TMI Blog2017 (6) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... sh deposited in the Standard Chartered Bank - addition on account of alleged undisclosed interest income - Held that:- We deem it appropriate to examine the factual matrix whether the assessee, during the relevant period, in fact, withdrew the amounts and if it was withdrawn whether it was used for any other purposes. This aspect has not been examined by the Department. The assessee is directed to examine the factual matrix and after providing due opportunity of being heard decide afresh in accordance with law. - ITA NO. 8548/Mum/2011, ITA NO. 8871/Mum/2011, ITA NO. 2230/Mum/2013, ITA NO. 2231/Mum/2013 - - - Dated:- 31-5-2017 - Shri Joginder Singh, Judicial Member, And Shri N.K. Pradhan, Accountant Member For The Assessee : Shri Mani Jain For The Revenue : Shri Rajat Mittal -DR ORDER Per Joginder Singh (Judicial Member) This bunch of four appeals is by the different assessee. In the case of Shri Chirag Jayant Mehta, there is cross appeal for Assessment Year 2008-09 (ITA No.8871/Mum/2011 and ITA 8548/Mum/2011). This assessee is also in appeal for Assessment Year 2009-10 (ITA No.2230/Mum/2013). In ITA No.2231/Mum/2013, Shri Snehal Jayant Mehta is in app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and served upon the assessee. The assessee attended the proceedings from time to time and filed the details called for and the case was also discussed (as is evident from page-1 of the assessment order passed u/s 143(3) of the Act). As per the Revenue, there was an information, received through AIR, that there is cash deposit exceeding ₹ 10 lakh in the saving bank account of the assessee. As per the Revenue, the cash was stated to be ₹ 10,99,23,512/- in the Standard Chartered Bank. The assessee was asked to furnish the necessary evidences to which the assessee filed letter dated 13/12/2010 claiming that the amount of ₹ 4,61,29,980/- and ₹ 4,23,53,032/- (total ₹ 8,84,83,012/-) does not pertain to the assessee. Thus, the information with respect to the amount of ₹ 10,99,23,512/- got reduced to ₹ 2,14,40,500/-, in view of revision made by the Standard Chartered Bank. The assessee vide letter dated 24/10/2010 explained that the assessee was planning to purchase agricultural land, therefore, the amount was withdrawn in cash from the bank accounts for the payments. Since, the deal could not materialize, therefore, the cash withdrawn from bank was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trance Ocean Agencies, where the assessee was a partner, etc. and finally deleted the addition of ₹ 99,32,000/- (joint account operated with his brother). The Revenue is in appeal against the aforesaid deletion and the assessee for the remaining, which was sustained by the Ld. Commissioner of Income Tax (Appeal). 2.3. If the observation made in the assessment order, leading to addition made to the total income, conclusion drawn in the impugned order, material available on record, assertions made by the ld. respective counsel, if kept in juxtaposition and analyzed, before adverting further, we are expected to analyze the factual matrix and contentions raised from both sides. Before us, the main grievance of the Revenue is that no wise businessman will keep such a cash unutilized for longer period. The observation made at page 3 and 4 of the assessment order is reproduced hereunder:- This also shows that the contention of the assessee is not justified. No prudent businessman would keep such huge amount of cash unutilized. Therefore, the natural corollary is that said cash was used by the assessee for the reasons and applications not mentioned in the details submitted. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh was used in earlier years. No such evidence was mentioned by the Department while presuming so. In such a situation, we are of the view that presumption cannot take the shape of evidence, however strong it may be. As mentioned earlier even the Ld. Assessing Officer has presumed that the cash was, though withdrawn, but might have used for other purposes, which has not been established by the Revenue. Identically, the Hyderabad Bench of the Tribunal in the case of Mr. C. Vamsi Mohan Nandyal, ITA No.469/Hyd/2014, order dated 27/03/2015 held as under:- This appeal filed by the assessee is directed against the Order of Ld. CIT(A)-IV, Hyderabad dated 10.01.2014 whereby he confirmed the addition of ₹ 21 lakhs made by the A.O. on account of cash deposit of ₹ 21 lakhs found to be made in the bank account of the assessee treating the same as unexplained cash credit. 2. The assessee in the present case is an individual who is engaged in the business of dealing in medicine and other products on retail basis in the name and style of his proprietary M/s. C.P. Medical and Fancy Store. The return of income for the year under consideration was filed by him on 31.03.2010 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as failed to explain why a substantial sum of ₹ 13,00,000 was withdrawn from the bank merely to keep it idle as cash only to redeposit it a week later. The appellant has also failed to explain why the appellant needed to continue withdrawing cash even when apparently large cash balance were available with him. 4.4. The logical explanation for such large withdrawals would be that the appellant needed the money either for his business or personal expenses or for making investments, in which case the cash withdrawn would have been utilized and not be available for redeposit. The appellant would have me believe that he had nothing better to do than to withdraw and deposit cash in a random manner apparently as a pastime. The explanation of the appellant is contrary to the probabilities of human behavior and is, therefore, rejected. Aggrieved by the order of Ld. CIT(A), assessee has preferred this appeal before the Tribunal. 4. We have heard the arguments of both the sides and also perused the relevant material on record. Ld. Counsel for the assessee has submitted that although there was no cash book maintained by the assessee to show that the deposit of ₹ 21 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he conclusion drawn by the Ld. Commissioner of Income Tax (Appeal). We affirm the same, resultantly, the appeal of the assessee is allowed and of the Revenue is having no merit, therefore, dismissed. 4. In the appeal for Assessment Year 2009-10 (ITA No.2230/Mum/2013) the facts were claimed to be identical. However, we find that the Ld. Commissioner of Income Tax (Appeal) produced various opportunities as is evident from page-1 of the impugned order from 24/04/2012 to 09/11/2012, adjournment were sought by the assessee and last two dates, the assessee could not attend. In the absence of non-attendance, an ex-parte order was passed even nobody was representing the department. The mandate of Article-265 of Constitution of India is to levy and collect due taxes, therefore, to safeguard the interest of both sides, we deem it appropriate to send this issue to the file of the Ld. Commissioner of Income Tax (Appeal) to adjudicate the same afresh on merit. The assessee be given opportunity of being heard with further liberty to furnish evidence, if any, to substantiate his claim, thus, this appeal of the assessee is allowed for statistical purposes. 5. Now, we shall take up appeal in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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