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TMI Blog2024 (5) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... intly held with her 3 siblings [i.e. Rs. 10.00 lakhs in Abad Mer. Co-op Bank and Rs. 4.10 lakhs in Bank of Baroda] and Rs. 5,91,010/- for other credits in A'bad Mer. Co-op Bank by erroneously holding that entire cash deposits/credits belonged to appellant and amounts deposited are income of only one ass. yr. 2017-18. Both the Ld. Authorities have disregarded the submissions/ explanation evidences furnished by of appellant that cash was deposited in joint bank accounts held in the name of family members, out of savings of family since last more than 50 years, as they were required to deposit old currency notes of Rs. 500/1000 during demonetization period [between 09.11.2016 to 30.12.2016]. Appellant is aged about 57 years and had contributed Rs. 2.50 lakhs only out of her savings from Embroidery, Crochet work & art work done. 1.1 Without prejudice to other grounds of appeal Ld. CIT (A) has erred both in law and facts in not appreciating the fact that the total cash deposited was out of savings of the family for more than 50 years which were held in cash to meet the medical emergencies & other contingencies of family members. All of them were aged between 57 to 75 years and unm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of appellant. Ld. CIT[A] is unjustified and erred in law in disregarding the affidavit of family members, executed on oath, explaining source of cash deposits in bank account, filed during appellate proceedings. 3. Ld. CIT (A) has erred both in law and facts in not appreciating the fact that Ld. AO has passed the assessment order u/s 144 without issuing statutory notice as required u/s 143(2) of the Act, by presuming that assessee has not filed ITR. The appellant filed ITR in compliance of notice u/s 142(1) vide ack. no. 174045450240919/dt. 24.09.2019. Thus, the assessment order passed u/s 144, without issuing notice u/s 143(2) shall be treated as null & void. 4. Ld. CIT (A) has erred both in law and fact in not appreciating the fact that Ld. AO has not followed the due process of assessment prescribed by CBDT for framing of ex-parte assessment order u/s 144. The ex parte assessment order passed u/s 144 is not accompanied by directions u/s 144A of range head, as required in terms of CBDT instructions vide F. No. 225/363/2017-ITA-Il/dt. 05.03.2019 [para 2.3]. Ld. AO has not responded to the request letter of appellant filed on 11.03.21, seeking copy of directions u/s 144A g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time of or before the hearing of the appeal. Facts of the case: 3. The assessee, aged about 57 years is doing some embroidery, crochet work and sundry art work since last more than 40 years having income below the taxable limit and, hence, was not liable to file return of income. On the basis of data analytics and information gathered during "Operation Clean Money", it was revealed that assessee deposited cash of Rs. 10,00,000/- and Rs. 4,10,000 in two different bank accounts during the demonetization period in old currency of Rs. 500/- and Rs. 1000/-. In both these bank accounts, assessee was one of the joint-account holders along with other family members. All of the family members are senior citizens. A notice u/s 142(1) of the Act was issued to the assessee asking to prepare and file true and correct return of income. 3.1. The assessee filed the return of income in response to the notice u/s. 142(1) of the Act on 24.09.2019 vide acknowledgment No. 174045450240919 declaring the total income of Rs. 40,000/-. The assessee also furnished the information as called by the AO on 2.9.2019 stating that she is not having any business income and that the cash deposited in the joi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 143(2) of the Act within stipulated time period and in absence of which the assessment order is null and void. He placed his reliance on the judgment of Hon'ble Gujarat High Court in case of CIT Vs M/s. Panorama Builders Pvt. Ltd. (ITA No.435 of 2011) [2014] 45 taxmann.com 159. c. The AO passed the assessment order u/s. 144 of the Act without considering the fact that the return of income is filed and required information is provided. d. The AO has not considered the facts that the cash deposited in the joint bank account does not belong to the assessee only. Cash also belongs to other family members who are senior citizens and independent assessable units. Brothers of the assessee are assessed to tax and the cash is kept for medical emergencies. e. The AO has not followed the SOP/instructions u/s. 144A of the Act vide F.No.225/363/2017-ITA-II dated 5.3.2019 in respect of assessment u/s. 144 of the Act. f. The AO has applied the scheme of deeming fiction in section 69A of the Act inappropriately and invoked section 115BBE of the Act wrongly. The counsel for the assessee placed the reliance on the judgement of Hon'ble Gujarat High Court in case of Fakir Mohmed Haji Hasan V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended only for cases where the assessee fails to file returns or comply with statutory notices. In the present case, the assessee has furnished the details of cash deposits, during the course of the appellate proceedings. The Affidavits of relatives confirming that the cash deposited in the bank account of the assessee belongs to them were also produced before the Ld.CIT(A). The assessee also produced the return of income of the relatives. 7.3. It is also observed that the deposits totalling to Rs. 5,91,006/- is not relating to cash deposit and it is related to the maturity proceeds of the fixed deposits. 7.4. We have also noted that there is an addition of Rs. 10,00,000/- on substantive basis in the hands of Shabbir Kantawala, brother of the assessee and the said Rs. 10,00,000/- is the same amount deposited in the joint bank account held by the assessee. Looking at the facts of the case, we are of the opinion that the Ld.CIT(A) was not correct in upholding the half of the assessment in the hands of assessee u/s. 69A of the Act. Affidavits, if credible and corroborated by other evidences, can be sufficient to explain the source of cash deposits. Neither the AO nor the Ld.CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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