9911796707
TMI Blog2023 (6) TMI 1128X X X X Extracts X X X X X X X X Extracts X X X X ..... mandatory notices u/s 143(2) and 142(1) of the Income Tax Act, 1961. 4. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not deleting order passed by A.O an ex-parte assessment order u/s 144 and that too without giving show cause notices as per law and without giving adequate opportunity to the assessee. 5. That in any case and in any view of the matter, action of Ld. AO in passing an ex-parte assessment order u/s 144 is illegal, bad in law and against the facts and circumstances of the case. 6. That having regard to the facts and circumstances of the case, Ld. CIT has erred in law and on facts in not deleting addition as done by A.O. aggregate addition of Rs. 69,67,000/- on account of cash deposits in bank account of assessee by treating it as alleged income from undisclosed sources u/s 69 and that too by recording incorrect facts and findings and without giving adequate opportunity of hearing and without granting the opportunity of cross examination of the entire material used against the assessee and without observing the principles of natural justice. 7. That in any case and in any view of the matter, action of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er consideration, the assessee has shown income from house property of Rs. 2,60,400/-, Long Term Capital Gain of Rs. 87,188/- and Income from other sources of Rs. 1,99,462/-. As per information available with the A.O. during the year under consideration, the assessee deposited cash amounting to Rs. 69,67,000/- in her various saving bank accounts. The assessee was asked to establish the source of these cash deposited in her saving bank accounts. But the assessee was unable to produce any reply regarding the source of these deposits, Accordingly, the amount of Rs. 69,67,000 has been taken as income from undisclosed sources and added by the A.O. to the income of the assessee as per provisions of section 69 of the I.T. Act. 7. During the appellate proceedings while dismissing the appeal filed by the assessee, the Ld. CIT(A) has held as under:- "7. Further, in the said cash book substantial amount of cash is shown to have been received from N.K. Sharma (son), Renu Sharma (daughter) and Madhu Sharma (daughter) but despite the specific query raised to the Ld. Counsel for the appellant as to the source of money in the hands of those three persons and whether they had disclosed the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s trite that she who makes the claim has to prove the same and if the appellant is denying its liability in the teeth of the material evidence brought on the record it is the appellant who has to lead the evidence to corroborate its denial. As no such evidence has been laid by the appellant or the evidence led by the appellant being the alleged cash book has no evidentiary value this ground of the appellant has no merit and is therefore, rejected. 10 The second is regarding alleged non service of notice by the Ld. appellant u/s 143(2) and 142(1) of I.T. Act, 1961. The ground taken by the appellant is absurd and purely an afterthought as the appellant has entered appearance before the Ld. AO through her son Sri Sanjay Sharma and no such ground was raised by the appellant regarding non receipt of any such notice. In any case, the Ld. AO has recorded in the impugned assessment order that notice u/s 143(2) of I.T. Act, 1961 were issued and served upon the appellant on 28.08.2015. The notice u/s 142(1) along with questionnaire were issued and served on the appellant on 12.08.2016 and 31.10.2016. All the notices were sent to the appellant by the speed post of the postal authorities as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground. The material relied upon against a defendant is rebutted not cross examined. The cross examination is done only of a Witness. In the instant case, the Ld. AO has not relied upon any witness but has framed the impugned assessment order with reference to the material on its record. Therefore, there were no questions of any cross examination. As far as the material relied upon by the Ld. AO is concerned, the same was the material of the appellant herself being the bank statements of her bank accounts which were very much in her knowledge and possession. The Ld. AO disclosed its reliance on the admitted documents of the appellant and if the appellant was denying its own documents the onus on her to prove that the same were either not correct or were not reliable. Once the Ld. AO has shown that the documents belonged to the appellant and the appellant was not able to prove that the same were either incorrect or unreliable, the same became admitted and proved document qua the applicant and therefore, had to be relied upon by the revenue if that supported the case of the appellant. The AO has served upon the appellant all the necessary notices by post as well as by email and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank account is bad in law for having been made by the Ld. AO u/s 69 of I.T. Act, 1961. The provisions of Section 69 which has been invoked by the Ld. AO deals with unexplained investment by a tax payer. Perusal of the bank account of the appellant shows that the appellant has deposited unaccounted cash in her bank account and thereafter has taken the proceeds by closing the bank account itself in one bank account with the Union Bank of India and has regularly transfer the cash deposited in her bank account to some other bank account not claimed to be owned by her and therefore, the Ld. AO was not too far off from the correct position of law in treating such application of money as unaccounted investment. However, the more appropriate provision of law which is applicable to the facts of the case is the provision of Section 68 of I.T. Act, 1961 as money has been found to be credited to the accounts of the appellant and the explanation for the same is either not available or are woefully unsatisfactory. It is therefore, directed that the provisions of Section 68 of I.T. Act, 1961 would be applied against the appellant in respect of the unexplained cash deposited by her. In any case, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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