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TMI Blog2019 (4) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) has erred by sustaining the initiation of proceeding u/s 147/148 of the Income tax Act, 1961. The initiation of proceeding is illegal and unjustified. 3. Under the facts and circumstances, ld. AO has erred in making addition of Rs. 12,45,000/- by treating cash deposited in savings bank account as unexplained income u/s 69 of the Income Tax Act, further, CIT(A) has erred by sustaining the same. The addition sustained is unjustified, illegal or excessive. 4. Under the facts and circumstances, ld. AO has erred by not considering that cash withdrawals from bank was available for deposition of cash in bank account, further, CIT(A) erred by not considering the same. 5. Under the facts and circumstances, the ld. AO has erred by determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f reasons recorded by the Assessing Officer before issuance of notice u/s 148, it can be noted that the case of the assessee was reopened due to cash deposition of Rs. 23,43,500/- in his saving bank account. It was submitted that in the reasons so recorded, neither bank name nor account number in which such amount was deposited is mentioned. It was further submitted that the entire basis of re-opening of case is non-filing of return therefore cash deposit is not verifiable. In this regard, it was submitted that the assessee was engaged in the retail business of building material and was not required to file return of income as his income was below taxable income. It was further submitted that the deposit of cash itself in the bank account o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such deposits are out of his regular business transactions and/or have been reported in his return of income. In absence of any return of income so filed by the assessee wherein he has disclosed his saving bank account, the Assessing officer is well within his right and jurisdiction to form a belief that such deposits are in nature of income which has escaped taxation. It was submitted that such prima facie belief is sufficient enough for the Assessing officer to assume jurisdiction u/s 147 where the assessee has not filed his return of income. It was accordingly submitted that there is no basis for challenging the initiation of proceedings u/s 147 as contended by the ld. AR. 6. Heard both the parties and perused the material available o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank account belonging to the assessee has not been disputed before us. It is also a fact that the assessee has not filed his return of income for the year under consideration and such bank account thus has not been disclosed to the Revenue authorities. Therefore, there is a sufficient nexus between the material and formation of belief that income has escaped taxation. The argument of the ld AR that the whole of deposits cannot be regarded as income and therefore the assumption of jurisdiction is vitiated under law is not correct. To our mind, so long as there is an element of income which has escaped taxation and which exceeds the maximum amount which is not chargeable to tax, the same is sufficient enough to uphold the jurisdiction so in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed income in the hands of the assessee. It was submitted that undisputed facts are that during the year under consideration, there were cash withdrawal of Rs. 23,59,881/- which have not been denied and evident from the bank statement and same has been included in cash flow statement so submitted by the assessee. The cash flow statement from bank is a factual statement and not under any doubt. Out of said withdrawal of Rs. 23,59,881/-, it was submitted that alleged unexplained amount of Rs. 12.45 lacs have been deposited. The ld. AO based upon presumption as evident from his findings that "might have been utilized" that withdrawal has been used for business purpose and other needs. The ld. AO has not come to the conclusion that explanation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in case of ITO vs. Pushpendra Kuamr Jain (ITA No. 289/JP/2012 vide order dated 01.01.2016). 9. Per contra, the ld. DR relied on the finding of the lower authorities and it was submitted that the assessee is advancing contradictory theories. While on the one hand, he has filed his return of income based on total receipts of Rs. 26,04,500/- and offered profit @ 5% u/s 44AD, on the other hand he seeks to get re-deposits considered against the cash withdrawal when, in reality these were several cheques shown as issued to particular persons as highlighted by the AO in his order. Further, once there are no supporting evidences, a self prepared cash book could not be accepted as the basis to treat the deposits as explained. Under the circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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