TONI GUPTA,MEERUT vs. ITO, WARD- 2(4), MEERUT

This appeal is filed by the Assessee against the order dated 05/07.12.2017 passed by the Ld. CIT(A), Meerut on the following grounds:-

1. That the AO has not considered the written reply dated

6.10.2016 and 3.11.2016 and ignored the statement recorded on oath of Sh. Arvind Kumar Gupta. Hence, the order passed by AO and CIT(A) is arbitrary, unjust and against the facts and law, as the AO has not followed the direction given by ITAT.

2. That the AO has not justified for making addition of Rs.

28,58,500/- advance received on account of sale of house property, the necessary evidences were already filed.

Regarding, production of Sh. Mohit Singh Yadav, it is the 1 knowledge of AO that he was in jail. Therefore, question of service on notice u/s. 131 does not arise, when the assessee provided agreement, which is confirmed by his brother Sh.

Arvind Kumar Gupta, the AO has not justified for making addition and CIT(A) confirmed the same without property consideration the evidence.

Subsequently, the case was selected for scrutiny and notice U/s 143(2) of the I.T. Act, 1961 dated 19-08-2010 was issued. As no compliance to the above notice has been made, therefore, again a show cause notice was issued on 08-11-2011 fixing the date of hearing on 15-11-2011. The AR of the assessee attended the proceedings and filed the reply, but no copy of statement and source of cash at bank had been filed. Further the assessee and his Counsel attended and statement of the assessee was recorded. AO observed that from the perusal of SB A/c at ICICI, Bank Delhi Road, Meerut, it was noticed that assessee had made cash deposit of Rs. 28,53,500/- in his bank account the details are not explained.

Hence, he added in the income of the assessee. The assessee filed appeal before CIT(A) and CIT(A) dismissed the appeal. On appeal before ITAT, on the submission of the assessee I.T.A.T. partly allowed the appeal of 2 the assessee and set aside the case to the A.O. to decide the issue afresh after affording proper opportunity of being heard. Before the AO, the assessee filed its written submission, but AO has issued notice u/s. 148 of the Act on 6.10.2010 relating to 1/7th share of 0.670 hector agriculture land alongwith six partners. Thereafter, the AO has completed the assessment u/s. 254/148/143(3) of the Act on 21.11.2016 at Rs. 39,61,907/-. The assessee has preferred appeal against this order before the Ld. CIT(A), Meerut who vide his impugned order dated 05/07.12.2017 has partly allowed the appeal of the assessee.

3. Ld. Counsel for the assessee submitted that AO has not considered the written reply dated 06.10.2016 and 03.11.2016 and ignored the statement recorded on oath of Sh. Arvind Kumar Gupta. Hence, the order passed by AO and CIT(A) is arbitrary, unjust and against the facts and law, as the AO has not followed the direction given by ITAT. He further submitted that the AO has not justified for making addition of Rs. 28,58,500/- advance received on account of sale of house property, the necessary evidences were already filed. Regarding, production of Sh.

Mohit Singh Yadav, it is the knowledge of AO that he was in jail.

Therefore, question of service on notice u/s. 131 does not arise, when the assessee provided agreement, which is confirmed by his brother Sh.

Arvind Kumar Gupta, the AO has not justified for making addition and CIT(A) confirmed the same without property consideration the evidence.

In view of above, he requested that the appeal of the assessee may be allowed.

i) The house which is shown to be sold was actually in the name of the assessee. ii) Once it is established that house was in the name of assessee then how Mr. Arvind Gupta could have entered an agreement with Mr. Mohit Yadav to sell the same house and how the amount can be treated as belonging to Arvind Gupta rather than to the assessee. iii) No such agreement has also not produced for examination. iv) Mr. Mohit Yadav has also not produced for examination. v) Mr. Arvind Gupta is claimed to be indulging in the business of property sale / purchase and he is using bank account of assessee, this cannot be accepted as a plausible explanation.

5.1 Therefore, Ld. CIT(A) has rightly held that assessee has created a story to make his defence, which is an afterthought story and is not acceptable. I further note that the assessee has failed to give plausible explanation regarding cash deposit of Rs. 28,58,500/- in the bank account 4 of assessee and, hence, there is no infirmity in the order of the authorities below on the issue in dispute, therefore, the same does not require any interference on my part. Accordingly, the order of the Ld. CIT(A) is upheld and the ground raised by the Assessee stands rejected.