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Income Tax Appellate Tribunal, PATNA BENCH
Before: Shri Sanjay Garg & Shri Sanjay Awasthi
Per Sanjay Garg, Judicial Member :
The present appeal has been preferred by the assessee against the order dated 06.02.2024 of the Ld. Commissioner of Income Tax, National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as the “Ld. CIT(A)”] passed u/s. 250 of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) for AY 2017-18.
The assessee has raised the following grounds of appeal :
“1. For that Learned Assessing Officer Ward 3(5) Saharsa has erred in Assessing the appellant on a total Income of Rs 2,79,54,445/- by making addition of Rs. 2,71,10,655/- (Rs.2,67,29,0001- + Rs.3,81,655/-), as against returned income of Rs.8,43,780/-, on the facts and in the circumstances of the case.
2. For that the Learned Assessing Officer has erred in making addition of Rs.2,67,29,000/- in total income of the appellant, the entire amount of Cash deposited into to the Bank accounts of the appellant during the demonetization Period, alleging unexplained cash credit u/s 68 read with section 115BBE of the I. T . Act 1961 .
The Learned AO has erred in making addition of Rs. 3,81,665/-in total income of the appellant by estimating Gross profit @ 3.72% on of Rs 10259825/- alleging Chunni Lal Rameshwar Lal. AY 2017-18 excess credits (Cr.) = 3,81,665/- (1,02,59,825*3.72%) without rejecting books of accounts of the appellant, as the same addition of Rs. 3,81,665/-was made in total income of the appellant by non application of mind of the Learned AO without following provision of section 145(3).
For that addition in total income is not possible on estimate, without rejecting books of accounts it is settled position of law that addition cannot be made on whims , guess work and on estimate and without findings.
For That addition in profit without valid finding and cogent ground cannot be made specially when the income have been estimated and addition is made without rejecting books of account.
That When Gross profit rate is estimated then addition u/s 68 is not permissible under tax law.
7. For that whole addition of Rs. 27110665/- in total income of the appellant have been made on the basis of arbitrarily, un lawful, fanciful assessment order passed under section 143(3), which is not maintainable on the facts as well as in law, therefore whole addition of Rs 27110665/- accordingly whole demand of assessed tax and interest of Rs. 27871609/- is fit to be deleted, quashed or cancelled.
For that the appellant denies to pay the assessed tax including interest in dispute of Rs.2,78,71,609/- demanded on the basis of unlawful addition of Rs. 27110655/- by estimation of profit and addition under section 68 r.w.s.115BBE of the Income-Tax Act 1961, on the facts and in the circumstances of the case.
That When Gross profit rate is estimated then addition u/s 68 is not permissible under tax law.
The whole order of assessment have been passed by the learned AO U/s 143(3) by non-application of judicious mind and is therefore not maintainable in the eye of law and are therefore fit to be deleted quashed cancelled or modified. 10.For that the Learned Commissioner of Income Tax (Appeals) National Faceless Appeal Centre (NFAC), Delhi has erred in dismissing appeal, on the facts and in the circumstances of the case. 11.For that the Learned CIT (A) NFAC, Delhi, has erred in not considering the documents filed by the appellant in response to Notice under section 250 of the Income Tax Act 1961.
For that The Learned CIT (Appeal) has erred in not deciding the appeal on merit ,on the basis of documents, audit reports , vat return already available with him while passing Appeal order uls 250 of the I. T. Act. I3.For that Learned Commissioner of Income Tax (Appeals)-NFAC, Delhi has erred in passing appeal order without application of judicious mind, 14. For that the Learned Assessing officer as well as Learned CIT(A) NFAC has erred in ignoring factual position of the case by not entertaining submission of the appellant.”
Chunni Lal Rameshwar Lal. AY 2017-18 3. A perusal of the above grounds of appeal reveals that assessee in his appeal has mainly contested the addition of Rs.2,71,10,655/- made by the Assessing Officer (in short ‘AO’) out of which addition of Rs.2,67,29,600/- has been made on account of unexplained cash deposits into the bank account of the assessee. Further, the assessee has also contested the addition of Rs.38,165/- made by the AO by estimating gross profit @ 3.72% in the bank deposits by treating the same as the deposits from undisclosed sources.
4. The main contention of the Ld. Counsel for the assessee has been that the entire deposit was made out of the sales/business turnover of the assessee. That the assessee had duly furnished the requisite documents to prove that the aforesaid deposits were out of the business sales of the assessee. He has further submitted that even the AO neither properly examined the documents furnished by the assessee nor considered the submissions made by the assessee. The impugned additions have been made by the AO even without rejecting the books of account of the assessee. He has further submitted that even the AO has not taken into consideration the amount collected/deposited on account of sales tax/VAT etc. He has submitted that the entire issue requires to be examined by the AO thoroughly. He has further submitted that the assessee maybe given an opportunity to present his case before the AO and the AO may be directed to consider the explanations and evidence furnished by the assessee and thereafter to arrive at a correct conclusion.
5. The Ld. DR has not objected to the restoration of the matter to the AO.
6. In view of the above discussion, impugned order of the Ld. CIT(A) is set aside and the matter is restored to the file of the AO for fresh adjudication. The AO will decide the aforesaid issues raised vide above reproduced grounds of appeal afresh in accordance with law after giving