PER: VIJAY PAL RAO, J.M. These two appeals by the assessee are directed against the orders of the ld. CIT(A)-1, Jaipur both dated 26/03/2019 arising from the assessment order passed U/s 147 r.w.s 143(3) of the Income Tax Act, 1961 (in short, the Act) as well as the penalty levied U/s 271F of the Act respectively for the A.Y. 2009-10.

2. The hearing of the appeal was concluded through video conference in view of the prevailing situation of Covid-19 Pandemic. ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO

3. In the quantum appeal, the assessee has raised following grounds of appeal. 1.1 The impugned assessment order u/s 143(3)/148 dated 26/11/2016 is bad in law and on facts of the case, for want of jurisdiction and carious other reasons and hence the same may kindly be quashed. 1.2 The action taken u/s 147 by the ld. AO is bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same may kindly be quashed.

2. Rs. 9,19,000/-: the ld. CIT(A) has grossly erred in law as well as on the facts of the case in confirming the addition of Rs. 9,19,000/- made by the ld. AO on account of alleged unexplained cash deposits in the bank accounts u/s 68. Hence, the addition so made by the ld. AO and confirmed by the ld. CIT(A) is being totally contrary to the provisions of law and facts on the record and hence the penalty may kindly be deleted in full.

3. The ld. AO has grossly erred in law as well as on the facts of the case in charging interest u/s 234 A,B,C. The appellant totally denies its liability of charging of any such interest. The interest, so charged, being contrary to the provisions of law and facts, may kindly be deleted in full.

4. The appellant prays your honours indulgence to add, amend or alter all or any of the grounds of the appeal on or before the date of hearing.

4. Ground No. 1 of the appeal is regarding validity of reopening of the assessment and particularly the issuance of notice U/s 148 of the Act. The assessee is an individual and has not filed return of income U/s 139 of the Act. The A.O. received information from AIR/Investigation which reveals the fact that the assessee has made cash deposit of Rs. 9.19 lacs in his savings bank account maintained with Yes Bank and ICICI bank. ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO The A.O., accordingly, issued notice U/s 148 of the Act on 31/3/2016 after recording the reasons which were approved by the competent authority U/s 151 of the Act. In response to the notice U/s 148 of the Act, the assessee filed his return of income on 25/4/2016 declaring total income at Rs. 1,48,763/- which is below the threshold limit of tax slab. The A.O. completed the assessment U/s 143(3) r.w.s 147 of the Act on 24/11/2016 whereby an addition of Rs. 9,19,000/- has been made on account of unexplained source of cash deposit in the bank account of the assessee. The assessee challenged the action of the A.O. before the ld. CIT(A) and also raised objection against reopening of the assessment. However, the ld. CIT(A) has rejected the objection and upheld the validity of reopening of the assessment.

5. Before us, the ld. AR of the assessee has submitted that the A.O. issued notice U/s 148 of the Act on 31/03/2016 which was served upon the assessee on 01/04/2016 after expiry of limitation period. The ld AR has also raised objection against the approval granted by the ld. Pr.CIT U/s 151 of the Act without application of mind. He has submitted that the ld. Pr.CIT has simply written YES against the column in the performa without recording the briefest possible manner of satisfaction. Thus, the approval granted by the ld. CIT(A) is a mechanical and without ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO application of mind. In support of his contention, he has relied upon the following decisions:

(i) Pr.CIT Vs N.C. Cables Ltd. (2017) 98 CCH 0010 (Del HC).

(ii) CIT Vs S. Goyanka Lime & Chemicals Ltd. (2015) 231 Taxman 0073 (MP).

(iii) Gorika Investment & Export P Ltd. Vs ITO (2018) 53 CCH 0168 (Del)(Trib)

(iv) Tara Alloys Ltd. Vs ITO (2018) 63 ITR (Trib) 0484 (Del).

6. On the other hand, the ld DR has submitted that it is case of non- filing of return of income by the assessee and subsequently the A.O. has received information and material to reflect the cash deposit of Rs. 9.19 lacs in the bank account of the assessee and this deposit made in the bank account itself is more than the threshold limit of income assessable to tax, therefore, the A.O. was having tangible material to form a belief that the income assessable to tax has escaped assessment. The ld DR has further submitted that it is not a simple case of information regarding deposit of cash in the bank account but the Investigation Wing has conducted a proper enquiry on the source of deposit and only after response/reply of the assessee was considered. The said information was sent to the A.O. for taking appropriate action. Thus, The A.O. was having report of the Investigation Wing and specific information of deposit of cash by the assessee in the bank account as well as the stand of the ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO assessee regarding source of deposit. The reasons recorded by the A.O. manifests the application of mind on the part of the A.O. and therefore, it is a good prima facie case to forming the belief that the income chargeable to tax has escaped assessment. The ld. Pr.CIT has approved the reasons recorded by the A.O. which are part and parcel of the performa which was sent by the A.O. for approval/sanction. Thus, the sanction granted by the ld. Pr.CIT is based on the reasons recorded by the A.O. and not merely on the proposal sent by the A.O. In support of her contention, she has relied upon the following decisions:

(i) Prem Chand Shaw (Jaiswal) v. Assistant Commissioner, Circle-38, Kolkata 67 taxmann.com 339

(ii) Commissioner of Income-tax v. Uttam Chand Nahar 295 ITR

(iii) Lalita Ashwin Jain v. Income Tax Officer 45 taxmann.com Thus, the ld DR has submitted that the provisions of Section 147/148 of the Act does not require any satisfaction to be recorded by the approving authority but it is the satisfaction of the A.O. by recording the reasons before issuing the notice U/s 148 of the Act and the approving authority has to see whether the reasons recorded by the A.O. prima facie lead to the formation of belief that the income chargeable to tax has escaped assessment. Therefore, the reasons recorded by the A.O. if satisfied the ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO conditions of issuing notice U/s 148 of the Act then the approving authority need not to write its satisfaction. Thus, the DR has submitted that the ld. CIT(A) has considered this issue in detail while passing the impugned order. As regards the limitation of the notice issued U/s 148 of the Act, the ld DR has submitted that the A.O. has disposed off the objections raised by the assessee against the notice issued U/s 148 of the Act by a speaking order dated 21/10/2016 which has been reproduced in the assessment order itself. The A.O. has relied upon the decision of Honble Gujarat High Court in the case of Kanubhai M Patel (HUF) Vs Hiren Bhatt & ors. 334 ITR 25 (Guj) wherein the Honble High Court has analysed the expresses used in Section 149 of the Act as to issue in the context of issuance of notice and held that limitation of six years from the end of the relevant assessment year provided U/s 149 of the Act expires only after 31st March of the corresponding 6th year from the end of the assessment year. The said judgment was also followed by the Honble Gujarat High Court in the case of Vinayak Builders Vs B.D. Garsar. Thus, the issuance of notice within the period of limitation is not in dispute and the service of the same is also not in dispute, therefore, the question of limitation does not arise. ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO

7. We have considered the rival submissions as well as relevant material on record. There is no dispute that the A.O. has issued notice U/s 148 of the Act on 31/03/2016 by Speed Post which was also served upon the assessee on 01/04/2016. The notice issued on 31/03/2016 is well within the period of limitation provided in the provisions of Section

149 of the Act which contemplates that no notice U/s 148 shall be issued inter alia not more than six years have elapsed from the end of the relevant assessment year. For ready reference, we reproduce Section 149 of the Act as under: Time limit for notice.

28 149. 29[(1) No notice under section 148 shall be issued30 for the relevant assessment year, 31[(a) if four years have elapsed from the end of the relevant assessment year, unless the case falls under clause (b) 32[or clause (c)]; (b) if four years, but not more than six years, have elapsed from the end of the relevant assessment year unless the income chargeable to tax which has 33escaped assessment amounts to or is likely to amount to one lakh rupees or more33 for that year;] 34[(c) if four years, but not more than sixteen years, have elapsed from the end of the relevant assessment year unless the income in relation to any asset (including financial interest in any entity) located outside India, chargeable to tax, has escaped assessment.] Explanation.In determining income chargeable to tax which has escaped assessment for the purposes of this sub-section, the provisions of Explanation 2 of section 147 shall apply as they apply for the purposes of that section.] (2) The provisions of sub-section (1) as to the issue of notice shall be subject to the provisions of section 151. (3) If the person on whom a notice under section 148 is to be served is a person treated as the agent of a non-resident under section 163 and the assessment, reassessment or recomputation to be made in pursuance of the notice is to be made on him as the agent of such non-resident, the notice shall not be issued after the expiry of a period of 35[six] years from the end of the relevant assessment year. 36[Explanation.For the removal of doubts, it is hereby clarified that the provisions of sub-sections (1) and (3), as amended by the Finance Act, 2012, shall also be ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO applicable for any assessment year beginning on or before the 1st day of April, 2012.] The language of Section 149(1) of the Act is plain and simple without any ambiguity. The limitation provided under this Section is six years from the end of the relevant assessment year and the notice shall be issued within the period of six years from the end of the relevant assessment year. In the case in hand, the assessee has not disputed the issuance of notice by the A.O. on 31/3/2016 by Speed Post thereby the notice had gone out of control of the A.O. once it was dispatched through Speed Post. The issuance of notice includes not only the preparation of notice but the notice shall go out of the control of the A.O. and is sent through one of the modes prescribed U/s 282 of the Act. Notice was issued within the period of limitation and was also duly served upon the assessee on the very next day, therefore, the question of limitation does not arise. Further the assessee has complied with the notice by filing the return of income which is only return of income filed by the assessee. Hence, the return of income filed by the assessee in response to notice U/s 148 of the Act is otherwise to be scrutinized by the A.O. Hence, we do not find any substance in the objection raised by the assessee against the limitation of the notice issued U/s 148 of the Act. 7.1 As regard the mechanical approval granted by the ld. Pr.CIT, we note that the A.O. sent the proposal in the performa for ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO approval/sanction of the ld. Pr.CIT which contains the details including the reasons recorded by the A.O. Once the reasons recorded by the A.O. are found to be having a direct nexus with the information and formation of belief that the income assessable to tax has escaped assessment then the Pr.CIT need not to given separate reasons for his satisfaction. In the case in hand, the assessee has not filed any return of income U/s 139 of the Act and the A.O. received information from the DIT(Inv.), Jaipur regarding the deposit of cash of Rs. 9.19 lacs in the bank account of the assessee that too after an enquiry conducted by the Investigation Wing regarding the source of the said deposit and only when the reply of the assessee was not found to be satisfactory the said information was sent to the A.O. for appropriate steps. In view of these facts as well as the decisions relied upon by the ld DR, we are of the considered opinion that when the reasons recorded by the A.O. prima facie lead to the formation of belief that the income assessable to tax has escaped assessment then the ld. Pr.CIT is not required to record separate satisfaction as the reasons itself reveal the satisfaction of the A.O. The ld. CIT(A) has considered this issue in para 3.1.2 as under: 3.1.2 Determination:

(i) From the facts of the case, it is seen that on the oasis of information that, the appellant has made cash deposit of Rs. ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO 9,19,000/- in the saving bank account with Yes Bank and ICICI Bank, the AO reopened the case u/s 147 of the Act by issuing notice u/s 148 of the Act on 31.03.2016. The appellant raised objections regarding reopening of the proceedings which has been dealt by the AO in detail in the assessment order itself. The relevant portion of the assessment order is reproduced as under: "Please refer to the pending assessment proceedings u/s 148/143(3) of the Income Tax Act 1961 in your case for A.Y. 2009-10 and your objection letter f i led on 20/10/2016 after receipt of reasons recorded u/s 148 and f i l ing of ITR in response to the notice u/s 148 and further notice(s) u/s 143(2) & u/s 142(1) of the Act have been issued for hearing on 28/10/2016. Considering the facts & circumstances of the case, the objection(s) raised by the assessee are disposed off in the manner of a speaking order as under:-

1. The first objection of the assessee is with regard to issue of notice after a period of 6 years and is hit barred by limitation u/s 149(1)(b). On perusal of the facts on record, I is revealed that the notice u/s

148 of the Income Tax Act 1961 has been issued on 31/03/2016 and sent for delivery of service through postal authority vide Receipt No.ER331172658 dated 31 /3/2016 for the AY 2009-10 after recording of reasons u/s 147 and approval of the competent authority u/s 151, which is within the limitation period and before the expiry of the period of 6 years on 31/3/2016 as-provided under the provisions of Section 149(1). A copy of reasons recorded u/s 147 has simultaneously been supplied to the assessee while complying with the terms of the notice us/ 148 of the Act in view of the guiding principles as laid ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO down by the Hon'ble Supreme Court in the case of M/s GKV Drive Shafts (India) Ltd vs. ITO & Ors reported at (2003) 259 ITR 19 wherein it has been held that "We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under Section

148 of the Income tax Act is issued, the proper course of action for the notice is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receiving of reasons, the notice is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order, in the instant case, as the reasons have been disclosed in these proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking Order before proceeding with the assessment in respect of the above said five assessment years." Moreover, considering the facts & circumstances of the case and relying upon various judgments of Hon'ble Supreme Court and Hon'ble High Courts on the issuance & service of notice u/s 148 within the limitation period, it is mandatory upon the AO to issue notice u/s 148 sending for delivery of service upon the assessee in view of the provisions of Section 282 of the Act, which has done by the AO before the expiry of the limitation period of 6 years. It has further been held that it is mandatory to issue and service of notice upon the assessee before starting of the assessment/ reassessment proceedings but or the purpose of limitation, the issue of notice u/s 148 before the expiry of limitation is enough compliance, which has already been made by the AO. It is further relied upon that 'what is the meaning of the term word and ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO phrases "issue", it came up for consideration before the Hon'ble Gujrat High Court in the following judgments KANUBHAI M. PA TEL (HUF) VS HIREN BHA TT OR HIS SUCCESSORS TO OFFICE AND OTHERS reported in 334 ITR 25(Guj) and the Hon'ble Gujrat High Court gave the following findings: 'On a plain reading of section 149 of the income Tax Act. 1961, it is apparent that under the provision, the maximum time limit for issuance of notice under section 148 is six years from the end of the relevant assessment year. The expression "to issue" in the context of issuance of notices, writs and process, has been attributed the meaning, to send out to place in the hands of the proper officer for service. The expression shall be used in section

149 would therefore have to be read in the aforesaid context. Held, allowing the petition, that in the instant case the notices under section 148 were in respect of the assessment year 2003-

04. The notices were dated March 31, 2010. The record produced before the court showed that the notices had been sent for booking to the speed post centre only on April 7, 2010, in the absence of any evidence to the contrary being pointed out by the respondents, as well in the light of the fact that the said position as confirmed by the postal department had not been controverter by the Revenue. In the circumstances, the notices under section

148 in relation to the assessment year 2003-04, having been issued on April 7, 2010 which was clearly beyond the period of six years from the end of the relevant assessment year, were clearly barred by limitation end could not be sustained. This judgment was also followed by Gujrat High Court in the case of VINAYAK BUILDERS VS. B.D. GARSAR. ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO On carefully considering the above objection application and analysis of the facts of the case in view of the provisions of the Ac! and in complying with the guiding principles and judgments, it is pointed out that

(i) 'The notice must be issued by the 4.0. who has the jurisdiction of the case of the assessee. Issue of notice us 148 by the A.O. having no jurisdiction over the assessee is invalid and all the proceedings carried on in pursuance of that notice are invalid and can be quashed. Further A.O. recording reasons and issuing notice has to be same person. Reference may be made to 93 TTJ Chennai 537, 147 TTJ(Ahd)730.

(ii) Section 151 provides for the sanctions to be obtained before issuing of the notice u/s 148. If original assessment has been framed u/s 143(3) or section 147 has been made for any relevant assessment year no notice can be issued by an A. 0. below the rank of ACIT or DC/T unless the JC/T has given a sanction on the reasons recorded by the A.O. that it is fit case for issue of notice. Provided that after the expiry of four years in such case from the end of relevant asst year no notice without the sanction of CTT or CC1T can be issued. In cases other than stated aforesaid no notice shall be issued by an A. 0. below the rank of JCIT after the expiry of four years from the end of relevant assessment year without the sanction of JCIT. However only sanction is required from the JCIT, CIT & CCIT as required and notice need not be issued by them. In case where notice u/s 148 is issued in violation of the provisions of section 151 discussed above proceedings undertaken against such notice are invalid. Reference may be made to the judgments: 249 CTR(Delhi)357 (Bombay) 370 ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO

(iii) Issue of Notice within the limitation period: Provisions of time limit for issue of notice have been provided in Section 149 of the Act. The time limit for issue of notice is four years from the end of the assessment if the escaped income is below one lac or six years from the end of the assessment year in case the escaped income is more than one lac. Further w.e.f. 01.07.2012 if the income escaped is in relation to any asset (including financial interest in any entity) located outside India the limitation period for issue of notice has been extended to 16 years from the end of relevant assessment year. It is very important to note that a/though it is mandatory to serve the notice issued to the assessee u/s 148 but for the purpose of limitation prescribed u/s

149 the phrase used is only issued and not served. Hence for counting of the limitation period it is mandatory for the A.O. to issue the notice u/s 148 within the limitation period and service of the same can be subsequent also. However before making the assessment, reassessment or recomputation u/s 147 it is mandatory upon the A.O. to serve such notice issued u/s 148.

(iv) After receiving the notice u/s 148 it is for the assessee to file his return of income which if he feels has any escaped income would Include such escaped income or in the case where assessee feels that there is no escaped income he can lie the same return or give in writing that original return filed by the assessee may be treated as return filed in pursuance to notice u/s 148. It is mandatory upon the AO to record the reasons for reopening of the assessment. Now after filing of the return it is the right of the assessee to obtain the copy of the reasons recorded by the AO. Once this request is made the AO is bound to provide the copy of the reasons recorded within a reasonable time but before starting ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO the reassessment proceedings. In this regard the attention is invited to the judgment of Punjab & Haryana High Court reported in 305 ITR 124 besides the judgments a/ready considered for mandatory recording of the reasons and supply the same to the assessee. After receiving the copy of the reasons recorded the assessee shall within a reasonable time file his objections to the reasons recorded with the A.O. It is important to note here that objections must be filed within a reasonable time before the initiation of the reassessment proceedings. In case the assessee files his objections the objections must be disposed off by the AO by way of a speaking order. This procedure was will settled by the Hon'ble Apex Court in the famous case of GKN Drive Shaft reported in 259 ITR (SC )19. In view of the above, it is construed that the .AO has issued u/s

148 after following the provisions of Section 147 read with Section 151(2) & Section 149(1) and sent for delivery of service of the notice within the limitation through the postal authority in view of the provisions of Section 282 of the Act. Moreover, the assessee has furnished no evidence supporting to his claim of issuance of notice in contrary of the provisions of Section 148 read with Section 151(2) & Section 149(1) and further service of the notice as per the provisions of Section 282 of the Act before starting of assessment/reassessment proceedings. A copy of reasons recorded u/s 147 has already been provided to the assessee. Therefore, it is averred that the above notice is a valid one which has been issued and sent for delivery of service before expiry of the limitation period as per the law and thus, the objection of the assessee on the account is not tenable in the eyes of the law and the same is hereby rejected. ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO In view of the facts & circumstances of the case and settled law, as discussed above, and without prejudice to any other law, I do not find any substance and satisfaction in the objections of the assessee raised in the application as discussed herein above. Therefore, the objections raised by the assessee are not found reasonable & acceptable, as discussed above and the application is hereby rejected. In case the assessee does not agree with the facts of the case and the proper course of action followed by the AO u/s 147 and the competent authority in granting sanction u/s

151 for initiating proceedings u/s 148, he may resort to the rights & privileges as per the law. Since the case of the assessee gels barred by limitation on 31/12/2016 for A.Y. 2009-10, further notice is issued, separately for carrying or the assessment proceedings to completion of the assessment, as per the provisions of the Act. "

(ii) During the appellate proceedings, the appellant again raised objections regarding issue of notice u/s 148 of the Act. It is seen that notice was issued on 31.03.2016 i.e. before the expiry of the l imitation period. Once, the notice is issued in time and dispatched in t ime, it is considered as compliance of the provisions of the Act. The AO has also discussed relevant judgement on the issue in the assessment order itself. Considering above, it is held that the notice issued u/s 148 of the Act was issued in time.

(iii) The appellant has also raised an issue that the notice was issued by the AO without appl icat ion of mind and without reason to bel ieve that the income has escaped assessment. From the facts of the case, it is noted that the appel lant has not f i led regular return of income. It is also seen that the AO ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO has recorded detai led reasons before issuing the notice u/s 148 of the Act. The reasons are specif ic and clearly indicates the escapement of the income. The AO has also provided the copy of the reasons to the appellant and dispose them off by passing speaking order. Thus, i t is seen that the reopening of the case has been done following cue procedure as provided in the law. It is also seen that the AO has complied the guidelines laid down by the Hon'ble Apex Court in the case of M/s GKN Driveshafts vs. ITO (2003) 259 ITR 19 (SC). The appellant is challenging the sufficiency of the reasons recorded. It may be mentioned that the Courts cannot look into the sufficiency of the reasons recorded by the AO for reopening the assessment u/s 147 of the Act. Reliance is placed on the decision of Hon'ble Apex Court in the case of Raymond Woollen Mills Ltd. Vs ITO [1999] 236 ITR 34 (SC), wherein it was held by their lordship that: "In this case, we do not have to give a final decision as to whether there is suppression of material facts by the assessee or not. We have only to see whether there was prima facie some material on the basis of which the Department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. We are of the view that the court cannot strike down the reopening of the case in the facts of this case. It will be open to the assessee to prove that the assumption of facts made in the notice was erroneous. The assessee may also prove that no new facts came to the knowledge of the Income-tax Officer after completion of the assessment proceeding. We are not expressing any opinion on the merits of the case. The questions of fact and law are left open to be investigated and decided by the assessing authority. The appellant will be entitled to take ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO all the points before the assessing authority. The appeals are dismissed."

(iv) Therefore, in view of the above discussion, it is held that the AO was justified in reopening the case of the a opellant for the year under consideration u/s 147 of the Act and was having reason to believe that income had escaped assessment. Hence, this ground of appeal is hereby rejected. On merit:

(v) On the basis of examination of bank account maintained oy the appellant with Yes Bank and ICICI Bank, the AO held that the deposit to the extent of Rs. 9,19,000/- is not explained. The relevant portion of the assessment order is reproduced as under: "Addition on account of unexplained source of cash deposit in the bank - Rs.9,19,000/- On verification/ examinations of the details/ documents/ Yes bank & ICICI bank statements, it is revealed that the assessee has made cash deposits of Rs.6,46,500/- in his bank account No.02490800001 158 with YES bank and Rs.2,72,500/- in bank account No.01201500415 with ICICI Bank totaling to Rs.9, 19,000/-as also reflected in the AIR/Investigation information/STRs. It is further revealed that the assessee has failed to disclose the receipts/income as deposited in the above bank account and no satisfactory reply has been furnished. Therefore, vide notice u/s 142(1) dated 21/10/2016, the assessee has been asked to show cause as to why the source of cash credit/deposit should not be treated as unexplained in absence of any substantial evidence. In reply to the show cause, the AR of the assessee has submitted above reply dated 8/11/2016 which is not found satisfactory, justifiable and reasonable. The assessee has failed to substantiate the source of cash deposits of ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO Rs.9,19,000/- in the bank accounts. it is also verifiable that the assessee has allegedly manipulated the facts of the case and he has not succeeded in linking with the source of funds from sale of agricultural land by his father. It is evident from the sale deed dated 4/6/2007 that Shri Tarachand Ajmera F/o of the assessee sold out agricultural land for Rs.53,00,000/- in the year 2007. The claim of the assessee is not found reasonable & acceptable under the manipulation of facts and giving self-serving statement in affidavit in contrary to any documentary evidence that the source of cash deposit in the bank accounts in the year 2008-09 is from the sale proceeds. The assessee has failed to establish the receipt' of sale proceeds through cheque or draft etc and thereafter, to make deposit in the bank accounts. The assessee has not furnished any evidence of source of wife's income which has been claimed to have deposited in the above bank account. It is revealed that the assessee unsuccessfully makes statement in affidavit form at different levels without any substantia, evidence in supported to the claims) and thus, such statement lacks verification of the true & correctness of the facts. It is revealed that the assessee used to take different stand at different level without substantial evidence which cannot be substituted by giving self-serving statement. In the objection letter dated 20/10/2016, the assessee has categorically submitted as under: - "That at present I am not having physical evidence of deposits in the Yes bank being very old matter that is why I am giving to you affidavit on oath. That yet your honour is of satisfied about my above contention than the same may be taken as my business receipts from jewellery trading or boutique and net profit may be worked on those receipts. Here the assessee stands on the same submission." ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO In contrary to the above submission, the assessee has further submitted vide reply dated 8/11/2016 that Source of income - kindly refer para-2. further, we are enclosing herewith copy of assessment order for AY 2008-09 and copy of sale deed. Apart of this we would like to object that we have not shown any boutique and agricultural income in my return than why the same has been asked by you."

5. In view of the above, the claim of the assessee is not found satisfactory and reasonable in absence of any substantial evidence and the same is rejected. Considering the facts & circumstances of the case, it construed that the assessee has failed to explain the source of above cash deposit/credits of Rs.9,19,000/- in the above bank accounts without any corroborative evidence whereas the onus lies upon the assessee to discharge his burden to explain the sources of the credit to the account by cogent and reliable evidence. This view is also supported by the judgments reported in the following cases:- (1) CIT Bombay vs. Deviprasad Khandelwal AND Co. Ltd, (1971) 81 1TR

460. (2) Sumati Dayal vs. CIT Bangalore, [1995] Supp. 2 SCC 453; (3) CIT vs. Smt. P. K. Noorjahan, (1999) 237 ITR 570; (4) K.S. [Carman Kunhi vs. CIT Kerala, (196(>) 72 ITR 757; (5) CIT vs. U.P. Bharat Engineering AND Construction Co., (1972) 83 ITR 187: (6) CIT Orissa vs. Orissa Corporation P. Ltd. (1986) 159 ITR 78 ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO 5.1 In view of the facts & circumstances of the case, it is derived that the assessee has failed to offer any reasonable and justifiable reply to prove the source of cash credit found in his bank account. The burden of proof lies upon the assessee to explain genuineness and sources of cash credit. This view is further supported by the following judgments: -

i. RICE MILLS v. COMMISSIONER OF INCOME-TAX; [2008] 307 FR 343 (P&H) where assessment held justified on income from undisclosed sources on estimate basis and transactions not disclosed.

ii. Maru Ram Makhan Lal vs. CIT [2008] 300 ITR 12 (P&H) Reference held the question of law for cash credit and burden of proof on the assessee to prove genuineness of credits; assessee not able to prove credits were genuine then addition made to income held just filed.

iii. SHIV RICE AND GENERAL MILLS v. COMMISSIONER OF INCOME TAX , [2008]300 ITR 19(P&H) Burden of proof on assessee to prove identity of creditor, his creditworthiness and genuineness of transaction - cash credits not proved by assessee, addition held justified u/s 68 of Income Tax Act 1961.

iv. Indus Valley Promoters Ltd. v. Commissioner Of Income-Tax [2008]305 ITR 202 (DELHI) Cash creditsAssessee failing to prove identity or creditworthiness of creditors and source of deposits -Additions justified u/s 68 of Income-tax Act, 1961 ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO

v. CHAND PRAKASH VIJ v. C1T [ITR NO. 626 OF 2008, DECIDED ON 12.12.2008]/[2009] 16 CPT 570 (PUNJ. & HAR.) Tribunal's finding that assessee had not been able to explain source of cash deposit in bank account, is a finding of facts

vi. CIT vs. P. MOHANAKALA (2007) 291 ITR 278 (SC) Cash credits; Burden of proof - Unexplained cash credits - Burden of proof - concurrent findings of fact that cash credits were not genuine - If such a finding could be interfered with by the High Court - The burden was upon the assesses to prove to the satisfaction of the Assessing Officer that the cash credits were genuine - The assessee in the instant case having failed to discharge the burden the Assessing Officer rightly treated the cash credits as income of the assessee which finding of fact having been upheld by the Commissioner (Appeals) as well as the Tribunal, the High Court erred in disturbing the concurrent finding of fact of the forums below under its appellate jurisdiction when there was no question of law much less substantial question of law arising from the decision of the Tribunal.

vii. BHARTESH JAIN VS. DCIT (DEL.) 483 CTR: VOL. 201: DTD. 07.04.2006 Cash credit - Could not be satisfactorily explained by the assessee which means that onus u/s. 68 has not been discharged. Hence addition u/s. 68 is valid

viii. CIT-v- BIJU PATNAIK 160 ITR 674 (SC) It has been held that evidences to prove creditworthiness to donor/creditor is very vital and that the assessee is required to prove even the source of the source. ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO

ix. KALE KHAN MOHAMMAD HAN1F v. CIT (1963) 50 1TR 1 (SC) Assessment of unexplained cash credits in the account of business assessable as income from undisclosed sources. Cash credits appearing in accounts relating to business remaining unexplained - whether can be assessed as income from another and undisclosed source - Held, yes - Burden of proof relating to cash credits

x. CIT vs. Chinnathamban [2007] 292 ITR 682 (SC) Burden of proof: Unexplained money - addition - search in the business premises of firm resulting in seizure of unexplained money - Firm running financing business - Person running the business himself found to have made deposits in the names of relatives Held the onus was upon the persons in whose names the deposits were found to disclose the source of the funds and failure would result in the amount being treated as their unexplained money.

6. Under the facts & circumstances of the case and relying upon the above judgments, it is deduced that the assessee has failed to explain the source of cash deposit/credit to his above bank accounts and he has offered no proper, reasonable and acceptable explanation to the source of above cash credit in the bank accounts. Therefore, in view of the above, it is fairly construed that the assessee has absolutely failed to explain the source of cash credit which remains unexplained u/s 68 of the Income Tax Act, 1961. Accordingly, the credit of Rs.9,19,000/- is treated as unexplained income of the assessee made out of undisclosed sources of income and the same is added to the total income of the assessee. ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO

(vi) Thus, in the assessment order, the AO elaborately dealt the submissions of the appellant and also discussed the relevant judicial pronouncements. During the appellate proceedings, the appellant again relied on its claim that the cash was deposited out of sale consideration of the property sold by his father Shri Tarachand Ajmera. The appellant filed copy of sale deed in support of above claim. From the sale deed, it is seen that the above property was sold for Rs. 53,00,000/- on 04.06.2007. Shri Tarachand Ajmera received Rs. 33,00,000/- vide cheque No. 059082 dated 14/05/2007 and Rs. 20,00,000/- vide cheque No. 068902 dated 14.05.2007 drawn on Citi Bank, Jaipur. The appellant has not submitted the bank account of Shri Tarachand Ajmera where such amount was deposited. In absence of bank account of Shri Tarachand Ajmera, it is not verifiable that any cash was withdrawn out of the above sale proceeds. The appellant has failed to establish any trail of cash flowing into his bank account. It is also seen that there is no cash withdrawal in the bank account of the appellant, which can explain the source of cash deposit. In view of the above facts, the appellant has miserably failed to discharge its onus regarding the source of cash deposited in the bank account. Therefore, the addition made by the AO on account of unexplained cash deposit in bank account amounting to Rs. 9,91,000/- is upheld. Accordingly, in view of the facts and circumstances of the case as discussed above, we do not find any merit in the ground No. 1 of the appeal and the same is rejected.

8. Ground No. 2 of the appeal is regarding the addition made by the A.O. on account of unexplained cash deposit of Rs. 9.19 lacs. In this ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO regard, the ld AR of the assessee has submitted that source of cash deposit of Rs. 9.19 lacs in Yes bank and ICICI bank account was explained by the assessee being the sale proceeds of land sold by the father of the assessee for a consideration of Rs. 53.00 lacs in the F.Y. 2007-08. He has further submitted that the father of the assessee expired in the year 2012 and therefore, the assessee could not produce bank account detail of the father of the assessee. The ld AR has further submitted that even otherwise when the assessee has shown business income and an affidavit of the wife of the assessee was also filed in support of the claim that deposit of Rs. 2,72,500/- in the ICICI bank account belongs to the wife of the assessee who is also doing the business of boutique. The said account is in the joint name of the assessee and his wife and once the affidavit is filed by the wife to own the said amount of deposit in ICICI bank account then the said addition is not justified. The ld AR has further submitted that the A.O. has made addition of entire amount of deposit without giving even the credit of the sale proceeds of the assessees business as well as other income of the assessee. He has given much stress to the affidavit filed by the wife of the assessee and submitted that the affidavit filed by the assessee as well as wife of the assessee are having evidentiary value and in absence of any contrary record, the same should have been accepted. The ld AR has ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO submitted that once the assessee has explained the source of amount much more that the deposit made in the bank account then the addition made by the A.O. and confirmed by the ld. CIT(A) is not justified and the same may be deleted. In support of his contention, he has relied upon the following decisions:

i) Mehta Pareek & Co. 30 ITR 181 (SC) ii) ITO Vs Dr. Tejgopal Bhatnagar 20 TW 368 (JP) iii) paras cotton Company Vs CIT (2003) 30 TW 168 (JD) iv) CIT Vs Lunard Dimond Ltd. 281 ITR 1 (Del).

v) CIT Vs Bhawani Oil Mills (P) Ltd. 239 CTR 445. vi) Sh. Chhitar Singh Gurjar Vs ITO in ITA No. 594/JP/2016 dated 26/09/2016. vii) ITO, Kishangarh Vs Sh. Pushpendra Kumar Jain ITA No. 289/JP/2012 dated 01/01/2016

9. On the other hand, the ld DR has submitted that the assessee has taken stand that the source of deposit is the sale proceeds of the land by the assessee. However, the ld. CIT(A) has recorded the fact that the entire sale consideration was received by the father of the assessee through cheque and the assessee has not produced any record to show that prior to deposit made in the assessees bank account, any cash was withdrawn from the bank account of the father of the assessee. Despite specific directions, the assessee failed to produce the bank account ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO statement of father of the assessee in support of his claim of source of cash deposit. Further the assessee has declared income of Rs. 1,48,000/- which is even not sufficient to meet the household expenses, therefore, the said income cannot be treated as source of deposit of Rs. 9.19 lacs in the bank account of the assessee. She has relied upon the orders of the authorities below.

10. We have considered the rival submissions as well as relevant material on record. The assessee has explained the source of cash deposit in the bank account of Rs. 9.19 lacs as the sale proceeds of the land sold by the father of the assessee for consideration of Rs. 53.00 lacs on 04/6/2007. Though, the said amount was deposited in the bank account of father of the assessee through cheques, however, the same can be a source of deposit in the bank account of the assessee, if the assessee produced any material to show that prior to deposit of cash in the bank account of the assessee, there was a withdrawal from the bank account of the father of the assessee. When the assessee was asked to produce bank account details of the father of the assessee, the assessee took plea that since the father of the assessee expired in the year 2012, therefore, the said bank account was already closed and the assessee is not able to produce the details. The second explanation of the source is the business income of the assessee as well as the wife of the assessee. ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO The wife of the assessee filed an affidavit claiming that the amount of Rs. 2,72,500/- deposited in the ICICI bank account belongs to her as it is a joint bank account of husband and wife and the said deposit was made by her out of her boutique business receipts. The A.O. has not accepted the said affidavit of the wife of the assessee in absence of any other evidence regarding the activities of the alleged boutique carried out by the wife and earning of the income as she has never filed any return of income. The assessee also explained the source of his own business income. 10.1 Having considered the facts and circumstances of the case when the father of the assessee has sold the property in the year 2007 for a consideration of Rs. 53.00 lacs and the assessee is the only legal heir then the possibility of the source of deposit in the bank account of the assessee from the sale proceeds of the property of the father is not ruled out. However, the assessee has not produced the details of the bank account of father to support the fact that there was a withdrawal of cash from the bank account of the father. Therefore, in these facts and circumstances, we find that this issue requires a detailed and proper verification regarding source of deposit. Further to the extent of income declared by the assessee as well as the claim of wife of the assessee regarding the deposit of Rs. 2,72,500/- cannot be rejected. Therefore, to ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO the extent of income declared by the assessee as well as the wife of the assessee has to be considered as source of deposit. Hence, we set aside this issue to the record of the A.O. for proper verification of the facts regarding the source being the sale proceeds of the property sold by the father of the assessee. The assessee is also directed to furnish details of bank account of father of the assessee for the purpose of conducting the proper enquiry by the A.O. by calling the relevant details from the bank. Hence, this issue is restored back to the file of the A.O.

11. Ground No. 3 of the appeal is consequential in nature and need not require any adjudication.

12. Now we take ITA No. 516/JP/2019. In the penalty appeal, the assessee has raised following grounds: 1.1 The impugned penalty order U/s 271F dated 19/05/2017 is bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same may kindly be quashed.

2. Rs. 5,000/-: the ld. CIT(A) has grossly erred in law as well as on the facts of the case in confirming the penalty of Rs. 5,000/- imposed by the ld. AO u/s 271F. Hence, the penalty so imposed by the ld. AO and confirmed by the ld. CIT(A) is being totally contrary to the provisions of law and facts on the record and hence the penalty may kindly be deleted in full.

3. The appellant prays your honors indulgence to add, amend, or alter all or any of the grounds of the appeal on or before the date of hearing. ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO

13. The A.O. has levied the penalty U/s 271F of the Act due to default on the part of the assessee for non-filing of the return of income. It is pertinent to note that if the source of deposit made in the bank account as explained by the assessee is accepted then the assessees income from the business is below the taxable limit.

14. We have heard the rival submissions and perused the relevant material on record. We have already set aside the issue of addition made by the A.O. to the record of the A.O. Even otherwise when the explanation of the assessee that his income is below the taxable limit except the deposits made in the bank account is factually correct and is a a bonafide explanation, then, in view of the provisions of Section 273B of the Act, the said explanation is a reasonable cause for default on the part of the assessee and accordingly, the penalty U/s 271F of the Act is not leviable, hence deleted.

15. In the result, ITA No. 515/JP/2019 is partly allowed for statistical purposes and ITA No. 516/JP/2019 is allowed. Order pronouced in the open court on 02nd September, 2020. Sd/- Sd/- foe flag ;kno fot; iky jko (VIKRAM SINGH YADAV) (VIJAY PAL RAO) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 02/09/2020 ITA 515 & 516/JP/2019_ Subhash Chand Ajmera Vs ITO *Ranjan vkns'k dh izfrfyfi vxzsfkr@Copy of the order forwarded to:

1. vihykFkhZ@The Appellant- Shri Subhash Chand Ajmera, Jaipur.

2. izR;FkhZ@ The Respondent- The I.T.O., Ward 2(1), Jaipur.

3. vk;dj vk;qDr@ CIT

4. vk;dj vk;qDrvihy@The CIT(A)

5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur

6. xkMZ QkbZy@ Guard File (ITA No. 515 & 516/JP/2019) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar