AMIT KUMAR,JAIPUR vs. ITO WARD 4(2),JAIPUR, JAIPUR

3. The Ld. CIT(A) has erred in confirming the addition made by the AO not on the ground on which reassessment proceedings have been initiated but on entirely different grounds, which is not permissible as held by various High Courts across the country.

4. The Ld. CIT(A) has erred in confirming the addition made by the AO which is contrary to the provisions of Explanation-3 of Section 147 of the Income Tax Act, 1961 that if no addition is made on the issue which was mentioned for reopening of the case, the AO cannot reassess in a case of escaped assessment.

6.2 Through Ground No. 1 and 2, the appellant has contested that the Assessing Officer has erred in addition of Rs. 1135123 on account of taking net profit rate at 8.00 percent on such turnover of Rs. 14189043 to the total income of the Appellant and that the provisions of the Act ought to have been properly construed and regard being had to facts of the case no such addition should have been made. The appellant further stated that the Assessing Officer erred in estimating rate of net profit of 8.00 percent on appellant's business over and above net profit declared by the appellant on such turnover and that the reasons assigned by him are wrong and insufficient to justify such rate of net profit of 8.00 percent

6.2.1 I have gone through the assessment order, submissions of the appellant and facts and circumstances of the case. I am of the considered view that the appellant has not furnished any such documentary evidence but only written submission with case laws which is not sufficient to controvert the findings of the Assessing Officer. It is seen from the assessment order that the appellant is non- filer and had not filed his return of income u/s 139(1) of the Act. Despite having annual turnover over the prescribed threshold, the appellant had not got his books audited for the year under consideration under provisions of section 44AB of the Act. The appellant failed to furnish audited accountsto the Assessing Officer during the assessment proceedings and had only furnished rough/ provisional accounts. The Assessing Officer had specifically noted that in absence of any details of purchases and sales to establish claim of estimated profit as per the trading account submitted it was not possible to verify the claim of assessee with regard to the profit declared at the rate of 1.4% of the turnover. Relying on these specific findings, the books of the accounts of the assessee were rejected u/s 145(3) of the Act. Even during the appellate proceedings. the appellant has failed to provide necessary documentary evidences to establish his claim of net profit ratio of 1.4% of turnover. Therefore, the contentions of the appellant have no merit in the absence of reasonable evidence in support of his claims and thus, the appellant has failed to controvert the findings of the Assessing Officer. Hence, these grounds are dismissed.

6.3 Ground No.3, is general in nature and does not require separate adjudication. Thus, this ground is dismissed.

assessee preferred the present appeal. To support the grounds raised by the assessee, ld. AR of the assessee, has filed the following written submissions:

Brief facts of the case :

The assessee is engaged in the business of wholesale and retail of Kirana items under the name and style of Shree Shyam Enterprises. His business is registered under VAT and GST. He had duly filed his returns under VAT/GST for the year. Due to his ill health, he could not complete his books and get them audited in time, owing to which he could not file his ITR for the year. Most of his sales are made in cash. It is out of the sales proceeds of his business that the assessee deposited cash of Rs.1,10,21,220/- in his current account with Malviya Urban Co- operative Bank. The AO received information that the assessee had not filed his ITR and deposited cash of Rs.1,10,21,220/-, on the basis of which he formed a reason to believe that income of the assessee to the extent of the cash deposited in bank has escaped assessment. Consequently, he issued a notice u/s 148, alleging escapement of income to the extent of Rs1,10,21,220/-. During the course of assessment, the AO found the source of cash deposited in the bank account to be explained, and therefore he did not make any addition on this ground. He however, went on to reject the books and made a trading adding, which is not permissible under the Act. The CIT(A) confirmed the addition made by the AO without offering his own comments and blindly endorsing the view of the AO. Hence, the appeal. Submissions on the grounds of appeal

Ground No.

1. The CIT(A) erred in not deciding the ground relating to passing of assessment order by the AO u/s 144 r.w.s.144B and not quashing the said order, notwithstanding the fact that the said order was passed without following the procedure laid down in Section 144B – The above ground of appeal is not pressed. Ground No.

2. The CIT(A) erred in not deciding the ground relating to rejection of books by the AO on frivolous grounds without pointing out any specific defects in the books.

Amit Kumar vs. ITO 2.1 The AO in his assessment observed - The Assessee has not filed any return of income and not filed any details of his purchases and sales to establish his claim of estimated profit as per the trading account submitted in response to show cause issued. In the absence of these details it is not possible to verify the claim of assessee with regard to the profit declared by the assessee. In view of the same the books of the accounts of the assessee is rejected u/s 145(3). 2.2 It is a trite law that the A.O may proceed under Section 145(3) under any of the following circumstances : (a) Where he is not satisfied about the correctness or completeness of the accounts; or (b) Where method of accounting cash or mercantile has not been regularly followed by the assessee; or (c) Accounting Standards as notified by the Central Government have not been regularly followed by the assessee.

2.3 Though the broad parameters have been laid down in the section itself under which the provisions are required to be invoked for rejection of books of account in a particular case, yet, a definite ground work is sine-qua non on part of the Assessing Officer before resorting to the provisions of section. It may be mentioned that the sales register and the purchase register contain all details of sales and purchases had been filed. The AO has failed to state as to under what circumstances, he has proceeded u/s 145(3).

2.4 The assessee produced the cash book, ledger, bank book, Bank statement, sales register and final accounts before the AO. He also submitted that owing to his ill health, the same could not be finalized and timely produced for audit and eventually no return for the relevant year could be filed. Subsequent to the case being selected for scrutiny, the assessee on the basis of records available with him, prepared the final accounts. The AO could not find any specific defect in the books. He rejected the books on frivolous grounds. 2.5 The Ld.CIT(A) did not notice this factual aspect. He has observed - The Assessing Officer had specifically noted that in absence of any details of purchases and sales to establish claim of estimated profit as per the trading account submitted, it was not possible to verify the claim of assessee with regard to the profit declared at the rate of 1.4% of the turnover. Relying on these specific findings, the books of the accounts of the assessee were rejected u/s 145(3) of the Act. On this basis, the CIT(A) upheld the rejection of books. On the aspect of application of N.P.rate of 8%, he has not spoken a word and has simply dismissed the appeal of the assessee.

Amit Kumar vs. ITO 2.6 The Sales and purchases of the assessee were supported by GST returns. The AO could have easily verified the same, had he undertaken proper enquiry in this regard. The Purchase and Sales ledger were before him, and no defects there in were pointed by the AO. The copy of GST returns are being filed for your honor’s perusal. The returns vouch the Sales and purchases shown by the assessee in his P&L Account, and thus the ground for rejection of books does not survive. It is therefore prayed that the action of rejection of books and consequent estimation of profits by applying a profit rate of 8% by the AO be set aside. Ground No.3 & 4 The Ld. CIT(A) has erred in confirming the addition made by the AO not on the ground on which reassessment proceedings have been initiated but on entirely different grounds, which is not permissible as held by various High Courts across the country. The Ld. CIT(A) has erred in confirming the addition made by the AO which is contrary to the provisions of Explanation-3 of Section 147 of the Income Tax Act, 1961 that if no addition is made on the issue which was mentioned for reopening of the case, the AO cannot reassess in a case of escaped assessment. As both the above grounds are inter-connected, a common submission is being filed. 3.1 The case of the assessee was selected for addition of cash deposits of Rs.1,10,21,220/- Reasons for selection of the case, as reproduced by the AO in his assessment order read - : As per information, the assessee has made following transactions during A.Y. 2018-19 as under; “The Assessee is a non-filer and made Cash deposit in Malviya Urban Co Operative Bank Ltd. Rs 1,10,21,220 during the financial year 2017-18.” 3.2 In the order passed u/s 148A(d), the AO has held - why above cash deposits in bank account shall not be treated as income chargeable to tax which has escaped the assessment within the meaning of provision of section 147 of the IT Act, 1961 for the assessment year 2018-19 at Rs 1,10,21,220/- 3.3 Therefore, it is clear that notice u/s 148 was issued to tax the cash deposits of Rs.1,10,21,220/- made in the bank account as Income escaping assessment for AY 2018-19. While completing the assessment, the Ld.AO found the source of the cash deposits to be explained as being out of sales receipts of business. However, from the accounts of the assessee, the AO found that the assessee had shown a turnover of Rs.1,41,89,042/- and rejecting the book results, he applied a profit rate of 8% on the declared sales and computed the profits from business as Rs.11,35,123/- against Rs.2,08,518/- shown by the assessee. There Amit Kumar vs. ITO was absolutely no basis for applying a profit rate of 8%. The AO has not even bothered to show a comparable case for application of profit rate nor analysed the trading results of preceding or succeeding years of the assessee for adopting a profit rate of 8%. His estimation of profits was arbitrary and not at all based on any evidence. Thus, in the final order, the A.O. has not made any such addition for which the reopening was made, but, has made addition on a totally different ground.

3.4 It is a trite law that if no addition can be made on the ground for which the case was reopened, addition on any other ground is impermissible. In Commissioner of Income Tax v. Dr. Devender Gupta 174 Taxman 438 (Raj.) Hon’ble ITAT, Jaipur has relied upon the judgment of the Punjab & Haryana High Court, in Atlas Cycle Industries case, and concluded that the basic condition is, that the AO has reason to believe, that any income chargeable to tax has escaped assessment, for any assessment year, and it was found, that the section puts no bar on the powers of the AO, to put to tax, any other income, chargeable to tax, which has escaped assessment, and which subsequently comes to his notice, in the course of the proceedings, but then, the prefixing words "and also", which succeeded "any ----------------------------------------------------------------------------- -------------------------------------income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of ss. 148 to 153, assess or reassess such income". This expression was found to be making clear, that existence of the income, for which the AO formed belief, to have escaped assessment, is a precondition, for including any other income chargeable to tax, escaping assessment, and coming to the notice of the AO subsequently, in the course of the proceedings. Thus, unless and until such income, as giving rise to form belief, for escaping assessment, continues to exist, and constitutes a subject-matter of assessment, under s.147, "no other income" coming to the notice of the AO, during the course of the proceedings, can be roped in.

3.5 Delhi High Court in the case of Ranbaxy Laboratories Ltd. vs. CIT reported in 2011-TIOL-356-HC-Delhi, he submitted that when no addition has been made on the issue for which the case was reopened under section 147, the A.O. could not have made any other addition without issuing fresh notice under section 148 of the I.T. Act after recording reasons under section 147 of the I.T. Act, 1961 for escapement of income. Since the A.O. in the instant case has not done so, therefore, such addition being bad in Law has to be deleted and the entire 147 proceedings should be quashed. Reliance is also placed upon the decision of the Hon'ble Bombay High Court in the case of CIT vs. Jet Airways India Ltd. [2011] 331 ITR 236 (Bom.) and various other decisions.

3.6 Reliance is finally placed on the decision of Jurisdictional High Court of Rajasthan in Commissioner of Income Tax vs. Shri Ram Singh (2008) 306 ITR 343 (Raj) The Court observed as under:- ".... it is only when, in proceedings under Section 147 the Assessing Officer, assesses or reassesses any income chargeable to tax which has escaped assessment for any assessment year, with respect to which he had "reason to believe" to be so, then only, in addition, he can also put to tax, the other income, chargeable to tax, which has escaped assessment, and which has come to his notice subsequently, in the course of proceedings under Section 147. To clarify it further, or to put it in other words, in our opinion, if in the course of proceedings under Section147, the Assessing Officer were to come to the conclusion, that any income chargeable to tax, which, according to his "reason to believe", had escaped assessment for any assessment year, did not escape assessment, then, the mere fact that the Assessing Officer entertained a reason to believe, albeit even a genuine reason to believe, would not continue to vest him with the jurisdiction, to subject to tax, any other income, chargeable to tax, which the Assessing Officer may find to have escaped assessment, and which may come to his notice subsequently, in the course of proceedings under Section 147. 3.7 In view of the facts of the case and the binding decision of Hon’ble Rajasthan High Court, the addition made by the AO and sustained by the Ld.CIT(A) may kindly be deleted. Ground No. 5 The Ld. CIT(A) has erred in confirming the addition made by the AO, without passing a speaking order and has decided the appeal simply relying on the comments of the AO in the assessment order and ignoring the fact that complete accounts were produced at the time of assessment.

5.1 As already submitted supra, all the accounts were produced at the time of assessment. The main ground of rejection is that the return had not been filed by the assessee rather than any discrepancy in the books. The reason for non-filing of the ITR had been duly explained to the AO. But the AO arbitrarily rejecting the book results applied a net profit rate of 8% to the declared turnover and computed the income of the assessee. The Ld.CIT(A) reiterating the observation made by the AO, and not adjudicating the issue on the basis of evidence available on record, confirmed the addition. 5.2 It is submitted that the sales and purchases were backed by the GST/VAT returns. The Sales book and the purchase ledgers were produced. There was no obvious reason to doubt the purchases or the sales. Even the indirect expenses claimed by the assessee were very nominal. So, what prompted the AO not to accept the book results is not clear. Even if for one moment, the rejection of books is held to be justified, the application of profit rate of 8% without going through the past history of the case or comparing cases in the same line of business, is unjustified, irrational and illogical. Upon rejecting books of accounts and invoking Sec.145, AO does not get unfettered powers to apply any GP rate of his choice. There has to be some basis for applying a particular rate of profit. 5.3 The Ld.CIT(A) confirmed the addition without commenting on the rejection of book results by the AO or application of profit rate of 8%. He blindly endorsed the view of the AO. 5.4 In view of the facts that complete books of accounts were maintained by the assessee and produced during the course of assessment proceedings, simply for the fact that the ITR had not been filed by the assessee and the books have not been got audited, the rejection of book results and application of profit rate of 8% is unjustified. It is requested that the assessment order may kindly be set aside and the profit shown by the assessee be directed to be accepted.

S. No. Particulars Page No. 1 Copy of Notice issued u/s 148A(b) 1-3 4-5 2 Copy of order issued u/s 148A(d) 6 3 Copy of Notice issued u/s 148 4 Copy of SCN issued stating the addition to be made 7-11 5 Copy of Reply filed to SCN 12-14 6 Acknowledgement of Reply filed to SCN 15-16 7 Copy of Reply filed to CIT(A) 17-30 8 Acknowledgement of Reply filed to CIT(A) 31-32 9 Copy of GST returns filed by the assessee. 33-50 submission so filed vehemently argued that the assessee is small trader and he has filed the ITR in the subsequent year wherein the similar turnover was reflected and thereby disclosed NP @ 3.23 % and therefore considering that aspect of the matter the profit estimated @ 8 % in the year under consideration and that too without giving any show cause notice and without rejecting the books results produced before him. No defect in the records so produced were found by the ld. AO and thereby the action of the ld. AO is illegal and bad in law and thereby the order is required to be quashed.

After that on perusing the assessment record the bench noted that the assessee had complied to the notices issued by the ld. AO in part and based on the explanation so provided ld. AO estimated the income of the assessee @ 8 % of turnover at Rs. 11,35,123/- as against profit @ 1.4 %.

Record reveals that the assessee has shown the sales at Rs, 1,41,89,042/- from his kirana trading business. The assessee submitted the details related to the business and bank statement and thereby partly complied with the details called for. Since the assessee has not filed his ITR and has also partly complied with the notices and because the assessee was 2,08,518/- which was below the maximum amount not chargeable to tax.

When the bench asked the ld. AR of the assessee whether the assessee has filed the ITR for the subsequent year he filed the copy of ITR, Balance and profit and loss account for the subsequent year ended on 31.03.2019 wherein the turnover of Rs. 1,15,29,753/- was reported and the net profit was offered at 3.23 % for Rs. 3,72,487/-. Considering that aspect of the material we direct the ld. AO to tax net profit @ 3.5% as against the 1.4 % declared so as to meet the substantial justice to the parties.

In the result, the appeal of the assessee is partly allowed.

Order pronounced in the open court on 10/11/2025. Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 10/11/2025 *Ganesh Kumar, Sr. PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Amit Kumar, Jaipur 2. izR;FkhZ@ The Respondent- ITO, Ward 4(2), Jaipur 3. vk;dj vk;qDr@ The ld CIT vk;dj vk;qDr¼vihy½@The ld CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. 6. xkMZ QkbZy@ Guard File (ITA No. 1087/JP/2025) vkns'kkuqlkj@ By order,

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