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TMI Blog2025 (2) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... e following grounds of appeal: "1. That under the facts and the law, the Assessment order is void-ab-initio as the same has been passed without serving Notice u/s.148 and without allowing opportunity to the appellant opportunity to the Appellant to explain the case. 2. That under the facts and the law, the Ld. CIT (Appeals) erred in dismissing the ground that jurisdiction to assess the Appellant lies with the Assessing Officer, Korba and that the transfer of case u/s 127 from Ambikapur to Korba has been made without giving any opportunity to the Appellant. Prayed that the assessment has been made without jurisdiction as the place of business and residence of the Appellant is at Ramanujganj which is far away from Korba. Prayed to annul the Assessment Order. 3. That under the facts and the law, the Ld. CIT (Appeals) erred in dismissing the explanation that the cash deposited Rs.17,05,824 into bank was from business receipts from recharging of Mobile Phones and savings. Prayed to delete the addition of Rs.17,05,824/-. Prayed to delete the addition of Rs.17,05,824/-. 3. Shri G.S. Agrawal, Ld. Authorized Representative (for short 'AR') for the assessee, at the threshold, subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ambikapur to ITO-3, Korba without affording any opportunity of being heard to the assessee as was required per the mandate of law; (ii) that the A.O had grossly erred in law and facts of the case in framing the assessment u/s. 144 r.w.s. 147 of the Act in absence of any valid service of notice to the assessee; and (iii) that the A.O had grossly erred in law and facts of the case in treating the entire amount of Rs.17,05,824/- as the assessee's unexplained money u/s. 69A of the Act. However, the CIT(Appeals) did not find favour with the multi-facet contentions that were advanced by the assessee and upheld the addition made by him, observing as under: "7. Discussion and Decision I have gone through the Grounds of Appeal, Statement of Facts, assessment order, written submission along with supporting evidence, remand report of the AO and rejoinder provided by the appellant. The grounds of appeal filed by the appellant are being adjudicated are as under:- 7.1. Ground No. 01: The appellant has raised legal ground and has submitted in the appellate proceedings that the order of the Ld. AO is bad in law and facts, under presumption and surmises, arbitrary and deserves to AR are g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the appellant is not found to reside at the address available with the department, it is the appellant who had to change the address in e-filing portal, In this case the appellant failed to appellant had also not given his digital footprint his filing portal. That's why all the do so. Further the correspondences were made through the postal department on the address available with the department. 7.3.2 Reliance is placed on the Order of Hon'ble Supreme Court in the case of PCIT Vs. Iven Interactive Limited, 2019 418 ITR 662 (SC) wherein the Hon'ble Supreme Court has observed as follows. "Mere mentioning of the new address in the return of income without specifically intimating the Assessing Officer with respect to change of address and without getting the PAN database changed, is not enough and sufficient. In absence of any specific intimation to the Assessing Officer with respect to change in address and/or change in the name of the assessee, the Assessing Officer would be justified in sending the notice at the available address mentioned in the PAN database of the assessee, more particularly when the return has been filed under E-Modulo scheme. It is required to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 69A as unexplained income/money. 7.4.2. During the appellate proceedings, the appellant submitted response in which the appellant stated that he derived income from distributorship of recharge coupon and talk time coupon sale of Vodafone Cellular Co. Ltd. Further, he stated that the basic business model of mobile recharge business that local shops/Pan thela/Grumitwala and small retailers purchase talk time balance coupon "Known as Top-up from appellant and pay cash to the distributer. These retailers further recharge this value to Vodafone customers according to their needs say Rs. 10 to Rs. 2000 via scratch coupon or direct from mobile recharge method. At the end of day the appellant staffs collect cash from retailer and then deposited to bank account which is then further remitted through NEFT/RTGS to Vodafone Cellular Co. designated account. The Vodafone do gives commission to distributor for this service and deducts TDS as per provisions of Income Tax Act. Since Vodafone Essar merged with Idea Cellular Co and at present old Co is not in existence therefore now it's not possible for appellant to produce any documentary evidence/ confirmation from that Co. However, in bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ok is not sufficient to discharge the onus on the appellant in absence to supporting evidence to establish the source of cash deposited. The appellate further claimed that he had received commission from M/s. Vodafone Essar for retail marketing. However, on verification of 26AS, no such commission income was found received by the appellant. Thus, the genuineness of the cash deposit transactions cannot be conclusive found established or couldn't be verified based on submission made by the appellant in absence of any supporting concrete evidence. 7.4.5. Considering the above facts and circumstances, I am of the view that the appellant's supporting evidence does not substantiate the claim of the appellant at any stage. The appellant was given adequate and sufficient opportunities to prove genuineness of these transactions during the assessment proceedings, appellate proceedings and remand report but he failed to do so. The submission made during the appellate proceedings was not sufficient to establish the source of the cash deposits in bank accounts. Thus, the appellant failed to discharge onus casted upon him to establish the source of cash deposited in bank account beyond any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 127 of the Act. The Ld. AR had taken me through the observations of the CIT(Appeals) at Para 7.2.1. of his order. The Ld. AR submitted that as the assessee had not assailed before the CIT(Appeals) the order passed by the Pr. CIT-1, Bilaspur u/s. 127 of the Act but the validity of the jurisdiction that was assumed by the A.O for framing the impugned assessment vide his order passed u/s. 144 r.w.s. 147 of the Act, dated 16.12.2018 in absence of a valid order of transfer u/s. 127 of the Act, therefore, the CIT(Appeals) was obligated to have adjudicated the said grievance. 11. Smt. Anubhha Tah Goel, Ld. Sr. Departmental Representative (for short 'DR') relied on the orders of the lower authorities. The Ld. DR pursuant to the direction of the Tribunal had placed on record a report of the A.O. The Ld. DR submitted that the A.O. i.e. ITO-1, Ambikapur had filed his report dated 09.01.2025, wherein it is stated by him that the order passed by the Pr. CIT, Bilaspur dated 07.09.2018 could not be traced but a reference of the same is mentioned in the assessment order. The Ld. DR submitted that as the case of the assessee had been transferred pursuant to the order passed by the Pr. CIT, Bilasp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch reads as under: "127. (1) The Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, transfer any case from one or more Assessing Officers subordinate to him (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) also subordinate to him. (2) Where the Assessing Officer or Assessing Officers from whom the case is to be transferred and the Assessing Officer or Assessing Officers to whom the case is to be transferred are not subordinate to the same Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner,- (a) where the Principal Directors General or Directors General or Principal Chief Commissioners or Chief Commissioners or Principal Commissioners or Commissioners to whom such Assessing Officers are subordinate are in agreement, then the Princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction) and the offices of all such officers are not situated in the same city, locality or place., then he remains under a statutory obligation to give an opportunity of being heard to the assessee and only after recording his reasons for doing so, transfer such case from one or more Assessing Officers subordinate to him (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) also subordinate to him. As in the case of the present assessee before me, the case of the assessee had been transferred pursuant to the order of the Pr. CIT, Bilaspur dated 07.09.2018 from ITO- 1, Ambikapur to ITO-3, Korba i.e. offices of said officers are not situated in the same city, locality or place, therefore, on a conjoint reading of sub- section (1) and (3) of Section 127 of the Act, he was obligated to have given an opportunity to the assessee prior to transfer of his case. 16. Ostensibly, the assessee had specifically assailed the validity of the jurisdiction that was assumed by the A.O for framing the assessment vide his order passed u/s. 144 r.w.s. 147 of the Act, dated 16.12.2018, inter alia, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other contentions, based on which, the validity of the jurisdiction assumed by the A.O for initiating proceedings u/s. 147 of the Act as well as the merits of the addition had been raised before me, which, thus, are left open. 19. In the result, appeal of the assessee in ITA No.405/RPR/2024 for A.Y.2011-12 is allowed for statistical purposes in terms of the aforesaid observations. ITA No.404/RPR/2024 A.Y.2012-13 20. As the facts involved in the captioned appeal filed by the assessee remains the same as were there before me in the aforementioned ITA No.405/RPR/2024 for assessment year 2011-12, therefore, my order therein passed while disposing off the said appeal shall apply mutatis- mutandis for disposing off the captioned appeal, i.e., ITA No. 404/RPR/2024 for A.Y. 2012-13. In this case also, I restore the matter to the file of the CIT(Appeals) with similar directions as were recorded by me in ITA No.405/RPR/2024 for A.Y 2011-12. 21. In the result, appeal of the assessee in ITA No.404/RPR/2024 for A.Y.2012-13 is allowed for statistical purposes in terms of the aforesaid observations. 22. Resultantly, both the appeals filed by the assessee are allowed for statistical purpose ..... 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