9911796707
TMI Blog2024 (6) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... be treated as unexplained money u/s 69A is devoid of merit on the facts of present case. Thus, the case laws relied upon on this aspect by the assessee cannot rescue or support the contention of the assessee. Non-admission of additional evidences by CIT(A) - The audit of books of accounts under the provisions of section 44AB for the relevant AY 2017-18, which was due to be completed by 30th September 2017 further extended to 31st October 2017 have been conducted and certified on 07.12.2021, i.e., after more than 4 years of time. It is the assertion of Ld AR that such audit report was furnished before the Ld CIT(A) as additional evidence but the same was not even discussed by him. On perusal of the order of Ld CIT(A), no whisper with respect to submission of audit report or its discussion was perceptible, even the exhaustive submission of the assessee before the Ld CIT(A), running into 31 pages. CIT(A) was supposed to discuss the issue on its merits considering the additional evidence, if admissible under the provisions of rule 46A of the IT Rules following the pre-requisite conditions of the said rule. it is copiously clear that Ld. CIT(A) was in error in dismissing the appeal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs as per provisions of Section 120 and section 124 of the Act and notification no. l/201414-15 dt. 15.11.2014 issued by the CIT, Raipur-l and JCIT, Range-2, Raipur to allocate Jurisdiction to various AOs under their jurisdiction. 2) Without prejudice to ground no. l, on the facts and in the circumstances of the case CIT(A) erred in confirming addition of Rs. 2,37,30,500/- made by the Assessing Officer by invoking provisions of section either 68 or 69 or 69A, as it is not clear from the reading of assessment order which section is invoked by the AO, in respect of cash deposited in bank account during the F.Y. 2016/17 of Rs. 2,37,30,500/-, duly recorded in the books of account maintained by the assessee, without considering the facts and circumstances of the case properly and judicially. The assessee prays that the addition of Rs. 2,37,30,500/-, be deleted. 3) Without prejudice to ground nos. I 2, on the facts and in the circumstances of the case CIT(A) erred in confirming addition of Rs. 2,37,30,500/- made by the Assessing Officer by invoking provisions of section either 68 or 69 or 69A, as it is not clear from the reading of assessment order which section is invoked by the AO, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 019 (to appear within 3 days), 12.09.2019 (requested to adjourn the case), on request of the assessee date of hearing was fixed for 23.09.2019 and on 15.11.2019, but again no appearance neither any submission or documents were submitted. On 20.05.2019 assessee submitted some document, like Bank statement, copy of income tax return and nature of business. As stated, the assessee is engaged in retail Kirana business, his total turnover from the firm was Rs. 1,84,33,137/- and accordingly profit is declared u/s 44AD. As per Ld. AO the assessee was unable to explain about substantial cash deposit during the financial year 2016-17 since no documentary evidence and explanations could have been submitted by the assessee before the Ld AO during the assessment proceedings about cash deposit of Rs. 2,37,30,500/-, Ld. AO had treated the entire cash deposits as unexplained cash money/ investment deemed to be the income of the assessee for such financial year u/s 69/69A of the Income Tax Act, 1961, specifically mentioning the provisions of section 69A, accordingly, the addition was made to the returned income of the assessee. 4. Aggrieved by the aforesaid order of Ld. AO, assessee instituted an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des the turnover shown by him. However, when the opportunity was given, the appellant has uploaded merely the purchases ledger, Kirana sales ledger, balance sheet and part of the bank statement. Whereas failed to correlate and furnish cogent material with the complete cash flow statement showing the details of opening cash balance, receipt of cash, cash received against sales, withdrawal of cash from bank, deposit of cash into bank account on daily basis beginning from 01/04/2016 to 31/03/2017. 5.10. It is observed from the ledger accounts uploaded in the system that there are no complete details of cash receipts, cash payments and the cash deposits made on daily basis. 5.11. The ledger account extract and the statements does not show clearly and completely the actual amount of cash received, cash paid with reference to the cash deposits on daily basis and receipt of cash explaining the source of cash deposits. 5.12. Similarly, the ledger account extract and the statements uploaded does not show clearly the actual amount of cash sales and cash received against such sales on daily basis. 5.13. Further, the bank statement enclosed does not show the complete source for the cash deposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re justified. 5.19. In the case of CIT vs Sarwan Kumar Sharma (2014) reported in 49 Taxmann.com page 101, the Hon'ble Gujarat High Court has held that where the assessee explained that the said amount of cash deposits belong to its business transaction relating to sale of cloth, the Assessing Officer rejected the Assessee's explanation, added amount deposited in the bank to the Assessee's income u/s 69A as there was no document to substantiate his claim. It was held that since assessee has not produced the document to substantiate his case that he was also engaged in the business of trading activities of art silk cloth, impugned was to be confirmed. 5.20. In the case of Smt. Kavitha Chandra vs CIT (2017) reported in 81 Taxmann.com page 317, the Hon'ble Punjab Haryana High Court has held that where the claim of cash withdrawals were made for the purpose of business and same was not available for redeposit and, assessee was unable to link cash withdrawn from bank to cash deposit, same would be held to the Assessee's unexplained income. 5.21. In the case of ACIT vs Kumar ice (1999) reported in 237 ITR (AT) 1 (Patna), it is held that if the assessee had not been abl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the assessee after going through the details / documents of the assessee that the return filed by the assessee was incorrect and the turnover shown in return of income was also incorrect. Subsequently, on advise of the new counsel the books of accounts were got audited, the audit report was submitted before the Ld CIT(A) as additional evidence, copy enclosed at page 70 to 89 of the paper book. It is the claim of Ld AR that the assessee has maintained regular books of accounts. Ld AR further submitted that the actual profit of the assessee for the relevant AY was only Rs. 9,47,319/-, whereas as per return the same has been declared at Rs. 14,93,950/-, thus the assessee has offered higher income for tax than the actual. Sample purchase bills were submitted before the Ld AO. It is agitated by Ld AR that entire cash deposit by the assessee were out of cash available in regular books, the profit out of such transactions has been reflected in audited accounts offered in return. Cash accruals deposits thereof in bank account out of such transactions could not be considered as unexplained. Ld AR also contented the section 69A applies only when unexplained money is found, which is recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in books of accounts can t be treated as unexplained money u/s 69A is devoid of merit on the facts of present case. Thus, the case laws relied upon on this aspect by the assessee cannot rescue or support the contention of the assessee. 12. The audit of books of accounts under the provisions of section 44AB for the relevant AY 2017-18, which was due to be completed by 30th September 2017 further extended to 31st October 2017 have been conducted and certified on 07.12.2021, i.e., after more than 4 years of time. It is the assertion of Ld AR that such audit report was furnished before the Ld CIT(A) as additional evidence but the same was not even discussed by him. On perusal of the order of Ld CIT(A), no whisper with respect to submission of audit report or its discussion was perceptible, even the exhaustive submission of the assessee before the Ld CIT(A), running into 31 pages copy placed before us was apparently not discussed or dealt with by the Ld CIT(A) with specific findings. As per 5.23 of Ld CIT(A) s order referred to supra, the decision of Ld CIT(A) was found to be a summary acceptance to the verdict of Ld AO. Ld CIT(A) was supposed to discuss the issue on its merits consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... points which arise for consideration with reasons in support. Section 251(l)(a) and (b) of the Act provide that while disposing of appeal the CIT(A) would have the power to confirm, reduce, enhance or annul an assessment and/or penalty. Besides Explanation to sub-section (2) of Section 251 of the Act also makes it dear that while considering the appeal, the CTT(A) would be entitled to consider and decide any issue arising in the proceedings before him in appeal filed for its consideration, even if the issue is not raised by the appellant in its appeal before the CIT(A). Thus once an assessee files an appeal under Section 246A of the Act, it is not open to him as of right to withdraw or not press the appeal. In fact the CIT(A) is obliged to dispose of the appeal on merits. In fact with effect from 1st June, 2001 the power of the CIT(A) to set aside the order of the Assessing Officer and restore it to the Assessing Officerfor passing a fresh order stands withdrawn. Therefore, it would be noticed that the powers of the CTT(A) is co-terminus with that of the Assessing Officer i.e. he can do al that Assessing Officer could do. Therefore just as it is not open to the Assessing Officer t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
