2023 (6) TMI 109 - AT - Income Tax

Tribunal allows appeal for statistical purposes, remands for denovo assessment.

The tribunal allowed the appeal filed by the assessee for statistical purposes, setting aside the orders of the lower authorities and remanding the matter ... Assessment u/s 144 - addition applying net rate of 8% on total deposit in bank - cash deposited during demonetization - onus to prove - HELD THAT:- Finding of the AO that deposits in this bank account in the name of ‘Yogi Enterprises’ are business receipts is without any basis and evidence on record. The onus is entirely on the assessee to file return of income as also to explain nature and source of each of the deposits in this account, and also to comply with the requirements of various provisions of statute as are concerning with the allowability of deductions towards business expenses while computing business income, such as provisions of Section 37(1), 40A(2) , 40A(3), 40(a)(ia), 36(1)(va) etc etc. The onus is squarely on the assessee to prove that he is carrying on business and compliance with provisions of statute before any business deduction is allowed to the assessee. Similarly, the onus is on the assessee to explain every source of deposits in his bank account . Similarly, for other addition being made by the AO which were the cash deposits in the bank accounts of the assessee during demonetization period (account no.13920100031032 and 501000186411596), for which no explanation was furnished by the assessee before the AO as well before ld. CIT(A). CIT(A) on its part has simply confirmed the assessment order, while he was required to give his independent reasoning by way of speaking order. Reference is drawn to provisions of Section 250(6) of the 1961 Act. Thus, restoring the entire matter back to the file of the AO for denovo assessment and orders of both the authorities are set aside and the matter is restored to its original status for framing denovo assessment by the AO - Assessee appeal allowed for statistical purposes. ISSUES PRESENTED AND CONSIDERED 1. Whether ex parte assessment framed under Section 144 without the assessee's effective opportunity to be heard is sustainable where statutory notices were issued but remained unresponded to and the assessee contends non-receipt. 2. Whether the Assessing Officer lawfully treated total bank deposits (including an account in the name of a business title) as business receipts and brought to tax presumed income by applying a net profit rate of 8% on total deposits where no material was placed on record to establish the business nature of receipts or to support the specific rate. 3. Whether cash deposits during the demonetisation period can be treated as unexplained and added to income under Section 69A when the assessee did not furnish explanation before the AO or appellate authority. 4. Whether the Commissioner (Appeals) was required to record independent, speaking reasons under Section 250(6) while confirming an ex parte assessment, and the consequence of failure to do so. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Validity of ex parte assessment under Section 144 and adequacy of opportunity to be heard Legal framework: Section 144 empowers the AO to make an assessment where the assessee fails to comply with statutory requirements; natural justice requires reasonable opportunity to be heard. Notices under Section 142(1) and other statutory provisions must be complied with or responded to by the assessee. Precedent treatment: No specific judicial precedents were invoked by the Tribunal; the decision applies established principles of procedural fairness and the statutory scheme governing assessment proceedings. Interpretation and reasoning: The Tribunal observed that although notices were issued, the assessee did not respond and later asserted non-receipt before the Tribunal. The AO proceeded ex parte to frame assessment; the CIT(A) also decided the appeal ex parte without providing independent reasoning. The Tribunal emphasised that while non-cooperation can justify ex parte action, the appellate authority must still furnish a speaking order. Given the factual assertions of non-receipt and absence of any meaningful opportunity recorded at appellate stage, the Tribunal found it appropriate to restore the matter for fresh adjudication. Ratio versus Obiter: Ratio - where assessment and appellate orders are ex parte and the assessee contests non-receipt of notices, remand for de novo assessment is warranted to ensure effective opportunity and fair adjudication. Obiter - general comments on onus of compliance. Conclusion: The ex parte orders were set aside and the matter remanded to the AO for de novo assessment, with direction that the assessee be afforded opportunity to cooperate and to file necessary details. Issue 2 - Treatment of total deposits as business receipts and application of net profit rate (8%) on deposits Legal framework: Income can be assessed as business income only if deposits/receipts are shown to be business receipts and proper evidence exists for claiming business expenses and deductions (including compliance with Sections 37, 40A, 36 etc.). The assessee bears the onus to prove nature and source of deposits where claimed to be business-related. Precedent treatment: The Tribunal did not follow or distinguish specific precedents but applied statutory allocation of onus and requirement for evidentiary basis before treating deposits as business income. Interpretation and reasoning: The AO treated deposits into an account bearing a business name as business receipts and applied an assumed net profit rate of 8% on aggregate deposits to compute income. The Tribunal held that mere existence of an account in a business name does not ipso facto establish the business character of all deposits. In absence of material showing the assessee carried on business, the nature of receipts, or compliance with statutory conditions for allowing business deductions, the AO's unilateral classification and the mechanical application of an 8% profitability rate lacked adequate foundation. However, because the assessee did not supply explanations at earlier stages, the Tribunal declined to opine on merits and remitted matters for fresh enquiry where factual foundations can be tested and explanations considered. Ratio versus Obiter: Ratio - AO cannot treat all deposits in a business-named account as business receipts and compute income by applying a presumptive net profit rate without supporting evidence; remand is appropriate to allow the assessee to explain and to permit fresh fact-finding. Obiter - observations on necessity for compliance with provisions governing allowable deductions. Conclusion: The AO's addition by applying 8% on total deposits was found to be made without adequate basis; this issue was left open for determination afresh by the AO after receiving explanations and evidence from the assessee. Issue 3 - Additions under Section 69A for cash deposits during demonetisation period Legal framework: Section 69A permits taxation of unexplained money found from books, bank accounts, or other sources where the assessee fails to explain the nature/source. During demonetisation period, unexplained cash deposits may be scrutinised under Section 69A if no satisfactory explanation is furnished. Precedent treatment: The Tribunal did not cite authorities but applied statutory onus principles: failure to explain deposits may justify additions, but findings must be based on evidence and the assessee must have opportunity to explain. Interpretation and reasoning: The AO identified cash deposits during the demonetisation window and, in absence of explanation by the assessee, made additions under Section 69A. The CIT(A) confirmed the additions in an ex parte order without independent reasoning. The Tribunal noted that the assessee had not explained deposits before the authorities but had later sought remand alleging non-receipt of notices and requesting fresh hearing. Given these procedural defects and absence of appellate reasoning, the Tribunal remanded the matter, keeping issues open for the AO to examine explanations and evidence, if any, and then apply Section 69A if warranted. Ratio versus Obiter: Ratio - additions under Section 69A cannot be conclusively sustained where appellate review is non-speaking and procedural fairness issues exist; such matters should be reopened so that the assessee may present explanation. Obiter - affirmation that unexplained deposits during demonetisation may attract Section 69A if satisfactorily unexplained. Conclusion: The addition under Section 69A for demonetisation-period cash deposits was not finally adjudicated; the matter was remitted to the AO for fresh consideration after giving the assessee opportunity to explain. Issue 4 - Requirement for independent, speaking appellate order under Section 250(6) and consequences of failure Legal framework: Section 250(6) requires the appellate authority to furnish reasons for confirmation/variation of assessments; the appellate order must be speaking and record independent satisfaction before confirming the AO's view. Precedent treatment: The Tribunal relied on the statutory mandate rather than particular case law, treating the requirement as obligatory for proper appellate adjudication. Interpretation and reasoning: The Tribunal found that the CIT(A) merely confirmed the AO's ex parte assessment without providing independent reasoning or a speaking order as required by Section 250(6). The absence of a speaking order rendered the appellate confirmation deficient. The Tribunal held that where appellate authority fails to discharge this duty, the correct course is to set aside and remit for fresh adjudication to ensure independent consideration of facts and law. Ratio versus Obiter: Ratio - appellate authority must provide independent, speaking reasons under Section 250(6); failure to do so vitiates the appellate decision and justifies remand. Obiter - none beyond procedural imperative. Conclusion: The appellate order was set aside for lack of independent reasoning; the matter was restored to the AO for de novo assessment with all issues kept open. Overall Disposition The Tribunal set aside both the ex parte assessment and the appellate confirmation, remitted the matter to the Assessing Officer for de novo assessment, directed that the assessee be afforded opportunity to cooperate and file necessary details, and kept all substantive issues open for fresh determination. The Tribunal explicitly refrained from expressing any view on the merits of the additions.