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TMI Blog2021 (8) TMI 1207X X X X Extracts X X X X X X X X Extracts X X X X ..... In response to the notice, the assessee appeared before the assessing officer and submitted that the assessee is residing at house number 868 Krishna Nagar, Ludhiana. It was also submitted by her that she after marriage had started living along with husband had the above said address and therefore the notice issued by the assessing officer was not served upon the assessee. The assessee has sought the copy of the reasons to reopen and the copy of the reasons to reopen were provided to the assessee on 23 February 2013. In the assessment order the assessing officer has mentioned that". On 12.03.2013, the assessee moved an application stating as under: "we are to submit that we are in receipt of copy of reasons u/s. 147/148 and questionnaire dated 07.01.2013 of the Income Tax Act 1961 as issued by your goodself in connection with the subject as above and in reply there to it is submitted as under:- "As regard the reply of questionnaire will be produced on the next date of hearing. As regard, mentioning of agreement of sale consideration of Rs. 38157500/-, it is submitted that no such sale agreement was written. If there is any evidence On this issue please with your goodself th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand notice issued by the assessing officer dated 28 March 2013. The assessee has inspected the record of the assessing officer and the learned that the demand notice dated 28 March 2013 was sent at wrong address namely at 863 Krishna Nagar Ludhiana, whereas the assessee was living at house number 868 Krishna Nagar Ludhiana. 5. The assessee filed the appeal before the CIT(A) after a considerable delay of 1313 days, in the grounds of appeal before the learned CIT appeal it was mentioned by the assessee as under A. The above appeal is being filed by the Applicant on 05.12.2016 before the Learned Commissioner of Income Tax (Appeals) against the Impugned order. B. The appellant never received the impugned order due to the following reasons:- (a) The Applicant resides at Ludhiana and no one dwells at the following reasons:- (b) the present case proceedings were handled by the Applicants husband. However, he fell seriously ill due to liver and kidney problems. He remained in the hospital for a long time and ultimately demised in June 2016. In the meanwhile, owing to the disturbed atmosphere in the family, no one pursued the case properly and the Appellant had no knowledge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That the Bench on 05.07.2021 had directed the D.R. to produce the case record of the file and to verify whether the assessment order and the demand notice were served upon the assessee at the correct address or not? Thereafter the case was adjourned to 06.07.2021. 12. That on 06.07.2021, Shri Rahul Dhawan, CIT (D.R.) appeared before the Bench along with the record. He had submitted that he had verified from the record that the notices and the assessment order and the demand notice were sent at the wrong address. He had submitted that the in the interest of justice, the delay in filing the appeal before the CIT (Appeals) be condoned in accordance with law. However, it was submitted that in case the Bench wishes to hear the matter on merit, any short adjournment be granted. 13. We have heard the rival contentions of the parties and perused the material on record. The perusal of the material available on record and the paper book clearly shows that the assessing Officer had sent the demand notice at incorrect address which is clear from the demand notice and the envelope placed on record at page 17 and 18 of the paper book. Further, we also noticed that the demand notice was served ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... page 2, wherein the A.O. has reproduced as under:- 4 You have purchased property measuring 606.66 Sq. Yards in Krishna Nagar, Ludhiana vide two registration deeds on 23.10.2008. One plot measuring 288.66 Sq. Yards was registered in the name of your wife Smt. Parminder Kaur and other plot measuring 312 Sq. Yards in your name and in the name of your wife Smt. Parminder Kaur at a total purchase price of Rs. 64,10,000/, but as per agreement dated 9.5.2008 the sale consideration of this property is Rs. 3,17,47,450/- as against the registry value. You are requested to disclose the source of investment made at Rs. 3,17,47,450/- and Rs. 64,10,000/-." In response to this question the assessee, vide his reply dated 24.08.2011 stated as under: "As per alleged fake agreement of sale price has been mentioned as Rs. 45,000/- p.sq. Yard. If the calculation is made for the whole property measuring 606.5 sq. Yards, the value comes to Rs. 2,72,92,500/-, whereas in the agreement the total value of sale consideration of Rs. 45,000/- per Sq. Yard for 606.5 Sq. Yards has mentioned at Rs. 3,17,47,500/-. It clearly shows that this agreement filed by any person and provided to the assessee by your go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 47,500/-. It clearly shows that the agreement filed by any person and provided to the assessee by your goodself is clear vindication of forgery to put the assessee as well as department to unnecessary harassment." The assessee explained the source of investment before the Assessing Officer by producing three persons from whom said loans have been raised. The Assessing Officer recorded statement of Sh. Mohinder Singh S/o. Sh. Jagir Singh who stated before the Assessing Officer that he had paid Rs. 25 lacs to the assessee in lieu of his own share in the property. The deponent had however submitted in the affidavit said amount of Rs. 25 lacs had been given as loan to Dr. Satnam Singh. This clearly showed that the statement of Sh. Mohinder Singh was not reliable at all. The Assessing Officer also brought on record the fact of Sh. Mohinder Singh being a petty farmer having 3.25 Acres of land with seven family members to feed and therefore could not be in possession of an amount of Rs. 25 lacs in cash to either invest or to lend. In fact Sh. Mohinder Singh had stated before the Assessing Officer that the said amount of Rs. 25 lacs was loan taken by him from another family friend. The A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the said Rs. 64,00,000/- was paid in cash. He has drawn our attention to question No. 5 and 6 and their reply reproduced by the assessing Officer in the assessment order. The learned D.R. relied upon the order passed by the lower authorities. 24. We have heard the rival contentions of the parties and perused the material available on record. From the perusal of the assessment order passed in the case of late Shri Satnam Singh, husband of the assessee, it is abundantly clear that the agreement dated 09.05.2008 was considered to be fake agreement by the Assessing Officer. The above said fact was also mentioned and confirmed by the CIT (Appeals). However, the Assessing Officer had made the additions of Rs. 19,02,450/- and Rs. 27,50,000/- in the hands of Shri Satnam Singh. The Assessing Officer had made the addition of Rs. 19,02,450/- by giving the following reasons (page 4)- "In view of the above, it has become crystal clear that the evidence produced by assessee in the garb of an agriculturist Sh. Mohinder Singh is not genuine and unable to prove creditworthiness hence this evidence cannot be accepted. The fact is that the assessee himself has introduced his own income f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not rely upon the agreement dated 09.05.2008. In our considered opinion, any paper/evidence is required to be proved either by way of primary evidence or by a secondary evidence. In the present case, the document was merely a photo copy, which was not recovered from the possession of the assessee and the said photo copy was not even signed by the assessee. Therefore, the same is not admissible in law. 27. Further, the original of the photo copy was not confronted to the assessee. We are also of the opinion that even the statement of the other signatory on the agreement, namely, Man Preet Singh (witness), Shri Swarup Singh (seller) and Jaswinder Singh (witness) were not recorded by the Assessing Officer for the purpose of proving the undisclosed investment by the assessee or the transaction between the parties. In the light of the above, no addition can be made on the basis of the agreement dated 09.05.2008. 28. During the course of arguments, we have enquired from the learned A.R. to disclose the source of investment of the registered value of the property. However, the assessee had failed to disclose the source of investment. However, a brief synopsis in support of the contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istration deed on 23.10.2008 One plot measuring 288.66 Sq. Yards was registered in the name of your wife Smt. Parminder Kaur and other plot measuring 312 sq. yards in your own name and in the name of your wife Smt. Parminder Kaur at a total purchase price of Rs. 64,10,000/- but as per agreement dated 09.05.2008 the sale consideration of this property is Rs. 3,17,47,500/- as against the registry value. You are requested to disclose the source of investment made at Rs. 3,17,47,500/- and Rs. 64,10,000/-" 2. Though in the order of the assessee, it has been mentioned by the Assessing Officer, the source of Rs. 64.10 lacs have not been explained by the assessee, it is submitted that the total registered value of property was Rs. 64.10 lacs and, therefore, when the assessee's husband late Sh. Satnam Singh, has already owned-up the total investment in the plot and, he had been questioned before the DDIT, for full investment of the plot and, therefore, any addition of the investment of the plot in the hands of the assessee who is a widow lady cannot be made. 3. The reliance is being placed in the judgment of the Madras High Court in the case of H. Shahul Hameed vs. ACIT reported 025 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessee, as it is for the assessee to disclose the source of investment made by her in the property. Nothing has been disclosed and merely because the same was disclosed by the husband of the assessee, in our view, is no explanation in the eye of law as it is required to be independently tested and examined by the revenue authorities. Further, we are also of the opinion that in the assessment proceedings, the assessee has not submitted that the investment made by her to the tune of Rs. 19,02,450/- + Rs. 29,20,000/- =Rs. 48,22,450/- was made after borrowing it from the husband. In fact, it was the case of the husband that the consideration was paid in cash to the seller. The assessing Officer of the husband had made the addition of Rs. 19,02,450/- and Rs. 27,50,000/- in the hands of the assessee (on account of undisclosed cash deposit in the bank account).
32. As the assessee failed to disclose the source of investment of Rs. 48,22,450/- either before the Assessing Officer or before CIT or before us, therefore, we have no other option but to confirm the addition of Rs. 48,22,450/-.
33. In the result, the appeal is partly allowed. X X X X Extracts X X X X X X X X Extracts X X X X
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