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TMI Blog2024 (10) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... ancial year. In this case although, the notice to show cause clearly identified that the amount proposed to be added back was by invoking the provisions of Section 68 of the said Act and the petitioner on such premise had responded to the same, the final assessment order was passed by treating the same to be an unexplained money under Section 69A of the said Act. The revenue authorities had invoked the provisions of Section 69A add back Rs.1,50,45,00,000/- to the petitioner s income as unexplained money, no notice in this regard had been served prior to taking a decision. Language used in Section 69A of the said Act clearly required the assessee to be afforded with an opportunity to explain. As such, even if the respondents were of the opinion that in this case Section 69A of the said Act ought to be invoked, in my view the respondents ought to have at least prior to passing of the assessment order granted an opportunity to the petitioner to explain as to why the aforesaid sum of Rs.1,50,45,00,000/-should not be added back as an unexplained money under Section 69A of the said Act. In absence of any notice, the petitioner was obviously taken by surprise and was denied the opportunit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Act, however, despite the fact that the petitioner had explained the circumstances as to why such addition should not be made, the Faceless Assessing Unit by its order which is impugned in the present writ petition has added back the aforesaid amount as unexplained money under Section 69A of the said Act. By referring to the provisions of Section 68 and 69A of the said Act, it is submitted that the provisions stand independent of one another. The respondents having issued a show cause for adding back to the petitioner s income for a sum of Rs.1,50,45,00,000/-as unexplained cash credits under Section 68 of the said Act, could not have passed the final order by adding back the said amount as an unexplained money under Section 69A of the said Act, without affording the petitioner an opportunity to explain. According to Mr. Majumder, the aforesaid constitutes violation of principles of natural justice and as such, the statutory remedy in the form of an appeal cannot stand as a bar for this Court to entertain the present writ petition. By placing reliance on the judgment delivered by the Hon ble Supreme Court in the case of New Delhi Television Ltd. v. Deputy Commissioner of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income tax as the income of the assessee of that previous year. Provided that where the sum so credited consists of loan or borrowing or any such amount, by whatever name called, any explanation offered by such assessee shall be deemed to be not satisfactory, unless, (a) the person in whose name such credit is recorded in the books of such assessee also offers an explanation about the nature and source of such sum so credited; and (b) such explanation in the opinion of the Assessing Officer aforesaid has been found to be satisfactory: Provided further that where the assessee is a company, (not being a company in which the public are substantially interested) and the sum so credited consists of share application money, share capital, share premium or any such amount by whatever name called, any explanation offered by such assessee-company shall be deemed to be not satisfactory, unless (a) the person, being a resident in whose name such credit is recorded in the books of such company also offers an explanation about the nature and source of such sum so credited; and (b) such explanation in the opinion of the Assessing Officer aforesaid has been found to be satisfactory: Provided als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Act ought to be invoked, in my view the respondents ought to have at least prior to passing of the assessment order granted an opportunity to the petitioner to explain as to why the aforesaid sum of Rs.1,50,45,00,000/-should not be added back as an unexplained money under Section 69A of the said Act. In absence of any notice, the petitioner was obviously taken by surprise and was denied the opportunity to appropriately explain. The petitioner may or may not have any explanation to offer but the same is not for this Court to decide, nor could the respondents prejudge the same. I find that the Hon ble Supreme in the case of New Delhi Television (supra) in somewhat similar set of facts was of the view that although, the department may not be prevented from raising fresh ground which did not find place in the show cause notice, however, before a final decision is taken for the grounds which are not reflected in the show cause, the assessee must be put on notice and the assessee cannot be taken by surprise. To more fully appreciate the observations made by the Hon ble Supreme Court, the relevant paragraphs from the aforesaid judgment are extracted hereinbelow: 41. In our vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that we have not expressed any opinion on whether on facts of this case the revenue could take benefit of the second proviso or not. Therefore, the revenue may issue fresh notice taking benefit of the second proviso if otherwise permissible under law. We make it clear that both the parties shall be at liberty to raise all contentions with regard to the validity of such notice. 9. It is seen that although, the revenue authorities had invoked the provisions of Section 69A of the said Act to add back Rs.1,50,45,00,000/- to the petitioner s income as unexplained money, no notice in this regard had been served prior to taking a decision. 10. In view thereof, the determination made by the respondents as is reflected in the assessment order dated 20th March, 2024 stands vitiated by reasons of failure on the part of the revenue authorities to put the petitioner on notice in respect of addition under Section 69A of the said Act. Since, the above is violative of the principles of natural justice, the order impugned becomes unenforceable in law and is declared as such. However, since, the petitioner is now put on notice, I am of the view that the respondents should afford an opportunity to ..... 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