TaxTMI 
TaxTMI 
2023 (3) TMI 207
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....ave taken by the tax consultant. 3. However, on receipt of the recovery notice it was realized that the appeal was not filed by the tax consultant within the stipulated time which has caused delay in filing the appeal. As per the assessee, it was not the fault of the assessee for the delay in filing the appeal before the ITAT. To this effect, the assessee has filed the affidavit which is placed on record. 3.1 In view of the above, the Ld. counsel for the assessee prayed to condone the delay and admit the appeal for fresh hearing on merit. 4. On the contrary the Ld. DR opposed to condone the inordinate delay caused by the assessee out of his ignorance. 5. We have heard the rival contentions of both the parties and perused the materials available on record. Admittedly, the appeal to be filed on or before October 2019 was filed on 28/05/2020, with the delay of 226 days. At this juncture, it is important to note that there was a lock down in the country due to outbreak of covid-19 and the Hon'ble Supreme Court condoned the delay vide order dated 15-03-2020 in the case of Cognizance for Extension of Limitation, reported in 125 taxmann.com 151 for certain period of time. Thus, the pe....
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....sition is, therefore, that, regardless of whether the revised return was filed or not, once an assessee is in a position to show that the assessee has been over-assessed under the provisions of the Act, regardless of whether the over-assessment is as a result of assessee's own mistake or otherwise, the CIT has the power to correct such an assessment under section 264(1) of the Act. If the CIT refuses to give relief to the assessee, in such circumstances, he would be acting de hors the powers under the Act and the provisions of the Act and, therefore is duty-bound to give relief to an assessee, where due, in accordance with the provisions of the Act. 5.4 From the above it is revealed that the income of the assessee should not be over assessed even there is a mistake of the assessee. As such the legitimate deduction for which the assessee is entitled should be allowed while determining the taxable income. We also note that the Hon'ble Gujarat High Court in the case of Vareli textile industry versus CIT reported in 154 Taxman 33 wherein it was held as under: It is equally well-settled that where a cause is consciously abandoned (as in the present case) the party seeking condonation....
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....the assessee failed to file return in response to notice issued under section 148 of the Act. Thereafter, several notices under section 142(1) of the Act were issued but no reply was received by the AO. Therefore, the AO in absence of reply from the assessee proceeded to framed assessment under section 144 r.w.s. 147 of the Act and assessed the income of the assessee at Rs. 29,54,440/- by treating the cash deposit as unexplained cash credit under section 68 of the Act. 8. On appeal by the assessee, the learned CIT(A) also confirmed the order of the AO by observing as under: 6.1 I have carefully considered assessment order and submission filed by appellant. The AO has issued reassessment notice on the ground that, appellant has made cash deposit of Rs 29,56,440 in his saving bank account with 1CICI bank limited. As appellant has not furnished any explanation in assessment proceedings, AO made addition of such cash deposits-.- The appellant has objected to such addition and contended that he has small job work of hosiery products and cash deposits are out of such business. The appellant has submitted computation of income as well as annual account containing profit & loss account,....
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....authorities below and an appreciation of the facts on record, we find that as argued by the learned D.R. for Revenue, except for raising the grounds of appeal (supra), the assessee has failed to bring on record any evidence to establish his claims that the deposits in the ICICI Bank, saving bank account at IChar (W), Mumbai was out of receipts connected wkh his business transactions. In our view the assessee has failed to controvert the findings of the authorities below that he was not engaged in any business activity during the year under consideration. Therefore, in our considered opinion, the said unexplained deposits amounting to "27,l0,812/-i the source of which has not been satisfactorily explained by the assessee, has been correctly treated as unexplained money under section 69A of the Act and brought to tax in the assessee's hands. In this view of the matter, and finding no reason to interfere with the decision of the learned CIT(A) in the impugned order, we uphold the same. Consequently, the grounds at S.No.1 to 4 raised by the assessee being devoid of merit are dismissed." In the present case, appellant has failed to justify cash deposited in his bank account for Rs....
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.... assessee from his business by applying 5% profit rate to his turnover of Rs. 20,85,825/-. It is evident therefore that it is an accepted fact that the assessee is a very small businessman and it is common knowledge that such small businessmen conduct almost their entire business in cash. Therefore it cannot be ruled out completely that the entire turnover of the assessee was in cash. Having said so another very pertinent fact is that neither do such small businessmen maintain any books of accounts worth its while nor are they required under law to maintain books of accounts as per Section 44AD of the Act, as per which the assessee had returned the impugned income on presumptive basis. But having said so, the assessee still needs to substantiate his turnover with certain documentary evidences so that the correct estimation of his net profits by applying the rate specified under the section can be made. However in the peculiar facts of the case before us the assessee was asked to justify this fact after a lapse of six years in reassessment proceedings. Considering the fact that he was a very small businessman, operating in unorganized sector, it was asking for too much to produce bi....