JAYESHKUMAR P CHAUHAN,AHMEDABAD vs. ITO, WARD-5(3)(3), AHMEDABAD

The assessee has raised following grounds of appeal:- “The order of learned Commissioner of Income-tax (Appeals) - V confirming the order of A.O. is bad in law as well on facts on the following grounds; Page No 2. Jayeshkumar P. Chauhan vs. ITO (1) The learned AO and consequently the Ld. CIT(A) has erred in law and on facts and circumstances of assessee's case in confirming the additions amounting to Rs. 21,20,180/- on account of undisclosed cash deposit in bank, u/s 68 of the Act. Appellant filed its return of income claiming that no books of account has been maintained by him. However Ld.AO and Ld.CTT(A) both ignore this fact of the case and made addition u/s 68 of the Act. However it is clear from the various citation of the court that provision of section 68 cannot be invoked in the absence of books of account. Hence addition made u/s 68 should not be sustained in the eyes of law, needs to be deleted. (2) The learned AO and consequently the Ld. CIT(A) has erred in law and on facts by confirming addition of whole credit entries in bank account rather than making addition of profit element involved in credit entries in bank account, which make the order against the principal of natural justice, should not be sustained in the eyes of Law. (3) The learned CIT(A) at the time of passing appellate order did not considered various case laws in favour of the appellant that clearly says that only profit element should be taxed rather than whole sale transaction. Hence overruling citation of the Supreme Court which means appellate order passed without considering material on record, is in violation of principles of natural justice. (4) The learned CIT(A) vide para no. 10.6 wrongly stated that appellant has not filed any supporting evidence/biil/documents in support of the genuineness of sale & purchase of the cloths, and in absence of the same regular cash deposit in the bank account cannot be considered as business receipt. Without prejudice the same, Appellant has filed his return of income claiming no books of account has been maintained by the assessee. However at the time of first appellate proceedings vide written submission dated 30.01.2019, appellant has placed on record confirmation along with acknowledged copy of income tax return from M/s. Laxman Emporium and M/s. Mahesh Textile evidencing the payments made for purchase from the bank account in question. Hence it is wrongly stated that there is no supporting evidences has been filed by the assessee in respect of business transactions. (5) That the charging of interest charged u/s 234A, 234B & 234C of Income Tax Act. 1961, is bad in law and is prayed not to be upheld.”

The fact in brief is that assessee has not filed return of income for assessment year 2010-11. On ITS verification, it was seen that assessee has made cash deposit in his bank a/c to the amount of Rs. 21,20,180/-. Therefore, the case was reopened u/s. 148 on 30th March, 2017. The notice u/s. 142(1)/143(2) of the act were issued on 10th Nov, 2017. The assessee has neither attended in response to the notices issued nor filed any written submission. Thereafter, the assessing officer issued show cause notice to the assessee to explain why the cash deposit of Rs. 21,20,180/- should not be added to his total income on the basis of detail available on record. In response to the show cause notice, the assessee has not made any Page No 3 Jayeshkumar P. Chauhan vs. ITO compliance. Therefore, the assessing officer has treated the cash deposit of Rs. 21,20,180/- as unexplained income of the assessee.

Aggrieved assessee has filed appeal before the ld. CIT(A). The ld. CIT(A) has dismissed the appeal of the assessee.

We have heard the rival contentions and perused the material on record carefully. The ld. counsel has filed the paper book containing detail of submission and copies of documents furnished before the ld. CIT(A) during the course of appellate proceedings . However, on perusal of the material on record, it is observed that ld. CIT(A) has not considered the submission and information filed during the course of appellate proceedings in proper perspective on the ground that assessee has not made compliance before the assessing officer in spite of giving various opportunities. In this regard, we have noticed that at page no. 83 of the paper book, the assessee has placed the copy of affidavit dated 11th Sep, 2018 furnished before the ld. CIT(A) in which it was stated that assessee has personally attended assessment hearing more than three times and submitted income tax return, balance sheet, profit and loss account and copy of bank statement for F.Y. 2009-10, however, the assessment was completed u/s. 144 r.w.s 147 of the income tax act vide order dated 15th December, 2017. We consider that ld. CIT(A) has not given any finding in respect of aforesaid material fact reported in the affidavit indicating that proper opportunities were not provided to the assessee. After perusal of the facts and material placed in the paper book, we are of the view that in the interest of justice, it will be appropriate to restore this case to the file of assessing officer for deciding Page No 4 Jayeshkumar P. Chauhan vs. ITO de-novo after verification and examination of the detail and information to be furnished by the assessee during the course of set aside proceeding. Accordingly, the case is restored to the file of assessing officer for deciding afresh as directed above after affording adequate opportunity to the assessee. The assessee is also directed to make proper compliance before the assessing officer during the course of set aside proceeding.

In the result, the appeal of the assesseee is allowed for statistical purposes. Order pronounced in the open court on 28-06-2019 Sd/- Sd/- (SUDHANSHU SRIVASTAVA) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad : Dated 28/06/2019 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file.