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TMI Blog2024 (4) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... ank account without considering the facts of the case and treated as alleged unexplained income. 2. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in not considering the cash book given by us for explanation of cash deposited in bank. 3. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in making addition on the basis that the assessee has not filed ROI and hence no validity of cash book. 4. On the facts and in the circumstances of the case as well as the law on the subject, the learned Commissioner of the Income Tax (Appeals) has erred in confirming the action of the Assessing Officer in not considering the reply that the cash deposited from earlier withdrawal made from bank. 5. On the facts and in the circumstances of the case as well as the law on the subject, the learned Assessing Officer has erred in making addition of Rs. 5,39,704/- on account of cash deposited excluding dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be condoned and the appeal should be treated as filed within the allowed time." 4. Based on this above contents of petition for condonation of delay, the Ld. Counsel for the assessee, submitted that assessee has explained the sufficient cause/reason to condone the delay, hence, this minor delay may be condoned in the interest of justice. 5. Learned Senior Departmental Representative (ld. Sr. DR) for the Revenue, opposed the prayer of assessee to condone the delay and stated that delay should not be condoned on flimsy reasons as stated in the petition for condonation of delay. 6. We have heard both the parties on this preliminary issue. We are of the view that provisions of law have to be adhered strictly and that one cannot be allowed to act in leisure and make a mockery of enacted law, because law and provisions are laid down to benefit both sides of litigation. Be that as it may, we have to do justice and the Hon'ble Supreme Court in the case of Collector, Land Acquisition vs Mst. Katiji and others, reported in 167 ITR 471, (1988 SC 897) (7) has observed as follows: "4. When substantial justice and technical considerations are pitted against each other, cause of subst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued notices u/s 133(6) of the I.T. Act, 1961, to the concerned bank on 29.04.2019. The bank authorities responded to the notice u/s 133(6) of the Act. On perusal of bank statement, it was observed by the assessing officer that assessee has deposited cash amounting to Rs. 25,02,500/-, during demonetization period (i.e. during the period between 09.11.2016 to 30.12.2016) in the same accounts. In addition to that, other cash deposits / credits have also been observed in the said bank account during the F.Y. 2016-17. The details of credit entries in the said bank account are summarized as under: Bank Name A/c. No. & Name Cash deposits Made during demonetization period,(i.e. from 09.11.2016 to 30.12.2016) Cash deposits during the F.Y. (excluding demonetization) Other credits (excluding cash) Total credits (Cash + cheques/transfer in) Axis Bank, Magob Branch, Surat 911010006791834 Bhulabhai Nathubhai Patel 25,02,500/- 4,50,000/- 34,351/- 29,86,851/- Bank of Baroda, Surat 36060100000902 Bhulabhai Nathubhai Patel - - 55,353/- 55,353/- Total 25,02,500/- 4,50,000/- 89,704/- 30,42,204/- 10. In response to notices u/s 142(1) of the Act, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccount of Cash book for the period of 01.04.2014 to 31.03.2017 (vide Pb. 11 to 15), (iv) Acknowledgment of return of income (ROI) and Form ITR-2 for AY.2015-16 (vide Pb.16 to 29), (v) Submission by assessee in respect of show cause notice of AO dated 24.09.2019 (vide Pb. 30 to 31), (vi) Notices for E-proceedings and reply submitted in respect of Hearing notice u/s 250 of the Act during the course of First Appellate Proceedings (vide Pb.32 to 33), (vii) Submission before the CIT(A) filed on 30.05.2022 (vide Pb. 34 to 37) etc. 15. The Ld. Counsel for the assessee argued that the money belongs to the previous year which was deposited during the demonetization period, therefore, the addition, if any, may be made in the previous year and not in the current year under consideration. Therefore, addition made by the assessing officer may be deleted. 16. The Learned Counsel for the assessee submitted before us that during the preceding previous year, that is, in the previous year 2014- 2015, the assessee has earned the capital gain. To substantiate this, , the assessee submitted the bank statement for the preceding previous year and we have examined the entries in the bank statement (vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceipt as income from undisclosed sources, the faith of the assessee cannot be decided by the revenue on the basis of surmises, suspicious and probabilities of Northern Bengal Jute Co. Ltd. vs CIT, 70 ITR 407 (Cal). The overwhelming numbers of documentary evidences were submitted by the assessee before both the lower authorities, and these documents cannot be brushed aside on the basis suspicious. 20. We note that assessing officer had not specifically identified any specific defects in the purported evidences and documents submitted by the assessee, and also taking note of the fact that the assessing officer has not held that the documents and evidences so submitted by the assessee are bogus. Considering these facts, in our opinion the ends of justice would be met, if a net profit rate of 10% is adopted on the cash deposit of Rs. 25,02,500/- during demonetization period, which comes to Rs. 2,50,250/-. Therefore, we direct the assessing officer to make the addition in the hands of assessee to the tune of Rs. 2,50,250/- and should be taxed under normal provisions of the Act and not u/s 115BBE of the Act. 21. In the result, appeal of the assessee is partly allowed, in the above ter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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