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TMI Blog2024 (10) TMI 851X X X X Extracts X X X X X X X X Extracts X X X X ..... s by the assesse for assessment year 2004-05 to 2010-11 and five cross appeals by the revenue for assessment year 2006-07 to 2010-11 directed against the composite order of CIT(A) dated 30.03.2014. For Assessment Year 2004-05 2. The assesse has raised following grounds of appeal: 1. On the facts and in the circumstances of the case, the assessment is bad-in-law, contrary to facts, without jurisdiction and void ab-initio liable to be quashed. 2. On the facts and in the circumstances of the case, the jurisdiction u/s 153C is void ab-initio. 3. On the facts and in the circumstances of the case, the Id. Commissioner of Income Tax (Appeals) was not justified in holding that any over and above (unaccounted) payment for purchases of immovable properties was made by the appellant and also thereby taking / estimating the value of investment at 3 times the registry value. 4. On the facts and in the circumstances of the case, the Id. Commissioner of Income Tax (Appeals) was not justified in holding that the nature and source of the deposits in cash in the following bank accounts of the appellant were not explained by the appellant and therefore not belonging to the appellant. S.No. Bank Accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... residence of Shri H.M. Joshi and Nirmala Joshi parents of the Arvind Joshi at residential premises bearing E-5/3, Arera Colony, Bhopa along with the office/business and residential premises of various associates of Arvind Joshi. During the course of search and seizure operations various documents related to the assessee and his family members consisting of Harsh Kohli (wife) Sahil Kohli(son) Seemant Kohli (son) as well as related to the business concern M/s. Jay Kay wine have been found and seized. Accordingly the AO issued notice u/s 153C of the Act on 19.01.2011 for A.Y. 2004-05 to 2009-10 asking the assesse to file the return of income. In response to notice u/s 153C the assesse filed return of income on 10.10.2011 for A.Y. 2004-05 to 2009-10 and also filed the regular return of income for A.Y. 2010-11 on 24.10.2011. The AO completed the assessment vide composite assessment order dated 30.12.2011 whereby the AO has made various additions in the hands of assessee for all these years on substantive and protective basis as the corresponding substantive additions were in the hands of Shri Arvind Joshi. The assesse challenged the action of the AO before the CIT(A) who has upheld the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd and copy of which is produced before the Tribunal. Thus, Ld. DR has submitted that once the order was handed over to the authorized person of the postal department for speed post booking under BNPL scheme on 30.12.2011 under the seal and signature of the postal department then the said order dated 30.12.2011 was issued on the same date and well within the period of limitation. In support of his contention he has relied upon the judgment of Hon'ble Gujarat High Court in case of Rajesh Sunderdas Vaswani v. Dy. CIT [2017] 88 taxmann.com 602/391 ITR 571 and submitted that the Hon'ble High Court has considered an identical situation where the department handed over parcel containing the order to be delivered to the assessee under the BNPL scheme of postal department to the authorized person of the postal department then the order was held to be issued well within period of limitation though it was served upon the assessee subsequently. Thus Ld. DR has submitted that when the order was passed and issued within the period of limitation then the subsequent registration/booking by the postal department and service on the assessee after the limitation period is irrelevant. 6. In r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opal on 30.12.2011. It is pertinent to note that under the scheme of Buy Now Pay Later (BNPL) the post office provides the facility for booking of business parcels/speed post at the place of customers giving bulk business. Under the scheme the post office is providing facility of collecting the articles from the business place of customers. The business parcel articles/speed post articles will be booked by the customers in consecutive serial numbers in triplicate list. The business parcel articles are handed over to the authorized official of post office with the list prepared in triplicate and the authorized officer will sign all three copies and one copy is returned to the customers. Thus, as per the scheme the copy which is produced by the AO is one of the triplicate copies of the articles prepared for handing over of these articles to the authorized person. Further in the office copy of the assessment order the AO has also made endorsement of the sending assessment order as under: 7.3 This fact is also recorded by the CIT(A) while discussing this issue in the impugned order in para 3.2 as under: 3.2 Appellant's submissions along with assessment order have been considered ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omers while handing over the articles in the list prepared in accordance with the booking general. Apart from the preprinted booking general leaves the post office is also provides corresponding sticker having bar code and speed post article number which is pasted on the envelop of the articles at the time of handing over the same to the authorized person. Thus, it is evident from the record that the AO handed over the assessment order to the authorized person of the postal department on 30.12.2011 which is within the period of limitation. In case in hand after taking these speed post articles by the authorized person of the post office the actual booking was registered on the system of the postal department on 02.01.2012 therefore, the time gap from collecting the articles from the Income Tax department and finally the booking done on the system will not alter the fact that the assessment order had already gone out of the control of the AO on 30.12.2011. The delay in booking the articles on the system of the post office may be due to the reason that the article was handed over on 30.12.2011 which was Friday and thereafter due to Saturday and Sunday the booking was finally done on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, impugned the notices under section 148 in relation to assessment year 2003-04, having been issued on 07.04.2010 which is clearly beyond the period of six years from the end of the relevant assessment year, are clearly barred by limitation and as such, cannot be sustained. 9. Thus the expression to issue used in the context of notice referred to in section 149 of the Act, it was interpreted that the date of issue of notice would be the date on which the the same was handed over for service to the proper officer i.e. in the present case the postal department. Since the income-tax department is covered by book now pay later scheme, the further observation of requirement of properly stamping envelope with adequate postal stamp, would not be germane.] 10. In this context, the crucial question would be, was the envelope containing the notice for reopening addressed to the petitioner, handed over to the postal department for delivery on 31.3.2015 as averred by the petitioner or as strongly contended by the petitioner, this happened only on 1.4.2015? In this context, the petitioner points out that the postal department had booked the post only on 1.4.2015. The certificate issued by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, etc. Notwithstanding the above, if it is considered that the same has not been handed over to the pick-up man on 31.03.2015, then how the initial of the said person puts on 31.03.2015 receiving the daks on 31.03.2015. This arrangement of pick-up man receiving the dak and putting his initial at the end of the noting of the articles is also confirmed by the noting of articles made on 30.03.2015 where the pick-up man has put his initial receiving the articles. The said initial is matched with the initial made on 31.03.2015. Further, the service of the impugned notice to the postal department through the pick-up man on 31.3.2015 is also confirmed that the same has been delivered along with other 23 articles and the same is in continuation of further speed post articles bearing Sr.No.25 to 39 on the same date which were booked directly by the staff of this office and proof of the same has been affixed on the outward register itself on the date of 31.03.2015. Here, it is pertinent to mention that the Sr. No. of the envelope containing the impugned notice is No.3 and thereafter, there were other speed post articles from 4 to 24 handed over to the pickup man and other speed post artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was handling of outward and inward registers in Tapal in addition to other work allotted by the Officer. 2. A pickup man of the Postal Department comes daily in the evening around 4 '0' clock to collect dak/ speed post on daily basis since many years. The acknowledgment slips of these daks are handed over on the next working day or the subsequent working days by the person of the Postal Department. This practice is being followed since last many years. 3. On 31.03.2015, dak bearing No. I to 24 as per outward Register were handed over to Shri N.A. Parmar, the pickup man/person authorized by the Postal Department who regularly comes to Aayakar Bhavan, Ahmedabad to collect Tapal which is the usual practice followed by the offices located in Aayakar Bhavan. 4. The receipts of these 24 dak handed over to the pickup man has been duly acknowledged by him by putting his signature/initial on the outward register on 31st March, 2015 itself. This practice of collecting daks and by putting signature in outward register (copy enclosed of 31st March, 2015) has been followed by the postal pickup man since last many years. 12. The documents also include a letter from the Assistant Postmas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n further tax appeals, if so need be and if so advised. In this context, we may refer to decision of CIT v. Chhabil Dass Agarwal [2013] 36 taxmann.com 36/261 CTR 113/357 ITR 357/217 Taxman 143 (SC), where in it was held as under: 15. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that nonentertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of selfimposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. v. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. v. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remise Date of search Issued by 1 Shri Arvind Joshi, Smt. Tinno Joshi, Ishan Joshi Asmi Joshi D-19, 74 Banglows Bhopal 4.2.2010 DIT (inv) MP CG 2 Shri H.M. Joshi, Nirmala Joshi, Ishan Asmi Joshi R-5/3 Arera Colony Bhopal 4.2.2010 DIT (inv) MP CG 3 Shri H.M. Joshi, Tinno Joshi Locker No.51/41 State Bank of India PBB. Bhopal 8.2.2010 Add. DIT (Inv.) Bhopal 4 Shri H.M. Joshi, Nirmala Joshi Locker No.126, Sadguru Nagrik Sahkari Bank,E-5/13, Arera Colony Bhopal 9.2.2010 Add. DIT (Inv.) Bhopal 5 Shri H.M. Joshi, Nirmala Joshi Locker No.128, Sadguru Nagrik Sahkari Bank,E-5/13, Arera Colony Bhopal 9.2.2010 Add. DIT (Inv.) Bhopal 6 Shri H.M. Joshi, Nirmala Joshi, Tinno Joshi Locker No.204, Sadguru Nagrik Sahkari Bank,E-5/13, Arera Colony Bhopal 9.2.2010 Add. DIT (Inv.) Bhopal 7 Rajiv Joshi Anuradha Joshi Locker No.224, Sadguru Nagrik Sahkari Bank,E-5/13, Arera Colony Bhopal 3.3.2010 Add. DIT (Inv.) Bhopal 8 S.P. Sharma Locker No.179, Sadguru Nagrik Sahkari Bank,E-5/13, Arera Colony Bhopal 19.2.2010 Add. DIT (Inv.) Bhopal 7. All the cases of assesse, family members and other related/associates persons were centralized vide order u/s 127 of the Act passed by the CIT. The AO consequently issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under: 6. According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity in as much as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s already dealt with all these issues however at this stage we are not going into merits of the issue as the Ld. Sr. counsel has restricted his arguments only on the point of violation of principle of natural justice. The department has not disputed the fact as pointed out by the assesse that the statements were first time provided to the assesse along with assessment order being annexures to the assessment order. Therefore, having regard to the facts and circumstances when the report/statements of DSP Lokayukt MP has been obtained by the AO and the same was supplied to the assessee only after the assessment order was passed. We are of the opinion that there is a violation of principle of natural justice as the assesse was deprived of the information/evidence which was considered by the AO while passing the assessment order. It is incumbent on the assessing officer to disclose and confront to the assessee all the material on the basis of which he is going to pass the order. Similarly if the AO proposes to conduct an inquiry then he must communicate the same to the assesse about the outcome of such inquiry and information/evidence gathered as a result of such inquiry. The assesse ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intense situation. Therefore, he is not supposed to be perturbed or intimidated while answering the question at the time of statement recorded u/s 132(4) of the Act. Further there is nothing reflected either from the manner in which statement was recorded or the language of the question and answers recorded in the statements. To suggest any coercion from team.Therefore, in absence of any circumstances indicating any situation leading to disorientation or intimidation of Shri H.M. Joshi, the question of any coercion or undue pressure is completely ruled out. Further Shri H.M. Joshi is not a third person witness but he is one of the searched person and father of the assesse, managing all the alleged elicit income, investment and affairs of the certain concerns wherein the alleged investment was made by the assesse. Therefore, to the extent of the objection against the statement of Shri H.M. Joshi we do not find any merit or substance. However, it is a matter of consideration while deciding the merits of the addition whether the statement of Shri H.M. Joshi can be a basis of addition or not. 14. The next objection of the Ld. Sr. counsel for the assesse is regarding the report of hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax Act. Accordingly in the interest of justice we set aside the impugned composite order of the CIT(A) and remand the matter to the record of the AO to allow the assesse to cross examination of the witnesses whose statements were recorded in the proceedings under the income Tax Act including the assessment proceedings and also give the opportunity to the assessee to revert and meet the reports and other evidences collected by the AO and used against the assesse in the assessment proceedings but were supplied only after the assessment was completed. Since the AO has passed the composite order for all the assessment years 2004 to 2010-11 using the same evidence and statements. Therefore, the matters for assessment years 2004-05 to 2010-11 are set aside to the record of the AO for re-adjudication as per the directions above. 9.1 Accordingly when the issue is common and over lapping in the assessment of the assessee as well as in the assessment of Shri Arvind Joshi then the matter regarding the addition made by the AO in the hands of the assessee on protective basis as well as otherwise are required to be reconsidered in the light of the outcome of the set aside proceeding in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us for fresh adjudication. Accordingly this issue is remanded to the record of the AO for proper verification and adjudication. 12. For A.Ys. 2005-06 to 2010-11 the assessee has raised identical grounds. Ground no.1 2 are regarding the validity of the assessment framed u/s 153C being barred by limitation. This issue has been considered and decided by us for A.Y.2004-05 and accordingly ground no.1 2 of the assessee's appeals for all the assessment years stands dismissed. 13. The other grounds on the merits of the addition has been considered and decided for A.Y. 2004-05. Accordingly in view of our decision for A.Y. 2004-05 all these grounds are set aside to the record of the AO for fresh adjudication on same terms and directions. 14. In the cross appeals the revenue has raised identical ground except the quantum of addition deleted by the CIT(A). Since the issue involved in the assessee's appeals have been remanded to the record of the AO therefore, in the interest of justice the issue raised in the revenue's appeals are also set aside to the record of the AO for set aside on same terms and directions. 15. In the result, these cross appeals in IT(SS)ANo.185 to 191/Ind/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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