Amaresh Pandey, Sonebhadra V. Income Tax Officer, Ward 3 (5), Sonebhadra

ITA 37/VNS/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0792 (ITAT-VARANASI)
• Duration Of Justice: 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 11-10-2022
• Assessment Year: 2010-2011
• Appeal Filed On: 19-12-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Corroborative evidences; Set aside
• Section: 147; 148; 144; 139; 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CIRCUIT ‘SMC’ BENCH, VARANASI (THROUGH VIRTUAL HEARING) BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER ITA No.37/VNS/2021 Assessment Year: 2010-11 Amaresh Pandey, Ghuash Road, Ward 20, Robertsganj, Sonebhadra-231216 PAN-AJFPP6965K v. Income Tax Officer, Range-Sonebhadra (Appellant) (Respondent) Appellant by: Sh. Praveen Godbole, C.A. Respondent by: Sh. A.K. Singh, Sr. DR Date of hearing: 12.10.2022 Date of pronouncement: 14.10.2022 O R D E R SHRI VIJAY PAL RAO, JUDICIAL MEMBER: This appeal by the assessee is directed against the order dated 12.08.2021 of CIT(A) (National Faceless Appeal Centre, Delhi) for the assessment year 2010-11. The assessee has raised the following grounds of appeal:- “1. That in any view of the matter assessment made on income of Rs. 13,80,167/- by order dated 06.12.2017 is bad both on the facts and in law. 2. That in any view of the matter proceeding under section 147 as initiated is not correct and simply on the basis of AIR information about cash deposit the proceeding was started which action is highly unjustified and there was no proper satisfaction recorded for initiation of such proceeding. 3. That in any view of the matter the reasons recorded for initiation of proceeding under section 147 was not supplied to the assessee nor the proper procedure under the act was followed hence the entire action is bad in law. 4. That in the any view of the matter the addition of Rs. 11,80,000/- out of cash deposit in bank account by alleging unexplained cash deposit as made by the assessing officer and confirm by CIT appeal (National Faceless Appeal Centre) is highly unjustified. 5. That in the any view of the matter the addition of Rs. 11,80,000/- as made by the assessing officer and confirm by CIT appeal (National Faceless Appeal Centre) is highly unjustified in so far as the cash deposit was made from ITA No.37/VNS/2021 Amaresh Pandey 2 definite sources hence the entire proceeding as initiated is not correct and liable to be declared void ab initio. 6. That in the any view of the matter disallowance of Rs.41,802/- out of interest income as made by the assessing officer and confirm by CIT appeal (National Faceless Appeal Centre) is highly unjustified. 7. That in any view of the matter the appellant reserves her right to take any fresh ground before hearing of the appeal.” 2. The learned AR of the assessee has submitted that originally the appeal was filed on 7.2.2018 before the CIT(A) but thereafter, the appeal was transferred to National Faceless Appeal Centre, Delhi in terms of the notification dated 25 th September, 2020 issued by the CBDT. The learned AR has further submitted that the AO passed the assessment order under section 147 r.w.s. 143(3) and made the addition of Rs. 11,80,000/- on account of unexplained cash deposit in the bank account. He has submitted that the assessee has shown the business receipt of Rs. 18,45,385/- and explained the source of deposit in the bank account as out of the business receipt. However, in the absence of the relevant details and supporting evidence being purchase and sale vouchers, the CIT(A) has not accepted this explanation of the assessee regarding the source of deposit and confirmed the addition made by the AO. The learned AR has thus submitted that the assessee may be granted one more opportunity to produce all relevant details and supporting evidence in support of the source of deposit and therefore, the matter may be remanded to the record of the CIT(A) for re-adjudication of the same. 3. On the other hand, the learned DR has submitted that the assessee has not filed any return of income under section 139 of the Income Tax Act and only after notice under section 148 was issued by the AO the assessee filed the return of income showing the business income on presumptive basis under section 44AF without maintaining any books of accounts. The learned DR has further submitted that these contention of the assessee have been duly considered by the CIT(A) in the impugned order and it was found that the ITA No.37/VNS/2021 Amaresh Pandey 3 assessee has made a fixed deposit of Rs. 10,00,000/- through a single entry which cannot be considered as a business receipt. There is no withdrawal from the bank account of the assessee and therefore, the contention of the assessee cannot be accepted that the deposit is from the business receipt. He has further submitted that the assessee has not produced any documentary evidence to show the purchase and sales and therefore, in the absence of any supporting evidence, the AO is justified in making the addition which is rightly confirmed by the CIT(A). He has relied upon the orders of the authorities below. 4. In the rejoinder, the learned AR of the assessee has submitted that the assessee undertakes to file the supporting evidence as well as the details regarding the business transactions. He has submitted that the assessee is engaged in the business of supply of aggregate and stone dust. 5. I have considered the rival submissions as well as relevant material on record. There is no dispute that the assessee has not filed any return of income under section 139 of the Income Tax Act. 6. The AO received AIR information regarding deposit of cash of Rs. 11,80,000/- in the saving bank account of the assessee and accordingly issued notice under section 148 on 30 th March, 2017. The AO, thereafter, issued notice under section 142(1) various times requiring the assessee to produce the copies of income tax returns for the assessment year under consideration, copy of bank account statement and explanation of the source of deposits of Rs. 11,80,000/- in the saving bank account. 7. Initially, there was no response on behalf of the assessee to the notice issued by the AO which lead to issuing the notice under section 144 of the Income Tax Act. In response to the notice issued under section 144, the assessee filed the return of income showing total income of Rs. 1,92,223/- under section 44AF of the Income Tax Act. Though the assessee has explained ITA No.37/VNS/2021 Amaresh Pandey 4 the source of deposit as business receipt but the assessee did not produce any evidence in support of the business receipts and a direct nexus between the business receipt and deposit in the bank account. The AO consequently made an addition of Rs. 11,80,000/- on account of unexplained cash deposit. The assessee challenged the action of the AO before the CIT(A) but could not succeed as the CIT(A) upheld the addition made by the AO while passing the impugned ex parte order. 8. Since the assessee has undertaken to produce all the relevant records and details in support of the business receipt therefore, having regard to the facts and circumstances of the case that the impugned order as passed by the CIT(A) ex parte, one more opportunity is granted to the assessee to explain the source of deposit before the CIT(A). Accordingly, the impugned order of the CIT(A) is set aside and the matter is remanded back to the record of the CIT(A) for adjudication of the same afresh, after giving one more opportunity of hearing to the assessee. 9. In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in virtual court proceedings on 14.10.2022. Sd/- [VIJAY PAL RAO] JUDICIAL MEMBER DATED: 14/10/2022 Allahabad Sh Copy forwarded to: 1. Appellant- 2. Respondent- 3. CIT(A),Varanasi 4. CIT 5. DR By order Sr. P.S.