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TMI Blog2023 (3) TMI 1311X X X X Extracts X X X X X X X X Extracts X X X X ..... ,067/- made u/s. 68 of the Act in respect of cash deposits made in two bank accounts bearing A/c. Nos. 62790501311 and 6277053955 in ICICI Bank opened fraudulently in the name of Sarita Trading Company, alleged proprietary concern of the assessee and the other in the name of the assessee without appreciating that the said bank accounts are not owned by the assessee. 3. Brief facts of the case are that assessee is an individual and an employee of S.B. Enterprises looking after marketing of the bed sheets and earning salary and commission from the said concern. He filed his return on 17.02.2011 originally, reporting total income of Rs. 1,58,680/-. Case of the assessee was taken up by invoking the provisions of sec. 148 of the Act by recording the reasons to believe that the assessee is a beneficiary of Rs. 2,46,61,795/- deposited in cash in the bank account of Shri Kamal Sharma which was ultimately transferred to the bank account of the assessee with ICICI bank bearing A/c. No. 62790501311. Notice u/s. 148 of the Act was issued on 29.03.2017 alleging escapement of income from assessment. In response to such notice, assessee submitted that his original return filed on 17.02.2011 be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved, assessee went in appeal before the Ld. CIT(A). Ld. CIT(A) dismissed the appeal of the assessee, both on the jurisdictional issue as well as on the merits of the case. Aggrieved, assessee is in appeal before the Tribunal. 4. Before us, Ld. Counsel for the assessee emphasized on the legality of the assessment proceeding undertaken u/s. 147 read with section 148 of the Act. On the legal issue, Ld. Counsel referred to page 4 of the paper book, which is a certified true copy of the order sheet entries of the assessment proceeding. From the order sheet entry dated 24.03.2017, he referred to the reasons to believe recorded by the AO for the proposal sent by him to Ld. Pr. CIT-12, Kolkata for his kind perusal and seeking necessary approval for issuing notice u/s. 148 of the Act. Below this order sheet entry, he referred to the order sheet entry dated 29.03.2017 which states that "Got the approval of the Ld. Pr. CIT-12, Kol for issue of Notice u/s. 148 of the I.T. Act, 1961 in this case of Notice u/s. 148 of the I.T. Act, 1961 is being issued to the assessee." To point out stark contradiction in this order sheet entry, Ld. Counsel referred to one letter dated 27.03.2017 issued from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he very first instance, assessee had been claiming that he never opened the alleged two bank accounts with ICICI bank in respect of which additions have been made in his hands. To substantiate his claim, assessee had made a complaint to the Burrabazar Police Station, Kolkata on 03.07.2017, copy of which is placed at page 10 of the paper book. He further requested to the Police Station vide his letter dated 03.10.2017, praying for lodging an FIR for taking necessary steps for forging his documents to open the alleged two bank accounts. The same is placed at page 11 of the paper book. Ld. Counsel also referred to the statement of the assessee recorded u/s. 131(1) of the Act on 13.12.2017 by the Ld. AO wherein specific questions were asked in respect of the alleged transaction of cash deposit in the two bank accounts with ICICI bank. In answer to these questions, assessee had very categorically denied being aware of the said bank accounts and of the transaction of cash deposit therein. 5.2. The relevant extracts from the said statement are reproduced as under : 5.3. Ld. Counsel further submitted that issue regarding deposit of cash of Rs. 5,67,90,952/- in A/c. No. 627905013110 and R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference made by Ld. CIT(A) to section 292C of the Act which does not apply in the present case as it relates to articles or things found in the possession or control of any person in the course of search u/s. 132 or survey u/s. 133A of the Act. In the present case, there is no search or survey conducted on the assessee. 6. Per contra, Ld. CIT, DR placed reliance on the order of Ld. CIT(A). 7. We have heard the rival contentions and perused the material on record. On the legal issue raised by the assessee vide ground no. 1 to 6, from the chronology of list of events, we note that notice u/s. 148 dated 29.03.2017 has been issued prior to the date of receipt of letter containing the approval on the proposal made by the Ld. AO for taking action u/s. 148 of the Act which was in fact, received in the office of ld. AO only on 31.03.2017. Also, we take note of the fact from the order sheet entry dated 29.03.2017 wherein Ld. AO has noted that approval from the Ld. Pr. CIT-12, Kolkata has been received for issuing notice u/s. 148 of the Act, which is contrary to the acknowledged, duly stamped letter, issued from the office of ld. Pr. CIT-12, Kolkata addressed to the Ld. AO. 7.1. Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he actual beneficiaries of the funds deposited/transferred in the above mentioned impugned accounts. Details regarding proprietorship concerns should have been extracted by the Department through detailed enquiry/investigation. No effort to trace out the real beneficiary, suspected to be Mr. Kamal Sharma, who the assessee alleged to be the mastermind in the whole operations of opening bank account, deposit and withdrawal/transfer of cash/amount is not found to have taken place. 8.2. We find that nothing has been brought on record either by the ld. AO or by Ld. CIT(A) to controvert the submissions made by the assessee disowning the two bank accounts and the transactions therein. Assessee has been made to disprove the alleged transactions in the two bank accounts. 8.3. We also note that reference made by the Ld. CIT(A) under section 292C of the Act is misplaced as in the present case, it is not a case of either search or survey under the Act conducted on the assessee. 8.4. In the above stated facts of the case, actions of the authorities below goes against common sense, logic and human probability. In such circumstances, making huge addition in assessee's hand of the entire de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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