lac per shop), and, in any case, i.e., even going by the version of the plaintiff, present along with his brother, SS, negotiating the bargain (for and on his behalf) (refer paras 1,2 of J). It may be that he was interested in purchasing the suit property. It could again be that he, interested in retaining the rented shop, being an asset of his business, with a monthly rent as low as Rs.500 p.m. (para 2), made inquiry with his brother, SS, who became interested to purchase the shops, particularly considering the price being suggested. SS was not only running an inn, but also doing the business of a money changer, as deposed by Sh. Nand Kishore before the Court (para 13). Again, it could well be the both the brothers joined hands for the transaction, even as SS only was projected as the party, as AS, a defaulter, was feared for being rejected, even as contended by the defendants before the Hon’ble Court (para 2). Whatever be the reason for AS joining his brother (or vice versa), he is, without doubt, a principal character in the entire episode. It was, again, he who filed the suit as the POA of his brother and, further, led the evidence of the bank statement (Ex. D1) before the Court, and it is his signature which appear on the back side of the cheque withdrawing the amount (Rs. 10 lacs).

10 ITA No. 357/Asr/2016 (AY 2002-03) Surinder Singh (Decd.) v. ITO Even if the family of SS was not aware of the bank account, or of deposit therein, the same does not appear to be the case for SS himself. The signature on the deposit slip (dated 16.4.2001), sure, do not appear to be of SS. However, that on the cheque dated 17.4.2001 (and on its’ back), which are the same, appear to be his, i.e., comparing them with that on his return of income. If he has indeed signed the cheque withdrawing the amount (Rs. 10 lacs), as appears to be the case, he cannot but be aware of the deposit (of the said amount). The deposit and its’ withdrawal the next day, as it appears, is with a view to ‘create’ evidence with regard to the availability of funds on 17.4.2001, the date on which the consideration was, as claimed, to be paid. In fact, even the Court observed SS to be creating evidences rather demonstrating intent for executing the contract (para 14 of J). Further, AS’s signature appearing on the back side of the cheque, it is, in any case of the matter, he, the POA of his brother, SS, and not a stranger, who has taken delivery of the cash withdrawn. Now, it would be presumptuous to say that he stole his brother’s cheque book, so that the amount received by AS has only been for and on behalf of his brother, SS, who gave him the cheque, i.e., after signing the same. It is surprising that he (AS), associated with the transaction throughout, and in complete know of the facts, did not come forward to explain the anomalies and aberrations noted, at any stage of the proceedings, particularly considering that it is clear that none other than him, in the absence of SS, could do so. He is, in any case, the assessee’s witness, who should have been produced, rather than his identity concealed. It is also notable that AS did not come forward in the hearing in the civil suit to claim of any part of the impugned sum as contributed by him, even as it was clear that an inability to exhibit the availability of funds would defeat the case. This is presumably in the absence of his having any disclosed source of money, which also explains a dormant, rather than a current account being used to deposit the money. The instant proceedings, it may be

11 ITA No. 357/Asr/2016 (AY 2002-03) Surinder Singh (Decd.) v. ITO recalled, stand initiated on the basis of a complaint, and it was apparent that any such deposition by AS would be taken note of by the Revenue, something of which he could not but be aware and conscious of.

4.4 The civil suit failed due to the failure to observe the terms of the contract by the plaintiff, or showing his capacity to do so, coupled with his conduct being not bona fide. However, the deposit of the funds (R. 10 lacs) in the assessee’s bank account is an admitted fact, as is his entering into a contract for the purchase of the suit property, which also provides the basis for the deposit of the sum in the bank account. It is this inability to prove the source that would, in the proceedings under the Act, lead to the said deposit being deemed as the assessee’s unexplained income u/s. 69A. When the Hon’ble Court says that source is not proved or shown, it refers to a disclosed source. That is, the very same reason that led to the failure of the civil suit, also impugns the assessee’s case in the proceedings under the Act. That is, the lack of awareness of his family about the transaction, a fact which also prevailed with the Court, notwithstanding.

4.5 The next question that requires consideration is the admissibility of the assessee’s application for admission of additional evidence, i.e., the forensic report dated 02.5.2019. It may be relevant to, toward this, advert to the law in the matter, which is well-settled, and qua which the assessee has also referred to the decision in CIT v. Text Hundred India Pvt. Ltd. [2013] 351 ITR 57 (Del), wherein the law stands reiterated. Where some inherent lacunae or defect becomes apparent to the appellate court, coming in the way of pronouncing the judgment, it held, the expression ‘to enable it to pronounce the judgment’ can be invoked. Reference to pronouncing the judgment, it was explained, is not for pronouncing it in a particular way, but is to pronounce it satisfactorily to the mind of the court

12 ITA No. 357/Asr/2016 (AY 2002-03) Surinder Singh (Decd.) v. ITO delivering it. The provision does not apply where with the existing evidence on record, the appellate court could pronounce a judgment satisfactorily. That is, the requirement of the court to enable it to pronounce a judgment does not refer to pronouncement of the judgment one way or the other, but is only to the extent whether satisfactory pronouncing of the judgment on the basis of the material on record is possible. In sum, is not referable to any right of the party to produce the evidence, but is dependent solely on the requirement of the court. Where, therefore, the appellate court considers that such an additional evidence would be necessary for proper adjudication of the matter, i.e., where it cannot, in the absence of the said evidence, pronounce a judgment satisfactorily, it is to invoke its’ discretion even if the evidence being furnished before it is for the first time, and there has been no denial of opportunity by the authority below (i.e., before whom it ought to have been furnished) for adducing the said evidence. This, then, explains the law in the matter. Reference in this context may also be made to the decisions, inter alia, in Velji Deoraj & Co. v. CIT [1968] 68 ITR 708 (Bom) and Kamal Ashish Singh v. ITO (in ITA No. 721/Asr/2017, dated 24/6/2019). The matter, accordingly, is to be considered from the stand-point of the requirement of the said report for deciding the instant appeal. The twin issues that emanate on the basis of the fact and circumstance of the case, are: (a) Whether the nature and the source of the cash deposited in the bank account of SS on 16.04.2001 has been satisfactorily explained or not? (b) If the answer to the Question at (a) is in the negative, the person in whose hands the addition u/s. 69/69A in its respect is, in the facts and circumstances of the case and in law, called for? The answer to the first question (a) is, as a reading of the foregoing would show, clearly and understandably in the negative There would be in fact no necessity for further evidence if the source of the cash deposit (of Rs.10 lacs) in the bank

13 ITA No. 357/Asr/2016 (AY 2002-03) Surinder Singh (Decd.) v. ITO account of SS on 16/4/2001 is explained. It is the second question (b) toward which the same is being sought to be adduced. That is, by seeking to show that SS did not deposit or withdraw the amount in his bank account. Now, the signature on the deposit slip (dated 16/4/2001) is patently not of SS, even as observed by the ld. CIT(A), so that no further evidence in its’ respect is required. The same, however, is not material as a person could ask any other known person to deposit an amount in his bank account. The bank also does not therefore make any verification of the signature or of the person depositing an amount in a bank account. Besides, why would any person deposit an amount in another’s bank account? True, in the instant case, the depositor seeks to conceal his identity in-as-much as the signature on the deposit slip is purportedly of SS. However, establishing that the said signature is not of SS, is, as afore-explained, neither here nor there; the beneficiary thereof being, in any case, the account holder. Further, if the signatures on the cheque, which are markedly different from that on the deposit slip, could be forged, so could be that on the deposit slip. It is the signature on the withdrawal cheque, then, that is of prime relevance, particularly in the instant case. The same, apart from signifying the identity of the person withdrawing the amount, implies knowledge of the deposit, more so where the account – lying dormant, witnesses a deposit of the like amount a day before. Distinguishing the signatures on the cheque (which appear both at it’s front and the back side) on the basis of the forensic report, i.e., as being not of SS, is with a view to show that he had no knowledge of either the deposit or withdrawal in his bank account. Now the signature on the cheque would not in any manner clarify as to who deposited the amount in the bank. As regards the signatures on the cheque, the same are apparently, as observed earlier, of SS. The question that therefore arises is as to on what basis the same are being contented to be not his, or a doubt in respect thereof entertained? I find none.

14 ITA No. 357/Asr/2016 (AY 2002-03) Surinder Singh (Decd.) v. ITO The cheque, and significantly so, stands cleared by the bank, and which would only be upon due verification of the signature/s. In fact, not only that, the bank has allowed the withdrawal of cash in such a big sum. This is emphasized as the banks normally do not do so until they are sure of the identity of the payee, and toward which his signature is obtained on the back side of the cheque. This is particularly so in the instant case as the account, opened in 1995, was a dormant account. Then, again, there is signature of AS also, i.e., apart from SS, on the back side of the cheque, implying him to have taken the delivery of the cash, as otherwise there was no need for him to have signed the cheque. As per the standard operating procedure, the person signing the cheque (and, thus, authorizing the payment thereby), is also required to sign on the back side of the cheque which signifies his authorization for cash to be given to the person signing on the back side the cheque in token of his having received the cash. AS is not an unrelated, unkown person, as made out during hearing, but a closely related person, who is in fact keenly involved in the entire transaction. His involvement is quizzical, but then the same could again be explained only by SS or, in his absence, AS himself. How did he get the cheque, if not from SS? A third person would, rather, not even be aware of the bank account, for him to deposit, much less withdraw, the amount from the bank account of another. This is more so as the said account is not a regular account. On what basis, then, it is contended that the signatures on the cheque are not of SS? Or that he was not aware of the deposit and withdrawal in his bank account, which is the purport of distinguishing his signatures on the cheque, i.e., by adducing the forensic report sought to be admitted. The delivery of cash to AS is only for and on behalf of SS. Why was the money given to AS? The answer to this question, not clear, could, again, only be answered by SS or AS. The same, it would be noted, is closely related to the answer to the similar question, unanswered, as to why POA was given by SS to AS.

15 ITA No. 357/Asr/2016 (AY 2002-03) Surinder Singh (Decd.) v. ITO From the stand-point of the ownership of funds, being statutorily presumed to be of SS, which he is therefore required to dislodge (also see s. 110 of the Evidence Act), it would though matter little. The cash was clearly allowed (by SS) to be paid to AS. I am conscious that it may well be that the money, in whole or in part, belongs to AS. It is however for the assessee to, where so, as contended, albeit obliquely, show so. It is for this reason that it stands afore-noted that AS did not come forward during the civil suit proceedings to divulge the ownership of the funds deposited in the bank – a fact of which he could not but be aware of, i.e., before the Hon'ble Court, even as an inability to exhibit the source of funds would, as was apparent, lead to the failure of the suit, as it indeed did. AS has not been produced at any stage of the proceedings, even as he is the principal person, and who, as apparent, took delivery of the cash withdrawn from the bank. The bank statement was in fact adduced in evidence to establish the availability of the required funds with SS (on 17.04.2001). Also relevant is that the POA was not withdrawn by his legal heirs even after the demise of SS (this is assuming that it did not bind his legal heirs; the POA having not been produced on record). Rather than being produced at any stage of the proceedings, the identity of AS (as the brother of SS) and a principal character in the entire transaction, was sought to be concealed. Withholding of best evidence would entitle the Court to draw an adverse inference (UoI v. Rai Singh Deb Singh Bist [1973] 88 ITR 200 (SC)), even as, clearly, the assessee has not met the burden of proof on it to satisfactorily explain the impugned cash deposit, so that, in law, the amount would stand to be assessed in the hands of the assessee (SS), the beneficiary of the bank account. This answers Q. (b) above. It is, under the circumstances, neither necessary nor proper to admit the additional evidence. The prayer therefor is, rather, without basis on facts or in law.

16 ITA No. 357/Asr/2016 (AY 2002-03) Surinder Singh (Decd.) v. ITO There is nothing to doubt the veracity of the signatures of SS on the cheque duly cleared by the bank, even as the account was not operative and the transaction unusual, implying extra caution by the bank in verifying his signatures and sanctioning the withdrawal. The delivery of cash was taken by AS, his brother, and a person involved in the entire transaction, who had, further, been constituted as his attorney by SS for the purpose of filing and pursuing the suit against JS. On the contrary, SS’s family, being his wife, Jatinder Kaur in the main – his daughter and son being minors at the time, was not aware of the transaction, including the entering into of an agreement for purchase of a property by SS, or of the existence of his bank account with IOB, much less the deposit of cash therein. How could then, one may ask, it allege the impugned deposit and withdrawal to be not by, or known to, SS? The purpose of the alleged forgery is in fact defeated in view of the signature of AS on the (back side of the) cheque. As qua POA, there is no basis for the allegation that the signatures of SS on the cheque are forged, or are not his. The allegation is further in contradiction to the reliance on the bank statement before the Hon'ble Court as well as seeking refund therefrom of the amount paid advance by SS toward the purchase of the said property, along with interest and damages. In fact, the plea for additional evidence is toward ‘meeting’ the observation by the ld. CIT(A) that the assessee’s contention of the signatures being not of SS is not substantiated with any evidence. His said observation is, as would be apparent from the fore-going, without examining or reference to the facts of the case, with he, having admitted the evidence in the form of Judgment in CS # 256 of 23.5.2001/14.6.2011, dated 05/11/2011, ought to have examined it; rather, called for a remand report by the AO in terms of r. 46A. It may be that AS had used the bank account – lying dormant, of SS, but, then, the latter had consciously allowed it to be. That is, was with the consent or, as the case may be, connivance, of SS. It is in any case for the assessee to show so, i.e., that the money deposited belongs, in

17 ITA No. 357/Asr/2016 (AY 2002-03) Surinder Singh (Decd.) v. ITO whole or in part, to AS, who has, as afore-observed, not been produced at any stage of the proceedings. Withholding of evidence would entitle the Court to draw an adverse inference, even as, clearly, the assessee has not met the burden of proof on it to satisfactorily explain the impugned cash deposit, so that, in law, the amount would stand to be assessed in the hands of the assessee and not AS.

18 ITA No. 357/Asr/2016 (AY 2002-03) Surinder Singh (Decd.) v. ITO contract with JS, he was acutely aware, was with him, and it was he who could; rather, was obliged to, pay the amount to the seller. Is it that the money was received by AS in his own right? As regards the non-production of AS, it needs to be borne in mind that the matter is being prosecuted by the legal representative/s of SS, who, as apparent, is not aware of the facts of the case, and is being guided in the matter by the counsel/s. The purview of any court is, nevertheless, to sub-serve the ends of justice. As explained in CIT v. Walchand & Co. Pvt. Ltd. [1967] 65 ITR 381 (SC), the Tribunal is to deal with and determine all the questions which arise out of the subject matter of the appeal, in light of the evidence and consistently with the justice of the case. The matter, in my considered view, needs further examination and verification. A definite finding in the matter though could only be issued after examining, besides others, AS, whose attendance, in case of non-cooperation, could be enforced through summons and, in any case, invite adverse inference. The POA in his favour, is, again, a vital document. Reference in this regard is made to Explanation 2 to section 153 of the Act, as substituted by Finance Act 2016, w.e.f. 01.6.2016. In view of the foregoing, setting aside the assessment and vacating the findings by the Revenue, I restore the matter for assessment/s afresh to the file of the AO, who shall do so in earnest, in a time bound manner (refer section 153, providing for a revised time limit) per a speaking order, issuing definite findings of fact after allowing a reasonable opportunity of hearing to the assessee/s. The AO shall also cause to implead the daughter and son of SS, who have since become majors. Further, the assessee, though relying on the original return filed on 06/9/2002, has not, as it appears, formally complied with the notice u/s. 148(1). Where so, the AO shall cause its’ compliance as otherwise the assessment would be technically one u/s. 144 r/w s. 147. I decide accordingly.

19 ITA No. 357/Asr/2016 (AY 2002-03) Surinder Singh (Decd.) v. ITO 6. In the result, the assessee’s appeal is allowed for statistical purposes. Order pronounced in the open court on July 31, 2019 Sd/- (Sanjay Arora) Accountant Member Date: 31.07.2019 /GP/Sr. Ps. Copy of the order forwarded to: (1) The Appellant: Surinder Singh (deceased) (through LR, Jatinder Kaur), c/o Hotel New Bharat, 11- Link Road, Amritsar (2) The Respondent: The Income Tax Officer, Ward-5(4), Amritsar (3) The CIT(Appeals)-2, Amritsar (4) The CIT concerned (5) The Sr. DR, I.T.A.T