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TMI Blog2021 (7) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... T(A) further erred in law as well as on the facts of the case in not accepting the opening cash balance of Rs. 4,23,740/- as on 01.04.2009 and in not considering the cashbook submitted from 01.04.2009 to 15.08.2009 in respect to cash deposited out of sale proceeds from vegetable and salary. The decision of ld. CIT(A) is totally contrary to the provisions of law and facts on the record and hence the addition kindly be deleted." 2. During the course of hearing, the ld. AR submitted that the assessee derives income from salary from M/s. Komal Indian Oil and trading of vegetables. He filed his return of income on 28.02.2011 at total income of Rs. 3,09,422/- with the ITO, W-6(2), Jaipur. The AO noted that as per information available with department, the assessee had deposited cash above Rs. 10 lacs. When asked to explain the source of such deposits, the assessee vide letter dated 20.06.2012 submitted cash flow statement explaining the sources being out of gift of Rs. 5,00,000/- received from father, opening cash of Rs. 4,23,740/- available as on 01.04.2009 and other receipts during the year. However, regarding gift from father, the AO alleged that assessee failed to prove creditworthi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eproduced in his order at pg. 3 to 8. 2. Opening Cash Balance of Rs. 4,23,740/- Fully Established: It is submitted that the lower authorities have not judiciously appreciated the facts in as much as the assessee was aged 35 years (in F.Y. 2009-10) and being graduate had worked privately. He was also doing commission business of vegetables simultaneously for last several years. The assessee filed his ROI for A.Y. 2008-09 & 2009-10, declaring gross income of Rs. 1,08,000/- and 2,12,635/- from salary and/or commission, which stood assessed as admitted by the AO. Therefore, even assuming, he could earn a minimum most Rs. 18 to 20,000/- per annum for a period of 15-17 years, he could have saved more than Rs. 3,00,000/- as against Rs. 2,55,000/- shown as opening cash balance on 01.04.2007. Since the closing balance of Rs. 4,60,865/- as on 01.04.2009 (Refer AO Pg-4) consisted of cash in hand of Rs. 4,23,740/- as also bank balance of Rs. 36,852/- hence one cash flow statement was also filed before the AO, which shows the opening cash in hand of Rs. 4,23,740/- as on 01.04.2009. The assessee also submitted a cash flow statement before the AO for the period 01.04.2007 to 31.03.2009. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed elsewhere. More particularly when, the AO himself accepted the availability of cash of Rs. 2,55,000/- as on 31.03.2007 and Rs. 3,15,000/- 31.03.2008. Therefore, there was no occasion to doubt the opening balance of Rs. 4,23,740/- as on 31.03.2009. 3.4 Moreover, the agricultural income of the father (current year), around Rs. 11-12 Lacs, stands impliedly accepted by the ld. CIT(A) when he accepted the gift of Rs. 5 Lacs to the appellant's son. His current agricultural income and his past savings were also helpful meeting the household and other outgoings of the appellant but were ignored. 3.5 The ld. CIT(A) though referred to the dubious conduct of the appellant but this was neither made a basis nor it could have been a basis for rejecting the explanation (supported by evidences) towards source of the balance impugned addition of cash deposits. The illegality or act against public policy cannot come in the way while considering applicability of S. 69, 69A. 4. Cash Flow Statement-Admissible evidence: In the cases where there are no accounts are maintained by one reason or the other or in the non-business cases, submission and consideration of the cash book/cash flow sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- is treated as unexplained. However no separate addition is being made in view of discussion in forgoing paras. 5. Unexplained difference in availability of cash for depositing in Bank account- As stated above vide letter dated 14-09-2012 the assessee was asked to explain the source of Rs. 11,52,150/- i.e. short of fall of available cash for depositing in Bank of Raj and SBI account. In response to the same assessee submitted a cash book. No evidence of sale and purchases of vegetables was furnished. In this cash book he has taken into consideration opening cash balance of Rs. 4,06,865/-. As discussed above the source of opening cash balance has already been rejected. Further even if it is accepted that cash was generated on account of sale of vegetables the issue arises how much'. As per assessee's own account details of vegetable trade as under- Sales 2548760 Gross profit 383510/- Expenses 145429/- Net profit. 237081/- In this trade creditors for purchases do not stand for long. This is evident from ROI itself where at the end of year nil creditor have been shown by the assessee. It is also relevant to mention that in AY 2009-10 he has not shown income fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gift from his father and hence, the same is not more under dispute before us in absence of any further appeal by the Revenue. Firstly, in respect of availability of cash from the retail business, the assessee has shown a figure of Rs. 242,110 whereas the AO has computed an amount of Rs. 179,500/- in respect of which no specific contention has been raised before us and hence, the figure of Rs. 179,500/- as so computed by the AO needs to be considered as against figure of Rs. 242,110/-. In respect of drawings, the assessee has shown a figure of Rs. 119500/-, however, no basis has been specified as to how the assessee has determined the said figure where as the AO has returned a finding that given that assessee has salary and other business income, the household withdrawals can be considered as met out of salary income which has not been disputed by the assessee. Therefore, drawings towards household withdrawals are taken at Rs. 144,000/- instead of Rs. 119500/- taken by the assessee. Similarly, in respect of cash flow statement in support of opening cash balance, drawing a similar analogy regarding household withdrawals, the drawings towards household withdrawals are taken at Rs. 108 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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