TaxTMI 
TaxTMI 
2021 (5) TMI 750
X X X X Extracts X X X X
X X X X Extracts X X X X
....u/s 139(9] was issued by him. 4. The learned CIT(A) has erred in law and on facts in relying on the c judgment of Hon'ble Mumbai Tribunal facts of which case are distinguishable from the facts of the appellant's case in as much as the appellant in quoted case neither appeared before the CIT(A) nor before the Tribunal whereas there was proper representation before the CIT(A) in appellant's case. 5. The learned CIT(A) has erred in law and on facts in not appreciating the fact that the total amount of Rs. 13,63,985/- was not deposited in one go but on several dates and almost each deposit is followed by corresponding withdrawal and there is no dispute that the bank account belongs to the appellant and so only peak of the cash credits in the bank account may be held as unexplained money u/s 69 A. 6. The appellant craves leave to amend or substitute all or any of the ground at the time of hearing." 3. Ground Nos. 1 to 3 are regarding the validity of initiation of proceedings u/s 147/148 for want of valid service, incorrect facts recorded by the Assessing Officer (A.O.) in the reasons for reopening and non- adjudication of these issues by the Ld.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....int although he has incorporated whole submission of the appellant in his body of order. The appellant submits that as per ground No.4 of the original set of grounds of appeal, the appellant reserved its right to amend / modify the existing grounds of appeal and may also add any other grounds before the hearing of appeal. Under the circumstances, it was legally permissible to him to be adjudicated on substituted grounds of appeal. No doubt a discretion is vested on the Ld. CIT(A) vide subsection (5) of section 250 but he must give reason as to why the said discretion has not been used in the favour of the appellant. In view of above submission, it can be said that learned CIT(A) has erred in law as well as on fact to not entertain the substituted grounds of appeal without any reason. Reliance is placed by the appellant on ratio of following judicial pronouncements: 1. Ajeet Kumar Seth v. Commissioner of Income-tax [2008] 170 Taxman 154 (Allahabad) 2. Commissioner of Income-tax v. Jindal Saw Pipes Ltd. [2010] 328 ITR 338 (Delhi) 4.4 It is further submitted that service of notice is a sine qua non for initiation and completion of a valid proceeding. The appellant....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eturn in Form No.2D for A.Y.2006-07 did not lack statutory status as held by the learned CIT(A). Moreover, if for a moment it is assumed that it was so, the AO should have issued notice u/s 139(9) to get the same corrected which has not been done in this case. Secondly, the impugned return was filed in the counter of the department and if it was not a prescribed return, it should not have been accepted by the department. Thirdly, negating the information given in the said return (whether it is valid or invalid) is not justified because the department has accepted the same and information was with the department on 09-03-2007 i.e. before initiation of proceedings u/s 147. 4.6. In regard to this ground, the appellant contended that the learned CIT(A) has failed to appreciate that total cash deposit of Rs. 13,63,985/- was not deposited in one go but the same was deposited round the year in several amounts. Similarly, there were cash withdrawals after some deposits through cheques. Under the circumstances if it is assumed that the appellant has some unexplained money with him, it is logical conclusion that the same money was recycled in the bank account in the form of cash deposi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onically but the same was claimed to have been filed manually therefore, it was not in the knowledge of the A.O. at the time of issuing notice u/s 148 of the Act. The Ld. CIT (A) has clearly held that the alleged return of income filed in Form 2D manually is nothing but after thought act of the assessee to avoid the tax liability. The assessee has failed to produce any documentary evidence to explain the source of the deposit made in the bank account. Thus, reopening is valid when there is a tangible material with the A.O. in the shape of deposits in the bank account of the assessee to form the belief that the income assessable from tax has escaped assessment. He has relied upon the orders of the authorities below. 6. I have considered the rival submissions as well as relevant material on record. As far as deposit of cash in the savings bank account of the assessee to the tune of Rs. 13,66,985/- is concerned the assessee has not disputed the said amount and the information received by the Assessing Officer on the basis of AIR information. The assessee has explained the source of cash deposit as the contract receipt which were offered to tax in the return of income filed by the a....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... CIT (A) has rather stated that these grounds are general in nature. Thus, it is a matter of fact that all these issues regarding validity of reopening of the assessment and proceedings u/s 147 of the Income Tax Act without considering the fact of return of income filed by the assessee on 09.03.2007 as well as for want of valid service notice u/s 148 of the act remained un-adjudicated at the level of the A.O. as well the Ld. CIT (A). Though these issues an legal in nature however adjudication of same certain facts and record are required to be verified which are not before this Tribunal. Thus, in the facts and circumstances of the case these issues are remanded to the record of the A.O. for deciding the same after giving an appropriate opportunity of hearing to the assessee. 7. Ground No. 4 and 5 are regarding the merits of the additions made by the A.O. on account of cash deposit in the bank on account of the assessee. The Ld. A.R. of the assessee has submitted that the Ld.CIT (A) has relied upon the decision of the Mumbai Benches of the Tribunal in case of Shri Prabhat M. Chamriya vs. I.T.O. in ITA No. 3059 of 2015 dated 05.05.2017 however, the said decision was subsequent....