9911796707
TMI Blog2007 (11) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... ,343, cash in hand Rs. 13,259 and jewellery of Rs. 14,88,884. The investment in jewellery, shares, loans and advances needs verification with supporting evidence. However, it is seen from the records that the assessee has not filed IT return for asst. yr. 1998-99. The source and evidence to the investment of Rs. 17,36,227 remained unexplained. I have, therefore, reason to believe that investment of Rs. 17,36,227 has escaped assessment." 3. The AO issued the notice dt. 6th Feb., 2003 through registered post to Raj Kumar Dugar (HUF). Another notice under s. 148 was issued on 26th Feb., 2003 and served upon the assessee on 1st March, 2003. Thereafter, the AO asked the assessee to .furnish the following documents/details : IT return for asst. yr. 1998-99. Details, source of investment and documentary evidence in respect of shares amounting to Rs. 10,00,000 loan and advances Rs. 2,47,343, cash in hand Rs. 13,259 and jewellery Rs. 14,88,884. 4. The AO noted that there was non-compliance on the part of the assessee despite various opportunities provided to him and that the wealth-tax assessment was also completed ex parte. Hence, he completed the assessment ex parte under s. 144 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that the assessee had not participated even in the wealth-tax assessment proceedings, as a result of which, an ex parte order was passed in the wealth-tax case too of the assessee. Thus, repeated non-compliance of various statutory notices on the part of the assessee and non-filing of the details called for by the AO show that it had deliberately avoided to have his investments investigated by the AOs under different proceedings, i.e. under IT as well as WT Acts. The additional evidence and the explanation being given now for the said investments at the appeal stage for the first time cannot be entertained in view of r. 46A of the IT Rules, 1962, specially in the background that the AO had given sufficient opportunity during the assessment proceedings to the appellant to explain his point of view but the assessee failed to avail of such opportunities. Hence, in view of the gross non-compliance on the part of the assessee, I hold that the AO was justified in passing the ex parte order determining the income of the assessee at Rs. 17,36,227 from undisclosed sources, and the same is upheld. The appellant's contention that the assessment order passed by the AO is null and void bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he return of income for asst. yr. 1998-99. In this regard the learned counsel has referred to the copy of the return of the assessee Raj Kumar Dugar (HUF) for asst. yr. 1998- 99 placed at pp. 7-10/PB, the copy of intimation under s. 143(1)(a) of IT Act for asst. yr. 1998-99 placed at p. 52/PB. The copy of the return bears the stamp of ITO Ward 16(6), New Delhi and the order under s. 143(1)(a) also bears the stamp of ITO 16(6), New Delhi. The learned counsel has pointed out that the facts of filing the return of income for asst. yr. 1998-99 and the order passed under s. 143(1)(a) have not been disputed in the remand report of the AO. The AO has merely stated in the remand report that the records of Shri Raj Kumar Dugar for asst. yr. 1998-99 are not traceable. Thus, the assumption of justification under s. 148 is on wrong facts. Hence, the same is not legally sustainable. A reliance in this regard has been placed upon the decision in the case of CIT vs. Atlas Cycle Industries (1989) 180 ITR 319 (P&H) and the decision of Tribunal 'C' Bench, New Delhi in ITA No. 5371/Del/2004, R.P. Gupta & Son (HUF) (asst. yr. 199697) dt. 23rd Sept., 2005. The learned counsel has further submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment completed ex parte vide order dt. 28th March, 2002. The said investments have been made in shares, loans and advances which need verification. The AO has also found that the assessee has not filed the return of income for asst. yr. 1998-99. It is seen that the said wealth-tax assessment dt. 28th March, 2002 has been made in the case of Raj Kumar Duggar (individual). Thus, the intention of the AO while recording the reason was for reopening the assessment of the individual. However, the notice under s. 148 has been issued to Shri Raj Kumar Duggar (HUF) for the asst. yr. 1998-99 a copy placed at p. 55/PB. Subsequently notice under s. 142(1) for asst. yr. 1998-99 has also been issued in the name of Shri Raj Kumar Duggar (HUF) (pp. 56-57). However, the AO passed the assessment order under s. 144 of the IT Act in the hands of Shri Raj Kumar Duggar (individual). Thus, the reopening has been made in pursuance of notice under s. 148 of the Act issued in the status of Raj Kumar Duggar (HUF) whereas the assessment has been made in the status of Raj Kumar Duggar (individual). In our view, the IT Act recognizes the status of the HUF different from individual status of Karta of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Revenue is that during the proceedings under s. 25 of the WT Act the assessee did not explain as to where the return of wealth was filed which plea does not disapprove the above filing of return of income for asst. yr. 1998-99. In this connection, it may be mentioned that as per order passed under s. 25 of WT Act, the concerned AO of the assessee is AO, Ward 25(1), New Delhi whereas as per remand report (p. 51/PB) the concerned AO was AO, Ward 35(4), New Delhi. It appears that due to restructuring of the Revenue Department there were lot of changes in the jurisdiction of AO. Therefore, the filing of return of income for asst. yr. 1998-99 before AO, Ward 16(6), New Delhi cannot be doubted. Thus, we are of the view that the reopening has been done on the basis of the reason recorded on incorrect facts. That being so, the reasons are, in fact, no reasons at all. This view find support from the decision in the case of CIT vs. Atlas Cycle Industries (supra). Further, it is seen from the reason recorded that the purpose of reopening was to make verification of the investment made by the assessee. In the case of Manish Ajmera vs. Asstt. CIT (supra) it has been held that the assessm ..... 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