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TMI Blog2025 (5) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... re as under: "1. The Ld. CIT(A)-NFAC has erred and was not just and proper on the facts of the case and in law in fixing the commission @ 10% on the total receipts of Rs. 4,09,46,000/- as against 0.41% declared by the assessee. 3. Prayer 3.1 The additions confirmed by the Ld. CIT(A)-NFAC may be kindly deleted. 3.2 Personal hearing may be granted. 3.3 Any other relief that your honours may deem fit may be granted. 4. The assessee craves leave to add, amend, modify alter or delete any of the grounds at the time of hearing." 3. The appeal filed by assessee is late by 1 day in terms of provisions of section 253(3) of the Act. The learned Authorized Representative (ld. AR) submitted that the CIT(A) has passed order u/s 250 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for AY.2017-18. The Assessing Officer (in short, 'AO') issued show cause notice on 24.11.2019. In response to the notice, the assessee stated that cash deposited in his account belongs to cash received from retailers and the same was transferred to company. The assessee failed to file documentary evidence of cash deposited in the bank and did not file any explanation with the source of total cash deposits. In absence of proper details and explanation, the AO had passed 'best judgment assessment' u/s 144 of the Act. The AO also relied on the decision in cases of (i) Pawan Kumar Pareek vs. ITO, 2010-TIOL-718-HC-RAJ-IT, (ii) CWT vs. Moor and General Finance Ltd. (Del), 332 ITR 1, (iii) CIT vs. P. P. Khader Haji (Ker), 234 ITR 461 and (iv) CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount of commission given to the assessee by the above parties. Further, appellant had deposited total cash of Rs. 4,09,46,000/- in his bank account and declared commission of Rs. 1,69,862/- in the return of income for AY.2017-18, which was only 0.41% of cash deposited. The CIT(A) held that the appellant was clearly engaged in the business of commission activity. The CIT(A) directed the AO to take 10% of the total deposit as commission income instead of 0.41% offered by the assessee in the return of income. Hence, he dismissed the appeal of appellant. 8. Aggrieved by the order of CIT(A), the assessee filed appeal before the Tribunal. The learned Authorized Representative (ld. AR) of the assessee filed a paper book including copies of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not forwarded by the CIT(A) to the AO for remand report before passing the appellate order. This is in clear violation of Rule 46A(3) of the Income-tax Rules, 1962. He, therefore, requested that the order of CIT(A) may be set aside and the matter may be remanded to AO for fresh adjudication. 10. We have heard both the parties and perused the material available on record. We have also deliberated on the decisions relied upon by the parties. It is an undisputed fact that the assessee has been totally non-cooperative to the statutory notices and the show cause notice issued to him by the AO. The compliance before the CIT(A) was also partial. The appellant had submitted various details including the agreements with M/s Interactive Financial & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was given to the AO would not meet the requirements of Rule 46A(3) where assessee produced additional evidence in his appeal to the AAC. Since something adverse to the ITO was sought to be done in the course of appeal by way of augmenting the record, the ITO ought to have been heard and given an opportunity to meet the additional material by way of cross-examination, counter evidence and urging submissions in the context of the augmented record. We find that the CIT(A) has not followed the mandatory requirement of giving opportunity of hearing to the AO before passing the appellate order, where addition of entire cash deposit was restricted to 10% of the deposit. In view of the clear statutory provisions discussed above and decision cited ..... X X X X Extracts X X X X X X X X Extracts X X X X
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