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TMI Blog2019 (9) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... on under section 68 of the Act could have been considered; but then that is not the case of the AO As in the case of DCIT Vs. Karthik Construction Co. [ 2018 (3) TMI 39 - ITAT MUMBAI] held that addition under section 69A of the Act cannot be made in respect of those assets / monies / entries which are recorded in the assessee s books of account. In considered view, the aforesaid decision of the ITAT Mumbai Bench (supra) is squarely applicable to the facts of the case on hand, where the entries are recorded in the assessee s books of account - thus addition made under section 69A of the Act is bad in law - Decided in favour of assessee - ITA Nos.1383 and 1384/Bang/2019 - - - Dated:- 28-8-2019 - Shri Jason P Boaz, Accountant Member For the Assessee : Shri V. Chandrashekar, Advocate For the Revenue : Shri. Ganesh R. G., Standing Counsel ORDER These two appeals, by the assessee, are directed against the orders of CIT(A)-4, Bengaluru, dated 02.04.2019 for Assessment Years 2011-12 and 2012-13. Since common issues are involved, these appeals were heard together and we deem it appropriate to dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 2. The Appellant denies herself to be assessed under section 143(3) r.w.s. 148 of the Income Tax Act, 1961 (the Act) as the mandatory conditions for assumption of jurisdiction under section 148 of the Act have not been complied with on the ground that: a) The impugned reasons provided by the assessing officer are not reasons to believe and the same are reasons to suspect which is impermissible in the eyes of law. b) The assessing officer failed to appreciateat the assessment cannot be reopened merely to verify the genuineness of the credits in the bank account as that would amount to fishing and roving enquiry without any tangible material to show escapement of income which is impermissible in law. c) The notice issued by the assessing officer under section 148 of the Act is barred by limitation under the facts and circumstances of the case. d) The assessing officer has not independently applied his mind to the facts of this case and has merely relied upon the information received from Investigation wing which am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and circumstances of the case. 7. a) The appellant denies himself liable to be levied to interest under sections 234B. 234C and 234D of the Act and further the computation of interest was not provided to the appellant as regard to the rate, period and method of calculation of interest under the facts and circumstances of the case. b) Without prejudice, the interest levied under sections 234B, 234C and 234D of the Act requires to be waived off under the facts and circumstances of the case. 88,181/- 8. The appellant craves leave to add, alter, delete or substitute any of the grounds urged above. - 9. In view of the above and other grounds that may be urged at the time of the hearing of the appeal, the appellant prays that the appeal may be allowed in the interest of justice and equity. - 4. Ground Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., in ITA No.2292/Mum/2016. 7.2 Per contra, the learned DR for Revenue supported the orders of the authorities below. 7.3.1 I have considered the rival contentions and perused the material on record; including the judicial decision cited and placed reliance upon. From a perusal of the order of assessment, it emerges that the AO at para 1.2 thereof has listed out the cash deposits, to the extent of ₹ 13,00,000/-, made in the assessee s bank account with Federal Bank on various dates. It is also noticed that these deposits are made in the previous year relevant to Assessment Year 2012-13 and not in Assessment Year 2011-12 i.e., the year under consideration. In my view, the AO has neither made out any case for addition under section 69A of the Act nor given a reasoned finding as to how the amount of ₹ 6,30,000/- has been added thereunder. As per the order of assessment, the AO has only mentioned that the information is received from the Investigation Wing of the Department that cash deposits were made in the assessee s bank account. 7.3.2 In the facts and circumstances of the case, as narrated above, it is essential that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f account. In my considered view, the aforesaid decision of the ITAT Mumbai Bench (supra) is squarely applicable to the facts of the case on hand, where the entries are recorded in the assessee s books of account. In this view of the matter, I am of the opinion that the addition of ₹ 6,30,000/- made under section 69A of the Act is bad in law in the facts and circumstances of the case on hand and therefore delete the addition of ₹ 6,30,000/- made thereunder. The AO is accordingly directed. 8. In the result, the assessee s appeal for Assessment Year 2011-12 is partly allowed. Assessee s appeal in ITA No.1384/Bang/2019 for Assessment Year 2012-13 9. For Assessment Year 2012-13, the assessee filed her return of income on 01.12.2012 declaring total income of ₹ 7,17,2010/-. Based on information received from the Office of the Deputy Director of Income Tax (Inv.) i.e., Investigation Wing of the Department vide letter dated 26.02.2018 that there were cash deposits in the assessee s bank account maintained with Federal Bank Ltd., on various dates, the AO initiated re-assessment proceedings under section 147 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quiry without any tangible material to show escapement of income which is impermissible in law. c) The notice issued by the assessing officer under section 148 of the Act is barred by limitation under the facts and circumstances of the case. d) The assessing officer has not independently applied his mind to the facts of this case and has merely relied upon the information received from Investigation wing which amounts to borrowed satisfaction, which is impermissible in the eyes of the law and therefore the addition needs to be deleted in the interest of equity and justice. e) The sanction as required under section 151 of the Act has not been obtained from the Commissioner of Income Tax before issue of notice under section 148 of the Act or having been obtained, the copy of the same has not been provided to the appellant, which is against the principles of natural justice. - 3. The authorities below erred in invoking the provisions of section 69A of the Act in respect of the transactions recorded in the books of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n suspicion and surmises under the facts and circumstances of the case. 8. a) The appellant denies himself liable to be levied to interest under sections 234B. 234C and 234D of the Act and further the computation of interest was not provided to the appellant as regard to the rate, period and method of calculation of interest under the facts and circumstances of the case. b) Without prejudice, the interest levied under sections 234B, 234C and 234D of the Act requires to be waived off under the facts and circumstances of the case. 6,98,541/- 9. The appellant craves leave to add, alter, delete or substitute any of the grounds urged above. - 10. In view of the above and other grounds that may be urged at the time of the hearing of the appeal, the appellant prays that the appeal may be allowed in the interest of justice and equity. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch in Karthik Construction Co., in ITA No.2292/Mum/2016. 14.2 Per contra, the learned DR for Revenue supported the orders of the authorities below. 14.3.1 I have considered the rival contentions and perused the material on record; including the judicial decision cited and placed reliance upon. From a perusal of the order of assessment, it emerges that the AO at para 1.2 thereof has listed out the cash deposits, to the extent of ₹ 13,00,000/-, made in the assessee bank account with Federal Bank on various dates. It is also noticed that these deposits are made in the previous year relevant to Assessment Year 2012-13 i.e., the year under consideration. In my view, the AO has neither made out any case for addition under section 69A of the Act nor given a reasoned finding as to how the amount of ₹ 33,23,425/- has been added thereunder. As per the order of assessment, the AO has only mentioned that the information is received from the Investigation Wing of the Department that cash deposits were made in the assessee s bank account. 14.3.2 In the facts and circumstances of the case, as narrated above, it is essential that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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