TMI Blog2022 (8) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence but the same were not placed on record on account of corona virus - HELD THAT:- Considering the additional evidence placed on record the contentions raised by the assessee that the credit is already explained based on the evidence placed on record. Since, we have based on the argument of the ld. AR of the assessee admitted that these additional evidences but since these evidence were not placed before the AO we deem it fit to set aside this issue to the file of the Assessing Officer to verify the veracity of the record and contention raised by the assessee. Giving sufficient opportunity to the assessee. The AO is directed to decide whether based on the evidences placed on record the addition of Rs. 2,00,000/- is required to be added or not and with this observation the ground no. 3 raised by the assessee is allowed for statistical purposes. Deduction u/s 80C made in respect of HDFC life insurance - HELD THAT:- CIT(A) did not deal this issue as assessee has not placed on record a petition under Rule 46A but assessee contended that details are already in bank statement. Considering the overall facts we also feel that let this issue also be verified by ld. AO based on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. This cheque was issued by M/s Ganesham Silks in the name of the appellant (as repayment of earlier loan/advance) which was deposited in the bank account of the appellant and credited on 04.01.2017. ii) Bank statement of earlier period showing loan advanced to M/s Ganesham Silks amount to Rs. 2,00,000/- on 15.03.2016. 4. Brief facts of the case are that the assessee is a lady resides with her husband and working in China since, 2010. Due to declaration of demonetization, she had to deposit her old currency notes cash in hand in the bank accounts the source of which were stridhan, money received on various occasions, like marriage, other social occasions as cash gifts from relatives, cash withdrawals from bank account, accumulated past savings/income in the form of cash. The cash kept as security and future emergency in the mother land India. The entire source of cash deposits along with cash flow statements, bank statements, confirmation of gifts etc. were submitted during the assessment proceedings but ignoring the evidences placed on record the ld. A.O. made the addition of Rs.15,00,000/- u/s 69A as unexplained cash deposits in bank account which the assessee deposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10000 8 04.04.2013 25000 9 05.04.2013 15000 10 13.07.2013 20000 11 12.11.2013 10000 12 11.08.2014 50000 13 11.08.2014 25000 14 12.09.2014 20000 15 25.09.2014 55000 16 05.12.2014 50000 Total 501000 It is humbly submitted that the cash was deposited in the bank account due to directions/instructions of government as demonetization was declared. Cash flow statement is furnished at paper book page no. 1 to 3. 2. That a sum of Rs.11,25,000/- was withdrawn as cash from NRE bank account no. 02891560001408 at HDFC bank, Johari Bazar, Jaipur, for the period from 09. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of demonetization she had to deposit all her past and accumulated savings, gifts, income, stridhanetc. in the form of cash in the bank account. 6. Copy of marriage certificate, passport, income tax returns of China etc. are furnished at paper book page no. 38 to 43. It is submitted that the entire cash deposits are from explained sources. It is further submitted that lower authorities merely acted on surmises and suspicion without any material on record. The cash flow statement and other evidences submitted by the appellant were arbitrarily rejected without pointing out any specific defect. No material was brought on record by the ld. A.O. to establish that the cash withdrawn from the bank account was not available for deposit when demonetization was declared. The humble appellant wish to rely on the following judgments :- S.No. Judgement Held 1 Shri M. Prabhakar ITA No. 1727/Hyd/2014 dated 11.11.2016 (ITAT Hyderabad) Bench AO concluded that there is no possibility of keeping such huge amount in cash by the assessee being a NRI but AO has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability of cash in hand. Mere time gap between withdrawals and deposits cannot be a sole basis for rejecting the explanation of the assessee regarding availability of cash in hand where there is no material that amount so withdrawn has been utilized somewhere else. (Para 15, Paper Book page no. 80 to 81) 6 Hemant Prabhakar Vs. DCIT(ITAT, Jaipur) Cash deposits addition was deleted after verification of availability of cash from cash flow statement filed by the assessee. Addition cannot be made u/s 69 for deposits made in bank accountsimply for the reason thttehse were made after a gap of 14 months of earlier withdrawals since AO has failed to establish the utilization of earlier withdrawals elsewhere. (Paper book page no. 44) 7 R.K. Dave Vs. ITO (ITAT, Jodhpur) 94 TTJ 19 Mere fact that the assessee could not explain the time gap between the amount withdrawn and investment or where the amount was kept would not itself justify the addition. 8 ACIT Vs. Baldev Raj Charla 121 TTJ 366 (ITAT, Delhi) There bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for an unfruitful purpose, was explained through an oral evidence. Principle of preponderance of probability as a test is to be applied and is sufficient to discharge onus. Probability means likelihood of anything to be true. Probability refers to appearance of truth or likelihood of being realized which any statement or event bears in light of the present evidence (Murray s English Dictionary). Evidence can be oral and cannot be disregarded on this ground. Hence, the ld. A.O. rejection of oral submissions of the appellant regarding past savings, stridhan, cash withdrawals etc. is not justified in lieu of theory of preponderance of probability accepted by Hon ble Courts. The ld. A.O. also mentioned in the assessment order at para no. 9.5 at page no. 16 that as on 01.04.2014 cash in hand was Rs.12,91,500/- but no supporting documents were given. It is humbly submitted that cash flow statement (copy enclosed) was prepared right from 2011 to explain the entire position of cash availability. The ld. A.O. failed to point out any deficiency/discrepancy in cash flow statement of the appellant. Just before demonetization, as per the cash flow statement the appellant was having cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the bank account much earlier. No supporting evidence has been filed in support of claim of Stridhan. The contention having received money from mother or Stridhan is unsubstantiated and without any tangible evidence. The argument is rejected. 8.2 The appellant has argued that' aggregate withdrawals of Rs. 11,62,500/- have been made from her NRE bank account with HDFC Bank. It is observed that the withdrawals have been made in small amounts ranging from Rs. 2,000/- to 25,000/- on 116 dates starting from 09.02.2011 to 15.02.2016. Similarly, aggregate withdrawals of Rs. 1,10,000/- have been made from her NRO bank account with HDFC Bankin small amounts ranging from Rs. 10,000/- to 20,000/- on 7 dates starting from 02.04.2016 to 29.10.2016. By the very nature of being small periodic withdrawals show that the same have been made for house hold or other personal expenses. No rational person would continuously withdraw cash from the bank account for no reason or purpose just to pile up the cash with herself just to deposit the same in the bank account after several years. If the appellant was not in need of cash, there was no reason to withdraw further cash from the bank account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue of said high denomination notes as income of assessee from undisclosed sources. Where the explanation of assessee was unconvincing and one which deserves to be rejected, the department can reject the explanation and draw the inference that the amount represents income either from the sources already disclosed by the assessee or from some undisclosed source. The Court observed: Where the assessee was unable to prove that in his normal business or otherwise, he was possessed of so much cash, it was held that the assessee started under a cloud and must dispel that cloud to the reasonable satisfaction of the assessing authorities, and that if he did not, then, the department was free to reject his explanation and to hold that the amount represented income from some undisclosed source . 8.8 Further, in cases relating to the issue of source of demonetized currency, Hon'ble High Courts of Patna and Calcutta in ChunilalRastogi vs. CIT [1955] 28 ITR 341 (Pat.), Anil Kumar Singh vs. CIT [1972] 84 ITR 307 (Cal.) and M. L. Tewary vs. CIT [1955] 27 ITR 630 (PAT.), have respectively held that where the assessee could not satisfactorily prove source and nature of amount w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icient withdrawal of case available with her. This aspect is also not disputed and nothing contrary finding against the contention of the assessee placed on record. Considering the records available before the Assessing Officer merely the amount is sufficiently kept in hand and not deposited in the bank account addition cannot be made. The assessee has not offered any income in previous year the addition cannot be made looking to the evidences placed on record. Not only that the Department has not pin pointed any single adverse remark against the record and the evidences placed on record. Assessee gave complete details of source of cash available with the assessee and out of total cash of Rs. 22,73,500/- which shows that the assessee has deposited only Rs. 15,00,000/- on 12.11.2016. The contention of the Department that the time gap is more and the withdrawal are made on various occasions does not warrant that the assessee keep cash on hand but in the absence of any contrary material placed on record the evidence supported by bank statement and gift deed cannot be overlooked. The assessee is not having regular residency in India, the use of cash withdrawal cannot be considered as u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome to the contentions on the ground raised before us. It is evident from the cash flows statement, bank statement of NRO/NRE account placed on record, the affidavit of mother of the assessee confirming for gift to the assessee along with bank account withdrawal from her mother merely the assessee has even though the cash in hand continued withdrawal of money from the bank cannot be a reason to make an addition u/s 69A of the Act. The ld. AR of the assessee relied on the judgment in the case of ITO vs. Shri M. Prabhakar in ITA No. 1727/Hyd/2014 dated 11.11.2016 the finding of the Co-ordinate Bench decision on the ratio is extracted vide para 9 herein below for the shake of brevity:- 9. Considered the rival submissions and perused the material facts on record. The assessee has deposited Rs. 34.70 lakhs during this AY and there is sufficient cash available in his possession as per the cash book and Wealth Tax return submitted by the assessee. The mute question before us is whether the cash deposited was coming out of the cash available with the assessee, which was kept by him for last two years. It was not brought on record why he has withdrawn so much of money and what made the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has deposited the demonetization money at one instant only proves that the assessee is having these much of cash and on account of demonetization she has not choice but to deposit in Bank. In these observations, ground No. 2 raised by the assessee is allowed. 12. In Ground No. 3, the assessee has challenged the confirmation of addition of Rs. 2,00,000/- as unexplained credit entries in bank account u/s 69. 13. The ld. AR for assessee submitted a detailed written submissions which are as under:- Appellant s Humble Submissions: It is humbly submitted the ld. A.O. made the impugned addition of Rs.3,75,400/- as unexplained credit entries in HDFC NRO Account No. 50100085719780 (para no. 16 at page no. 19 of the assessment order) without even issuing a show cause notice to the appellant in this respect otherwise the appellant could have explained it during the assessment proceedings itself. The ld. CIT(A) deleted the addition to the extent of Rs.1,75,400/- but sustained the addition of Rs.2,00,000/- in respect of one credit entry of Rs.2,00,000/- in bank account on 05.01.2017 (para no. 9 9.1 at page no. 22 of the appellate order). As per the appellant s bank stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de this issue to the file of the Assessing Officer to verify the veracity of the record and contention raised by the assessee. Giving sufficient opportunity to the assessee. The AO is directed to decide whether based on the evidences placed on record the addition of Rs. 2,00,000/- is required to be added or not and with this observation the ground no. 3 raised by the assessee is allowed for statistical purposes. 17. During the course of hearing, the ld. AR of the assessee has not pressed the ground No. 4 for which the DR. has no objection. Hence, the same is dismissed as not pressed. 18. As regards the ground No. 5, the ld. AR of the assessee submitted that assessee has claimed benefit on account of HDFC life insurance premium that these information is placed on record by the assessee vide their submission, therefore, the amount is paid by her but denied that these information not placed. But assessee s submission which is also extracted in the assessment order page 14 reads that:- 19. Evidence of deduction claim under section 80C amounting to Rs. 1,00,000/- in respect of HDFC Life Insurance premium is enclosed herewith. 20. Since no books of accounts are requir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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