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2018 (9) TMI 1466 - AT - Income TaxReopening of assessment - unexplained cash deposits - AO has objected the affidavit of the assessee whereby the explanation of cash deposit in his bank account has been said to be an afterthought - Held that - It reveals from the records that the reasons recorded for reopening clearly speaks about the cash deposits in the savings bank of the assessee during the FY 2005-06. Assessee has not filed return of income for the AY 2006-07 relevant to FY 2005-06. The reasons recorded by the AO shows prima-facie, which is sufficient for reopening of assessment in terms of provisions of section 147 invoking the provisions of section 148 an escapement of income by the assessee within the meaning of section 147 - Unable to appreciate the submissions made by the assessee on the issue of the reopening of assessment. No irregularities or error is found in the observation made by the Ld.CIT(A) while justifying reopening of assessment which calls for interference by us. As perused the affidavits on records we find those parties were not examined. It is an admitted fact that no enquiry whatsoever has been conducted by the Ld.AO even at the remand stage on the affidavit filed by the parties. When those two additional evidences are really germane to the issue involved in the matter and needed to be considered before making addition, the Ld.CIT(A) without taking into consideration of the conduct of the AO in ignoring to conduct enquiry on those affidavits, confirmed the addition in a routine manner. We, therefore, in the larger interest of justice find it proper to refer this issue to the file of Ld.AO to make an enquiry on this affidavits and also to examine the depositors of those affidavits. We therefore set aside the order passed by the authorities below and further direct the AO to consider the issue afresh - Assessee s appeal is allowed for statistical purposes.
Issues Involved:
1. Confirmation of addition of ?44,55,520 as unexplained cash deposit. 2. Rejection of the claim that bank transactions were share trading business transactions. 3. Validity of proceedings initiated under sections 147/148. 4. Ex-parte assessment under sections 144/148 without considering recorded reasons. 5. Rejection of the affidavit filed by the appellant's employer without cross-examination. 6. Sustaining addition without specifying the relevant section (68 or 69). 7. Onus of proof on the appellant. Detailed Analysis: 1. Confirmation of Addition of ?44,55,520 as Unexplained Cash Deposit: The Ld. CIT(A) confirmed the addition made by the AO treating the cash deposits in the assessee’s bank account as unexplained. The assessee contended that the transactions were not done by him but by investors in shares, and the cash belonged to these investors. The assessee argued that earning ?3,41,763 per day was not feasible without selling any asset, and cheques issued to share brokers indicated purchases for investors. However, the Ld. CIT(A) dismissed these claims, stating that the assessee failed to provide sufficient evidence to substantiate the source of the cash deposits. 2. Rejection of Claim that Bank Transactions were Share Trading Business Transactions: The assessee claimed that the bank transactions were related to share trading business and should be taxed as business profit at 25%. The Ld. CIT(A) rejected this claim, as the assessee did not provide adequate evidence to prove that the transactions were part of a share trading business. The AO treated the deposits as unexplained cash, and the Ld. CIT(A) upheld this view. 3. Validity of Proceedings Initiated Under Sections 147/148: The assessee challenged the validity of the proceedings initiated under sections 147/148, arguing that the reasons for reopening the assessment were not valid. The Ld. CIT(A) observed that the AO had sufficient material and reason to believe that income had escaped assessment, justifying the reopening of the assessment proceedings for AY 2006-07. The appellate authority dismissed this ground, stating that the assessee did not make any substantial submission against the reopening. 4. Ex-parte Assessment Under Sections 144/148 Without Considering Recorded Reasons: The assessee contended that the ex-parte assessment made under sections 144/148 was erroneous as the reasons recorded were not considered. The Ld. CIT(A) upheld the ex-parte assessment, noting that the assessee failed to respond to multiple notices and did not provide any submission during the assessment proceedings. The appellate authority found no irregularities in the AO’s actions and dismissed this ground. 5. Rejection of Affidavit Filed by Appellant's Employer Without Cross-examination: The assessee argued that the Ld. CIT(A) erred in rejecting the affidavit filed by the appellant’s employer, who claimed ownership of the cash deposits, without subjecting him to cross-examination. The Ld. CIT(A) dismissed the affidavit, considering it an afterthought and a concocted story. The AO also noted that no details or ledgers of the investors were submitted to support the claim, making the affidavit unreliable. 6. Sustaining Addition Without Specifying Relevant Section (68 or 69): The assessee contended that the Ld. CIT(A) erred in sustaining the addition without specifying whether it was under section 68 or 69. The appellate authority did not address this specific contention in detail but upheld the addition based on the unexplained nature of the cash deposits. 7. Onus of Proof on the Appellant: The Ld. CIT(A) observed that the onus of proving the source of the cash deposits lay with the assessee. The appellate authority noted that the assessee failed to discharge this onus by not providing sufficient evidence or explanations for the cash deposits. The Ld. CIT(A) upheld the AO’s addition, emphasizing the lack of cooperation and response from the assessee during the assessment proceedings. Conclusion: The appellate tribunal set aside the order of the Ld. CIT(A) and directed the AO to re-examine the issue afresh, considering the affidavits and conducting necessary inquiries. The tribunal emphasized the need for a thorough investigation into the affidavits and the evidence provided by the assessee. The appeal was allowed for statistical purposes, and the tribunal instructed the assessee to cooperate with the revenue authorities during the reassessment process.
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