TMI Blog2022 (3) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... e of cash deposit remaining unexplained by the assessee, the formation of belief of escapement of income on account of the same was justified and as a consequence, the initiation of reassessment proceedings also. No other arguments challenging the validity of reopening the case were made before us. We reject the contention of the assessee challenging the validity of reopening in the present case u/s. 147 of the Act. Unexplained cash deposits - Assessee explanation that the bank account was infact being operated by his employer, we find was evidenced by the narration in the entries in the bank account reflecting the name of his employer, the brokerage firm of which he was an agent i.e. Bonanza Portfolio Ltd. and his purported relatives. We have noted that almost entirely all the withdrawals in this bank account by cheque related to these aforesaid persons only while there were few withdrawals in cash also - whatever amount was deposited in this account was withdrawn either in the name of the asseesses employer, his brokerage firm which he was an agent or for the benefit of his relatives. The explanation of the assessee therefore that his bank account was being operated by hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts that the requisite conditions envisaged in section 147 have not been fulfilled resulting into wrong assumption of jurisdiction for reassessment. 2. The Ld.C.l.T. (appeals) has erred in law and on facts in not appreciating the facts that objection to reassessment vide letter dtd. 14/10/2017 has not been disposed of by the A.O. 3. He has erred in law and facts in not properly appreciating the written submission made to him as well as the reply letters made during assessment proceedings and duly submitted before him. 4. He has erred in law and facts in not considering the decision of Ahmedabad ITAT in the case of Mariyam Ismail Rajwani in ITA No.676/Ahd/2016 relied upon by the assessee. 4. It was pointed out to us that in the present case, on the basis of information available with the Assessing Officer (A.O). ,the case of the assessee was reopened u/s. 147 of the Act for bringing to tax the income which the A.O. believed had escaped assessment, being cash deposits in the bank account of the assessee. Reasons were recorded by the A.O. and notice issued u/s. 148 of the Act by the A.O. for assuming jurisdiction to reopen the case of the assessee. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,380/- and no return having been filed by the assessee. Ld. Counsel for the assessee contended that this information was not sufficient for the formation of belief of escapement of income and in this regard he drew our attention to the order of the ITAT Ahmedabad Benches in the case of Mariyam Ismail Rajwani In ITA No. 676/Ahd/2016 assessment year 2006-07 dated 09.08.2016 wherein identical reasons recorded of cash deposits in the bank account of the assessee and no return filed were held to be insufficient for the formation of belief of escapement of income. Our attention was drawn to the relevant findings of the ITAT in the said case as under: In the present case also, there is nothing more than cash deposit of ₹ 12,76,000/- in the bank account to justify the reopening of assessment by holding the belief that income has escaped assessment. A mere cash deposit in the bank account, however, cannot justify such a belief or inference. In this view of the matter, and respectfully following the division bench order in the case of Bir Bahadur Singh Sijwali (supra), I hold that the very initiation of reassessment proceedings, on the facts of this case, were unsustainable in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Further the reliance placed by the ld. Counsel for the assessee on the decision of the Co-ordinate Bench of the ITAT in the case of Mariyam Ismail Rajwani (supra), we find is of no relevance since it is clearly distinguishable on facts. In the said case the information with the A.O. was of cash deposits in the bank account of the assessee and no return of income filed. The A.O. in that case had not made any enquiry from the assessee seeking explanation of this cash deposits prior to forming belief of escapement of income as in the present case before us. Therefore in the light of these set of facts, the ITAT had held that the information was not sufficient for forming the belief of escapement of income. The ITAT we have noted relied on the decision of the Coordinate Bench of the ITAT in the case of Bir Bahadur Singh Sijwali 68 SOT 197 and on going through the same, we have noted that in the said case, the ITAT had noted that the mere fact of cash deposits in the bank account alone were not sufficient for formation of belief of escapement of income since it proceeded on the fallacious assumption that the cash deposits constituted undisclosed income. The ITAT held that merely bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s employer Mr. Prakash Dilipbhai Mirani who was operating the account. Ld. Counsel for the assessee contended that to substantiate his contention he had submitted: a)all details of the employer shri Prakash Dilipbhai Mirani was given to the A.O. including PAN No. (b) Copy of the bank account of the assessee, wherein the cash deposits were made, pointing out that the narration in the bank entries revealed the name of his employer Shri Prakash Dilipbhai Mirani, M/s Bonanza Portfolio Ltd. of which his employer was an agent and names of the relatives of Mr. Mirani i.e. Dharmesh Mirani, Bhumika Thakkar, Dashandi Champakbhai, Vishal Bhrambhatt etc (c) the assesse affidavit stating on oath that the above facts of the bank account being operated by his employer. 12.1 Ld. Counsel for the assessee contended that his explanation of the bank account being operated by his employer duly evidenced with the narration in the entries in the bank account and his affidavit on oath, there was no reason for the revenue authorities to have rejected the same. That the assessee having given details of the PAN No. of his employer, the A.O. ought to have made enquiries from him and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfact being operated by his employer, we find was evidenced by the narration in the entries in the bank account reflecting the name of his employer, the brokerage firm of which he was an agent i.e. Bonanza Portfolio Ltd. and his purported relatives. We have noted that almost entirely all the withdrawals in this bank account by cheque related to these aforesaid persons only while there were few withdrawals in cash also. Therefore, it is clear that whatever amount was deposited in this account was withdrawn either in the name of the asseesses employer, his brokerage firm which he was an agent or for the benefit of his relatives. The explanation of the assessee therefore that his bank account was being operated by his employer appears to be justified on the touchstone of preponderance of probability. The onus stood shifted to the Revenue to prove otherwise. It was incumbent on the Revenue to have examined the evidences, make necessary inquiries from the employer of the assessee, Mr.Prakash Mirani, and also from the bank and only thereafter on finding these evidences to be of no consequence ,the onus to justify his explanation with further evidences would have shifted to the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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