2023 (4) TMI 142 - AT - Income Tax

Addition u/s 68 - assessee is not required to maintain proper books of accounts since he has opted for presumptive taxation u/s 44AD - CIT(A) ought to have appreciated the fact that the profit from the business cannot be brought to tax u/s 115BBE r.w.s.68, rather is taxable u/s 28(1) - HELD THAT - No merit in the action of Ld. AO calling for the details of sundry creditors and further making addition u/s 68 for unexplained creditors - Section 68 of the Act comes into operation only where any sum is found credited in the books of the assessee maintained in the previous year and the assessee offeres no explanation about the nature and source thereof or explanation offered by him, is not in the opinion of the AO satisfactory then such sum so credited may be charged to tax as income of the assessee. Since the assessee is admittedly not required to maintain the books of account, therefore, there is no basis for invoking the provision of section 68 - we delete the addition made for unexplained sundry creditors and allow Ground No. 4. Addition for opening capital balance - HELD THAT - As we fail to find any merit in the action of the AO because the minimum amount not taxable for the preceding years i.e A.Y. 2014-15 and A.Y. 2013-14 was Rs.2.00 lacs and the assessee files return regularly and having regular source of income from the business and, therefore, can safely presume that he had sufficient accumulated profits to explain the opening capital balance. We thus delete the addition for opening capital balance and allow Ground No. 3. Denial of deduction u/s 80C for life insurance premium payment - HELD THAT - As we find that assessee failed to file any proof before the lower authorities and before us for payment of LIC premium and in absence thereof such claim cannot be allowed. We thus confirm the findings of the ld CIT(A) not allowing the claim of the assessee u/s 80C of the Act. Thus Ground No 5 is dismissed. Addition invoking the provisions of Section 115BBE - HELD THAT - We fail to find any merit in the action of the AO since in the instant case we have held that provision of Section 68 cannot be invoked as the assessee was not required to maintain the books of account. Since Section 115BBE comes into operation only in case of income referred in Section 68/69/69A/69B/69C and 69D of the Act which is not applicable on the issues raised in the instant case, therefore, there is no justification for invoking the provisions of Section 115BE - Thus Ground No. 2 of the assessee is allowed.

Summary

Issues involved:
The appeal involves issues related to delay in filing the appeal, addition of unexplained opening capital balance, unexplained creditors, denial of deduction u/s 80C, and application of Section 115BBE.

Delay in filing the appeal:
The delay of 169 days in filing the appeal was condoned by the Appellate Tribunal due to the genuine reason of the assessee's aged father being hospitalized with cancer, as it was beyond the assessee's control. The decision was based on the precedent set by the Hon'ble Supreme Court in a similar case.

Addition of unexplained opening capital balance and creditors:
The Appellate Tribunal found no merit in the Assessing Officer's action of adding the opening capital balance and unexplained creditors. Since the assessee was not required to maintain regular books of account under presumptive taxation u/s 44AD, the Tribunal deleted the additions of Rs.67,463 for opening capital balance and Rs.28,964 for unexplained creditors.

Denial of deduction u/s 80C:
The Tribunal upheld the denial of deduction u/s 80C for life insurance premium payment as the assessee failed to provide any proof of payment before the lower authorities or during the hearing. Without evidence, the claim for deduction could not be allowed.

Application of Section 115BBE:
The Tribunal ruled that Section 115BBE could not be invoked in this case as the assessee was not required to maintain regular books of account. Since the provisions of Section 68 were not applicable, there was no justification for applying Section 115BBE. As a result, the appeal of the assessee was partly allowed, with certain additions being deleted and certain denials being upheld.