TaxTMI 
TaxTMI 
2026 (1) TMI 1107
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....e Ld. CIT(A) has wrongly confirmed the order passed u/s 144 of the I.T. Act, 1961 without giving proper opportunity of being heard. 3. That, the Ld. CIT(A) has wrongly dismissed the appeal by applying provision of section 249(4)(b) of the I.T. Act. 4. That, the Ld. CIT(A) has wrongly confirmed addition of Rs. 12,41,000/- on account of unexplained money in the bank account u/s 69A of the I.T. Act, 1961. 5. That, the Ld. CIT(A) has wrongly confirmed addition of Rs. 28,22,558/- on account of estimated the gross profit at the rate of 8 percent of the total turnover by applying provisions of section 44AD of the I.T. Act 1961. 6. That, the Ld. CIT(A) has wrongly confirmed applicability of provisions of section 115BBE of the I.T. Act, 1961. 7. That, Ld. CIT(A) has wrongly confirmed the initiation of penalty proceedings u/s 274 r.w.s. 271AAC, 270A, 271F, 272A(1)(d) and 271B of the I.T. Act, 1961. 8. That, the Ld. CIT(A) has wrongly confirmed the levy of interest u/s 234A, 234B and 234C of the I.T. Act, 1961. 9. That, the findings of the Ld. CIT(A) are not justified and are bad-in-law. 10. The assessee craves to add, am....
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.... of cash related summary in the Annexure-10 of my submission dated 27.09.2019 and I am again submitting herewith the Annexure in much more detailed manner so that the all the cash related transactions can be easily summarized up and understand in a better way. I am also enclosing herewith the copy of my cash books for the demonetization period i.e. 9.11.2016 to 30.12.2016 for your ready reference. So, I humbly request you that for not making a sort of addition related to the cash deposits in my bank account as all these deposits are out of my hard earned money which I have earned and saved from the past few years. 5. However, the assessing officer, rejected the above contention of the assessee and held that the assessee has not submitted any satisfactory explanation in respect of source of such fund deposited in his bank account during the year under consideration. As such the total fund deposited during the year under consideration of Rs. 12,41,000/- remains unexplained money, therefore, assessing officer made addition under the provisions of section 69A and 115BBE of the I.T. Act. 6. The assessing officer also noticed that during the year, the assessee hav....
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....deposited cash in my account which was received from random various truck drivers/truck owners at the petrol pump who use to come to refill the diesel. This fleet card can be obtained by any individual on the basis of the KYC documents to be provided and a simple form to be filled which is readily available on the website of IOCL. At that point of time, it was newly introduced and many documents were also not required so I had opened 2-3 customer ID with IOCL in which I have made the payments of recharges so that it can be used at the petrol pump. There was no relation between me and the drivers/truck owners. It was just that whenever random person came to fill up the petrol/diesel in cash and they use offered the commission of certain % of the cash back point was received in the fleet card used and I use to keep very nominal of cash as a commission. The customer ID used by me is as mentioned below. * For the period of 01.04.2016 to 08.11.2016 Sr. no. Customer ID Amount of recharge 1 1000586216 11800000/- 2 1000976586 10800000/- 3 1000387044 9500000/- 1000586217 500000/- 5 Direct payment ....
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....s. 14,00,000/- on dated 24.06.2016. So maximum cash flow available with me was of Rs. 14 lakhs and even this Rs. 14 lakhs contains the amount received on the same day from various drivers and truck owners also. (iv)I never had so huge capital in my life. It was only the rotation of this cash flow which has led to a total payment of Rs. 3,31,87,560/- Daily I use to collect the amount in cash and deposit the same in my bank account for the payment to IOCL for fleet card recharge. Hence my maximum capital which was invested in these transactions was approx of 10-12 lakhs only. (v)The cash back rewards were received as 1% of the total points redeemed. If you see the cash back rewards earned, it is 1% of the total recharge amount. Hence the real commission was 1% of Rs. 3,31,87,560/- le. Rs. 3,31,876/-. Hence my total turnover of commission is Rs. 3,31,876/- and out of the total commission received I had offered the truck driver/truck owners 80% of this amount and balance 20% i.e. 66,375/-I have already declared as my commission income which is included in my total commission income of Rs. 1,17,800/-. (vi)I am enclosing herewith the sample copy of cash book re....
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.... in appeal before this Tribunal. I have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other materials brought on record. Shri Kalepesh Doshi, learned Counsel for the assessee, on technical issue, (ground No.1 raised by the assessee), vehemently argued that in assessee`s case, statutory notice under section 143(2) of the Act, had not been issued by the assessing officer, therefore, assessment order framed by the assessing officer is bad in law, therefore, assessment order should be quashed. On the other hand, learned DR for the revenue submitted that since the assessee has participated in the assessment proceedings, therefore, this technical issue cannot be raised by the assessee. 10. I have considered submissions of both the parties and observed that assessing officer framed the assessment order, in the assessee`s case, without serving the statutory notice u/s 143(2) of the I.T. Act, 1961. I note that the assessee is an individual and earning income from sale of salt, cattle income an....
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....f section 143 of the Act, it is stated that the provisions are mandatory in nature and Legislature has cast duty upon the assessing officer to apply mind to the material on record and after being satisfied with regard to escaped income is required to serve notice specifying particulars of such claim. Therefore, after receipt of return of income in response to notice u/s 142(1) of the Act, it is mandatory for the Assessing Officer to serve a notice, under sub-section (2) of section 143 of the Act. 12. I find that the return of income filed by the assessee is duly forming part of the reply filed in response to the show -cause notice and the same is duly accepted by the assessing officer. Therefore, once the return of income is accepted by the assessing officer, the assessing officer is bound to issue notice u/s 143(2) of the Act, for the furtherance of the proceedings. Considering these facts, I note that issue under consideration is squirely covered in favour of the assessee by the judgement of the Jurisdictional Income Tax Appellate Tribunal, Rajkot, in the case of Shri Haresh Jayantibhai Rathod, vide ITA NO: 115/RJT/2025 for AY 2017-18. The findings of the Income Tax Appellate ....
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....e should necessarily to follow the provisions of section 142(1) and provisions of sub-section (2) and (3) of section 143 of the Act. The notice u/s 143(2) is mandatory if the return filed is not accepted and subsequently an assessment order is to be made at variance with the return filed by the assessee. It is also to be evident that the issue is not limited to block assessment but would apply to every case where a notice u/s 143(2) is necessary. Therefore, even if the assessing officer repudiates the return of income filed by assessee, still the assessing officer is bound to issue notice u/s 143(2) of the Act. Therefore, the omission on the part of the assessing authority to issue notice u/s 143(2) of the Act is not curable, and therefore, the requirement of notice u/s 143(2) cannot be dispensed with. In the assessee's case under consideration, the assessing officer did not issue the notice u/s 143(2) of the Act, therefore we quash the assessment order framed by the assessing officer, and allow the appeal of the assessee. 13. Therefore, I find that since the assessing officer has not issued the notice u/s. 143(2) of the Act, which is statutory notice, which should be issued....