Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “B” BENCH KOLKATA
Before: SHRI GEORGE MATHAN & SHRI RAKESH MISHRA
Present for: Appellant by : Alok Ghosh & Arka Ghosh, ARs Respondent by : Kapil Mandal, Addl. CIT(DR) Date of Hearing : 17.06.2025 Date of Pronouncement : 08.09.2025 O R D E R
PER RAKESH MISHRA, ACCOUNTANT MEMBER:
This appeal filed by the assessee is against the order of the Ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [ “the Ld. CIT(A)”] dated 26.12.2023 which has been passed against the assessment order passed u/s 143(3) of the Income Tax Act, 1961 ( ‘the Act’) dated 06.12.2019.
The grounds of appeal raised by the assessee are reproduced as under:
“1 For that under the facts and circumstances of the case the order of the National Faceless Appeal Centre/Commissioner of Income Tax (Appeals)/ CIT(A) dismissing the appeal, is contrary to law, facts and circumstances of the instant case.
Sabita Rudra., AY: 2017-18 2. For that the NFAC/CIT(A) erred in law and on facts in confirming the arbitrary addition as made by the Assessing Authority and the details of such addition are enumerated below: Particulars of Total amount Provision for Bank deposit expenses as addition for in dispute for such disallowed by Assessing the period such addition addition Officer/CIT(A) Cash Deposit 1,74,99,725/- Sec 69A 17499725/- Entire of to banks such deposits Expenses 81,141/- Section 81141 30% of disallowed @ 40(a)(ia) expenses 30%
3. For that the Ld. Assessing Authority as well as NFAC/CIT (A) erred in ignoring the entire set of documents and details as were filed during the course of hearing in support of cash deposits which are duly supported with documentary evidences and the entire order confirming the said addition by the learned CIT (A) /NFAC are perverse, baseless, and misleading. 4 For that the impugned order so passed by the learned NFAC/CIT (A) are contrary to the statement of facts and grounds of appeal
so filed and the observations are simply based on mere guess and conjecture overlooking the statement of facts, nature of business and other related details and documents as were uploaded in support of such cash deposits which entirely arose out of sale proceeds and duly accounted for in the books of accounts which were produced at the time of assessment proceeding as admitted at para (ii) of page 17 of the appeal order. Thus, mere apprehension and guess work cannot be made a basis for arbitrary addition of such cash deposits and also for the claim of expenses which are not liable to suffer TDS as per provision of law.
5. For that the NFAC/CIT (A) ought to have appreciated that while the Appellant had produced sufficient details and documents in support of the entire cash deposits which arose out of sale proceeds from different retail traders of such consumer products and while the same has duly been recorded in the books of appellant and the same has suffered tax while filing return of income, the same amount cannot be taxed again on mere apprehension/guess or conjecture and the same should not have been treated as unexplained cash credit in the hand of the appellant.
6. For that the learned CIT(A)/NFAC would have appreciated that while the appellant had categorically mentioned the nature of business in his statement of facts and which has also been admitted by the learned Assessing Authority and the NFAC/CIT(A), and due to an inadvertent mistake in written submission, the said nature of business was stated to be sale of readymade garments which should not have been made a basis in dismissing the instant appeal.
7. For that the NFAC/CIT (A) erred in not granting proper opportunity for personal hearing even though the same was requested. Therefore, the order is against all principles of rule of natural justice and requires to be set aside with direction to avail a proper opportunity of personal hearing.
Sabita Rudra., AY: 2017-18 8. For that otherwise the entire addition and disallowance is solely based on assumption, guess work and surmises and the same is liable to be quashed and/or set aside with direction for proper verification. 9. For that your petitioner craves leave to add, alter, modify, or delete any of the grounds at the time of hearing of the appeal or before.”
Brief facts of the case are that the assessee is carrying on a proprietorship business under the trade name of M/s Ashish Kumar Rudra and is engaged in the business of redistribution stockists for the healthcare products for multinational companies like Glaxo Smith Kline (Horlicks products), Piramal Enterprises Ltd, Novartis India Ltd. The assessee had filed the return of income on 17-11-2017 showing total income of ₹21,83,140/-, which was apparently a revised return. It is stated in the facts mentioned in the written submission that the nature of business of the assessee is mainly with retailers and its collection against sales are being made on cash collection basis since most of the buyers/retailers are from different parts of North 24 Parganas and Nadia District and in earlier occasion whenever the said parties had made payments by cheques, either the cheques were returned unpaid on account of difference in signature or there was non-availability of funds in their accounts and this had caused a substantial loss since the assessee had not been able to pay the committed dues to its principals. Thus, under compelling circumstances, the petitioner had to collect payments mostly by cash through its sales agents and entire collections are duly deposited in banks and also recorded in the books of account. The return of income was selected for scrutiny through CASS and notices were issued & served upon the appellant. During the assessment proceedings, it was noticed that the appellant had deposited cash amounting to Rs. 1,74,99,725/-, in her different bank accounts maintained with Allahabad Bank, United Bank of India Sabita Rudra., AY: 2017-18 & ICICI Bank during demonetization period and the appellant was not able to explain the source of cash credits appearing in her bank accounts. Accordingly, the Ld. AO treated the same as unexplained money/cash u/s 69A read with section 115BBE of the Act and added the sum to the total income of the assessee. Further, it was observed from the Profit & Loss Account for the F.Y. 2016-17, that the assessee had claimed expenses of Rs.72,000/- and Rs.1,98,470/- under the heads ‘Accounting Charges’ and ‘Repair & Maintenance Charges’ respectively. It was observed from Form No. 3CD (Audit Report) that the assessee had not deducted tax at source on these payments as required u/s 200(1) of the I. T. Act, 1961. Accordingly, 30% of the said expenses, amounting to Rs.81,141/- was disallowed, by the AO, u/s 40(a)(ia) of the Income Tax Act, 1961 and added to the total income of the appellant. Aggrieved with the assessment order, the assessee preferred an appeal before the Ld. CIT(A), who vide order dated 26.12.2023 dismissed the appeal. Aggrieved with the order of the Ld. CIT(A), the assessee has filed the appeal before the Tribunal.
Rival contentions were heard and the record and the written submissions made have been examined. The Ld. AR drew our attention to page number 1 of the assessment order in which the section is mentioned as section 143(3) of the Act while on page 11, the section is mentioned as section 144 of the Act. It was submitted by the Ld. AR that the assessee was running her business through her proprietary concern, M/s. Ashis Kumar Rudra which trades in FMCG items, especially in products like Horlicks, Biscuits, Piramal medicines, etc. and was selling to sub-dealers and retailers which number between 700 to 800 throughout West Bengal. The Ld. AO issued several notices and Sabita Rudra., AY: 2017-18 the assessee filed response on the e-Portal, as was required to be filed and as was mentioned in the notice issued under section 143(3) of the Act. It was submitted that initial two notices could not be replied as the assessee had no knowledge of the same, but subsequent notices were responded and replies were filed. As per the written submission filed along with the paper book, the cash book, ledger, etc. were filed before completion of assessment and the chronological details of compliances made before the Ld. AO are mentioned from pages 1 to 15 of the paper book filed before us. Without referring to the e-portal, the Ld. AO made the assessment order. During the period under consideration, the assessee had deposited cash in the bank accounts which was realised from retailers and the details are mentioned at page 9 of the assessment order and the deposits were made during the demonetisation period i.e. from 9/11 2016 to 31/12/2016. The books of account were not rejected but addition u/s 69A of the Act was made.
It is further submitted that before the Ld. CIT(A), the assessee complied in all possible manner and this fact of compliance is mentioned in para 2 of the appeal order. The Ld. AR admitted that during the course of the appeal, the then AR had stated that the assessee was engaged in the business of ready-made garments instead of FMCG products. The Ld. CIT(A) found no evidence for sale of ready-made garments. The assessee has filed a copy of an affidavit from page 288 to 289 of the paper book confirming the nature of business carried on by her in which it is stated that she was never engaged in the business of sale of ready-made garments at any point of time and whatever statement was made during the course of the appeal by counsel was very much contrary to the actual nature Sabita Rudra., AY: 2017-18 of business in which she is engaged. The said statement had been made by the Advocate who represented the assessee at the appeal stage and the fact of such statement was never disclosed to the assessee prior to making compliance at the appeal stage. This is an inadvertent mistake as is mentioned at page 9 para 2 of the order of the Ld. CIT(A) and also at page 16 para 2 onwards which led to the confirmation of the addition. In the paper book filed at Page 9, the comparative sales details are mentioned and it was stated that there was an increase of 1.6% in sales. On 08/11/2016, the assessee had a sum of ₹ 81,96,000/- as cash in hand as per the cash book. In the appeal order at page 16 para (ii), it is mentioned that the assessee did not produce the books of accounts. There was no change in business and the addition was confirmed on the basis of the submission of the Advocate, which submission was incorrectly made. The cash realised was out of the debtors and it was stated that it was not possible to maintain individual sales ledger of the debtors. The assessee has also relied upon several case laws. It was submitted that the assessee would be obliged to avail the opportunity before the appellate authority even though all such documents were filed at the appellate as well as at the assessment stage.
The Ld. DR stated that assessment year 2017-18 was not under the e-assessment and the notices were served physically. As per page 7 para 7 of the assessment order, there was non- compliance and even the summons issued under section 131 were attended personally but the assessee was unable to produce the books of account. It was stated that the assessee could have been informed that everything had been filed. Before the Ld. CIT(A) also substantial documents were filed which are Sabita Rudra., AY: 2017-18 mentioned 1st Para 3rd line at page 15 of the order of the Ld. CIT(A). It was stated that in case the assessee had furnished the details in the e-portal, the same could have been stated before the Ld. CIT(A). The conclusion of the Ld. CIT(A) is at page 18 of his order.
In the rejoinder, the Ld. AR stated that as per page 14 of the written submission, it was mentioned in the notice issued under section 143(2) of the Act that the details were to be filed on the e-portal. Only the 2nd and 3rd notices could not be complied with but rest of the notices had been complied. On page 7 of the assessment order, it is mentioned about the appearance of the assessee. The appellate authority did not provide any personal hearing and no opportunity was given to represent the case in a proper manner. It is mentioned that as per page 21 of the paper book, the sales match with the VAT return filed, the copy of which is enclosed from page 25 to 31 of the paper book. The assessee had tried in all possible manner to provide the evidence.
We have considered the submissions made, gone through the facts of the case and perused the record and the order of the Ld. CIT(A). Apparently on account of incorrect representation by the Ld. Counsel of the assessee, the Ld. CIT(A) confirmed the addition by holding as under:
“6.1 The submissions of the appellant on each of the grounds o f appeal have been considered alongwith the copies of the submissions made in the assessment proceedings produced by the appellant. The following issues arise. (a) It is observed that in the assessment proceedings, apart from the comparative figures of sales made in the FY 2016-17 vis-a-vis the figures of sales in earlier year, the appellant was also asked to produce the details of the sales made. Due to non-submission of the Sabita Rudra., AY: 2017-18 details of sales, the appellant was issued a summons for personal appearance and production of books of accounts. It is recorded in the assessment order that the appellant appeared personally but did not produce books of accounts. In the circumstances, the appellant was found to have failed to comply with the notice issued for submitting the details of sales and the books of accounts. Therefore, the appellant was found to have failed to explain the source of cash credits in the bank account. Hence, the addition of the entire cash deposited during the period of demonetisation by the appellant was made u/s 69A of the I T Act. The appellant was given a show cause notice for invocation of provisions of Sec 144 of the I T Act wherein the failure of the appellant to produce books of accounts was highlighted. In the submissions filed by the appellant there is nothing to show that the appellant gave any reason for failure to produce for books of accounts. The provisions of Sec 144 of the I T Act, read as under: -
“144. (1) If any person— (a) fails to make the return required under sub-section (1) of section 139 and has not made a return or a revised return under sub -section (4) or sub-section (5) of that section, or (b) fails to comply with all the terms of a notice issued under sub - section (1) of section 142 or fails to comply with a directi on issued under sub-section (2A) of that section, or (c) having made a return, fails to comply with all the terms of a notice issued under sub-section (2) of section 143, the Assessing Officer, after taking into account all relevant material which the Assessing Officer has gathered, shall, after giving the assessee an opportunity of being heard, make the assessment of the total income or loss to the best of his judgment and determine the sum payable by the assessee on the basis of such assessment: Provided that such opportunity shall be given by the Assessing Officer by serving a notice calling upon the assessee to show cause, on a date and time to be specified in the notice, why the assessment should not be completed to the best of his judgment: Provided further that it shall not be necessary to give such opportunity in a case where a notice under sub-section (1) of section 142 has been issued prior to the making of an assessment under this section. (2) The provisions of this section as they stood immediate ly before their amendment by the Direct Tax Laws (Amendment) Act, 1987 (4 of 1988), shall apply to and in relation to any assessment for the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year and references in this section to the other provisions of this Act shall be construed as references to those provisions as for the time being in force and applicable to the relevant assessment year.”
Sabita Rudra., AY: 2017-18 It is clear from the facts of the case that the notice issued u/s 142(1) and 131 of the Income Tax Act to the appellant are not fully complied with. Therefore, the highlighted sub-clause (a) is clearly applicable to the case. The appellant has been given a notice for the invocation of Sec 144 of the Income Tax Act wherein the reason for such invocation was spelled out. However, no plausible explanation was given for rebutting the reason specified. The basis for the figures submitted by the appellant are the books of accounts which were not produced by the appellant. In the circumstances, the invocation of provisions u/s 144 of the I T Act is justified on the basis of the failure of the appellant to produce books of accounts to substantiate various figures submitted for explaining the source of the cash in its possession which was used to make deposits in the bank account. (b) The next ground of appeal is on the merits of the addition of Rs 1,74,99,725/-. The appellant in the ground of appeal raised has contended that the appellant was having more than sufficient cash balance of Rs 81,96,533/- for making deposit of specified bank notes of Rs 48,46,500/-. It is further contended that, the verification of cash deposits during the period of demonetisation was not restricted to the deposit of Specified Bank Notes but it was extended to the entire cash deposits in the bank account during the period of demonetisation. The appellant’s case was selected for verifying the cash deposits made during the period demonetisation. As such, all cash deposits including deposit of Specified Bank Note would come in the ambit of the verification. The following issue arise from the submission of the appellant: - (i) It is a settled position of law that appellant is required to substantiate the source of all the cash deposits made with reference to its known/regular sources of receipts and with specific evidence for such amounts which are not co-related to its regular source of income. In the written submission filed in compliance to notice of hearing under DIN: ITBS/NFAC/F/APL_1/2020-21/1029509019 (1), it is contended that the appellant through its Authorised Representative had filed detailed submission from which it would be evident that source of the cash deposit was mainly from the sale of readymade garments at Howrah Hat. The appellant in her submission has stated her business activity as, “business that of redistribution stockists for the healthcare products for multinational companies like GlaxoSmithKline (Horlicks products), Piramal Enterprises Ltd and Novartis India Ltd;”. There is no mention of any sale of readymade garments. Therefore, if at all the appellant intended to explain the source of cash deposits from sale of goods which are other than the goods in normal activity as specified in the submission, then it was for the appellant to lead evidence to substantiate the sale of readymade garments, purchases of such garments and incidental expenses incurred in the business with cogent evidence to present a crystal-clear picture. The appellant’s submissions made in assessment proceeding or in the appellate proceedings do not show Sabita Rudra., AY: 2017-18 any evidence for substantiating activity of sale of readymade garments. In the circumstances, the claim of appellant is not acceptable. {emphasis supplied} (ii) In the assessment proceedings the appellant has produced its cash book and VAT Returns to show that cash deposited was through its cash book. Furthermore, the credits in the cash book are mainly on account of debtors and nowhere is the nomenclature of ‘sales’ used. The VAT Returns at best show monthly sales claimed to have been made. In the Cash book there is no bifurcation of the receipts credit in receipts from sale of readymade garments. The appellant has not produced any sale register or sale bills for making any co- relation of cash receipts appearing in the cash book with the sales made of ready-made garments or any other items of Glaxo Smithkline or Piramal Enterprises Ltd. The appellant is distributor of Glaxo SmithKline which deals in FMCG items and Piramal Enterprises Ltd which deals in pharmaceutical products. The purchasers of these goods from the appellant are retailors. Largely, the sales are on credit and sale consideration is received through banking channels. Therefore, it is unlikely that large cash would be received from sale of the FMCG or Pharmaceutical products. The appellant did not produce books of accounts in response to the summons issued. The Books of Accounts were required for verification of the sales made with record of stock which would have evidence inflow stock after purchases and out flow of stock after sales. It would therefore, appear that claim of the appellant that it furnished all the details called for in respect of the sales is not entirely correct. In the appellate proceedings also, the appellant has submitted the same material which was produced before the Assessing Officer. Therefore, there is no worthwhile substantiation by the appellant of the claim that cash deposited was from the realisation of money from sales made in cash in so far as the proximate source of the cash deposited in the bank account has not been shown. Therefore, the appellant failed to discharge its onus of explaining with cogent evidence the source of the cash deposited in her bank accounts. (iii) The appellant has claimed that the cash deposits are recorded in the books of accounts and as such these cannot be considered for addition u/s 69A of the Income Tax Act. In this regard, the claim that cash credited in the cash book is from sales made, can be verified only from the sale bills of the appellant. Despite receiving a summons u/s 131 of the I T Act for production of the books of accounts for substantiation of the sales, the appellant did not produce the books of accounts. Therefore, the appellant, despite getting sufficient opportunity did not prove that the cash credits in the cash book are out of sales made in the normal course of business. Therefore, the failure of the appellant to substantiate that the cash credited in the cash book is from sales made, brings the same in th e ambit of unexplained cash u/s 69A of the Income Tax Act. In the situation, the cash credits in the cash book are like any other not produce the basic Sabita Rudra., AY: 2017-18 documents of sale in the assessment proceedings. Hence, the claim of the appellant that addition is untenable as the said amount of Rs 1,74,99,725/- is accounted for in the books of accounts is not tenable. On the basis of the aforesaid discussion the ground of appeal on merit of addition of Rs 1,74,99,725/- is hereby rejected.”
9. Thus, it is evident on a perusal of the order of the Ld. CIT(A) that on account of incorrect representation relating to the nature of business, which could not be correlated with the evidence filed, the addition was sustained. The assessee furthers contends that the amount had been included in the sale proceeds duly recorded in the books of account, therefore, no part of the same could be treated as unexplained money within the meaning of section 69A of the Act read with section 115BBE. Reliance has been placed upon several case laws as mentioned hereunder: (i) Rohit Jaiswal vs DCIT, Circle 49(1), Kolkata – (2025) 1 TMI - ITAT Kolkata (ii) Usha Patodia vs ITO, Ward 20(1), Kolkata – (2025) 1 TMI 505- ITAT Kolkata (iii) R.M. Sales Corporation vs Income Tax Officer (2024) 167 taxmann.com 679 (Amritsar -Trib) (iv) M/s KTM Maligai vs DCIT, Circle 1(1), Trichy (2025) 1 TMI 159- ITAT Chennai (v) S. Balaji Mech-Tech (P.) Ltd vs Income Tax Officer [2025] 170 taxmann.com 639 (Delhi -Trib.) (vi) Sunny Kapoor v. Income-tax Officer [2022] 142 taxmann.com 577 (Lucknow -Trib.) (vii) Meena Jewellers Extension (P) Ltd vs ACIT (2025) 171 taxmann.com 55 (Hyderabad – Trib.)
Sabita Rudra., AY: 2017-18 10. In respect of the disallowance of ₹81,141/-, the Ld. CIT(A) held that “The appellant has only claimed that the payments made do not come in the ambit of TDS provisions. The said contention has not been demonstrated with the underlying facts of the payments. Prima facie the payment for accounting charges at rs 72,000/- exceeds the minimum limit of Rs 30,000/- laid down u/s 194J of the Income Tax Act. Similarly, the payments for ‘Repairs & Maintenance’ at Rs 1,98,470/-. In absence of underlying factual details, the claim shall be assessed on the prescribed threshold limits for deduction of TDS u/s 194C of the I T Act i.e. at Rs. 30,000 in a single transaction or where the aggregate amounts exceed Rs. 1,00,000. In the background of the aforesaid position, the disallowance of Rs 81,141/- is hereby confirmed. The ground of appeal raised is rejected.”
The Bench was of the view that the matter needs to be reconsidered as the appeal has been decided on the wrong submission that the assessee was carrying on the business of ready-made garments, while no such business was being carried on and the assessee was instead dealing in FMCG products. The assessee contends that all the evidences were filed online both before the Ld. AO as well as before the Ld. CIT(A) but no cognizance appears to have been taken of the same. The assessment order is also ex parte. Since there was no proper compliance before both the Ld. AO as well as before the Ld. CIT(A), in the interest of justice and fair play it was considered that the request of the assessee to set aside the order of the Ld. CIT(A) may be allowed so that a proper opportunity of being heard may be provided. Hence, after examining the facts of the case, we deem it appropriate to set aside the order of the Ld. CIT(A) as well as the order of the Ld. AO and remit the matter Sabita Rudra., AY: 2017-18 back to the Ld. AO for making the assessment de novo. Needless to say, the assessee shall be given a reasonable opportunity of being heard to make any further submission she wants to make in support of the grounds of appeal and shall not seek unnecessary adjournments. Accordingly, all the grounds taken by the assessee in her appeal are partly allowed for statistical purposes.
In the result, the appeal filed by the assessee is partly allowed for statistical purpose.
Order pronounced in the court on 8th September, 2025.