2023 (2) TMI 528 - AT - Income Tax

Reopening of assessment u/s 147 - whether no notice was served upon the assessee? - Treating the bank deposits as the business receipts of the assessee - HELD THAT - Undisputedly the authorized representative of the assessee attended the proceedings before the assessing authority. As recorded by the AO that the learned authorized representative had sought adjournment and no objection was raised regarding non-service of the notice, the fact that authorized representative of the assessee attended the proceedings. As pointed out by the Revenue that vakalatnama was duly executed in favour of the said authorized representative of the assessee. Therefore, it cannot be inferred that no notice was served upon the assessee. Revenue has also placed on record the dispatch register of the notice. Therefore, there is no infirmity into the action of the AO in reopening of the assessment. Grounds 2 3 according stand rejected. Deposits in bank acoount - CIT(Appeals) has failed to advert to the objection of the assessee. On the other hand before the authorities below the assessee has categorically stated that amount was out of the funds received from mother and father. The bank statement of father is placed on record which suggest cash withdrawal of Rs. 25,00,000/- and the amount of Rs. 82,00,000/- was deposited in the bank account of the assessee. Therefore, considering the evidences placed, the authorities below failed to appreciate the evidences in right perspective and treated the deposit as business receipts, which is contrary to the records. Therefore,we hereby delete the impugned addition. This ground of the assessee s appeal is allowed.

Summary

Issues:
1. Confirmation of assessment order without considering facts
2. Non-service of statutory notice u/s 143(2) before assessment
3. Assessment made without supplying reasons recorded to appellant
4. Calculation of net income/profit and turnover determination
5. Confirmation of order without considering submissions/documents

Issue 1: Confirmation of assessment order without considering facts
The appeal was against the order of the Commissioner of Income-tax (Appeals) confirming the assessment order without delving into the case's facts. The appellant contended that the assessment was made without examining the facts. The Tribunal reviewed the case and noted that the authorized representative of the assessee attended the proceedings before the assessing authority, indicating no objection to the notice's non-service. The Tribunal found no infirmity in the AO's action in reopening the assessment, rejecting the grounds challenging the reopening.

Issue 2: Non-service of statutory notice u/s 143(2) before assessment
The appellant argued against the reopening of the assessment, claiming that the notice under section 148 was not received. The AO, however, provided evidence that the notice was duly served, supported by the dispatch register and the executed vakalatnama. The Tribunal, after considering all facts, concluded that there was no deficiency in the notice's service and upheld the reopening of the assessment, dismissing the appellant's contentions.

Issue 3: Assessment made without supplying reasons recorded to appellant
The appellant objected to the assessment made without providing reasons recorded to them. However, the Tribunal found that the AO had followed due process and that the authorized representative had attended the proceedings, indicating awareness of the assessment. Therefore, the Tribunal rejected the grounds challenging the assessment based on the lack of reasons provided to the appellant.

Issue 4: Calculation of net income/profit and turnover determination
The AO treated bank deposits as business receipts and calculated the net profit at 8%, resulting in an addition to the income. The appellant provided evidence regarding the sources of the deposits, including cash withdrawals and sale proceeds of agricultural land. The Tribunal observed that the authorities below failed to consider the evidence properly and wrongly treated the deposits as business receipts. Considering the evidence presented, the Tribunal deleted the addition to the income, allowing this ground of the appeal.

Issue 5: Confirmation of order without considering submissions/documents
The appellant contested the confirmation of the order without considering their submissions and documents during the appeal proceedings. The Tribunal noted that the CIT(A) did not address the appellant's objections adequately. Upon reviewing the evidence provided by the appellant, the Tribunal found that the authorities below had not properly appreciated the evidence and wrongly considered the deposits as business receipts. Consequently, the Tribunal allowed this ground of the appeal and partly allowed the appellant's appeal.

In conclusion, the Tribunal addressed various issues raised by the appellant, including challenges to the assessment process, calculation of income, and consideration of evidence. The Tribunal partly allowed the appeal, highlighting discrepancies in the assessment and the failure to properly consider the appellant's submissions.