- (1.) THE assessee has preferred this appeal under s. 260A of the IT Act, 1961 (for short, "the Act"), against the order dt. assessee has proposed several substantial questions of law, but at the time of arguments, Mr. Mukhi, learned counsel for the assessee, pressed question Nos. I and VI in para 13 of the appeal, which are as under : "(I) Whether, on the facts and circumstances of the case, the Tribunal was justified in dismissing the various important legal issues raised before it by the assessee, touching upon the very validity of initiation of proceedings under s. 147, non -service of notice under s. 148, non -disposal of legal objections raised before the AO against proceedings under s. 147/148 by passing a speaking order before pursuing the assessment, non -summoning the prime witnesses to deal and with purchasers by the AO thereby denying fair opportunity of cross -examination to the assessee, on the simple plea that no specific grounds of appeal apropos such issues were raised before the Tribunal ? VI. That whether, on the facts and circumstances of the case, was the Tribunal justified in confirming the orders of the authorities below upholding the addition of Rs. 11,33,800 as unexplained credit in the bank account of the assessee, on sworn affidavits of the purchasers, chosen not to refer it to the AO for initiating action under s. 143(2) or 148, as the 2004 -
(2.) THE assessee was assessed for the asst. yr. 1998 -99. After assessment, the AO received information from the Asstt. 1997, in cash in his savings bank account. On receiving the said information, notice for reassessment under s. 148 of the Act was given to the assessee, proposing to treat the amount of the said cash deposit in the bank as undisclosed income. Finally, the AO made reassessment, treating the said amount as undisclosed income. The order of the AO has been affirmed in appeal by the CIT(A) as well as by the Tribunal. The Tribunal, inter alia, recorded the following findings : "19. Apropos the first issue, i.e., that the taxing authorities erred in partly rejecting/disallowing the agreement dt. 10th received by the assessee with regard to the proposed sale of his residential house to S/Shri Gurdial Singh, Sukhdev Singh and Baljit Singh, was accepted by the Department, the receipt of part payment of sale consideration of Rs. 11,35,000 has wrongly been not believed. In this regard, undisputedly, the proceedings under s. 147 of the Act were initiated against the assessee for the reasons of failure of the assessee to explain the source of the cash deposits of Rs. 11,33,800 in his savings bank account of the remaining unsuccessful in explaining the source of such deposit. Therefore, the grievance of the assessee in this regard is meritless and is rejected as such. 20. The last issue is that the AO had erred in not summoning the purchasers as well as the marginal witnesses of the agreement. In this regard, undisputedly, the alleged purchasers were examined. S/Shri Sukhdev Singh and Baljit Singh denied having purchased the property in question from the assessee so much so, they denied even having known the assessee or having known the other purchaser. This stand taken by them was unshaken and maintained even in the cross -examination of these purchasers by the Authorised Representative of the assessee. Shri Gurdial Singh, the third purchaser, could not be traced. So far as regards the assessee, he did not provide to the AO the address of Shri Gurdial Singh, nor did he produce to the AO. Apropos the marginal witnesses of the agreement, the marginal witnesses (sic). However, the assessee himself objected to these witnesses being examined by the AO on the ground that no proceedings were pending before the AO and that so the AO could not, in law, examine the marginal witnesses. The observations of the learned CIT(A), in this regard, are pertinent : 'The AO attended the appellate proceedings and as per order sheet entry the AO mentioned that the report will be sent pending before the AO the summons under s. 131 of the IT Act to the witnesses are without jurisdiction. It was mentioned by the AO that since the assessee has challenged the issuance of summons to the witnesses for recording their statements as desired by the learned CIT(A) during the appellate proceedings, no further action of recording of statement of marginal witnesses is called for at his end. It was endorsed to Addl. CIT, Range -III, Jalandhar, vide his 21. Thus, it is evident that two of the three purchasers were examined by the AO and they deposed against the assessee, whereas the third purchaser could not be traced and the assessee did not either provide his address or himself produce him before the AO. Therefore, it cannot at all be said that the purchasers were illegally not examined by the AO. So far as regards the marginal witnesses, as seen above, the assessee himself objected to their examination by the AO. Hence, this issue raised by the assessee is also devoid of force and is decided against the assessee. 22. In view of the above, ground Nos. 2 and 5 are rejected. The taxing authorities have concurrently found on facts that the assessee has not been able to explain the source of cash deposit of Rs. 11,33,800 in his savings bank account with Dena Bank. The assessee had put up the story that he had entered into the agreement to sell with S/Shri Gurdial Singh, Sukhdev Singh and Baljit Singh and sold his residential house to them and that the amount was received towards this consideration; that since the deal could not get finalized, the amount was returned by the assessee towards the said transaction. The third, i.e., Shri Gurdial Singh could not be traced. The assessee did not provide his address to the AO nor was this person produced before the authorities. That being so, the story put forth by the assessee remained unproved. The explanation of the source of this sum of Rs. 11,33,800 was, therefore, rightly rejected by the authorities below."
(3.) WE have heard learned counsel for the assessee. We are of the view that questions sought to be raised by the assessee, in appeal, are pure questions of fact and relate to appreciation of evidence.;