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TMI Blog2024 (10) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... A) erred in ignoring the legal submissions made and keeping SILENT on it renders all such orders as invalid which is well settled law. 3. On the facts and circumstances of the case and in law the CIT (A) erred in partly allowing the appeal by dropping the additions made of Rs. 28, 63,000/- which is the amount deposited during demonetization period and the only point on which the appellants case was selected for scrutiny and when the same does not survive then the whole appeal was to be allowed. 4. On the facts and circumstances of the case and in law the CIT(A) erred in not considering the facts that the mandatory notice under section 147/148 was not issued resulting the assessment order framed and passed is without jurisdiction void ab initio null and void. 5. On the facts and circumstances of the case and in law the CIT(A) erred by exceeding his powers as mandated in section 251 in directing the AO to compute the income in a particular manner and that too is on presumption basis with further instructions to once again passing a speaking order. 6. On the facts and circumstances of the case and in law the CIT (A) erred in not granting a personal hearing before passing order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that she is not having bank statement for F.Y. 2015-16 and 2016-17 and having income within the exemption limit." 3. Since the assessee did not submit the bank statements and proper supporting documentary evidences w.r.t. cash deposits in her account during the year under consideration, again on 13.09.2019, the assessee was given a show cause as to why the assessment should not be completed as per the provisions of section 144 of the Act. As the assessee failed to furnish any valid return u/s. 139 and in compliance to section 142(1) of the Act and there is no substantial compliance to the other notices issued asking to substantiate the deposit in bank account, ultimately, the assessment of the assessee was completed as "Best Judgment Assessment" u/s. 144 of the Act. 4. During the year under consideration other than deposit of SBNs during the demonetization period, the bank statement obtained by the department reflects that there were total credits/receipts to the tune of Rs. 18, 59, 37,563/- (Other than Rs. 28.63 Lacs mentioned above). Considering these facts the AO completed the assessment on a figure of Rs. 2, 14, 56,756/- (Rs. 28.63 Lacs + 10% of Rs. 18, 59, 37,563/-). T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therwise, as may be specified by the Board in this behalf; or (ii) is the owner or the lessee of a motor vehicle other than a two- wheeled motor vehicle, whether having any detachable side car having extra wheel attached to such two-wheeled motor vehicle or not; or (iii) [***] (iv) has incurred expenditure for himself or any other person on travel to any foreign country; or (v) is the holder of a credit card, not being an "add-on" card, issued by any bank or institution; or (vi) is a member of a club where entrance fee charged is twenty-five thousand rupees or more, Shall furnish a return, of his income during any previous year ending before the 1st day of April, 2005], on or before the due date in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed: Provided further that the Central Government may, by notification in the Official Gazette, specify the class or classes of persons to whom the provisions of the first proviso shall not apply: Provided also that every company or a firm shall furnish on or before the due date the return in respect of its income or loss in every previous year: Provided a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 139 reproduced (In bold and underline)} Section - 142, Income-tax Act, 1961 - FA, 2023 Inquiry before assessment. 142. (1)For the purpose of making an assessment under this Act, the Assessing Officer may serve on any person who has made a return under section 115WD or section 139 or in whose case the time allowed under sub-section (1) of section 139 for furnishing the return has expired a notice requiring him, on a date to be therein specified,- (i) where such person has not made a return within the time allowed under sub-section (1) of section 139 or before the end of the relevant assessment year, to furnish a return of his income or the income of any other person in respect of which he is assessable under this Act, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed, or : Provided that where any notice has been served under this sub-section for the purposes of this clause after the end of the relevant assessment year commencing on or after the 1st day of April, 1990 to a person who has not made a return within the time allowed under sub-section (1) of section 139 or before the end of the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Commissioner or Commissioner in this behalf and to furnish a report of such inventory valuation in the prescribed form duly signed and verified by such cost accountant and setting forth such particulars, as may be prescribed, and such other particulars as the Assessing Officer may require: Provided that the Assessing Officer shall not direct the assessee to get the accounts so audited or inventory so valued unless the assessee has been given a reasonable opportunity of being heard.] (2B) the provisions of sub-section (2A) shall have effect notwithstanding that the accounts of the assessee have been audited under any other law for the time being in force or otherwise. (2C) every report under sub-section (2A) shall be furnished by the assessee to the Assessing Officer within such period as may be specified by the Assessing Officer: Provided that the Assessing Officer may, suo moto, or on an application made in this behalf by the assessee and for any good and sufficient reason, extend the said period by such further period or periods as he thinks fit; so, however, that the aggregate of the period originally fixed and the period or periods so extended shall not, in any case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iso and section 142(1) of the Act, the assessee was liable to file the return of income and the assessee's arguments on non-filing of return is legally non-tenable. Rather, in the guise of (Assessee's claim that her income is below the limit) low taxable income, the assessee is violating the mandatory provisions of law as discussed (supra). 7. Very smartly the assessee's is playing a hide & seek in technical terms, but never came with clean and substantive evidences to establish her claim about below taxable limit. We have considered the judicial pronouncements and CBDT Instruction No. 03/2017, Dated: 21.02.2017 relied upon by the assessee and it is found that the Ld. CIT(A) has already considered the same and granted relief also relying on Instruction No. 03/2017, Dated: 21.02.2017(Addition of Rs. 28.63 Lacs). As far as judicial pronouncements in the case of CIT vs. Smt. Nayana P. Dedhia (2004) 270 ITR 572 (By the Hon'ble Andhra Pradesh High Court) and Reuters Asia Pacific Ltd. Vs. DCIT, International Tax, Circle-4(1)(1), Mumbai (ITA No. 587/Mum./2021) by the coordinate bench are concerned, both have no use, considering the facts of the matter. Certainly the judicial pronouncemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal, the [Joint Commissioner (Appeals) or the] [Commissioner (Appeals)], may consider and decide any matter arising out of the proceedings in which the order appealed against was passed, notwithstanding that such matter was not raised before the [Joint Commissioner (Appeals) or the] [Commissioner (Appeals)] [, as the case may be,] by the appellant. 8. In view of amendment in section w.e.f. 01.06.2001, it is certain that the First Appellate Authority is not empowered to set aside the Appeal before him and the assessee's reliance on Arun Kumar Bose vs. ITO; Siliguri has a legal strength. In view of the above facts it is observed that despite of non-cooperation by the assessee and poor representation of the matter before the AO, as discussed (supra), the Ld. CIT (A), exceeded his powers by setting aside the matter back to the AO, technically his order is faulty and considering the ratio laid down in the case of Arun Kumar Bose vs. ITO; Siliguri, we declare the order as beyond the powers provided by the statute. In view of the above, we restore the matter back to the file of Ld. CIT (A) with a direction to call for a remand report from the AO and then adjudicate the matter of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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