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TMI Blog2022 (9) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been faulted with by the Revenue. Considering the reply made before the AO as well as the CIT(A) on merits, it is seen that the occasion to make the addition or sustain it in appeal did not arise. The consistent evidence on record remains unrebutted. In the absence of any inconsistency in the assessee's claim and non rebuttal of supporting documents, the addition cannot be sustained arbitrarily. The addition is directed to be deleted. It is also seen that the assessee has raised jurisdictional challenge. On going through the facts available in the assessment order itself which have been extracted in the earlier part of this order it is seen that on the basis of which it has been pleaded that the notices issued at the incorrect address are non est. These have been elaborated at length while recording submissions advanced on behalf of the assessee, find that the bald finding arrived at by the ld. CIT(A) though does not inspire any confidence in the correctness of the conclusion drawn on assumption of jurisdiction, however, since the addition on merits has been deleted, the jurisdictional issue, accordingly, does not require any specific adjudication. Accordingly, the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not disputing the fact that notices as found mentioned in page 2 of the assessment order may have been sent. On each of these dates, it was submitted the remarks of the AO are that neither anybody attended nor any written communication has been received from the assessee. Thereafter, it was submitted that the AO s records in the order that the case was assigned to the concerned AO etc. and accordingly fresh notices were sent on 18.10.2017 for 25.10.2017 wherein again no one was present. It was submitted that thereafter, the AO records in his order However, on 27.10.2017 again notice u/s 142(1) issued for 06.11.2017 and duly served upon the assessee at her new address i.e. H.No.12, Housing Board Colony, Jind. In response thereto, Sh. K.K.Arora, ITP, A.R. of the assessee appeared and filed 'Power of Attorney', which is placed on records and case adjourned to 14.11.2017 .. It was his submission that the assessee in response thereto filed a reply as found mentioned at page 3 of the assessment order on 29.11.2017. 4. On the basis of this fact available on record itself, it was submitted that as per the record of the Assessing Officer himself, the earlier notices were sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the present case, we are of the considered view that the facts contained in the present case are similar to the facts which are contained in the case of CIT Vs. Chetan Gupta (Supra), therefore, we are of the view that the question of service of notice U/s 148 of the Act is a jurisdictional requirement. 13. As per the facts of the present case, admittedly no attempt was made by the revenue to serve a notice to the assessee at the address provided by him. The revenue was also made aware of this lapse, as the assessee while filing of its return has made a note therein it was mentioned that no notice U/s 148 was served upon the assessee and moreover, the assessee have also served a letter to the revenue thereby categorically mentioning that no service of notice was effected upon the assessee and even the revenue in his reply dated 07/11/2017 has no where mentioned that notice U/s 148 of the Act was ever served upon the assessee. Hence, merely participation of the assessee in the proceedings is not a waiver to the service of notice U/s 148 upon the assessee. As per record, prior to completion of reassessment, the assessee has raised a categorical objection that he has not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to bring on record any positive evidence to prove that the notice U/s 148 of the Act was served upon the assessee whereas the assessee has successfully placed on record letter dated 07/11/2017 issued by the department wherein it has no where been mentioned that the notice U/s 148 was ever served upon the assessee. In view of the above facts and circumstances, we can safely conclude that there was no 'proper service' of notice U/s 148 of the Act was effected in the present case before completion of reassessment u/s 147 r.w.s 143(3). Therefore, we set aside the orders of the lower authorities and quash the proceeding U/s 148 of the Act. This ground of appeal is allowed. 7. Attention was also invited to the decision dated 30.06.2015 of the ITAT, New Delhi Bench in the case of ITO Vs Ajay Pal Singh, New Delhi (placed at Paper Book pages 22 to 30) for similar proposition. 8. On merits, attention was invited to assessment order page 3 wherein the reply of the assessee has been extracted. The same is reproduced hereunder for the sake of completeness : 9. Relying on the same, it was submitted that the relevant documents were made available to the AO who conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is therefore requested that keeping in view the above stated facts. Kindly decide the case Oblige. Thanking You Sd/- Yours Faithfully Date:- 30.11.2017 Place:- Jind 11. Despite these facts and evidences, the Assessing Officer s action in making the addition was assailed. The reasoning for the addition assailed is extracted hereunder : 2. The facts necessary for adjudication of the case are that as per AIR information, generated through ITD Application, assessee has made cash deposits amounting Rs. 41.21,700/- into her saving bank accounts maintained with Punjab National Bank, during the financial year 2009-10 relevant to the assessment year 2010-11. The source of cash deposits so made has not been explained by the assessee in view of the position stated above. In the backdrop of these observations, I have no hesitation in arriving at a conclusion that the assessee has made the cash deposits amounting Rs.41,21,700/- in the saving bank account from her own undisclosed sources. Reliance is placed on the decision of Hon'ble Supreme Court rendered in the case of Roshan Di Hatti v/s CIT (1977) 107 ITR 938(SC), wherein it was held that :- The law is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... never reconciled these deposits of fees with her bank account entries. It is not even known whether these receipts have been included in the gross receipts or not. The college fee paid by the students, the receipt issued by the college to students subsequently cannot be completely relied upon. The submission of appellant that since she was the principal of college in M/s. Ram Narayan Institute of Education, Jind and her account was used for deposit of all fee receipt in cash it is not appears to be convincing. The appellant is not given any reason as to how the fees were taken only in cash and deposited in her bank account even though the college has a bank account in its name, Moreover the salary was paid to appellant through banking channel and she would be fully aware of the transactions in her account. It is pertinent to mention here that it is not a case of some illiterate person who is not aware of the transactions in her account but principal of an educational institution. In the light of the above discussed fact, the addition made by the AO is justified as the assessee has not been able to discharge the onus of proving the source of cash deposits in her account . 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee is owner of the money and it is not a case that it is not recorded in the books of account. As cash book recording that fees collected for the Institute from the students has been placed on record supported by copies of Receipt itself. Neither the cash book nor the copy of receipts issued have been faulted with. Accordingly, it was his submission that the two limbs of Section 69A are not attracted. Reliance was placed upon decision of the Apex Court in the case of CIT Vs Smt. P.K.Noorjahan (Paper Book page 19-21) and decision of the jurisdictional High Court in the case of CIT ors. Vs Jawahar Lal Oswal ors. (1-18). 15. It was also his submission referring to the CIT(A) s order that the assessee has been faulted for not being aware despite being literate that the fees received for the Institution should have been deposited in the bank account of the Institution and not in her own individual bank account. In response thereto, it was his submission that no doubt that the assessee is literate however, the assessee is not tax literate. Since on behalf of the Institution, she was collecting fees from the students, she was under bonafide belief that there is nothing w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g her to file 1TR online. It was submitted, that in hindsight, one can say that common sense dictates that the assessee should have deposited the fees collected on behalf of the Institution in the account of the Institution, however, the fact that she was not tax literate and was acting under bonafide belief that the students were joining on account of her own contacts and connectivity. However, it was his submission that what stopped the AO from issuing notices u/s 133(6) to any of the parties to verify if the correctness of the claim made all along was doubted. There is no evidence or fact available on record to refute that fees was not collected on behalf of the Institution. The Employer Certificate, the appointment letter, the fees received on behalf of the Institution and the Cash Book alongwith the bank account, all demonstrate these facts. 18.1 Accordingly, it was his submission that the addition both on assumption of jurisdiction and on merits deserves to be deleted. 19. I have heard the submissions and perused the material on record. The case laws relied upon have been taken into consideration. It is a fact that the assessee was appointed as a Lecturer at Ram Narain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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