TaxTMI 
TaxTMI 
TaxTMI 
2024 (9) TMI 1047
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....ther contrary to the real facts of the case hence the same may kindly be quashed. 2. Rs. 3,80,000/- : The ld. CIT(A) has grossly erred in law as well as on the facts of the case in confirming the addition of Rs. 3,80,000/- made by the ld. AO on account of cash deposited in the bank account during the year. The Ld. AO and CIT(A) both have also erred in not considering the vital facts and material available on record in their true perspective and sense available on record. Hence the addition so made by the ld. AO and confirmed by the ld. CIT(A) is also being contrary to the real facts of the case and not according to the provision of law, hence the same may kindly be deleted in full. 3. The ld. AO has grossly erred in law as well as on the facts of the case in charging the interest u/s 234A, B,C. The interest so charged is being totally contrary to the provision of law and on facts of the case and hence same may kindly be deleted in full. 4. That the appellant prays your honour indulgences to add, amend or alter of or any of the grounds of the appeal on or before the date of hearing." 3. At the outset of hearing, the Bench observed that there is delay of 152 days in filing of ....
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....he status of the appeal, then on 06.07.2024 he has checked the portal and has come to know that the CIT(A) has passed the order on dt.15.12.2023. The assessee were under impression that they would have been received orders and notices on new email id. 3. That thereafter our counsel has started to prepare the appeal and the appeal has been prepared on 09.07.2024 and sent to us for sign. 4. Thus there was no also negligence's of either assessee nor the counsels who was the under impression that the order will be received on new email id. Thus due to above reason the appeal could not be filed within time. In support of these contention an affidavit of the Karta of HUF is enclosed. 5. It is submitted that the Hon'ble Supreme Court in the case of Collector, Land & Acquisition v. Mst. Katiji & Others (1987) 167 ITR 471 (SC) has advocated for a very liberal approach while considering a case for condonation of delay. The following observations of the Hon'ble Court are notable: "The legislature has conferred the power to condone delay by enacting section 5 of the Limitation Act 1963 in order to enable the Courts to do substantial justice to parties by disposing of matter....
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....ubmitted that the reasons of late filling is on account of the non-service of the order on the email id. The assessee has submitted the email id on record namely [email protected] and [email protected] on which no notice was served. The assessee in support of the contention filed an affidavit. 5. The ld. DR also submitted that considering the explanation reasons advanced are not sufficient to condone the delay. Revenue cannot serve the notice to the assessee as per various choices from time to time. The assessee has time and again preferred to give different e-mail and has not corrected the e-mail on the portal. Therefore, the delay may not condoned. 6. We have heard the contention of the parties and perused the materials available on record. The prayer by the assessee for condonation of delay of 152 days has merit as the notice on the email id was not served to the assessee and thereby the delay in filling the appeal has occurred. Thus, the delay of 152 days in filing the appeal by the assessee is condoned in view of the decision of Hon'ble Supreme Court in the case of Collector, land Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC) held that there is no presu....
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....l fixing the case for hearing on 23.09.2019 and asked why not cash deposit of Rs. 3,80,000/- be disallowed and added to his total income. In response of the above, no reply furnished by the assessee. Again, a final show cause dated 04.10.2019 issued and served through ITBA portal asking the source of cash deposited. Further, no reply submitted by the assessee either through mail or through speed post. Therefore, the unexplained cash deposit of Rs. 3,80,000/- was added back in total income of the assessee u/s 68 of the IT. Act, 1961. 9. Aggrieved from the said action of the Assessing Officer, assessee preferred an appeal before the ld. CIT(A)/NFAC. The relevant finding of the ld. CIT(A) is as follows: "6.3 Thus it was imperative on the appellant to explain the source of cash deposit. The appellant has failed to prove that the transaction was genuine. He failed to explain the source of the deposits. Having failed to discharge his onus and explain the source of cash deposits the addition has aptly been made by the AO. In view of these backdrops, the AO while initiated the re-assessment proceedings and in completing the assessment proceedings u/s 144 r.w.s 147 of the Act, has not c....
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....the assessee has submitted all the details. The ld. AO has noted that during the course of assessment proceeding, on examination of books of accounts, it is found that cash opening balance was of Rs. 1,42,593.92 and cash received on 15.06.2011 of Rs. 6,520/-, thus total comes to Rs. 1,49,113.92 and an amount of Rs. 2,00,000/- in cash deposited resulted in negative cash balance. The ld. AO has alleged that therefore the unexplained cash deposited of Rs. 3,80,000/- is added back in the total income of the assesseee u/s 68. In first appeal assessee filed the detailed WS, paper Book and legal position of law. However the ld. CIT(A) did not consider the same in their true perspective and sense and confirmed the addition by stating that "Thus it was imperative on the appellant to explain the source of cash deposit. The appellant has failed to prove that the transaction was genuine. He failed to explain the source of the deposits. Having failed to discharge his onus and explain the source of cash deposits the addition has aptly been made by the AO. From perusal of para 6 of the statement of facts, quoted above, it is apparent that the objections of the appellant (assessee) of the pres....
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....d factual assertion of the Assessing Officer in the reasons recorded is totally incorrect. He has referred to said sum of Rs. 1,18,95,000/- as a sale price of the property. The assessee had produced before the Assessing Officer, the sale deed in which, the sale consideration disclosed was Rs. 50 lakhs. 12. The Assessing Officer may be correct in pointing out that when the sale consideration as per the sale deed is Rs. 50 lakhs but the registering authority has valued the property on the date of sale at Rs. 1,18,95,000/- for stamp duty calculation, section 50C of the Act would apply, of course, subject to the riders contained therein. However, this is not the cited reason for reopening the assessment. The reasons cited are that the assessee filed no return and that 1/3rd share of the assessee from the actual sale consideration of Rs. 1,18,95,000/- therefore, was not brought to tax. These reasons are interconnected and interwoven. In fact, even if these reasons are seen as separate and severable grounds, both being factually incorrect, Revenue simply cannot hope to salvage the impugned notice. Through the affidavit-in-reply a faint attempt has been made to entirely shift the centre....
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....cer ultimately by-passing assessment order made addition on account of undisclosed cash deposits PNB'-Assessing Officer also disallowed disallowance under Chapter-VI-A by taking view that no such deduction claimed in original return of income and no evidence to substantiate such deductions were filed-CIT(A) observed that pattern of withdrawal support contention of assessee is that deposit in bank were pertaining to business of its scrap-Accordingly, accepted transaction-CIT(A) on basis of pattern of deposit and withdrawal in PNB concluded that assessee shifted a part of his business turnover to undisclosed bank account-CIT(A) calculated profit on account of undisclosed sales, credit in bank account and accordingly worked out addition and directed Assessing Officer that while computing income of assessee-Held, Assessing Officer recorded that assessee filed return in his return of income and revised return of income, as "It was also noted by undersigned that assessee had returned income of Rs. 3,56,170/- in his return of income and in revised return of income, assessee returned income of Rs. 5,00,660-Thus, during reassessment, Assessing Officer was very well aware i.e., return wa....
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....n held" Reassessment-Issuance of notice under section 148 after proceedings under Section 148A (d)-Writ petition seeks to assail correctness and validity of order passed by respondent, whereby, after initiating proceedings under Section 148A (d) on formation of an opinion that income chargeable to tax has escaped assessment, authority proceeded to issue notice under Section 148-Respondent issued notice under clause (b) of Section 148A on basis of certain information which suggested that income chargeable to tax for assessment year 2015-2016 has escaped assessment within meaning of Section 147-Notice stated that assessee did not disclose this amount of cash deposit during relevant financial year and, therefore, on that basis, proceedings are required to be initiated-Competent authority proceeded to pass an order for issuance of notice under Section 148-Thereafter, a notice under Section 148 has been issued to petitioner-assessee-Held, After amendment carried out in income tax under Finance Act, 2021, even before proceedings under Section 148 could be drawn, law requires an order to be passed under Section 148A by conducting an enquiry in manner provided under Section 148A and sati....
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....t assessment year, order of authority could be well justified on touch stone of legal requirement as embodied under Section 148A-However, in present case, undisputedly it is a case where more than three years have elapsed from end of relevant assessment year-In that case, in order to initiate proceeding under Sections 148, it is not only required to be shown that some income chargeable to tax has escaped assessment, but also that it amounts to or is likely to amount to Rs. 50,00,000/- or more than for that year- Only on basis that cash deposits of Rs. 19,39,000/- chargeable to tax have escaped assessment, without anything more, authority was not justified in jumping to conclusion that assessee may have more bank accounts-If such an interpretation is placed on provision of Section 148A (d) with reference to expression 'material available on record', then in that case, it will open flood gate and even without availability of any material, authority would be initiating proceedings under Section 148, which will completely frustrate object of incorporation of Section 148A in Act-It is well settled principle of interpretation that taxing statute is required to be construed strictly-Impug....
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....stricted only to the cash deposited in the bank account but there is no material tangible, credible, cogent and relevant material to form a reason to believe that cash deposited in the bank account represent the escaped income, when other side the material available that the assessee is doing the trading of marble and day to day cash sale also there which has been deposited time to time in bank after cash accumulation. Hence reopening is invalid illegal on the basis without material in the hands of the assessee and also after ignoring the material which support the case of the assessee. 3. Reason to believe and not reason to suspect: 3.1 It is further submitted that even under the amended law by the finance act 1989 the condition precedent or words, which continues right since inception till date, are "reason to believe" and not "reason to suspect". The word "believe" has to be understood in contradistinction of suspicion or opinion. Belief indicates something concrete or reliable. Kindly refer Gangasharan & Sons Pvt. Ltd. 130 ITR 1 (SC), and ITO v. Lakhmani Mewal Das, (1976) 103 ITR 437 (SC). 3.2 The belief of the Officer should be as to escapement of income and the belief s....
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....ulled.(para16). Prayer: Thus in view of the above facts, circumstances and the legal position of law the proceedings so initiated and assessment so passed may kindly be quashed. GOA-2: Addition of Rs. 3,82,000/-on account of cash deposit in the bank account u/s 69A as alleged unexplained money. FACTS: Kindly refer Add. GOA SUBMISSIONS: 1. Correct facts and transaction has not been taken in true perspective and sense: As the assessee was having income from trading of marbles, during the year he has declared the total turnover of Rs. 27,02,533/- (PB19, 3) copy of sales register is also enclosed (PB59- 84)and also having purchase of 22,41,581/- in support we are also enclosing herewith trading accounts (PB19). Copy of cash book is also enclosed in our support (PB20-57). And on perusal of the bank statements (PB86-101) it will shows that all the entries matching and supporting the case of the assessee regarding the sources of cash deposit in the bank account. 2. Further on perusal of the bank statement it is also admitted facts that the cash deposited has been utilized in the purchase which has not been doubted by the ld. AO and CIT(A). The ld. AO has neither disputed the p....
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.... above facts, material, evidences, which is clearly appearing from his order at page 13 wherein he only stated that "Thus it was imperative on the appellant to explain the source of cash deposit. The appellant has failed to prove that the transaction was genuine. He failed to explain the source of the deposits. Having failed to discharge his onus and explain the source of cash deposits the addition has aptly been made by the AO". But he failed to bring and controvert the above facts and details nor rebutted the same. Further the order passed or based on the wrong facts and material liable to be quashed in fully. 5. Thus there was clean sources of deposits and the lower authorities has ignored the same. In support we are enclosing herewith the both the bank statements, purchase details, sales details cash book trading account ITR etc. And the ld. AO has ignored all these rather he has proceed on mere assumption, presumption, suspicion only on the reasons to sustained his reopening stands. 6. No supporting material with AO: When the assessee in support had all the above evidences to prove the genuineness and correctness of the deposits made in his bank account during the year. ....
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.... IT act 1961. On this preposition kindly refer Krishna Agarwal vs. ITO in ITA No. 53/JODH/2021 dt. Sep 7, 2021 (2021) 63 CCH 0048 Jodh Trib(Supra). 9. Here we would like to submit that while doing a judicious act by a person (here the AO) should also keep in mind the circumstance, facts, general approach, status etc. . He should not restrict to himself only to the evidence where the same is not possible. Here the AO restricted to himself only evidence and ignored the circumstance, facts, general approach, status etc. Kindly refer the decision of Mange Ram Mittal v/s ACIT 105 TTJ 594(Del)(SB). Hence we pray your honor to kindly consider our contention in the interest of natural Justice and delete entire addition. 10. Further how the ld. AO can said that all the cash deposited in the bank account were other than to the cash sales and the ld. AO has not stated that where the cash sales has been utilized by the assessee, when the ld. AO has not denied the cash sales rather accepted and assessed. 11. Further the no addition can be made u/s 68 on account of deposits in the bank account because the bank account cannot be termed as books accounts of the assessee is also a settled leg....