TMI Blog2022 (9) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... that he is a small time tea and pakoda seller and he could not have been expected to grasp intricacies of Income Tax Law. The deposits in the bank account are also on two dates only, as is evident from the assessment order, and it also lends credence to the version of the assessee that the amount had been deposited with a purpose to deposit the same towards margin money for the auction. Amounts were also withdrawn immediately within a short period of time in cash, apparently, when the auction did not took place. Next, is the impossibility of obtaining confirmation of Mr. Diwakar Chaurdhary at this stage as he has already passed away. As reached the conclusion that the assessee s case deserves that a sympathetic view may be taken - th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come earlier and it was only in response to the notice under section 148 of the Income Tax Act, 1961 (hereinafter called the Act ) that he filed return of income declaring income of Rs. 206/- only. Further , the assessee failed to explain the source of the above said cash deposit and, therefore, the AO invoked the provisions of section 68 of the Act and added the same to the income of the assessee as income from unexplained sources. 2.1 Aggrieved, the assessee approached the Ld. First Appellate Authority challenging the addition and it was submitted before the Ld. CIT(A) that assessee was a road side tea and pakoda seller and he was living in a rented accommodation with his wife, two daughters and a son. It was further submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reassessment/Notice is itself based on presumptions, incorrect facts and without jurisdiction. 3. That the Ld. CIT(A) has grossly erred in upholding the orders of AO only on the flimsy grounds without appreciating the fact that the amount credited in pass book of the assessee was immediately withdrawn i.e. within five days by the depositor, clearly proving that amount deposited does not belong to the assessee. 4. That the Ld. CIT(A) has grossly erred while ignoring well settled law that section 68 of the Act does not recognize bank passbook as books of accounts maintained of the assessee. 5. That the appellant craves, leave to add or amend any grounds of appeal. 3.0 At the outset, the Ld. AR submitted that the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad not filed any confirmation regarding the amount of Rs. 15,02,000/- having been deposited by the family friend of the assessee, Mr. Diwakar Chaudhary, and therefore, the AO had no option but to add the same to the income of the assessee. It was further submitted that even before the Ld. CIT(A), the assessee had not been able to lead any evidence to demonstrate that the amount of Rs. 15,02,000/- was not belonging to him but rather belonged to Mr. Diwakar Chaudhary. It was further submitted that the assessee had also not furnished any evidence with regard to the claim that the money had been deposited as earnest money for auction and the conduct of the assessee became more suspicious when any such auction did not take place and the money, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted before the Ld. CIT(A) that the assessee had submitted a detailed reply and had also filed an affidavit before the AO but the same was also not considered by the AO. This narration of facts has already been reproduced by the Ld. CIT(A) in the impugned order and the AO was required to submit a remand report on the same. As per the remand report, the fact of the assessee attending the proceedings on 07/12/2017 is not borne out from records and further the date of hearing was fixed for 06/12/2017 and not 07/12/2017. The AO has also mentioned in the remand report that as far as the assessee s claim for requesting further time of ten days was concerned, the said letter had been addressed to ITO-Ward-5(5), Chandigarh whereas the assessment pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee s prayer for adjournment had been filed before the wrong AO. Thus, undoubtedly, the assessment order was passed exparte qua the assessee. 5.3 During the course of proceedings before us, the Ld. AR was asked by me as to why no such confirmation had been filed and the Ld. AR stated at the Bar that Mr. Diwakar Chudhary had passed away and the assessee was not in a position to file any confirmation from Mr. Diwakar Chaudhary at this juncture. 5.4 I have given a considerable thought to the entire factual matrix and I am of the considered opinion that this is a case where, although, the assessee did not file any kind of confirmation nor could explain, with evidence, the source of entries appearing in his bank statement, his case re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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