TMI Blog2017 (11) TMI 1741X X X X Extracts X X X X X X X X Extracts X X X X ..... and obviously no “transfer” can be said to have been taken place under the said document, therefore, the same cannot be taken into consideration for establishing the claim. Under the Income Tax Act specifically sub-clause (vi of Sec.2 (47) of the I.T. Act and finally no profit or gain can be taken into consideration from the unregistered agreement to sale. The case relied upon by the assessee are altogether dissimilar to the instant case and hence not applicable to the case in hands, hence, the ground Nos.1 to 3 stands dismissed. Addition on account of net profit @5% on the total amount of cash deposits in the saving bank account of the assessee - Held that:- From the order passed by the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee (first name) and Smt. Satya Devi (assessee s mother, 2nd name.). The copies of Bank Accounts maintained by the assessee have been obtained from bank u/s 133(6) of the I.T. Act, 1961 and since the assessee has not furnished any information regarding source of the amounts, the whole amount deposited by the assessee is to be treated as unexplained. However, since the assessee has made withdrawals of cash also on different dates, therefore, peak amount at ₹ 14,73,000/- as income of the assessee and total amount of cash deposit in both the accounts worked out at ₹ 35,31,000/-. In the absence of any evidence on record, the A.O. estimated the net profit @ 5% of the total amount of cash deposit which was worked out to ₹ 1,76,550/- and further the Assessing Officer added net addition on account of income from business by working out at ₹ 57,700/- and total addition was worked out at ₹ 15,30,700/-. 4. The assessment order was challenged by the assessee before the Ld. CIT(A), who dismissed the appeal of the assessee and feeling aggrieved against the dismissal of appeal, the assessee preferred the instant appeal by raising the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in ITA No.599(Asr)/2015 dated 31.10.2017, which are reproduced herein below for the sake of convenience and brevity. 6. We have gone through with the facts and circumstances of the case, as it reflects from the assessment order that more than 10 opportunities have been given to the assessee for joining the assessment proceedings, however, the assessee did not co-operate in the assessment proceedings and finding no option, the Assessing Officer was considered to complete the assessment u/s 144 of the I.T. Act on the basis of information and material available on record. As the assessee has failed to offer any explanation in respect of cash deposit of ₹ 31,15,000/- in his saving account No.4512 maintained by him with the Allahabad Bank, Fazilka on 06.01.2009, therefore, the value of the deposit of ₹ 31,15,000/- was treated as income of the assessee for the year under consideration u/s 69 of the I.T. Act. On appeal, the Ld. CIT(A) deleted the some of the addition, however, sustained the addition of ₹ 15,47,000/-. It is not out to place herein that the assessee never raised objection with regard to the non-applicability of provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isition or the explanation offered by him is not in the opinion of the Assessing Officer satisfactory then the same may be deemed to be the income of the assessee for such financial year. The case cited by the Ld. AR titled as Amarjit Singh Vs. ITO (supra) is factually dissimilar to the instant case and not based upon any precedent and cogent reasons, therefore, not applicable to the instant case. Hence, in over all consideration, the additional grounds raised by the assessee stands dismissed. Hence, in view of the aforesaid judgment, the additional issue raised by the assessee stands dismissed. 9. Now let us scrutinize the case on merit. In support of its case on merit, the Ld. Counsel of the assessee argued that the Ld. CIT(A) has erred in rejecting the request of the assessee for admitting the additional evidence for proving the source of cash deposit in the Bank Account of the assessee. As it was specifically requested that the additional evidence in the shape of documents relating to sale of property by Smt. Satya Devi (mother of the assessee) may kindly be admitted as the same should not be produced before the AO due to the fact that earlier coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee by making the reasoned order and operative part of the same is reproduced herein below for the sake of convenience and brevity. 4. During the appellate proceedings, the appellant, through his authorised representative, has sought to explain the cash deposits in the bank accounts on the basis of purported availability of funds with Smt. Satya Devi, the appellant s mother pursuant to the sale of her portion of immovable property on 16th of January 2008. In support of this contention, new and additional evidence have been sought to be adduced in the form of fund flow statement, affidavit of Smt.Satya Devi, agreement of sale, general power of attorney etc. In the alternative, it was suggested that there was no requirement for the Assessing Officer to make estimation of profits from undisclosed business, when the peak amount of credit in the bank accounts was deemed as income. Such a suggestion was made on the strength of the argument that the addition of peak credit would subsume the probable profits of the undisclosed business. 5. The submissions of the appellant have been considered. The assessment records, summoned from the Assessing Officer, have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunities to explain the source of cash deposits in his Bank Accounts. However, for no apparent good reason, there was a complete non-compliance to the notices and the reminders sent from the office of the Assessing Officer. It was further observed by the Ld. CIT(A) that even during the appellant proceedings, there was 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 and in plausible explanation was proffered that the said deposits were sourced from the sale proceeds of ₹ 56,50,000/- which accrued to the appellant s mother on 16th of January,2008. However, the appellant had no explanation for the considerable time-lag 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 taxability of such accruals in the hands of the appellant s mother during the relevant period. Under these circumstances, the appellant was denied the opportunity of adducing the new evidence and the request was overwhelmingly rejected. It was further obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is being the case, we are of the view that the High Court was right in stating that in order to qualify as a transfer of a capital asset under Section 2(47)(v) of the Act, there must be a contract which can be enforced in law under Section 53A of the Transfer of Property Act. The relevant observation and ratio laid down by the Hon ble Supreme Court of India in the aforesaid case is reproduced herein below for the sake of convenience and brevity. Para 7. The AO, in our view, shall not be carried away by the plea of the assessee like voluntary disclosure , buy peace , avoid litigation , amicable settlement , etc. to explain away its conduct. The question is whether the assessee has offered any explanation for concealment of particulars of income or furnishing inaccurate particulars of income. Explanation to Section 271(1) raises a presumption of concealment, when a difference is noticed by the AO, between reported 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 que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the instant case as in the instant case, the alleged agreement to sale on which the assessee relying, is undisputedly unregistered, therefore, it has no efficacy in the eyes of law and obviously no transfer can be said to have been taken place under the said document, therefore, the same cannot be taken into consideration for establishing the claim. Under the Income Tax Act specifically sub-clause (vi of Sec.2 (47) of the I.T. Act and finally no profit or gain can be taken into consideration from the unregistered agreement to sale. The case relied upon by the assessee are altogether dissimilar to the instant case and hence not applicable to the case in hands, hence, the ground Nos.1 to 3 stands 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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