Subhash Chander v. Commissioner Of Income Tax, Rohtak

ITA No. 14 of 2015 (O & M) IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH ITA No. 14 of 2015 (O & M)Date of decision: 03.08.2015 Subhash Chander ....Petitioner(s) Versus Commissioner of Income Tax, Rohtak ...Respondent(s) CORAM: HON'BLE MR. JUSTICE S.J. VAZIFDAR, ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE G.S.SANDHAWALIA Present:Mr. Divya Suri, Advocate, for the appellant. Mr. Tajender K. Joshi, Advocate, for the respondent. S.J. VAZIFDAR, A.C.J. (Oral) C.M. No. 1311-CII of 2015 Application for condonation of delay of 18 days in refiling theappeal is allowed. Delay condoned. ITA No. 14 of 2015 1.This is an appeal against the order of the Tribunal dismissingthe appeal filed by the assessee against the order of the Commissioner ofIncome Tax (Appeals) [for short 'CIT (Appeals)'] which, in turn, had upheldthe assessment order. The matter pertains to the assessment year 1992-93. 2.The appellants contend that the following substantial questions of law arise:- “I.Whether, the Tribunal was justified inholding that the assessment framed u/s 143(3) of the Act is valid in law, as admittedly appellant has notcomplied with the notices issued u/s 142(1)(a) and 142(1)(b) of the Act, as such assessment should have beenframed u/s 144 as against section 143(3) of the IncomeTax Act, 1961? II.Whether the Tribunal was justified in lawin upholding the order of assessment framed undersection 143(3) of the Act by taking recourse of section292B of the Act? III.Whether, the Tribunal was justified in lawin upholding the order of CIT(A) who has merelyupheld the assessment order without independentlyrecording its own finding qua various grounds ofappeal raised? IV.Whether, the Tribunal was justified in lawin confirming the addition made of Rs.53,32,424/-without granting fair, proper & reasonable opportunityof being heard as without adhering to the principles ofthe natural justice? V.Whether, the Tribunal was justified in lawin upholding the addition made u/s 68 of the Act basedon the credits which are admittedly not in the regularbooks of accounts of the assessee? VI.Whether the Tribunal was justified in lawin upholding the addition made of Rs.30,05,592/- u/s 68of the Act by adopting the peak credit of the individualcreditor as against the peak credit of the all thecreditors together? VII.Whether the Tribunal was justified in lawin upholding the additions made in the assessmentorder which have been made purely on suspicion,surmises and conjectures & without bringing anycorroborative material? What was pressed before us essentially was that the assessment order was made under Section 143(3) of the Income Tax Act, 1961 (forshort 'the Act') whereas, it ought to have been made under Section 144 ofthe Act and not under Section 143(3). It is also contended that theappellants were not served with the necessary documents. VI.Whether the Tribunal was justified in lawin upholding the addition made of Rs.30,05,592/- u/s 68of the Act by adopting the peak credit of the individualcreditor as against the peak credit of the all thecreditors together? VII.Whether the Tribunal was justified in lawin upholding the additions made in the assessmentorder which have been made purely on suspicion,surmises and conjectures & without bringing anycorroborative material? What was pressed before us essentially was that the assessment order was made under Section 143(3) of the Income Tax Act, 1961 (forshort 'the Act') whereas, it ought to have been made under Section 144 ofthe Act and not under Section 143(3). It is also contended that theappellants were not served with the necessary documents. 4.The Assessing Officer, CIT (Appeals) and the Tribunal have, inconsiderable detail, indicated how the appellants have managed to prolongthese proceedings for several years. The contention that the documentswere not given and that the appellants did not have the benefit of thedocuments on which the assessment order was made is unfounded. Firstly,there was a survey on 13.02.1992 under Section 133A of the Act.Photocopies of four documents were taken. The documents were not seized.The record remained with the appellants. Four documents were put to theappellants. The appellants had the benefit of the documents including theoriginals thereof which remained with the appellants. The appellants' booksof accounts were also co-related with the returns filed. Discrepancies werefound. The appellants were not prejudiced in any manner on the ground ofthe relevant record not having been brought to their notice. As noted in theimpugned orders, the appellants were repeatedly given opportunities. Forinstance, by a letter dated 23.09.1997, the appellants were informed that thephotocopies of the documents could be collected by them from the office onany working day from 10.00 a.m. to 5.00 p.m upto 30.10.1997. Even thisletter could not be served through the process server. The Inspector of theIncome Tax department was deputed to ascertain the whereabouts of theappellants. The appellants mostly remained in Sirsa (Haryana) and visitedDelhi occasionally. Ultimately, the notice was sent through registered postto the appellants' Sirsa address and Delhi address. The appellants never collected the photocopies. A further letter dated 06.11.1997 was, therefore,sent to the appellants and the appellants were granted further time upto20.11.1997 to collect documents. 5.Notices were issued and questionnaires were served underSections 142(1) and 143(2) of the Act on 07.02.1998. Even thereafter, anopportunity was granted to collect the photocopies but the appellants did notavail of the same. Notices under Section 142(1) and 143(2) were againserved on 11.03.1998 and the hearing of the case was adjourned. Theappellants were informed that if they did not attend, the case would bedecided in their absence. 6.The respondents did contend that the appellants did notproduce certain documents. In the circumstances, it may well have beenopen to the appellants to proceed on the basis of Section 144 in view ofprovisions of Section 144(1)(b). Under Section 144(1)(b), the AssessingOfficer is entitled to make a best judgment assessment if the assessee failsto comply with all the terms of a notice issued under Section 142(1). 7.We will assume, therefore, that the Assessing Officer couldhave done so. However, despite the same, the Assessing Officer completedthe assessment under Section 143(3) on the basis of the informationprovided by the assessee. 8.We see no infirmity in the action taken by the AssessingOfficer. No substantial question of law arises. The appeal is accordinglydismissed. (S.J. VAZIFDAR) ACTING CHIEF JUSTICE (G.S. SANDHAWALIA)JUDGE