RAVINDER BAWEJA,NEW DELHI vs. ITO WARD 36(2), NEW DELHI

That no reasonable opportunity was provided to the assessee to present his case and without giving any final notice, assessment has been made by the assessing officer and Ld. CIT (A) erred in upholding the same.

That the Ld. CIT (A) has erred both in law and on facts in upholding the finding of AO where AO ignored That issuance of notice u/s143 (2) is mandatory for passing an order u/s 143(3) r.w.s 147 of the Income Tax Act 1961.

That the Ld. CIT (A) has erred both in law and on facts in upholding the finding of AO ignoring that notice u/s148 was issued by Assessing officer ward 36(2) however Assessment order was passed by DCIT Central Circle 27 and that without any notice regarding change of incumbent. Moreover on going through portal It has come to our notice that notice u/s143(2) was issued by the Assessing officer passing the Page 2 of 11

That the Ld. CIT (A) has erred both in law and on facts in upholding the finding of AO whereby he has made Addition on the information received from investigation wing. It is submitted a power to reopen would vest in the Assessing Officer only if, there is tangible material in his possession for coming to a conclusion that there was an escapement of income chargeable to tax, from assessment and the reasons with the Assessing Officer must have a live link with the formation of belief. Testing the case in hand in the backdrop of the aforesaid position, it is to be seen whether the case in hand would pass the test.

That the Ld. CIT (A) has erred both in law and on facts in upholding the finding of AO where the Notice u/s 148 was issued without any enquiry by the Assessing officer as he acted mechanically on the report of investigation wing. Moreover higher authorities also accorded their approval in haste without applying their mind u/s 151.

The appellant craves leave to add, alter, amend or vary any of the above grounds during the pendency of the appeal.”

That no reasonable opportunity was provided to the assessee to present his case and without giving any final notice, assessment has been made by the assessing officer and Ld. CIT (A) erred in upholding the same.

That the Ld. CIT (A) has erred both in law and on facts in upholding the finding of AO where AO Ignored that issuance of notice u/s 143(2) is mandatory for passing an order u/s 143(3) r.w.s 147 of the Income Tax Act 1961.

That the Ld. CIT (A) has erred both in law and on facts in upholding the finding of AO Ignoring that notice u/s 148 was issued by Assessing officer ward 36(2) however Assessment order was passed by DCIT Central Circle 27 and that without any notice regarding change of incumbent. Moreover on going through portal It has come to our notice that notice u/s143(2) was Issued by the Assessing officer passing the order on 30/12/2019 in spite of directions of CBDT that submissions were closed by 29/12/2019.Due to the above said it was almost impossible to participate in the Assessment proceedings.

That the Ld. CIT (A) has erred both in law and on facts in upholding the finding of AO whereby he has made Addition u/s 68 which is wrong as under income tax act Section 68 talks about "Cash Credits" 68. Where any sum is found credited in the books of an assessee maintained for any previous year, and the assessee offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee of that previous year:" It is submitted audited report with profit and loss was available with the assessing officer where everything about the business of the assesee was disclosed inspite of that he added all the deposits during demonetization period. 6. That the Ld. CIT (A) has erred both in law and on facts in upholding the finding of AO where he has Invoked section 115BBE of IT Act In the order..It is submitted From AY 2017-18 on wards, tax is payable u/s 115BBE of IT Act where addition has been made u/s section 68, section 69, section 69A, section 69B, section 69C or section 69D of IT Act. Section 115BBE is reproduced below: 115BBE. (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 698, section 69C or section 69D, if such Income is not covered under clause (a), the income-tax payable shall be the aggregate of- 1. 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)." It is well settled that the Income Tax Act as it stands amended on the 1st day of April of any FY must apply to the assessments of that year. Any Page 4 of 11

That the Assessing Officer erred in applying provisions of Section 115BBE of the Act in the facts and circumstances of the case of Appellant and determining the tax-liability as per the aforesaid Section without appreciating that provisions of Section 68/69A were not applicable in the facts of the case and, therefore, provisions of Section 115BBE of the Act could not be invoked. Learned CIT (Appeal) also erred in upholding the same, 8. That the Assessing Officer erred in determining tax liability as per Section 115BBE of the Act in the case of the appellant in respect of income which has already been included in the Return of Income without appreciating that the income which has already been declared in return cannot be deemed to be undisclosed income as per Section 68/69A of the Act and therefore Section 115BBE is not applicable in this case. Learned CIT (Appeal) also erred in upholding the same.

The Assessing Officer erred in making addition in respect of cash deposits without fully appreciating and following the instructions of CBDT issued in this regard and also without referring the matter to higher authorities for necessary approval as was required and also without fully examining the record in regard to cash deposits made by the Appellant as has been directed to be examined by CBDT. Learned CIT (Appeal) also erred in upholding the same, 10. That the Assessing Officer also erred in making the addition on account of cash deposits without making adjustment In respect thereof in the profit of the Appellant which ought to have been adjusted since the Appellant has already credited the amount of cash deposits by way of sales in the Profit and Loss Account for the year ended 31.03.2017 and profit has accordingly been determined and shown in the Return of Income and therefore addition made without making adjustment in profit declared in the return has resulted in double addition. Learned CIT (Appeal) also erred in upholding the same.

That the Assessing Officer erred in making addition on account of cash deposited in the bank which was represented by cash balance as per books and without appreciating that amount under reference has already been considered as Income by the Appellant in the year under reference or in earlier years and, therefore, addition made in this respect has resulted in double addition which cannot be made as per settled legal position. Learned CIT (Appeal) also erred in upholding the same.

That the Assessing Officer also erred in charging interest u/s 2348 and 234C of the Act while determining demand payable by the Appellant without appreciating that since the Appellant could not be held liable for the payment of advance tax for the amount under reference, no interest u/s 2348 and 234C could be charged particulariy for the reason that special rate of tax has been provided under the Act and in any case charging the interest without recording proper satisfaction in this regard is illegal and unjustified and also result in demand even more than the amount of addition. Learned CIT (Appeal) also erred in upholding the same.

That the Assessing Officer also erred in initiating penalty proceedings u/s 271AAC of the Act without recording proper satisfaction in that regard. 15. That the order has been passed by the Assessing Officer making the additions under reference without giving proper show cause notice and providing due opportunity to the appellant and therefore same is bad in law being passed without following principles of natural justice. Learned Cit(Appeal) also erred in upholding the same. 14. That source of cash deposit is the cash sale made. It is submitted that we are operating in a buyer friendly market and payment mode is cash or bank it is entirely dependent upon the wish of the purchaser Moreover Indian constitution empowers all of us to operate in any manner in which nature of trade requires us to do so as Article 19 (1) (a) of the Indian Constitution guarantees to all citizens the right to practice any profession, or to carry on any occupation, trade or business. It is submitted where the cash deposits have been duly recorded in our books of account and even in sales tax returns have been filed by us then source of cash deposit cannot be doubted. Learned CIT (Appeal)) also erred in upholding the same. 15. That Addition disallowing 15% of the Revenue from operation is not correct as these expenses were properly audited by an Independent chartered accounting professional and no adverse observation has been recorded by him, Learned CIT (Appeal) also erred in upholding the same. 16. That addition of Rs.2,18,246/- for not giving evidence for deduction claimed under chapter vi-a is wrong and untenable as no where we were asked to furnish evidence of the same and it can be seen from the portal too. Learned CIT (Appeal) also erred in upholding the same. 17. The appellant craves leave to add, alter, amend or vary any of the above grounds during the pendency of the appeal.”

That the learned assessing officer grossly erred in not accepting the Returned income and the learned CIT (A) has erred in confirming the said action of the assessing officer.

That keeping in view the principles of equity, law and justice, the order of the learned assessing officer is erroneous and the learned CIT (A) has erred in confirming the said order.

The appellant assessee reserves the right to alter any ground of appeal and to add any further ground in the memorandum of appeal at later stage.”

Brief facts of the case are that the grounds of appeal raised by the assessee challenge the order passed by the Ld. CIT(A) under Section 250(6) of the Income Tax Act, 1961, upholding the additions made by the AO under various sections of the Act. The assessee contends that the AO made these additions without providing a reasonable opportunity to the assessee. Also, the assessee has raised grounds regarding the issuance of notices under Sections 143(2) and 148, the applicability of Section 115BBE, and the charging of interest under Sections 234B and 234C.

The Ld. Counsel for the assessee submitted that no reasonable opportunity was provided to the assessee to present his case and without giving any final notice, assessment has been made by the Assessing Officer and Ld. CIT(A) erred in upholding the same.

Per contra, Learned Senior Departmental Representative (hereinafter referred to as ‘Ld. Sr. DR’), relied upon the order passed by lower authorities by stating that there is no substance in present appeal and ample opportunities been afforded to assessee / appellant.

Heard rival submissions and carefully perused the materials on record for disposal of these appeals.

The main issue involved regarding validity of the orders passed by the Learned A.O. and thereafter upheld by the Learned CIT(A)

Upon hearing both sides, and perusing material placed before us and the procedural lapses highlighted by the assessee/appellant and on the basis of foregoing discussions and circumstances, we are of the considered opinion that justice should not only done but it appears to be done and in order to achieve the noble goal of justice and before reaching any conclusion it is expedient to consider, all the material/ documents in existence and produced and whatever it is, if one more opportunity provided to assessee Page 9 of 11

Consequently, we set aside the orders of the Ld. CIT(A) and remit the matter back to the file of the AO with the direction to decide the matter afresh in accordance with law after affording more effective, meaningful and sufficient opportunity of being heard to the assessee. At the same time, assessee / appellant shall co- operate in proceedings and will not seek unnecessary adjournments for ensuring expeditious disposal of the matter. Assessee / appellant is at liberty to file / submit any documents / evidence etc.

In the result, these appeals are allowed as indicated above for statistical purpose.