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TMI Blog2024 (8) TMI 969X X X X Extracts X X X X X X X X Extracts X X X X ..... ) TMI 197 - SUPREME COURT] . Thus, uphold reopening of the assessment by the AO by invoking provisions of Section 147. The cash stood deposited in the bank accounts of the assessee. The assessee did not denied that the bank account did not belong to the assessee nor any denial is there that cash was not deposited by the assessee. The onus is on the assessee to explain the source of cash deposit in the bank account. The assessee also did not filed return of income in pursuance to notice u/s 148.The assessee never asked for reasons recorded by the AO u/s 147 for reopening of the assessment. The assessee did not participated in reassessment proceedings before the AO, nor appellate proceedings before the ld. CIT(A). The assessee has now obtained reasons recorded u/s 147 by the AO for reopening of the assessment, through RTI application. The assessee has not brought on record any evidences for explaining sources of cash deposits in the bank accounts held by it with Vijaya Bank and Indusind Bank. Addition u/s 68 - Ex-parte assessment under Section 144 - So far as merits of the additions are concerned, assessee has now taken a plea before ITAT for the first time, which plea is taken witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by ld. CIT(A) on the ITBA Portal. However, while checking the ITBA portal, the assessee found that the order has been passed by the Ld.CIT(A), and thereafter he immediately filed an appeal before the Tribunal, and in this process delay of 38 days occurred in filing this appeal before ITAT beyond the time stipulated u/s 253(3) of the Income-tax Act, 1961. It is averred that this is a bonafide reason for filing this appeal belatedly with ITAT, and prayers are made to condone the aforesaid delay. On the other hand, the Ld. Sr. DR for the Revenue has fairly submitted that the department has no serious objection if the aforesaid delay of 38 days in filing this appeal belatedly by the assessee is condoned. In my considered view, the assessee ought to have been vigilant once it had filed an appeal before ld. CIT(A), and at the same time, I have also observed that ld. CIT(A) appellate order was stated to be posted on ITBA portal, but the assessee has claimed that it did not open the ITBA portal and hence the assessee was not aware of the appellate order passed by ld. CIT(A) . Thus, the assessee is contended that it is only after opening the ITBA portal, the assessee got the knowledge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of deposits in bank account. 4. The Ld.CIT(A) has erred in law and facts in upholding addition of Rs. 24,83,000/- of cash deposited in bank account as unexplained cash credit u/s. 68. 5. Appellant craves right to add amend and alter or modify all or any grounds of appeal before final appeal. 4. The brief facts of the case are that as per information gathered by the Income-tax Department, the assessee had deposited cash in his Bank Account held with Vijaya Bank, at Manekchawk Branch and also deposited cash in Indusind Bank, during the financial year 2010-11. It was also observed by the AO, that assessee has also entered into share transactions and earned income from commodities through Multi Commodity Exchange. The assessee has not filed the return of income for the impugned assessment year. Therefore, the source of cash deposits made by the assessee in his bank and share transactions as well transactions made in commodities during the financial year 2010-11 required to be verified. The AO invoked the provision of section 147 of the Act, and assessment was reopened and notice u/s. 148 of the Act dated 20.03.2018 was issued by the AO to the assessee, after recording of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of notices u/s. 142(1) on or before 13/12/2018 positively, failing which it will be presumed that you have no explanation to offer and accordingly your assessment will be finalized u/s. 144 r.w.s. of the I.T. Act, 1961 on the basis of materials available on the record of this office. 4.2 The assessee did not furnish any explanation in response to the aforesaid Show-cause notice as well to notices issued by the AO u/s 148 and 142(1) to the assessee, and the AO proceeded to frame ex-parte assessment u/s 144 of the 1961 Act, by making additions to the tune of Rs. 29,93,000/- to the income of the assessee towards undisclosed cash deposits. 4. Aggrieved, the assessee filed first appeal before the Ld.CIT(A), who adjudicated the appeal of the assessee, by holding as under: 4.4 Decision 4.4.1 It is an admitted fact that during the relevant previous year the appellant has made total cash deposit of Rs. 19,63,000/- in Vijaya Bank, ManekChowk Branch, Ahmedabad, account no. 730501011000653 and Rs. 5,20,000/- in Indusind Bank, Main Branch, Ahmedabad, account no.0009-M68197-001. Therefore the onus of proving the source of cash with support of authentic documentary evidences lies on the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as sufficient cause for failure to comply with the alleged notices of hearing issued by AO. Thus, the ex-parte assessment was made in gross violation of the Principles of natural justice.. 5.2 Decision 5.2.1 In view of the detailed discussion made in the above ground of appeal this ground of appeal is dismissed. 6.1 The third ground of appeal raised by the appellant read as under: The Ld. AO has grievously erred in law and or on facts in holding the cash deposits aggregating to Rs. 29,93,000/- in bank accounts as unexplained and thereby making addition of Rs. 29,93,000/-.. 6.2 Decision 6.2.1. In view of the detailed discussion made in the above ground of appeal this ground of appeal is dismissed. 7.1 The fourth ground of appeal raised by the appellant reads as under: That in the facts and circumstances of the case as well in law, the Ld. AO has grievously erred in holding the cash deposits aggregating to Rs. 29, 93, 000/- in bank accounts as unexplained and thereby making addition of Rs. 29,93,000/-. 7.2 Decision 7.2.1. In view of the detailed discussion made in the above ground of appeal this ground of appeal is dismissed. 8.1. The fifth ground of appeal raised by the appellant re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. It was submitted that the assessee did not appeared before the AO as well before ld. CIT(A). The Ld. Sr. DR relied on the decision of the ITAT, Delhi Benches, in ITA No. 1265 and 1266/Del/2019, dated 04.03.2021 in the case of Shri Parveen Garg v. The ITO, New Delhi, and also decision of ITAT, Chandigarh Benches in ITA No. 921/CHD/2019, dated 26.04.2022 in the case of Shri Balwinder Singh v. The ITO, Jargaon, and further relied on the appellate order of the Ld.CIT(A). 7. I have considered the contention of both the parties and perused the materials available on record. I have observed that the assessee has not filed its return of income originally u/s. 139 of the Act . There was cash deposits made by the assessee to the tune of Rs. 24,73,000/- in Vijaya Bank, Maneckchowk Branch, Ahmedabad and Rs. 5,20,000 in Indusind Bank, Main Branch, Ahmedabad. Therefore, as per the AO source of the cash deposit of Rs. 29,93,000/- during financial year 2010-11 remained unexplained and sources of cash deposit in above bank accounts required to be verified. Further, the AO observed that the assessee has also made share transactions of Rs. 4,29,216/- and as well entered transactions of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well commodities transactions to the tune of Rs. 302,75,77,050/- entered into by the assessee through MCX. The assessee did not file return of income u/s 139, while it was incumbent on the part of the assessee to have filed return of income as is required u/s 139, keeping in view the factum of transactions carried on by the assessee. The AO has rightly invoked provisions of Section 147/148 of the 1961 Act, as the AO rightly has reasons to believe that income has escaped assessment keeping in view cash deposits in the bank accounts as well transactions entered into by the assessee in shares/commodities. The assessee did not file any return of income in pursuance to notice issued u/s 148. The assessee did not participated in the assessment proceedings as well appellate proceedings conducted by ld. CIT(A). In my considered view, the AO has rightly invoked provisions of Section 147 as AO rightly has reasons to believe that income of the assessee has escaped assessment. At the stage of reopening of assessment, conclusive proof of income escaping assessment is not required rather a prima-facie formation of a belief of the AO is required based on tangible material having live link/nexus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, through RTI application. The assessee has not brought on record any evidences for explaining sources of cash deposits in the bank accounts held by it with Vijaya Bank and Indusind Bank. So far as merits of the additions are concerned, the ld. Counsel for the assessee has now taken a plea before ITAT for the first time, which plea is taken without prejudice, that only peak credit can be added with respect to cash deposits and entire cash deposits cannot be added, and in context thereof the assessee has filed additional evidences before the Tribunal by way of working of peak cash credits to the tune of Rs. 1174,730/- as well bank statements of both the bank accounts viz. Vijaya Bank and Indusind Bank for the relevant period are filed, and contentions are made that the entire cash deposits in the bank cannot be added and it is the peak amount which could be added, as there were cash deposits as well cash withdrawals from the Bank. The additional evidences filed requires verification by authorities below. The mandate of the 1961 Act is to bring to tax correct income in the hands of the correct assessee for the correct assessment year, keeping in view provisions of the 1961 Act. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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