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TMI Blog2024 (12) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... further addition of Rs 4,97,810/- being net Profit on presumptive basis has been wrongly and arbitrarily confirmed by the Id. CIT (A), NFAC. Considering the facts of the case the additions made by the Assessing Officer should have been deleted by the Ld. CIT (A). 3 Because considering the facts of the case it cannot be said that the current bank account no. 384601010011133 is jointly owned by the appellant. 4 Because the Ld. CIT (A) has erred in solely relying on the pay-in slips of the deposits in bank account ignoring the undisputed fact that on the same pay-in slip the name mentioned in which the deposited amount is to be credited is Anurag Kumar Neeraj Kumar which is owned by Neeraj Kumar as prop. of M/s Anurag Kumar Neeraj Kumar and the transactions of this bank account has been duly considered and disclosed by Neeraj Kumar in his ITR filed for AY 2017-18 as he has filed the return on presumptive basis u/s 44AD. 5 Because under the facts and circumstances of the case the Ld. CIT (A), NFAC should have deleted all the additions made by the Assessing Officer instead of confirming the same. 6. Because the appellant craves the right to add, alter, amend, modify or/and delet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the end of assessee as well as department and hence, liberal view has to be taken so far as condonation of delay in filing appeal is concerned. If substantial justice and technical considerations are pitted against each other, Courts will lean towards advancement of Substantial Justice, unless malafide is at writ large. I do not find any mala fide on the part of the assessee in filing this appeal belatedly before the Tribunal beyond the time prescribed. The assessee is not likely to gain by filing this appeal belatedly with ITAT. I, therefore, condone the delay in filing of this appeal belatedly by the assessee beyond the time prescribed u/s. 253(3) of the Act. Reliance is placed on the decision of Hon'ble Supreme Court in the case of Collector Land Acquisition, Anantnag &Ors. vs Mst. Katiji&Ors. (1987) 167 ITR 471 (SC). Thus, I condone the delay in filing this appeal and proceed to decide the appeal on merits. I order accordingly. 4. Brief facts of the case are that the assessee filed return of income on 16.03.2018 declaring income of Rs. 2,84,600/-. Case of the assessee was selected for framing limited scrutiny through CASS. Statutory notices u/s 143(2) and 142(1) were issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s Anurag Kumar Neeraj Kumar bearing account No.384601010011133 and the cash deposited in that account does not belong to the assessee. The ld. CIT(Appeals) treated the said account as the joint account of Shri Neeraj Kumar and Anurag Kumar Maheshwari(assessee). Ld. CIT(Appeals) rejected the contention of the assessee that the assessee has nothing to do with this bank account and relied upon copy of pay-in-slips of the bank through which the cash was deposited in the bank account in the name of Anurag Kumar Neeraj Kumar. Said Pay-in-slips carried the PAN of Shri Anurag Kumar (Assessee) and bearing his signature. The ld. CIT(A) dismissed the appeal of the assessee, on both the grounds, viz., deposit of cash of Rs. 7,11,500/- during the demonetization period and also treating the other cash/credit entries in the said bank accounts of Rs. 62,22,636/- as turnover of the assessee and computing income u/s. 44AD @ 8% of gross turnover. 6. Still Aggrieved, the assessee has filed second appeal before the Tribunal. Shri Pankaj Gargh, Advocate appeared on behalf of the assessee and drew our attention to the written synopsis filed by him along with paper book containing 71 pages. The said pap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is brother's business, namely M/s. Anurag Kumar Neeraj Kumar in the current account No. 384601010011133 with Union Bank of India, Railway Road, Kasganj and the bank account is in the name of M/s. Anurag Kumar Neeraj Kumar. My attention was also drawn to the GST registration which is placed in paper book page No. 22 to 24 having GST Identification No. 09COJPK5927B1ZV, in which the trade name is reflected as Anurag Kumar Neeraj Kumar and the name of the proprietor is Neeraj Kumar, although the said registration is effective from 01.07.2017 (presently we are seized of assessment year 2017-18). It was submitted by ld. Counsel that the main reason for making addition is that the bank account is in the name of Anurag Kumar Neeraj Kumar and in the pay-in-slips for cash deposited by the assessee in the said bank account, there was PAN of the assessee and signature of the assessee. It was submitted that the assessee is not denying that the assessee did not deposit the said cash in the bank account, and it was submitted that Shri Neeraj Kumar is the real brother of the assessee, and the assessee did deposited the said cash in the bank account which were from the sale proceeds collected from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings u/s 143(2), 142(1) and 144, but there was no compliance on the part of the assessee. I have also observed that the Assessing Officer called for the information directly from the Branch Manager of the bank, and the bank supplied bank statements and details of the demonetized currency deposited in the bank account. The AO observed that in current account No.384601010011133 with Union Bank of India, Railway Road, Kasganj, in which demonetized currency of Rs. 500/- and 1000/- were deposited in cash on 10.11.2016, 13.11.2016 and 29.11.2016 of Rs. 2,50,000/-, Rs. 2,50,000/- and Rs. 1,27,500/- by the assessee as the pay-in slips bore the PAN and signatures of the assessee although the said bank account was in the name of Anurag Kumar Neeraj Kumar. There was another bank account bearing No.384602010945067 maintained by the assessee with Union Bank of India, Railway Road, Kasganj, wherein cash of Rs. 45,000/- and Rs. 39,000/- was deposited on 12.11.2016 and 11.11.2016 in demonetized currency. Thus, the AO made the additions to the income of the assessee to the tune of Rs. 7,11,500/- in the hands of the assessee u/s. 69A of the Act. Further, there was deposit of Rs. 62,22,636/- of cash/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isting his brother in its business, wherein inadvertently he has given his PAN instead of giving PAN of said concern Anurag Kumar Neeraj Kumar while depositing cash. Thus, in my view the assessee has satisfactorily explained that the said bank account maintained with Union Bank of India, Raliway Road, Kasganj bearing number 384601010011133 belongs to Shri Neeraj Kumar, proprietor of Anurag Kumar Neeraj Kumar and if the department wanted to proceed, it ought to have proceeded against Neeraj Kumar by invoking provisions of Section 143(2) and / or 148, instead of assessee. It is not the case that Neeraj Kumar has not owned the transactions rather it is claimed that he availed presumptive scheme of taxation u/s 44AD declaring gross turnover of Rs. 50,88,200 and paying tax by computing income @8% u/s 44AD. The Revenue ought to have proceeded against said Mr. Neeraj Kumar by invoking 143(2) and/or Section 148. It was incumbent upon the authorities below to have issued summons to Mr. Neeraj Kumar u/s. 131 or ought to have made enquiries u/s. 133(6) with said Neeraj Kumar, to unravel complete truth. It is true that the assessee did not participated in the assessment proceedings, but the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT(A). I order accordingly. 7.3 Similarly, I do not find any merit in making addition of Rs. 4,97,810/- in the hands of the assessee on account of presumptive scheme of taxation u/s 44AD, as the said deposits are also in the bank account of Neeraj Kumar namely Anurag Kumar Neeraj Kumar, and the said bank account is owned by Shri Neeraj Kumar. If the department wanted to proceed, It ought to have proceeded against Mr. Neeraj Kumar, wherein department could have invoked provisions of Section 143(2) and/or Section 148. The department also did not find it relevant to issue summons u/s 131 or make enquiry u/s 133(6) with said Mr. Neeraj Kumar. It is true that the assessee did not participated in the assessment proceedings, but the assessee duly participated in appellate proceedings conducted by ld. CIT(A). The power of ld. CIT(A) are co-terminus with the powers of the AO. It is not the case of the Revenue that the said Mr. Neeraj Kumar did not own the said deposits in the bank account. The Revenue has also not filed any C.O. with ITAT, thus, the Revenue is not aggrieved with the appellate order passed by ld. CIT(A). The Assessing Officer is directed to delete the additions in the ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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