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TMI Blog1976 (9) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessee from two firms and an interest income of Rs. 1,562 declared by the assessee, a sum of Rs. 10,000 treated as income from other sources. The Income-tax Officer observed that during the previous year, the assessee had invested a sum of Rs. 10,000 in the firm of Sawhney Finance Co. which had come into existence on 16th Jan., 1960, that the assessee who was specifically asked to furnish the source of the investment had merely stated that the investment had been made by withdrawing the amount from the other firm of M/s. Mehar Singh Amrik Singh in which the assessee was a partner and party out of savings but that the assessee had not been able to substantiate his claim by producing any documentary evidence. With these observation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince the assessee had a satisfactory explanation and could substantiate the same, he would be given another opportunity to put forward his case by remitting the matter to the Appellate Asstt. Commissioner for fresh disposal. He, however, vehemently contended that the reassessment proceedings were without jurisdiction. According to him the assessee had filed a return of income for the assessment year 1961- 62 as early as15th Dec, 1962. He submits that no assessment had been completed on the basis of this return. According to him, therefore, the proceedings under s. 148 were without jurisdiction. In support of his contention, shortage. Agarwal pointed out that according to the office copy of the return available with him, the return in respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under s. 148. This objection does appear to have been raised before the Income Tax Officer in a general way because the return under s. 148 is stated to have been filed under protest. The Departmental Representative is not in a position to verify the correctness of this statement but we have seen the office copy of the return with the assessee and we think that the contention that the return had been filed under protest is correct. Even before the Appellate Asstt. Commissioner, the assessee did raise the point that the assessment was illegal, though this aspect was not specifically emphasised in the grounds of appeal. The assessee did not appear before the Appellate Asstt. Commissioner and, therefore, it is not possible to say that this as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars to us, for the reasons already set out that in the circumstances of the present case, the objection raised by Sh. Agarwal cannot be stated to be a totally new ground of appeal. We may also point out that the objection raised is one which goes to the jurisdiction of the Income Tax Officer and affects the legality of the assessment which had been put in issue before the Appellate Asstt. Commissioner. It also does not require the investigation of any facts because all that is necessary to be found out is whether in fact the assessee had filed a return for this assessment year as claimed by him. This is only a matter of verification from the record of the Income Tax Department. Thus, after careful consideration of the decision of the Gujara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee in raising this ground of appeal is without substance. It is no doubt true that we are now in 1976 and the assessee is asking us to verify whether a return had been filed in 1962 or not, but this passage of time is not due to the fault of the assessee. If his contention is correct then he has filed a return as early as 1962 and it was the Department which did not take any action thereupon. It was only after 1970 when the notice under s. 148 was issued that the assessee would have the earliest occasion to put forward the pleas that the return had already been filed. He no doubt raised this objection only in 1972 when he filed the return under s.148. But in this case though the notice under s.148 had been served as early as2nd Apri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngth of time to ensure that the relevant records will be available as and when it becomes necessary to verify the same. We, therefore do not find much merit in the contention of Shri Lal that the grounds of appeal raised by Shri Agarwal should be rejected on the ground of the date on which the return is said to have been filed. 10. For the above reason, we set aside the order of the Appellate Asstt. Commissioner and restore the appeal before him for being disposed of this issue regarding the validity of proceedings under s. 148. We would, however, like to make it clear that so far as the merits of the addition are concerned the assessee had ample opportunity to put forward such evidence as he had in support of the explanation given for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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