TMI Blog2023 (1) TMI 854X X X X Extracts X X X X X X X X Extracts X X X X ..... . Accordingly, no reason to interfere in the order of the learned CIT-A as far as this contention of the learned AR is concerned. Assessee has received cash from two parties for making the investment in the IPO which was deposited in the bank account of the assessee - This contention was raised by the assessee 1st time before the learnedCIT(A) in the rejoinder filed by her against the remand report furnished by the AO. As such this contention was not raised by the assessee during the assessment and remand proceedings. Documents filed by the learned AR were considered by the learned CIT-A as the documents prepared afterthought to justify the deposit of cash in the bank account and therefore the same were rejected. However, in the interest of justice and fair play, we inclined to give one more opportunity to the assessee by setting aside this issue to the file of the AO for fresh adjudication as per the provisions of law. Even at the time of hearing, the learned DR did not oppose if the matter is set aside to the file of the AO for fresh adjudication as per the provisions of law. Thus, the contention raised by the learned AR is set aside to the file of the AO for fresh adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Income Tax(Appeals), Gandhinagar, Ahmedabad dated 26/04/2019 arising in the matter of assessment order passed under s.144 r.w.s. 147of the Income Tax Act, 1961 (here-in-after referred to as the Act ) relevant to the Assessment Year 2010-11. 2. The assessee has raised following grounds of appeal: 1. In law and in the facts and circumstances of the appellant's case, learned CIT(A) has grossly erred in dismissing Appellant's grounds of appeal challenging validity of reopening carried out u/s 143(3) r.w.s 147. Ld CIT(A) ought to have appreciated that reopening carried out merely on the basis of information regarding cash deposited in bank account cannot be basis for reopening the case of the Appellant and reliance is placed by Appellant on the decision of Hon'ble Ahmedabad Tribunal in case of Smt Mariyam Ismail Rajwani in ITA No: 676/Ahd/2016 dated 09/08/2016 in support of such contention. 2. In the law and in the facts and circumstances of the appellant's case, learned CIT(A) has grossly erred in confirming addition made towards cash deposited in HDFC bank account at Rs.12,79,000/-. 3. In law and in the facts and circumstances of the appellant' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 7 are that the learned CIT(A) erred in confirming the addition of Rs. 12,79,000/- on account of cash deposits in bank by treating the same as unexplained cash credit u/s 68 of the Act. 5. The facts in brief are that the assessee is an individual and for the year under consideration has not filed return of income under the provision of section 139 of the Act. The AO from the AIR/CIB information available on ITD portal found that the assessee deposited cash amounting to Rs. 23,29,100/- in saving bank account during the period of April 2009 to March 2010. Thus, the AO initiated income escapement proceeding by issuing notice under section 148 of the Act dated 29-03-2017. The assessee failed to furnish return of income under section 148 of the Act and also failed to comply with several notices issued under the provision of section 142(1) of the Act. Thus, the AO in absence of any reply from the assessee treated the cash deposit of Rs. 23,29,100/- as unexplained cash credit under section 68 of the Act and assessed the income of the assessee at Rs. 23,29,100/- in the assessment order under section 144r.w.s. 147 of the Act. 6. The aggrieved assessee preferred an appeal before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so cannot be extended. 10. The assessee in rejoinder submitted that that she is not maintaining regular books of account therefore explaining in precise the source of cash deposit is not possible. However, she believes that the cash was deposited out of earlier withdrawal and agricultural income from ancestral land. Further, the observation of the AO that no cash was withdrawnfrom HDFC bank is wrong. The narration in bank statement being Chq Paid Unjha Stattion represent cash withdrawal and not the cheque transfer. Therefore, the benefit of peak credit should be extended. The assessee also contended that she analyzed detail of earlier year and on the basis of transactions in her bank account, she worked out the opening cash balance at Rs. 2,08,900/- only. Therefore,the same needs to be considered while working out the balance of peak credit. 11. The learned CIT(A) after considering facts in totality partially confirmed the addition made by the AO by observing as under: 6.3 During the course of appellate hearing and in connection with rejoinder to the remand report, the appellant along with her joint owner in KarurVyasya bank being Smt. Upsanaben Patel has filed submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing first name in KarurVysya Bank and the appellant is having the second name, hence such bank account is exclusively required to be considered in the hands of Smt Upsanaben as the appellant has failed to submit any evidences that such account is jointly operated by both the persons and the appellant was already having her independent bank account. The AO at para 4 of the remand report has also stated that bank account with KarurVysya Bank is jointly held with Smt. Upsanaben and if she accepts the ownership of cash deposit in such bank account, consequential relief may be granted in the case of appellant. For the reasons stated herein above and discussion made while passing appellate order of Smt Upsanaben Patel, entire cash deposit in bank account with KarurVysya is considered in her case and addition made by the AO to the extent of Rs.10,50,100/- is directed to be deleted. 6.6 So far as alternate, claim of the appellant that as there are cash withdrawals and cash deposits in bank account, hence only peak need to be taxed, it is observed that the AO has objected to it by contending that as there are no withdrawals from HDFC account, no benefit of peak can be given to the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low that the assessee was not even in the possession of agricultural land. The agricultural land as evident from form 8-A, it was noticed that such piece of land admeasuring 5.5 vigha was owned by her father-in-law along with 6 other co-owners. Three co-owners of the impugned land have already claimed to have deposited cash in their bank accounts out of the income from the agricultural operations from such piece of land. In such facts and circumstances, it is hard to believe the version of the learned counsel for the assessee. The onus lies upon the assessee to justify her contention based on the materials/documents on record about the agricultural operations carried out by her. Accordingly, I do not find any reason to interfere in the order of the learned CIT-A as far as this contention of the learned AR is concerned. 17. The 2nd contention of the learned AR of the assessee was that she has received cashfrom two parties for making the investment in the IPO which was deposited in the bank account of the assessee. This contention was raised by the assessee 1st time before the learnedCIT(A) in the rejoinder filed by her against the remand report furnished by the AO. As such this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aside to the file of the AO for fresh adjudication as per the provisions of law. 19. It was also contended by the learned AR that there was opening cash balance as on 1st April 2009 of Rs. 2,08,900/- which was utilized for depositing the bank account in the year under consideration. Admittedly, there was no documentary evidence furnished by the assessee in support of the opening cash balance therefore it is hard to believe that there was cash balance available with the assessee. But, considering the amount involved as the opening balance, the possibility of having the same out of the past savings cannot be ruled out. Accordingly, we direct the AO to give the benefit of opening balance of Rs. 2,08,900/- if any addition is sustained in the hands of the assessee on account of cash deposits in the year under consideration. 20. As regards the alternate contention of the learned AR to take the peak balance of cash deposit as the income of the assessee, in this regard we find that the learned AR has filed the working which is placed on pages 4 to 5 of the paper book. According to the learned AR there was cash withdrawal of H 68,800/-only in the year under consideration which was av ..... X X X X Extracts X X X X X X X X Extracts X X X X
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