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TMI Blog2021 (10) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... sment was completed U/s 147 r.w.s. 143(3) vide order dated 23.10.2015 at an assessed income of Rs. 15,77,550/- by making addition of Rs. 14,97,600/- U/s 69A of the IT Act. 3. Being aggrieved, the assessee carried the matter in appeal before the ld. CIT(A) who has since confirmed the addition so made by the Assessing Officer. Again the said findings and order of the ld CIT(A), the assessee is now in appeal before us. 4. In ground No. 1 & 2, the assessee has challenged the assumption of jurisdiction by the Assessing officer U/s 147 of the Act. 5. In this regard, the ld. AR submitted that the law mandatorily requires the Assessing officer to obtain prior approval of the PCCIT/CCIT/CIT before issuance of notice u/s 148, where such notice is issued after lapse of 4 years from the end of the relevant assessment year and from the JCIT in case the notice u/s 148 is issued before 4 years from the end of the relevant assessment year. It was submitted that it is also established principle of law that if a particular authority has been designated to record his/her satisfaction on any particular issue, then it is that authority alone who should apply his/her independent mind to record his/he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rival contentions and perused the material available on record. The proposition which has been advanced by the ld A/R and raised for our consideration is that the Assessing officer has failed to sought the authorization from the relevant and competent authority prior to issuance of notice u/s 148 of the Act and the impugned notice u/s 148 and the consequently, the assessment order passed u/s 147 therefore be quashed and set-aside. What is therefore required to be seen is the law as applicable prior to the issuance of notice u/s 148 and requirement therein in terms of authority which was competent to authorize the issuance of such notice. 10. It is noted that the provisions of section 151 have undergone a change and substituted by the Finance Act, 2015, w.e.f. 1.06.2015. Undisputedly, in the instant case, the notice U/s 147 of the Act was issued on 18.03.2015 and in terms of unamended law as existing prior to issuance of notice u/s 148 and applicable in the instant case, the provisions of section 151 read as under:- "151. Sanction for issue of notice.-(1) In a case where an assessment under sub-section (3) of section 143 or section 147 has been made for the relevant assessment y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment year is apparently guided by the amended law which, as we have noted above, is made effective by the legislature w.e.f 1.06.2015 and there is nothing in law which provides that the same will be applicable retrospectively. The amended law is not applicable in the instant case as it is a settled legal proposition that the law as applicable on the date of issuance of notice has to be seen and not the law which has been amended subsequently as the authorization of the competent authority has to be obtained prior to issuance of such notice and not post-facto and it is only the authority who is competent at the relevant point in time which can authorize such action. Therefore, the contention so advanced cannot be accepted. 13. We have also gone through the decision of the Hon'ble Rajasthan High Court in case of Dhadda Exports (supra) heavily relied upon by the ld A/R. In that case, the facts of the case were that the original assessment was completed u/s 143(3) and thereafter, notice u/s 148 was issued after expiry of four years from the end of the relevant assessment year and in terms of proviso to section 151(1), the approval of CCIT or CIT has to be taken whereas the AO had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot curable by recourse to Section 292B of the IT Act." 14. In the instant case, as against provisions of section 151(1) read with proviso thereto, the provisions of section 151(2) are applicable as no assessment has been completed earlier either u/s 143(3) or section 147 and in terms of mandatory condition prescribed under section 151(2), the Assessing officer has duly sought and obtained approval from the JCIT who was the competent authority as so prescribed under law before issuance of notice u/s 148 of the Act. This is thus no oversight on part of the Assessing officer and no inherent lacunae affecting the very correctness of the notice issued under Section 148 of the Act. Therefore, the said decision is distinguishable on facts and doesn't support the case of the assessee. Similar is the case with the other decisions relied upon by the ld A/R which stand distinguishable on facts. Therefore, the contention so advanced by the ld A/R cannot be accepted and the same is hereby dismissed. 15. Another contention which has been raised by the ld A/R is that a specific request was made to the AO vide letter dated 10.01.2017 to supply copy of the reasons recorded prior to issuance of no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries made therein. The AO tabulated self-explanatory chart of such deposits at pg 2 & 3 of the assessment order. The explanations furnished w.r.t. various deposits, was accepted to the extent of Rs. 4 lakhs being the gifts received by the assessee from his father and also the advance of Rs. 4 lakhs received towards the sale of property G-8, Raj Plaza, Raja Park Shop, Jaipur. However, the explanation w.r.t. the remaining balance of Rs. 14,97,600/- was disbelieved and rejected as per chart below: S.No. Particulars Amount (Rs.) Source 1. Opening Balance 3,20,000/- Cash Book (AO Pg-3) 2. Deposited by Smt. Dimple (Wife of the assessee) out of her past savings) 6,00,000/- Home Tuitions, Cash Gifts received on Festivals Stridhan 3. Balance Amount (various amounts deposited in Bank). 5,77,600/- Out of Bank Withdrawals Total 14,97,600/- Accordingly, an amount of Rs. 14,97,600/- was added u/s 69A as unexplained income of the assessee for the given year. In the first appeal, the assessee filed detailed written submission dated 09.02.2017 and additional written submission dated 22.02.2017, however, the ld. CIT(A) summarily confirmed the addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unity. It is a matter of common knowledge in Sindhi community the parents and other relatives from both the sides are used to give handsome gifts to her daughter/daughter-in-law on various occasions. Moreover, ladies are bold and open minded and are normally engaged in some income earning activity. 25. It was submitted that there apart, she had been taking batch tuitions of the children upto 8th standard since last several years. Alist of students was submitted. The ld. AO rejected the contention simply saying that it seems to be an afterthought story, which is not at all a valid ground to reject the explanation in as much as an evidence was submitted by the assessee which must have been rebutted or controverted by the AO and could not be ignored merely on suspicion. It is a fact that AO did not make any enquiry from any of the tutors / students even though their mobile numbers were given. In absence of categorical rebuttal of cogent evidence available on record, there is no scope of any assumption or presumption. In addition, she was in receipt of customary gifts from both the sides on different occasions, regular pin money, which could constitute her Stridhan, the very fact of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... full, the saving in the hand of the husband of around Rs. 3 lakhs (approx.) (Rs. 8.50 lakhs less Rs. 5.70 lakhs) was available for deposit. 29. It was submitted that the ld. AO completely ignored that it was not only deposits in the bank account but at the same time, the assesse also kept on making withdrawals from the same very bank account and the amount so withdrawn were certainly available with the assesse. The AO proceeded one way only completely ignoring the fact of withdrawal. Even assuming there was no evidence at all of the source, if the AO wanted to make use of the material i.e. bank account and the deposits made therein, such material must have been used in the best possible manner to make a best judgment assessment. If he could rely on a part of the evidence, which was used against the assesse, he couldn't have ignored the other part of the same very evidence, simply because that other part was to the favor of the assessee. Based on the same very bank account, a chart has been prepared which shows the continuous cash deposits and cash withdrawals leading to a peak of Rs. 16,66,100/- on dated 04.12.2007, out of which a sum of Rs. 8,00,000/- has been accepted by AO (bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explained through past savings and again were not supported by any evidences. As per the ITR filed for assessment year 2006-07 the assessee had only shown salary income of Rs. 84,000/- and income from other sources of 12,000/-, it is unimaginable how with such meager income, past savings of these amounts could be accumulated. As regards the alternate plea taken by the AR regarding the peak credit, firstly this theory would apply when the deposits made are from explained scources whereas in the case of the appellant, the major deposits have remained unexplained. Reliance is placed on the decision of [2012] 25 taxmann.com 440 (Delhi) in the ITAT, Delhi bench 'E' Manoj Kumar Jain vs. ITO, the head note is reproduce below:- "Section 69 of the Income-tax, 1961- unexplained investments - Assessment year 2006-07- where assessee could not explain source of amount deposited in bank, addition made under section 69 was justified [ in favour of Revenue] "Thus, it is clearly evident that the appellant could not explain the sources of the cash deposits made during the year in the savings bank account , the addition of the same as unexplained income under section 69A by the AO, is conforme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a mere explanation without reasonable corroboration with facts and figures remains merely an assertion and which cannot be accepted on face value. In the result, the explanation so submitted in support of source of deposit of Rs. 6 lacs cannot be accepted and is hereby dismissed. 35. Regarding the balance amount of Rs. 5.77 lacs, it has been claimed to be out of past savings. We find that where the assessee has already claimed deposits of Rs. 3.2 lacs out of opening cash in hand, the same is nothing the past savings which is available at the beginning of the year. In such a situation, we failed to understand how the assessee is claiming source of cash deposits out of opening cash in hands and past savings twice. In any case, no credible evidence has been placed on record in terms of past savings as so claimed and the contention so advanced is hereby dismissed. 36. Regarding alternate plea of working out the peak credit, it has been claimed that there are deposits which have been made out of earlier withdrawals during the year and the same has been ignored by the Assessing officer. In absence of any findings recorded by the AO, we set-aside the matter to the file of the AO to ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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