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TMI Blog2016 (1) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of the order u/s.143(3) without issue of notice u/s.143(2) and, thus, the impugned assessment, as bad in law: '1. The learned Assessing Officer erred in passing the order u/s.143(3) without issuance of proper notice u/s. 143(2) and thereof the order passed u/s. 143(3), is bad in law and needs to be set aside.' Though the words used in the Ground are: '... without issuance of proper notice u/s. 143(2).....', the ld. Authorized Representative (AR), the assessee's counsel, on enquiry, would contend non-issue of notice u/s. 143(2), so that by implication no notice there-under stood issued. As for the basis of this claim; no such objection having been raised before either the assessing authority or the first appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mercantile Bank, Vashi, Navi Mumbai, as: Rs.5,00,000/- on 12.06.2007 Rs. 25,000/- on 28.01.2008 The same was not found satisfactorily explained, i.e., as to its nature and source, and accordingly added to income and, further, confirmed by the ld. CIT(A) for the same reason. 5. Before me, the assessee's principal plea was that in-as-much as he is not running any business or profession, he does not maintain any books of account, so that no addition u/s.68, as effected, could be made. Further, on the merits of the addition, i.e., on the factual aspect, it was submitted that the assessee had cash withdrawal of Rs. 7.93 lacs and Rs. 2.20 lacs for the financial years 2005-06 and 2006-07 respectively, which would justify an opening cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rofession? Not maintaining of books of account, thus, would be of no assistance to the assessee. It is even otherwise trite law that the exercise of a power would be referable to a jurisdiction which conferred validity upon it and not to a jurisdiction under which it would be nugatory (refer: L. Hazarimal Kuthiala vs. ITO [1961] 41 ITR 12 (SC) As long as, therefore, the action of the A.O. has the sanction of law, it could matter little if he does not refer to the appropriate provision; the provisions of section 68 and sections 69/69A being even otherwise cognate provisions. The assessee's principal contention on merits is of the same being deposited from cash-in-hand. The same has not been accepted by the Revenue as, in that case, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand, if any, available. The assessee has not specified the cash required for house-hold and/or personal purposes, as well as toward investments, if any, made from f.y. 2005- 06 onwards, to have any purposeful assessment of the cash with him in June, 2007 and January, 2008, whereat excess cash of Rs. 3.50 lacs and Rs. 0.25 lacs is stated to be available. Further still, there is no explanation for cash received from friends and relatives when the assessee himself has surplus cash of Rs. 3.50 lacs. It is stated that the same is to cover the short-fall to honour a cheque of Rs. 5 lac, which though did not materialize. However, no details of this payment/investment are provided - to whom was the cheque issued/to be issued, and for what purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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