TMI Blog2020 (3) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... d even subsequent deposit is clearly established in the instant case, merely on account of fact that there was certain time gap between withdrawal and deposit cannot be held against the assessee and thus, we do not see any justifiable basis for holding that the amount so deposited remain unexplained. - Decided in favour of assessee. - ITA No. 982/JP/2019 - - - Dated:- 3-3-2020 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM For the Assessee : Sh. K. L. Moolchandani For the Revenue : Ms. Chanchal Meena (JCIT) ORDER PER: VIKRAM SINGH YADAV, A.M. This is an appeal filed by the assessee against the order of ld. CIT(A)-22, Alwar dated 13.12.2018 wherein the sole ground of appeal relates to sustenance of addition of ₹ 9,00,000/- as unexplained income in the hands of the assessee. 2. At the outset, it is noted that the appeal has been filed with the delay of 139 days. In this regard, the assessee has filed a condonation application along with an affidavit stating as under: 2. In the above mentioned case, the appeal order was passed by the ld. CIT (A), Alwar, on 13.12.2018. Against the impugned appeal order, the appellant had moved an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay in filing the present appeal is condoned and the appeal is admitted for adjudication 5. Briefly stated, the facts of the case are that as per information available with the department, the assessee has deposited cash amounting to ₹ 9,00,000/- in his bank account. However, since the assessee has not filed any return of income, notice u/s 148 was issued on 30.03.2017 which was duly served upon the assessee. However, there was no compliance on the part of the assessee and even no return of income has been filed pursuance to issuance of income u/s 148 of the Act, the AO proceeded u/s 144 and completed the assessment treating the whole of the cash deposits of ₹ 9,00,000/- as unexplained income of the assessee and assessment was accordingly completed u/s 147 read with 144 of the Act. 6. Being aggrieved, the assessee carried the matter in appeal before the ld. CIT(A) and submitted that the cash deposit of ₹ 9,00,000/- on 02.03.2010 was out of cash withdrawal made by the assessee earlier during the year on 16.04.2009 and 08.06.2009. The ld. CIT(A) accepted the fact that the cash of ₹ 15,20,000/- was withdrawn on 16.04.2009. However, since the cash was subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he honorable Bench). From this letter, it is evident that the appellant and his AR were totally at sea knowing nothing what to do and not to do. In the appeal proceedings also, the AR had barely stated the fact regarding bank withdrawals of ₹ 15,20,000/- on 16.4.2009 for making such cash deposit of ₹ 9 lac on 2.3.2010 i.e. after 10 months . The ld. CIT (A) however did not feel satisfied with such explanation and had dismissed the appeal. 8. It was further submitted that the ld. CIT did not appreciate the facts of the case in right perspective and had heavily relied upon the judgment of ITAT, Jaipur Bench, Jaipur in the case of Bhawani Singh vs ITO Bhiwadi (ITA No. 407/JP/2017 dated 13.9.2018) without noting the fact that the facts in the case of Bhawani Singh were entirely different than those of the present case. Even the Jaipur Bench itself has differentiated the above facts articulately in the case of Smt. Manisha Gaba vs ITO Ward 1(5) Alwar (in ITA No. 741/JP/2019) observing therein as under:- Before parting with the issue it is to be noted that the decision in case of Bhawani Singh vs ITO dated 13.9.2018 in ITA No. 407/JP/2017 as relied upon by the authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh v. ITO (2019) 108 Taxman.com 123 has direct bearing on the facts of the present case and the relevant findings read as under: Tribunal held that there was no such instance, reference, argument or evidence to suggest that the funds were not available with the assessee could not be available to the assessee. It was for the department to bring out some evidence in support of its claim, suspicion or allegation on record. Admittedly, there is no law that funds withdrawn from the banks cannot be held /retained in cash by the parties. There can also be no blanket period which can be judicially considered to be a reasonable time. The fact that there was a gap of about four months by itself could not lead to any conclusion which would detract from the merits of the claims made. Since no evidence has been made available by the AO to support the possibly unarticulated suspicion that the funds had been utilized elsewhere and considering the peculiar facts and circumstances of the case, the ground by the assessee is allowed.' 10. It was accordingly submitted that in view of the above facts and the discussions and also in absence of any material brought on record by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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