TaxTMI 
TaxTMI 
TaxTMI 
2016 (12) TMI 738
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.... the addition so made and sustained or confirmed by the ld. CIT(A) is totally contrary to the provisions of law and facts and hence the same may kindly be deleted in fully. 3. The AO erred in law as well as on the facts of the case in charging of interest u/s 234B, 234C and 234D as consequential in nature. The appellant totally denies its liability of charging any such interest. Hence, the interest so charged, being contrary to the provisions of law and facts, may kindly be deleted in fully. 2.1 During the course of hearing, the ld. AR of the assessee has not pressed the Ground No. 1.1 and 1.2. Hence, the same are dismissed being not pressed. 3.1 The Ground No. 3 of the assessee is regarding charging of interest u/s 234B, 234C and 234D which are mandatory and consequential in nature. 4.1 Apropos Ground No. 2 of the assessee, the AO observed that as per AIR information available in this case, the assessee had maintained a saving bank account with ING VYSYA Bank, Jaipur for the period under consideration. The AO on Analysis of the bank statement of this account bearing No. 539110013937 obtained from the ING Vyasya Bank observed that there were various cash deposits amounting t....
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....of total cash deposit of Rs. 22,83,000/- cash withdrawal was of Rs. 2,14,000/- only. Rs. 22,11,410/- were withdrawal through account payee cheque. Therefore at the most the benefit of redeposit of cash of Rs. 2,14,000/- could be given to assessee. So this benefit of Rs. 2,14,000/- is being given to the assessee. Further, a sum of 1,50,000/- was deposited through cheque for which no confirmation was filed either in assessment / remand proceedings. With regard to the remaining cash deposit of Rs. 2069000/- (2283000 - 214000) it was further contended that the same is deposited out of sale proceeds. However the same cannot be accepted in absence of bills/vouchers which the assessee failed to furnished even during appellate proceedings. The assessee gets relief of Rs. 2,14,000/- only.'' 4.3 The ld. AR of the filed the written submission praying therein to delete the addition of Rs. 22,19,000/- sustained by the ld. CIT(A). The contents of the written submission filed by the assessee are as under:- "1. Correct Facts: Firstly we want to bring correct facts on record, which could not be brought on record in assessment proceedi....
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..... The ld. AO nowhere denied the facts of the case and not rebutted the details filed by the assessee rather he admitted the same. When the purchase were through cheque. Than there should not be any question to deny the sale. There is no adverse in the remand report of the ld. AO. Who has admittedly accepted the facts of the case. The ld. AO nowhere denied the facts of the case and not rebutted the details filed by the assessee rather he admitted the same. Thus on perusal of the CIT(A) order and remand report it is clear that the only reason given by them is not availability of bills/vouchers of sale and purchase. In this regard it is submitted that both the person has ignored that all most purchase were through a/c payee cheque which itself the bills and vouchers of purchase for that kindly perused the narration of bank statements. and when there is purchase is proved than there were also be sale. Here we would like to submit that while doing a judicious act by a person (here the AO andCIT(A)) should also keep in mind the circumstance, facts, general approach, status etc. . He should not restrict to himself only to the evidence where the same is not possible. Here the ld. CIT(A)....
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....e on record. Application of mind is the sine qua non for forming the opinion CIT V/s C. Mohanakala (2007) 291 ITR 278 (SC). 4. In support we had filed copy of cash book, bank book and ledger account of sale purchase and other which has been prepared on the basis of bank statement itself. and also filed computation of total income showing the net profit or income of the assessee for the year under consideration. All these document clearly indicate of the retail trading business or trading of the assessee. Despite the same she has not considered nor rebutted the same. 5. Directly Covered matter: Further the above matter is also directly covered by the decision of this of this Honble Bench in the case of ITO Kishangarh V/s Sh. Pushpendra Kumar Jain in ITA No. 289/Jp/2012 dt. 01.01.2016 55 TW 26(Jp), where in the honble bench has followed the decision of decision of Smt. Anita Choudhary in IAT No. 733/Jp/2009 dt. 07.05.2010, which has been affirmed by the Honble Raj. High Court in DBIT No. 289/2010. In this case the Honble Bench and Court has treated the cash deposit in the bank account of the assessee as undisclosed turnover of the appellant and directed to apply the Gross Profi....
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....se facts clearly establish that claim of business of HUF was an afterthought and it was rightly rejected by AO. Therefore in present case contention of appellant that transactions in this bank a/c pertain to his business deserves to be accepted but still there would be a question of determining income in respect of these transactions. There is no evidence on record except the statement of the appellant with regard to the nature of business carried on by him and the details relating to the computation of income. The appellant has filed return of income on 13.08.2009 declaring income of Rs. 1,76,660/- u/s 44AF in respect of the transactions appearing in this bank a/c. In view of such statement made by the appellant in his return of income under due verification and there being no other evidence to disbelieve it, I am inclined to accept as the transaction relating to retail trade. But the documents relating to this business such as sales purchase invoices, books etc. neither maintained nor produced by the appellant, the book result declared by the appellant cannot be accepted even the most of the credits (sales) are matching with the debits (purchases) which shows that the appellant h....
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...., burden was on the Revenue to prove that notwithstanding holding license for wholesale trade only, the assessee was in fact doing retail business. Then essentially it remains a finding of fact whether assessee was a retail trader or wholesale trader, and does not give rise to question of law. 7. Further we also clarify that the ld. AO has wrongly taken cash deposit amount in bank at Rs, 24,33,000/- while the same was at Rs. 22,83,000/- as mentioned in the reasons recorded, because the ld. AO has taken Rs. 1,50,000/- on 03.03.2006 as cash deposit while the same was through cheuqe which is clear from the bank statement itself. 8. Hence in view of the above facts, submissions and legal position the additions may kindly be deleted in full. '' 4.4 The ld. DR relied on the orders of the authorities below. 4.5 I have heard the rival contentions and perused the materials available on record. On perusal of the bank statement and documents produced by the assessee, it is noted that the assessee was doing the trading as building material suppliers. The AO treated the entire cash deposits of Rs. 24,33,000/-in the bank as undisclosed income of the assessee being the ex-partie ....