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TMI Blog2023 (2) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... peal of the assessee is allowed. - ITA No.406/JPR/2022 - - - Dated:- 22-2-2023 - Dr. S. Seethalakshmi, JM And Shri Rathod Kamlesh Jayantbhai, AM For the Assessee : Sh. Dinesh Kumar Jain (Adv.) For the Revenue : Ms Monisha Choudhary (Addl.CIT) ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal is filed by the assessee aggrieved from the order of the National Faceless Appeal Centre, Delhi [Here in after referred as to NFAC / CIT(A)] for the assessment year 2013-14 dated 21.09.2022, which in turn arises from the order passed by the Income Tax Officer, Ward-1, Sawaimadhopur passed under Section 154 of the Income Tax Act, 1961 (in short 'the Act') dated 08.01.2021. 2. The assessee marched this appeal on following grounds; 1.In the facts and circumstances of the case and in law, Id. CIT(A) has erred in confirming the action of ld. AO in making order u/s 154 by invoking section 115BBE where the section 68 69 had not applied in original assessment u/s 147/143. The action of the ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the order issued by the ld. A.O. u/s 154. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the A.O. passed an order u/s 154 dated 08/01/2021 where he applied the tax rate as per the provisions of section 115BBE. That was done because in the 143(3)/147 assessment addition was made on account of undisclosed or unexplained income and the tax rate was to be charged at 60% as contained in the provisions of section 115BBE. The main contention of the appellant is that the said tax rate cannot be applied u/s 154. The appellant claims that section 154 is applicable in cases where mistakes are apparent from record. He claims that the mistake of application of section 115BBE is not to be considered as a mistake apparent from record and therefore the Assessing Officer has wrongly applied the provisions of section 154 of the Act. In support of his contention the appellant has relied upon the decision of the Hon'ble ITAT Jaipur Bench case of ACIT vs Sudesh Kumar Gupta for A.Y. 2014-15 ITA No. 976/JP/2019. I have perused the submission of the appellant but I am not in agreement with the contention raised. It is observed that the addition made is on account of unexplained income. There is no dispute that the amount of Rs. 2,00,000/- have been added by considering the same as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 68/69 115BBE and issued demand of Rs.1,15,710/-. Aggrieved with the order u/s 154, the Appellant filed first appeal to the CIT(A). The Ld CIT(A) has dismissed the appeal. Ground-wise submissions are as under: - 1. In the facts and circumstances of the case and in law, Id. CIT(A) has erred in confirming the action of Id. AO in making order u/s 154 by invoking section 115BBE where the section 68 69 had not applied in original assessment u/s 147/143. The action of the ld. CIT(A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by quashing the order issued by the ld. A.O. u/s 154. In this case, the Id. A.O has not invoked section 68/69 while passing first assessment order u/s 143(3). The Id. A.O. has not mentioned for invoking section 69 in his first assessment order. The Ld. CIT(A) has also mentioned in his order that addition of Rs. 200000/- was an undisclosed income. In the case of undisclosed income, section 68 has to be applied. The question is whether assessee's income involves income referred to in section 68, It would be appropriate to read provisions thereof as under: 68. Where any sum is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of corroborative evidence Appellant has deposited Rs. 4,00,000/- on 26.02.2013 out of his brought forwarded cash balance and current year income. The Id. A.O. has made adhoc addition of Rs. 200000/-out of Rs. 4,00,000/- on the doubt basis. Appellant has submitted the Statement of Affairs as on 31.3.2012 31.3.2013 during the assessment, which had a cash balance of Rs.5,71,605/ (see pg no. 4 of paper book). The Ld. A.O. made adhoc addition of Rs. 2,00,000/- on the basis of doubt and not on basis of corroborative evidence. The Ld. CIT(A) has mentioned in his order that in the case of ACIT vs Shri Sudesh Kumar Gupta (976/JP/2019) on which the appellant is relied upon, is not applicable because in this case there was unexplained stock and survey was carried out. In this regards it is submitted that in the above case the hon'ble jurisdictional ITAT has mentioned in para 12 as given above that: the Assessing officer has not invoked the provisions of section 69 at first place while passing the assessment order u/s 143(3), therefore, the provisions of section 115BBE which are contingent on satisfaction of requirements of section 69 cannot be independently applied by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and applying section 115BBE. 4. The Appellant craves his rights to add, amend or alter any of the grounds on or before the hearing. Appellant don't want to add, amend or alter any of the grounds of appeal. In view of foregoing submissions of facts, objections, and contentions and on the merits, assessee prays to accept appeal and quash the order passed u/s 154 by the Ld. Assessing Officer. I hope this fully explains the issue; however, I shall be happy to elucidate further if needed. 6. The ld. AR of the assessee in addition to the written submission so filed also submitted that the assessee does not maintain the regular books of account, his explains about the source of income and the cash deposited into the bank account has been verified as the assessee has deposited a sum of Rs. 15,40,000/- as against the allegation of the revenue for Rs. 27,90,000/-. The revenue has disputed the fact the assessee is engaged in the labour work and interest income. His source of income on a one particular day out of Rs. 4,00,000 deposited only part amount was not considered by the ld. AO as income arising out of the small business activity done by the assessee. The ld. AO did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 115BBE as specific rate of tax for this addition therefore, action of charging the specific tax u/s. 115BBE in the proceeding u/s. 154 of the Act is not correct considering the peculiar fact of the case on hand. Similar view has been taken by this bench in the case of ACIT vs. Shri Sudesh Kumar Gupta in ITA No. 976/JP/2019 dated 09.06.2020 at para 12 of the order and the same is reiterated here in below:- 12. It is therefore not a case where provisions of section 69 have been invoked by the Assessing officer while passing the assessment order u/s 143(3) and at the same time, he has failed to apply the rate of tax as per section 115BBE of the Act. Had that been the case, it would clearly be a case of rectification and powers under section 154 can be invoked. However, in the instant case, the Assessing officer has not invoked the provisions of section 69 at first place while passing the assessment order u/s 143(3), therefore, the provisions of section 115BBE which are contingent on satisfaction of requirements of section 69 cannot be independently applied by invoking the provisions of section 154 of the Act. We therefore upheld the order of the ld CIT(A) and the matter is de ..... 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