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Income Tax Appellate Tribunal, DIVISION BENCH ‘A’, CHANDIGARH
Before: SHRI SANJAY GARG & MS. ANNAPURNA GUPTA
IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH ‘A’, CHANDIGARH
BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA No.1203 & 1204/Chd/2010 (Assessment Year : 1995-96)
Sh. Balwan Singh Vs. The ITO L/H of Late Smt. Dakhan Devi Ward 1(4) VPO Saketari Chandigarh Panchkula PAN: ATVPB6328E (Appellant) (Respondent) Appellant by : Shri Tej Mohan Singh Respondent by : Shri Ankur Alya
Date of hearing : 15/11/2018 Date of Pronouncement : 11/02/2019
ORDER PER ANNAPURNA GUPTA, Accountant Member :
Both the above appeals have been filed by the same assessee against separate orders passed u/s 250(6) of the Income Tax Act,1961(hereinafter referred to as “Act”) one by the Commissioner of Income Tax-( Appeals)(in short referred to as CIT(A)-XX,New Delhi in quantum proceedings, and the other by the CIT(A),Panchkula, confirming the levy of penalty u/s 271(1)(c) of the Act, dated 21-03-05 & 28-11-08 respectively and relate to the same assessment year (in short referred to as A.Y) i.e 1995-96.
Initially both the appeals had been dismissed by the ITAT on limitation grounds, not condoning the delay in filing of the same, vide their order dated 28-02-13. The assessee filed appeal against the said order of the ITAT to the Hon’ble High Court, who vide their order in ITA No. 359/2013 dt. 18/03/2014 set aside the order of the ITAT and remanded the appeal back to the ITAT to decide the same on merits. Hence the present appeals.
Taking up first the appeal of the assessee in quantum proceedings in ITA No. 1203/Chd/2010 ,briefly stated the facts relating to the case are that during the assessment proceedings of one Smt. Rajinder Kaur w/o Sh. Malwinderjit Singh, for A.Y. 1995-96, the Assessing Officer (in short referred to as” A.O”)noted that the said assesee had a joint account with Smt. Dakhan Devi, the assessee in the impugned appeal before us, in State Bank Of Patiala,Sec-8,Chandigarh and Punjab National Bank,Sec-8, Chandigarh, in which there were cash deposits the source of which had not been explained. Accordingly notice under section 148 of the Act was issued on 27-03-02, for reopening the case of the assessee. In response thereto, Shri Balwan Singh, legal heir of the assessee, filed return of the assessee, declaring NIL income on 27/12/2002. Thereafter statutory notices were issued for conducting the assessment proceedings and during the course of the proceedings the assessee raised objection to the assumption of jurisdiction by the AO under section 148 of the Act, which were all dismissed by the Assessing Officer . Further, on merits, the Assessing Officer treated half of the cash deposits in the State Bank of Patiala joint account , amounting to Rs. 5,15,000/-, as deemed income of the assessee, being unexplained. Also half of the cash deposits in the joint account of PNB were added to the income of the assessee under section 68 of the Act, on protective basis, since the entire cash deposit had been added in the hands of Smt. Rajinder Kaur on substantive basis.
Aggrieved by the same the assessee filed appeal before the Ld. CIT(A) challenging the assessment framed both on legal grounds as well as on merits. The Ld. CIT(A) dismissed all the contentions of the assessee and upheld the order of the Assessing Officer.
Aggrieved by the same the assessee has came up in appeal before us raising the following grounds:
That the impugned order passed under section 143(3)/147 of the I. T. Act,1961 by the Assessing Officer is illegal, unjust, arbitrary and without jurisdiction. 2. That impugned order of Assessment including the order passed in appeal by the Ld. CIT(A) is totally without jurisdiction as the very transfer of records of the assessee was without authority of the law and contrary to the principles of natural justice in the absence of any valid order passed under sections 124 & /or 127 of the Act.
That the notice issued under section 148 of the Act forsly to the deceased mother of the assessee is unsustainable in law in as much no notice could be issued to a dead person and thus, illegal non sustainable in the eyes of law. 4. That despite the fact that the Ld. Assessing Officer in the knowledge that there are four legal heirs, issuance of notice under section 148 of the Act only to the appellant leaving aside other three legal heirs is violation of section 148 & section 159 of the Act. 5. That the findings returned & recorded in order dated 20/24.02.2003 passed by the Assessing Officer is totally illegal & without jurisdiction, contrary to the material on records and therefore, a result of assumption of jurisdiction not vested in it by law. 6. That notice issued by the Assessing Officer under section 148 of the Act on the fact of it, in view of the date & address mentioned on it, was barred by time & thus the order of Assessment passed thereon is patently illegal & without jurisdiction. 7. That transfer of Assessment records of the case by Assessing Officer to Panchkula, without affording opportunity of hearing to the appellant is in utter violation of section 124 & 127 of the Act proving therefore that the assessment order passed by the Assessing Officer is out of jurisdiction. 8. That the notice issued under section 148 & 142(1) of the Act by the Assessing Officer to the appellant was prior to obtaining of sanction from competent authority that too knowing well that appellant is not residing under the jurisdiction of Assessing Officer, amounting to acquisition of jurisdiction for the purpose of framing of assessment under section 148 & thus notice issued being illegal, void abinitio, non est. & non enforceable. 9. That non-issuance of notice under section 142(1) of the Act after obtaining sanction under section 151 of the Act by the Assessing Officer violates section 124(3)(a) r.w.s. 142(1) of the Act and simultaneously overruling objections raised by appellant renders all notices in respect of assessment void abinito, non est, illegal & without jurisdiction, besides being contrary to principles of natural justice. 10. That impugned notices and orders passed thereon by the Assessing Officer assuming jurisdiction erroneously are violative of Notifications Nos. SO 733(E) dated 31.07.2001 as corrected by Notification No. SO 846 (E) dated 30.08.2001 & Notification No. 230/2001 {END 187/6/2001-IT(A- l)}dated 31.07.2001 issued by the Central Board of Direct Taxes & therefore illegal & without jurisdiction.
As is evident from the above, the grounds raised by the assessee only challenge the validity of the assessment framed, raising several legal issues before us. No ground challenging the addition on merits has been raised.
During the course of hearing before us Ld. Counsel for the assessee raised several contentions challenging the jurisdiction assumed by the AO to frame assessment u/s 148 of the Act, pointing out various infirmities by drawing our attention to various notices issued u/s 148 of the Act, besides
other documents and communications placed in the paper book filed before us. Ld. Counsel for the assessee was asked to pin point the different notices issued under section 148 for assuming jurisdiction by the AO to frame assessment in the present case . Ld. Counsel drew our attention to the first notice issued on 24/09/1999 placed at paper book 1 and the second notice issued on 27/03/2002 placed at paper book page no. 4. Ld. Counsel was asked to point out the infirmity vis a vis last notice issued to which he was unable to point out any.
We have perused the contents of the last notice issued and we find that it was issued on 27/03/2002. The Ld.Counsel for the assessee conceded that it was well within the limitation prescribed by the Act of six years from the end of the relevant assessment year which in the present case is A.Y 1995-96 and the limitation expired on 31.03.2002.Thus as far as limitation for issuance of notice for assuming jurisdiction u/s 148 is concerned, we do not find any infirmity in the same.
Further we find that notice was issued on the legal heir of the assessee, Shri Balwan Singh. Ld.Counsel for the assessee conceded that he was the only legal heir of the assessee, which fact finds mention in the order of the Ld. CIT(A) also. We therefore do not find any infirmity in the issuance of notice on the legal heir of the assessee Shri Balwan Singh.
Thereafter we have noted that the notice was issued by ITO, W- 1(4), Chandigarh. Any objection to the jurisdiction of an assessing officer can be raised as provided under section 124(3) of the Act. Sub clause (b) of the said section states that where no return has been made u/s 139(1) of the Act or in response to notice u/s 142(1) of the Act, the objection can be made only within the time stipulated for filing return u/s 148 of the Act. For the sake of clarity section 124(3) of the Act is reproduced hereunder:
SECTION 124
[3298][Jurisdiction of Assessing Officers. (1) Where by virtue of any direction or order issued under sub-section (1) or sub-section (2) of section 120, the Assessing Officer has been vested with jurisdiction over any area, within the limits of such area, he shall have jurisdiction—
(a) in respect of any person carrying on a business or profession, if the place at which he carries on his business or profession is situate within
the area, or where his business or profession is carried on in more places than one, if the principal place of his business or profession is situate within the area, and
(b) in respect of any other person residing within the area.
(3) No person shall be entitled to call in question the jurisdiction of an Assessing Officer—
(a) where he has made a return [3307][ under sub-section (1) of section 115WD or under sub-section (1) of section 139], after the expiry of one month from the date on which he was served with a notice under sub-section (1) of section 142 or [3308][sub-section (2) of section 115WE or sub-section (2) of section 143] or after the completion of assessment, whichever is earlier;
(b) where he has made no such return, after the expiry of the time allowed by the notice under [3309][sub-section (2) of section 115WD or sub-section (1) of section 142 or under sub-section (1) of section 115WH or under section 148 for the making of the return or by the notice under the first proviso to section 115WF or under the first proviso to section 144] to show cause why the assessment should not be completed to the best of the judgment of the Assessing Officer, whichever is earlier.
[3308a]["(c) where an action has been taken under section 132 or section 132A, after the expiry of one month from the date on which he was served with a notice under sub-section (1) of section 153A or sub- section (2) of section 153C or after the completion of the assessment, whichever is earlier.".]
This provision was confronted to the assessee, pointing out the fact recorded in the assessment order that no return was originally filed by the assessee for the impugned year. It was also pointed out to him that the notice issued u/s 148 of the Act was dated 27-03-02, requiring the assessee to file return of income within 30 days of receipt of notice. The time period for filing objection to the jurisdiction of the A.O therefore also was the same ,as per section 124(3), while the assessee filed objections only on 12- 02-03,as noted in the assessment order, which was well beyond the prescribed period. The Ld.Counsel for the assessee was unable to contradict the aforestated facts. Therefore, we hold, that the assessee was precluded by law from objection to the jurisdiction of the A.O in the present case.
No other infirmity was brought to our notice by the Ld.Counsel for the assessee. Therefore, we hold that the AO had validly assumed jurisdiction to frame assessment u/s 147 of the Act in the present case. All the grounds raised by the assessee are therefore dismissed.
In effect the appeal of the assessee is dismissed
Now coming to the appeal of the assessee in ITA No.1204/Chd/2010 challenging the levy of penalty u/s 271(1)(c) of the Act, The Ld. counsel for assessee pointed out that the penalty had been levied on the addition made on account of cash deposits in the bank account of the assessee for the reason that the assessee had been unable to prove with documentary evidences that the investments made in the bank accounts were out of known sources. It was therefore held that the assessee had concealed/furnished inaccurate particulars of income relating to the same.
The Ld. counsel for assessee pointed out that the assessee, through her legal heir ,had offered an explanation that there was some agricultural land in her name which belonged to the HUF of her husband and after the death of her husband the same was inherited by her son’s HUF who in turn had sold some land and deposited the money in her name. The Ld. counsel for assessee pointed out that it was brought to the notice of the Revenue authorities also that the assessee was only a house wife throughout her life and never had any income of her own. The Ld. counsel for assessee stated that the explanation of the assessee offered by the assessee was not found to be false or untrue. Further it was stated that the assessee was not alive during the assessment proceedings and it was her legal heir who was required to explain the impugned transaction which had taken place many years back in the bank account of the assessee and, therefore, there was difficulty in substantiating the same. The Ld. counsel for assessee stated that the bonafides of the assessee stood proved and, therefore, there was no reason to levy penalty on account of the same.
The Ld. DR, on the other hand, relied on the order of the authorities below stating that since the assessee had been unable to substantiate her explanation regarding source of deposit, it was a clear case of concealment/furnishing of inaccurate particulars of income and penalty had, therefore, been rightly confirmed by the CIT(A).
We have heard the rival contentions. We find merit in the contention of the Ld. counsel for assessee. The assessee had offered an explanation for the source of the cash deposited in her bank account,
but since it could not be substantiated the addition was made of the same to the income of the assessee. It is not that the explanation was found to be false or untrue. Further It is an admitted fact that the assessee was no longer alive during the period when assessment proceedings were conducted and it was her legal heir who was required to offer the necessary explanation of transactions undertaken several years back in the bank account of the assessee. Considering the same , we do not consider it to be a fit case for levy of penalty u/s 271(1)© of the Act.
The penalty so levied is therefore directed to be deleted.
In effect the appeal of the assessee is allowed in above terms.
Order pronounced in the Open Court.
Sd/- Sd/- (SANJAY GARG) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated : 11/02/2019 AG Copy to: 1. The Appellant 2. The Respondent 3. The CIT(A) 4. The CIT 5. The DR