ANISH KUMAR JAISWAL,DEWAS vs. INCOME TAX OFFICER , DEWAS

brevity) before this Tribunal. The assessee is aggrieved by order bearing Number ITBA/NFAC/S/250/2024-25/ 1068026051(1) dated 27.08.2024 of Ld. CIT(A) passed u/s 250 of the Act which is hereinafter referred to as the “Impugned order”. The relevant Assessment Year is 2010-11 and the corresponding previous year period is from 01.04.2009 to 31.03.2010.

2.2 That the assessee being aggrieved by the “impugned assessment order” preferred a first appeal before Ld. CIT(A) in terms of Section 246A of the Act and who by the “Impugned Order” has dismissed the appeal of the assessee on the grounds specified therein.

2.3 That the assessee being aggrieved by the “Impugned Order” has preferred this second appeal before this Tribunal against the “Impugned Order” and has raised following grounds of appeal against the “Impugned Order” in Form No.36 which are as under:-

“1. That the notice issued u/s 148 of the Act is illegal, wrong, without Jurisdiction and authority of law. 2. That the order passed u/s 144 of the Act is illegal, wrong and bad-in- law. 3. That the addition made of Rs.22,18,408/- is illegal, wrong and bad- in-law.

4. That the appellant craves to add, alter, amend and/or withdraw any ground of appeal on or before the hearing of appeal.”

3. Recording of Hearing 3.1 The hearing in the matter took place before this Tribunal on 08.04.2025 when Ld. AR for and on behalf of the assessee interalia contended before us that the “Impugned order” is illegal, bad in law and not proper. It was prayed that the same should be set aside by this Tribunal in exercise of its appellate power conferred upon them under the Act.

3.2 At the outset and threshold while maintaining the fact that the “Impugned Assessment Order” is u/s 144 of the Act but the notice u/s 148 of the Act which triggered the Reassessment proceeding in the instant case was indeed illegal, wrong, without jurisdiction and the authority of law. The Ld. AR invited our attention to page-4 of the paper book which contains “Reasons to believe” that income chargeable to tax has escaped assessment.

The Ld. AR then read out whole of page 4 of the paper book and contended that in the “reasons to believe” it is recorded that :-

(i) Assessee did not file his return of income in the Year 2010-11.

(ii) That information available shows that the assessee had deposited cash in the saving bank account amounting to Rs.22,18,408/- during the Financial

Year 2009-2010 relevant to Assessment Year 2010-

2011.

(iii) That the department made a prior enquiry too by sending letters dated 15.05.2016 and 16.01.2017 to the assessee by virtue of which the assessee was asked to furnish the information with regard to source of cash deposits made in the saving bank account. That the assessee made no compliance in response to the aforesaid letters and therefore Ld.

Assessing Officer was satisfied that the assessee has no explanation to offer and on account of such failures the assessee has failed to offer the income for taxation to the extent of Rs.22,18,408/- which has escaped assessment.

Page 4 of 13 3.3 Basis above reasons on page 4 of paper book it was also contended by the Ld. AR that though the database of the department showed information but department never carried out any verification of the same from respective bank of the assessee which verification was must to arrive at a satisfaction that indeed income had escaped assessment to the above extent (supra). It was therefore submitted that the Ld. A.O has proceeded wrongly basis some information which was not verified by the Ld. A.O while these arguments were canvassed by Ld. AR, the Ld. DR for the Revenue stated that since the two letters issued to the assessee (supra) were not replied to the Ld. A.O his satisfaction is reasonable just and fair. It cannot thus be faulted with at all. The Ld. A.O therefore has met the requirement of law u/s 147/148 of the Act. The Ld. AR during the course of the hearing contended that while framing the “Impugned Assessment Order” the return of income for Assessment Year 2010-11 which is at page 1 to 3 of the paper book along with computation of income was completely overlooked/ignored. The Ld. AR therefore contended that in the impugned assessment order the returned income details are just not appearing at all. Hence both reasons

Page 5 of 13 recorded and impugned assessment order are all wrong illegal and not proper. It was also contended that the assessee was in the business of distribution of sim and recharge vouchers on behalf of IDEA Cellular during the year under consideration. The returned income was accepted by the department and even refund of taxes paid were made to the assessee on 22.01.2011.

In so far as merits of the case is concerned where there is addition of Rs.22,18,408/- which was cash deposited in Narmada Jhabua Gramin Bank, it was contended that amount deposited was in small lots. This small lots of amounts deposited are nothing but collection of “Sim sale and recharge vouchers”.

Payments to IDEA Cellular has been made from this account.

The maximum balance during the year under consideration is only Rs.1,23,130/- on 19.03.2010 and that total income declared during the year under consideration is Rs.2,84,674/- (ROI). The reliance is placed on page 8 to 11 of paper book where bank account of Narmada Jhabua Gramin Bank Account statement is enclosed. It is stated that in so far as Axis Bank Account is concerned the same was opened on 02.10.2010 whose copy are at page 13 to 18 of paper book filed. It was stated that on Page 6 of 13 27.04.2009 bank account with Narmada Jhabua Gramin Bank was opened with cash deposit of Rs.1000/-. The grand total of Rs.23,89,364/- appears at page 11 of bank statement and by balance is of Rs.5,196/-. The total withdrawal is Rs.23,84,168/-.

The withdrawal is made by DD as payment made to IDEA Cellular. Deposit is on account of sale of Sim & Recharge Voucher the business of the assessee. Per contra Ld. DR contended that the bank statement simply shows “DD” and to whom this amount is paid is not at all stated in the bank account and a presumption cannot be made that payments have gone to IDEA Cellular. In brief he contended that source of cash remains undisclosed and so also payment as and by way of DD.

Concluding Ld. DR stated that “Impugned Assessment Order” is rightly upheld by “Impugned Order” of Ld. CIT(A). Impugned order is reasonable, fair and just. It is based on material on record. In rejoinder the Ld. AR contended that the bank account is in Narmada Jhabua Gramin Bank which is a rural bank where accounts are maintained manually and same is in rural set up.

Minute details of DD as to whom it was paid are not stated. Over all Ld. AR contended that a decision should be taken by this Page 7 of 13 Tribunal as Assessment Year is 2010-11 and long time has elapsed and suggestion of DR to remand matter back to Ld. AO or CIT(A) would not serve any useful purpose as assessee is a small businessman. Hearing was thereafter concluded with reliance being placed on judgments in paper book which Ld. DR contended that same are on different set of facts then the instant facts of the case and hence distinguishable. Ld. DR has fully supported order of CIT(A) whereas by placing reliance on assessment order dated 30.12.2013 for Assessment Year 2011-12 Ld. AR has attempted to draw mileage with regard to business of assessee of sale of sim card and recharge vouchers.

4.1 We now have to decide the legality, validity and proprietary of the “Impugned Order” basis records of the case and contentions canvassed before us.

4.2 We have minutely perused records of the case and have heard the rival submissions.

4.3 We observe that Ld. AR has attempted to argue legal points as well as merits of the case. We therefore examine legal point

Page 8 of 13 first which is that notice issued u/s 148 of the Act is illegal, wrong, without jurisdiction and authority of law. The reasons are as under as per paper book on page 4 which we reproduce below:-

“Reasons to believe that income chargeable to tax bus escaped form assessment

The assessee did not file his return of income for the assessment year 2010-11. The AIR information available shows that the assessee had deposited amounting to Rs. 2218408/- during the financial year 2009-10 relevant to the A.Y 2010-11. Vide this office letter dated 15/09/2016 and 16/01/2017 assessee was asked to furnish information mentioned therein and explain the source of cash deposited account.

No compliance was made by the assesses in response to the aforementioned letters. Considering that the assessee has nothing to say in the matter in order to explain the source of cash deposited in his saving bank account, I am satisfied that the assesse had failed to offer the income for taxation to the above extent.