TMI Blog2022 (8) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. both in cheque and cash. In view of the above, it is clear that FMV of flat sold as disclosed in the return of income filed by the assessee. Therefore, cash receipt on sale of flat on 14.08.2013 cannot be brushed aside as untrue. Why the delay in depositing the above cash receipt on account of sale of flat? - In respect of the inordinate delay in depositing the cash into the bank account, the argument of the assessee is that the revenue has not brought anything on record to suggest that the cash was utilised or put to use in any other manner. It is further stated that the assessee was not present in India to spend the money and same was lying with her father. As stated that only on annual visits to India, the assessee used to spend money for her personal purposes. The balance cash remaining with her father was deposited into bank account after demonetization (After assessee specifically came down to India for depositing balance cash which was available with her father). The above submission of the assessee on surrounding circumstances, cannot be stated to be untrue. The sale of flat itself was through assessee s father, the Power of Attorney Holder. The cash was recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o explain the source of these cash deposits. Accordingly, the A.O. brought to tax amount of cash deposits amounting to Rs.14,41,500 u/s 69A of the I.T.Act. The gist of the A.O. s reasoning read as follows:- The value of the property as per registered sale deed 14.08.2013 was Rs.27,00,000/- and the source remains explained only to the extent of Rs.27,00,000/- which is received through cheque. Further, assessee has not furnished confirmation from the buyer for having paid sale consideration ofRs.12,00,000/- over and above the registered value to consider her claim. Cash book submitted by the assessee is not reliable since the assessee has not shown cash in hand in the returns filed in any of the assessment years. It is also not clear as to why the amount was not deposited immediately and why it was kept in hand and deposited during demonetisation period. The assessee claimed that out of Rs.18,00,000/- received she has spent only Rs.3,59,000/- since financial year 2013-14 and deposited cash of Rs.14,41,000/- is not reliable since on many occasions the assessee has incurred expenditure through cash as could be seen from the cash book prepared by her. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant is further examined. It is seen that the appellant is revealing these facts only after the cash deposits during demonetization period were enquired into. The L TCG declared for AY 2014-15 did not result in any taxable income. There was no opportunity for revenue to verify the difference between the sale consideration reflected by the appellant and the understated sale consideration in the hand of the buyer of the property. To this extent the appellant has abetted the evasion of correct amount of stamp duty by registering a property worth Rs.44,70,000/- at only Rs.27,00,000/-. The appellant has also enabled and abetted the evasion of taxable income of Rs.17,70,000/- in the hands of the buyer. The appellant cannot now be allowed to plead ignorance of the offences committed in AY 2014-15 to explain the cash deposit made during AY 2017-18. Moreover, the maintenance of cash by the appellant or on behalf of the appellant for a period of; three years is also not considered reasonable and acceptable. The appellant was not prevented from depositing the cash amounts into the bank account in August 2013 itself. Why this was not done is unexplainable. On account of the cumula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case. 8. The authorities below failed to appreciate that the provisions of section 69A of the Act were not attracted, since the source of the cash deposited, has been explained as arising out of capital asset and already offered in the return of income, which has not been rebutted by the revenue, on the facts and circumstances of the case. 9. The appellant denies herself to pay interest under section 234B of Rs. 3,62,571/- and under section 234D of Rs.1,944/- in view of the fact there is no additional liability to additional tax as determined by the learned Assessing Officer. 10. The Appellant craves leave to add, alter, amend, substitute, change and delete any of the grounds of appeal. 11. For the above and other grounds that may be urged at the time of hearing of the appeal, the Appellant prays that the appeal may be allowed and justice rendered. 6. Grounds 1, 2, 10 and 11 are general in nature and no specific adjudication is called for, hence, grounds 1, 2, 10 and 11 are dismissed. The ground 9 is with regard to levy of interest u/s 234B and 234D of the I.T.Act. The above grounds are consequential and no specific adjudication is called for, hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value and paid the balance consideration in cash, after deducting Rs.30,000/- on account of expenditure incurred during registration. Thus, according to the learned AR, the assessee has received Rs. 17,70,000/- in cash and the balance of Rs.27 lacs through banking channels, totalling to Rs.44,70,000/-. It was stated that the assessee has computed the long term capital loss and offered the entire receipts of Rs. 44.70 lacs as consideration received. It was submitted that the cash received from the sale of the house property was available with the father of the assessee and not deposited into the bank account and a small portion of the same was used for personal uses of the assessee on her visit to India. The balance cash which was lying with the father of the assessee was deposited during the demonetisation period. 8. The DR on the other hand has contended that the assessee has not filed confirmation from the purchaser that the sale consideration was partly paid in cash, which was the reason why the A.O. has made the additions in the first place. It was also argued that the holding of the cash for over three years was unlikely and explanation of the assessee should not be accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale of paddy, are not established by proper evidence. In this context, it s useful to refer to a judgement of this court in S R VENKA TA RATNAM v CIT, KARNATAKA -1 AND ANOTHER reported in 127 ITR 807, where a single judge held; Once the petitioner-assessee disclosed the source as having come from the withdrawal made on a given date from a given bank, it was not for respondents Nos. 1 and 2 to concern themselves with what the assessee did with that money, i.e., whether he had kept the same in his house or utilised the services of a bank by depositing the same. The ITO had only two choices before him. One was to reject the explanation as not believable for the reason that on his investigation no such pigmy deposit was ever made in the bank. In the alternative he ought to have called upon the assessee-petitioner to substantiate his claim by documentary evidence. Having exercised neither of the choices, it was not open to the ITO to merely surmise that it would not be probable for the assessee to keep Rs.15,000 unutilised for a period of two years. The ITO should have given an opportunity to the assessee to substantiate his assertion as to the source of his capital outlay. 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee nor has any investments been made in her name during the intervening period. Hence, it was submitted that the only preponderance is that the cash received from sale of property was available for making deposit into the bank account. 11. I have heard rival submissions and perused the material on record. The undisputed fact is that flat belonging to the assessee has been sold as per the registered deed dated 14.08.2013. According to the assessee, this flat was sold for Rs.44,70,000, whereas, the sale deed reflected only an amount of Rs.27,00,000. The assessee claims that she has received balance consideration of Rs.17,70,000 in cash. It is an undisputed fact that the assessee has entered into a sale agreement of the said flat for an amount of Rs.39,00,000 plus additional consideration of Rs.6,00,000, which is reflected in the agreement of sale dated 24.04.2013. Copy of the sale agreement is on record at pages 95 to 107 of the paper book filed by the assessee. It is an undisputed fact that the property sold by the assessee and her mother in the very same apartment complex in the earlier AY 2013-14 are in the range of 44 lacs (for each of the flats). The entire sale considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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