TMI Blog2021 (11) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... This is an appeal filed by the assessee against the order of ld. CIT(A), Kota dated 06.03.2019 wherein the assessee has taken the following grounds of appeal:- 1.1 The impugned additions and disallowances made in the order u/s 143(3)/147 dated 31.08.2016 are bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same kindly be deleted. 1.2 The very action taken u/s 147 r/w 148 is bad in law without jurisdiction and being void-ab-initio, the same kindly be quashed. Consequently the impugned assessment framed u/s 143(3)/147 dated 31.08.2016 also kindly be quashed. 2. ₹ 13,50,000/-: The ld. CIT(A) erred in law as well as on the facts of the case in confirming the impugned addition made by the AO on the account of the cash deposits of ₹ 13,50,000/- in the bank account under the head of. The addition so made and confirmed being contrary to the provisions of law and facts kindly be deleted in full. 2. During the course of hearing, the ld A/R submitted that the relevant facts in brief are that the assessee filled ROI on 05.07.2014 declaring total income of ₹ 2,05,080/-, consisting of income from Sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-business cases, submission and consideration of the cash book / cash flow statements to explain the source is not uncommon and even the Hon ble Courts and Tribunals have taken cognizance and rather accepted such an evidence and explanation based thereon is valid. Therefore, the AO could not have blindly ignored such cash book unless he could reject the same based on the contrary material to support. The said cash book shows opening cash in hand of ₹ 5,43,750/- as on 01.04.2012. The assessee fully explained and established the source of this opening cash in Para-4 of his written submissions before the ld. CIT(A) reproduced at Pg-3 of his order and also reproduced hereunder: 4. The Appellant had taken voluntary retirement from the Dainik Navjyoti Printing Press Pvt. Ltd', Ajmer on 31/ 01/ 2011 and had received retirement benefits (1) Gratuity ₹ 2,60,377/- (2) PF ₹ 6,39,146/- (3) Pension ₹ 17,316/- Total ₹ 9,16,839/- and all these sums were deposited in Bank Accounts and the receipt had been shown in computation of Income for A/ Y 2011-12 and were duly withdrawn from the Bank. 4. After receiving total amount on retirement of ₹ 9,16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table based on the cash book: Date of deposits in Bank Amount Deposited Closing Balance of Cash on Preceding Day 22.07.2013 1,00,000/- 12,49,650/- 09.10.2013 50,000/- 11,43,065/- 08.11.2013 5,00,000/- 10,82,065/- 27.11.2013 2,00,000/- 5,88,090/- 08.01.2014 5,00,000/- 6,52,090/- 7. Thus, the different cash deposits made between this period (i.e. 22.07.2013 to 08.01.2014), are fully explained with the help of the cash book / cash flow statement submitted for three years i.e. A.Y. 2012-13 to 2014-15 and all the deposits are fully explained therein. However, the AO is completely silent on this aspect which has been fully established by the assessee but AO failed to rebut the same. It is further clarified that the receipt of advance cash of ₹ 10 Lakh and payment of advance on purchase of plots all took place on 20.01.2014 or in any case 08.01.2014 theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account and towards other expenditure etc. (ii) Ld. CIT(A): The cash book is also found to be self-serving in the absence of independent evidences ... Our Submissions: Mere allegation. Neither the AO nor the ld. CIT(A) has rejected the cash book / Cash Flow Statement in as much as they completely failed to point out any deficiency or defects therein. It is not there case that some outgoings / receipts were ignored. There apart the two bank accounts itself were the independent evidences because all bank transactions have been accounted for. (iii) Ld. CIT(A): . and has not been enclosed in the appellate proceedings. Our Submissions: Appears to be factually wrong. Kindly refer written submission to ld. CIT(A) (iv) Ld. CIT(A): The agreement of sale involving advance against properties is also dated later than the deposits found made in the bank account. Our Submissions: The assessee did not took support from such transaction (v) Ld. CIT(A): The amount of ₹ 13,50,000/- deposited in cash is treated as without proper supporting evidence .. Our Submissions: Factually incorrect and result of preconceived notion and absence of judicious considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for making addition/ assessment of the alleged income, it is for the AO to have proved beyond all reasonable doubts which is completely missing as has been held in the case of Dhakeshwari Cotton Mills Ltd. (1975) 26 ITR 775 (SC). The AO completely ignored the settled law that u/s 68, 69 etc. only a discretion has been conferred upon the AO to be exercised judiciously but he is not always obliged to make the addition if the explanation is not found satisfactory. Kindly refer CIT v/s P. K. Noorjahan (1999) 237 ITR 570 (SC). It was accordingly submitted that the addition so made and confirmed by the ld CIT(A) be deleted and necessary relief be provided to the assessee. 14. Per contra, the ld DR relied on the findings of the lower authorities and our reference was drawn to the findings of the ld CIT(A) which read as under: As regards Ground of appeal no 1 it is observed that the cash was deposited in the State Bank of India account on 08/11/2013 86 08/01/2014 in two installments of ₹ 5 lakhs each and in PNB account in three installments on 22/07/2013 ₹ 1 lakh, on 09.10.2013 ₹ 50,000/- and on 27.11.2013 of ₹ 2 lakhs. Thus the total cash deposit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, the assessee has sold a property and consideration thereof amounting to ₹ 43.50 lacs has been received through banking channels and there is no allegation by the AO in terms of any on-money received by the assessee in cash over and above the declared sale consideration. It has been explained by the assessee that the source of cash deposits during the year is out of earlier two years withdrawals and cash in hand at the beginning of the year. In support of his contention, the assessee has submitted cash book and cash flow statement for previous two financial years depicting the individual transactions of receipts and payments/withdrawals. We have gone through these cash flow statements and find that the assessee has sufficiently explained the source of deposits in form of salary and other retirement benefits which have been duly declared and withdrawals towards household expenses which are partly funded by him and partly by his wife and therefore, availability of cash in hand at the beginning of the year has been sufficiently explained. In the result, considering the entirety of facts and circumstances of the present case, we hereby direct the Assessing officer to delete ..... X X X X Extracts X X X X X X X X Extracts X X X X
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