TMI Blog2019 (6) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... contra, the assessee cannot be allowed capital loss of ₹ 2.52 lacs, i.e., as claimed. Decide accordingly. Addition on account of credit entries in the assessee s bank account with PNB, Purani Mandi, Jammu - assessee, who claims the same to be dividend or interest from shares or debentures, exempt u/s. 10(34D), or, alternatively, maturity proceeds of UTI-MIP(IV), could not substantiate either with any document, resulting in the same being assessed as unexplained credit in her bank account, i.e., u/s. 69A, the assessee being admittedly in receipt of money to that extent, so that the onus to satisfactorily explain the nature and source of the same the said bank deposits, was on her - HELD THAT:- The bank account is not on record. The impugned deposits are in a bank account maintained at Jammu, where the assessee resides for the past several years now. There is nothing to show that the credits are from, as stated, UTI, in which case the assessee definitely has a case in-as-much as the same could only be a capital receipt (on redemption), or dividend, etc. There is no improvement in the assessee s case even before me, so that I am constrained not to interfere; the position of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The ld. Departmental Representative (DR) would object, placing reliance on the decision in Jai Hanuman Trading Co. v. CIT [1977] 110 ITR 36 (P H)(FB); CIT v. Sheo Kumari Devi [1986] 157 ITR 13 (Patna)(FB) to the effect that it is the issue of notice u/s. 148(1) that is relevant for the purpose, and not its service. The service of the notice after the expiry of the stipulated period was thus held as of no consequence. 4. I have heard the parties, and perused the material on record. There is, to begin with, nothing on record to exhibit that the notice was not served on 31.3.2011, i.e., as stated in the assessment order, but on 04.4.2011, whereupon only the assessee s legal ground becomes eligible for being admitted. So, however, the notice dated 31.3.2011, even if sent per speed post on the same date, could not in the ordinary course be served on the same day. The date (04.4.2011) accordingly appears correct, and the Revenue not bringing any material on record to exhibit that the notice was indeed served on 31.03.2011. The plea is accordingly admitted. On merits, however, the same only needs to be stated to be rejected, being in in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said sale transaction. The explanation being unsubstantiated, was not found satisfactory by the Assessing Officer (AO). The cash received, stated to be deposited in the bank account of Shyam Puri (HUF) was also protectively assessed in its hands u/s. 69A. 5.2 The addition for ₹ 16 lacs, substantively made in the assessee s hands, was, however, deleted in appeal by the first appellate authority against its protective assessment in the case of Shyam Puri (HUF) (vide order dated 05.02.2013 / PB pgs. 74-83), holding as under: The sale transactions of property at Srinagar and of gold have been shown in her return of income for A.Y. 2004-05. In the assessment order of Mrs. Mohini Puri dated 29.12.2011 for AY 2004-05, the AO has taxed in para no. 4, the entire receipt of ₹ 16 lacs in her hand. Therefore this amount can not be taxed again in the present case. Both the sources either opening balance from withdrawal from PNB/SB/8248 or the sale proceeds of property and gold was adequate to explain the deposit of ₹ 18,30,000/-. Even if erstwhile AR of the appellant faultered in explaining as to whether it was from X sourc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lding as under: Regarding the addition on account of bogus sale of godown at ₹ 6 lakhs, the appellant has given the detailed account of the circumstances in which the head of the family was killed and entire family had to shift from Srinagar to Jammu. He has also given the details of how distress sale was made and the cash amount of ₹ 6 lakhs received on account of sale of godown was deposited on 16/10/2004 in the presence of brokers in account no. 3386000100086690 Pnb Nehru Market, Jammu. Copy of bank statement was also enclosed by the appellant as annexure 4. Considering the facts and circumstances of the case, the addition made on this count is also deleted. It was, accordingly, argued by Sh. Arora that a similar view be adopted in the instant case as well, particularly as the Revenue has not appealed against the order in the case of Shyam Puri (HUF) . The addition, it was further submitted, could not be sustained as section 68, which had been invoked, could not be in the absence of the assessee maintaining any books of account. The Revenue s case, on the other hand, is that transaction of sale of shop cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee s son) shop is accepted, it would, subject to validation of computation, not commented upon at any stage, lead to her incurring a capital loss by the assessee. If, on the hand, not accepted, there is no evidence of such receipt by the assessee. For section 68 to be invoked there should be a credit in the assessee s books of account, which are again non-existent. The acceptance of the sum being received from the assessee, i.e., in the case of Shyam Puri (HUF) , cannot operate to prejudice the assessee as the assessee is not a party to those proceedings. True, the assesssee cannot take a different stand in her case, and the principle of approbate and reprobate, applicable to tax proceedings, apply, so that the receipt by the assessee is admitted. But then, where so, the assessee s explanation would in that case have to be accepted in full, i.e., of it being the sale proceed by her sons shop. Her explanation cannot be accepted in part. In fact, matters are to be decided on the basis of evidence. It is for such reasons, that it is oft-stated by the higher courts of law that the substantive and protective assessments are heard and decided together by the appellate authorities. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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