TaxTMI 
TaxTMI 
2019 (5) TMI 887
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....not a valid notice and, therefore, assessment Completed on basis of it was also invalid. 3. Whether Commissioner (Appeals) was justified in not considering the new ground. 4. Whether, since, in instant case, the assessing authority is justified in assuming jurisdiction to frame the impugned Assessment Order and to make impugned addition and disallowance. More so, the same have been made in absence of any adverse material having been found and seized during the course of search. 5. Commissioner (Appeal) has not considered the additional evidences on which the assessing authority has not made any enquiry. 6. The commissioner (Appeal) has not considered the ground no. 9 regarding objection of jurisdiction of the appellant." 3. During the course of hearing of the appeal, The assessee filed the additional ground of appeal as under:- "That having regard to the facts and circumstances of the case, the learned CIT - A, has erred in confirming the addition amounting to INR 512000/- on account of unexplained bank deposit under section 68. 4. The assessee submitted that appellant has submitted the main ground of appeal, thorough oversight thi....
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....rce of the cash deposit. The assessee submitted that cash deposit of INR 60,000 on 17/5/2003 is out of the loans of the various parties. However, the balance of INR 6000 no explanation was provided. The assessee also did not file any confirmation in respect of the above loans received. Further, the loans were also given in cash. No books of accounts have been maintained are produced before the assessing officer. Therefore, the learned AO treated the above sum of INR 60,000 as unexplained income and added the same under section 68 of the income tax act. The next cash deposit of INR 55,000 on 21/8/2003. The assessee‟s counsel submitted that it is out of cash of INR 18,000 received from three gentlemen. The three persons were the same persons who are also discussed in the cash deposit of INR 60,000/- on 17/5/2003. Therefore, the learned assessing officer rejected the explanation of the assessee, treated the sum of INR 55,000 /- as income from undisclosed sources, and added under section 68 of the income tax act. A further sum of Rs. 90,000/- was deposited on 18/9/2003. The assessee explained the source out of the cash withdrawal on 9/9/2003 of INR 50,000 and INR 12,000, 18,00....
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....ent completed based on it was invalid. The main argument of the assessee is that the appellant submitted its return of income on 7/12/2007. However the learned assessing officer issued notice under section 143 (2), on 6/12/2007. Therefore this notice is not a valid one as per the provisions of section 143 (2), which makes it clear that the notice can only be served after the learned assessing officer examined the return of income filed by the appellant. For this proposition, he relied upon the decision of the honourable Delhi High Court in 323 ITR 249 in DIT vs Society for worldwide interbank financial telecommunication. 11. The learned departmental representative vehemently submitted that there is no requirement of issue of notice under section 143 (2) of the income tax act in case of a search, assessment. He relied upon the decision of the honorable Delhi High Court in case of shri Ashok Chaddha wherein it has been held that where the returns has been filed under section 153A of the income tax act, there is no requirement of the issue of notice under section 143 (2) of the income tax act. Even otherwise, he submitted that the assessee has filed the return of income not in r....
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...., in case of search assessments u/s 153A of the act there is no requirement of issue of notice u/s 143(2) of the act. This issue is squarely covered against the assessee by decision of the honorable Delhi High Court in case of CIT vs Ashok Chadha [2012] 20 taxmann.com 387 (Delhi)/[2011] 337 ITR 399 (Delhi) wherein it has been held that There is no specific provision in the Act requiring the assessment made under section 153A to be after issue of notice under section 143(2). The words 'so far as may be' in clause (a) of sub-section (1) of section 153A cannot be interpreted that the issue of notice under section 143(2) is mandatory in case of assessment under section 153A. The use of the words 'so far as may be' cannot be stretched to the extent of mandatory issue of notice under section 143(2). A specific notice is required to be issued under clause (a) of sub-section (1) of section 153A calling upon the persons searched or requisitioned to file return. That being so, no further notices under section 143(2) can be contemplated for assessment under section 153A. In view of this, we do not find any infirmity in the order of the learned assessing officer in issuing noti....
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.... deposits are not exceeding INR 18,000/- which also creates the doubt with respect to the genuineness of the loans obtained by the assessee. He further stated that the no proofs of repayment of these loans have been provided by the assessee and therefore the provisions of section 68 are correctly applied by the lower authorities. He extensively referred to the orders of the lower authorities. 16. We have carefully considered the rival contention and perused the orders of the lower authorities. In the present case the assessee has deposited cash in his bank account and the source of the cash deposited in this bank accounts have been shown by the assessee as loan from various parties. In support of which the assessee could submit only the affidavits. There are no evidences submitted by the assessee about the repayment of these loans. Affidavits submitted by the assessee are also self-serving evidences, which does not disclose any source of income in the hands of those depositors. It is very interesting to read the remand report submitted by the learned assessing officer dated 9/9/2009, wherein, he noted that there are 17 persons from whom the assessee has obtained a loan of ....
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....IT - A, in confirming the addition u/s 68 of the income tax act of the amount deposited in the bank account of the assessee. Accordingly, ground numbers 3 - 6 of the appeal are dismissed. 17. In the additional ground the assessee contented that the learned CIT - A, has erred in confirming the addition amounting to INR 512000/- on account of unexplained bank deposit under section 68 of the income tax act. The argument of the assessee is that provisions of section 68 of the income tax at act apply only when the amount is credited in the books of accounts. In the present case the assessee does not maintain any books of accounts and therefore the amount deposited in the bank account of the assessee cannot be considered to be the amount credited in the books of accounts of the assessee and hence, the addition u/s 68 made by the learned assessing officer and confirmed by the learned CIT - A, is invalid. 18. The learned departmental representative vehemently supported the order of the learned assessing officer/CIT - capital and submitted that the amount has been deposited in the bank account of the assessee and therefore the addition is rightly been made under section 68 of the inco....
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....he honourable Bombay High Court noted that in Sudhir Kumar Sharma (HUF) vs CIT, 46 taxmann.com 340, honourable High Court noted that when during the course of assessment proceedings, assessing officer noted that the assessee has deposited huge amount of cash in his bank account, the addition of the said amount in the income of the assessee, by invoking the provisions of section 68 of the income tax act is justified. It was further held that onus is on the assessee to explain the nature and source of the said cash deposits. Special leave petition was preferred challenging the above judgment before honourable Supreme court. However, the honourable Supreme Court has dismissed the same in 69 taxmann.com 219 [239 taxmann 264]. In view of this, even if the assessee does not maintain any books of accounts but the amount is deposited in the bank account of the assessee, which remains unexplained the addition could be correctly made u/s 68 of the act. Further looking at the definition of the "books or books of accounts‟ it is apparent that passbook is a daybook which is kept in the return form or as a printout of data stored in a floppy. Therefore, after the introduction of the def....