TMI Blog2021 (10) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... tice. Grounds raised by the assessee are accordingly partly allowed. - ITA.No.2817/Del./2019 - - - Dated:- 7-10-2021 - Shri R.K. Panda, Accountant Member For the Assessee : Shri Kapil Goel, Advocate For the Revenue : Shri R.K. Gupta, Sr. D.R. ORDER This appeal filed by the Assessee is directed against the Order dated 24.01.2019 of the Ld. CIT(A)-13, New Delhi, relating to the A.Y. 2009-2010. 2. Facts of the case, in brief, are that the return of income for the A.Y. 2009-10 was filed by the assessee on 22.07.2009 at a total income of ₹ 1,90,314/-. The case of the assessee was selected for scrutiny assessment through CASS on the basis of AIR information that the assessee during the F.Y. 2008-09 has deposited cash of ₹ 39,15,000/- in his saving bank account no. xxxx8338 maintained with the Axis Bank Ltd., Sector-7, Rohini, Delhi. The statutory notice under section 143(2) was accordingly issued on 19.08.2010 fixing the case for hearing on 31.08.2010. The notice was served upon the assessee through speed post at his given address. The assessee did not attend the case on the given date. Subsequently notice u/s 142(1) was issued on various dates. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A). 4.3. Since the addition was made on account of unexplained cash deposit the matter was remanded to the assessing officer calling for specific comments on the source of cash deposits. The A.O. vide his remand report submitted that once again the assessee had not fully availed the opportunity given to him. Nevertheless, the A.O. on the basis of documents and submission provided to CIT(A) as additional evidence, examined the same and held that the difference of total credit entries and the declared business receipts(running of taxi business in the name of Kameshwar Tour travels) that is ₹ 62,62,048 ₹ 22,20,677/- = ₹ 40,41,371/- were the unexplained cash credits of the assessee. 4.4. The appellant was confronted with the remand report of the A.O. The appellant stated that as per the cash summary furnished, the cash deposits of ₹ 51,17,000/- were out of cash withdrawals of ₹ 34,97,500/-. 4.5. During the course of assessment proceedings it was pointed out that the cash book shows an entry Temple Land Collection A/c . The Appellant said that he was going to purchase some land. Out of this also cash was utilized. It was also [pointed ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the circumstances of the case and in law, Ld. CIT(A) erred in sustaining the order passed by Ld AO u/s 143(3) without appreciating that there are frequent cash withdrawal from the banks for day to day requirement of taxi hire business and depositing back the excess cash in the same/other bank account maintained by the assessee. 1.3. That on the facts and in the circumstances of the case and in law, Ld. CIT(A) erred in sustaining the order passed by Ld AO u/s 143(3) without appreciating that notice u/s 143(2) dated 19/08/2010 statutorily required to be served before 30/09/2010, which was not served to the assessee within time, hence order passed u/s 143(3) without jurisdiction and application of mind. 1.4. That on the facts and in the circumstances of the case and in law, Ld. CIT(A) erred in sustaining the order passed by Ld AO u/s 143(3) as none of the assessee submission is appreciated while adjudicating the appeal; 2. That on the facts and in the circumstances of the case and in law, Ld. CIT(A) erred in sustaining the order passed by Ld AO u/s without appreciating that all the additions made are without bringing legally admissible document on records; 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi vide ITA.No.113/Del./2020 order dated 24.06.2021 and various other decisions. 4.1. Referring to the decision of Hon ble Supreme Court in the case of Lakhmichand Baijnath vs. CIT [1959] 35 ITR 416 (SC), he submitted that the Hon ble Supreme Court in the said decision has held that when the amount is credited in the business books, it is not an unreasonable inference to draw that it is a receipt from business. Relying on the decision of Hon ble Gujarat High Court in the case of J.K. Chokshi vs., ACIT vide Tax Appeal No.149/ 2003 order dated 22.12.2014, he submitted that the Hon ble Gujarat High Court in the said decision has held that once it is established that the assessee had no other source of income at the relevant time or in the past, it could be safely concluded that the assessee had no other income other than the income from business. Relying on the following decisions, the Learned Counsel for the Assessee submitted that in the case of unaccounted business transaction, only the profit element can be added as income. CIT v. President Industries, reported in (2002) 258 ITR 654. CIT v. Gurubachhun Singh J. Juneja, reported in (2008) 302 ITR 63 (Guj.). CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. CIT(A) upheld the action of the A.O, the reasons of which have already been reproduced in the preceding paragraph. It is the submission of the Learned Counsel for the Assessee that the only business of the assessee is that of taxi operation and the entire deposits in various bank accounts are out of taxi plying. Further the assessee is not maintaining any books of account, therefore, the addition, if any, can be made by estimating the difference in the bank deposits and the entire deposits cannot be added under section 68 of the I.T. Act, 1961. It is also his submission that part of the deposit was made out of the previous withdrawals from the bank account and, therefore, the entire addition cannot be made under section 68 of the I.T. Act, 1961. 6.1. I find some force in the above arguments of the Learned Counsel for the Assessee. It is an admitted fact that the A.O. in the preceding as well as succeeding assessment years and also in the remand report for the impugned assessment year has mentioned that assessee is in the business of taxi operation. There is no other evidence before the A.O. that the assessee is engaged in any other activity other than taxi plying. Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action of the AO on the ground that the assessee could not substantiate that the deposits and withdrawals are on account of sale and purchase, since, the assessee failed to produce any document or evidence in the nature of sale bills, purchase bills and ledger account of sale and purchase. He also rejected the theory of peak credit and theory of previous cash withdrawals eligible for subsequent deposits. It is the submission of the learned counsel for the assessee that the assessee is engaged in the small business of sale and purchase of old dhoti used in polishing of furniture and paint. The assessee is not liable for any registration under VAT as the goods in which the assessee deals with fall under the exempted goods under the Act. Since, the income of the assessee is below the taxable limit, the assessee did not file return of income. It is also the submission of the learned counsel for the assessee that he has produced the necessary purchase and sale bills before the AO and the CIT(A) and in the subsequent year, the AO had passed the order u/s 147/143(3) of the Act determining the total income of the assessee at ₹ 1,70,800/- on the total cash deposits of ₹ 16,12,22 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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