TMI Blog2023 (3) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... cash withdrawal by the assessee during the financial year under consideration. Therefore, the assessee has not produced any record showing the withdrawal of cash from the bank either during the year under consideration or in the preceding year which could be available with the assessee for making the deposit in the bank account. Accordingly, we do not find any error or illegality in the impugned order of the CIT(A) qua this issue. Appeal of the assessee is dismissed. - ITA No. 572/ALLD/2014 - - - Dated:- 7-3-2023 - SHRI.VIJAY PAL RAO , JUDICIAL MEMBER AND SHRI. RAMIT KOCHAR , ACCOUNTANT MEMBER For the Assessee : None ( Application ) For the Respondent : Sh. Rabin Chaudhari, CIT DR ORDER SHRI VIJAY PAL RAO, J.M.: This appeal by the assessee is directed against the order dated 27.06.2014 which was rectified subsequently while passing the order under section 154 dated 30th September, 2014 and the correct date of order was stated to be 27.08.2014 for the assessment year 2010-11. 2. The assessee has raised the following grounds of appeal:- 1. That in any view of the matter the assessment framed u/s 143(3) of the income tax act vide order dated 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g correct facts and circumstances of the case and the procedure for enhancement was not followed. 7. That in any view of the matter observations and findings for making and confirming the additions and also for enhancing the income made by the two lower authorities in their orders are incorrect and contrary to the actual facts of the case hence liable to be deleted in all fairness and justice. 8. That in any view of the matter interest charged under different sections of the income tax act is highly unjustified and illegal in the facts and circumstances of the case. 9. That in any view of the matter the appellant reserves her right to take any further ground of appeal before hearing of the appeal. 3. The appeal was initially heard on 15.12.2022 and kept as part heard. At the time of hearing on 15.12.2022, the learned AR of the assessee has stated at Bar that the assessee does not press ground no. 1 to 4 of the grounds of appeal and therefore, same may be dismissed as not pressed. The learned DR did not raise any objection if ground no. 1 to 4 of the assessee s appeal are dismissed as not pressed. Accordingly, the ground no. 1 to 4 of the assessee s appeal ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has submitted that the assessee is a partner in partnership firm M/s Kesarwani Zarda Bhandar and receiving remuneration as well as interest from the partnership firm. He has further submitted that the assessee has duly explained the source of the cash found during the course of search and seizure action and also filed the confirmation of Shri. Amit Shyam, her son-in-law in this regard. However, the AO as well as CIT(A) did not accept the said explanation while making the addition on this account. The learned AR has submitted that the AO as well as CIT(A) has refused to accept the availability of the cash with the assessee from her past savings and earnings on the ground that the assessee has incurred approximately Rs. 19 lac on the occasion of last rituals (Bhoj-Terahi) after the death of Late Bhairavnath Kesarwani, the husband of the assessee. The learned AR has submitted that a cash flow chart was submitted by the assessee which was not considered by the authorities below but considered only a cash flow chart submitted for the assessment year 2009-10 which was not showing the correct details and entries of in flow and out flow of cash. The learned AR has also referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 71/- cannot be accepted. 8. We have considered the rival submissions as well as relevant material on record. It is pertinent to note that the assessee has relied upon the cash flow statement at page no. 22 of the paper book which reads as under:- Particulars Opening Balance FY 2009-10 Rs. Add: Withdrawal from Bank- - 1,590,671.00 - Total Cash Inflow Less:Household Expenses in Cash 180,000.00 Less:Cash Deposit in Bank 570,000.00 Total Cash Outflow Closing Balance 750,000.00 840,671.00 9. Thus, the assessee has shown an opening cash balance of Rs. 15,90,671/- and a closing balance of Rs. 8,40,671/- which is a source of availability of cash of Rs. 6,70,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion no. 14 of his statement recorded during assessment proceedings, Shri Amit Kesarwani had stated that the expenditure as per pages of annexures were met by the appellant from the amount withdrawn from her saving bank accounts. In view of the above admission of Shri Amit Kumar Kesarwani, the said seized documents namely annexure A-2/25 and A-2/27 found and seized at the time of search cannot be said to be dumb documents as claimed by the appellant. Accordingly it was held in my appellate order in the case of the appellant for A Y 10-11 dated 27-06-2014 that the AO was justified in holding that approximately Rs 16,15,637/- was incurred in the said Terahavin bhoj by the appellant In view of the explanation given by Shri Amit Kesarwani and the seized documents. After considering the same, the appellant would have no cash balance left as on 31-03-2008 as against Rs 15,90,671/-shown by the appellant in her cash flow statement of F Y 2008- 09. The retuned income of the appellant in the year under appeal was to the tune of Rs 29,25,043/- and the AO has doubted that she does not have opening cash balance of Rs 985,671/-. The returned income of the appellant in each of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) = Rs 24,966/- was incurred by the appellant out of undisclosed sources of income. The closing cash balance as on 31-03-2009 as per cash flow statement of the appellant for F Y 2008-09 was therefore Nil. Accordingly the addition of Rs 24,966/- only on account of house hold expenses is confirmed. The appellant gets relief of Rs (300,000- 24,966)= Rs 275,034/-. 10. In the said finding of the CIT(A) for the assessment year 2009-10, it was held that after considering the expenditure of Rs. 16,15,617/- incurred by assessee on the terahi bhoj ceremony of her late husband, the amount left with the assessee for meeting household expenditure as per cash flow statement was only Rs. 1,25,034/- against which an expenditure on household of Rs. 1,50,000/- was considered and the balance amount of Rs. 24,966/- was treated as expenditure out of undisclosed source of income. Thus, the CIT(A) treated the closing cash balance as on 31st March, 2009, as per the cash flow statement filed by the assessee at nil. These findings of the CIT(A) has not been challenged by the CIT(A) as no appeal was filed. Therefore, by considering these findings for A.Y. 2009-10 the CIT(A) for the year under co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o referred to the written submission dated 31-10-2011 of Shri Amit Kumar Kesarwani, son of assessee's daughter submitted in his case wherein with regard to annexure A-2/25 and A-2/27 found and seized from the residential premises of the appellant, he submitted that the same pertains to the expenditure incurred by the appellant on the final rights performed on the death of late Bhairo Nath Kesarwani who died on 29-10- 2008 and the Bhoj organized by her for Brahamins and others in this connection. From the above the AO concluded that the amount of approximately Rs 19,00,000/- was spent on the Bhoj as accepted by Shri Amit Kumar Kesarwani, son of assessee's daughter. The AO therefore treated the source of Rs 670,000/- as unexplained and made the addition u/s 69A of the Act. In appeal proceedings the appellant submitted his written submissions wherein with regard to the addition of Rs 670,000/- he only stated that the cash found during search was out of cash in hand during the FY 2009-10 as is evident from the cash flow chart submitted by the assessee. The cash flow chart submitted by the appellant for F Y 2008-09 reveals the opening cash balance of Rs 985,671 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time of search in her statement recorded at the time of search u/s 139(4) of the act. Hence the said explanation is rejected. Further I am in agreement with the AO that if the explanation about the source of cash of Rs 670,000/- found at the time of search given by the appellant before the AO in assessment proceedings as discussed above been true, the appellant could very well have given the same explanation in her statement recorded at the time of search u/s 139(4) of the Act. Therefore in view of the above discussion, I hold that the explanation given by the appellant before the AO in assessment proceedings about the source of cash of Rs 670,000/- found during the course of search was an afterthought and not supported with any evidence, and hence rejected. After including the cash expenditure of Rs 16,15,637/- on Terahavin bhoj in the revised cash flow statement of the appellant of FY 2008-09 as above, the resulting cash balance as on 31-03-2009 was Nil as also held in my appellate order in the case of the appellant for AY 2009-10. Therefore the appellant had no cash in hand available as on 01-04-2009. With cash in hand as on 01-04-2009 in the revised cash flow char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the CIT(A). 14. We have considered the rival submissions as well as relevant material on record. Though, the original order of the CIT(A) bears a date of order as 27.06.2014 however, subsequently a rectification order was passed by the CIT(A) dated 30.09.2014 as under:- OFFICE OF THE OSD COMMISSIONER OF INCOME TAX (APPELAS) ALLAHABAD Date of order 30/09/2014 Name Designation of the Officer who made the Order Appealed against OSD CIT(A), Allahabad Name and Address of the Appellant Smt. Kamala Devi, 57 Phaphamau, Allahabad, Allahabad PAN ABNPD4501F Assessment Year 2010-11 Section and date of the order which is rectified u/s 154 U/s 250(6) of IT Act, dated 27.06.2014 Present for the Appellant Sh. Sanjay Gupta, FCA Present for the Department None APPELLATE ORDER AND GROUNDS OF DECISION Appeal filed by Smt. Kamal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it of Rs 570,000/- in her Bank account in Allahabad Bank S/B account No. 109238 as reflected in the cash flow chart of FY 2009-10 submitted by the appellant before the AO. Accordingly, vide letter dated 18-07-2014, the undersigned issued a notice of enhancement of income of the appellant by Rs 570,000/- and sought the reply by 30-07-2014. The said notice of enhancement of income dated 18-07-2014 is reproduced hereunder:- Sub:- Appeal proceedings in your case for AY 2010-11, notice for enhancement of income by Rs 570,000/-,Reg:- While deciding your appeal for AY 2009-10 it was noticed that you had not disclosed in the cash flow statement of F Y 2008-09, the expenditure incurred by you on the Terahavin Bhoj of Late Bhairo Nath Kesarwani in the month of Dec, 2008. The said expenditure on Terahavin Bhoj amounting to Rs 16,15,637/- was reflected in the annexure A-2/25 found and seized during the search and seizure proceedings conducted on the Kesarwani Zarda Bhandar group on 27-08-09. This fact was confirmed by Sh Amit Kesarwani in his written submissions dated 31-10-2011 filed by him in his own case, as mentioned in the assessment order in your case for AY 2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cash of Rs. 5,70,000/- deposited in the bank account of the assessee. We find that the assessee has deposited a cash of Rs. 5,70,000/- in three tranches as under:- i. 28th June, 2009 Rs. 2,00,000/- ii. 24th June, 2009 Rs. 1,10,000/- iii. 29th June, 2009 Rs. 2,60,000/- Total 5,70,000/- 17. From the bank statement of the assessee, it transpires that there is no cash withdrawal by the assessee during the financial year under consideration. Therefore, the assessee has not produced any record showing the withdrawal of cash from the bank either during the year under consideration or in the preceding year which could be available with the assessee for making the deposit of Rs. 5,70,000/- in the bank account. Accordingly, in the facts and circumstances of the case as discussed above, we do not find any error or illegality in the impugned order of the CIT(A) qua this issue. 18. In the result, the appeal of the assessee is dismissed. Order pronounced on 07.03.2023 at Allahabad, U.P. - - TaxTMI - TM ..... X X X X Extracts X X X X X X X X Extracts X X X X
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