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Income Tax Appellate Tribunal, PUNE BENCHES “B” :: PUNE
Before: SHRI PARTHA SARATHI CHAUDHURY & DR. DIPAK P. RIPOTE
आदेश/ ORDER
PER DR. DIPAK P. RIPOTE, AM:
This is an appeal filed by the assessee against the order of Ld.Commissioner of Income tax (Appeal)(NFAC) passed under section 250 of the Income Tax Act, 1961 for A.Y. 2011-12 on 12/05/2023. The assessee has raised following grounds of appeal:
1. The learned CIT(A)-NFAC erred in law and facts In effectively confirming, and learned AO erred in actually making
Shaikh Zuber Shaikh Raushan Qureshi [A] addition u/s 69A of the ITA, 1961 amounting to Rs.59,25,810/-, on account of unexplained money without considering low- key affairs of the assessee, being a wholesale / retail meat trader.
The learned I-T authorities ought to have appreciated that, for a low-key meat trader, the taxation of all credit summations in various bank accounts on a GROSS basis is wholly erroneous and contrary to law. Learned l-T authorities ought to have taxed plausible net profit / net income out of the GROSS bank credit summations.
3. Learned I-T authorities also erred in not appreciating that, cash deposits in various bank accounts were only to the tune of Rs 11,41,471/- and cheque / RTGS credits in the various bank accounts were to the tune of Rs.47,98,154/-. The learned l-T authorities ought to have granted the benefit of telescoping and depositing of cash in the bank accounts from a logical reasoning perspective.
4. Appellant contends that, the assessment proceedings as well as appellate proceedings ought to have been considered in a realistic manner and considering the mofussil area of Appellant's business (i.e. NANDURBAR) and type of business activity (family business of trading in meat).
5. The appellant craves leave to add / modify / delete / amend all / any of the grounds of appeal.”
Brief Facts of the case : 2. As per the Assessment Order the Assessing Officer(AO) had received AIR Information regarding cash deposit of more
Shaikh Zuber Shaikh Raushan Qureshi [A] than 64 Lakhs in the saving bank account of the assessee and no return had been filed by the assessee. The AO issued notice u/s 148 on 28/03/2018. Then, the AO issued notice u/s 142 on 06/06/2018, 20/11/2018 but assessee failed to comply. On 15/12/2018 assessee filed return of Income and the Authorized representative of the assessee appeared on 17/12/2018. The assessee in the return had shown income under section 44AD of the Act. Assessee had shown total receipt of Rs.58,89,400/- and offered Income at 8% at Rs.4,71,160/-.
During the assessment proceedings the assessee had not made any submission. Therefore the AO mentioned in the assessment order that in the absence of any details Rs.64,00,000/- is treated as unexplained, but since assessee had shown income of Rs.4,74,190/- in the return of Income, the same is reduced and an addition of Rs.59,25,810/- is made to the returned income under section 69A of the Act.
4. Aggrieved by the assessment order the Assessee filed an appeal before the ld.Commissioner of Income Tax(Appeal). The assessee filed copies of Bank Statement of ICICI Bank, Union Bank, Axis bank, HDFC Bank, copies of Sales receipts, Ledger.
Shaikh Zuber Shaikh Raushan Qureshi [A] The assessee claimed that assessee is a small businessman doing Wholesale business of “meat”, which was his family business. The assessee also submitted before the ld.CIT(A) that Bank statements were filed before the AO also. Assessee also submitted that the AO may visit the premises to confirm the business of the assessee. The ld.CIT(A) called for a remand report from the AO. However, the AO merely submitted that the assessee has not filed any evidence regarding the receipts appearing in the Bank Statements. According to the AO, there was cash deposit of Rs.11,41,471/-, Rs.34740/-, Rs.5000/- and credits of Rs.47,98,154 /- totaling Rs.59,79,365/- as per the bank statements.
4.1 Ld.CIT(A) confirmed the addition of Rs.59,79,365/-. The relevant para 5.4 of the ld.CIT(A)’s order is reproduced here as under : “5.4 It is seen that the accounts had receipts both in cash and through banking transactions. In the Remand Report the cash deposit of Rs. 64 lakh has not been proved rather it is stated that cash of Rs.11,41,471/- was deposited alongwith other credit entries amounting to Rs.59,79,365/-. In these circumstances,where the Return had not been filed and the explanation seem to be an afterthought considering the business activity of the appellant could not be established, the Assessing Officer is directed to restrict the addition to Rs.59,79,365/- that was credited to the bank account of the appellant.”
Shaikh Zuber Shaikh Raushan Qureshi [A]
Aggrieved by the order of the ld.CIT(A), the assessee filed appeal before us. Submission of Ld.AR : 6. The Ld.Authorised Representative(ld.AR) of the assessee filed a paper book. Ld.AR also filed copy of Shop Act License which was in the name of assessee’s father. The Ld.AR filed an application for admission of additional evidence. Ld.AR pleaded that assessee could not submit copy of the Shop Act License, however, it is an important evidence hence it may be admitted. Ld.AR also submitted that total receipts were only Rs.59,79,365/- in the bank statements which has been admitted by the AO in the remand report. The AO has also admitted in the remand report that cash deposits were only Rs.11,41,471/-. Ld.AR submitted that the Assessee had submitted copies of Sales Bills, Ledger and Ld.CIT(A) has admitted the same in his order but has not considered these evidences. Therefore, the ld.AR pleaded that assessee being a small businessman had offered income u/s 44AD of the Act at 8% which may be accepted.
Shaikh Zuber Shaikh Raushan Qureshi [A] Submission of Ld.DR : 7. The Ld.Departmental Representative(ld.DR) for the Revenue relied on the order of the AO and ld.CIT(A).
Findings and Analysis : 8. We have heard both the parties and perused the records. The AO has not mentioned in the assessment order name of the bank, account number, dates of so-called cash deposits.
8.1 We have perused the “Reasons Recorded” by the AO for issuing notice u/s 148. The relevant paras of the reason recorded by the AO are reproduced here as under :
Shaikh Zuber Shaikh Raushan Qureshi [A]
Thus, in the reason it was alleged that there was Credits of Rs.64,00,000/- and Debits of Rs.63,00,000/- in the Account Number 910010017718007 of Axis bank which was in the name of Qureshi Shaikh Zuber S.
8.2 However, we have perused the impugned Bank Statement for F.Y. 2010-11 which is at page 5-6 of the Paper Book filed by the Assessee. There are credits of less than Rs.2,00,000/-. The assessee in his submission made before the ld.CIT(A) had submitted that total deposits in the impugned Bank Account maintained with the Axis Bank was only Rs.1,85,601/-.
The assessee had submitted copies of Sales receipts before the Ld.CIT(A) which is mentioned in the ld.CIT(A)’s order at para 4.5 page 6.Assessee had also submitted copy of Ledger of the respective customers which is also mentioned in the order of the ld.CIT(A) on page 6 para 4.5. The ld.CIT(A) had forwarded the submission to the AO for remand report as per Rule 46A of the Income tax rules. The AO has not made any comment on the Sales Receipts, Ledger. Rather AO mentioned in the remand report that assessee failed to file any evidence, which is contrary to the fact mentioned in the order of the Ld.CIT(A).The
Shaikh Zuber Shaikh Raushan Qureshi [A] Ld.CIT(A) has also not made any comment on the sales receipts, Ledger. The AO and ld.CIT(A) had merely added the entire amount which was appearing in the Bank Statements.
Additional Evidence filed by Assessee: 9.1 The Assessee has filed copy of the License issued by competent authority under the shop and establishment act. This was not submitted before the Lower authorities. We are of the opinion that there was sufficient cause for not filling it before the AO or Ld.CIT(A). Since this is crucial evidence to establish the business activity, we deem it fit to admit the additional evidence filed by the assessee.
In these facts and circumstances, as we have observed in earlier paragraphs that the AO and ld.CIT(A) had failed to comment on the sale bills, Ledger filed by the assessee and assessee filed before us copy of License, we are of the opinion that the case needs to be set aside to the Ld.CIT(A) for denovo adjudication. The Ld.CIT(A) shall take into consideration the bills, ledger which were already filed before Ld.CIT(A). Ld.CIT(A) shall also take into consideration copy of the License filed by the assessee. Ld.CIT(A) shall be at liberty to call for Shaikh Zuber Shaikh Raushan Qureshi [A] any document essential to decide the issue. Accordingly, the case is set aside for de-novo adjudication to Ld.CIT(A). The Ld.CIT(A) shall provide opportunity of hearing to the assessee.
In the result, appeal of the assessee is allowed for statistical purpose. Order pronounced in the open Court on 19th Dec, 2023.
Sd/- Sd/- (DR. DIPAK P. RIPOTE) (PARTHA SARATHI CHAUDHURY) ACCOUNTANT MEMBER JUDICIAL MEMBER पुणे / Pune; �दनांक / Dated : 19th December, 2023/ SGR* आदेशक��ित िलिप अ�ेिषत / Copy of the Order forwarded to : अपीलाथ� / The Appellant. 1. ��यथ� / The Respondent. 2.
3. The CIT(A), concerned.
The Pr. CIT, concerned. 5. िवभागीय�ितिनिध, आयकर अपीलीय अिधकरण, “बी” ब�च, पुणे / DR, ITAT, “B” Bench, Pune. गाड� फ़ाइल / Guard File. 6. आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune.
Shaikh Zuber Shaikh Raushan Qureshi [A]
S. Details Date Initia Designatio No ls n 1 Draft dictated on Sr. PS/PS 2 Final Draft placed before author Sr. PS/PS 3 Draft proposed & placed before the Second JM/AM Member 4 Draft discussed/approved by Second Member AM/AM 5 Approved Draft comes to the Sr. PS/PS Sr. PS/PS 6 Kept for pronouncement on Sr. PS/PS 7 Date of uploading of Order Sr. PS/PS 8 File sent to Bench Clerk Sr. PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R. 11 Date of Dispatch of order