TMI Blog1998 (3) TMI 188X X X X Extracts X X X X X X X X Extracts X X X X ..... he cited various case laws in his favour. The CIT(A) was satisfied with the contention of the assessee that no opportunity was given by the Assessing Officer to the assessee. Consequently, he restored the matter to the file of the Assessing Officer to give an opportunity to the assessee for explaining the same. Now the assessee is in appeal here before us. 3. The ld. A/R of the assessee submitted that the CIT(A) was not justified in restoring the matter to the file of the assessee to give an opportunity to the assessee because of in this way, the Department gets one opportunity which is wrong as this is against the principles of natural justice. While making the addition, it is mandatory that the assessee should be given an opportunity. The same was not given. Therefore, the CIT(A) should have deleted the additions instead of restoring the matter to the file of the Assessing officer. He placed reliance on the decisions cited before the CIT(A). On the other hand, the ld. D/R strongly relied upon the orders of the CIT(A). He further stated that as per the decision of the jurisdictional High Court, this issue cannot be decided on merits by the Tribunal as the CIT(A) has not given it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the A.Y. 1987-88 also. Similarly, as I held in the assessment order u/s 143(3) in the case of Shri Parvez Iraqi, for A.Y. 87-88, I hold the income in respect of unexplained cash credit of Rs. 15,551 (unidentified cheque) as the income of Shri Z.H. Iraqi out of his undisclosed sources. Similarly, as I held in the order u/s 143(3) for A.Y. 1985-86 of Shri Parvez Iraqi, I held the amount of Rs. 275 unexplained money u/s 69A of Shri Parvez Iraqi, as the income of Shri Z.H. Iraqi as income from undisclosed sources. These income from undisclosed sources, arising in the case of family members are treated as the income of Shri Z.H. Iraqi, from undisclosed sources, as one Shri Z.H. Iraqi, is considered capable of having income. Penalty notice u/s 271 (1)(a) is initiated on this point.' 8. Now we will see provisions of section 69A, which reads as under-. "69A : where in any financial year the assessee is found to be owner of any money, bullion, jewellery or other valuable article and such money, bullion, jewellery or valuable article is not recorded in the books of account, if any maintained by him for any source of income, and the assessee offers no explanation about the nature and sourc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him on the basis of the enquiry conducted by him u/s 142(3). As the order of the ITO was a nullity and the petitioner had no opportunity to object to the procedure which made the order a nullity, and the fact that he did not raise the objection in the appeal or revision should not be ground for exercising the discretion of the Court against the petitioner. The breach of natural justice is itself miscarriage of justice which enables the applicant to succeed." This order was confirmed by the D.B. in case of Addl. ITO v. Ponkunnam Traders, [1976] 102 ITR 366 (Ker.). 12. In the present case, the facts are similar, as the Assessing Officer did not offer any opportunity and on the basis of some observations made in the case of family members, he made an addition in the hands of the assessee by stating that the assessee is only capable to earn these incomes. 13. In case of CIT v. Sham Lal [1981] 127 ITR 816/ [1980] 4 Taxman 452, the Hon'ble Punjab and Haryana High Court has held that the only correct course open to the Tribunal was to annul the order passed by the ITO. The brief facts of the case were 'in certain re-assessments against the assessee, the ITO had included certain amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Here the facts are entirely different. Here is the question of principle of natural justice, which were violated by the Assessing Officer and they are not curable and, therefore, we arc of the view that the Assessing Officer passed an illegal order and the assessee is challenging the action of the CIT(A) regarding granting an opportunity to the Deptt. for rectifying a legal infirmity, regarding unexplained additions relating to others and discussed in others' orders which were made in the hands of the assessee without affording an opportunity. Therefore, we cancel the order to the CIT(A) and the Assessing Officer as the order of the Assessing Officer was ab initio void. 16. The ground No. 3 which relates to the sustenance of clubbing of the rental income of Rs. 11,283 of Mr. Afroz, minor son of the appellant. 17. Brief facts of the case are that the rental income of Rs. 11,283 was earned by Mr. Afroz, minor son of the appellant from the one-half portion of a house property at Prithvipura, Jodhpur which was purchased on 26-5-1986 for a consideration of Rs. 28,000 (Rs. 25,000 being purchase consideration and Rs. 3,000 being expenses) on behalf and for the benefits of Mr. Afroz, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as also noticed that the Assessing Officer or the CIT(A) has not made any observation that the money received as loan was not used in any way by Mr. Afroz or it was used by the assessee. We find weight in the contention of the ld. A/R that the appellant assisted his minor son as his natural guardian and did not take any kind of benefit from the aforesaid transactions. The minor son became legal as well as beneficial owner of the house property in question. We also find weight in the contention that no money was invested by the appellant in purchasing the house property in the name of his minor son. 22. In Prakash Narain v. CIT [1982] 134 ITR 364/6 Taxman 159 the Hon'ble Allahabad High Court has delivered the decision of benami transactions which a leading case. In this case, the Hon'ble Allahabad High Court has discussed the ratios of the various decisions of various High Courts and Supreme Court. Finally it was held that the burden of proof regarding benami is upon one who alleges benami. No absolute formula or acid test, uniformly applicable in all situations, can be laid down; yet, in weighing the probabilities and for gathering the relevant indica, the Courts are usually guid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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