SANJAY LUNIA,AJMER vs. ITO WD-2(1), AJMER

3. That the appellant craves the right to add, delete, amend or abandon any of the grounds of appeal either before or at the time of hearing of appeal.”

3. The fact as culled out from the record is that the assessee had e-filed return of income on 10.08.2017 for the assessment year 2017-18 in Form ITR 2 declaring total of Rs. 2,09,840/- and net agricultural income of Rs.7,19,265/- vide e-filing acknowledgement No. 165874630100817. The said return was processed u/s 143 (1) of Income-tax Act, 1961 by CPC on through CASS for the reason of 'Cash deposit’ during demonetization period". A notice u/s 143 (2) of Income tax Act, 1961 was issued on 22.09.2018 fixing the case for hearing on 27.09.2019 which was duly served upon the assessee on 22.09.2019 through e-mail. In compliance to said notice, no reply was furnished by the assessee. In this case a notice u/s 142(1) of Income tax Act, 1961 was issued on 29.05.2019 along with detailed questionnaire requesting the assessee to file certain information/details on or before 13.06.2019. In compliance to this notice, the assessee has neither furnished any information nor submitted any application for adjournment.

3.1 In the interest of natural justice, one more opportunity was given to the assessee to submit the information as required vide this office notice dated 29.05.2019 vide notice u/s 142(1) of Income tax Act, 1961 fixing the case for hearing on 12.07.2019 but the assessee failed to comply with the said notice also. Therefore, again further opportunity was given to the assessee vide notice dated 16.07.2019 requesting him to file the information called for on or before 19.07.2019 but the assessee has not complied this notice also. on 02.08.2019. The assessee has furnished computation of total income. As per computation, the assessee derives income from salary at Rs.1,80,000/-, Interest from saving bank Rs.4,770/-, interest received on loan Rs.4,24,991/- and after showing interest payment on loan. Rs.2,29,143/-, net interest income has been shown at Rs.2,00,618/- under the head income from other sources.

Besides this, the assessee has shown agricultural income of Rs.7,19,265/- net.

As per column No. 14 of ITR, it was mandatory to disclose the cash deposited by the assessee in bank account during demonetization period of 09.11.2016 to 30.12.2016 in case aggregate cash deposits during period exceed Rs. 2 lacs but the assessee has shown Zero amount and has thus deliberate not disclosed the amount of cash deposited during demonetization period. In the reply furnished before the AO, the assessee has not Account No. 0051930009719 though the same was shown in the ITR column on page No.4.

3.3 The ld. AO further noted that a notice u/s 142(1) of Income tax Act, 1961 was issued on 06.08.2019 requesting the assessee to file cash flow statement for the financial year 2014-15, 2015-16 and 2016-17 and ledgers of all bank accounts for the similar period on or before 09.08.2019 but the assessee has not furnished the requisite information, therefore, another opportunity was given vide notice dated 14.08.2019 requesting the assessee to furnish the information called for vide questionnaire dated 06.08.2019 on or before 20.08.2019. In response to said notice, the assessee has submitted that he has already uploaded bank statement on 02.08.2019 and day to day cash book from 01.04.2014 to 31.03.2017. On perusal of said cash ledger it was noticed that there was an opening balance of Rs. 20,145/- only. On going through the said ledger for the financial year 2016-17, some major cash transactions were noticed as detailed below:-

Date Narration Amount 30.04.2016 Amount of teak wood furniture sold 9,50,000 06.05.2016 Amount of cash received on sale of mangoes 5,51,000 30.09.2016 Amount of rice sold 2,97,000 30.11.2016 Being amount of paintings sold 1,85,800 01.04.2019 was 20145.31 only and as on 28.04.2016 the cash balance was negligible cash balance of Rs. 4438.01 only. On perusal of the cash book of the financial year 2014-15 it was noticed that there was no sale of mango, rice or agricultural crops.

However, in F.Y. 2015-16 there were cash receipts of Rs. 4,50,000/- being amount of mango contract.

3.4 The ld. AO further noted that the assessee vide notice u/s 142 (1) of the Income tax Act, 1961 was requested to furnish details of cash deposited in different savings account during F.Y.

2015-16, 2016-17 and also to furnish details of cash deposited during demonetization period i.e. 09.11.2016 to 31.12.2016 and cash deposited in these bank account during similar period of preceding year i.e. 09.11.2015 to 31.12.2015. The assessee was also requested to furnish month wise details of purchases from 01.04.2015 to 08.11.2015 and 31.12.2015 regarding and sales made through cash and through cheque and closing stock position.

In addition to this he was also requested to furnish details of month wise purchases from 01.04.2016 to 08.11.2016 & 31.12.2016 and details of month wise cash deposits for said period as per 04.10.2019.

The assessee had furnished the details of cash deposits in various bank accounts. On perusal of the said details, I find that the assessee has deposited cash amounting to Rs. 1652000 during the demonetization period of 09.11.2016 to 31.12.2016 in his Bank of Baroda A/c No. 03870100003928. In this a/c cash deposit during the period of 1.4.16 to 08.11.2016 was only 73,000/- . It is surprised to note that the cash deposit in this account during financial year 2015-16 was NIL. Thus, the assessee has admitted 2012.23% increase in cash deposit from cash deposited during financial year.

In order to verify source of cash deposit major cash receipts entries from the cash book during financial year 2016-17 for which the assessee was asked to submit documentary evidence regarding sale of teak wood furniture Rs. 9,50,000/- on 30.04.2016, sale of mangoes Rs.5,51,000/- on 06.05.2016 and sale of Rice Rs.2,97,000/- on 30.09.2016 and sale of painting on 30.01.2016 for Rs. 1,85,000/-vide questionnaire dated 10.10.2019 cause notice was issued on 22.10.2019.

3.5 The ld. AO further noted that the assessee has not furnished any reply of the show cause noticed issued. Ld. AO noted that the assessee was a salaried person and do not maintain any regular books of accounts. In view of the facts mentioned above, he find that the assessee has deposited a sum of Rs. 16,52,000/- in his Bank of Baroda account remained unexplained money and accordingly, the same was added back to the declared total income of the assessee u/s 69A of Income tax Act along with the provision of section 115BBE of the Act.

3.6 Further, the assessee could not produce any evidence of agricultural income of Rs.7,19,265/-, therefore the same was treated as assessee's income from undisclosed sources.

4. Aggrieved by the above order of the Assessing Officer the assessee preferred an appeal before the ld. CIT(A). After perusing the submissions of the assessee, the ld. CIT(A) has partly allowed the appeal of the assessee. The relevant finding of the ld. CIT(A) is as under:-

“ I have carefully considered the facts of the case and found that there is no need to interfere the addition made by AO u/s 69A of the IT Act, total amounting to Rs. 1652000/-as unexplained cash deposit. In spite of extending sufficient opportunities during assessment proceedings the appellant failed to furnish any shred of details/evidences to substantiate the claims of cash deposit in his bank account. Hence the objection raised by the appellant is fully devoid of merits of assessment order so the addition made of Rs. 16,52,000/- by AO is sustained and ground raised by the appellant is hereby dismissed. Considering the entirety of facts, circumstances and material on record and looking of probabilities here the appellant has miserably failed to substantiate his claim of cash deposit as unexplained money therefore, the AO is fully justified in making/confirming the disallowance in the amount of Rs. 16,52,000 /-, found as unexplained money of the appellant. In this condition the addition made by AO factually and legally correct is upheld and the plea of the appellant on this issue is dismissed being devoid of any merits. Thus, in the above facts and circumstances the additions made resulting in completion of assessment for the A.Y 2017-18 is hereby confirmed and grounds raised by appellant is dismissed. The appellant has also contended that the provisions of section 115BBE are not applicable in its case. In order to adjudicate the same, a visit to the provision of the section 115BBE is necessary. The section 115BBE is as under: - Section 115BBE was originally introduced by Finance Act 2012 w.e.f. 01.04.2013. Section 115BBE as enacted then is reproduced as under: - “115BBE. Tax on income referred to in section 68 or section 69 or section 69A or section 698 or section 69C or section 690.- (1) Where the total income of an assessee includes any income referred to in section 68, section 69, section 69A, section 698, section 69C or section 69D, the income-tax payable shall be the aggregate of- (a) The amount of income-tax calculated on income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D, at the rate of thirty per cent; and (b) The amount of income-tax with which the assessee would have been chargeable had his total income been reduced by the amount of income referred to in clause (a).

(2) Not withstanding anything contained in this Act, no deduction in respect of any expenditure or allowance shall be allowed to the assessee under any provision of this Act in computing his income referred to in clause (a) of sub-section (1)." The real purpose of introducing this provision was to charge higher tax at the maximum marginal rate in respect of income/expenditure/investment on the assessee who fails to explain the nature and source of said income/expenditure/investment. The relevant sections which enable the AO to assess such income/expenditure/investment are contained in sections 68, 69, 69-A, 69-B, 69-C, 69-D. Section 115BBE was amended vide Finance Act 2016 w.e.f. 01.04.2017 to the effect that no setting off of any loss shall be allowed against income of the nature referred to in the specified sections. This section was further amended vide Taxation Laws (Second Amendment) Act 2016 w.e.l. 01.04.2017 (Α.Υ 2017-18). The section as amended as on today reads as under: - "(1) Where the total income of an assessee, (a) includes any income referred to in section 68, section 69, section 69A, section 698, section 69C or section 69D and reflected in the Return of Income furnished under section 139; or (b) determined by the Assessing Officer includes any income referred to in section 68, section 69, section 69A, section 698B, section 69C or section 690, if such income is not covered under clause (a), the income- tax payable shall be the aggregate of (i) The amount of income-tax calculated on the income referred to in clause (a) and clause (b), at the rate of sixty per cent and (ii) The amount of income-tax with which the assessee would have been chargeable had his total income been reduced by the amount of income referred to in clause (i)" The purpose and object of the latest amendment was explained in the statements of objects and reasons "Concerns have been raised that some of the existing provisions of the Income Tax Act, 1961 could possibly be used for concealing black money. It is, therefore, important that the Government amends the Act to plug these loopholes as early as possible so as to prevent misuse of the provisions. The Taxation Laws (Second Amendment) Bill, 2016, proposes to make some changes in the Act to ensure that defaulting assessees are subjected to tax at a higher rate and stringent penalty provision.” Section 115BBE imposes tax at a flat rate of 60% (w.e.f. A/Y 17-18) without making any deduction in respect of any expenditure or allowance as may be admissible to an assessee under any provision of the Act. A perusal of the afore said provisions show that this Section is applicable where assessee's income is recorded in books but has not been offered to tax and the assessee fails to prove the nature and source to the satisfaction of the A.O. This section is also applicable to the assessee who are not required to maintain books of accounts but is found to have made unexplained investment, unexplained expenditure or he is found to be in possession of money, bullion, jewellery or other valuable articles A Where an assessee voluntarily shows income in his return but he is unable to prove the source of such income to the satisfaction of the A.O., such income is liable to be held for taxation under section 1158BE. The provision of section 115BBE can also be applied in the following circumstances:- a. Claiming exempt income from any source which the assessee fails to substantiate to the satisfaction of the A.Ο. b. Claiming income from agricultural operations which the assessee fails to substantiate to the satisfaction of the A.O. c. The provision of section 68 will be attracted to the credits in the books of account on account of cash sales. Such cash sales can also be treated as unexplained income chargeable to tax under section 68 read with section 115BBE, if the names and addresses of the buyers are not mentioned in the cash memo. d. A professional will have also to prove the nature and source of his receipts in a definite manner by maintaining the record on the basis of some norms. Thus considering the facts of the case I find that the AO has correctly applied the provisions of section 115BBE in this case. The appellant has failed to correctly explain the source of receipts disclosed by it and in such cases the application of provisions of section 115BBE are warranted. Ground No. 2 2. The learned AO grossly erred in law and on facts in not accepting agricultural income. Looking into the facts of the ground, brought on record by the appellant assessee it is evident that in a limited scrutiny case. AO cannot in queue about issue not covered by the CASS reasons. In this case, the CASS reason was "Cash deposit during demonetization period" and thus the AO could not conduct an enquiry as said Agriculture Income. This ground of appeal is allowed and the addition of Rs. 7,19,265/- is deleted. Ground No. 3

3. The appellant begs permission to add, amend or alter any of the grounds of appeal before the hearing of appeal. The additions are based are arbitrary and capricious based on surmises, bad in law as such deserves to be deleted. This ground is general in nature. Therefore, same is not adjudicated and is dismissed. In the result, the appeal is therefore, partly allowed.”

5. Feeling dissatisfied with the above finding of the ld. CIT(A) the assessee filed the present appeal before this tribunal on the grounds as reiterated herein above. To support the grounds so raised the ld. AR appearing on behalf of the assessee has placed reliance on the written submission which is extracted herein below:-

“Brief facts of the case are that assessee is an individual and had filed Return of Income for the year under consideration on 10.08.2017 declaring total income at Rs.2,09,840/- and net agricultural income of Rs. 7,19,265. Subsequently, case of assessee was selected for Limited scrutiny under CASS on following reason: “The case was selected for limited scrutiny through CASS for the reason of cash deposit during demonetization period.” Assessee furnished various details and information as sought by ld.AO during the course of assessment proceedings. After perusing such details, ld.AO completed assessment by making two additions, i.e. on account of (i) Cash deposit of Rs. 16,52,000/- and (ii) Rs. 7,19,265/- being unexplained agricultural income. Aggrieved of the additions so made, assessee preferred appeal before ld.CIT(A), who partly allowed relief by deleting the addition of Rs. 7,19,265/- by observing that the issue of examination of agriculture income is outside the purview of Limited Scrutiny under CASS. However, while doing so, ld. CIT(A) failed to appreciate that once ld. AO makes enquiries on the issues, for which he was not authorized to do, he exceeds his jurisdiction, which actually renders entire assessment proceedings void ab initio and not merely part of the order. Present appeal is preferred by assessee against such action of ld.CIT(A) and thus sustaining addition of Rs.16,52,000/- made on account of cash deposits. With this background, ground-wise submission is made as under: Grounds of Appeal

No.1: In thisground of appeal, assessee has challenged the action of ld. CIT(A) in upholding the validity of assessment order, which was passed by ld.AO in violation to CBDT guidelines on “Limited Scrutiny” and thereby confirming the addition of Rs. 16,52,000/- made on account of cash deposit made during demonetization. Brief facts pertaining to the grounds of appeal are that as stated above, reason for selection of scrutiny, was “Cash deposit for demonetization period” (Copy of notice u/s 143(2) is at (APB 04-07). Thus, the case was selected for Limited scrutiny to examine source of cash deposit made during demonetization period. In order to verify source of cash deposits made by assessee, ld. AO issued a notice dated 29.05.2019 (APB 08-10) to the assessee and sought the details of bank accounts maintained by assessee, cash in hand and deposits made by assessee during the period of demonetization. The requisite details were provided by the assessee through a reply dated 02.08.2019 (APB 28–50) in which the assessee explained that the cash deposited in bank accounts was received by assessee from sale of teak wood, paintings, mangoes and rice. Copies of ledger accounts were also provided along with response filed before ld. AO. Thereafter, ld. AO, vide notice dated 20.09.2019 (APB 11-13) sought various details, which inter alia included: � details of gross agricultural income; Sanjay Lunia vs.ITO � details of expenditure on agriculture income; � details of interest paid in specified format; � details of interest received in specified format; � evidences of LIP paid of Rs.5,70,000/- � details of salary received of Rs.1,80,000/- From perusal of above, it is evident that ld.AO made various enquiries which were not covered by the reason for which case was selected for Limited Scrutiny. Such details were furnished by assessee vide reply dated 26.09.2019 (APB 25-27). It was explained that the agricultural income was received by assessee from the sale of mangoes and rice and ledger accounts for such sales and expenses incurred were also provided.However without properly considering such details, ld.AO made additions of Rs.16,52,000/- on account of cash deposits and addition of Rs.7,19,265/- by alleging agriculture income received by assessee as unexplained as well even though ld.AO himself in assessment order has observed that in F.Y. 2015-16 also, assessee has shown agriculture income of Rs.4,50,000/- received from Mango Contract. On appeal, ld. CIT(A) deleted the addition of Rs.7,19,265/- made by ld.AO ,by holding that since the issue of agriculture income was not covered by Limited Scrutiny, ld. AO has travelled beyond his jurisdiction in making addition of the same. Relevant extract of order of ld. CIT(A) is reproduced as under—

2. The learned AO grossly erred in law and on facts in not accepting agricultural income. Looking into the facts of the ground, brought on record by the appellant assessee it is evident that in a limited scrutiny case. AO cannot in queue about issue not covered by the CASS reasons. In this case, the CASS reason was “Cash deposit during demonetization period” and thus the AO could not conduct an enquiry as said Agriculture Income. This ground of appeal is allowed and the addition of Rs. 7,19,265/- is deleted.” From perusal of aforesaid para, it is evident that admittedly, ld.AO has exceeded the jurisdiction and has acted beyond the scope of Limited Scrutiny and therefore ld.CIT(A) has deleted addition of Rs. 7,19,265/- made by ld. AO on allegation ofunexplained agriculture income, by holdingthat ld. AO cannot enquire about issue not covered by the CASS reasons (there seem to be some typographical mistake in order and “in queue” is typed in place of “inquire”). However, while doing so, ld. CIT(A) has committed error in not realizing the fact that as soon as ld.AO conducted enquiries beyond the scope of Limited Scrutiny, he acted beyond his jurisdiction and which not only makes addition so made against the law but renders entire assessment proceedings void ab initio.

At this juncture, kind attention of hon’ble bench is invited to the CBDT Instruction No.05/2016 dated 14.07.2016 (APB 70-71) which was issued in partial modification to Instruction No.20/2015 dated 29.12.2015 and defines the “Direction regarding scope of enquiry in cases under “Limited Scrutiny” selected through CASS 2015 & 2016”. Para 4 of such instruction clarifies that “……..in cases under Limited Scrutiny, the scrutiny assessment proceedings would initially be confined to issues under Limited Scrutiny and questionnaires, enquiry, investigation etc. would be restricted to such issues. Only upon conversion of case to Complete Scrutiny after following the procedure outlined above, the AO may examine the additional issues besides the issue(s) involved in Limited Scrutiny. The AO shall also expeditiously intimate the taxpayer concerned regarding conducting Complete Scrutiny in such cases.” Further, para 2 of such Instruction lays down procedure for conversion of Limited Scrutiny cases in Complete Scrutiny, which reads as under: “2. In order to ensure that maximum objectivity is maintained in converting a case falling under “Limited Scrutiny” into a “Complete Scrutiny” case, the matter has been further examined and in partial modification to Para 3(d) of the earlier order dated 29.12.2015, Board hereby lays down that while proposing to take up “Complete Scrutiny” in a case which was originally earmarked for “Limited Scrutiny”, the Assessing Officer (AO) shall be required to form a reasonable view that there is possibility of under assessment of income if the case is not examined under “Complete Scrutiny”. In this regard, the monetary limits and requirement of administrative approval from Pr. CIT/CIT/Pr. DIT/DIT, as prescribed in Para 3(d) of earlier Instruction dated 29.12.2015, shall continue to remain applicable.” From perusal of above, it is evident that a case selected for Limited Scrutiny can be converted in Complete Scrutiny only after following the procedure laid down and not otherwise that too with the prior approval of the Pr. CIT/CIT as the case maybe, whereas in the instant case as is apparent from assessment order that case was not converted in Complete Scrutiny. In other words, - No reasonable view was formed by ld.AO regarding possibility of under assessment of income if case was not assessed under Complete Scrutiny. - No approval was sought by ld.AO from Pr. CIT/CIT/Pr. DIT/DIT, as the case may be, before conducting enquiries on the issues other than those specified under CASS. - The inquiries made by ld. AO with reference to interest paid, interest received, details of agricultural income, evidences for LIP paid, details of salary received etc. are also without jurisdiction, in view of the fact that assessee’s case was selected for limited scrutiny of cash deposited during the period of demonization, which is contrary to specific mandate given by CBDT in case of limited scrutiny. In view of above, it is submitted that ld. CIT(A) has erred in confirming the action of ld.AO in converting Limited Scrutiny to Complete Scrutiny without following the procedure laid down by the hon’ble CBDT, and thus without jurisdiction. In this regard, reliance is placed on following judicial pronouncement— Sukhdham Infrastructures LLP vs ITO in “Case was selected for Limited scrutiny under CASS. Ld.AO conducted enquiries on issues beyond the scope of Limited Scrutiny even prior to obtaining approval regarding conversion of the case to Complete Scrutiny, which was held as violation of CBDT Circular. Accordingly, Assessment Order passed by ld.AO was held bad in law and quashed.” In the above case before Hon’ble Kolkata ITAT, the case was selected for Limited scrutiny on four issues which were, i) Interest expenses, ii) Income from Real Estate Business, iii) Sales Turnover mismatch and iv) Other expenses claimed in the profit and loss a/c and the ld. AO. During the course of assessment proceedings, ld.AO, vide notice dated 20.2.2017 raised queries w.r.t. Secured /Unsecured Loans, which were furnished by assessee. Ld.AO converted Limited Scrutiny to Complete Scrutiny vide notice dated 14.12.2017 and thereafter completed assessment vide order dated 28.12.2017. In assessment so completed, additions weremade u/s 68 in respect of unexplained cash credit (not covered in Limited Scrutiny) and certain expenses were disallowed (covered by Limited Scrutiny). As the ld.AO initiated enquiries on the issues which were outside the purview of limited scrutiny, even prior to converting the case to Complete Scrutiny, hon’ble ITAT held that the order passed by the ld. AO was bad in law and could not be sustained. Accordingly, not only additions made outside the jurisdiction of AO were deleted, rather entire assessment order was quashed by holding that assessment was conducted in violation to CBDT Instruction. Similarly in present case also, the ld. AO initiated enquiries on the issue of Agriculture income also, which was not covered by Limited Scrutiny notice. In fact, case was not converted in Complete Scrutiny at all and addition was inter alia made on that issue, not covered by Limited Scrutiny notice. It is therefore submitted that assessment was completed by ld.AO in violation to CBDT instruction, deserves to be quashed. Reliance is also placed on— Late Smt. Gurbachan Kaur, Through L/H Shri Dilpreet Singh Narang Vs. Dy. Commissioner of Income Tax, Circle-2, Jaipur in ITA No. 692/JP/2019

“Held that “Thus, if the A.O. has taken up the issue of determining fair market value of the property in question as on 01/4/1981 without converting the limited scrutiny to comprehensive scrutiny by taking the prior approval of the competent authority then the said order passed by the A.O. will be nullity as beyond his jurisdiction. The AO neither in the assessment order nor in the assessment proceedings sheet has mentioned about any proposal of converting the limited scrutiny to comprehensive scrutiny and consequential approval of the Competent Authority being Principal CIT/DIT. The ld. Counsel for the assessee has produced the certified copy of the assessment proceedings sheet which does not contain any such proposal of the AO for expanding the limited scrutiny to complete scrutiny. Further, the revenue has also not produced anything to show that the AO has obtained the necessary approval from the Competent Authority for conversion of the limited scrutiny to comprehensive scrutiny. Accordingly, the issue which is taken up by the AO in the proceedings under section 154 is illegal and void being beyond his jurisdiction to frame the limited scrutiny assessment. Accordingly, we set aside and quash the order passed by the AO under section 154 of the Act.” Shri SagarUttamMurhe in “Case was selected for Limited scrutiny on the sole issue of “interest income mismatch”, whereas assessment u.s 143(3) was completed after making addition u/s 68 on account of Unexplained Cash Credit, that too without converting it into Complete Scrutiny in accordance with CBDT Circular. Accordingly, assessment order passed was held as non est in the eyes of law and thus quashed.”

Sh. Sitaram Swami, Jaipur vs ITO in “Case was selected for Limited Scrutiny on the issue of “whether capital gain/loss of sale of property has been correctly shown in the return of income by assessee.” Actually assessee had not sold any property, so there was no question of showing capital gain/loss. Subsequently, ld.AO made further enquiries, including if assessee has purchased any property and ultimately addition was made u/s 69 by alleging investment made in property as unexplained, which was held beyond his jurisdiction. Assessment order passed u/s 143(3) was set aside and quashed.” Suresh Jugraj Mutha vs ACIT in “Case taken up for Limited Scrutiny for scrutinizing the source of “cash deposits in savings bank a/cs as per AIR information”. However eventually no addition was made on this count and addition was made addition on account of Interest income and disallowed deduction claimed u/s 54, which were outside the scope of Limited Scrutiny that too without taking approval of conversion of Limited Scrutiny into Complete Scrutiny.

Accordingly, assessment order passed by ld.AO was held as bad in law and void ab initio.” Atul Gupta vs ACIT in “Case was selected for Limited scrutiny under CASS for following reasons: “i. unsecured loans from persons who have not filed their return of income. ii. Sales consideration of property in ITR less than sales consideration reported in Form 26QB.” Eventually no addition was made on any of the above issues and assessment was completed after making addition by invoking provisions of section 50C and also by disallowing cost of acquisition of other land sold by assessee. Appeal of assessee in this regard was allowed by holding the action of ld.AO as beyond jurisdiction.” ACIT vs Trehan Promoters and Builders Pvt. Ltd. in CO No.9/Del/2020 “Additions made by ld.AO beyond the scope of Limited Scrutiny held to be beyond jurisdiction and deleted.” In view of above, it is submitted that since ld.AO has made enquiries beyond the scope of Limited Scrutiny, without forming reasonable view regarding need of conversion of Limited Scrutiny to Complete Scrutiny and without prior approval of designated authority, he has acted beyond jurisdiction, which has renderedentire proceedings void-ab-initio. It is therefore prayed that addition of Rs.16,52,000/- made by ld.AO vide such order, which itself is passed in violation to CBDT guidelines deserves to be deleted. Without prejudice to legal Grounds of appeal No. 1 and on merits Ground of Appeal No. 2 to 2.2: In these grounds of appeal, assessee has challenged the action of ld. CIT(A) in confirming the addition of Rs. 16,52,000/- made by ld.AO by alleging the cash deposited during the period of demonetization as undisclosed cash. In this regard, the ld. AO observed that the assessee failed to disclose the amount deposited during the period of demonetization while filing the return of income for the relevant year and thus the same shall be considered as undisclosed income vide show cause notice dated 22.10.2019. The relevant extract is produced below for your ready reference: “Further, it has been noticed that you have not disclosed the cash deposited in Bank of Baroda a/c amounting to Rs.16,52,000/- during the demonetization period of 09.11.2016 to 31.12.2016 in the ITR filed by you but you have shown zero amount though it was mandatory to disclose the cash deposit amount in the return of Income. Please show cause as to why an adverse inference may not be drawn for non- disclosure of information.” At this juncture provisions as contained in section 69A is reproduced as under: 69A. Where in any financial year the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and such money, bullion, jewellery or valuable article is not recorded in the books of account, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of acquisition of the money, bullion, jewellery or other valuable article, or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the money and the value of the bullion, jewellery or other valuable article may be deemed to be the income of the assessee for such financial year. From perusal of above, it is evident that assessing officer can make addition u/s 69A only under two circumstances, i.e.: (i) Appellant does not offer any explanation about nature and source of such credit Or (ii) Explanation offered by Appellant is not upto the satisfaction of Ld. AO. In other words, whenever Appellant provides explanation, before rejecting the same ld. AO has to record dissatisfaction as to why the explanation furnished by Appellant is not acceptable. However, in the present case, ld.AO made addition, primarilyfor the reason that assessee while filing return failed to mention cash deposit made during the demonetization period in his return of income and without recording any proper dissatisfaction and ld.CIT(A) confirmed the same without any specific discrepancy in the details furnished. With regard to not mentioning cash deposit amount in return of income, it is submitted that assessee had already reported the information required about the cash deposit during the period of demonetization on the income tax portal on 10.02.2017 which was well before the filing of the return of income for AY 2017-18 thus there is no question of concealing the information. Therefore non-reporting of the required information at the time of filing of return of income is a mere oversight that it escaped attention while filing return of income. Moreover, as submitted above, it is reiterated that assessee furnished complete details related to Cash transactions as sought by ld.AO, however the same was brushed aside without pointing out any specific discrepancy. It is reiterated that source of cash deposit in the bank account during demonetization period was out of accumulated cash available with him which was mainly out of sale proceeds received by assessee from the agriculture produces and sale of old furniture and paintings apart from past savings, details of which is produced as under— Particulars Amount Sale of Mangoes 5,51,000 Sale of Rice 2,97,000 Sale of Old Furniture 9,50,000 Sale of Paintings 1,85,800 Total Cash receipts 19,83,800

On perusal of aforesaid table it is evident that enough cash in hand available with him which was required to be deposited in bank account due to sudden demonetization by Government. Assessee further in support of his claim also furnished copies of Expense ledgers, Sales ledger, Cash book before the ld. AO (APB 51–63) and further furnished the copy of sales invoices of mango and rice before the ld. CIT(A) which were never rebutted by the ld. CIT(A)(APB 75–82). Moreover, no reason whatsoever was given by ld.AO for not accepting the explanation furnished by assessee despite of fact that assessee had shown agriculture income of Rs.4,50,000/- in preceding year i.e. A.Y. 2016-17 from Contract of Mangoes, which stood accepted. The ld. CIT(A) has also without appreciating the fact about all details being filed before ld AO about source of cash deposit and further sales invoices being filed before him, has erroneously mentions that no evidence of source of cash deposit has been filed. It is requested to delete the addition of unexplained cash deposit as the source of same is fully explained. Further with regard to invocation of the provisions of section 115BBE, at this juncture section is reproduced as under for ready reference— “Tax on income referred to in section 68 or section 69 or section 69A or section 69B or section 69C or section 69D. 115BBE. (1) Where the total income of an assessee,— (a) includes any income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D and reflected in the return of income furnished under section 139; or (b) determined by the Assessing Officer includes any income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D, if such income is not covered under clause (a),the income-tax payable shall be the aggregate of— (i) the amount of income-tax calculated on the income referred to in clause (a) and clause (b), at the rate of sixty per cent; and (ii) the amount of income-tax with which the assessee would have been chargeable had his total income been reduced by the amount of income referred to in clause (i). (2) Notwithstanding anything contained in this Act, no deduction in respect of any expenditure or allowance or set off of any loss shall be allowed to the assessee under any provision of this Act in computing his income referred to in clause (a) and clause (b)of sub-section (1).”

In the instant case all the additions made by the ld.AO are on account of arbitrarily considering cash deposits in the bank as undisclosed income of assessee, by ignoring the fact source of such cash deposit is out of agriculture produce and sale of old furniture and painting. Further it is relevant to state that from the plain reading of section 115BBE, it is evident that the provisions of this section are applicable only to incomes referred to in section 68, 69, 69A, 69B, 69C or 69D. While in current scenario section 69A of the Act is not all applicable as Appellant had already discharged his onus by providing the source of cash deposit and furnishing the necessary documentary evidences on record which remained un-rebutted by ld. AO. Consequently, when the income itself fails to fall under the relevant sections as prescribed by the Act (i.e. section 68, 69, 69A, 69B, 69C or 69D), its taxability cannot be determined in terms of section 115BBE. In the circumstances, it is humbly submitted that the action of ld. CIT(A) in confirming the addition of Rs.16,52,000/- made by ld. AO without appreciating the details and evidences filed, deserves to be deleted.”

Kindly refer to the appellate proceedings in progress in the case of above stated In this regard, the humble appellant presents this application under Rule 29 of t Income Tax Appellate Tribunal Rules, 1963 with the following facts for your kind consideration.

(Relevant to Grounds of Appeal

Nos. 02 to 2.2);

1. That, the assessee is an Individual agriculturist and the case of assessee was selected for Limited Scrutiny under CASS for the reason of cash deposit during demonetization period. Assessment in his case was completed vide order dated 31.10.2019 passed u/s 143(3) of the Income Tax Act, whereby addition of Rs. 23,71,265/- was made by alleging cash deposit of Rs. 16,52,000/- as unexplained money u/s 69A and Rs. 7,19,265/- as unexplained agriculture income u/s 69A Act respectively.. Aggrieved of the addition so made, appeal was preferred before Id. CIT(A), wherein addition to the extent of Rs. 7,19,265/- u/s 69A was deleted, however addition of Rs. 16,52,000/- was confirmed on account of cash deposit being treated as unexplained money.

2. That, the assessee during the course of assessment before ld. AO as well as appellate proceedings before Id. CIT(A) had explained that source of cash deposit in the bank account during demonetization period was out of accumulated cash available with him which was mainly out of sale proceeds received by assessee from the agriculture produces and sale of old furniture and Paintings apart from past savings, details of which is produced as under- Particulars Amount Sale of Mangoes 5,51,000 Sale of Rice 2,97,000 Sale of Old furniture 9,50,000 Sale of Paintings 1,85,800 Total Cash receipts 19,83,800/-

51 That, an affidavit in support of the facts mentioned above is being submitted alongwith this application. Therefore, in the background of abovementioned facts, it is submitted that the documents in the nature of land holding documents & details of furniture sold goes to the root of the main issue involved in the present appeal and it is prayed that the same may please be admitted in the interest of justice and for proper adjudication of appeal.” The ld. AR further to support the contention raised in the written submission ld. AR of the assessee filed a detailed paper book and the index of the document submitted reads as under:-

S. No. Particulars Page No. 1. 1-3 Copy of Return of Income Acknowledgement and Computation of Total Income filed u/s 139(4) of Income Tax Act, 1961 for the A.Y 2017-18. 2. 4-7 Copy of notice u/s 143(2) of the Income Tax Act, 1961 dated 22.09.2018 stating the reasons for case being selected for Limited Scrutiny. 3. 8-24 Copy of notices issued during the course of assessment proceedings. 4. 25-30 Copy of Replies filed during the course of assessment proceedings. 5. 31-41 Copy of Bank statements from period 01.04.2014 to 31.03.2017. 6. 42-50 Copy of cash ledger for 01.04.2014 to 31.03.2017 7. 51-60 Copy of ledger of income and expenses for the period 01.04.2016-31.03.2017 8. 61-63 Copy of bank book

9. 64 Copy of the details of cash deposits in various banks for F.Y 2015-16 & 2016-17. 10. 65-69 Copy of the details of cash sales for F.Y. 2015-16. 11. 70-71 Copy of CBDT Instruction No.05/2016 dated 14.07.2016 12. 72-74 Copy of Written Submission filed on 07.02.2021 before Id. CIT(A), NFAC 12a 75-82 Copy of invoices of sale of mangoes and rice. 13. 83-86 Copy of Written Submission filed on 05.10.2023 before ld. CIT(A), NFAC

In the assessment order ld. AO noted that the assessee failed to disclose the amount deposited during the period of demonetization while filing the return of income for the relevant year. Based on that assumption ld. AO considered the cash so deposited into the bank account as undisclosed income and thereby given a show cause notice to the assessee on 22.10.2019 stating that he has not disclosed the cash deposited in Bank of Baroda a/c amounting to Rs.16,52,000/- during the demonetization period of 09.11.2016 to 31.12.2016 in the ITR filed by the assessee and thereby he propose to take an adverse inference for for non-disclosure of information.

Based on that back ground ld. AO made an addition of Rs.

16,52,000/- as per provision of section 69A of the Act in the hands of the assessee. Since it relies on that provision, it is appropriate to reference the Act's provision as follows:

69A. Where in any financial year the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and such money, bullion, jewellery or valuable article is not recorded in the books of account, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of acquisition of the money, bullion, jewellery or other valuable article, or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the money and the value of the bullion, jewellery or other valuable article may be deemed to be the income of the assessee for such financial year.

The same was not considered without pointing out any specific discrepancy. The source of the cash deposited during demonetization was from accumulated cash, primarily from agricultural sales, old furniture and paintings sales, and past savings. Details are as follows:

Particulars Amount Sale of Mangoes 5,51,000 Sale of Rice 2,97,000 Sale of Old Furniture 9,50,000 Sale of Paintings 1,85,800 Total Cash receipts 19,83,800 hand of Rs. 19,83,800/- out of which the assessee has deposited Rs. 16,52,000/- in the bank account on account due to sudden demonetization by Government. Assessee further in support of his claim also furnished copies of Expense ledgers, Sales ledger, Cash book before the ld. AO (APB 51–63) and further furnished the copy of sales invoices of mango and rice before the ld. CIT(A) which were never rebutted by the ld. CIT(A)(APB 75–82). So out of 19 lac cash available he has deposited Rs 16.52 lac on account of demonetization which was in addition to the agricultural income. In the application u/r 29 the assessee furnished the agricultural land documents and photograph of the item sold along with the sale price of that old furniture. This evidence so very well justify the deposit of cash in the hands of the assessee and therefore, we do not see any reason to sustain the addition.

Based on these observations ground no. 2 to 2.2 are allowed since we have considered the appeal of the assessee on merits the technical ground raised by the assessee left open and becomes educative in nature.

In the result, the appeal filed by the assessee is allowed.