LEELAVATI VIJAYKUMAR KOTECHA,,JALGAON vs. DEPUTY COMMISSIONER OF INCOME-TAX,,

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “B”, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S. S. VISWANETHRA RAVI, JUDICIAL MEMBER आयकर अपील सं. / ITA No.1296/PUN/2016 िनधा�रण वष� / Assessment Year: 2010-11 Leelavati Vijaykumar Vs. DCIT, Central Circle- Kotecha, 2(1), Nashik. 4, Teachers Colony, Ring Road, Jalgaon- 425001. PAN : ALVPK4435H Appellant Respondent Assessee by : Shri Bhupendra Shah Revenue by : Shri J. P. Chadraker Date of hearing : 21.03.2022 Date of pronouncement : 26.04.2022 आदेश / ORDER PER INTURI RAMA RAO, AM: This is an appeal filed by the assessee directed against the order of ld. Commissioner of Income Tax (Appeals)- 12, Pune [‘CIT(A)’ for short] dated 21.03.2016 for the assessment year 2010-11. 2. This is a recalled matter. The Tribunal in assessee’s own case vide ITA Nos.1294 to 1297/PUN/2016 for the assessment years 2007-08, 2008-09, 2010-11 and 2012-13, order dated 26.04.2018 had adjudicated the issue ex-parte and dismissed the above captioned appeal of the assessee. Thereafter, on Miscellaneous

2 ITA No.1296/PUN/2016 Application moved by the appellant, the Tribunal vide order dated 26.04.2018 recalled the matter for de-novo adjudication of appeal. 3. The appellant raised the following grounds of appeal :- “GROUNDS OF APPEAL. RELIEF PRAYED [ATTACHED TO FORM NO 36] 1. In the facts and circumstances of the case and in law, the learned Assessing Officer erred in passing the assessment order without having jurisdiction because, no opportunity of being heard was granted to the Appellant u/s 127 and also disregarding the objections raised u/s 292BB in this regard. 2. In facts and circumstance of the case and in law, the learned assessing officer erred in passing order u/s 153A r.w.s.144 even though no order u/s 127 was passed. Without prejudice to the above and alternatively under protest: 3. On facts and circumstance of the case and in law, the learned Assessing Officer erred in making routine additions / disallowances in assessment u/s 153A r.w.s. 144 in the absence of any incriminating material and without appreciating the fact that original assessment made u/s 143(1)(a) which is completed on the date of initiation of search get abated. 4. In the facts and circumstances of the case and in law the Assessing Officer erred in adding Rs. 47,12,511/- being advance received from Dipesh from sale of shares of Tapi Prestressed Products Ltd. u/s 68 by way of undisclosed cash credit in the bank account even though the Appellant is not liable to maintain books of accounts and therefore, section 68 does not apply and even though the source of Rs. 47,12,511/- was attributable to advance received from Dipesh as above said and the said explanation was rejected by the Assessing Officer even during the remand proceedings. 5. In the facts and circumstances of the case and in law, the Commissioner of Income Tax(A) erred in confirming above addition by overlooking explanations submitted to him and. 6. The Assessing Officer wrongly charged interest u/s 234A, B, C and D and initiated penalty u/s 271 (1)(b) . [C] Relief Prayed: The appellant therefore prays Your Honour; 1. To quash the assessment order passed u/s 144 r.w.s 153A only on the basis of order passed u/s 127 which itself is bad in law. 2. To delete the addition of Rs. 47,12,511/- wrongly made u/s 68. 3. To delete the interest charged u/s 234A, B, C and D and initiation of penalty u/s 271(1)(b).

3 ITA No.1296/PUN/2016 [D] General: - • The appellant reserve rights to add alter or delete any portion of this appeal before its conclusion. • This appeal is filed in time and may please be allowed in full. • A Detailed paper book along with case laws will be submitted at the time of hearing.” 4. Briefly, the facts of the case are that the appellant is an individual. The original return of income u/s 139 of the Income Tax Act, 1961 (‘the Act’) was filed on 16.11.2010 disclosing income of Rs.5,24,687/-. Subsequently, search and seizure operations were conducted in the business premises of the appellant on 09.08.2011 and certain incriminating material are stated to have been impounded. The jurisdiction of the case was transferred from Jalgaon to Nashik by an order passed u/s 127 on 02.12.2011. During the course of assessment proceedings, pursuant to the notice u/s 153A, the assessee had challenged the transfer of jurisdiction from Jalgaon to Nashik u/s 127 which was rejected by the Assessing Officer placing reliance on the provisions of section 292BB of the Act. During the course of assessment proceedings, the Assessing Officer had called for the statements of bank accounts held by the appellant, namely, Jalgaon Janta Sahakari Bank wherein, during the financial year 2009-10 it is found that the appellant made deposits to the tune of Rs.60,97,261/- and also earned interest of Rs.57,229/-. When the information is confronted to the appellant by the

4 ITA No.1296/PUN/2016 Assessing Officer, no explanation in support of the sources of cash deposits was offered. Therefore, the Assessing Officer brought to tax to the entire sum of Rs.60,97,261/- as unexplained cash deposits. 5. Being aggrieved by the assessment order, an appeal was filed before the ld. CIT(A), who vide impugned order had partly deleted the addition considering the remand report from the Assessing Officer that an amount of Rs.3,50,000/-, Rs.7,00,000/- and Rs.3,00,000/- were received from the company i.e. M/s. Mahavir Civil Engineering & Services Pvt. Ltd.. The confirmation letters from the said company were also filed by the assessee before the ld. CIT(A). As regards to the balance amount of Rs.47,12,511/- credited on 04.04.2009, it was submitted that during the course of proceedings before the ld. CIT(A) that the said amount was received from one Mr. Deepesh Motilal Kotecha through banking channel towards advance for sale of shares of Tapi Pre-stress Ltd.. However, on consideration of the confirmation letters so filed, the ld. CIT(A) confirmed the addition taking into account the fact that neither the shares were transferred nor was money refunded and the confirmation letters filed does not include the details like PAN or bank statements to establish the creditworthiness of Mr. Deepesh Motilal Kotecha.

5 ITA No.1296/PUN/2016 6. Being aggrieved by the above decision of the ld. CIT(A), the appellant is in appeal before us. 7. Before us, in an attempt to prove the genuineness, creditworthiness, identity of the loan creditors, ld. AR furnished the copies of returns of income filed by Mr. Dipesh Motilal Kotecha for the assessment year 2010-11 and also submitted that the said amount was received through banking channel. 8. On the other hand, ld. CIT-DR submitted that fact that amount was received through banking channel is not a sacrosanct, placing reliance on the decision of the Hon’ble Calcutta High Court in the case of CIT vs. Precision Finance (P.) Ltd., 208 ITR 465 and CIT vs. Korlay Trading Co. Ltd., 232 ITR 820. 9. We heard the rival submissions and perused the material on record. The ground of appeal no.2, 3 and 4 challenges the decision of the ld. CIT(A) confirming the addition of Rs.47,12,511/- received from one Mr. Deepesh Motilal Kotecha stated to have been received towards purchase of shares of Tapi Pre-stress Ltd.. Admittedly, the amount in question was received through cheque and during the course of proceedings before us, the appellant had also filed the copy of the return of income submitted by the said Mr. Deepesh Motilal Kotecha. Therefore, in our considered opinion, the ends of justice would be met, if the matter is remitted to the file of the

6 ITA No.1296/PUN/2016 Assessing Officer to examine the genuineness of the cash credit of Rs.47,12,511/- received from Mr. Deepesh Motilal Kotecha in the light of the additional evidence, confirmation letters submitted before us. Accordingly, the grounds of appeal no.2, 3 and 4 raised by the assessee are partly allowed for statistical purposes. 10. As regard to the other contention of the appellant that the Assessing Officer had no jurisdiction to pass the assessment order, as no opportunity was offered by the Commissioner of Income Tax- II, Nashik while passing the order u/s 127 of the Act, we are of the considered opinion that this issue cannot be agitated in assessment proceedings, as assessment proceedings are independent of proceedings under provisions of section 127 of Act. The proceedings u/s 127 are independent of the assessment proceedings, in the event an assessee is aggrieved by an order u/s 127, necessary remedy lies elsewhere as held by the Hon’ble Punjab & Haryana High Court in the case of Jaswinder Kaur Koover vs. CIT, 295 ITR 80. 11. It is trite law that an assessee is barred from raising contention that no opportunity was given to the assessee while transferring the jurisdiction of the case u/s 127 from Jalgaon to Nashik as the order of the transfer of case u/s 127 was within the knowledge of the assessee during the course of assessment proceedings and still the

7 ITA No.1296/PUN/2016 assessee had chosen not to participate in the matter of jurisdiction of the Assessing Officer to whom the case has been transferred. The assessee cannot be allowed latter to challenge the jurisdiction of the Assessing Officer as held by the Hon’ble Supreme Court in the case of Pannalal Binjraj vs. Union of India, 31 ITR 565 (SC) and the Hon’ble Gujarat High Court in the case of Shivabhai Khodabhai Patel vs. CIT, 244 ITR 457 (Guj.-HC). The Hon’ble Patna High Court in the case of Steel Engg. & Processing Works vs. Union of India, 243 ITR 721 (Pat.-HC) after referring to the judgement of the Hon’ble Supreme Court in the case of Pannalal Binjraj (supra) held to the same effect by holding as under :- “19. But this is not all. The facts as are emerging from the records of this case cannot be lost sight of, which have been elaborately pleaded and described by the respondent-revenue in its counter-affidavit and also in the reply affidavit to the rejoinder affidavit stating that the proceeding for transfer of the case from Patna to Ranchi was initiated at the instance of the petitioner-assessee himself and it was he, who suggested that the entire records and books of account are at Ranchi and so it will be convenient for him to co-operate with the assessment at Ranchi. Besides laches in approaching the Writ Court, the assessee- petitioner also submitted to the jurisdiction of the transferee authority at Ranchi. 20. This being so, the party once acquiesced to the jurisdiction of the transferee Court, all statutory rights which the assessee gets by virtue of section 127 vanish and, therefore, the assessee cannot assert that without affording opportunity as required under section 127, the case has been transferred. In this regard see Halsbury’s Laws of England, Vol. II, 3rd Ed., page 140, Pr. 265 and also the case in O.A.O.K. Lakshmanan Chettiar v. Commissioner, Corporation of Madras AIR 1927 Mad. 130, which are referred to in the decision in the case of Pannalal Binjraj v. Union of India [1957] 31 ITR 565 (SC). 21. In the case of Pannalal Binjraj (supra), which is a Constitution Bench decision, the Supreme Court lays down the law to the effect that, "if an assessee has acquiesced in the jurisdiction of the Income-tax

8 ITA No.1296/PUN/2016 Officer to whom a case has been transferred, he cannot subsequently object to the jurisdiction of the officer and seek to get the order of transfer quashed by invoking the jurisdiction of the Court under article 226 of the Constitution". 22. This being the law in respect of cases where the assessee has acquiesced to the jurisdiction of the transferee Court, the submissions made by Shri Bajla have no application in this case. The writ petition is, therefore, dismissed.” 12. In the light of above legal position, the objection raised by the assessee challenging the transfer of jurisdiction of the case does not stand the test of the law. Thus, this contention is devoid of any merit and, accordingly, we dismiss the same. 13. In the result, the appeal filed by the assessee stands partly allowed for statistical purposes. Order pronounced on this 26th day of April, 2022. Sd/- Sd/- (S. S. VISWANETHRA RAVI) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; �दनांक / Dated : 26th April, 2022. Sujeet आदेश क� �ितिलिप अ�ेिषत / Copy of the Order forwarded to : अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2. 3. The CIT(A)-12, Pune. 4. The Pr. CIT, Central, Nashik. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, “B” ब�च, 5. पुणे / DR, ITAT, “B” Bench, Pune. गाड� फ़ाइल/ Guard File. 6. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.