TMI Blog2023 (1) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... further allow benefit of doubt of Rs. 2.00 lacks, which the assessee may have received from her close relative and other family member on various occasions. Thus, the assessee is given further relief of 5.50 lacks and remaining addition of Rs. 4,88,785/- (10,38,785 5,50,000) is upheld. In the result, the original ground No.1 of the appeal is partly allowed. - ITA No. 331/Srt/2019 - - - Dated:- 16-1-2023 - Shri Pawan Singh, Judicial Member For the Appellant : Shri Rushi Parekh, AR For the Respondent : Shri Vinod Kumar, Sr. DR ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of learned Commissioner of Income Tax (Appeals), Valsad (in short, the ld. CIT(A) dated 12/04/2019 for the Assessment year (AY) 2010-11. The assessee has raised following grounds of appeal: 1. That CIT(A) Appeal erred in confirming addition of Rs. 10,38,785/-. 2. That appellant craves leave to add, amend, alter, vary and/or withdraw any or all the above grounds of Appeal. Vide application dated 07/12/2012, the assessee has raised following additional grounds of appeal: 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome of Rs. 3,63,260/-. The assessee furnished record of agriculture holding in the form No. 7/12 and 8A, and vouchers of sales of mangos. The assessee also furnished cash flow statement. The assesse also submitted that she received gift from her relative to finance the education of her daughter in law in abroad. To substantiate such fact, copy of demand draft of fees payment of her daughter in law was furnished. The assessee also stated that she received gift of Rs. 3.50 lacs from her brother in law namely Salim Chhajumiya Usmaniya. The reply of assessee was considered by the Assessing Officer and the same was not accepted. The Assessing Officer on perusal of copy of land record in the form of 7/12 and 8A, held that the assessee has no share in the land. The bills of sales of Mango is not in her name. There is no address of seller and buyer of such bills. So far as the gift disclosed by assessee of Rs. 3.50 lacs from Salim Chhajumiya Usmaniya, the assessee has not furnished any supporting evidence, therefore, the gift was also not accepted as genuine by assessing officer. The Assessing Officer recorded that the assessee was given another opportunity to explain as to why the total c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign gift received from her son. The assessee further withdrawn Rs. 21,300/- prior to cash deposit of Rs. 2,78,585/-. The assessee also withdrawn Rs. 3,44,300/- on 30/06/2009 to support cash deposit of Rs. 82,000/- on 15/06/2009. The assessee received cash gift of Rs. 3.50 lacs from her brother in law which further accumulates the cash balance of Rs. 7,62,438/-. The assessee made deposit of Rs. 6,75,000/- and Rs. 85,000/- on 02/07/2009 and 03/07/2009. The assessee received remittance of Rs. 3,44,250/- on 02/06/2009 from her son Asmat Saiyad who is British Citizen. On the basis of such contention, the assessee justified the cash deposit which was either on account of withdrawal or redeposit. The assessee claimed cash withdrawal of Rs. 6,63,023/- and cash sales of milk in dairy farming of Rs. 95,926/-, thus a total of Rs. 7,58,949/- was claimed to be justified. Further a cash gift of Rs. 3.50 lacs were received from brother in law of assessee. To substantiate cash gift, form her brother in law, filed notarised confirmation. The assessee further stated that she has furnished name, address of donor and made request to issue notice under Section 133(6) or 131 of the Act to examine s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained, resultantly dismissed. Further aggrieved, the assessee has filed the present appeal before this Tribunal. 6. I have heard the submissions of learned Authorised Representative (ld. AR) of the assessee and the learned Senior Departmental Representative (ld. Sr. DR) for the revenue and have gone through the orders of lower authorities carefully. The ld. AR of the assessee submits that the case of assessee was reopened under Section 147 of the Act on basis of information about the cash deposit in savings bank account with bank of Baroda. In response to notice issued by the Assessing Officer, the assessee submitted that she has income of dairy farming and while filing return of income, the assessee offered income of Rs. 95,670/- on account of agricultural income. The assessee also filed evidence of gift from relative of Rs. 3.50 lacs. The deposits in the bank was on account of withdrawal and redeposit within an interval of 30 to 45 days. Such cash was not kept for a long period at home as the assessee is residing in a village from where she is not frequently using banking facility. The cash was kept at her home as her husband was not keeping good health. The gift of Rs. 3.50 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer has not disposed of the objection against the reopening, thus, the Assessing Officer passed the assessment order in violation of principle laid down by the Hon ble Apex Court in GKN Driveshaft (I) Ltd. 259 ITR 19 (SC). The ld. AR further submits that the entire cash deposit cannot be treated as income of assessee, as has been held in a series of decisions by the Tribunal including in case of CIT Vs Indo Aram Air Services (2016) 283 CTR 92 (Delhi) and Delhi Tribunal in Bir Bahadur Singh Sijwali (supra). The ld. AR of the assessee also relied on the following case laws: (i) Amrik Singh Vs ITO 159 ITO 329 (Asr) (ii) Praveen Kumar Jain Vs ITO 1331/D/2015 dated 22/01/2015 (iii) Munni Devi ITA No. 3534/Del/2014 dated 15/09/2016 (iv) Parmitti Setti Setharamamma Vs CIT 57 ITR 532 (SC) 9. On the other hand, the ld. Sr. DR for the revenue supported the order of ld. CIT(A). The ld. Sr. DR for the revenue submits that the cash deposit of Rs. 2,78,585/- on 02/06/2009 cannot be accepted as the deposit out of opening cash in hand as the assessee herself has withdrawn Rs. 21,000/- on 02/05/2009 which clearly shows that the assessee was not having such cash balance available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r finding that the assessee has not furnished any explanation and in absence of explanation, the entire deposits in the bank account of assessee was treated as unexplained income. Before the ld. CIT(A), the assessee filed detailed written submissions which I have recorded above. I find that the ld. CIT(A) after considering the submission of assessee, granted partial relief to the assessee with regard to deposit of Rs. 82,000/- deposited on 15/06/2009 and remaining addition to the extent of Rs. 10,38,785/- was upheld. Before me, the ld. AR of the assessee vehemently tried to justify that the assessee was having sufficient cash balance of Rs. 6,75,000/- on 16/06/2009. Further the assessee has received a gift of Rs. 3.50 lacs from her bother in law. To substantiate the genuineness of such gift, the assessee filed confirmation of donor. In the confirmation, the donor has confirmed that such gift was given to assessee to meet out the education expenses of her daughter in law. The assessing officer has not investigated fact independently before disallowing the claim of Gift from close relative. Considering the confirmation of the donor I allow the Gift as genuine. So far as other deposit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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