SANJEEV D. SANDANSHIV, L/H. OF LATE SHRI DHARMA KAUTIK SANDANSHIV,,JALGAON vs. INCOME-TAX OFFICER, (CBI),, NASHIK

Because the ld. CIT(Appeals) failed to appreciate that the order u/s. 144 is void-ab-initio as the AO had no juri iction over the appellant and the appellant was not given a reasonable opportunity of being heard before transfer of its case from ITO (CIB), Pune to ITO (CIB), Nasik u/s. 127 of the Act.

Because the ld. CIT(Appeals) failed to appreciate that the AO has passed an order u/s. 144 without even calling for the statement of the bank in which the alleged cash was deposited, thereby making an assessment capriciously and without regards to any available material at all.

Because on the facts and circumstances, the ld. CIT(Appeals) grossly erred in not appreciating that the appellant was not given an opportunity of being heard, especially, when on the face of the assessment order it is stated that the notice was duly served on the assessee on 19/12/2007 and the case was posted for hearing on 19/12/2007. 5. Because, the learned C.I.T. (Appeals) failed to appreciate that the legal heirs of the appellant were not in knowledge of the sources of deposits made by the appellant in his bank account and that the amounts so deposited by the appellant need not necessarily be income of the appellant.

The appellant craves the permission to add, amend, modify, alter, revise, substitute, delete any or all grounds of appeal, if deemed necessary at the time of hearing of the appeal.”

Making an ex-parte assessment without the issuance of notices u/s 142(1) of the Act (Ground No.1), without even conducting enquiries with the bank (Ground No.3), the centralization of case u/s 127 of the Act without granting opportunity of being heard to the assessee (Ground Nos.2 & 4), without considering the practical aspects of paucity of knowledge about the source of deposits in the bank to the legal heirs, are the arguments raised in the above grounds to demonstrate that the impugned order is unsustainable in law. Otherwise, the Assessing Officer made the addition of Rs.38,18,457/. However, the CIT(A) confirmed the addition of Rs.10,50,673 out of said addition of Rs.38,18,457/-. The CIT(A) made further addition of Rs.65,000/- too.

Briefly stated the relevant facts include that the assessee is a salaried employee and retired in 1993 from Municipality of Amalner Taluka, Dist. Jalgaon. The assessee had a paralytic stroke and died on 02.06.2009. It is also a recorded fact that the assessee was engaged in the business of trading of old wood. Assessee invested his retirement benefits in FDs and in the business. The scrutiny assessment was initiated with the AIR information regarding the cash deposits in the Savings Bank Account, received by the Assessing Officer. Assessee made the cash deposit in the Savings Bank Account of the assessee amounts to Rs.38,18,457/- for the assessment year 2005-06. The Assessing Officer issued notice and posted the case for hearing on 19.12.2007. None appeared before the Assessing Officer on the said date. Therefore, the ex-parte assessment was made by the Assessing Officer u/s 144 of the Act on 27.12.2007 determining the total income at Rs.38,18,457/-. Assessee was alive at the relevant point of time.

Before the CIT(A), the issue relating to ex-parte assessment, that need for grating reasonable opportunity of being heard to the assessee by the Assessing Officer in assessment proceedings, the correctness of the addition of Rs.38,18,457/-, were raised in the appeal. The First Appellate Authority partly allowed the appeal of the assessee. On the issue relating to merits of the addition of Rs.38,18,457/- the CIT(A) calculated the peak credit of Rs.10,50,673/- out of the total cash deposits out of Rs.38,18,457/- and confirmed the said peak credit as per the discussion given in para 5.1 of his order. The CIT(A) confirmed the addition of Rs.10,50,673/- invoking the provisions of section 68 of the Act. The CIT(A) dismissed other arguments listed above.

Further, the CIT(A) enhanced the assessment to the tune of Rs.65,000/- over and above the above addition of Rs.10,50,673/-.

Aggrieved with the same, the assessee is in appeal before us with the above extracted grounds.

There is none to represent the assessee before us despite the service of notice. However, the ld. DR discussed the above facts of the case and submitted that the order of the CIT(A) is reasonable one and the same is required to be confirmed.

We heard the arguments of the ld. DR and perused the material available on record. We find the assessee raised legal issue regarding the invalidity of the ex-parte assessment, the juri iction of the ITO (CBI), Nashik and the failure to grant a reasonable opportunity of being heard to the assessee, the making the addition etc. It is also mentioned that the legal heir, who filed the appeal before us, was not aware of the sources of deposits. As per the assessee, this fact was not considered by the CIT(A) in his order in proper perspective. On perusal of para 2 of the CIT(A)’s order, we find this is the second round of proceedings before the Tribunal. In the first round, the CIT(A) dismissed the appeal for non-compliance to the notices. The legal heirs took the matter to the ITAT, who passed the order directing the CIT(A) to dispose of the appeal on merits by passing a speaking order.

On perusal of the order of the CIT(A), we find that the CIT(A), in principle, appreciated the correctness of making the addition of Rs.38,18,457/- by the Assessing Officer on account of cash deposits in the SB A/c with Bank. But, during the remand proceedings, the CIT(A) undertook the exercise of computing the “peak credit”. CIT(A) worked out the total cash deposits and cash withdrawals at Rs.38,18,457/- and Rs.54,42,992/- respectively. There are certain cheque deposits to the tune of Rs.14 lakhs also. The CIT(A) made the addition due to lack of explanation regarding the source of deposits. Therefore, the CIT(A) calculated the peak credit of Rs.12,10,000/- (29.01.2005) judiciously and reduced the opening balance of Rs.1,59,327/- too before the peak credit balance of Rs.10,30,673/- is quantified and added to the income of the assessee towards unexplained cash deposits. The table given in para 5 of the order of the CIT(A) gives the working of the above amount of Rs.10,50,673/- and the same is as under :- Sr. Particulars Amount (Rs.) 1 Cash Withdrawals 54,42,992 2 Cash Deposits 38,18,457 3 Excess of Withdrawals over Deposits (1)-(2) 16,24,535 4 Peak Balance of Saving Bank Account 12,10,000 5 Balance existing on 01.04.2004 1,59,327 6 Unexplained deposits in Savings Bank Account (4)-(5) 10,50,673

In the light of the above reasoning and calculation, the CIT(A) confirmed the above addition. For the sake of completeness, said para 5.1 is extracted as under :- “5. 1. I have gone through the submission of the assessee. The main ground of appeal is regarding addition of Rs.38,17,457/-. The other grounds emanate from the main ground and are discussed together. As stated above, the assessee had retired from Municipality of Amalner Nagar Palika in 1993. He was not filing any return of income and on the basis of AIR information ex- parte assessment was done by ITO CIB making an addition of Rs.38,17,457/-, which was the cash deposited in the bank account with Bank of Maharashtra. The CIT(A) confirmed the addition ex-parte. As stated by the assessee and the AO, the assessee was paralyzed and the family members are totally illiterate and were not aware about nuances of Income Tax. After the addition was confirmed by CIT(A), the AO initiated the process of levying penalty u/s 271(1)(c). Even in penalty proceedings, no one appeared. However, the AO rather than levying penalty mechanically on the basis of addition made by the AO, suo-moto worked out Peak credit and arrived at peak cash of Rs.10,50,673/- on 29.11.2004. After going through the details submitted by the assessee, I am of the considered opinion that the AO has correctly arrived at the figure of Peak credits, which is also accepted by the AR. In fact the AR has given complete date wise working of how the peak is arrived. In view of this, the addition is restricted to Rs.10,50,673/- as unexplained cash credits u/s 68. The Ground of appeal is partly allowed.” Thus, the CIT(A) analyzed the cash deposits of Rs.38,18,457/- and cheque deposits of Rs.14 lakhs on one side and quantified the cash withdrawals of Rs.54,42,992/- on the other. Further, the CIT(A) quantified the peak credit of Rs.10,50,673/- after netting with the opening balance of Rs.1,59,327/-. CIT(A) found it appropriate to confirm the said peak credit of Rs.10,50,673/-. In our view, the order of the CIT(A) is fair and reasonable. Hence, the same does not call for interference on this issue. Accordingly, the ground no.5 raised by the assessee stands dismissed.

The second addition made by the CIT(A) by way of enhancement relates to a portion of FDs of Rs.65,000/-. The relevant facts include that the Assessing Officer called for the details of FDs made out of the cash withdrawals during the year under consideration. The assessee furnished the details which are discussed in para 6 and 6.1 of the assessment order. As per the assessee, the assessee opened an FDR of Rs.3,65,000/- and the sources for the same are explained linking to the total cash withdrawals from the bank account of the assessee. After considering the assessee’s submission and also considering the peak credit analysis details qua the cash withdrawals, the CIT(A) came to the conclusion that the FDs worth of Rs.3,00,000/- stand explained. There was a cash withdrawals of Rs.10,00,000/- on 29.11.2004 which is the source of the said Rs.3 lakhs. Therefore, the CIT(A) enhanced the assessment by the differential figure of Rs.65,000/- (Rs.3,65,000/- minus Rs.3,00,000/-). This addition is made over and above the aforesaid addition of Rs.10,50,673/-. As mentioned earlier, there is none to represent the assessee on this issue. The ld. DR relied heavily on the order of the CIT(A). The ld. DR read out the contents of para 6, 6.1, 6.2 and 6.3 of the order of the CIT(A) and submitted that the CIT(A)’s order is reasoned one.

We have heard the ld. DR for the Revenue and examining the facts given in paras 6 to 6.2 of the order of the CIT(A). For the sake of completeness, the said para 6.2 is extracted hereunder :- “6. 2. I have gone through the submission of the assessee. The assessee had FDRs of Rs. 3,65,000/- which are stated to be made out of cash available with the assessee. On going through the working submitted by the AR, it is noticed that the Peak was arrived at after taking into account cash withdrawals from the bank a/c and the cash deposits. The total cash deposit during the year were Rs. 38,18,457/- but since there were withdrawals and deposits, the peak of Rs. 10,50,673/- was arrived on 29.11.2004. It means whatever cash was withdrawn by the assessee before this date was given set off for the deposits made in the a/c. As the dates of FDs are before the date of the peak, i.e. 29.11.2004, therefore the possibility of making FDs out of the cash withdrawals is ruled out. It can therefore be logically concluded that the FDs of Rs. 65,000/- were made out of the additional Cash available with the assessee. The AR was given a show caused vide order sheet dated 16.03.2018 and was asked why enhancement should not be made for an amount of Rs. 65,000 in view of section 251(2). It is submitted by the AR vide order sheet dated 21.03.2018 that the assessee had withdrawn Rs. 10,00,000/- on 29.11.2004 and as the FDs of Rs. 3,00,000/- are made after that, so the amount of Rs. 3,00,000 stands explained. For the remaining amount of Rs. 65,000, he accepted that the assessee does not have any source to explain. In view of this discussion, an enhancement of Rs. 65000 is made.”

From the above, it is evident that the fixed deposits of Rs.3,65,000/- was made before peak date on 29.11.2005. The major withdrawal of Rs.10 lakhs was made on 29.11.2006. The CIT(A) gave set off to the extent of Rs.3 lakhs before confirming Rs.65,000/- on account of the FDRs.

1 In our considered view, the decision of the CIT(A) appears to be fair and reasonable and it does not call for any interference. Therefore, the order of the CIT(A) is upheld on this issue. Accordingly, the relevant ground stands dismissed.

Ground nos.1 to 4 relates to the principles of natural justice i.e. making ex-parte assessment without hearing the assessee, the transfer of file i.e. assessment folders from ITO (CIB), Pune to ITO (CIB), Nashik at the back of the assessee, completion of the assessment without conducting enquiries with the bank by the Assessing Officer or the issues raised in the ground nos.1 to 4. These aspects were also raised by the assessee before the CIT(A). On these aspects, the CIT(A) mentioned that this is the second round of proceedings before the ITAT. During the first round of proceedings before the CIT(A), a number of opportunities given by the Income Tax Authorities, which are discussed in para 2 of the order of the CIT(A). The assessee was unable to make appearance before the CIT(A). There is none to represent even before us when his name of the assessee is called during the hearing proceedings. Further, nothing is made out by the assessee that the transfer of assessment folders from ITO (CIB), Pune to ITO (CIB), Nashik is erroneous and unsustainable. The matter was remanded by the ITAT in order to meet the requirement of principles of natural justice too. The assessee availed the said opportunity successfully and made his arguments before the CIT(A). Considering the various events that happened since the assessment proceedings in December, 2007 to the impugned order passed by the CIT(A) in March, 2018, we are of the opinion that there is no violation so far as granting of opportunity to the assessee in matter of hearing. Hence, the ground nos.1 to 4 raised by the assessee are dismissed.

In the result, the appeal of the assessee is dismissed. Order pronounced on this 30th day of April, 2019. (SUSHMA CHOWLA) (D. KARUNAKARA RAO) "ाियक सद" / JUDICIAL MEMBER लेखा सद" / ACCOUNTANT MEMBER पुणे / Pune; "दनांक Dated : 30th April, 2019. Sujeet आदेश क" "ितिलिप अ"ेिषत/Copy of the Order is forwarded to : अपीलाथ" / The Appellant;

The CCIT, Nashik; िवभागीय "ितिनिध, आयकर अपीलीय अिधकरण, पुणे “एक-सद"य मामला” /

DR ‘SMC’, ITAT, Pune; गाड" फाईल / Guard file. 6. आदेशानुसार/ BY ORDER, स"यािपत "ित //// Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune