TMI Blog2015 (3) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... h - CIT(A) deleted addition - Held that:- the substantive addition was made in the hands of Smt. Avinash Monga and in the assessee’s case, there was merely a protective addition. We further note that the CIT(A)-XXX, New Delhi, after detailed deliberations found that the substantive addition is not sustainable and both the additions of ₹ 12,72,707/- and ₹ 91,870 except addition to the extent of ₹ 10,000 were deleted. We are also in agreement with the conclusion of the CIT(A) in the impugned order that whatever undisclosed income had to be taxed based on these loose papers, has been taxed in the hands of assessee’s wife Smt. Avinash Monga substantively and as the rest of substantive addition has been deleted, then there is no ground to uphold the protective addition in the hands of present assessee Shri Suresh Monga. Finally, under above noted facts and circumstances, we reach to a logical conclusion that the CIT(A) was right in granting relief for the assessee and deleting the protective addition. - Decided against revenue. - IT (SS) A No. 118/DEL/2006, C.O. No. 161/Del/2008 - - - Dated:- 23-2-2015 - Shri Pramod Kumar And Shri Chandramohan Garg,JJ. For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee. As a result of search, certain documents were found and seized and therefore, the AO asked the assessee to explain entries amounting to ₹ 91,870 along with sufficient evidences and the AO concluded that the assessee failed to explain these entries and therefore total amount of ₹ 91,870 was added back as undisclosed income of the assessee. The AO further observed that on some of the bills, there appeared the name of the assessee s wife Smt. Monga revealing investment in jewellery and the AO was of the view that the assessee could not disown the responsibility of explaining entries in these documents. The AO concluded the assessment proceedings by holding that since the assessee failed to discharge his onus, the total amount of ₹ 6,79,890 was treated as undisclosed income of the assessee and also the scribbling showed various expenses amounting to ₹ 5,92,817 and since the assessee could not submit any cogent explanation, thereof, these amounts were treated as undisclosed income of the assessee by making total addition of ₹ 12,72,707 on protective basis and ordered to be treated the same amount as substantive income in the hands of assessee s wife Smt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the proposition is, still it indicates the availability of funds with the appellant. A search was carried out in the residential premises of the appellant and if the funds so withdrawn were invested or spent elsewhere, some corroborating evidences would have been found and in that case the AO would have been justified to make additions u/s 68 for the unexplained cash deposits. However, for want of such evidences, the source of subsequent cash deposits stands correlated with the earlier cash withdrawals. The probability of the funds withdrawn and having been retained by the appellant in cash may be doubtful, still in absence of any proof that it had already been utilized and was not available at the time of deposits, the appellant's explanation cannot be disregarded. The ratio as laid down by the Hon. Apex Court in the case of CIT vs Durga Prasad Mere (1971) 82 ITR 540 (SC) would be very relevant in the present case which says apparent must be considered the real until it is shown that there are reasons to believe that the apparent is not the real and that the taxing authorities are entitled to look into the surrounding circumstances to find out the reality and the matter ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2nd and 4th February, 1999 and again there was withdrawal of ₹ 1,50,000/- on 4th July, 1999. The assessee's reliance on the decision of the Hon. Patna High Court in the case of Addl. CIT Bihar vs Mohan Engg. Co. Ltd. reported in (1985) 151 ITR 571 (Patna) is squarely applicable in his case. In that case the deposit was withdrawn from the account of R between November 28, 1961 to February 6, 1963 and the deposits in the name of D had been made between April 26, 1963 and September 2, 1963 and on reference it was held that the deposit was made out of the funds withdrawn in the immediately preceding year and hence the alternative plea had been proved by positive evidence. The assessee had not only discharged the onus placed on him u/s 68 but had adduced evidence in support of his plea. It was therefore held that the deletion of the amount credited in the name of D from his total income was valid. In the instant case also the time gap is almost the same and the cash deposits have been made out of the funds withdrawn in the preceding years and therefore the appellant's plea stands proved by positive evidences. As against this, there has not been brought even-an iota ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case, the cash credit to the extent of ₹ 6 lakh has already been held to be undisclosed income of the appellant and the appellant deserves its credit in respect of subsequent credit entries found. 9. Coming to the facts and circumstances of the present case, we note that the impugned cash deposits have been made out of the funds withdrawn in the preceding years and hence, we are in agreement with the conclusion drawn by the CIT(A) that assessee s stand on this issue has been proved by positive evidences. Per contra, the AO has not brought out any material or evidence in spite of search operation at the residential premises of the assessee to dismiss assessee s claim/stand that the assessee actually has such funds available at the time of subsequent cash deposits. We are also inclined to hold that the CIT(A) was quite justified in reaching to a conclusion that the assessee has discharged its onus incumbent upon him u/s 68 of the Act by submitting supportive and reliable evidence and explanation viz. same bank pass book etc. Therefore, the addition u/s 68 of the Act was not sustainable. Hence, we are unable to see any ambiguity or any other valid reason to interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel further submitted that the impugned addition was made in the hands of assessee on protective basis and the substantive addition for the aforesaid amount had been made in the hands of wife of the assessee Smt. Avinash Monga and when the addition in the hands of Smt. Avinash Monga has been deleted, then protective addition in the case of assessee is not sustainable and, therefore, the CIT(A) was right in granting relief for the assessee. 13. On careful consideration of above rival submissions of both the parties and relevant material placed on record, inter alia, the order of the Tribunal in the case of the assessee s wife Smt. Avinash Monga dated 8.11.2011 (supra), we note that undisputedly, the substantive addition was made in the hands of assessee s wife and for the same amount protective addition was made in the case of present assessee. We further note that the CIT(A) granted relief for the assessee by noticing decision of the first appellate authority viz. CIT-XXX, New Delhi dated 25.07.2005 in Appeal No.224/2004-05 and this order on this issue has been upheld by the Tribunal order dated 8.11.2011 (supra). Now, we take cognizance of this well-accepted proposition tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same with the jewellery or other assets discovered in the search. Further, Suresh Monga, the husband of the assessee in his statement, had stated that the jewellery which was found in the house was the stridhan of his wife, the assessee or purchased from their own sources. These facts remain uncontroverted. 25. The stand of the Department in this regard is that the ld. CIT(A) has ignored the factum of the slips containing the entries having been found from the premises of the assessee and the assessee having failed to discharge her onus u/s 132(4A) of the Act with regard to such slips. In this regard, whereas it is undeniable that the onus u/s 132(4A) of the Act was on the assessee, the slips seized in the search operation were neither in the hand-writing of the assessee, nor did they contain the nature of the figures mentioned therein, nor as to whether the figures represented goods or money, sales or purchase, the receipt or payment, etc. Therefore, the seized slips were nothing more than dumb documents. And, more pertinently, no material was found during the search, which could be co-related to these seized slips. 26. In view of the above, finding no merit therein, the g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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