TMI Blog2023 (3) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... 023 - Smt. Diva Singh, Judicial Member And Shri Vikram Singh Yadav, Accountant Member For the Revenue : Smt. Amanpreet Kaur, Sr. DR For the Assessee : Shri Ashwani Kumar, C.A. ORDER PER DIVA SINGH The present appeal has been filed by the Revenue wherein the correctness of the order dated 27.09.2021 of CIT(A)-5 Ludhiana pertaining to 2017-18 assessment year is assailed on the following grounds : 1. Whether on the facts and circumstances of the case, the Ld. CIT(A) has erred in deleting the addition without considering the facts that neither the assessee submitted the confirmations of persons from whom cash was received nor produced them during the assessment proceeding after many opportunities provided to the assessee. 2. The Appellant craves leave to add , amend, modify, vary, omit or substitute any of the aforesaid grounds of appeal any time before or at the time of hearing of the appeal. 2. Inviting attention to the assessment order, the ld. Sr.DR submitted that the assessee was required to explain the cash deposits during the demonetization period. The reply of the assessee filed before the AO was considered to be not acceptable. 2.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee over a period of time is a fact not in dispute. It was submitted that it is old admitted surrendered income. Appropriate entries in the respective accounts over the years right from 2013-14 assessment year have been made and they demonstrate this fact. Accordingly, it was his prayer that the addition on facts may be deleted. Reliance was placed upon decision of the Apex Court in the case of Ashish Plastic Industries Vs ACIT 373 ITR 45 (S.C) so as to submit that the facts are identical as the issue for consideration is that it would amount to double taxation as the assessee herein has already paid due taxes on it. 4. We have heard the rival submissions and perused the material available on record. On a consideration of the factual matrix as available on record, we find that the appeal of the Revenue has to be dismissed. Before arriving at this conclusion, we have taken into consideration not only the facts of the present case and the finding arrived at but also the position of law as considered by the Apex Court referred to for our consideration by the ld. AR. We are further guided by the fact that the factual reasons for deleting the addition as brought on record by the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long with details of currency received. The assessee was also asked to produce those persons for examination. It was also asked that the assessee was maintaining cash-in-hand of less than Rs. 2 lacs in Financial Year 2014-15 2015-16 but in Financial Year 2016-17, the 'cash-inhand was above Rs. 25 lacs in the month of July, 2016 to November, 2016. As per the AO, no reply was received and then a final show-cause notice dated 29.11.2019 was given which is reproduced in the assessment order where reference of earlier notice and reply was mentioned and assessee was showcause as to why the cash amounting to Rs. 80,94,250/-credited in the bank account during the demonetization period should not be considered as unexplained money and charged as income u/s 69A of the Income Tax Act, 1961. The reply dated 03.12.2019 filed by the assessee is reproduced in the assessment order where the assessee submitted that the with regard to the name address no such details were available with the assessee. It was further submitted that the additional incomes of Rs. 50 lacs during the assessment year 2013-14 and Rs.185 lacs during the assessment year 2014-15 were duly declared in the return filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s received, on one side it is mentioned that no such details are readily available with the assessee at this moment and later on it is mentioned the details of the parties from whom such amounts were received, were not maintained . It is further mentioned by the AO that the assessee neither submitted confirmation of the persons from whom the cash was received nor produced them during the assessment proceedings, thus it is only an afterthought of the assessee and the assessee has tried to get the benefit of old admitted surrender. As per the AO, the assessee has claimed receivables from the trading in textiles but did not provide even VAT or TIN No. and it was beyond probability that receivables would be received from unknown persons in the months before demonetization and the assessee would deposit the same in the SBNs. The justification for late deposit being laziness on the part of the assessee was also not found tenable. The AO by placing reliance in the case of CIT vs. Miscellaneous Application Unnerikutty (1985) 154 ITR 844 (Kerala) held that the assessee could not explain the source of cash deposits and the same are considered to be unexplained money u/s 69A of the Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee has time and again reiterated before the AO that the cash deposit was out of receivables shown in the asset side of the balance sheet. As per the AR, these receivables were already taxed at the time of surrender of income in the earlier years accepted by the then AO, also during the course of assessment statement of affairs were submitted which clearly depicts the amount outstanding as receivables. The AR argued that when the said amount have already been declared by the appellant and tax thereon has been paid, then there is no good reason to doubt the said transaction especially when the said sum has already been accepted by the department in assessee's own case. As per the AR the cash deposit from old receipts cannot be said to be unexplained which are duly recorded in the books maintained by the assessee which were liquidated in this year and cash was deposited out of said source. The AR referred to various case laws in support of his contention and argued that as per the tax laws jurisprudence, a sum when already offered to tax can in no circumstances be taxed again and same would tantamount to double taxation. As per the AR, in such circumstances no deeming provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance sheet as on 31.03.2013 was also filled alongwith the letter dated 02.02.2016 where the amount of Rs. 38,82,500/- was shown on the assets side as 'other assets due to surrender' (with opening balance 0.00). The fact of surrender of Rs. 50 Lakh on account of income earned from trading of textile fabrics as per the statement of the assessee and offering of this income as additional income over and about the normal income has also been mentioned in the assessment order dated 23.03.2016 passed under section 153A for assessment year 2013-14. Similarly from the assessment record for Assessment Year 2014-15, it is seen that during the Assessment year 2014-15 the assessee has declared the sum of Rs. 18500000 as income offered u/s 132(4) under the head 'Other Income(s)' and in reply to the query by the AO, the details were submitted vide letter dated 17.03.2016 as under:- Surrender on account of (A.Y. 2014-15) Amount (In Rs.) Diamond 2235000 Receivables/other valuables 4483150 Investment in Sobhagia Clothing co. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it has to be assumed that cash received is out of these receivables. This is not a case of creating of new asset by the assessee and rather the receivables appearing on the asset side of balance sheet have change to cash. Thus, it is not a case that assessee is found to be owner of any unaccounted asset making it liable for addition u/s 69A. Once the overall surrender its components have been accepted in past, then it cannot be reopened now, because a certainty has to be reached for the assessee. Tax has already been paid on this sum, therefore charging the tax again would amount to double taxation. Therefore, to conclude, from the very beginning, the assessee has explained the source of cash deposit as 'liquidation of receivables' and the existence of the receivables is not in doubt as these were part of surrendered income u/s 132(4), duly assessed during the assessment year 2013-14 2014-15. This is not a case of creation of new asset by the assessee, rather the receivables were appearing on the asset side of the balance sheet and it has changed the shape as cash returned from those receivables without affecting the overall figure of assets. One form of assets has cha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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