2022 (12) TMI 217 - AT - Income Tax

Best Judgment Assessment u/s 144 - Verification of documents produced by the Assessee - HELD THAT - AO has asked the assessee to file remaining information/details on 02/11/2018. On 02/11/2018, again a part reply has been filed. A.O. has once again asked the representative of the assessee to file remaining reply and ultimately on 20/12/2018 the representative of the assessee stated that share broker is not providing any information regarding turnover/sales etc., thus it cannot be submitted . Since the assessee has submitted his inability to produce the details and has not filed the details sought by the A.O., the Ld. A.O rightly invoked the Section 144 of the Act and passed the Best Judgment Assessment and the said action of the A.O. cannot be found fault with. Assessee has vehemently submitted that he has sent an e-mail to the A.O. comprising of 2000 pages attaching all the documents regarding turnover/sales etc of the share transaction which has not been verified by the A.O. But the said fact cannot be corroborated with any of the documents on record and even before us the assessee has not produced any such documents to verify. We are of the considered opinion that if the matter is remanded to the file of A.O. to verify the documents produced by the Assessee and passed appropriate fresh Assessment order after hearing the assessee, the substantial justice would be rendered. Accordingly, we direct the A.O. to consider the documents produced by the Assessee and pass the Assessment Order in accordance with law after hearing the Assessee. Appeal of the assessee is allowed for statistical purpose.

Issues:
1. Addition made by AO and confirmed by CIT (A) against the facts and circumstances of the case.
2. Justification of passing order under section 144 of the Act.
3. Allegations of non-cooperation during assessment proceedings.
4. Distinction between 'Intraday' and 'Interday' trading.
5. Error in making addition based on presumption of 'Inter-day' trading.
6. Non-acknowledgment of relevant facts by AO and CIT (A).
7. Failure to issue show cause notice during assessment proceedings.

1. Addition made by AO and confirmed by CIT (A):
The assessee challenged the addition of Rs. 3,72,718 made by the AO and confirmed by the CIT (A), arguing that it was unjustified and against the facts of the case. The appellant highlighted the lack of response to arguments and the hasty nature of the appellate order.

2. Justification of passing order under section 144:
The appellant contested the validity of passing an order under section 144 of the Act, arguing that the assessee did not fall under the provisions necessitating such action. The appellant emphasized the alleged lack of cooperation during assessment proceedings and criticized the hurried manner in which the orders were passed.

3. Allegations of non-cooperation during assessment proceedings:
The appellant refuted allegations of non-cooperation during assessment proceedings, pointing out discrepancies in the AO's claims and emphasizing the lawful conduct of the assessee and their representative. The appellant criticized the AO and CIT (A) for passing orders without affording sufficient opportunity to the assessee.

4. Distinction between 'Intraday' and 'Interday' trading:
The appellant clarified the difference between 'Intraday' and 'Interday' trading to challenge the basis of the addition made by the AO. The appellant argued that the trading activities were 'Intraday' and not 'Interday', highlighting the arbitrary nature of the percentage-based addition.

5. Error in making addition based on presumption of 'Inter-day' trading:
The appellant criticized the AO for making an arbitrary addition based on the presumption of 'Inter-day' trading without factual basis or scientific method. The appellant emphasized the absence of 'Inter-day' transactions in the bank statements and the intraday nature of share trading activities.

6. Non-acknowledgment of relevant facts by AO and CIT (A):
The appellant highlighted the failure of the AO and CIT (A) to acknowledge relevant facts, such as the loss incurred in the previous year and the absence of 'Inter-day' trading activities. The appellant criticized the authorities for not considering crucial information before passing the assessment and appellate orders.

7. Failure to issue show cause notice during assessment proceedings:
The appellant raised concerns about the lack of a show cause notice issued by the AO during the assessment proceedings, emphasizing procedural irregularities in the assessment process. The appellant argued that these issues were not adequately addressed in the appellate order.

In the judgment, the ITAT Delhi allowed the appeal for statistical purposes, directing the AO to consider the documents produced by the assessee and pass a fresh assessment order after verifying the information provided. The tribunal emphasized the importance of procedural fairness and the need for a thorough examination of the evidence before making any additions to the assessee's income.

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