Swami Shibrupananda Jayrambati Ramkrishna Saradamath & Mission Vs ITO (ITAT Kolkata)
Ld. AO had taken two views in respect of same transaction/bank deposits made by the assessee, one pre-demonetization period deposits, which he treated as income from profession of the assessee and 50% of such deposits treated as income from profession. On the other hand, deposits of Rs. 13,00,000/- made post demonetization treated as undisclosed income u/s. 69A r.w.s 115BBE of the Act.
Taking into consideration this factual position, we are of the view that this dual action of the ld. AO in making said addition on the same issue is not justified and as such we hold that the total cash deposit in bank account i.e. Rs. 27,22,500/- ( which includes the deposits during post demonetization period totalling Rs. 13,00,000/-) to be treated as gross receipts from profession and 50% of such deposits be treated as ‘income from profession’ during the assessment year in question.
FULL TEXT OF THE ORDER OF ITAT KOLKATA
The present appeal has been preferred by the assessee against the order dated 21-09-2021 passed u/s. 250 of the Income-tax Act, 1961 by the of ld. Commissioner of Income-tax (Appeals), [in short, the ld. CIT(A)] National Faceless Appeal Centre (NFAC), Delhi, which in turn arises out of assessment order passed u/s. 144 of the Income-tax Act, 1961 ( in short, the ‘Act’) by ITO, Ward-3(3). Bankura on 18-11-2020 for the A.Y under consideration, whereby a sum of Rs. 20,67,821/- and Rs.13,00,000/- u/s. 69A r.w.s 115BBE of the I.T Act, 1961 .
2. At the time of hearing the registry has informed that the present appeal is time barred by 39 days. The assessee prayed for condonation of the delay by submitting the affidavit which is placed on record. We after perusing the affidavit as well as material available on record we find that merit in the contention of the affidavit given by the assessee and keeping the larger interest of justice, we condone the delay and admit the appeal for adjudication.
3. The assessee has raised the following grounds of appeal:-
1. For that the Order of the Ld. CIT (A), NFAC, confirming Order of the Ld. AO is arbitrary, whimsical and illegal.
2. For that the Ld. Appellate Authority, in consideration of the facts and circumstances of the matter is not justified in sustaining addition of Rs.20,67,8211- made by the Ld. AO.
3. For that the Ld. Appellate Authority in consideration of the facts and circumstances of the case, is not justified in confirming Rs. 13,00,000/- added u/s 69A read with Section 115BBE of the IT Act, 1961 by the Ld. AO.
4. For that the Ld. Appellate Authority in consideration of the facts and circumstances of the matter, dismally failed to apply his mind to the issue of legal tender and legality of application of section 115BBE of the IT Act, 1961.
5 For that the appellant reserves his right to add to, to alter, to amend the rounds and to adduce a er and document at the time of hearing.
4. Brief facts of the case are that the Ld. AO issued notice u/s. 142(1) on 15.03.2018 upon the assessee calling the assessee to prepare a true and correct return of income for the AY in question. But the assessee has failed to furnish the return of income for the AY under consideration. As the assessee failed to furnish the return of income in response notice issued u/s. 142(1) of the Act the Ld. AO fixed the date of hearing on 19.07.2019. But this time also the assssee did not submit any compliance except prayed for adjournment. Accordingly, the Ld. AO as per provisions of section 144(1) to gather relevant material and to make assessment of the total income to the best of judgment of Ld.AO proceedings in ITBA has been initiated by issuance of said notice u/s. 142(1) of the Act fixing the date of hearing on 1907-2019 with questionnaire to explain the source of said deposit with computation of total income, but no compliance has been made by the assessee. Letter u/s. 133(6) dt. 06.05.2019 were issued to the respective branches. In response to which, said authority has sent compliance. The Ld. AO found during the AY in question total cash credit/deposit and credit on transfer along with cash deposit in demonetized note during the period demonetization are as follows:-
