TaxTMI 
TaxTMI 
2013 (4) TMI 844
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....the assessee. The assessee appeared before the ld. CIT through his counsel and filed the required details and written submissions. The ld.CIT considering several issues found the order of the Assessing Officer to be erroneous and prejudicial to the interest of Revenue and set aside the same to the file of the Assessing Officer with the direction to pass the assessment order afresh de novo on various issues discussed by him the impugned order. The issues considered by the ld. CIT(A) are briefly as under : (i). From the perusal of the record it was revealed that this case was selected for scrutiny assessment on the basis of AIR information wherein it was reported that the assessee has deposited cash of Rs. 1,01,35,000/- in saving bank account of Uttaranchal Gramin Bank, Dehradun. The details are available on record. The assessee also maintained other bank accounts in bank of Baroda, BHU Branch, Varanasi and State Bank of India, Dehradun. The deposits are mentioned at page 2 of the impugned order. It was further found that the assessee was engaged in the country liquor business and during the assessment proceedings, the profit and loss account filed shows sales to the tune of....
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....ent appeal, the ld. Counsel for the assessee brought to our notice that there were certain inconsistencies and mistakes in the impugned order u/s. 263 of the IT Act and the assessee has preferred the rectification application u/s. 154 of the IT Act before the ld. CIT, Varanasi and his rectification application has not been decided by the ld. CIT. Considering the above submission, it was found proper to direct the ld. Commissioner to decide the application of the assessee u/s. 154 of the IT Act. The ld. Counsel for the assessee now intimated that the ld. Commissioner took up the application of the assessee u/s. 154 of the IT Act as per directions of the Tribunal and the assessee was given opportunity, in which also, the assessee explained each and every issue on which the assessment order was set aside, but the ld. Commissioner did not apply mind to the submissions of the assessee and rejected/disposed of the application u/s. 154 of the IT Act vide order dated 27.12.2012, copy of which is filed at page 185 of the paper book. He has submitted that on all the issues, the assessee again explained the issues before the Commissioner, but instead of deciding the objections of the assessee....
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....iled detailed reply before the Assessing Officer on 18.11.2011 (P.B.-98), in which complete details of the deposits were explained and it was explained that on certain dates, there were certain withdrawals of the cash amount and equivalent amount was re-deposited in the same bank account with Uttaranchal Gramin Bank, Dehradun. Copy of the bank account is filed at pages 86 & 87 of the paper book. He has submitted that total cash deposit in this bank was Rs. 62,85,500/-. Rs. 35,00,000/- was deposited in the same bank within one week after withdrawal from the same bank. There were further cash deposits by withdrawing the same from M/s. Pyare Lal Jaiswal & Co., AOP in a sum of Rs. 25,49,000/-. Copy of ledger account of AOP is filed at pages 117 and 118 of the paper book. He has, therefore, submitted that the cash deposited above is explained through known sources and there was only balance of Rs. 2,36,500/-, which was deposited out of sales made by the assessee. It was submitted that the issue of deposit in the Uttaranchal Gramin Bank was fully explained before the Assessing Officer. (ii). As regards the deposits made in other banks, i.e., Bank of Baroda Branch Rohania, explan....
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....holding that the assessee has not opposed the extra profit addition in the matter. (iv). The ld. Counsel for the assessee submitted that the ld. CIT considered the bank deposits of Rs. 40,00,000/- for the purpose of compulsory audit u/s. 44AB of the IT Act, but in the above provision, the turnover and gross receipts have to be considered and not the total bank deposits. Therefore, the case of the assessee would not fall for compulsory audit. On mere bank deposits, the provisions of section 44AB would not apply. (v). The ld. Counsel for the assessee further submitted that the ld. CIT has wrongly considered the issue of annual license fee of Rs. 17,47,200/- in the provisions under section 263 of the IT Act. In the notice u/s. 263 dated 14.06.2012, this issue is not raised by the ld. CIT, therefore, it cannot be considered u/s. 263 and the ld. CIT has no jurisdiction to pass order u/s. 263 on this issue. On merit, the ld. Counsel for the assessee referred to balance sheet as on 31.03.2009 (P.B.-14), in which license fee is shown at Rs. 2,52,000/-. The ld. CIT mistook the annual MGQ of 16800 BL-1400 per month, would mean minimum guarantee for lifting of goods for full....
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....sing Officer issued detailed questionnaire to the assessee way back from 01.09.2011 (PB-4) when notice u/s. 142(1) was issued to the assessee for completion of assessment, in which on 9 points, the explanation of the assessee was called for. In the same, the Assessing Officer also mentioned AIR information received regarding deposit of Rs. 1,01,35,500/-. The assessee filed reply to the same and statement of assessee on oath was also recorded, in which the assessee has explained that aforesaid figure of Rs. 1,01,35,500/- is incorrect in Uttaranchal Gramin Bank, Dehradun because the correct figure was Rs. 62,54,500/- (P.B.-98). It was explained that there were withdrawals from the same bank and other amounts were withdrawn from AOP, which were deposited in the bank account of the assessee. The same are supported by the bank statement of assessee and bank statement & ledger account of the AOP. Thus, there was balance of Rs. 2,36,500/-, which the assessee claimed to be deposited after making the sales. Regarding other bank accounts with Bank of Baroda and State Bank of India, the assessee filed detailed reply before the Assessing Officer at assessment stage, copies of which are filed i....
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.... case of CIT v. Vikas Polymers [2012] 341 ITR 537/[2010] 194 Taxman 57 held that explanation of the assessee not considered by the Commissioner - order of Revision not valid. Hon'ble Allahabad High Court in the case of CIT v. Goyal Private Family Specific Trust [1988] 171 ITR 698/[1987] 35 Taxman 522 observed that the order of the ITO may be brief and cryptic, but that by itself is not sufficient reason to brand the assessment order as erroneous and prejudicial to the interest of Revenue. Since on the issue of bank deposits, detailed queries have been raised and the assessee furnished all explanations and also explained that the figures taken by the ld. Commissioner are incorrect and the Assessing Officer after detailed enquiry accepted the claim of assessee, which was just and proper in the matter, therefore, the ld. CIT should have examined the same details in proper perspective and should not have directed the Assessing Officer to re-frame the assessment on the same facts afresh by passing the order u/s. 263 of the IT Act. The Assessing Officer examined all the material on the issue. Therefore, there was no justification for the ld. CIT to have set aside the impugned order. ....
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.... the ld. Commissioner would not have any jurisdiction to pass any adverse order against the assessee on this issue. Similarly for deduction claimed under Chapter VI-A (LIP deduction), the assessee claims that it is covered by drawings. Therefore, there is no question of showing the same on asset side. On this issue also, no notice u/s. 263 has been issued against the assessee. Therefore, no order can be passed adverse against the assessee by the ld. Commissioner. We rely upon the decision of Hon'ble Madras High Court in the case of CIT v. Smt. R.G. Umaranee [2003] 262 ITR 507/127 Taxman 265, wherein it was held as under : "Held, (i) that in the absence of any notice by the Commissioner to treat the cost of construction of the building as undisclosed income of the assessee it was not open to the Commissioner to hold that the cost of construction of the building would represent undisclosed income of the assessee and hence the Commissioner was not justified in directing the Income-tax Officer to initiate an enquiry regarding the cost of construction of the building, and after ascertaining the valuation, treat the unexplained investment as the undisclosed income of the ass....