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TMI Blog2021 (10) TMI 459X X X X Extracts X X X X X X X X Extracts X X X X ..... ently notice u/s 142(1) was issued on various dates. The said notices also remained un-complied with. However, the assessee himself attended the assessment proceedings on 17.10.2011. The A.O. provided him a copy of notice issued on 28.09.2011 u/s 142(1) of the Act along with a copy of AIR information for necessary compliance. 2.1. During the course of assessment proceedings specific details regarding nature of business activities and source of cash deposit in the bank accounts were sought. The requisite information was not provided by the assessee. As the requisite details were not filed by the assessee even after giving enough opportunities and the case was getting barred by limitation on 31.12.2011, there was no other option with the AO but to pass assessment order ex-parte on the material already available on record or provided by the assessee. The A.O. accordingly passed assessment order on 26.12.2011 at a total income of Rs. 42,43,176/- as against the returned income of Rs. 1,90,314/-. The AO added an amount of Rs. 40,41,371/- on account of unexplained cash credit and has also added Rs. 11,491/- on account of undisclosed interest income. 2.2. Aggrieved with such assessment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he has withdrawn in his own name Rs. 5 lacs cash. The source was stated to be donations collected from various people. He was asked why he did not produce Books of account before the AO during assessment proceedings. He replied that he had suffered lot of business loss and he was in difficulty. Further that he has closed down the business of taxi hire. 4.6. It is noted that as per affidavit the appellant has stated that during the relevant financial year 2008-09 he maintained 9 bank accounts, 1 of which was closed. But while preparing the cash summary chart and preparing a summary 01 peak balance only four accounts have been referred to. The balance sheet also does not reflect all the bank accounts. While the Appellant has claimed total cash withdrawals of Rs. 34,97,500/- As against cash deposit of Rs. 51,17,000/-, he has not been able to show the cash flow in terms of intra bank debit and credit nor the movement of cash between the various bank accounts held. 4.7. In light of the above facts it is clear that despite several opportunities at various stages, he has been unable to discharge the onus cast upon him to prove or satisfactorily explain the sources of cash credits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in law, Ld. CIT(A) erred in not restoring the returned income declared by assessee in its return of income . 4. That on the facts and in the circumstances of the case and in law, Id CIT-A erred in not deleting the addition made by Ld AO which was also unlawful and made in violation of principles of natural justice. That the appellant craves leave to add add/alter any/all grounds of appeal before or at the time of hearing of the appeal." 4. Learned Counsel for the Assessee strongly challenged the order of the Ld. CIT(A) in confirming the addition of Rs. 40,41,371/-. He submitted that the assessee is an individual and is engaged in the business of taxi plying. Even the A.O. in the remand report also has accepted that assessee is engaged in the business of operation of taxies which has been reproduced by the Ld. CIT(A) at Pages 5 and 6 of his order. Further in the earlier as well as in succeeding years also the Revenue has accepted that assessee is engaged in the business of taxi operation. Further in A.Y. 2010-11 in the order passed under section 143(3) it has been mentioned that the assessee is engaged in the business of taxi operation. Therefore, once the assessee is engaged i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court in case of CIT v. Sathyanarayn P. Rathi reported in (2013) 38 taxamann.com 402. * Hon'ble High Court in case of CIT vs. Bahul K Daga reported in 79 taxmann.com 337. * Man Mohan Sadani v. CIT reported in (2008) 304 ITR 52. * Hon'ble Calcutta High Court in the case of PCIT vs., Subarna Rice Mill reported in (2018) 96 taxmann.com 286. * Reliance is further placed on the decision of the Hon'ble Madhya Pradesh High Court in CIT v. Balchand Ajit Kumar 263 ITR 610 (MP), wherein it was held that the total sale could not be regarded as profit of the assessee." 4.2. He accordingly submitted that only some profit should be estimated of such unaccounted receipts and the entire amount cannot be added to the total income of the assessee as unexplained cash credit under section 68 of the I.T. Act, 1961. He also relied on the decision of Hon'ble Delhi High Court in the case of CIT vs., Mayawati [2011] 338 ITR 563 (Del.). 5. The Ld. D.R. on the other hand relied on the Orders of the A.O. and Ld. CIT(A) and submitted that the assessee is changing his stand from time to time. He submitted that the assessee before the lower authorities had stated that the cash deposits were out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the assessee was reopened and in the order passed under section 143(3)/147 dated 04.09.2014 the A.O. has accepted the returned income of Rs. 2,23,820/- by observing as under : "In this case, the return of income declaring income of Rs. 2,23,820/- after claiming deduction of Rs. 72,453/- under chapter VIA was filed on 31.07.2010 through E-mode. Notice u/s 148 of I.T. Act, 1961 was issued on 29.04.2013 after recording reasons. In response the assessee filed a letter stating that his return of income dated 31.07.2010 may be treated as his return of income in response to notice u/s 148. In response to various statutory notices issued u/s .143(2)/142(I) of the Income Tax Act, 1961 on different dates, Shri Sanjeev Verma, Advocate & AR of the assessee attended the assessment proceedings from time to time and furnished relevant requisite details, information and documents which have hem examined and placed on file. The case was discussed with him. 2. During the year under consideration, the assessee was engaged in the business of hiring of four wheelers for transporting and tours of passengers to various place within Delhi and outside Delhi. A discussion the returned income of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee shows that the assessee has filed the copy of sale bills and the purchase bills before the learned CIT(A) to substantiate the sale and purchase. Further in the subsequent assessment year, the case of the assessee was re-opened on account of cash deposits of Rs. 16,12,224/- in Union Bank of India and the AO passed the order u/s 143(3) of the Act assessing the total income of the assessee at Rs. 1,70,800/- which comes to 10.59% of the total deposits. The relevant assessment order passed by the same Assessing Officer who has passed the order for the impugned assessment year reads as under:- 13. Since, the AO in the subsequent year has accepted the submission of the assessee that it is engaged in the business of hardware and tools, therefore, considering the totality of facts of the case, I am of the considered opinion that business activities carried out by the assessee cannot be simply rejected and the entire cash deposits cannot be brought to tax as unexplained income. Since, the assessee in the instant case has filed purchase and sale bills before the learned CIT(A), therefore, the business activity is established. Further, there is no query either by the AO or b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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