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13-05-2019, Janak Goel, Section 68, 153A, 292B, Tribunal Delhi

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3 months 1 week ago #9428 by amit
Section - 68, 153A, 292B
Order Date - 13-05-2019
Favouring - Revenue
Court - Tribunal Delhi
Appellant - Janak Goel
Respondent - DCIT
Citation - 519Taxpundit191
Appeal No. - ITA No. 937 & 938/Del/2012
Asstt. Year - 2004-05 and 2005-06



ITA number 937/del/2012 for assessment year 2004 – 05

1. This is an appeal filed by the assessee against the order of the LD CIT (A)- XXXIII, New Delhi dated 26.01.2011 for the Assessment Year 2004-05. Wherein the learned assessing officer made an addition u/s 68 of the income tax act with respect to the amount of cash deposited the savings bank account maintained with the state bank of India by the assessee is partly confirmed.

2. The assessee has raised the following grounds of appeal:-

“1. Whether as per provisions of section 143(2), notice can only be served after Assessing Officer has examined return filed by assessee.

2. Whether, since, in instant case notice had been issued prior to filing of return, it was not a valid notice and, therefore, assessment Completed on basis of it was also invalid.

3. Whether Commissioner (Appeals) was justified in not considering the new ground.

4. Whether, since, in instant case, the assessing authority is justified in assuming jurisdiction to frame the impugned Assessment Order and to make impugned addition and disallowance. More so, the same have been made in absence of any adverse material having been found and seized during the course of search.

5. Commissioner (Appeal) has not considered the additional evidences on which the assessing authority has not made any enquiry.

6. The commissioner (Appeal) has not considered the ground no. 9 regarding objection of jurisdiction of the appellant.”

3. During the course of hearing of the appeal, The assessee filed the additional ground of appeal as under:-

“That having regard to the facts and circumstances of the case, the learned CIT – A, has erred in confirming the addition amounting to INR 512000/– on account of unexplained bank deposit under section 68.

4. The assessee submitted that appellant has submitted the main ground of appeal, thorough oversight this ground could not be raised. He stated that subject matter of the additional ground has already been taken up in the assessment proceedings and the first appellate proceedings. The facts of additional grounds of appeal are already there in the other grounds of appeal, therefore no fresh investigation of facts is required for adjudication of additional ground of appeal, and therefore it may be admitted.

5. The learned departmental representative vehemently objected to the additional ground of appeal and stated that same does not arise from the order of the Ld assessing officer or the learned CIT – A and therefore the same is not been raised before the lower authorities. It can also not be raised before tribunal.

6. We have carefully considered the rival contention and perused the orders of the lower authorities. We also applied our mind to the application for additional evidences filed by the assessee. We find that the assessee would like to challenge the addition made by the learned assessing officer under section 68 of the income tax act on the legal grounds. The legal ground can be raised at any time of the disposal of the appeal. Further, no additional facts are required to be brought on record and therefore, the additional ground raised by the assessee is admitted.

7. The brief facts of the case show that the search u/s 132 of the income tax at 1961 was conducted at the residential premises of the assessee on 22/9/2005. The notice under section 153A of the act was issued on 15/5/2006 directing the assessee to file the return of income within 16 days of the receipt of notice. No return of income was filed by the assessee and therefore, notice under section 142 (1) was issued on 21/8/2007. Detailed questionnaire along with the further notice under section 142 (1) of the act was also issued on 9/10/2007. The learned assessing officer further issued notice under section 143 (2) on 6/12/2007, which was duly served. Suddenly assessee filed its return of income on 7/12/2007 declaring total income of Rs. 77130/–. However, the same was not accompanied by any of the documents.

8. The learned AO noted that during the year the assessee derived income from consultancy work and on perusal of the bank account maintained with state bank of India, it is found that assessee has deposited cash of INR 636000/–. The assessee was required to explain the source of the cash deposit. The assessee submitted that cash deposit of INR 60,000 on 17/5/2003 is out of the loans of the various parties. However, the balance of INR 6000 no explanation was provided. The assessee also did not file any confirmation in respect of the above loans received Further, the loans were also given in cash. No books of accounts have been maintained are produced before the assessing officer. Therefore, the learned AO treated the above sum of INR 60,000 as unexplained income and added the same under section 68 of the income tax act. The next cash deposit of INR 55,000 on 21/8/2003. The assessee‟s counse submitted that it is out of cash of INR 18,000 received from three gentlemen. The three persons were the same persons who are also discussed in the cash deposit of INR 60,000/– on 17/5/2003. Therefore, the learned assessing officer rejected the explanation of the assessee, treated the sum of INR 55,000 /– as income from undisclosed sources, and added under section 68 of the income tax act. A further sum of Rs. 90,000/- was deposited on 18/9/2003. The assessee explained the source out of the cash withdrawal on 9/9/2003 of INR 50,000 and INR 12,000, 18,000 and 18,000 received back from 3 different persons. The learned assessing officer accepted the deposit of INR 50,000 out of the cash withdrawal of 9/9/2003. However, with respect to the other explanation he disbelieved and made an addition of INR 48,000/– as unexplained income under section 68 of the income tax act. Further, the sum of INR 125000/– and INR 181000 on 11/11/2003 and 11/3/2004 , which was stated to be received by the assessee from one company, however the assessee did not furnish any information or confirmation from that particular company. Further, the learned assessing officer treated the sum of INR 316000/– as unexplained income and made the addition u/s 68 of the income tax act. Further the case of INR 135,000 deposited in the bank account on 27/11/2003, assessee submitted the same out of cash of INR 18,000/-
received from 7 persons, however, no further explanation was provided and therefore the addition of INR 135,000/– was made by the learned assessing officer. The learned AO also noted that the assessee has made huge investment in various advances as well as property during the year. Therefore, the deposit of cash in the bank account is for payment by cheque for the purchase of those assets. The learned AO noted that the assessee is trying to create an explanation which is not supported by evidences and Therefore, the order under section 153A (b) of the act was passed on 20/12/2007 determining the total income of the assessee of INR 7 29393/– against the returned income of INR 1 15393/–, wherein, the addition of INR 6 14000/– was made under section 68 of the income tax act.

9. The assessee aggrieved with the order of the Ld. assessing officer preferred an appeal before the learned CIT – A, who after considering the argument of the assessee confirmed the addition of INR 512000/– and deleted the balance amount. The assessee aggrieved with the order of the learned CIT – A has preferred this appeal before us.

10. The 1st ground of appeal of the assessee challenges the issue of the notice under section 143 (2) of the income tax act submitting that it can only be served after the assessing officer examined the return filed by the assessee. As per ground number 2, assessee challenged that instant case, the notice had been issued prior to the filing of return of income and therefore it was not a valid notice and therefore assessment completed based on it was invalid. The main argument of the assessee is that the appellant submitted its return of income on 7/12/2007. However the learned assessing officer issued notice under section 143 (2), on 6/12/2007. Therefore this notice is not a valid one as per the provisions of section 143 (2), which makes it clear that the notice can only be served after the learned

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