TMI Blog2020 (3) TMI 682X X X X Extracts X X X X X X X X Extracts X X X X ..... with penalty show-cause notice under section 271(1)(b) of the Act dated 24.08.2016 - Decided against assessee Addition being investment in purchase of immovable property - only evidence relied upon is the registered sale deed - HELD THAT:- We find that there is a valid registered sale deed dated 22.12.2008 which has come on record and same is sought to be disapproved through oral evidence being plain paper signed by some villagers to say that the assessee was adopted daughter. CIT (A) has rightly held that such a recourse is not permitted in law as per provisions contained in chapter VI of Indian Evidence Act, 1872, which prohibits admission of oral evidence to contradict contents of a contract reduced in writing and registered as per law subject to certain exceptions like fraud, misrepresentation etc. It is not the case of the assessee that the contents of the sale deed were ambiguous or of such a nature which required elaboration or clarification through oral evidence. Nor she has alleged any fraud, misrepresentation, intimidation, or want of due execution or want of capacity in any executing party, or failure of consideration, or mistake in fact of law. The contention of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... land she got from real aunt, the ld. CIT (A) was not justified in confirming the addition of ₹ 54,79,710/- as made by the ITO, simply swayed by the mere recital made in the sale deed by the deed writer. 5. That on the face of credible evidence filed before the ld. CIT (A) to prove that the assessee being adopted daughter had not paid any money to her Aunt, she was not right in rejecting the said evidence, by simply relying upon the recital made in sale deed by drawing support from the provisions of Indian Evidence Act. 6. That there being no cogent evidence brought on record by the revenue establishing actual payment of money by the assessee to her real Aunt, a mere mention in the sale deed was not enough to take a view against the assessee, without appreciating the attendant facts and circumstances in totality. 3. Ground No.1 to 3: relates to non-service of notice under section 148 of the Act and assumption of jurisdiction under section 148 of the Act, when the pre-requisitefor such action were not satisfied. Hence, these are being considered together. 4. Succinct facts of the case are that the assessee is individual. There was an AIR information in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-living house and inhabitant place of the assessee and/or her family members and permanently locked out as no one stays there for a considerable time.Thus, it was contended that notice under section 148 was not issued and served upon proper address of the appellant. The AO has not made any effort to locate the present address of the appellant, therefore, the service of notice by affixture was not asper provisions of section 282 of the Act and the said notice was not served on the appellant in accordance with law. Hence, the assessment made in consequent thereto is not a valid assessment. Reliance was also made in the case of ITO v. Om Prakash Kukreja [2016] 70 taxmann.com 147 (Chandigarh-Trib), N Narayan Chetty v. ITO [1959] 35 ITR 388 (SC) and CIT V. Hotline International (P) Ltd. [2008] 296 ITR 333 (Delhi).However, Ld. CIT (A) observed that the case laws relied by the assessee are distinguishable on facts as each case has to be considered on its own facts. In the present case, an AIR information regarding non- PAN database was received. The said information was statutorily required to be reported by the Registering Authorities as per Rule 114C/11D of Income-Tax Rules, 1962 to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent on 13.10.2016, the assessment order and demand notice were also sent to the same address. The present appeal was filed on 13.12.2016 i.e. within two months from the completion of assessment. It shows that the address of the appellant mentioned in in the notice under section 148 of the Act as well as in the assessment order was correct and that the service was being duly getting conveyed to/reaching to the appellant. During appeal, it has been admitted by the ld. A.R. that the appellant is Non-resident Indian residing in Canada for the last 24 years and is having Canadian Citizenship. She visited India, acquired property for ₹ 54, 79,710, and got it registered without obtaining and quoting PAN, which is mandatory as per the provisions of Income Tax Act, 1961. Under these circumstances, it was not possible for the AO to trace her address in Canada and serve notice under section 148 of the Act on the appellant. Accordingly, the ld.CIT (A) held that said notice was rightly served by affixture at the last known address of the appellant as per the address mentioned in the registered sale deed. No address of Canada is mentioned in registered sale-deed. Therefore, the ld.CIT ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s as last known address could be obtained from registered sale deed executed by her and shown in the said registered sale deed. The learned D.R. further, placed reliance on the recent judgement of Hon`ble Supreme Court in the case of Pr.CIT v. M/s. I-Ven Interactive Limited [2019] 110 taxmann.com 332 (SC) / [2019] 418 ITR 662 (SC) wherein it was held that when scrutiny notice issued to assessee under section 143(2) at address available as per PAN database was justified as change in address had not been intimated to Assessing Officer.In such a circumstances, the only option available with the AO was to serve notice by affixture, which has been done in the presence of two respectable witnesses of the locality. 8. We have heard the rival submissions and perused the relevant material on record.We find that there was an AIR information regarding Non-PAN case, was received by the AO. The said information was collected and statutorily reported by the Registering Authorities as per Rule 114C/11D of Income-Tax Rules, 1962, which is populated to the assessing authorities for proceedings under section 139A(5) and 139A(6) of the Act. The assessee has purchased an immovable property sit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which provides various modes of service and services, whichcan be made by any one of these modes. With regard to claim of the assessee that notice under section 148 of the Act was not received by it. However, the CIT (A) observed that consequent to completion of assessment on 13.10.2016, the assessment order and demand notice were also sent to the same address. The present appeal was filed on 13.12.2016 i.e. within two months from the completion of assessment. It shows that the address of the appellant mentioned in in the notice under section 148 of the Act as well as in the assessment order was correct and that the service was getting duly getting conveyed to/reaching to the appellant. We further find that the proposed A.R. of the assessee has made a request for adjournment vide letter dated 26.09.2016 before the AO against the penalty show-cause notice issued under section 271(1)(b) dated 24.08.2016 i.e. before completion of assessment under section 143 (3) read with section 147 /144 dated 13.10.2016 (Paper Book Page No. 1). This fact shows that the assessee was well aware of service of notice under section 148 of the Act made by affixture and assessment proceedings were going o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .12.2005 is not forthcoming. Neither the same was produced before the Assessing Officer nor even the same has been produced before this Court. In the affidavit also, filed in compliance with order dated 21.08.2019, the assessee has stated that the alleged communication dated 06.12.2005 is not available. Thus, the assessee has failed to prove the alleged communication dated 06.12.2005. The only document available is Form No.18 filed with the ROC. Filing of Form-18 with the ROC cannot be said to be an intimation to the Assessing Officer with respect to intimation of change in address. It appears that no application was made by the assessee to change the address in the PAN data base and in the PAN database the old address continued. Therefore, in absence of any intimation to the Assessing Officer with respect to change in address, the Assessing Officer was justified in issuing the notice at the address available as per the PAN database. Therefore, the Assessing Officer cannot be said to have committed any error and in fact the Assessing Officer was justified in sending the notice at the address as per the PAN database. If that is so, the notice dated 05.10.2007 can be said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oted that notices under Section 143(2) of the 1961 Act are issued on selection of case generated under automated system of the Department which picks up the address of the assessee from the database of the PAN. Therefore, the change of address in the database of PAN is must, in case of change in the name of the company and/or any change in the registered office or the corporate office and the same has to be intimated to the Registrar of Companies in the prescribed format (Form 18) and after completing with the said requirement, the assessee is required to approach the Department with the copy of the said document and the assessee is also required to make an application for change of address in the departmental database of PAN, which in the present case the assessee has failed to do so. 8. Now so far as the submission on behalf of the assessee that with respect to the Assessment Years 2004-05 and 2005-06, communications and the assessment orders were sent at the new address and therefore the Assessing Officer was in the knowledge of the new address is concerned, the same has been sufficiently explained by the Revenue. 9. In view of our findings, recorded herei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed that the assessee being a Non PAN case had purchased an immovable property for an amount of ₹ 54,79,710/- situated at village Chandidass, Tehsil Dasuya for an amount of ₹ 54,79,710, during the assessment year under consideration. This transaction was covered under Rule 114D of Income-Tax Rules, 1962 read with section 139A(5) of the Act hence, the information was mandatorily required to be sent to the assessing authorities. This transaction involved of immovable property, wherein quoting PAN is mandatory. No PAN was quoted by the assessee in the above transaction. The records revealed that no return of income for the assessment year under consideration was filed by the assessee. Hence, the source of investment in the impugned investment in could not be verified.Therefore, after recording reasons, a notice under section 148 of the Act was duly issued and served by affixture on the last known address as mentioned in the registered sale deed executed by the assessee. In spite of sufficient opportunity of being heard allowed, no details were filed to explain the source of investment in immovable property amounting to ₹ 54,79,710. Therefore, said investment of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst clear recitation in the registered sale deed, and the seller Smt. Naseeb Kaur was transferring ownership of land along with all attendant rights to the appellant Smt. Tirath Kaur and another person Smt. Joginder Kaur, in lieu of consideration of ₹ 1,04,28,000, half of which is ₹ 52,14,000. There are two witnesses to the registered sale deed. However, as mentioned in the registered sale deed, consideration was not paid at the time of registration in the presence of witnesses or Sub Registrar. The sale consideration is clearly mentioned in the registered sale deed to have been paid / received by the two parties at home prior to the registration. Hence, the only evidence relied upon is the registered sale deed. The contention of the appellant is that she is adopted daughter of the seller and sale deed was made without any consideration is at best in the domain of oral evidence and is therefore, not acceptable. Admittedly, there is no adoption deed, as she was not legally adopted under the Hindu Adoption and Maintenance Act, 1956.Further, vide sale deed; Smt. Naseeb Kaur has sold her land to two persons and not only to the appellant, who claimed to be the adopted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother person Smt. Joginder Kaur, in lieu of consideration of ₹ 1,04,28,000, half of which is ₹ 52,14,000 pertaining to the assessee. There are two witnesses to the registered sale deed. However, as mentioned in the registered sale deed that the consideration was not paid at the time of registration in the presence of two witnesses or Sub Registrar, but it was clearly mentioned in the sale deed that the sale consideration have been paid/received by the two parties at home prior to the registration. Hence, the only evidence which could be relied upon is the registered sale deed. The contention of the assessee that she is adopted daughter of the seller and sale deed was made without any consideration is not tenable in law in absence of any adoption deed under the Hindu Adoption and Maintenance Act, 1956 was furnished. Further, vide registered sale deed, Smt. Naseeb Kaur has sold her land to two persons and not only to the assessee but also to Smt. Joginder Kaur, if property was intended to be gifted then there was no necessity to transfer half part of same to another person by common sale deed. Further, such consideration was also received at home by the seller for ano ..... X X X X Extracts X X X X X X X X Extracts X X X X
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