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TMI Blog2024 (12) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... made in the hands of the assessee on account of cash deposited on 10.11.2016, 13.11.2016 and 29.11.2016 in the demonetization currency of Rs. 500/- and Rs. 1000/- in the bank account maintained with Union Bank of India, Railway Road, Kasganj, as the said bank account belongs to Mr. Neeraj Kumar, proprietor of Anurag Kumar Neeraj Kumar. The Revenue has also not filed any C.O. with ITAT, thus, the Revenue is not aggrieved with the appellate order passed by ld. CIT(A). This addition as was made by the AO and later sustained by ld. CIT(A) is not sustainable and directed to be deleted. Other deposits during the year, which in total are not exceeding Rs. 50,000/- . The assessee has owned up these cash deposits, and declaration has also been made in ITR filed with Revenue. The assessee has already declared income of Rs. 2,84,600/- in the return of income filed with the department. Under these facts and circumstances. There is no such adverse finding by the authorities below that the said cash deposits are not accounted for by the assessee. No merit in the addition being made in the hands of the assessee. Therefore, order deletion of the additions made by the AO as income in the hands of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Ld. CIT (A). 3 Because considering the facts of the case it cannot be said that the current bank account no. 384601010011133 is jointly owned by the appellant. 4 Because the Ld. CIT (A) has erred in solely relying on the pay-in slips of the deposits in bank account ignoring the undisputed fact that on the same pay-in slip the name mentioned in which the deposited amount is to be credited is Anurag Kumar Neeraj Kumar which is owned by Neeraj Kumar as prop. of M/s Anurag Kumar Neeraj Kumar and the transactions of this bank account has been duly considered and disclosed by Neeraj Kumar in his ITR filed for AY 2017-18 as he has filed the return on presumptive basis u/s 44AD. 5 Because under the facts and circumstances of the case the Ld. CIT (A), NFAC should have deleted all the additions made by the Assessing Officer instead of confirming the same. 6. Because the appellant craves the right to add, alter, amend, modify or/and delete any or all the grounds of appeal at the time of hearing or earlier. 3. At the outset, it is observed that this appeal is filed belatedly by 174 days before the Income-tax Appellate Tribunal, Agra beyond the time prescribed u/s. 253(3) of the Act. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advancement of Substantial Justice, unless malafide is at writ large. I do not find any mala fide on the part of the assessee in filing this appeal belatedly before the Tribunal beyond the time prescribed. The assessee is not likely to gain by filing this appeal belatedly with ITAT. I, therefore, condone the delay in filing of this appeal belatedly by the assessee beyond the time prescribed u/s. 253(3) of the Act. Reliance is placed on the decision of Hon ble Supreme Court in the case of Collector Land Acquisition, Anantnag Ors. vs Mst. Katiji Ors. (1987) 167 ITR 471 (SC). Thus, I condone the delay in filing this appeal and proceed to decide the appeal on merits. I order accordingly. 4. Brief facts of the case are that the assessee filed return of income on 16.03.2018 declaring income of Rs. 2,84,600/-. Case of the assessee was selected for framing limited scrutiny through CASS. Statutory notices u/s 143(2) and 142(1) were issued by the Assessing Officer from time to time to the assessee, but there was no compliance on the part of the assessee. Assessing Officer issued notice u/s. 133(6) to the Bank wherein demonetized currency were deposited, calling for details of deposits of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee). Ld. CIT(Appeals) rejected the contention of the assessee that the assessee has nothing to do with this bank account and relied upon copy of pay-in-slips of the bank through which the cash was deposited in the bank account in the name of Anurag Kumar Neeraj Kumar. Said Pay-in-slips carried the PAN of Shri Anurag Kumar (Assessee) and bearing his signature. The ld. CIT(A) dismissed the appeal of the assessee, on both the grounds, viz., deposit of cash of Rs. 7,11,500/- during the demonetization period and also treating the other cash/credit entries in the said bank accounts of Rs. 62,22,636/- as turnover of the assessee and computing income u/s. 44AD @ 8% of gross turnover. 6. Still Aggrieved, the assessee has filed second appeal before the Tribunal. Shri Pankaj Gargh, Advocate appeared on behalf of the assessee and drew our attention to the written synopsis filed by him along with paper book containing 71 pages. The said paper book carries certification that documents vide S. No. 1 to 9 were filed before ld. CIT(A), while particulars were also given for documents at S.no 10 to 12. Both the paper book and synopsis filed by the assessee are placed on record in file. It is the say ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ST registration which is placed in paper book page No. 22 to 24 having GST Identification No. 09COJPK5927B1ZV, in which the trade name is reflected as Anurag Kumar Neeraj Kumar and the name of the proprietor is Neeraj Kumar, although the said registration is effective from 01.07.2017 (presently we are seized of assessment year 2017-18). It was submitted by ld. Counsel that the main reason for making addition is that the bank account is in the name of Anurag Kumar Neeraj Kumar and in the pay-in-slips for cash deposited by the assessee in the said bank account, there was PAN of the assessee and signature of the assessee. It was submitted that the assessee is not denying that the assessee did not deposit the said cash in the bank account, and it was submitted that Shri Neeraj Kumar is the real brother of the assessee, and the assessee did deposited the said cash in the bank account which were from the sale proceeds collected from business carried on by the brother of the assessee. Certificate dated 06.10.2022 from the bank namely Union Bank of India, Railway Road, Kasganj Branch, Kasganjin original is produced by the ld. Counsel for the assessee, which is placed in the paper book at p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the demonetized currency deposited in the bank account. The AO observed that in current account No.384601010011133 with Union Bank of India, Railway Road, Kasganj, in which demonetized currency of Rs. 500/- and 1000/- were deposited in cash on 10.11.2016, 13.11.2016 and 29.11.2016 of Rs. 2,50,000/-, Rs. 2,50,000/- and Rs. 1,27,500/- by the assessee as the pay-in slips bore the PAN and signatures of the assessee although the said bank account was in the name of Anurag Kumar Neeraj Kumar. There was another bank account bearing No.384602010945067 maintained by the assessee with Union Bank of India, Railway Road, Kasganj, wherein cash of Rs. 45,000/- and Rs. 39,000/- was deposited on 12.11.2016 and 11.11.2016 in demonetized currency. Thus, the AO made the additions to the income of the assessee to the tune of Rs. 7,11,500/- in the hands of the assessee u/s. 69A of the Act. Further, there was deposit of Rs. 62,22,636/- of cash/credit entries in the aforesaid bank accounts. There was no explanation forthcoming from the assessee to several notices including SCN issued by the AO. This also led the Assessing Officer to compute income of the assessee by applying profit rate of 8% on the tu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith Union Bank of India, Raliway Road, Kasganj bearing number 384601010011133 belongs to Shri Neeraj Kumar, proprietor of Anurag Kumar Neeraj Kumar and if the department wanted to proceed, it ought to have proceeded against Neeraj Kumar by invoking provisions of Section 143(2) and / or 148, instead of assessee. It is not the case that Neeraj Kumar has not owned the transactions rather it is claimed that he availed presumptive scheme of taxation u/s 44AD declaring gross turnover of Rs. 50,88,200 and paying tax by computing income @8% u/s 44AD. The Revenue ought to have proceeded against said Mr. Neeraj Kumar by invoking 143(2) and/or Section 148. It was incumbent upon the authorities below to have issued summons to Mr. Neeraj Kumar u/s. 131 or ought to have made enquiries u/s. 133(6) with said Neeraj Kumar, to unravel complete truth. It is true that the assessee did not participated in the assessment proceedings, but the assessee duly participated in appellate proceedings conducted by ld. CIT(A). The powers of ld. CIT(Appeals) are co-terminus with the powers of the Assessing Officer including power of enhancement. It is also explained by the ld. Counsel for the assessee that no proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nurag Kumar Neeraj Kumar, and the said bank account is owned by Shri Neeraj Kumar. If the department wanted to proceed, It ought to have proceeded against Mr. Neeraj Kumar, wherein department could have invoked provisions of Section 143(2) and/or Section 148. The department also did not find it relevant to issue summons u/s 131 or make enquiry u/s 133(6) with said Mr. Neeraj Kumar. It is true that the assessee did not participated in the assessment proceedings, but the assessee duly participated in appellate proceedings conducted by ld. CIT(A). The power of ld. CIT(A) are co-terminus with the powers of the AO. It is not the case of the Revenue that the said Mr. Neeraj Kumar did not own the said deposits in the bank account. The Revenue has also not filed any C.O. with ITAT, thus, the Revenue is not aggrieved with the appellate order passed by ld. CIT(A). The Assessing Officer is directed to delete the additions in the hands of the assessee. 7.4 Accordingly as discussed in Para 7.1 to 7.3, ground No. 2 to 5 stand allowed. 7.5. Ground No. 1 6 are general in nature and do not require specific adjudication. 8. In the result, appeal filed by the assessee stands allowed. Order pronounced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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