TMI Blog2023 (5) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... the eligible assessee who is engaged in any business (except the business of plying, hiring or leasing goods carriages referred to in section 44AE), whose turnover or gross receipts from such business do not exceed the limit of audit prescribed under section 44AB of the Act. There is no evidence available on record to indicate that the case of the assessee is covered under the provisions of section 44AD of the Act except the income tax return i.e. the income was disclosed under the provisions of section 44AD of the Act. However, the assessee during the assessment proceedings has countered that he is not covered under the provisions of section 44AD of the Act by furnishing the landholding and Talalti certificates as discussed above. AO, without disposing of the objections raised by the assessee has assumed that the assessee has not furnished the necessary details in support of agricultural activity. But at the same time the AO has also not brought anything on record suggesting that the assessee is engaged in the activity which is subject to the provisions of section 44AD of the Act. As such, the assessee shifted the onus upon the revenue by submitting the details of the landho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing of the appeal. 3. At the outset, I note that there is a delay in filing the appeal by the assessee for 779 days. The learned AR of the assessee has explained the reasons for the delay by stating that he (the assessee) was not aware of the provisions of income tax being small agriculturist. On being advised by his brother and upon his reference of the CA, the assessee filed the appeal with the delay. Thus, as per the ld. AR the delay occurred in filing the appeal which needs to be condoned. 4. The learned DR at the time of hearing, considering the length of delay opposed on the condonation petition filed by the assessee. 5. I have heard the rival contentions of both the parties and perused the materials available on record. U/s 253 of the Act, the Tribunal may admit an appeal, or cross-objection, after the expiry of prescribed period, if it is satisfied that there was sufficient cause for not presenting it within that period. At the outset, I note that the Hon ble Supreme Court in series of cases has observed that the expression sufficient cause should be interpreted to advance substantial justice. Therefore, advancement of substantial justice is the prime factor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported in 276 ITR 165 has held as under: 18. The position is, therefore, that, regardless of whether the revised return was filed or not, once an assessee is in a position to show that the assessee has been over-assessed under the provisions of the Act, regardless of whether the over-assessment is as a result of assessee s own mistake or otherwise, the CIT has the power to correct such an assessment under section 264(1) of the Act. If the CIT refuses to give relief to the assessee, in such circumstances, he would be acting de hors the powers under the Act and the provisions of the Act and, therefore is duty-bound to give relief to an assessee, where due, in accordance with the provisions of the Act. 19. In the present case, the respondent-CIT has nowhere stated that the petitioner is not entitled to the relief under section 10(10C) of the Act. In fact, the said position is undisputed. The Assessing Officer himself had passed an order under section 154 of the Act, granting such relief. In the circumstances, even the order under section 264 of the Act made on 29-3-2004, cannot be sustained. 20. A word of caution. The authorities under the Act are under an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presenting the closing cash balance as on 31 March 2015 under the provisions of section 68 of the Act. 7. The facts in brief are that the assessee in the present case is an individual and claimed to be an agriculturist. The assessee first time has filed the belated return of income for the year under consideration dated 26/11/2016 declaring an income of ₹2,66,710/- only. The income tax return was filed by the assessee under the provisions of section 44AD of the Act disclosing the closing cash balance at ₹7,81,648/- as on 31 March 2015. As per the assessee, the income tax return was filed under section 44AD by the accountant inadvertently. As such, the assessee being an agriculturist was not under the obligation to file the income tax return. The assessee to support his contention has filed form No. 7/12 and 8A to demonstrate the landholding and sales bills of the agricultural produce. 7.1 As per the assessee, the cash balance of ₹7,81,648/- was accumulated by him in order to purchase the land for the agricultural activity. The assessee being uneducated was reluctant to visit the bank frequently and therefore the cash was not deposited in the bank account. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . When asked to substantiate the same and produce Cash Book, the appellant could not do so. Accordingly, the AO added Rs.7,81,648/- u/s 68 r.w.s 115BE of the Act. It is seen that for A.Y. 2015-16, the appellant filed Return of Income u/s 44AD of the Act. However, when asked by the AO to explain the Closing Cash balance and to produce the Cash Book, the appellant turned around and said he has no business and no business income and that he is an agriculturalist and his accountant wrongly snowed agricultural income as income from sale of goods. For the Cash Balance of Rs.7,81,648/- he submitted that he submitted he has accumulated this amount for purchase of land. During appea1 proceedings he reiterated above submissions. The authorised representative of the appellant explained that the appellant was advised by someone to file return of income u/s 44AD o the Act so that later the appellant could explain deposit of cash of Rs.10,20,000/- , deposited during Demonetization period between 9.11.2016 to 30.12.2016. Thus it is clear that the appellant has been changing his stand and has filed different explanations at different times. It is noteworthy that the appellant has filed Retu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e opted for by the eligible assessee who is engaged in any business (except the business of plying, hiring or leasing goods carriages referred to in section 44AE), whose turnover or gross receipts from such business do not exceed the limit of audit prescribed under section 44AB of the Act. 14.2 There is no evidence available on record to indicate that the case of the assessee is covered under the provisions of section 44AD of the Act except the income tax return i.e. the income was disclosed under the provisions of section 44AD of the Act. However, the assessee during the assessment proceedings has countered that he is not covered under the provisions of section 44AD of the Act by furnishing the landholding and Talalti certificates as discussed above. However the AO, without disposing of the objections raised by the assessee has assumed that the assessee has not furnished the necessary details in support of agricultural activity. But at the same time the AO has also not brought anything on record suggesting that the assessee is engaged in the activity which is subject to the provisions of section 44AD of the Act. As such, the assessee shifted the onus upon the revenue by submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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