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Income Tax Appellate Tribunal, “A” BENCH, AHMEDABAD
Before: SMT. ANNAPURNA GUPTA & SHRI SIDDHARTHA NAUTIYAL
(Assessment Year: 2010-11) Rajesh Amarsinh Prajapati, Vs. Income Tax Officer, Sec. 1 Block No. 1 Flat No. 102, Ward-3(2)(4), Suncity, Opp. Dulhan Party Plot, Ahmedabad Bopal, Ahmedabad-380058 [PAN No.AGPPP8128D] (Appellant) .. (Respondent) Appellant by : None Respondent by: Shri Ankit Jain, Sr. DR 25.09.2024 Date of Hearing Date of Pronouncement 27.09.2024 O R D E R
PER SIDDHARTHA NAUTIYAL - JUDICIAL MEMBER:
This appeal has been filed by the Assessee against the order passed by the Ld. Commissioner of Income Tax (Appeals)-3, (in short “Ld. CIT(A)”), Ahmedabad, vide order dated 11.09.2018 passed for A.Y. 2010- 11.
The Assessee has taken the following grounds of appeal:-
“Whether the, non-jurisdictional ITO (Inv.), Unit-2 was legally correct in law in submitting an incomplete, non-relevant and pretentious report without making any investigation arid sending it to the non-jurisdictional AO for further action, in violation of his duty entrusted upon him under law, also whether the ITO (Inv.), Unit 2 is correct in not promptly submitting the report to the AO? Whether the non-jurisdictional AO was legally correct in law in using the pretentious material and report against the Appellant on whom he did not have any jurisdiction in pursuance of S. 120(3)(a)/(b) of the Act and without initiating revenue proceeding u/s 142?
Whether the AO was correct in failing to make provisional attachment to protect the interest of the revenue even after knowing about the high volume of income escaping assessment and without confining his jurisdiction u/s. 120(3)(a)/(c) of the Act? Whether the non-jurisdictional AO was legally correct in law in not exercising any independent inquiry and merely on the basis of pretentious report supplied by the ITO (Inv.) making the report which is prima facie in contravention to S.147 and S. 142 of the Act; further whether it is justifiable in law to make false and corrupt report to obtain sanction of the competent authority in accordance with s. 151? Alternatively, if the proceeding initiated u/s 147 is not a judicial of proceeding, then whether the AO was legally correct in law to issue a notice u/s 143(2) without establishing his jurisdiction without having any cause? Whether the non-jurisdictional Pr. CIT was legally correct in law in giving mechanical sanction without application of own mind under S. 151 without giving any opportunity of being heard? Whether the Non-jurisdictional AO was legally correct in law in issuing the statutory notice on the Appellant in contravene the S. 120(3)(a) of the Act? Whether the non-jurisdictional AO was legally correct in taw in issuing notice u/s 148 for impugned transaction which was already considered and accepted u/s 143(1) and in contravention to the Doctrine of Res Judicata? Whether the both AO were legally correct in law in transferring case from one office to another by overruling S. 129? Whether the AO was legally correct in law in not passing any order u/s 147 of the Act as mentioned in section 148 rws 153(2) of the Act? Whether the AO was legally correct in law in issuing the notice u/s 143(2) where already a judicial proceeding was under pendency and in contravention to the Doctrine of Double Jeopardy? Whether the AO was legally correct in law in issuing various notices u/s 142(1) and issuing a Show Cause Notice which was barred by jurisdiction? Whether the AO was legally correct in law in passing a nonspecific, non-speaking assessment order without having proper jurisdiction under the Act and in contravention to the Doctrine of Double Jeopardy? Whether the AO and the CIT(A) were legally correct in law in making the addition of Rs. 54,52,835 being capital receipts to the returned income without having any proviso in the Act for treating it as revenue receipt without establishing the corresponding assets created out of the same alleged additional income?
Rajesh Amarsinh Prajapati vs. ITO Asst.Year –2010-11 - 3– Whether the AO was legally empowered to give direction to the revenue officer to initiate the penalty proceeding u/s.274 rws 271(1)(c) of the Act on the disputed reassessed income? Whether the AO was legally empowered to give direction to the revenue officer to charge the interest on the disputed re-assessed income of the Act? Whether the AO was legally empowered to violate the Principle of Natural Justice and fundamental right as enshrined under Article 21, 19, 20, 13, 14, 265, 245, 246, 141, 311(2), 300(A), 365(29) of the Indian Constitution? Whether the CIT(A) was correct in law in grossly dismissing the appeal without considering the facts and merits of the case and not paying due consideration to the contentions of the Appellant and passing appellate order and upholding the illegal addition?”
The brief facts of the ease are that the assessee had filed original return of income, declaring total income of Rs. 1,51,140/-. Thereafter, the Assessing Officer observed that the assessee had deposited cash of Rs.54,52,835/- in various Bank accounts during the year and that too from various Branches of the Bank. Accordingly, the Assessing Officer initiated proceedings under Section 147 of the Income Tax Act, 1961 and called for various details from the assessee. The Assessing Officer observed that the assessee has not furnished any justifiable explanation for the deposits made in cash. On going through the return of income, the Assessing Officer observed that the assessee is not doing any business which requires cash deposits and withdrawals at such regular intervals. Accordingly, the Assessing Officer held that the contention of the assessee that he is utilizing cash withdrawals for redepositing the same in Banks was not an acceptable proposition. Further, the assessee has not given any explanation why such substantial cash deposits were made from various branches of the Bank located at different places. Further, the Assessing Officer also observed that there was substantial variation between the cash book, capital account, Rajesh Amarsinh Prajapati vs. ITO Asst.Year –2010-11 - 4– Profit & Loss Account and Balance Sheet etc. which were earlier produced by the assessee before the Investigation Wing and what was now produced by the assessee before the Assessing Officer. The Assessing Officer observed that in the cash book produced earlier before the Investigation Wing, there was no opening cash balance. However, the assessee is showing opening cash balance of Rs.4,50,000/- as on 01.04.2009. Further, in the cash book produced earlier before the Investigation Wing, the assessee has shown cash receipts from various parties, in support of which, the assessee filed copy of ledger account of these parties before the Investigation Wing. However, in the cash hook produced by the assessee before the Assessing Officer, there is no such cash receipts but only receipts and redeposits in the Bank Account only. In view of the above, the Assessing Officer held that the cash book and Profit & Loss account and Balance Sheet filed by the assessee is not acceptable and therefore, the same is rejected. The Assessing Officer held that as the assessee failed to explain the credit entries of Rs.54,52,835/- appearing in the Bank accounts, the same was added to the total income of the assessee as unexplained cash credit under Section 68 of the Act.
In appeal, the Ld. CIT(A) dismissed the appeal of the assessee with the following observations:
“4.2 Decision: I have gone through the assessment order and the statement of facts filed by the appellant carefully. No fresh evidences have been placed on record. The appellant continue to maintain the stand which was carefully considered including cash book by the AO before finalizing the assessment. No application under Rule 46A was filed during appellate proceedings. The appellant had deposited cash of Rs.54,52,835/- in various bank accounts during the year that too through various branches of the bank. The appellant has not furnished any justifiable explanation for the deposits in cash at enquiry level with Investigation Wing or at assessment level.
The AO has given finding after examining the details in return of income that the appellant is not doing any business which require so much cash deposits and withdrawals at regular intervals. The business if any was never discussed by AR even during appellate proceedings and he continued to maintain that the withdrawal from the bank account have been, wrongly ignored by the AO. Even perusal of P&L a/c. on record confirms that appellant does not have any business which could justify deposit of huge cash in different bank accounts. The front page of the return of income on record for A.Y. 2010-11 filed 11.08.2017 has left the column as blank against "Nature of Business". The original return is filed on 11.08.2017 which was due as per 139(1) as on 31.07.2010 i.e. the lapse of 07 years and still the appellant was not sure for what to submit to different wings of the department. The appellant is supposed to be very clear on the issue as much time has been availed and nothing he could ever change retrospectively. Therefore, it is noted with interest that the appellant had not filed return of income as per provisions of 139(1), therefore, proceedings u/s. 148 were initiated for the huge cash deposits in different bank accounts. Once proceedings u/s. 148 were initiated the appellant explained that no hooks of accounts have been maintained as the same were not required to be maintained as this being a case U/S.44AA. But no notified profession was ever disclosed to the department, hence the explanation was somehow or the other to explain the cash deposits for which the appellant was caught. There is no record for earlier year or payment of any meager taxes by the appellant on record. As noted in assessment order, no prudent person would do frequent cash withdrawal and cash deposits in his bank accounts without any purpose and that too for the sake of re- depositing the same in bank accounts. Further, appellant has not explained to the AO and also during appellate proceedings as to why cash deposits are therefrom various branches of the bank like Sahade, Karelibaug, Baroda, Bhilwara, Dungarpur, S.G. Highway, Bopal etc. This aspect is conspicuous and cleverly adopted to deceive the department hence mala fide intention is involved in the management of financial affairs. It is also noted that the cash book, capital account, P&L Account and Balance Sheet etc. produced earlier before the investigation wing are quite different from the ones produced by the appellant during assessment proceedings. The AO has noted specific inconsistencies in cash book produced earlier before Investigation Wing as much as it was not having any opening balance. Secondly, the cash book produced earlier before Investigation Wing, appellant had shown cash receipts from various parties to support his claim by filmy copy of ledger account of I these parties. An inquiry would have been conducted from these creditors, therefore, a new explanation of cash withdrawal for re-depositing the same has been propounded which has been rightly rejected by the AO. In other words, no creditors worth salt were claimed during assessment proceedings, therefore, conveniently avoided producing such persons before the AO. It is noted that during appellate proceedings that only family member's name such as Ashokkumar N. Prajapati for deposit/withdrawal of cash and cash received of small amount from Shri Keual Harsukhbhai Chobatiya and Rajanikant D. Donga have been furnished. These three names are of no consequence as far as findings of the AO are concerned. The AO has also noted that withdrawal of Rs.3,49,600/- and education expenses of Rs.55,000/- claimed before Investigation Wing are also not consistent with details in P&L account and balance sheet filed during assessment proceedings.
Rajesh Amarsinh Prajapati vs. ITO Asst.Year –2010-11 - 6– The appellant is conveniently changing his stand by consulting different professionals through self-serving statement so as to get the benefit of some or the other judgments. Following judicial orders do not approve such an act : “By consulting a professional you don't become yourself a professional; an. interpretation which would create an unfair, irrational or unreasonable result should be avoided and statutory provision salvaged by giving enacted section a subdued and subordinate content:- 80 ITR 57(Ker.) 156 ITR 323 (SC) 179 ITR 580 (Cal.) 175 ITR 384 (Ail) 200 ITR 697 (Bom.) 208 ITR 649 (SC)” Mere unsubstantiated explanation would not absolve assesses, burden is on him to prove has been held 208 ITR 668 (Bom.) & 185 ITR 49 (SC). In the circumstances, I agree with the AO that the appellant has failed to explain the credit entries of Rs.54,52,835/- appearing the bank accounts. The cash deposited has remained unexplained. Therefore, the addition made u/s.68 by the AO is hereby confirmed. Ground No.3 of appeal is dismissed.
In the result appeal is dismissed.”
5. The assessee is in appeal before us against the aforesaid order passed by the Ld. CIT(A), dismissing the appeal of the assessee.
Before us none appeared on behalf of the assessee. Further, even on the date of hearing before us, no application for adjournment was filed by the assessee. On going through the records of the case, we observe that neither has the Counsel filed any Power of Attorney in original nor has the assessee filed any application for condonation of delay, alongwith Affidavit in original. We observe that vide order sheet dated 19.02.2024 a specific noting was made in the order sheet entry, wherein it was specified that during the course of hearing on 10.01.2023 that though the appeal is time barred, no application for seeking condonation of delay was filed by the Rajesh Amarsinh Prajapati vs. ITO Asst.Year –2010-11 - 7– assessee. Further, even as on 19.02.2024 application for condonation of delay alongwith Affidavit had not been furnished by the Counsel for the assessee Shri Kishore Goyal. Accordingly, another opportunity was granted to the assessee to do the needful by 26.03.2024. However, on going through the records of the case, we observe that neither any application for condonation of delay, alongwith Affidavit was filed in original and neither has the Counsel for the assessee furnished Power of Attorney to appear on behalf of the assessee in original. Thereafter, the matter was fixed for hearing on 01.05.2024, where none appeared on behalf of the assessee. Thereafter, the matter was fixed for hearing on 25.09.2024. However, when the matter was called out for hearing today, none appeared on behalf of the assessee and no application of adjournment was also filed. Further, as mentioned above, neither has the Counsel for the assessee filed any authority letter in original and neither has any application for condonation of delay, alongwith Affidavit being filed by the Counsel for the assessee in original before us. Accordingly, in view of the above, we are of the view that since none of the directions of the Bench have been complied with by the Counsel for the assessee, we shall proceed to decide the issue in light of the material available on record. On going through the grounds of appeal raised by the assessee, we observe that the grounds of appeal raised by the assessee are irrelevant and extraneous to the issue under consideration before us. Accordingly, in light of the observations made by the CIT(A) while dismissing the appeal of the assessee and in light of the fact that wholly irrelevant grounds of appeal have been raised by the assessee against the order of the Ld. CIT(A), we are of the considered view that there is no infirmity in the order of the Ld. CIT(A) so as to call for any interference. Appeal of the assessee is thus dismissed.
7. In the result, appeal of the assessee is dismissed. This Order pronounced in Open Court on 27/09/2024 Sd/- Sd/- (ANNAPURNA GUPTA) (SIDDHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 27/09/2024 TANMAY, Sr. PS TRUE COPY आदेश क� �ितिलिप अ�ेिषत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबंिधत आयकर आयु� / Concerned CIT 4. आयकर आयु�(अपील) / The CIT(A)- 5. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER,