2021 (1) TMI 1064

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....the I.T. Act, 1961. 2. Learned CIT(A) failed to appreciate that source of deposit in bank account were related to business transaction. 3. Learned CIT(A) failed to appreciate that deposit in bank account were from business receipts, out of opening cash balance and out of cash withdrawal from bank account and same was shown in cash statement. 3. This appeal was earlier disposed of by this Tribunal vide order dated 5.5.2017 in ex-parte order. Thereafter in a miscellaneous application order dated 24.9.2019 the same was recalled. Pursuant thereto this appeal has been earned by us. 4. Brief facts of the case are that the assessee had not filed regular return of income. Assessment in this case was reopened. In response to notice under secti....

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.... SB A/c No. 003801515998 16,24,237 10,86,575 27,10,812         Total 33,10,812 5. Upon assessee's appeal learned CIT(A) found that since there were no books of accounts maintained, addition of section 68 of the Act is not sustainable . However he treated the return of income filed and the submission of the assessee that assessee has filed return of income under section 44AF of the Act and that deposits in bank were much less than the sale proceeds as an afterthought. However he held that the deposits in bank account was to be added under section 69A of the Act as unexplained investment. He directed that a sum of Rs. 24, 38, 819 should be added under section 69A of the Act. From where he got this figure was no....

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....undisclosed income of the assessee. 8. Upon careful consideration we find that pursuant to the notice received under section 148 of the Act assessee has duly filed the return of income. The assessing officer has not made any assessment whatsoever based upon the return of income filed. The assessee has shown sale proceeds of Rs. 17,36,556/- and income of Rs. 1,33,444/-. There is no comment whatsoever of the authorities below on this issue. No reason has been attributed as to why the deposits in bank account cannot be treated as part of the sale proceeds. There is no analysis whatsoever of the debits and credits in the bank account. In this regard is the claim of learned counsel of the assessee that assessee has sufficient opening balance ....

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....de by the assessing officer under section 69A of the Act and that also without any notice to the assessee in clear contravention of provisions of section 251(2) of the Act. 10. In the background of aforesaid discussion and precedent in our considered opinion the assessee having filed the return of income pursuant to the notice issued to the assessee has discharged the onus. The assessment made by the assessing officer by not commenting anything of the return of income filed but adding the random figure out of the bank deposit under section 68 of the Act is not sustainable. It is settled law that when assessing officer is rejecting the books of account and return of income filed by the assessee the best judgement assessment has to be based ....