TMI Blog2021 (7) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... /Del/2020 - - - Dated:- 16-7-2021 - Shri Kul Bharat, Judicial Member And Shri O.P. Kant, Accountant Member For the Appellant : Sh. S.K. Virmani, Adv. For the Respondent : Sh. R.K. Gupta, Sr. DR ORDER PER O.P. KANT, AM: This appeal by the assessee is directed against order dated 20/11/2019 passed by the Learned Commissioner of Income-tax (Appeals), Faridabad [in short the Ld. CIT(A) ] for assessment year 2011-12, raising following grounds: (1) That the orders of the Ld. CIT(A) in so far as they are against the appellant, are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case. (2) That the Ld. CIT(A) has accepted the assessee's eligibility for presumptive basis of taxation under section 44AD of the Income Tax Act, as evident from return filing of Income tax for the said period as per the CIT(A)'s order para - 2 under appeal but has not accepted the cash receipts of ₹ 22,42,700/- against turnover of the said year without giving any reasons whatsoever. Relief may please be granted by deleting the said addition. (3) That the Ld. CIT(A) has erred on facts and in law in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld in the case of Bijoy Shribastab Anr. v. ITO - Date of Judgement: 23.05.2018 (ITAT Kolkata). (7) That the A.O.as well as Ld. CIT(A) has wrongly interpreted the fact regarding sale of shop means sold of shop at ₹ 30 lakhs(without closing stock assets ) whereas in our case, sale of shop means cost of shop including sale of fixed assets(furniture fixtures) and entire closing stock in the shop due to closure of business during the period under consideration shop cost was 6 lakhs (registry deed ) and balance 24 lakhs was for closing stock in the shop and debtors. Assessee had sold entire shop including stock and furniture was for ₹ 30 lakh, As assesse has purchased residential property situated at shyam colony ballabgarh for amount of ₹ 3075000/- as evident from para 2 of assessment order Dt 5.12.18. due to misinterpretation A.O. considered ₹ 30 lakhs as sale amount of our shop, assesse can claim exemption of long term capital gain and amount ₹ 2582852. as evident from para 2 of assessment order) That the Ld CIT (A) advised the A.O. to compute capital gain from the sale of shop sold by appellant situated at palwal after allowing deduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of ₹ 24 lakh (₹ 30.00 6.00) as income of the assessee under the head income from other sources . 2.2 Further, the Assessing Officer also observed deposit of ₹ 8.5 lakh in the bank account on 23/10/2010, which was found not commensurate with the business activity of the assessee and thus same was held as unexplained and added to the income of the assessee. 2.3 Aggrieved with the addition of ₹ 32,50,000/- by the Assessing Officer in assessment order dated 05/12/2018 passed under section 147 read with section 143(3) of the Act, the assessee preferred appeal before the Learned CIT(A), but could not succeed. The Ld. CIT(A) rejected the contention of assessee of cash received on sale of stock. According to the Ld. CIT(A), sale of stock was not possible without corresponding payment for purchase and other expenses . Aggrieved with the order of the Ld. CIT(A), the assessee has preferred appeal before the Income Tax Appellate Tribunal (in short the Tribunal ) raising the grounds as reproduced above. 3. Before us, the parties appeared through Video Conferencing facility and filed paper-book, synopsis etc. documents electronically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of explanation of source of the cash deposits. According to the assessee, he stated receipt of ₹ 30 lakh in cash on sale of shop, furniture and closing stock of textile, whereas according to the Assessing Officer, the assessee stated receipt of ₹ 30 lakh on sale of the shop only and in the registered deed, sale of the shop is recorded only at ₹ 6 lakhs and therefore balance ₹ 24 lakh received falls under the head income from other sources being premium received on sale of shop. The learned CIT(A) has rejected the contention of the assessee observing as under: 7. The facts of the case along with submission on record have been gone through. The appellant has shown turnover of ₹ 22,42,700/-, declared u/s 44AD of the Act in his ITR upon which profit of ₹ 2,25,800/- (10.07%) has been declared. The appellant has not maintained the books of account. During the assessment proceedings, it was explained that source of cash deposits in the bank account were out of sale of shop for ₹ 30 lacs situated at Jawahar Nagar, Palwal, whereas as per the registration deed dated 23.12.2010, the same was sold for consideration of ₹ 6 lacs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found as unsatisfactory. The onus was on the appellant to explain the nature and source of the same which he failed to do so. In the circumstances, keeping in view the above facts and discussion, the addition made by the AO is confirmed u/s 69A of the Act and the ground of appeal is dismissed. 7.1 We find that the Ld. CIT(A) rejected the contention of the assessee mainly due to lack of evidence in support of the claim of the assessee. Before us, the learned counsel submitted that the assessee is willing to submit necessary documentary evidence in support of its claim of sale of closing stock of the textile and realisation of the debtors. 7.2 In view of the above facts and circumstances and in the interest of substantial justice, we set aside the order of the Ld. CIT(A) and restore the matter back to the file of the Assessing officer for deciding afresh with the direction to the assessee to file all the necessary documentary evidences in support of his claim. It is needless to mention that the assessee shall be afforded adequate opportunity of being heard. The grounds of the appeal of the assessee are accordingly allowed for statistical purposes. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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