9911796707
TMI Blog2017 (11) TMI 1741X X X X Extracts X X X X X X X X Extracts X X X X ..... by the AO on account of peak credit of the cash deposits in the saving bank accounts of the assessee. The explanation of the assessee filed during the course appellate proceedings has not been considered. 4. That Ld. CIT(A) erred on facts and law in confirming the addition of Rs. 57,700/- made by the AO on account of estimating the net profit @ 5% on the total amount of cash deposits in the saving bank accounts of the assessee." 3. The brief facts of the case are as under: The assessee had filed his return of income at Rs. 1,43,850/- on 12.03.2012 for the assessment year 2011-12 and the case was selected under scrutiny and statutory notices have been issued on various dates, however, the assessee has not complied, even the notice date 07.03.2014 sent by registered post has been returned by the postal authorities with the remarks that 'the assessee has left without new address'. In the constrained circumstances, the Assessing Officer framed the assessment u/s 144 of the Act to the best of his judgment. During the course of assessment proceeding, it was found by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al ground, the assessee counsel raised the issue that the addition was made by the Assessing Officer by invoking the provisions of Sec.69 of the I.T. Act, 1961. It is submitted that legally the provisions of Sec.69 are not at all applicable to the present facts and circumstances of the case because admittedly in the instant case, the assessee is not maintaining any books of accounts and as such the provision of Sec.69 are not at all applicable because Sec.69 pre supposes following two ingredients. (i) That the books of accounts should be maintained. (ii) That the investment should be made outside the books of accounts. The Ld. AR further submitted that since no books of account has not been mentioned, therefore, the provisions of Sec.69 at all are not applicable to the present case and this view finds support from the decision of ITAT, Amritsar Bench in the case of Amarjit Singh in ITA No.114(Asr)/2015, order dated 14.12.2015 relating to A.Y.2011-12. Hence, the addition made is illegal, invalid and the same is liable to be deleted. 7. On the contrary, the Ld. DR submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing] Officer, satisfactory, the value of the investments may be deemed to be the income of the assessee of such financial year." From the plain reading of Sec.69, it reflects that it is not mandatory to maintain the books of accounts. The ingredients of Sec.69 reflects that where in the financial year immediately preceding the assessment year the assessee has made investment which are not recorded in the books of account, if any, maintained by him for any source of income. If any classifies that for application of Sec.69 it is not mandatory to maintain the books of accounts and therefore, it cannot be said that Sec.69 presupposes two conditions (i) That the books of account should be maintained (ii) that the investment should be made outside the books of account. Sec.69 further classifies that "if the assessee offers no explanation about the nature and source of investment or the explanation offered by him, in the opinion of the Assessing Officer nonsatisfactory, the value of investment may be deemed to be the income of the assessee of such financial year which in simple meaning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; because of time gap. Further the Ld. AR relied upon the various case laws and submitted that the time gap between the actual accrual of amount and deposits in the Bank does not lacks the sanctity of its genuineness. Further, with regard to applying the net profit rate of 5% of total cash deposits in the Bank, it was submitted by the Ld. AR that where the net profit rate has been applied by the Department, then no further addition should be made. 10. On the contrary, it was submitted by the Ld. DR, that several opportunities have been given by the Assessing Officer, however, the assessee failed to appear for explaining his case and agreement to sale on which the assessee relying is not a registered agreement and according to latest judgment passed by the Apex Court in the case of CIT vs. Balbir Singh Maini (Civil Appeal No.15619/2017) decided on 4th October, 2017 and even otherwise in view of the judgment passed by the Apex Court in the Suraj Lamps case, unregistered document cannot confer any right and/or title and the unregistered document is sham document, cannot be relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood reason, there was a complete non- compliance to the notices and the reminders sent from the office of the Assessing Officer. The appellant's intransigence is apparent from the records in as much as there was an attempt at avoiding the service of the assessment order also, which had to be ultimately served upon the appellant by way of affixture at his business premises as also at his residence, the address of which was last known to the Department. 6. Even during the appellate proceedings, there was a reluctance on the part of the appellant to come forward and explain the sources from which the impugned cash deposits were made in his bank accounts. An implausible explanation was proffered that the said deposits were sourced from the sale proceeds of Rs. 56,50,000/- which accrued to the appellant's mother on 16th of January 2008. The appellant had no explanation for the considerable timelag in the purported deposit of the sale proceeds of January, 2008, in the bank accounts during the financial year 2010-11 .The appellant was also unwilling to give any information regarding the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s further observed by the ld. CIT(A) that the appellant could not explain the source of cash deposits in the bank account even in the preceding assessment year which was confirmed in first appeal. From the consideration of the observation of the Ld. CIT(A) for rejecting the request of assessee for admission of additional evidence, we are of the view that he has passed well reasoned and logical order, hence, does not suffer from any illegality, perversity and impropriety. Now coming to the submissions of the assessee with regard to the consideration of unregistered agreement as the Ld. AR submitted that this point of unregistered agreement was neither been provided by Ld. CIT(A) nor taken by Revenue in course of objection, therefore, cannot be allowed to be raised at this juncture. We are in agreement with the submission of the Ld. D.R. as it is a legal point which can be allowed to be raised at any time as we have already allowed the additional ground raised by assessee as well, in the instant appeal itself, therefore, similarly the legal point raised by Ld. D.R. is allowed. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted and assessed income. The burden is then on the assessee to show otherwise, by cogent and reliable evidence. When the initial onus placed by the explanation, has been discharged by him, the onus shifts on the Revenue to show that the amount in question constituted the income and not otherwise. 8. Assessee has only stated that he had surrendered the additional sum of Rs. 40,74,000/- with a view to avoid litigation, buy peace and to channelize the energy and resources towards productive work and to make amicable settlement with the income tax department. Statute does not recognize those types of defenses under the explanation 1 to Section 271(l)(c) of the Act. It is trite law that the voluntary disclosure does not release the Appellant-assessee from the mischief of penal proceedings. The law does not provide that when an assessee makes a voluntary disclosure of his concealed income, he had to be absolved from penalty. 9.We are of the view that the surrender of income in this case is not voluntary in the sense that the offer of surrender was made in view of detection made by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissed. Now coming to ground No.4, as it was submitted by the Ld. AR that the Ld. CIT(A) erred on facts of law in confirming the addition of Rs. 57,700/- made by the AO on account of net profit @5% on the total amount of cash deposits in the saving bank account of the assessee. From the order passed by the Ld. CIT(A), we realized that although the assessee has raised the ground before the Ld. CIT(A) with regard to the ground No.4 herein, however, from the order passed by the Ld. CIT(A) it appears that the said issue was taken by the assessee in the grounds of appeal before the Ld. CIT(A), however, neither specific agitation made by the Assessee nor adjudicated by the Ld. CIT(A), therefore, we feel it appropriate to remand back the issue raised in ground No.4 of instant appeal to the file of Ld. CIT(A) to adjudicate the same on merit by offering proper and reasonable opportunity of being heard. It is clarified that the Ld. CIT(A) shall be restricted to deal with the ground No.4 only. Ground No.4 stands allowed. 13. In the result, the appeal filed by the assessee is partly all ..... X X X X Extracts X X X X X X X X Extracts X X X X
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