GANESH KUMAR SHARMA,CUTTACK vs. PR.CIT-1, , BHUBANESWAR

At the outset, it is found that the appeal of the assessee is barred by 17 days. In this regard, a condonation application along with affidavit has been filed on behalf of the assessee stating sufficient reasons to condone the delay. Ld CIT-DR also did not object to condone the delay. Accordingly, we condone the delay of 17 days in filing the present appeal and the appeal is heard finally.

It was submitted by the ld. AR that the assessee is an individual and a partner in Joshi Enterprises. It was the submission that the partnership firm is running a petrol pump. It was submitted that the Rs.38,16,000/- in two bank accounts. In a current account maintained with SBI, Joda Branch, the assessee had deposited Rs.35,66,000/- and an amount of Rs.2,50,000/- in the Bank of Baroda, Barbil Branch. It was the submission that the amount of Rs.35,66,000/- related to the petrol pump run by Joshi Enterprises and the amount has been deposited in the bank account of Joshi Enterprises though mistakenly in the PAN Number of the assessee. It was the submission that the bank account though in the name of the assessee, however, the same was operated on behalf of Joshi Enterprises. It was the submission that the bank account was also disclosed in the accounts of Joshi Enterprises. In respect of the amount of Rs.2,50,000/-, it was submitted that the money belonged to the assessee and the same was deposited in the bank account of the assessee and the assessee has also the source for the same. It was the submission that the AO had examined these issues when passing the assessment order u/s.143(3) of the Act on 29.11.2019. It was the submission that the assessee had produced all the evidences before the ld. AO in the course of assessment proceedings. It was the submission that even in the proceedings u/s.263 of the Act, these details were specifically brought to the attention of the ld. Pr.CIT. It was submitted that the ld. Pr.CIT did not accept the contention of the assessee and has set aside the assessment order u/s.263 of the Act to examine the cash deposit during the demonetization period afresh. It was the submission that in respect of the issue of Rs.35,66,000/- deposited in the account of Joshi Enterprises, the 2017-2018 had been completed on 24.12.2019 wherein the cash deposit has been considered and the same has been completed u/s.143(3) of the Act wherein the AO has specifically given a finding that the cash deposit are reflected in the cash book. It was the submission that after considering the cash deposit in the bank account in the case of Joshi Enterprises, the assessment has been completed accepting the returned income. Ld. AR drew our attention to pages 194 to 197 of the paper book, which are the copies of the assessment order passed u/s.143(3) of the Act on 24.12.2019 for the assessment year 2017-2018 in the case of Joshi Enterprises. It was the submission that it is an admitted fact that in respect of Rs.2,50,000/- deposited in the assessee’s bank account the AO has not mentioned in the assessment order on 29.11.2019 though the issue has been considered by him. It was the submission that the order u/s.263 of the Act is liable to be quashed.

In reply, ld. CIT-DR vehemently supported the order of the ld. Pr.CIT. It was the submission that the order passed by the AO is a non- speaking order. It was further submitted that in respect of the cash deposit of Rs.35,66,000/- in the name of Joshi Enterprises, there is no mention by the AO of the assessee of the issue being referred to the AO of Joshi Enterprises for verification. It was thus, submitted that the order passed u/s.263 of the Act is liable to be upheld.

We have considered the rival submissions. A perusal of the assessment order in the case of Joshi Enterprises clearly shows that the