TaxTMI 
TaxTMI 
2024 (9) TMI 1047
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....natural justice and various other reasons or and further 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 o....
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....ntly when the assessee asked to the other counsel who filed the appeal submission about the 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....
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....ve facts and circumstances and with the sympathy and settled legal position, the delay so caused may kindly be condoned." 4. The ld. AR of the assessee in addition submitted 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 c....
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....ow the source of cash deposited in the bank account. Hence a show cause along with Notice u/s 142(1) of the Act dated 16.09.2019 was issued and served upon the assessee through ITBA Portal 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 additio....
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....eposited in the bank is self justified. However the ld. AO did not feel satisfy with the reply and alleged that the assessee has not submitted any documentary evidences in support of the cash deposits in the bank account, while 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....
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....the said assessment year and income also offered his share of the declared sale consideration to tax as capital gain. The Assessing Officer may have dispute with respect to computation of such capital gain, he cannot simply dispute the fact that the assessee did file the return. Importantly, even the second 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 brough....
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....a vs. ITO ITA No. 476/SRT/2019, Feb 7, 2022 (2022) 64 CCH 0090 SuratTrib it has been held That Reassessment-Reopening of assessment-AO on basis of AIR information noted that assessee made deposit in his bank account in PNB-AO recorded that in response to notice under section 148; assessee neither filed return of income nor responded-Assessing Officer 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....
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....on was reasonable and justified-Therefore, assessee also succeeded on merit-Assessee's appeal allowed. 1.2.7 The Hon'ble Jurisdictional Raj. High Court in the case of ABDUL MAJEED vs. INCOME TAX OFFICER in D.B. Civil Writ Petition No. 7853/2022 Jun 29, 2022 (2022) 114 CCH 0245 RajHC (2022) 216 DTR 0305 (Raj), (2022) 327 CTR 0733 (Raj) it has been 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....
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....w that decision has to be taken on basis of material available on record- Material available on record before authority did not disclose any cash deposit or any other transactions which can be said to have escaped assessment, which was more than Rs. 50,00,000-Had it been a case of opening of case within a period of three years having elapsed from end of relevant 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 'materia....
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.... and trading, the sale proceed has been deposited. Hence if there is neither the escapement of income by the assessee nor proved then the notice issued u/s 148 is invalid. Further only cash deposited in the bank account cannot confer the valid jurisdiction u/s 148 , as there was no nexus between the prima facie inference arrived in reasons recorded and information. The information is restricted 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 si....
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....me had culminated into reassessment orders was the impugned order where AO rejected the objections submitted by Assessees pursuant to notice under Section 147/148. Order passed by AO in this behalf was not a speaking order which could not be sustained. In view of legal infirmity in the notice under Section 147/148 and laconic order of AO while rejecting objections Assessee the consequential assessment Orders were liable to be annulled.(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 ....
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....balance of Rs. 1,42,593/- on dt. 15.06.2011 is coming after cash deposits of Rs. 1,00,000/- on dt. 13.04.2011 and Rs. 80,000/-on dt. 10.05.2011 then how the addition of Rs. 1,80,000/- of earlier accepted cash deposits and sources can be added. Although there was no negative balance in support we have filed the summary of cash book vide PB58 which is clearing the entire position. 4.3 Interestingly the ld. CIT(A) has also confirmed the addition and action of the ld. AO without seeing all the 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 a....
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....ot disputed. Entire transaction of withdrawal and deposit are duly reflected in the bank account of the assessee and are verifiable from relevant records. The ld. AO has not brought on record the evidence that the assessee has utilized these cash any other assets or any other mode. 8. When source of cash deposit is explained and it is evident that it is the own cash of the assessee from the sales which has been deposited in bank account, then there is no question of making addition under the unexplained money u/s 69A of the 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 conte....
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.... ld. AR of the assessee vehemently submitted that utmost the amount of Rs. 50,886.08/- should be added as contended by the ld. AO in para 2 of annexure to the notice dated 16.09.2019. 13. Per contra, the ld. DR relied upon the order of AO as well as of ld. CIT(A). The ld. DR also argued that the addition has been made by the ld. AO after detailed examination of the records so reproduced by the assessee and as it is alternatively pleaded by the Counsel that the addition of Rs. 50,886.08/- be made as the records so produced are not complete and correct and therefore, she supported the order of ld. CIT(A). 14. We have heard the rival contentions and perused the material placed on record. The bench noted that in this case the addition of Rs. 3,80,000/- made. The assessee contended that the deposit of cash is sourced from the sales that has been booked for which the profit is also taxed by the revenue. At the same time the bench noted from the records so produced before the ld. AO the ld. AO noted that that the assessee has filed the details of sales along with sales register and bank statement. The ld. AO did not find any specific defects except that he observed that the copy ....