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TMI Blog2024 (5) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... e case and in law, the CIT(A) has erred in disposing grounds of appeal which were not the same as were raised in Form No. 35 dated 23.01.2023 in its order No. ITBA/NFAC/S/250/2023-24/1055244137(1) dated 18.08.2023. 3. On the facts and circumstances of the case and in law, the appellant prays that the Hon'ble Tribunal may kindly set aside the said order No. ITBA/NFAC/S/250/2023-24/1055244137(1) dated 18.08.2023 to the Ld. CIT(A) for afresh adjudication on the ground raised by the assessee in Form No. 35 dated 23.01.2018. 4. On the facts and circumstances of the case and in law, it is prayed that the appellant may be allowed to withdraw appeal in case the CIT(NFAC) recalls the order dated 18.08.2023 as per request letter of the appellant." 03. Brief facts of the case shows that the assessee is an individual who filed his return of income on 27th April, 2015, at a total income of Rs.2,77,340/-. Assessment under Section 143(3) of the Income-tax Act, 1961 (the Act) was completed on 28th December, 2015, at the total income of Rs.88,26,923/-. Subsequently, based on information received from the investigation wing on 8th March 2017, that assessee has carried out high value credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Departmental Representative submitted that the statement of facts in form no.35 stated by the assessee is different and the details in the appellate order are different. It was submitted that CIT (A) has captioned one order but has stated something in order which is absolutely irrelevant to the matter 06. Assessee was issued notice, however, none appeared and therefore issue is decided on the merits of the case as per information available on record. 07. We have carefully perused the order of the ld CIT (A). We find that order devoid of any facts related to the appeal that will show from the following facts :- 08. The ld AO has passed assessment order for the impugned assessment year u/s 143(3) r.w.s. 147 of the I.T. Act, 1961 on :29.12.2017. The ld CIT (A) in caption has mentioned this order, but in First Para of the order he mentioned as under :- "The appeal was instituted on 25.01.2017 against the 143(3) order u/s dated 30.12.2016 for the AY 2014-15 passed by the Ward 28(1)(3), Mumbai (hereinafter referred to as the "AO")." 09. The ld CIT (A) records following Grounds of appeal :- i. Because, order passed under Section 143(3) is wholly without jurisdiction and is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Because, the Ld. AO has erred in recording reasons for the reopening as mere recording of satisfaction in the absence of independent inquiry, which cannot be a substitute for recording reasons required for issue of notice u/s 148 iv. Because, on the facts and circumstances of the case, the impugned order is illegal, invalid, void-ab-initio as the same is passed without application of mind merely on the basis of receipt of information and without affording reasonable opportunity to the Appellant. v. Because, the assessment has been done on the basis of alleged information collected at the back of the Appellant and without providing copies thereof so as to allow opportunity to Appellant to rebut the said information vi. Because, the order passed on the basis of assumption of jurisdiction u/s 148 on reason recorded without having any evidence of failure on the part of appellant to disclose fully and truly the information to the Department as required under law. vii. Because, Ld. AO erred in law and on facts in treating the credits in the bank account of the appellant to the tune of Rs. 2,46,92,401/- as unexplained cash credit u/s 68 viii.) Because, Ld. AO erred in law and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts submitted by the assessee which are reproduced as below: The Appellant is an individual Operating Business of Weighing Bridge Activities under the name and style of Star computerised weigh bridge and Chirag enterprise from Vashi, Navi Mumbai. Appellant E filed his return of income on 26/04/2015 for the Assessment Year 2014-2015 declaring total income of Rs. 2,77,340/- The case was selected for scrutiny under CASS for limited scrutiny as per para 4.1 of assessment order. Accordingly notice dated 29/07/2016 under section 143(2) of the I.T. Act, 1961 was issued and duly served on the Appellant. Thereafter, the Appellant received notice under section 142(1) dated 22/08/2016 conveying the reasons for selection under CASS (Limited Scrutiny via E- Mail). During the course of Assessment Proceeding the Appellant duly placed on record order passed under section 143(3) by Ld DCIT 22(3) for A.Y. 2011-2012 wherein the interest Income stands assessed on net basis. However Ld AO for the captioned assessment year contended that the appellant is liable for tax audit under section 44AB under Income Tax Act, 1961 which the Appellant failed to do so. Accordingly a Show Cause Notice was issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f interest income earned and the amount of interest expenditure expended are high and accordingly proceeded to compare the turnovers, and decided that the turnover from business income and the interest income combined are exceeding the limit for which a 44AB report is mandatory. However, I am of the opinion that for determining whether someone is in the business of money lending depends on various factors beyond just high interest income and corresponding expenditure. Considerations include the frequency and regularity of lending activities, the intention to make a profit, organizational structure, advertising, and more. High interest income alone may not be sufficient to establish a money lending business. Some of the notable case laws related to determining whether an individual is in the business of money lending based on their interest income are as follows: 1. CIT vs. Daulatram Rawatmull (1963) AIR 1963 SC 1351: In this Indian case, the Supreme Court held that the character of a transaction depends on its true nature and not solely on the intention of the parties involved. High interest income alone may not determine the business of money lending; other factors must be con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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