2019 (10) TMI 346

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....dabad ('CIT(A)' in short), dated 12.01.2018 arising in the assessment order dated 15.11.2016 passed by the Assessing Officer (AO) under s. 143(3) r.w.s. 147 of the Income Tax Act, 1961 (the Act) concerning AYs. 2010-11 & 2009-10. 2. The grievances raised being common, both cases were heard together and disposed of by the common order. 3. We shall first take up assessee's appeal in ITA No. 529/Ahd/2018 concerning AY 2010-11. ITA No. 529/Ahd/2018-AY-2010-11 (Assessee's appeal) 4. The grounds of appeal raised by the assessee read as under: "1.00 RE-OPENING IS BAD IN LAW. 1.01 On the facts and circumstances of appellant's case as well as in law, the Hon'ble CIT (A) has erred in confirming erroneous action o....

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....gregate cash of Rs. 33,42,622/- on the one hand and withdrawn cash of Rs. 30,50,000/- in aggregate on the other hand. It was further noticed by the AO that the assessee did not file return of income for AY 2010-11 at all. Consequently, a notice under s.148 of the Act was issued and re-assessment proceedings were undertaken under s.147 of the Act. In scrutiny assessment, pursuant to the exercise of powers under s.147 of the Act, it was held by the AO that various cash deposits were made in the assessee's bank account aggregating to Rs. 33,42,622/- remained unexplained. The AO accordingly made additions towards unexplained cash deposits in bank to the aforesaid extent. 8. In the first appeal before the CIT(A), the assessee submitted that t....

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.... retail business. The learned AR thus submitted that having regard to the continuity of deposits and withdrawals, it is obvious that the assessee has re-cycled the same money and has no wherewithal to generate such kind of cash deposits. The learned AR thus submitted that the action of the Revenue in making additions towards aggregate amount of cash deposits while completely ignoring the simultaneous cash withdrawals is totally unjustified in the facts and circumstances of the case. The learned AR however submitted that the grievance of the assessee would be met if the provisions of Section 44AF of the Act is invoked as applicable to the persons engaged in retail trade in any goods or merchandise and the sum equal to 5% of the total turnove....

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....ibutable to retail trade. This being so and in view of the averments made on behalf of the assessee, the business income from retail trade may be estimated by invoking Section 44AF of the Act. Similar view has been echoed in CIT vs. Pradeep Shantilal Patel (2014) 42 taxmann.com 2 (Guj) and CIT vs. Surinder Pal Anand (2011) 242 CTR 61 (P&H). 13. As per the scheme of presumptive taxation provided under s.44AF of the Act, the estimated business income from aggregate cash deposits / turnover works out to Rs. 1,67,131/- by applying 5% thereon. The estimated income from the cash deposits in the bank is thus requires to be restricted to the aforesaid amount. The AO is directed to do so. 14. In the result, the appeal of the assessee for AY 20....