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TMI Blog2014 (12) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... bout his S.B. Account No.4161. 3. The learned CIT(A) has erred in law and on facts in allowing the exemption u/s.54F in consequence to deletion to addition of Rs. 24,04,000/- for the reasons mentioned earlier. 4. The learned CIT(A) has erred in law and on facts in allowing the claim u/s.17 of the Act instead of section 10 as claimed by the assessee. 5. It is therefore prayed that the order of the learned CIT(A) may be cancelled and that the order of the Assessing Officer be restored. Additional Ground 1. The learned CIT(A) has erred in law and on facts in holding that reassessment was illegal and without jurisdiction. 2. The Assessing Officer observed that as per AIR information with the Department that the assessee had deposited a cash of Rs. 24,04,000/- with HDFC Bank during the F.Y. 2005-06. The case of the assessee was selected for scrutiny assessment and the assessment u/s.143(3) r.w.s.147 of the Income Tax Act,1961 (hereinafter referred to as "the Act") was framed vide order dated 29.12.2009. The AO collected this information u/s.133(6) of the Act vide letter dated 17.11.2008. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the F.Y. 2005-06 for Rs. 26,10,434/-. The details are as under:- "Bill No. Book No. Date Amount of sale proceed 41 1 01.05.2005 5,37,450/- 98 1 10.10.2005 7,26,580/- 109 2 12.11.2005 5,80,792/- 119 2 25.11.2005 7,65,692/- 26,10,534/- 2.2. The AO issued notice to scrutinize the case u/s.143(2) of the Act. The AO also asked the owner/partner of M/s.Aarti Jewellers, 126, Saheli Complex, Viratnagar Road, Odhav Ahmedabad to attend the office to verify the genuineness, correctness of the sale bill of Rs. 26,10,434/- by issuing summons u/s.131 of the Act dated 22.10.2009. The owner/ partner of M/s.Aarti Jewellers was asked to attend the office on 30.10.2009 along with complete books of accounts for the F.Y. 2005-06. The assessee was asked to explain the source of cash deposit of Rs. 24,04,000/- vide various letters. The assessee had not co-operated with the AO during the course of assessment proceedings and had not provided new address of the M/s.Aarti Jewellers. The assessee was against asked to submit the new address of M/s.Aarti Jewellers which was submitted by letter dated 07/12/2009. The new address was also not complete. The A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on 31/12/2008 on the income of Rs. 88,080/- even without making any protective addition of the cash deposit in question. The AO only received a letter from the Head Office of the Bank on 2.1.2009 with a copy of the account of the appellant stating the cash deposit of Rs. 24,04,000/-. This intimation cannot be sad to be a new information relating to the cash deposited but it is only provided the exact details of deposit made by the appellant. The ld.CIT(A) also referred the office-note given by the AO in the original assessment order dated 31/12/2008 u/s.143(3) of the Act. He further held that the action on the part of the AO is to make tentative assessment initially and the re-opening of the same which is not permissible under the present law. He further relied on the judgement of Hon'ble Supreme Court rendered in the case of CIT vs. Kelvinator in Civil Appeal No.2009-2011 of 2003 dated 18/01/2010 which was on mere change of opinion and re-opening and also tangible material. He further held that the power of he AO to re-open the assessment u/s.147 of the Act within four years from the end of the relevant assessment year are wide but they are not plenary or to review/reappraise t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn out attention towards page Nos.8 & 9 of the paper-book; wherein on 21/12/2009 the legal representative appeared before the AO during the re-assessment proceedings and it was admitted on order-sheet that the assessee was not in a position to produce the owner/partner of M/s. Aarti Jewellers to whom he claimed to have sold gold ornaments. He further admitted that he had no objection to the proposed addition of Rs. 24,04,000/- pertained to cash deposit in the HDFC Bank A/c. No.05061000004161 and also did not want to cross-examine the owner/partner/proprietor of M/s.Aarti Jewellers. Therefore, he argued that the order of the ld.CIT(A) was not justifiable and quashing the proceedings u/s.148 of the Act. 5. At the outset, the ld.counsel for the assessee challenged the reopening of the proceedings of the AO on the ground that this information was available with the AO and he did not make addition of cash deposited in the bank account with HDFC. This information was available with the AO and later on nothing new information was found by the AO. The AO could have been initiated the proceeding u/s.263 of the Act against the assessee but not u/s.148 of the Act. On merit also, it was s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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