KALPESH RATILAL GARDHARIA,KOLHAPUR vs. ITO WARD- 2(3), KOLHAPUR

N THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES, PUNE SINGLE MEMBER CASE BEFORE SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER I.T.A. No. 1850/PUN/2019 : A.Y. 2010-11 Kalpesh R. Gardharia, Plot No. 17m 1183E Takala, Rajratna Apartment, Karveer KOLHAPUR – 416 008 PAN: AJFPG 7760 H :Appellant Vs. The I.T.O. Ward 2(3) Kolhapur :Respondent Appellant by : Shri S.N. Puranik Respondent by : Shri Piyush Kumar Singh Yadav Date of Hearing : 17-10-2022 Date of Pronouncement : 19-10-2022 ORDER

This appeal preferred by the assessee emanates from order of the learned CIT(A)-2, Kolhapur, dated 05-01-2018 for assessment year 2010-11 as per the following grounds of appeal.

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This is in substitution of Additional ground earlier. 1.1 Notice u/s 148 issued by Assessing Officer who has no jurisdiction. 1.2 Transfer of case from ITO Ward 2(1)s to ITO Ward 2(3) without order u/s 127 from Pr. CIT., Hence proceedings are invalid. 1.3 Since the proposal from and reasons recorded by Assessing Officer having no jurisdiction, the satisfaction/approval by Pr. CIT u/s 151 is mechanical, resulting proceedings as Bad in Law.

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approval of the Pr. C.I.T. who has accorded the approval for issuance of notice u/s 148 vide letter (as appearing in the assessment order) dated 29-03-2017. Thereafter, due to change in jurisdiction the case was transferred to ward 2(3) Kolhapur from ITO ward 2(1), Kolhapur. As there was change in incumbent of office, therefore, notice u/s 142(1) r.w.s. 129 of the Act was issued to the assessee on 15-06-2017 which was duly served on the assessee through RPAD on 19-06-2017. The A.O Ward 2(3) Kolhapur, during the assessment proceedings had asked the assessee to furnish source of cash deposit in the bank along with documentary evidences. The assessee filed written submissions and a copy of Affidavit dated 08-11-2017. In the said submissions, the assessee has contended that he had been working at Kotak Life Insurance as a Dy. Manager and during the relevant assessment year he had been working with Birla Sun Life Insurance from 08-06-2009 to 30-09-2009 and was drawing salary of about Rs. 17,500/- p.m. and after 30-09-2009, he was unemployed. Since he had no income which was chargeable to tax during the year under consideration, he has not filed any return of income. As regards the cash deposit, the assessee submitted before the A.O that an amount of Rs. 32,01,200/- was directly deposited by one Mr. Bipin Patel. The assessee contended that Mr. Bipin Patil was his friend and offered him commission of Rs. 50,000/- to carry out certain transactions in derivatives on his behalf using the assessee’s demat account. It was therefore, submitted before the A.O that the assessee had acted as an agent and the transaction including the amount deposited in assessee’s account belonged to Mr. Bipin Patel and the same should not be treated as assessee’s income. Thereafter, the A.O issued summons u/s 131 of the Act to Mr. Bipin Patel to verify his identity, genuineness and creditworthiness. The A.O also asked the assessee to produce Mr. Bipin Patel for necessary interrogation. Mr. Bipin Patel appeared with the assessee and deposited before the A.O. It

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was submitted by Shri Patel that he has no individual source of income and has therefore, not filed any income-tax return and has claimed to have made the cash deposit in the bank account of the assessee from his family savings and the amounts received from his friends and relatives used for share trading business. This version was not acceptable to the A.O. However, he provided an opportunity to the assessee to cross examine Mr. Bipin Pate which the assessee has not availed of. The A.O has also informed the assessee that Mr. Bipin Patel could not prove creditworthiness as he had no personal source of income and he could not prove his statements through evidence that he had collected money from friends or savings from family for depositing in the account of the assessee. The A.O once again show caused the assessee to prove the source of cash deposit in his bank account since Mr. Bipin Patel had failed to prove the creditworthiness and genuineness of the deposits . Therefore, though it was claimed by the assessee that he had allowed Mr. Bipin Patel to use his account for transaction but as evident during the assessment proceedings and examination conducted by the A.O., it was proved that Mr. Bipin Patel had no individual source of income nor any creditworthiness and he himself has accepted that he has no individual source of income and has not filed any income-tax returns. Therefore, the A.O treated the entire amount of deposit of Rs. 42,79,960/- (Rs. 32,22,750/- with Shri Parshwanath Credit Co-operative Bank Ltd. plus Rs. 10,52,750/- with ICICI Bank Ltd.) as assessee’s unexplained cash credit u/s 68 of the Act and added the same to the total income of the assessee.

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“On verification of records, it is seen that you had not filed your regular return of income for A.Y. 2010-11. Therefore, on the basis of information available on record, your case for A.Y. 2010-11 was reopened for scrutiny by the then ITO W-2(1), Kolhapur as the PAN was lying with him. However, therefore, the jurisdiction over the cased was transferred to ITO W-2(3), Kolhapur, being a new assessee Ward. As per order u/s 120, the ITO Ward 2(3) Kolhapur holds jurisdiction over the new assessee. The PAN was migrated through ITBA computerised system u/s 127 of the I.T. Act, 1961, from ITO W-2(1), Kolhapur to ITO, W-2(3) Kolhapur.” There was huge cash deposit by the assessee, however, no return was filed by him. The original PAN of the assessee was with ITO Ward 2(1) Kolhapur but when the assessee had not filed any return of income, jurisdiction was transferred to ITO Ward 2(3) Kolhapur and the assessee was treated as a new assessee. It was further submitted by the ld. D.R that when PAN was left idle with ITO Ward 2(1) Kolhapur and the assessee has not filed return of income the PAN was migrated from ITO Ward 2(1) Kolhapur to ITO Ward 2(3) Kolhapur by considering the assessee as a new assessee. Further section 127(3) of the Act provides as follows:

“127(3) : Nothing in sub-section (1) or sub-section (2) shall be deemed to require any such opportunity to be given where the transfer from any Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction and the offices of all such officers are situated in the same city, locality or place.”

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That, as per this provision where the transfer is from one A.O to another A.O whether with or without concurrent jurisdiction and if offices of all such officers are situated in the same city, locality or place then no further opportunity of hearing should be given to the assessee. Further, section 127(4) of the Act states as follows:

“Transfer of a case under sub-section (1) or sub-section (2) may be made at any stage of the proceedings, and shall not render necessary the re-issue of any notice already issued by the Assessing Officer or Assessing Officers from whom the case is transferred.” Transfer of the case under sub-section (1) or sub-section (2) of the said provision may be made at any stage of the proceedings but it shall not render necessary the re-issue of any notice already issued by the A.O from whom the case has been transferred.

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section 127(4) clearly states the transfer of the case may take place at any stage of the proceedings and it shall not require any re-issue of any notice which has already been issued by the Assessing Officer from whom the case is transferred. In this case, the original notice was issued to the assessee by the ITO Ward 2(1) Kolhapur and thereafter, once the case got transferred to ward 2(3) Kolhapur, there was no need for any further notice as claimed by the assessee. The assessee relies on decision of the Hon'ble Calcutta High Court in the case of Kusum Goyal Vs. ITO (2010) 329 ITR 283 (Cal) which is misplaced in this scenario since substantially different in facts from the case of the assessee. When the assessee has not filed return of income, he was treated as new assessee and the case got transferred from ITO Ward 2(1) Kolhapur to ITO Ward 2(3) Kolhapur. The original notice was already issued to the Assessee by ITO Ward 2(1) Kolhapur. Assessee was aware of the proceedings. The Act does not mandate in such a case for any approval from Pr. CIT.

“5.2 I have perused the assessment order and the submission of the appellant as above carefully. l find that the appellant had all through during the assessment proceedings and also the appellate proceedings re- iterated his contention and claim that the deposits in the bank accounts have been made by one his friend Shri Bipin Patel, who had used the appellant's DMAT Account for the Derivative/Share Transactions of him in which the appellant had no connection. It was also claimed that the appellant had acted as an agent and used to receive Rs. 50,000/- as commission from him for making available of the use of his bank account to his friend Mr. Patel. An affidavit was also filed by the appellant wherein Shri Patel in his Affidavit had admitted to have used the appellant's bank account/ DMAT Account for his derivative transactions in support of the above claim of the appellant. When the AO had issued summons u/s. 131 to Shri Bipin Patel to verify the veracity and genuineness of appellant's claim, Shri Patel appeared with the appellant before the AO and deposed that he had used the appellant bank accounts but he had no source of income and such deposits were made for such derivative transactions from his family's personal savings and also the money taken from friends and relatives, though no such evidences in this regard could be furnished. Shri

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Patel also in his statement u/ s. 131 admitted of having no source of income of his own as he had been working in the business of his father. He also admitted that he had never filed any Income Tax Return. From the facts as above, the AO had drawn the conclusion that the appellant being an educated person working as a Dy. Manager of Birla Life Insurance Company and Kotak Life Insurance Company Ltd. could not say that his friend had used the appellant's bank account for his derivatives/ share transactions, against only an amount of Rs. 50,000/- received by him as commission from his friend for allowing to use the appellant's bank account. When no such evidences of money brought and deposited by Shri Patel in the bank account of the appellant could be furnished either by the appellant or Shri Patel, the AO had allowed the appellant a cross examination to Shri Patel during assessment proceedings, which opportunity the appellant had not availed. Therefore, the issue relating to the deposits in cash in the bank accounts remained unexplained both from the appellant and also Shri Bipin Patel whose amount was allegedly claimed to have been deposited by the appellant in his bank account till furnishing of the additional evidences during appellate proceedings. The appellant during appellate proceedings had furnished certain additional evidences which were forwarded to the AO for Remand Report u/s. 250(4) as stated above. The AO after analyzing the entire facts of the case of the appellant relating to deposits made in Parshwanath co- operative Bank Ltd. (Acc. No. ....012346) of Rs. 32,01,200/- and with ICICI Bank Ltd. (Acc. No ...... 1520250) of Rs. 10,00,000/-, totalling to Rs. 42,01,200/- contended that all cash deposits were made by the appellant Shri Kalpesh Ratilal Gardharia himself and all slips bearing the signature of the assessee on the cash deposit. slips were found and not any signature was made for such deposit by Shri Bipin Patel. The AO also in the Remand Report stated that the Affidavit made by Shri Bipin Patel was defective one and so also the submission of the assessee dated 08/11/2017 as not trustworthy, as the contention of Shri Patel was not acceptable. The m0oeny deposited in cash signing the deposits slips by the appellant had not been routed though banking channel as Shri Bipin Patel had neither filed the copy of bank statement or pass book of his father and friends, who had provided the money as allegedly claimed by Shri Bipin Patel. The AO further in the Remand Report re-iterated the facts of non-filing of return by Shri Bipin Patel and so also not responding to the notice u/s. 148 by the appellant by filing a return. As regards the additional evidences produced by the appellant during appellate proceedings, the AO contended that the assessee had routed his unaccounted cash in to derivatives transactions with JHP Securities Pvt. Ltd. through the Individual Client Code of Shri Kalpesh Gardharia- SNK006 & Client type- individual but the assessee failed to prove the relation of the "Principal" and "Agent" along with cogent reasons in support of his claim that the cash was deposited by Shri Bipin Patel in both the bank accounts as mentioned above during FY 2009-10. As regards the contention of the appellant that the addition could not be made u/s 68 of the Act, the AO reported that the correct section of addition was section 69A instead of section 68 but the same was curable u/s 292B of the Act. Regarding the alternate claim of the assessee of allowing the set off of loss from derivative transactions from the deemed income computed u/s 68, the AO contended that for claiming set off of loss being business loss against deemed income the appellant should have claimed the loss by filing return of income u/s 139(1) of the Act and should have reported the loss in the Schedule BP of Business income and expenses. The AO also contended that the assessee had failed to report the losses if any in Schedule CYLA and Schedule BFLA in the re tum of income for AY 2010- 11 and therefore the request of the assessee for allowing such set off of derivative transactions loss during appellate proceedings was deserved to be rejected and the addition made by the AO in the assessment order was required to be sustained. The AO in the para 7 of the Remand Report concluded that the submission made before the CIT(A) was an afterthought and fabricated one and as the assessee had failed to establish sources of cash deposited in assessee's own bank account and

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so also failed to prove the genuineness and creditworthiness of the cash depositors with concrete evidences to substantiate such claim, such evidences furnished during appellate proceedings could not be considered. The AO also stated that during assessment proceedings due opportunity was given to the assessee for furnishing the proof to explain the sources of cash deposits in the bank of Rs. 42,74,960/- but the assessee could not prove the same with necessary evidences and hence the new evidence furnished now during appellate proceedings may not be accepted. 5.3 I find that in the rejoinder to the Remand report, the appellant mainly harped on the addition made by the AO in the assessment order u/s. 68 of the Act as invalid since the said section could not be invoked for addition in bank deposits wherein the appellant had not maintained any books of accounts and there were no such credits in his books of accounts. The AO in the Remand Report reported that such a mistake was curable u/s. 292B of the Act as such addition could be read as made u/s. 69A of the Act as appellant's unexplained money. The appellant contended that the credits appearing in the bank pass book and not in appellant's books of accounts could not be added as unexplained cash credit u/s. 68 of the Act. The appellant in this regard relied on the decision of the Hon'ble Bombay High Court in the case of Commissioner of Income Tax Vs. Bhaichand H. Gandhi, 141 ITR 0067 (Born} and the Hon'ble Pune ITAT in the case of Zahir Abdulha Mulani Vs. ITO-7(2), Pune in ITA No. 862/Pun/2017 (Pune ITAT), which had applied the principle of the case of Smt. Manasi Mahendra Pitkar Vs. ITO in ITA Nos. 4223 and 4224 (Mum) of 2015, order dated 12/08/2016 wherein it was held that where the assessee had not maintained any books of accounts, invoking of section 68 by the AO on the basis of the bank pass book was invalid. The appellant also relied on the decisions of the Hon'ble Apex Court in the case of Orissa Corpn. (P) Ltd. 159 ITR 78, Hon'ble Gujarat High Court in the case of Dy. CIT Vs. Rohini Builders (2002) 256 !TR 360 (Guj), the Hon'ble Guwahati High Court in the case of Nemichand Kothadi Vs. CIT (2004) 136 taxman 213: (2003) 264 ITR 254 (Guh) in support of the contention of the appellant that the addition made u/s. 68 by the AO could not be sustained. Some other cases have also been referred to in the Rejoinder, which mostly dealt with the non-application of the provisions of section 68 of the Act and in fact, the appellant did not ponder much over the merit of his submission and contention as to where from the amounts of cash deposits were made and how the same could be treated as explained sources of income. I find that though prima-facie the contention of the appellant cannot be denied but the facts of the case of the appellant are that the appellant could not furnish any documentary evidences in relation to the sources of cash deposits made in both Parshwanath Co-operative Bank Ltd. and ICICI Bank Ltd. which the appellant had deposited under his signature in deposits slips and allegedly claimed to have been deposited by his friend Shri Bipin Patel for his derivative Transactions. Neither the appellant nor Shri Bipin Patel could prove that there were sources of such cash deposits made to the tune of Rs. 42,74,960/- in the said bank accounts, thereby furnishing necessary documentary evidences relating to cash deposits and rather relied on the technicality of the section on which the addition was made. In this connection, it may be stated that by virtue of the provisions of section 292B, the error occurred in the assessment order in referring to the provisions of section 68 is curable. Instead of the addition on account of unexplained cash credit u/s. 68 of the Act as done by the AO, the same should be section 69A of the Act as appellant's unexplained money. For the sake of convenience, the said provisions of section 292B of the Act are reproduced as below. Return of income, etc. not to be invalid on certain grounds. 292B. No return of income, assessment, notice, summons or other proceeding, furnished or {006 gr issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions

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of this Act shall be invalid or shall be deemed to be invalid merely by reason any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceedings if such return of income, assessment or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act." 6.3.1 I find that the appellant could neither adduce nor furnish any documentary evidences as to the sources of cash deposits made by him and by merely furnishing a statement along with an Affidavit of shri Bipin Patel, tried to explain such Cash deposits as having been not made by the appellant in his bank account but by his friend and transactions in the said bank accounts were done at the instructions of the appellant’s friend. From an educated person like the appellant is, such an explanation cannot be accepted. I agree with the report of the AO that the explanation was concocted having no basis and therefore was not acceptable. As regards the discussion on merit of making such addition. In view of above, l hold that the AO had correctly made the addition of Rs. 42,74,960/- as appellant's unexplained money deposited in the bank accounts as mentioned above and such deposit is required to be sustained u/s. 69A of the Act and not section 68 of the Act and such mistake is curable u/s. 292B of the Act. The case law cited by the appellant are not applicable on the facts of the case of the appellant. The appellant is also not eligible to claim any set off of loss from derivative transactions for the reasons as stated by the AO in para 6.1 of the Remand Report, duly discussed and quoted above, on which I agree with the contention of the AO. In view of above, the addition made by the AO of Rs. 42,74,960/- is confirmed, subject however, not u/s. 68 of the Act as unexplained cash credit but u/s. 69A of the Act as appellant's unexplained money. Ground nos. 1 & 2 raised by the appellant are accordingly dismissed.” 9. The ld. A.R reiterated the submissions placed before the subordinate authorities and also submitted that the final assessment order was completed u/s 68 whereas the ld. CIT(A) has changed the provision and upheld the addition u/s 69A of the Act by applying section 292B of the Act stating that it is a curable mistake made by the A.O. The ld. A.R further contended that they had given a detailed submission on this issue before the ld. CIT(A) which is also placed on record before us, that as per the Hon'ble Delhi High Court in the case of JCB India Ltd. Vs. Dy. CIT (2017) 398 ITR 189/251 Taxman 143 which was also relied upon by the Delhi Tribunal in the case of Amitabh Bansal (2019) 102 taxmann.com 229 (Delhi-Trib), where it was categorically held that section 292B cannot be invoked to cure the defect of wrong invocation of section 68 of the Act. If final assessment order is completed under a particular provision of the Act, then the ld. CIT(A) cannot merely invoke section 292B of the Act to rectify the defect and place the addition under some other provision.

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5.6 In order to verify the correctness of contention of the Shri Bipin Patel, as stated in affidavit dtd. 08.11.2017 and the assessee's contention in his submission dtd. 10.11.2O J 7 that, the cash deposits made in the assessee's account having s/b a/c with Parshwanath Co-op Bank Ltd, Shahupuri, Kolhapur & Br Manager, ICICl Bank Ltd, Mangalwar peth Branch, Kolhapur have been directly deposited by Shri. Bipin Patel. Accordingly, the information are called from the Banks by issuing the letters dtd. 24.07.2019 to The Br Manager, Parshwanath Co-op Bank Ltd, Shahupuri, Kolhapur and The Br Manager, ICICI Bank Ltd, Mangalwar peth br, Kolhapur with a request to furnish the Bank a/c extracts of the S/b a/c of the assessee & photocopies of the cash deposits slips of cash deposits made during the F Y 2009-10. 5.7 In response to this office letters dtd. 24.07.2019, The Branch Manager, Parshwanath Co-op Bank Ltd, Shahupuri, Kolhapur and The Br Manager, ICICI Bank Ltd, Mangalwar peth br, Kolhapur submitted their reply along with the copy of the bank S/b a/c statement of the assessee's account and photocopies of the cash deposits slips made during the F Y 2009-10 on 30.07.2019 & 2, 13/08.2019 respectively. 5.8 On careful verification of these cash deposits slips of both Banks, it was noticed that, all cash deposits are made by Shri Kalpesh Gadharia, the assessee himself and all slips bearing the signature of assessee on the cash deposit slips as signature of the depositor and not of Shri Bipin Patel, as stated m para-1 of the Notarized Affidavit dtd. 08.11.2017 made by Shri. Bipin Patel and also endorsed by the assessee Shri Kalpesh Gardharia in his submission dtd. 10.11.2017.”

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deposit made during the financial year 2009-10 relevant to A.Y. 2010-11. In response to the query made respective Branch Managers of both the banks replied along with the photo copies of the cash deposits and it was noticed that the cash deposit slips of both the banks were signed by the assessee himself and both these slips were bearing the signatures of the assessee. Therefore, it was evident that even the affidavit filed by Mr. Bipin Patel that he had made the cash deposits turned out to be absolutely false and untrue and devoid of any merits. Therefore, the ld. D.R contended that it is nothing but assessee’s own money which has been routed through in the name of Mr. Bipin Patel for evasion of tax. The ld. D.R fairly contended that the addition therefore, should be sustained.

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individual source of income and do not file any return of income. Whatever deposits have been made was from the savings of his family members and money received from friends and relatives. The creditworthiness of Mr. Bipin Patel for such cash deposits was not established either before the A.O nor before the CIT(A). That, though an affidavit was filed of Mr. Bipin Patel stating that it was his cash deposits using the accounts of the assessee to verify this, remand report was called for by the ld. CIT(A) from the A.O who had asked the Branch Managers of the following banks

(a) Shri Parshwanath Credit Co-op. Bank Ltd; Shahupuri Branch, (b) ICICI Bank Ltd.,Mangalwar Peth Branch, Kolhapur. to provide details of cash deposits along with photo copies of deposit slips made. On verification of those deposit slips, it became evident that actually the deposits were done by the assessee himself and not by Mr. Bipin Patel as claimed in his affidavit. Therefore, the credit worthiness of Mr. Bipin Patel and the genuineness of the transaction had not been established in this case and at the same time it has been clearly brought out that the cash deposits were actually done by the assessee. That therefore, so far as the facts are concerned the case is in favour of the revenue only. However, one legal issue has emerged in the entire exercise i.e., the assessment was completed by making the addition u/s 68 of the Act by the A.O as unexplained cash credit which was changed to section 69A of the Act by the ld. CIT(A) as assessee’s unexplained money while upholding the additions. I have already examined that the ld. A.R had filed detailed written submissions in this regard before the ld. CIT(A) that once the assessment is completed u/s 68 of the Act, the addition cannot be changed to section 69A of the Act by resorting to section 292B of the Act as held by Hon’ble Delhi High Court in the case of JCB India Ltd (supra) which was also relied upon by the Delhi Tribunal in the case of Amitabh Bansal (supra). However, in the findings

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of the ld. CIT(A), he has not discussed the sanctity and the applicability of section 292B of the Act in the case of the assessee. The ld. CIT(A) has not brought out specifically through speaking order as to why the provision of section 68 would be converted to section 69A by merely resorting to section 292B of the Act. The ld. CIT(A) has also not adjudicated upon the observations of the Hon’ble Delhi High Court which was placed before him for consideration.

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itself. The ld. CIT(A) while re-adjudicating the issue shall comply with the principles of natural justice.

Order pronounced in the open Court on this 19th day of October 2022.

Sd/- (PARTHA SARATHI CHAUDHURY) JUDICIAL MEMBER Pune; Dated, this 19th day of October 2022 Ankam Copy of the Order forwarded to :

/// TRUE COPY ///

16 ITA 1850 of 2019 Kalpesh R. Gardharia A.Y. 2010-11 Date 1 Draft dictated on 18-10-2022 Sr.PS 2 Draft placed before author 19-10-2022 Sr.PS 3 Draft proposed and placed JM/AM before the second Member 4 Draft discussed/approved by AM/JM second Member 5 Approved draft comes to the Sr. Sr.PS/PS PS/PS 6 Kept for pronouncement on 19-10-2022 Sr.PS/PS 7 Date of uploading of order 19-10-2022 Sr.PS/PS 8 File sent to Bench Clerk 19-10-2022 Sr.PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order