2025 (3) TMI 1550 - AT - Income Tax

Section 144 ex-parte assessment set aside; assessee given final chance to submit bank, PMGKY documents; AO to verify section 69A

ITAT set aside the CIT(A) order and restored the matter to the file of the AO, holding that the ex-parte assessment u/s 144 required one final opportunity ... Best judgment assessment u/s 144 - Addition of unexplained money u/s 69A and taxed at a higher rate u/s 115BBE - HELD THAT:- Assessment was completed ex-parte u/s 144 of the Act due to non-compliance by the assessee. Given the claimed exceptional circumstances (arrest, criminal complaints, and legal disputes), the assessee should be given one final opportunity to submit evidence. The dates of arrest and the dates of notices issued by the AO do not align, creating doubt over the credibility of the assessee’s explanation for non-compliance. Assessee has not provided any documentary evidence to substantiate his claim that the cash deposits were business receipts except the Form 2 under PMGKY. The issue of income declared under PMGKY has not been examined by the AO or CIT(A), and this requires verification. We set aside the order of the CIT(A) and restore the matter to the file of the AO with the directions that the assessee shall be given a final opportunity to submit documentary evidence regarding Nature of bank deposits and fund transfers, Proof of income declared under PMGKY, if applicable and Supporting documents related to business transactions. AO shall verify the PMGKY declaration and ensure that no income already declared under the scheme is subjected to double taxation. If the assessee fails to comply, AO shall proceed with the material available on record and finalize the assessment accordingly. AO shall also analyze whether the separate addition under Section 69A of the Act results in double taxation, considering that business income has already been estimated at 8%. ISSUES PRESENTED AND CONSIDERED 1. Whether assessment completed under Section 144 of the Act was justified where the assessee did not comply with repeated notices but later claimed inability to respond on account of arrest and ongoing criminal proceedings. 2. Whether total bank credits reflected in bank statements can be treated as turnover and subjected to best judgment estimation of business income (applying an estimated profit rate of 8%) in absence of books of account or supporting evidence. 3. Whether cash deposits during the demonetisation period in various bank accounts can be treated as unexplained money under Section 69A and taxed under Section 115BBE where the assessee claims they are business receipts or inter-bank transfers and has made declarations under the Pradhan Mantri Garib Kalyan Yojana (PMGKY). 4. Whether making additions under Section 69A in addition to estimating business income (which may already cover the cash deposits) results in impermissible double taxation. 5. Whether income declared under PMGKY must be verified by the Assessing Officer to prevent double taxation and whether such declarations can be taken into account at the assessment/reassessment stage. 6. Whether interest under Sections 234A and 234B is leviable where assessment is completed by best judgment in circumstances of non-compliance but later remanded for opportunity to produce evidence. ISSUE-WISE DETAILED ANALYSIS - 1. Validity of Best Judgement Assessment under Section 144 Legal framework: Section 144 empowers the AO to make best judgment assessment where assessee fails to comply with statutory notices. Principles of natural justice require opportunity to be given unless assessees are wilfully non-compliant. Precedent Treatment: The Court relied on established administrative fairness principles (as applied in the judgment) rather than overruling or distinguishing any specific precedent. Interpretation and reasoning: The Court observed repeated non-compliance but also acknowledged a claimed exceptional circumstance (arrest/criminal proceedings). The dates of arrest and notices were not consistent on record and no documentary proof supported the claim. Given the seriousness of depriving a litigant of opportunity, the Court held that a final opportunity should be afforded before sustaining an ex-parte best judgment assessment. Ratio vs. Obiter: Ratio - where non-compliance exists but a plausible exceptional circumstance is asserted, the Tribunal should give a final opportunity to produce evidence before upholding an assessment under Section 144; Obiter - observations on credibility of dates are factual indicators specific to the record. Conclusion: The order under appeal was set aside and the matter remanded for a final opportunity to produce documentary evidence; if the assessee fails to comply, AO may proceed on available material. ISSUE-WISE DETAILED ANALYSIS - 2. Treatment of Bank Credits as Turnover and Estimation of Profit @8% Legal framework: In absence of books, AO may estimate income using available material; however, estimation must be reasonable, supported by material and subject to verification where legitimate explanations/exceptions are offered by assessee. Precedent Treatment: The decision adhered to established principle that AO may estimate turnover on bank credits where no books exist, but emphasized need for opportunity to produce supportive evidence (no direct overruling/distinguishing). Interpretation and reasoning: The AO treated total bank credits as turnover and applied an 8% profit rate to compute income because the assessee did not furnish books or rebuttal. The Tribunal noted that the assessee asserted the nature of deposits as business receipts and inter-bank transfers and sought to rely on PMGKY declaration; since these matters were not examined by AO/CIT(A) on record, estimation could not be final without giving opportunity to substantiate the claim. Ratio vs. Obiter: Ratio - AO's estimation based on bank credits is permissible in principle but must yield to substantiated documentary evidence if produced on remand; Obiter - the particular choice of 8% profit rate was accepted as estimate for now but subject to verification. Conclusion: Estimation procedure not quashed outright but assessment remanded for AO to verify claimed nature of deposits and allow the assessee one last chance to produce evidence before finalizing estimation. ISSUE-WISE DETAILED ANALYSIS - 3. Addition under Section 69A and Taxation under Section 115BBE Legal framework: Section 69A treats unexplained cash credits/deposits as income of the assessee if the assessee fails to satisfactorily account for them; Section 115BBE prescribes special tax treatment for specified undisclosed income charged under certain sections. Precedent Treatment: The Court applied statutory text and standard practice requiring AO to satisfy itself that deposits are unexplained and not part of declared income or legitimate business receipts before invoking Section 69A/115BBE. Interpretation and reasoning: AO treated cash deposits during demonetisation as unexplained money under Section 69A and applied Section 115BBE. The Tribunal observed that the assessee claimed these were business receipts and had filed Form 2 under PMGKY, but AO/CIT(A) had not verified the PMGKY declaration or supporting business documents. Given the lack of verification and the possibility that such amounts may already be covered by estimated business income, the Court directed AO to examine the PMGKY declaration and supporting evidence and to ensure against double taxation. Ratio vs. Obiter: Ratio - Section 69A/115BBE additions must follow verification and cannot be sustained where documentary evidence or prior declarations (e.g., PMGKY) are shown to account for deposits; Obiter - the Court's direction to guard against double taxation is an application of equity and record-specific guidance. Conclusion: Additions under Section 69A/Section 115BBE were not finally upheld; matter remanded for AO to verify PMGKY declaration and the asserted business nature of deposits before confirming such additions. ISSUE-WISE DETAILED ANALYSIS - 4. Allegation of Double Taxation (Addition under Section 69A plus Estimated Business Income) Legal framework: Principle that the same income should not be taxed twice; AO must ensure that separate heads/additions do not result in double inclusion of same funds; assessments must account for inter-relationships among items. Precedent Treatment: The Tribunal followed normative tax law principle preventing double taxation and required AO to analyze whether the separate addition under Section 69A duplicates the component already estimated as business income. Interpretation and reasoning: The assessee contended that estimated profit at 8% already covered cash deposits; the Court directed AO to analyze whether making a separate Section 69A addition would amount to double counting. Because AO had not undertaken that analysis, confirmation of both additions without reconciliation was improper. Ratio vs. Obiter: Ratio - AO must analyze and avoid double taxation where an estimation of business income may subsume alleged unexplained deposits; Obiter - factual determination of overlap dependent on remand proceedings. Conclusion: AO to analyze overlap; if business income estimation already covers impugned deposits, separate Section 69A addition should not result in double taxation. ISSUE-WISE DETAILED ANALYSIS - 5. Verification and Treatment of PMGKY Declarations Legal framework: Voluntary declarations under PMGKY constitute prima facie records of declared income; AO must verify such declarations to ensure correct tax treatment and avoid double taxation. Precedent Treatment: The Tribunal required verification rather than blanket disregarding of PMGKY filings; no precedent was overruled. Interpretation and reasoning: The Tribunal found that the PMGKY declaration was on record (Form 2) but neither AO nor CIT(A) had examined or verified it. Given the potential impact on both estimation and Section 69A findings, the Tribunal directed verification of PMGKY declaration and instructed AO to ensure declared amounts are not taxed again. Ratio vs. Obiter: Ratio - PMGKY declarations must be verified by AO and taken into account to prevent double taxation; Obiter - procedural guidance on how AO should conduct verification is record specific. Conclusion: PMGKY declaration to be examined by AO on remand; any amounts properly declared should be excluded from further additions to prevent double taxation. ISSUE-WISE DETAILED ANALYSIS - 6. Levy of Interest under Sections 234A and 234B Legal framework: Interest under Sections 234A/234B is leviable for defaults in filing and advance tax; however, if assessment is reopened/remanded and adjustments follow, interest liability may need re-calculation consistent with final assessment. Precedent Treatment: The Court did not adjudicate the correctness of interest computation on merits but linked interest liability to final outcome of remand proceedings. Interpretation and reasoning: Because the substantive additions (estimation and Section 69A) are not finally sustained and matter is remanded for fresh verification, interest levied pursuant to those additions cannot be treated as conclusively correct at this stage. AO to reassess interest consistent with finalized tax computation. Ratio vs. Obiter: Ratio - interest assessments are consequential and should be reworked in light of final tax determination on remand; Obiter - specific quantum recalculation left to AO. Conclusion: Interest levies set aside for reconsideration; AO to compute interest after finalizing assessment on remand. OVERALL CONCLUSION The Court restored the matter to the file of the Assessing Officer, directing a final opportunity to the assessee to produce documentary evidence on nature of bank deposits, proof of PMGKY declarations and business transactions; instructed AO to verify PMGKY declarations, guard against double taxation between estimated business income and Section 69A additions, and recompute tax and interest as necessary. The appeal allowed for statistical purposes.