SUSHILADEVI VIJAYKUMAR YADAV,MUMBAI vs. ITO WARD 42 (1)(5), MUMBAI

Coming to the merits of the case, it is observed that the Assessee during the AY under consideration though deposited the amount of Rs. 15,92,500/- in her bank account maintained with NKGSB Cooperative Bank and Axis Bank, during the demonetization period (09.11.2016 to 30.12.2016) however did not file her return of income and therefore, the case of the Assessee was selected for scrutiny and consequently notice u/s 142(1) of the Act was issued. However, the assessee made no compliance. Therefore, the assessing officer proceeded with the case as “Best Judgment Assessment” and while analyzing the facts and circumstance of the case, depicted the deposit made by the Assessee, in Table No. 3 in Para No. 10 of the Assessment Order, which read as under:

The assessing officer by considering the aforesaid deposits during the demonetization and post demonetization period and the credit enters during the financial year under consideration, ultimately treated the amount of Rs. 15,92,500/- as unexplained and added the same in the income of the Assessee. Mrs. Sushiladevi Vijaykumar Yadav

The Assessee being aggrieved challenged the aforesaid addition before the Ld. Commissioner, however due to medical issues, failed to substantiate her claim, which resulted into passing the impugned order as ex-parte and, therefore, this Court is inclined to remand the instant case to the file of the Ld. Commissioner. However, considering the peculiar facts and circumstances, specifically the medical condition of the assessee and peculiar fact that the Ld. Commissioner has also decided the appeal on merit and therefore, this court is inclined to decide this appeal on merits, as an exceptional case.

The Ld. Counsel for the Assessee has demonstrated that assessee was working as conduit between the customers and the dealers of the motor vehicles (Bike) and was used to get deposits from the prospective customers for booking of bikes etc. and thereafter, was used to deposit the requisite amounts in the respective accounts of the respective dealers/traders and for the said work/purpose the Assessee was getting some percentage of commission, varies from model to model of bike etc. The Assessee did not confirm said business/work because of medical exigencies and therefore she has not filed any return of income from the said business started during the A.Y. under consideration only, which ended thereafter immediately, due to health conditions.

Admittedly, there is negligible difference between the amounts determined by the Assessing Officer and as declared by the Assessee. Though the Assessee has filed her return belatedly, however, it is not the case of the department that the same is rejected and therefore, considering the peculiar facts and circumstance in totality and negligible difference between the amounts determined by the Assessing Officer and as declared by the Assessee, this court is inclined not to interfere in the decision of the AO in making the addition of Rs. 5,16,063/-, as the same is below then the amount of Rs. 5,77,166/- as voluntarily shown by the assessee.

Coming to the deposit of Rs. 15,92,500/-, it is observed that the Assessee has shown the total amount of income/gross receipt of Rs.68,80,000/- which includes the amount of Rs.15,92,500/-. Even the Assessee has already paid requisite tax amount of Rs. 26,580/-, as it clearly appears from the challan dated 25.10.2019 Union Bank of India, which also supports the case of the Assessee.

The Ld. DR though supported the impugned order but not the factual aspect demonstrated above and it is also not the case of the department that the Assessee is doing any other business.

Thus, on the aforesaid analyzations, there is no justification for making the addition of Rs. 15,92,500/- separately, thus, the addition in hand is deleted. It is clarified that this judgment is given under peculiar facts and circumstances of this case and therefore cannot be taken as a precedent. Mrs. Sushiladevi Vijaykumar Yadav

In the result appeal file by the assessee stands partly allowed.