TaxTMI 
TaxTMI 
2022 (9) TMI 813
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....hereinafter "the Act"). 2. First of all, we will take up the appeal of the assessee for AY. 2010-11. The main grievance of the assessee is against the action of the Ld. CIT(A)/NFAC dismissing the appeal filed by the assessee citing the reason that the assessee has not filed condonation of delay of Seven Sixty One (761) days without calling from the assessee the reasons for delay. The Ld. CIT(A) also on merits confirmed the addition of Rs.36,69,295/- in respect of cash deposits in the bank account (Rs.18,44,255/- in ICICI Bank, Rs.37,65,900/- in Saraswat Co-op Bank A/c No. 197200100000301 and Rs.10,59,140/- in Saraswat Co-op Bank A/c. No. 197200100000355 without considering the submission of the assessee. Thus, the Ld. CIT(A)'s impugned action amounts to dismissing the appeal of the assessee without giving opportunity to the assessee which is in violation of natural justice. 3. Brief facts as noted by the AO are that the assessee is an individual who has derived income from salary, and income from other sources. The AO notes that the assessee had filed return of income on 25.05.2011 declaring total income of Rs.2,85,630/- and the return was processed u/s 143(1) of the Act. Lat....
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....residence to B-202, Poonam Enclave Film City Road, Malad (E), Mumbai-400097. (herein after "new house"). Because of the shifting of the residence, the assessee received the assessment order belatedly on 24.01.2019 and the assessee had duly filed the appeal on 21.02.2019 ie. within the thirty (30) day's of receipt of the same. For substantiating the aforesaid facts the assessee had brought to our notice the fact that assessment order dated 07.12.2016 was returned back by the postal authority to AO on 29.06.2017. And later the AO gave the postal covers enclosing the assessment order to the assessee on 24.01.2019 when the assessee got the assessment order. Copy of the speed post cover enclosing the penalty order u/s 271(1)(c) with seal of 29.06.2017 of postal authorities returned back to ITO Ward 30(3)(5) is seen with endorsement "unclaimed" and the assessee had filed an affidavit which has been sworn dated 23.06.2022 before Notary Public affirming the aforesaid facts for causing the delay in filing of appeal before the Ld CIT(A). 5. As noted (supra), the assessee aggrieved by the assessment order dated 07.12.2016 (AY. 2010-11), preferred an appeal before the Ld. CIT(A) on 21-02.20....
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....Name of the Bank and A/c. No. Amount F.Y. 1 ICICI Bank Saving A/c. No. 101901501136 Rs.18,44,255/- 2009-10 2 The Saraswat Co-op Bank A/c No.197200100000301 Rs.7,65,900/- 2009-10 3 The Saraswat Co-op Bank A/c No.197200100000355 Rs.10,59,140/- 2009-10 Total Rs.36,69,295/- 7. Even though, the assessee was summoned by the AO u/s 131 of the Act and the statement was recorded as discerned from perusal of the assessment order, the AO alleges in the assessment order that the assessee, did not co-operate and so he had no other alternative but to pass an order u/s 144/147 of the Act wherein he had to add the entire cash deposits in the three (3) bank accounts to the tune of Rs.36,69,295/- u/s 68 of the Act. On appeal, the Ld. CIT(A) has confirmed it inter alia on the reason that the assessee failed to give reason for the inordinate delay in filing of the appeal before him; and for not filing any supporting material to substantiate the assessee's claim that the cash deposits was not that of him but that was of M/s. Kareems Ltd. Before us, the Ld. AR of the assessee brought to our notice that the AO erred in passing the bes....
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....nk even though in the name of assessee (Vikas Sharma) was actually deposited by the director Mr. Kareem Dhanani and the AO being satisfied has taxed the same in the hands of M/s. Kareem's Hospitality Pvt. Ltd by passing the assessment order dated 17.11.2017 (for AY. 2010-11) (supra). 10. The Ld AR further brought to our notice that AO for AY. 2010-11, had made addition of Rs.7,65,900/- taking note that there was cash deposit in assessee's bank account no. 197200100000301 with Saraswat Co-operative Bank. However, it was pointed out to us that AO in the assessment order of M/s. Kareems Ltd. for AY.2011-12 (at para 6) refers to bank account no. ending with 301 with Saraswat Co-operative Bank and added Rs.7,11,202/- in the hands of M/s. Kareems Ltd (which Ld. AR states that is the very same bank a/c of assessee which has been referred by AO to make addition in the hands of assessee of Rs.7,65,900/- for AY. 2010-11). This fact according to him needs to be verified at the end of AO; and while doing so, take into consideration the admission made by the director of M/s. Kareems Ltd. Shri Kareem Dhanani albeit by letter dated 05.07.2022 before us which is reproduced as under: - ....
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....lity Pvt. Ltd., then addition may be deleted in the hands of assessee. 12. Further the Ld. AR, submitted that the assessee is not aware of the bank account no. 197200100000355 at the Saraswat Co-op Bank account wherein the AO has alleged cash deposits of Rs.10,59,140/- which according to the assessee after investigation by him was found to have been opened/operated by Aamil Reza Hemani and not that of the assessee. Therefore, according to the Ld. AR even on a perusal of the assessment order of the M/s. Kareem's Hospitality Pvt. Ltd it can be noted that only two bank accounts details of Mr. Vikas Sharma (manager/assessee) has been mentioned at para no. 7 and that entire amount of Rs.21,72,005/- has been taxed u/s 68 of the Act which fact is discernable from perusal of para no. 7 and para no. 12 of the assessment order in the case of M/s. Kareems Ltd. Therefore, according to the Ld. AR, the AO may be directed to inquire by issuing summons/notices u/s 133(6) of the Act from the respective bank concerned and then only make any addition if required as per law. 13. Having heard both parties and after perusal of records, we note that the AO has made the addition u/s 68 of the Act on....
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....nting to Rs.21,72,005/- is treated as unexplained income of the assessee company for the relevant assessment year." 15. In such a scenario, when the AO has added Rs.18,44,255/- + Rs.3,27,750/- = Rs.21,72,005/- which was cash deposited in the bank account of manager (Mr. Vikas Sharma) of the assessee company (M/s. Kareem's Hospitality Pvt. Ltd) the addition of the same amount in the hands of the assessee was not warranted. However, the Ld. AR was fair enough to admit before us that Bank account ending with 1544 of Sarswat Co-operation bank was not that of assessee, so the AO, observation to that extent of addition of Rs.3,27,750/- does not pertains to that of assessee. 16. According to the Ld. AR, the assessee is not aware of the bank account no. ending with 355 with the Saraswat Co-op Bank wherein Rs. 10,59,140/- has been deposited. Before us a bank statement pertaining to said account has been filed. Even on a perusal of the bank-statement filed before us of this account number ending with SBPUB/355 it is noted that it is of Aamil Reza Hemani and there are transaction wherein assessee's name is found wherein he has been transferred Rs. 5000/- on 12.10.2000 and Rs. 1,00,000/-....