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TMI Blog2021 (12) TMI 502X X X X Extracts X X X X X X X X Extracts X X X X ..... sits in bank account by ignoring the provisions of section 68 of the Act in this regard and by ignoring the fact that the asssessee had failed to discharge its initial onus laid down u/s 68 of the Act? 3. Whether on the facts and circumstances of the case, the Ld. CIT(A) is legally justified in deleting addition of Rs. 10,39,66,491/- u/s 68 of the Act, 1961 on account of cash deposits in bank account made on the basis of credible information by accepting submission filed by the assessee during appellate proceedings even when the asssessee had not fulfilled conditions as laid down under Rule 46-A of the Income Tax Rule, 1962(the Rule) and no opportunity was provided to the Assessing Officer of being heard ?" 3. The assessee company was incorporated on 27/4/2000 and is in the business of trading of computers etc. Shri Sandeep Kanwar is one of the directors of the Company. The assessee has been filing the regular returns of income from A.Y. 2001-02. The assesses filed the return of income of Rs. 4,21,853/- and the turnover was declared at Rs. 3,60,56,039/- during the A.Y. 2011-12. The assessee had also filed a revised return of income of Rs. 10.14.894/- declaring the additional c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer. 4. Being aggrieved by the assessment order, the assessee filed appeal before the CIT(A). The CIT(A) partly allowed the appeal of the assessee. 5. The Ld. DR relied upon the assessment order. 6. The Ld. AR submitted that the similar issue has been allowed by the Tribunal in Assessment Year 2011-12 in favour of the assessee being ITA No. 5802/Del/2017 order dated 31/3/2021. 7. We have heard both the parties and perused the material available on record. The facts are identical in the present Assessment Year to that of Assessment Year 2011-12 which was decided by the Tribunal on 31/3/2021. The Tribunal held as under:- "14. We have carefully considered the rival contentions and perused the facts available on record along with the orders of the lower authorities. The first contention raised by assessee invoking rule 27 of the income tax appellate tribunal rules 1963, the contention raised that when the return of income is pending before the learned assessing officer, whether the reopening can be made by issue of notice u/s 148 of the income tax act or not. For impugned AY , assessee has filed original return of income for assessment year 2011 - 12 on 27/9/2011 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd his office or to produce, or cause to be produced, any evidence on which the assessee may rely in support of the return: 35[Provided that no notice under clause (ii) shall be served on the assessee after the expiry of six months from the end of the financial year in which the return is furnished.]] 17. The above provisions does not make any distinction between return of income filed u/s 139(1) or U/s 139 (5) of the act. If the return filed u/s 139[5] is a valid return , then the notice u/s 143(2) of the act can be issued to the assessee within expiry of six months from the end of the Financial Year in which revised return of income is filed. In this case, Revised return is filed on 12/2/2013, so 143 (2) notice could have been issued to the assessee on or before 30/9/2013. Therefore, the assessment proceedings were pending before ld AO. However, ld AO issued notice u/s 148 of the act on 15/04/2013, i.e. when the original assessment proceedings were pending as time limit for issue of notice u/s 143 (2) did not expire. Section 142(1) and Section 148 of the Act cannot operate simultaneously. There is no discretion vested with the Assessing Officer to utilize any one of them. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e further held that the income tax is a tax on real income and not on the turnover. Further, the DDIT (investigation) has also conducted certain inquiries wherein it was noted that Assessee Company is doing business in computer assessee reason and computer peripherals. The director of the company was also examined and his statement was recorded by the investigation wing on 8 January 2013. The various questions referred to Indo statement the director has clearly referred to the name of Assessee Company stating that it is carrying on business in computer accessories and peripherals. The address of the Godown of the company was also mentioned. The company maintains eight bank accounts as per question number seven out of which one was found to be out of books. The director of the company has also given reference to the turnover of this company and mentioned the names of the suppliers. It was also stated that assessee has not dealt with the above concerns for the last one and half years. On reading of question number 11 it is apparent that the amount of cheques issued to Messer's Atul traders and Vicetex International and Shri Dev Narain Shukla's transactions were asked for by the inves ..... X X X X Extracts X X X X X X X X Extracts X X X X
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