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TMI Blog2021 (1) TMI 1064X X X X Extracts X X X X X X X X Extracts X X X X ..... essing officer by not commenting anything of the return of income filed but adding the random figure out of the bank deposit under section 68 is not sustainable. It is settled law that when assessing officer is rejecting the books of account and return of income filed by the assessee the best judgement assessment has to be based upon some reasonable criteria. The same has to be on the basis of rates applicable for earlier income shown by the assessee in the past or that operating in the concerned business. By not adopting any fair rate or estimate of income and adding the bank deposits partly only as undisclosed income or investment is not at all sustainable. CIT(A) has further erred in making the addition u/s 69A of the Act without g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceipts, out of opening cash balance and out of cash withdrawal from bank account and same was shown in cash statement. 3. This appeal was earlier disposed of by this Tribunal vide order dated 5.5.2017 in ex-parte order. Thereafter in a miscellaneous application order dated 24.9.2019 the same was recalled. Pursuant thereto this appeal has been earned by us. 4. Brief facts of the case are that the assessee had not filed regular return of income. Assessment in this case was reopened. In response to notice under section 148 of the Income Tax Act (hereinafter of the Act ), the assessee filed return of income disclosing turnover of ₹ 17,36,556/- and profit of ₹ 1,33,444/-. The assessing officer observed that and authorised rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... har(W) Mumbai SB A/c No. 003801515998 16,24,237 10,86,575 27,10,812 Total 33,10,812 5. Upon assessee s appeal learned CIT(A) found that since there were no books of accounts maintained, addition of section 68 of the Act is not sustainable . However he treated the return of income filed and the submission of the assessee that assessee has filed return of income under section 44AF of the Act and that deposits in bank were much less than the sale proceeds as an afterthought. However he held that the deposits in bank account was to be added under section 69A of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er contra learned departmental representative submitted that undisclosed deposits were found in the assessee s bank account and hence they have been rightly assessed as undisclosed income of the assessee. 8. Upon careful consideration we find that pursuant to the notice received under section 148 of the Act assessee has duly filed the return of income. The assessing officer has not made any assessment whatsoever based upon the return of income filed. The assessee has shown sale proceeds of ₹ 17,36,556/- and income of ₹ 1,33,444/-. There is no comment whatsoever of the authorities below on this issue. No reason has been attributed as to why the deposits in bank account cannot be treated as part of the sale proceeds. There i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led by the assessee in our considered opinion and CIT(A) has also erred in deleting the addition of section 68 of the Act but enhancing the resultant assessment by retaining the addition made by the assessing officer under section 69A of the Act and that also without any notice to the assessee in clear contravention of provisions of section 251(2) of the Act. 10. In the background of aforesaid discussion and precedent in our considered opinion the assessee having filed the return of income pursuant to the notice issued to the assessee has discharged the onus. The assessment made by the assessing officer by not commenting anything of the return of income filed but adding the random figure out of the bank deposit under section 68 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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