TaxTMI 
TaxTMI 
2025 (5) TMI 324
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.... therefore, all are being heard together and decided under this common order. 3. Appeal in ITA No. 104/RPR/2025 has been taken as the lead matter, wherein our observations and decision shall apply mutatis mutandis in the remaining two appeals. 4. The grounds of appeal in ITA No. 104/RPR/2025 are as under: 1. In the facts and circumstances of the case and in law, initiation of re-assessment proceedings under section 147 read with section 148 to 151 of the Income-tax Act, 1961 is bad in law and on facts. 2. In the facts and circumstances of the case and in law, the issue of notice under section 148 of the Income-tax Act, 1961 is illegal and without jurisdiction as there is no valid approval for issuing the notice. 3. In the facts and circumstances of the case and in law, the ld. Commissioner of Income tax (Appeals) has erred in upholding order of learned Assessing Officer in estimating Net Profit at Rs. 37,57,136/- being 8% of credits appearing in Bank Account aggregating to Rs. 4,69,64,200/-. 4. In the facts and circumstances of the case and in law, the ld. Commissioner of Income tax (Appeals) has erred in upholding order of learned Assessin....
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....see preferred an appeal before the Ld. CIT(A), however, the appeal of the assessee is dismissed by the Ld. CIT(A) on account of non-prosecution, after making observations on the merits based on material available before him. The relevant observations/ decision of the First Appellate Authority is culled out as under: 15. During the appeal proceedings, Grounds of appeal, Facts of the case, Assessment order, submission filed by the appellant are perused. There is merit in the assessment order passed by the Assessing Officer in view of the following as under: - Ground 01 : In this ground of appeal the appellant objected the assumption of jurisdiction by the Ld. AO in framing the assessment u/s 147 of the Income Tax Act 1961 and without complying with mandatory conditions of section 147 to 151 of the Income Tax Act, 1961. The contention of the appellant has been considered. I have gone through the facts and found that the proceedings against appellant were opened u/s 147 of the Income Tax Act, 1961 after obtaining approval from the competent authority. During the course of proceedings, the Assessing Officer issued the notice u/s 148 on 29.03.2021 and duly served upon a....
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....,69,64,200/-. As the appellant has neither filed regular return of income nor in response to notice u/s 148, the appropriate profit on such receipts have not been disclosed. Under such circumstances, the Assessing officer has determined a profit @8% of Rs. 4,69,64,200/- which works out to Rs. 37,57,136/- is brought to tax as regular business income. During the appeal proceedings, no documentary evidences have been submitted by the appellant to verify the claim in-spite of multiple opportunities being provided by this office as stated above. In view of above facts and the considering the explanation of the appellant, it is clear that the appellant has failed to justify the transactions based on which addition was made to income during the assessment proceedings. Further considering the replies received u/s 133(6) of the Income Tax Act, 1961 from the Bank Manager, it is clearly evident that the appellant has deposited other than cash to the extent of Rs. 4,69,64,200/- for the said year. Further, the contention of the appellant with regard to credit transactions remains unverified in absence of documentary evidence. It is also noted that the appellant has not filed return of ....
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....ash deposits of Rs. 50,94,300/- in the bank account maintained with IndusInd Bank. This information also available on Insight portal. 04.1.2. Apart from above, on perusal of bank account no. 10120500000067 maintained with Bank of Baroda, it is noted that other than cash deposits, credits are appearing to the extent of Rs. 4,69,64,200/-. As the assessee has neither filled regular retum of income nor in response to notice u/s 148, the appropriate profit on such receipts have not been disclosed. Under such circumstances, it would be fair and reasonable to determine a profit @8% of Rs. 4,69,64,200/- which works out to Rs. 37,57,136/- is also brought to tax as regular business income. 04.2. The assessee has not explained the sources of cash generation of Rs. 1.69,40,000/- deposited in bank accounts maintained with Bank of Baroda and also not explained the sources of cash generation of Rs. 50,94,300/- deposited in the bank account maintained with Indusind Bank taking the total cash deposits of Rs. 2,20,34,300/-. The assessee has also not disclosed profit on the amounts credited in its bank account other than cash deposits. The assessee has also not provided copies of ba....
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....t merely through the grounds of appeal. In this situation, it is for the appellant to furnish submissions with relevant evidence(s), if any, to support the claim. The 'burden of proof is always on the person who makes the claim. In this case, it is the appellant who has made the claim by filing the appeal. Further, if the appellant claims that the addition made should be deleted, the burden is on the appellant to prove it why it should be deleted. Same is the position in case of all allowances, deductions, exemptions, claims or loss etc. Since an appeal is nothing but the claim of the appellant hat he has been unduly unjustifiably taxed or levied fee/interest, it is for the appellant to prove its case. The appellant has not availed the opportunity given to do so by filing documentary proofs or evidences. The appellant was given notices under section 142(1) of the Income Tax Act, 1961. The appellant neither furnished the details called for nor submitted any documentary evidences which has been clearly brought out by the AO in the Assessment Order. The Assessing Officer was left with no option but to complete the assessment on the basis of material evidences gat....
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....d to the assessee, therefore, the matter may be restored back to the file of Ld. CIT(A) in the interest of justice. 10. Per contra, Dr. Priyanka Patel, (in short "Ld. Sr. DR"), though supported the order of Ld. CIT(A), but agreed with the contention raised by the Ld. AR and did not object, if the matter is restored back for denovo adjudication to the file of Ld. CIT(A). 11. We have considered the rival submissions and perused the material available on record. Admittedly, the first notice for response in the appellate proceedings before the First Appellate Authority was issued on 03.11.2022 towards which the assessee requested for adjournment, thereafter the second notice was issued on 14.01.2024, again the assessee requested for adjournment for which the next date for representation was granted on 07.11.2024, but the assessee yet again requested for adjournment though there was no whisper about this adjournment in the order of Ld. CIT(A). Ld. CIT(A) on the other hand had observed that there was no compliance by the assessee towards the notice dated 07.11.2024. 12. In our considered opinion reasonable opportunities are not afforded to the assessee, as the adjournment applic....