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Income Tax Appellate Tribunal, INDORE SMC BENCH, INDORE
Before: SHRI KUL BHARAT
आदेश / O R D E R
These two appeals by the two different assessees are directed against order of the CIT(A)-I, Indore dated & 765/Ind/2019] [Ajith Arvind & Kavita Nair 24.05.2019 pertaining to the assessment year 2009-10.
Since the issues are common both appeals are taken up together and are being disposed by way of consolidated order.
First we take up the assessee (Shri Ajith Arvind Nair) appeal in ITANo.766/Ind/2019 for the Assessment year 2009-10. The assessee has raised following grounds of appeal:
“1. Under facts & circumstances of the case the Learned CIT(A) & ITO was not justified to addition of income Rs.632500/- on the basis of AIR and passed best judgment assessment u/s 144.
2. The order of Hon'ble CIT(A) erroneous and bad in law as cash deposit of Rs.632500/- it is sale of property of Rs.349000/- and balance amount belongs to business activity, past savings, sale of other assets. The assessee may kindly be accorded permission to adduce as a additional evidence. The Following document property sales deed copy, bank account statement copy, ITR copy of earlier years.
3. The CIT(A)-I, Indore has erred taken cash receipts as income but it should be 8% of income being profit on income. In view of the aforesaid reason, I would humbly request your honour to kind cancelled the best judgment assessment order issued u/s 144 & cancelled demand. ”
& 765/Ind/2019] [Ajith Arvind & Kavita Nair
Briefly stated facts are that the case of the assessee was reopened and the assessment u/s 144 r.w.s 147 of the Income Tax Act 1961(hereinafter called as ‘the Act’) was passed vide order dated 29.12.2016. The Notice u/s 148 of the Act was issued on 16.03.2016, in response to that notice, no compliance was made another notice was issued u/s 142(1) of the Act, despite having given various opportunities no one appeared on behalf of the assessee, therefore, the assessing officer made an addition of Rs.6,32,500/-. The amount deposited in the joint account of the assessee along with his wife.
Aggrieved by this, the assessee preferred an appeal before Ld. CIT(A), and assessee had filed certain evidences which were not admitted by the Ld. CIT(A) and sustained the addition made by the assessing officer. Now the assessee is in appeal before this Tribunal. & 765/Ind/2019] [Ajith Arvind & Kavita Nair
Ld. counsel for the assessee reiterated submission as made in the written submission. The submissions of the assessee are reproduced as under:
1.The assessee Ajith Arvind Nair residing in Kerala from the last 10 years. So he is not aware about the notice that's why he does not reply to the notices. 2.The assessee was property dealer and his wife running beauty parlor. As his Income is below taxable limit that's why he does not file income tax return. 3.Total cash deposited in joint account of Rs. 1250000 and on the basis of AIR assessing officer makes addition in income of Ajith nair and Kavita Nair of Rs. 632500 each. As the cash deposit of Rs. 632500/- , it is sale of property of Rs. 349000 and balance amount belongs to business activity of both assessee, past savings and sale of other assets. 4.The learned CIT considered only copy of property sales deed as additional evidence and some additional evidence like: Sale agreement of TATA India dated 01-12-2008, Sale Agreement of Passion Motor Dated 02-12-2008, Certificated regarding retirement Benefits, Loan and advances received from parties. ITR copy of earlier years. 5.The CIT (Appeals)-I Indore has erred taken cash receipts as income but it should be 8% of income being profit on income. 6.In one of our case Assessee Shri Anil Ratanlal Jain Vs ITO 3(3) In interest of justice ITAT accepted the additional evidences. 7.In our case ITAT no., 800/Ind/2014 after accepting the order of tribunal CIT(A) 286/2015-16 in case of Anil Ratanlal jain Vs ITO 3(3) Hon'ble CIT added income only 8% of the total cash deposit instead of total cash deposited.
8. Please give attention to the following decisions in support of our claim:-
& 765/Ind/2019] [Ajith Arvind & Kavita Nair
•Saikrupa Finlease Pvt Ltd. Vs ACIT 3(1)-Income tax appellate tribunal, Indore Bench • Pushpa devi S. Doshi Vs ITO 5(4) Pune, Income Tax Appellate Tribunal- Pune •M/s A.F. Ferguson & Co. vs JCIT (ITAT Mumbai),ITA No.5037/M/2012 , Addition for Professional Fees -Merely based on AIR not sustainable •M/s ANS Law Associates vs ACIT (ITAT Mumbai), ITA No.5181/M/2012 _ Additions merely on the basis of AIR information are not sustainable. Under the facts & circumstances of the case Hon'ble erred in addition of total income of Rs 632500/- 0n the basis of AIR & passed best judgment assessment order u/s 144.
Ld. D.R. opposed these submissions and supported the orders of the authorities below.
I have heard the rival submissions, perused the materials available on record and gone through the orders of the authorities below. I find that the assessee has given sufficient reasons for non appearing before the assessing officer and non-filing of evidences that appears to be bona fide. Therefore, the impugned orders are set aside and the assessment is restored to the file of the assessing officer.
AO is directed to make assessment de novo after giving 5 & 765/Ind/2019] [Ajith Arvind & Kavita Nair sufficient opportunity to the assessee. Grounds raised in this appeal are allowed for statistical purposes.
Now we take up the assessee (Smt. Kavita Nair) appeal in ITANo.765/Ind/2019 for the Assessment year 2009-10.
The assessee has raised following grounds of appeal:
“1. Under facts & circumstances of the case the Learned CIT(A) & ITO was not justified to addition of income Rs.632500/- on the basis of AIR and passed best judgment assessment u/s 144.
2. The order of Hon'ble CIT(A) erroneous and bad in law as cash deposit of Rs.632500/- is assessee business of beauty parlour tuition income and balance amount is assesseee’s own past savings. The assessee may kindly be accorded permission to adduce as a additional evidence. The Following document property sales deed copy, bank account statement copy, ITR copy of earlier years.
3. The CIT(A)-I, Indore has erred taken cash receipts as income but it should be 8% of income being profit on income. In view of the aforesaid reason, I would humbly request your honour to kind cancelled the best judgment assessment order issued u/s 144 & cancelled demand. ”
The facts are identical as were in the ITANo.766/Ind/2019 in the case of husband of the assessee. Ld. DR adopted the same arguments for the same & 765/Ind/2019] [Ajith Arvind & Kavita Nair reasoning. The impugned order is set aside and assessment is restored to the file of the assessing officer to make a de novo assessment after giving due opportunity to the assessee in the interest of principles of natural justice.
Grounds raised in this appeal are allowed for statistical purposes.
In the result, these appeals filed by the assessee are allowed for statistical purposes.
Order was pronounced in the open court on 09 .03.2020.