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Shrimati Tirath Kaur , Hoshiarpur vs Income Tax Officer, Dasuya, … on 18 February, 2020

Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 1 of 27

IN THE INCOME TAX APPELLATE TRIBUNAL
AMNRITSAR BENCH, AMRITSAR
BEFORE SHRI N.K. CHOUDHRY, JUDICIAL MEMBER
AND SHRI O.P.MEENA, ACCOUNTANT MEMBER

आ.अ.सं./I.T.A
./
./ No.44/ASR/2018
िनधारणवष/
िनधारणवष/A.Y.:2009-10
Smt. Tirath Kaur Vs. Income Tax Officer,
W/o Shri Dilbagh Singh, Ward- Dasuya
VPO-Pandher, Tehsil- Dasuya,
District -Hoshiarpur

PAN: BXXPG 2111 H
अपीलाथ Appellant यथ /Respondent

िनधा रतीक ओरसे /Assessee by Shri J.S. Bhasin, Advocate
राज वक ओरसे /Revenue by Shri Alok Kumar, CIT (D.R.)

सुनवाईक तार ख/ Date of hearing: 17.12.2019
उ$ोषणाक तार ख/Pronouncement on: 18.02.2020

आदे श /O R D E R
PER O. P. MEENA, ACCOUTANT MEMBER:

1. This appeal by the Assessee is directed against the order of

learned Commissioner of Income tax (Appeals)-1, Jalandhar (in

short “the CIT (A)”) dated 24.11.2017pertaining to Assessment

Year 2009-10, which in turn has arisen from the assessment order

passed under section 143 (3)/147/144 dated 13.10.2016 of

Income Tax Act,1961 (in short ‘the Act’) by the Income Tax

Officer, Dasuya (in short “the AO”).

Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 2 of 27

2. Grounds of appeals raised by the assessee are as under:

1. That when the statutory notice under section 148 was
not served and received by assessee, the ld. CIT (A)
erred in upholding that the service of notice by
affixture was valid. So,farwant of service of notice
u/s.148, the impugned order was liable to be held as
ab-initio void.

2. That the assessee being non-resident, the ITO Dasuya
was not vested with valid jurisdiction to assess this
case. As such, the impugned order is invalid being
without jurisdiction.

3. That in the facts and circumstances of the case, the ld.
CIT (A) was not justified in summarily upholding the
initiation of proceedings u/s.147 /148 when
prerequisites for such action were not satisfied.

4. That when no actual investment was made by the
assessee in the land she got from real aunt, the ld. CIT
(A) was not justified in confirming the addition of
Rs.54,79,710/- as made by the ITO, simply swayed by
the mere recital made in the sale deed by the deed
writer.

5. That on the face of credible evidence filed before the
ld. CIT (A) to prove that the assessee being adopted
daughter had not paid any money to her Aunt, she was
not right in rejecting the said evidence, by simply
relying upon the recital made in sale deed by drawing
support from the provisions of Indian Evidence Act.

6. That there being no cogent evidence brought on record
by the revenue establishing actual payment of money by
the assessee to her real Aunt, a mere mention in the
sale deed was not enough to take a view against the
assessee, without appreciating the attendant facts and
circumstances in totality.

3. Ground No.1 to 3: relates to non-service of notice under

section 148 of the Act and assumption of jurisdiction under

section 148 of the Act, when the pre-requisitefor such action
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 3 of 27

were not satisfied. Hence, these are being considered

together.

4. Succinct facts of the case are that the assessee is

individual. There was an AIR information in the possession of

Department that the assessee (Non PAN case) had purchased an

immovable property for an amount of Rs.54,79,710/-situated at

village Chandidass, Tehsil Dasuya for an amount of Rs.54,79,710

during the year under consideration. However, the records

revealedthat no return of income, for the assessment year under

consideration was filed by the assessee. Hence, the source

ofinvestment in the impugned property could not be verified.

Therefore, after recording reasons duly for reopening of

assessment to the effect that income to the above extent has

escaped assessment for the assessment year 2009-10,

proceedings u/s.147 of the Act were initiated by issue of notice

under section 148 of the Act dated 21.03.2016. Since service of

said notice was not possible by an ordinary manner, the same

was served through affixture at the last known address of the

assessee as given in registered sale deed of impugned land, in the

presence of two local witnesses. Accordingly, the assessee was

required to furnish herreturn of income for A.Y. 2009-10 within
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 4 of 27

30 days of service of notice issued under section 148 of the Act.

The assessee, however, did not comply with the notice issued

under section 148 of the Act. The assessee also did not comply

with subsequent statutory notices issued under section 142(1) of

the Act with questionnaire to the assessee as discussed in para 2

to 4 of assessment order. The assessee was not having PAN, and

no return of income having been filed by the assessee for the

assessment year 2009-10 and no information and details

furnished to explanation of the source of investment in

immovable property amounting to Rs.54,79,710 in spite of

sufficient opportunities afforded to the assessee, assessment was

completed under section under section 143 (3)/147 read with

section 144 of the Act on the basis of material available on

record assessing the total income at Rs. 54,79,710 income from

undisclosed sources.

5. Being aggrieved, the assessee filed an appeal before the

Ld. CIT (A). Wherein the Ld. AR of the assessee had filed written

submissions and submitted that the assessee Smt. Tirath Kaur is

married to Shri Dilbagh Singh who is Canadian resident for more

than 24 years. She is also residing with him for the last 24 years.

The address on which notice under section 148 was served by
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 5 of 27

affixture and treated to be served was non-living house and

inhabitant place of the assessee and/or her family members and

permanently locked out as no one stays there for a considerable

time.Thus, it was contended that notice under section 148 was

not issued and served upon proper address of the appellant. The

AO has not made any effort to locate the present address of the

appellant, therefore, the service of notice by affixture was not

asper provisions of section 282 of the Act and the said notice was

not served on the appellant in accordance with law. Hence, the

assessment made in consequent thereto is not a valid

assessment. Reliance was also made in the case of ITO v. Om

Prakash Kukreja [2016] 70 taxmann.com 147 (Chandigarh-Trib), N

Narayan Chetty v. ITO [1959] 35 ITR 388 (SC) and CIT V. Hotline

International (P) Ltd. [2008] 296 ITR 333 (Delhi).However, Ld. CIT

(A) observed that the case laws relied by the assessee are

distinguishable on facts as each case has to be considered on its

own facts. In the present case, an AIR information regarding non-

PAN database was received. The said information was statutorily

required to be reported by the Registering Authorities as per Rule

114C/11D of Income-Tax Rules, 1962 to the assessing authorities

for taking action under section 139A(5) and 139A(6) of the Act. In
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 6 of 27

this case, the appellant has purchased immovable property

situated at Village Chandidas, Tehsil- Dasuya for Rs.54,79,710

being half share along with other half share with Smt. Joginder

Kaur. The total transaction was for Rs.1,04,28,000 on which

stamp duty of Rs. 5,31,400 was paid on the same at the time of

registration dated 22.12.2008. The appellant failed to quote her

PAN in the registered sale deed though she was statutorily

mandated to quote it. As per office record, no return of income

for the assessment year 2009-10, was found to have been filed by

the Appellant for which source of investment could be verified.

In view of the above, the CIT (A) observed that the AO has rightly

recorded reasons/ satisfaction that income to the extent of Rs.

54,79,710 has escaped assessment as per clause (a) of

Explanation-2 to section 147. Regarding service of notice under

section 148 of the Act, the CIT (A) observed that enquiries made

from the AO and reference to assessment record, it was noticed

that the AO has issued enquiry letters on several occasions for

verification of the buyers and their source of income and ITR`s

filed, if any. As per the enquiries made by the AO, the appellant

was not found traceable at the address given in the registered

sale deed, which was Smt. Tirath Kaur w/o of Shri Dilbagh Singh
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 7 of 27

village Pandher. Therefore, notice under section 148 of the Act

was sent by registered post vide dispatch No. 4623 dated

21.03.2016. In the circumstances of the case, the Ld.AO rightly

observed that notice could not be served in ordinary manner and,

therefore, served it through affixture at the last known address

of the appellant. The notice under section 148-dated 21.03.2016

was rightly addressed to the address of the appellant mentioned

in the registered sale deed. The notice was duly served by

affixture in the presence of two witnesses, i.e. Smt. Gurvinder

Kaur and Shri Bhag Singh. The service of notice under section 148

was held to be valid as per provisions of section 282 of the Act,

which provides various modes of service and service can be made

by any one of these modes. With regard to claim of the assessee

that notice under section 148 of the Act was not received by it.

However, the CIT (A) observed that consequent to completion of

assessment on 13.10.2016, the assessment order and demand

notice were also sent to the same address. The present appeal

was filed on 13.12.2016 i.e. within two months from the

completion of assessment. It shows that the address of the

appellant mentioned in in the notice under section 148 of the Act

as well as in the assessment order was correct and that the
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 8 of 27

service was being duly getting conveyed to/reaching to the

appellant. During appeal, it has been admitted by the ld. A.R.

that the appellant is Non-resident Indian residing in Canada for

the last 24 years and is having Canadian Citizenship. She visited

India, acquired property for Rs.54, 79,710, and got it registered

without obtaining and quoting PAN, which is mandatory as per

the provisions of Income Tax Act, 1961. Under these

circumstances, it was not possible for the AO to trace her address

in Canada and serve notice under section 148 of the Act on the

appellant. Accordingly, the ld.CIT (A) held thatsaid notice was

rightly served by affixture at the last known address of the

appellant as per the address mentioned in the registered sale

deed. No address of Canada is mentioned in registered sale-deed.

Therefore, the ld.CIT (A) held that the contention of the

appellant that the service of notice is not as per section 282 is

not tenable and is not accepted. Further, the notice in

assessment order can also to be held to be saved under section

292B of the Act.

6. Being, aggrieved the assessee filed this appeal before the

Tribunal. The learned counsel for the assessee submitted that

the notice under section 148 of the Act was not served upon the
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 9 of 27

assessee as she had been living in Canada for the last 24 years

and her husband is being a Canadian citizen. The service of

notice by affixture is not proper, as notice served on the house

which was non-living house. The assessee has not visited in India

during the course of assessment proceedings. The AO had not

made proper enquiry to locate the proper address from local

peoples or persons of village who could know the present address

of the assessee. No report of notice server was mentioned. The

notice claimed to have served by affixture is not proper service.

The affixture can be done when the assessee or his agent refuses

to sign the acknowledgement. As per section 282, the notice can

be served by post or by summon or by the method prescribed

under Order V Rule 17 of Code of Civil Procedure by affixation

only when the assessee has refuses or his agent refuses to sign

the acknowledgement.Therefore, it was contended that the

condition of section 282 were not satisfied hence, there is no

proper service of notice issued under section 148 , hence,

impugned order is void-ab-initio.

7. Per contra, the ld. D.R. submitted that the AO has served

the notice under section 148 of the Act on the last known address

mentioned in the registered sale deed. Since, the assessee was
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 10 of 27

not found residing therein; therefore, notice was served by

affixture. Before service of notice by affixture, the AO has made

necessary enquiries as mentioned by the Ld. CIT (A) in his

appellate order. Thus, notice under section 148 of the Act was

issued as per provision of section 149(2) of the Act by the AO who

had jurisdiction over the assessee. The learned D.R. contended

that the assessee has not informed to the AO about her correct

address. If there is change in address the same should be

corrected in PAN database of the assessee or should be informed

to the Department. In this case, the assessee was not having PAN

nor filed return of income, hence, her address as last known

address could be obtained from registered sale deed executed by

her and shown in the said registered sale deed. The learned D.R.

further, placed reliance on the recent judgement of Hon`ble

Supreme Court in the case of Pr.CIT v. M/s. I-Ven Interactive

Limited [2019] 110 taxmann.com 332 (SC) / [2019] 418 ITR 662

(SC) wherein it was held that when scrutiny notice issued to

assessee under section 143(2) at address available as per PAN

database was justified as change in address had not been

intimated to Assessing Officer.In such a circumstances, the only

option available with the AO was to serve notice by affixture,
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 11 of 27

which has been done in the presence of two respectable

witnesses of the locality.

8. We have heard the rival submissions and perused the

relevant material on record.We find that there was an AIR

information regarding Non-PAN case, was received by the AO.

The said information was collected and statutorily reported by

the Registering Authorities as per Rule 114C/11D of Income-Tax

Rules, 1962, which is populated to the assessing authorities for

proceedings under section 139A(5) and 139A(6) of the Act. The

assessee has purchased an immovable property situated at

Village Chandidas, Tehsil- Dasuya for Rs.54,79,710 with half share

along with other half share with Smt. Joginder Kaur. The total

transaction was for Rs.1,04,28,000 on which stamp duty of Rs.

5,31,400 was paid on the same at the time of registration dated

22.12.2008. We find that the assessee has not quoted any PAN in

the registered sale deed even though; she was statutorily

required to quote PAN on such transaction. The AO noted that no

return of income for the assessment year 2009-10, was filed by

the assessee for the assessment year under consideration by

which the source of investment in impugned land could be

verified. Therefore, the AO issued notice under section 148 of
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 12 of 27

the Act after recording reasons and his satisfaction that income

to the extent of Rs. 54,79,710 has escaped assessment as per

clause (a) of Explanation-2 to section 147. Therefore, notice

under section 148 was issued on 21.03.2016. Since the service of

notice under section 148 of the Act was not possible in ordinary

manner, the same was served through affixture at the last known

address as reflected in the registered sale deed asthis being none

PAN case. The perusal of appellate order shows that the CIT (A)

observed that enquiries made from the AO and reference to

assessment record, it was noticed that the AO has issued enquiry

letters on several occasions for verification of the buyers and

their source of income and ITR`s filed, if any. As per the

enquiries made by the AO, the appellant was not found traceable

at the address given in the registered sale deed, of Smt. Tirath

Kaur w/o of Shri Dilbagh Singh village Pandher. Therefore, notice

under section 148 of the Act was sent by registered post vide

dispatch No. 4623 dated 21.03.2016. We find that the CIT (A)

observed that considering the circumstances of the case, the

notice under section 148 of the Act of the Act could not be

served in ordinary manner and, therefore, it was served through

affixture at the last known address of the appellant. The notice
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 13 of 27

under section 148-dated 21.03.2016 was rightly addressed to the

address of the assessee as mentioned in the registered sale deed.

The notice was duly served by affixture in the presence of two

respectable witnesses, i.e. Smt. Gurvinder Kaur and Shri Bhag

Singh. The service is notice is therefore, a valid service as per

provisions of section 282 of the Act, which provides various

modes of service and services, whichcan be made by any one of

these modes. With regard to claim of the assessee that notice

under section 148 of the Act was not received by it. However,

the CIT (A) observed that consequent to completion of

assessment on 13.10.2016, the assessment order and demand

notice were also sent to the same address. The present appeal

was filed on 13.12.2016 i.e. within two months from the

completion of assessment. It shows that the address of the

appellant mentioned in in the notice under section 148 of the Act

as well as in the assessment order was correct and that the

service was getting duly getting conveyed to/reaching to the

appellant. We further find that the proposed A.R. of the assessee

has made a request for adjournment vide letter dated 26.09.2016

before the AO against the penalty show-cause notice issued

under section 271(1)(b) dated 24.08.2016 i.e. before completion
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 14 of 27

of assessment under section 143 (3) read with section 147 /144

dated 13.10.2016 (Paper Book Page No. 1). This fact shows that

the assessee was well aware of service of notice under section

148 of the Act made by affixture and assessment proceedings

were going on in her case and thus, but she deliberately not

complied with the notice under section 148 of the Act, hence,

the service of notice under section 148 could also to be held to

be saved under section 292B of the Act.However, she

deliberately avoided to made compliance to the enquiries during

the course of assessment proceedings. It is seen that during

appellate proceedings the ld. A.R. that the appellant is Non-

resident Indian residing in Canada for the last 24 years and is

having Canadian Citizenship. She visited India, acquired property

for Rs.54, 79,710, and got it registered without obtaining and

quoting PAN, which is mandatory as per the provisions of Income

Tax Act, 1961. Under these circumstances, it was not possible

for the AO to trace her address in Canada and serve notice under

section 148 of the Act and the assessment order there.

Accordingly, said notice was rightly served by affixture at the last

known address of the appellant as per the address mentioned in

the registered sale deed. No address of Canada is mentioned in
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 15 of 27

registered sale-deed. Recently, the Hon`ble Supreme Court in

the case of Pr.CIT v. M/s. I-Ven Interactive Limited [2019] 110

taxmann.com 332 (SC) / [2019] 418 ITR 662 (SC)wherein the

Hon`ble Supreme Court held as under:

“6.1 At the outset, it is required to be noted that notice
under Section 143(2) of the 1961 Act was sent by the
Assessing Officer to the assessee at the address as
mentioned in the PAN database on 05.10.2007 and the
same was within the time limit prescribed in proviso to
Section 143(2) of the 1961 Act. However, it was the case on
behalf of the assessee that the said notice was not served
upon the assessee as the assessee changed its name and
address and shifted to new address prior thereto and
therefore the said notice was not served upon the assessee
and by the time when subsequently the notices were
served upon the assessee, notice under Section 143(2) of
the 1961 Act was barred by the period prescribed in
proviso to Section 143(2) of the 1961 Act and therefore the
assessment order is bad in law. It was the case on behalf of
the assessee that vide communication dated 06.12.2005 the
assessee intimated to the Assessing Officer about the new
address and despite the same the Assessing Officer sent
the notice at the old address. However, it is required to be
noted that the alleged communication dated 06.12.2005 is
not forthcoming. Neither the same was produced before
the Assessing Officer nor even the same has been produced
before this Court. In the affidavit also, filed in compliance
with order dated 21.08.2019, the assessee has stated that
the alleged communication dated 06.12.2005 is not
available. Thus, the assessee has failed to prove the
alleged communication dated 06.12.2005. The only
document available is Form No.18 filed with the ROC.
Filing of Form-18 with the ROC cannot be said to be an
intimation to the Assessing Officer with respect to
intimation of change in address. It appears that no
application was made by the assessee to change the
address in the PAN data base and in the PAN database the
old address continued. Therefore, in absence of any
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intimation to the Assessing Officer with respect to change
in address, the Assessing Officer was justified in issuing the
notice at the address available as per the PAN database.
Therefore, the Assessing Officer cannot be said to have
committed any error and in fact the Assessing Officer was
justified in sending the notice at the address as per the
PAN database. If that is so, the notice dated 05.10.2007
can be said to be within the period prescribed in proviso to
Section 143(2) of the 1961 Act. Once the notice is issued
within the period prescribed as per the proviso to Section
143(2) of the Act, the same can be said to be sufficient
compliance of Section 143(2) of the 1961 Act. Once the
notice is sent within the period prescribed in the proviso to
Section 143(2) of the 1961 Act, in that case, actual service
of the notice upon the assessee thereafter would be
immaterial. In a given case, it may happen that though the
notice is sent within the period prescribed, the assessee
may avoid actual service of the notice till the period
prescribed expired. Even in the relied upon case by the
learned Senior Advocate for the assessee in the case
of Hotel Blue Moon (supra), it is observed that the
Assessing Officer must necessarily issue notice under
Section 143(2) of the 1961 Act within the time prescribed
in the proviso to Section 143(2) of the 1961 Act. Therefore,
in the facts and circumstances of the case, the High Court
is not justified in dismissing the appeal and confirming the
orders passed by the learned C.I.T (Appeals) and the
I.T.A.T. setting aside the assessment order solely on the
ground that the assessment order is bad in law on the
ground that subsequent service of notice upon the assessee
under Section 143(2) of the 1961 Act was beyond the time
prescribed in the proviso to Section 143(2) of the 1961 Act.

7. Now so far as the observations made by the High Court
while concurring with the view of the learned Tribunal
that merely by filing of return of income with the new
address, it shall be enough for the assessee to discharge its
legal responsibility for observing proper procedural steps
as per the Companies Act and the Income Tax Act is
concerned, we are of the opinion that 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
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 17 of 27

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-Module scheme. It is
required to be noted that notices under Section 143(2) of
the 1961 Act are issued on selection of case generated
under automated system of the Department which picks up
the address of the assessee from the database of the PAN.
Therefore, the change of address in the database of PAN is
must, in case of change in the name of the company and/or
any change in the registered office or the corporate office
and the same has to be intimated to the Registrar of
Companies in the prescribed format (Form 18) and after
completing with the said requirement, the assessee is
required to approach the Department with the copy of the
said document and the assessee is also required to make an
application for change of address in the departmental
database of PAN, which in the present case the assessee
has failed to do so.

8. Now so far as the submission on behalf of the assessee
that with respect to the Assessment Years 2004-05 and
2005-06, communications and the assessment orders were
sent at the new address and therefore the Assessing
Officer was in the knowledge of the new address is
concerned, the same has been sufficiently explained by the
Revenue.

9. In view of our findings, recorded hereinabove, the
impugned judgment and order passed by the High Court as
well as the orders passed by the learned C.I.T (Appeals)
and the I.T.A.T holding the assessment order bad in law on
the aforesaid ground cannot be sustained and the same
deserve to be quashed and set aside. As the learned C.I.T
(Appeals) has not considered the other grounds on merits
and has not considered the appeal on merits, the matter is
required to be remanded to the learned C.I.T (Appeals) to
consider the appeal on merits, in accordance with law.

10. Accordingly, the present Appeal is Allowed. The
Impugned Judgment and Order passed by the High Court as
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 18 of 27

well as the orders passed by the C.I.T (Appeals) and the
I.T.A.T are hereby quashed and set aside. The matter is
remanded to the learned C.I.T (Appeals) to consider the
Appeal on merits on other grounds, in accordance with
law. No costs.”

9. In the light of ratio laid down by the Hon`ble Supreme

Court in above case, we are of the considered opinion that the

assessee was required to obtain PAN and give her address which

has not been done in this case. Therefore, the AO was absolutely

justified in sending notice under section 148 of the Act on the

last addresses available as per registered sale deed. Since, the

assessee was not residing on the given addresses, therefore,

question of refusal to accept the notice does not arise.Therefore,

the ld.CIT (A) has rightly observed that the contention of the

appellant that the service of notice is not as per section 282 is

not tenable in law and was not accepted. In the light of above

facts and circumstances, We find that that there was a proper

service of notice under section 148 of the Act by affixture and

the assessee was well aware of the assessment proceedings going

on in her case as evident from letter dated 26.09.2016 filed by

the intended to be A.R. of the assessee in connection with

penalty show-cause notice under section 271(1)(b) of the Act

dated 24.08.2016. Therefore, after careful consideration of
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facts, we do not find any infirmity in the order of CIT (A),

accordingly, same is upheld. In view of this matter, the Ground

No. 1 to 3 of appeal are therefore, dismissed.

10. Ground No. 4 to 6 are against the confirmation of

addition of Rs.54,79,710 being investment in purchase of

immovable property.

11. Short facts are that there was an AIR information which

showed that the assessee being a Non PAN case had purchased an

immovable property for an amount of Rs. 54,79,710/- situated at

village Chandidass, Tehsil Dasuya for an amount of Rs.54,79,710,

during the assessment year under consideration. This transaction

was covered under Rule 114D of Income-Tax Rules, 1962 read

with section 139A(5) of the Act hence, the information was

mandatorily required to be sent to the assessing authorities. This

transaction involved of immovable property, wherein quoting

PAN is mandatory. No PAN was quoted by the assessee in the

above transaction. The records revealed that no return of income

for the assessment year under consideration was filed by the

assessee. Hence, the source of investment in the impugned

investment in could not be verified.Therefore, after recording

reasons, a notice under section 148 of the Act was duly issued
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 20 of 27

and served by affixture on the last known address as mentioned

in the registered sale deed executed by the assessee. In spite of

sufficient opportunity of being heard allowed, no details were

filed to explain the source of investment in immovable property

amounting to Rs. 54,79,710. Therefore, said investment of Rs.

54,79,710 was treated as unexplained investment and added to

total income and the assessment was made under section 143 (3)

/147 read with section 144 of the Act.

12. Being, aggrieved, the assessee filed an appeal before the

Ld. CIT (A). Before her, the assessee has filed additional

evidence under Rule 46A stating that the assessee was adopted

daughter of Smt. Naseeb Kaur ( seller of property) and was

brought up by the seller up to her marriage for which

economically weaker sections (copy of ID card filed). It was

submitted that sale deed was executed on 22.12.2008 and Smt.

Naseeb Kaur was expired on 16.01.2009. To prove that the

assessee was adopted daughter, an affidavit was filed from

villagers, which is a credible evidence to establish the facts that

the assessee was an adopted daughter. Hence, no consideration

was passed and mentioning consideration in sale deed is standard

practice. It was also stated that during proceeding from
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 21 of 27

21.03.2016 to 13.10.2016, no genuine attempt made to serve

notice under section 148 on the assessee. It was further

submitted that an application was submitted to the AO on

26.09.2016 informing the Non-Resident Indian status of the

assessee and requesting him to adjourn the case until Power of

Attorney is received for abroad. However, the AO made ex-parte

assessment. However, the CIT (A) observed that a valid

registered sale deed dated 22.12.2008 has come on record which

is sought to be disapproved through oral evidence. Such a

recourse is not permitted in law as per provisions contained in

chapter VI of Indian Evidence Act, 1872, which prohibits

admission of oral evidence to contradict contents of a contract

reduced in writing and registered as per law subject to certain

exceptions like fraud, misrepresentation etc. It is not the case of

the appellant that the contents of the sale deed were ambiguous

or of such a nature which required elaboration or clarification

through oral evidence. Nor she has alleged any fraud,

misrepresentation, intimidation, or want of due execution or

want of capacity in any executing party, or failure of

consideration, or mistake in fact of law. The contention of the

AO that sale deed was prepared by the writer in a routine way
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 22 of 27

cannot be accepted. The CIT (A) also observed that letter on

plain paper signed by village Sarpanch/ villagers is only self-

serving document and does not hold ground against clear

recitation in the registered sale deed, and the seller Smt. Naseeb

Kaur was transferring ownership of land along with all attendant

rights to the appellant Smt. Tirath Kaur and another person Smt.

Joginder Kaur, in lieu of consideration of Rs. 1,04,28,000, half of

which is Rs. 52,14,000. There are two witnesses to the registered

sale deed. However, as mentioned in the registered sale deed,

consideration was not paid at the time of registration in the

presence of witnesses or Sub Registrar. The sale consideration is

clearly mentioned in the registered sale deed to have been paid

/ received by the two parties at home prior to the registration.

Hence, the only evidence relied upon is the registered sale deed.

The contention of the appellant is that she is adopted daughter

of the seller and sale deed was made without any consideration

is at best in the domain of oral evidence and is therefore, not

acceptable. Admittedly, there is no adoption deed, as she was

not legally adopted under the Hindu Adoption and Maintenance

Act, 1956.Further, vide sale deed; Smt. Naseeb Kaur has sold her

land to two persons and not only to the appellant, who claimed
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 23 of 27

to be the adopted daughter of Smt. Naseeb Kaur. In view of these

facts, the findings of the AO were upheld.

13. Being, aggrieved the assessee filed this appeal before the

Tribunal. The learned counsel for the assessee submitted that

the assessee is adopted daughter of Smt. Naseeb Kaur (seller of

property) for which a certificate from Sarpanch and villagers of

Chandi Dass, was filed before CIT (A) placed at Paper Book Page

No. 7. The assessee was brought up by Smt. Naseeb Kaur up to

her marriage and enrolled asher daughter in the economically

weaker Section for which Identity Card was filed before CIT (A)

(PB-8-10). Therefore, the impugned land was given as gift, but

instead of gift deed, it was registered as sale deed with Sub

Registrar. However, no consideration was paid. It was further

submitted that the sale deed was registered on 22.12.2008 and

Smt. Naseeb Kaur, who was ill died on 16.01.2009, within a

month of execution of sale deed, therefore, there was no

necessity for her have received cash or consideration from

transfer as the assessee being a adopted daughter. The AO had

no brought any proof of exchange of sale consideration.

Therefore, the addition was sustained by the CIT (A) was without

any basis and needs to be deleted.

Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 24 of 27

14. Au contraire, the ld. D.R. submitted that the assessee has

purchased the immovable property for Rs. 54.79 Lakh by

registered sale deed dated 22.12.2008 and this transaction is

covered by Rule 114C/114D read with section 139A(5) and

section 139A(6) of the Act, by which the registering authorities

were mandatorily required to inform the assessing authorities

about the non PAN Transaction. The assessee was mandatorily

required to quote PAN. However, the assessee did not do this.

Further, the registered sale deed clearly mentioned the sale

consideration along with co-purchaser of property. The evidence

in form of plain paper does not hold good, when sale

consideration has been clearly recited in documentary evidence

registered with Sub Registrar. Therefore, Ld. CIT (A) was

justified in sustaining the impugned addition.

15. We have heard the rival submissions and perused the

relevant material on record. It is discernible from the registered

sale deed dated 22.12.2008 (PB-2 to 6) that the seller Smt.

Naseeb Kaur was transferring her ownership of land along with all

attendant rights to the appellant Smt. Tirath Kaur and another

person Smt. Joginder Kaur, in lieu of consideration of Rs.

1,04,28,000, half of which is Rs.52,14,000 pertaining to the
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 25 of 27

assessee. There are two witnesses to the registered sale deed.

However, as mentioned in the registered sale deed that the

consideration was not paid at the time of registration in the

presence of two witnesses or Sub Registrar, but it was clearly

mentioned in the sale deed that the sale consideration have been

paid/received by the two parties at home prior to the

registration. Hence, the only evidence which could be relied

upon is the registered sale deed. The contention of the assessee

that she is adopted daughter of the seller and sale deed was

made without any consideration is not tenable in law in absence

of any adoption deed under the Hindu Adoption and Maintenance

Act, 1956 was furnished. Further, vide registered sale deed, Smt.

Naseeb Kaur has sold her land to two persons and not only to the

assessee but also to Smt. Joginder Kaur, if property was intended

to be gifted then there was no necessity to transfer half part of

same to another person by common sale deed. Further, such

consideration was also received at home by the seller for another

purchaser of property. We find that there is a valid registered

sale deed dated 22.12.2008 which has come on record and same

is sought to be disapproved through oral evidence being plain

paper signed by some villagers to say that the assessee was
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 26 of 27

adopted daughter. We observe that Ld. CIT (A) has rightly held

that such a recourse is not permitted in law as per provisions

contained in chapter VI of Indian Evidence Act, 1872, which

prohibits admission of oral evidence to contradict contents of a

contract reduced in writing and registered as per law subject to

certain exceptions like fraud, misrepresentation etc. It is not the

case of the assessee that the contents of the sale deed were

ambiguous or of such a nature which required elaboration or

clarification through oral evidence. Nor she has alleged any

fraud, misrepresentation, intimidation, or want of due execution

or want of capacity in any executing party, or failure of

consideration, or mistake in fact of law. The contention of the

AO that sale deed was prepared by the writer in a routine way

cannot be accepted, where consideration was clearly discernible

and recorded on registered sale deed itself and claimed to be

having paid at home by the both parties of the deal. The CIT (A)

also observed that letter on plain paper signed by village

Sarpanch/ villagers is only self-serving document and does not

hold ground against clear recitation in the registered sale deed

dated 22.12.2008, and the seller Smt. Naseeb Kaur was

transferring her ownership in the property along with all
Smt. Tirath Kaur v. ITO-Dasuya/I.T.A. No. 44/ASR/2018/A.Y.:09-10 Page 27 of 27

attendant rights to the appellant Smt. Tirath Kaur and another

person Smt. Joginder Kaur, in lieu of consideration of

Rs.1,04,28,000, half of which is Rs. 52,14,000. In the light of

above facts and circumstances, we do not find any infirmity in

the order of CIT (A), accordingly, same is upheld. Ex-

consequenti, Ground No. 4 of appeal of the assesseeare

dismissed.

16. In the result, the appeal of the assessee is dismissed.

17. The order is pronounced by listing the case on the Notice

Board under Rule 34(4) of Income Tax Appellate Tribunal Rules

1963.

Sd/- Sd/-
(N.K.CHOUDHRY) (O.P.MEENA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Amritsar: Dated: 18.02. 2020/opm

Copy of order sent to- Assessee/AO/Pr. CIT/ CIT (A)/ ITAT (DR)/
Guard file of ITAT.

By order

Assistant Registrar

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