TMI Blog2015 (9) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... s the availability of income. Hence, in the peculiar facts of the case, we are of the view that the tax authorities have rejected the claim of receipt of cash through wills, only on the basis of surmises and conjectures and accordingly we are of the view that the said claim requires to be accepted. we are of the view that the claim of availability of cash as on 31.3.2004 should be accepted in the peculiar facts and circumstances of the case and accordingly there is no justification in assessing the same as income of the assessee. Accordingly, we set aside the order of Ld CIT(A) on this issue and direct the assessing officer to delete the assessment of the impugned cash balance. - Decided in favour of assessee. - I.T.A. No.2574/Mum/2012 - - - Dated:- 26-8-2015 - SHRI JOGINDER SINGH AND B.R.BASKARAN, JJ. For The Appellant : S/Shri Rajiv Khandelwal and Neelkanth Khandelwal For The Respondent : Shri Jeetendra Kumar ORDER PER B.R. BASKARAN (AM) The appeal filed by the assessee is directed against the order dated 02-01-2012 passed by Ld CIT(A)-30, Mumbai and it relates to the assessment year 2004-05. The assessee is assailing the decision of Ld CIT(A) in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, yet the AO rejected the same. Accordingly he assessed the entire cash balance of ₹ 40,68,404/- as income of the assessee. 4. Before Ld CIT(A), the assessee submitted that he had furnished financial statements pertaining to assessment years 1998-1999 onwards. Accordingly he furnished following cash flow statement for the year under consideration. Cash in hand as on 1.4.2003 Less:- Drawings 31,67,664 25,470 31,42,194 Cash received from the estate of Ganga Tarachand Ahuja, aunty of the karta, who Expired on 14.6.2003 8,77,000 Cash generated from the business for the Year 2003-04 49,210 Cash in hand at the end of the year 31.3.2004 40,68,404 The assessee contended that the opening cash balance of ₹ 31,67,664/- could not have been assessed in AY 2004-05. It was also submitted that the income of the current year, i.e., ₹ 49,210/- has been separately assessed and hence it was included in the cash balance of ₹ 40,68,404/-. Accordingly it was contended that the said amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aunty in support of the receipt of cash on their death. He submitted that both the wills have clearly stated that they possessed Cash and the same is bequeathed to the assessee and his family. He submitted that the cash balance is not a static figure and the same would keep changing. Further, the executors of will also do not know about their exact date of death and the exact amount that would be available with them at that point of time. Hence they could not quantify the amount of cash. He submitted that the tax authorities did not consider these practical difficulties and hence adverse inferences drawn by them against the will is not justified. He further submitted that the assessee also furnished certificates obtained from Government authorities to substantiate that both the relatives had agricultural income and hence they could have accumulated cash balances. However, the Ld CIT(A) has rejected them without proper reasons. 8. The Ld D.R, on the contrary, submitted that the certificates obtained from Panchayat officer towards availability of agricultural income in the hands of the relatives of the assessee is an afterthought only. He further submitted that neither the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has filed the financial statements pertaining to assessment year 1998-99 onwards, we are of the view that the assessing officer was not justified in rejecting the claim of availability of opening cash balance of ₹ 31,67,664/- without rejecting the financial statements filed for various earlier years. This is particularly in view of the fact that the assessing officer has accepted the financial statements filed for AY 2005-06, even though no return of income was filed by the assessee. Hence, in our considered view, due credence should be given to the financial statements filed for the preceding years and accordingly, we are of the view that the assessing officer was not justified in assessing the opening cash balance of ₹ 31,67,664/- available as on 1.4.2003 in assessment year 2004-05. The cash claimed to have been received from the assessee s father is included in the opening cash balance and hence the same does not require separate consideration. 12. The income pertaining to AY 2004-05 amounting to ₹ 49,210/- has been assessed by the assessing officer and hence the equivalent cash should be available with the assessee. The closing cash balance of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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