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TMI Blog2024 (7) TMI 1330X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the assessee having failed to do so, and the authorities below have rightly invoked provisions of Section 68 and made the additions as income of the assessee within the four corners of deeming fiction of Section 68. The case laws relied upon by the assessee were decided on their own facts and are not applicable to the instant case - Appeal filed by the assessee is hereby dismissed. - Shri Ramit Kochar, Accountant Member For the Assessee : Shri Amit Raj, CA For the Revenue : Shri Sanjay Jain, Sr. D.R. ORDER This appeal in ITA No. 200/Ahd/2024 for assessment year 2011-12 is filed by the assessee with Income Tax Appellate Tribunal, Ahmedabad Bench, Ahmedabad which has arisen from the appellate order dated 09-01-2024 passed by ld. Commissioner of Income Tax(Appeals), NFAC, Delhi passed u/s. 250 of the Income-tax Act, 1961 (vide DIN Order No. ITBA/NFAC/250/2023-24/1059492053(1)), which in turn has arisen from the assessment order dated 07-12-2018 passed by ld. Assessing Officer u/s. 143(3) r.w.s. 147 of the 1961 Act. 2. The grounds of appeal raised by the assessee in Memo of appeal filed with the Tribunal, reads as under:- 1. That the Hon'ble Commissioner of Income-tax (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e requires to be reopened u/s 147 of the Act. 4. Further, the statutory notice(s) u/s. 142(1) of the Act were also issued by the AO to assessee, from time to time, during the course of reassessment proceedings, which as per AO also remained un-complied with by the assessee. Hence, a show-cause notice (SCN) dated 30/10/2018 was issued by the AO to the assessee as to why cash deposit of Rs. 21,51,200/- shall not be treated as unexplained cash credit u/s 68 of the 1961 Act. The assessee filed its return of income in pursuance to the aforesaid show-cause notice, and paid tax of Rs. 23,790/-. The assessee submitted that the cash was deposited more-than 8 year back, and the assessee is not able to remember the debit as well as credit entries in the bank statement, and therefore not in a position to explain the cash deposit of Rs. 21,51,200/- in the bank account maintained by the assessee with IDBI Bank. The assessee submitted that there are cash and cheque deposits made in the bank account to the tune of Rs. 47,76,397/-, and the assessee prayed that the income @8% of cash and cheque deposited in the bank account during the year consideration be assessed to tax, and the same was offered f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nexplained, and ld. CIT(A) dismissed the appeal filed by the assessee. 6. The assessee filed second appeal before this Tribunal. The ld. Counsel for the assessee submitted that the AO invoked the provision of section 68 of the Act and made additions to the tune of 21,51,200/- to the income of the assessee w.r.t. cash being deposited in the bank account maintained by the assessee with IDBI Bank. It was submitted that no return of income was filed by the assessee u/s. 139 of the Act. Further, it was submitted that the assessee duly filed return of income in pursuance to notice issued u/s. 148 of the Act. It was submitted by the assessee that the assessee was in the business of selling fruits and vegetables during the year under consideration, and the assessee received cash from selling fruits and vegetables, which cash stood deposited in the saving bank account maintained by the assessee with IDBI Bank. The complete details of the receipts and payments are not available as the matter is very old. It was submitted that the assessee availed presumptive scheme of taxation u/s 44AD wherein there is no requirement of maintaining books of accounts. It was submitted that no books of account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eposit in the saving bank account of the assessee maintained with IDBI Bank, Memnagar Branch, to the tune of Rs. 21,51,200/-. Since, no return of income was filed by the assessee u/s 139, the source of cash deposit remained unexplained. The case of the assessee was re-opened by the AO u/s. 147 of the Act, as the assessee has not filed the return of income u/s 139 and that there was a huge cash deposited by the assessee in his saving bank account maintained with IDBI bank. The statutory notices u/s. 148 and 142(1) of the Act were issued by the AO to the assessee, but there was no compliance made by the assessee. Thereafter, the AO issued show-cause notice(SCN) to the assessee, and at that stage the assessee filed its return of income. The assessee filed its return of income in pursuance to notice u/s 148, availing presumptive scheme of taxation u/s 44AD, wherein total turnover declared was Rs. 47,76,397/- and the presumptive income declared was 8% of the turnover which comes to Rs. 3,82,112/- and the income-tax paid by the assessee was to the tune of Rs. 23,790/- (including education cess, interest etc.) ( which is stated to be paid vide challan no. 0001 dated 06.12.2018 BSR code 00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the assessee has declared nature of its business in ITR as Share Trading (code 0204) and not business of trading in fruits and vegetables. The assessee did not file its return of income u/s 139. There were cash deposits made by the assessee with its bank account maintained with IDBI bank to the tune of Rs. 21,51,200/-. The return of income was filed for the first time in pursuance to notice u/s 148, and no explanation/evidences were submitted by the assessee before the AO as to nature of business carried on by the assessee. It is for the first time before ld. CIT(A), that the assessee came out with explanation that he was carrying on business of trading of fruits and vegetables, and claim was made that the sale proceeds in this business are normally received in cash which stood deposited in the bank account maintained by the assessee with IDBI Bank, but however, no evidences whatsoever were submitted by the assessee to substantiate and prove the actual carrying out of the business of trading in fruits and vegetables even as of date. Thus, even before me, no evidence to substantiate the actual carrying of business of fruits and vegetable by the assessee during the year under co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd claim is made that since there were no requirement to maintain books of accounts, the provisions of Section 68 of the Act could not have been invoked by the AO. It is an admitted fact by the assessee himself and that there is no dispute to that effect between rival parties, that the saving bank account no. 085104000023913 with IDBI Bank, Memnagar Branch belonged to the assessee, and the transactions in the said bank account are also not denied by the assessee. There is undisputedly and admittedly cash deposit of Rs. 21,51,200/- in the said bank account maintained by the assessee with IDBI Bank, Memnagar Branch, and the assessee has owned up such cash deposit. The primary onus is on the assessee to explain his state of affairs and transactions as it is within the exclusive domain and knowledge of the assessee, and if the assessee is claiming beneficial scheme of presumptive taxation, it is for the assessee to discharge his primary onus to prove with evidences that the assessee falls strictly within the four corners of this beneficial presumptive scheme of taxation u/s 44AD, as the scheme of presumptive taxation is meant towards ease of doing business for small assessee s. Once th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Act, 2016) that no books of accounts were required to be maintained(on fulfilment of stipulated conditions) will also go away, and provisions of Section 44AA(2)(i) will come into play, and the assessee was, infact, liable to maintain books of accounts as are stipulated u/s 44AA. The assessee having not maintained its books of accounts in the instant case, although was liable to maintain such books of account as are stipulated u/s 44AA cannot take the plea that provisions of Section 68 cannot be applied, as the assessee cannot take benefit of his own wrong, as there cannot be premium on non compliance. Thus, I hold that the assessee was required to explain the sources of cash deposits to the tune of Rs. 21,51,200/- in his bank account maintained with IDBI Bank, genuineness of the transaction of the aforesaid cash deposits and creditworthiness as well identity of creditors, as are required under the deeming fiction of Section 68, which in the instant case, the assessee having failed to do so, and the authorities below have rightly invoked provisions of Section 68 and made the additions to the tune of Rs. 21,51,200/- as income of the assessee within the four corners of deeming fic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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