TMI Blog2023 (5) TMI 1204X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee that money was kept for the purpose of treatment of his brother was also unproved, because no evidence has been filed to justify his arguments and further, there was no proof as to how much was spent for treatment and how much balance was available with the assessee. It is difficult to accept the evidences filed by the assessee to prove the source for cash deposits during demonetization period - Decided against assessee. - ITA No.: 102/Chny/2023 - - - Dated:- 12-4-2023 - SHRI MAHAVIR SINGH, HON BLE VICE PRESIDENT AND SHRI MANJUNATHA. G, HON BLE ACCOUNTANT MEMBER For the Appellant : Shri. Anandd Babunath, FCA For the Respondent : Shri. P. Sajit Kumar, JCIT ORDER PER MANJUNATHA. G, ACCOUNTANT MEMBER: This appeal filed by the assessee is directed against the order passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi, dated 07.06.2022 and pertains to assessment year 2017-18. 2. At the outset, we find that there is a delay of 177 days in filing of appeal before the Tribunal, for which a petition for condonation of delay along with affidavit explaining said delay has been filed. The ld. Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght to have noted that his powers being coterminous with that of the Ld. AO, the Ld. CIT(A) could have examined or caused the Ld. AO to examine Smt. Pakkiriammal about the factum of gift given by her to the appellant. D. For that the Ld. CIT(A) and the Ld. AO failed to consider the notarized confirmation letter of appellant's sister-in-law (Smt. Pakkiriammal - brother's wife) that she had withdrawn Rs.50,00,000/- from her bank account with Axis Bank (Customer ID: 841300393) on 29.01.2013 and gave it to the assessee as gift out of love and affection and for being supportive to her, at every stage, particularly, at the time of her husband's bone marrow cancer treatment. E. For that the Ld. CIT(A) ought to have noted that where there is a doubt in the mind of the AO as to whether the cash withdrawal by the appellant's sister-in-law was given to the appellant or not, the benefit of doubt should be in favour of the appellant, particularly, when there was nothing on record to disprove the notarized affidavit of Smt. Pakkiriammal. F. For that the Ld. CIT(A) failed to note that the cash received by the appellant was kept for his brother's bone-marrow c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... later my sister-in-law Smt. Pakkiriammal has withdrawn money from her bank account on 29.01.2013 and gave a gift to the assessee. The source for cash deposit is out of gift received from my sister-in-law. Therefore, he submitted that question of making additions does not arise. 7. The AO, however was not convinced with explanation furnished by the assessee and according to the AO, the claim of the assessee that he had received gift from his sister-in-law, out of sale proceeds of agricultural land in the year 2013 is unsubstantiated and further, to make believe story to circumvent cash deposits made during demonetization period. Therefore, rejected arguments of the assessee and made additions towards cash deposits in Axis bank as unexplained money of the assessee. The relevant findings of the AO are as under: 3.3 Submission made by the assessee was taken into account Documents furnished by the assessee were verified and the observations were noted as under. Assessee s submissions made is devoid of merit for the following reasons:- 3.3.1 The documents furnished by the assessee were verified and it IS ODS that a Sale deed dt. 21.02.2012 has been executed between Smt. Pak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epted that out of the sale proceeds received from sale of property and after resolving family issues, share of the assessee could have been either transferred to his account either by way of cheque, through net banking etc., since both Smt. Pakkiriammal and assessee are having bank accounts with the same bank and branch i.e Axis Bank. There is no necessity for withdrawal of cash and redepositing them during demonetization period. 3. On which date the said amount was given to the assessee and from whom, assessee had received the impugned cash of Rs. 48,59,000/- was not furnished by the assessee. 4. If the assessee goes to claim that he had received cash of Rs. 48,59,000/- from Smt. Pakkiriammal out of the cash withdrawals of Rs. 70 lakhs being made during financial year 2012-13-and Rs. 9,50,000/- on 8.4.2019 from her sb alc. number 941010053682747. Why the impugned cash of Rs. 48,59,000/- was not immediately deposited in the bank account. It is to be noted that if the assessee was in possession of cash of Rs.48,59,000/-, why assessee still choose to withdraw cash of Rs. 1,500 to Rs.10,000/- on various dates during the financial year 2016-17 from sb account number 9090100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Being aggrieved by the assessment order, the assessee preferred an appeal before the CIT(A). Before the CIT(A), the assessee has reiterated his arguments taken before the AO and submitted that he and his sister-in-law has sold an ancestral property and shared the consideration. Initially, the sale proceed was deposited in joint account with sister-in-law and subsequently, amount has been withdrawn from said account and his sister-in-law gave gift to the assessee. The source for cash deposits into bank account is out of amount received from sister-in-law. Therefore, submitted that the AO has erred in ignoring evidences filed by the assessee and made additions. The ld. CIT(A), after considering relevant submissions of the assessee and also by following the Doctrine of preponderance of probabilities, opined that the appellant has failed to substantiate cash deposits aggregating to Rs. 48,59,000/- in bank account with known source of income and thus, rejected arguments of the assessee and sustained additions made by the AO. The relevant findings of the CIT(A) are as under: I have considered the arguments of the Appellant and also findings of the AO. The Appellant has made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh the two may often intermingle. The impossible is weeded out at the first stage and the improbable at the second. Within the wide range of probabilities, the Court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issues7 like those which affect the status of parties demand a closer scrutiny than those like the loan on promissory note. The nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged. The normal rule which governs civil proceedings is that a fact can be said to be established if it is proved by a preponderance of probabilities and not the one relating to beyond reasonable doubt. In this case, it is evident from the facts that preponderance of probability is working against the Appellant. The Appellant has failed to substantiate that the cash aggregating to Rs.48,59,000/- received by him from his sister-in-law in January 2013 was actually kept in hand all these years to be subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had made cash deposits during demonetization period into his savings bank account maintained with Axis Bank, Medavakkam Branch. The assessee had made first cash deposit on 15.11.2016 amounting to Rs. 44,50,000/- and second cash deposit on 01.12.2016 for Rs. 4,09,000/-. The assessee claims that source for cash deposits is out of gift received from her sister-in-law Smt. Pakkiriammal on 29.01.2013. For this purpose, the appellant had filed a copy of bank statement of his sister-in-law and gift deed for evidencing gift of Rs. 50 lakhs on 29.01.2013. We have gone through evidences filed by the assessee, including bank statement and gift deed of Smt. Pakkiriammal and the timing of cash deposits and we find that there is a gap of more than 3 years from the date of Smt. Pakkiriammal withdrawn cash from her bank account and deposit made by the assessee to his bank account during demonetization period. Since, there is a huge gap between withdrawal and deposit, the assessee needs to explain with necessary evidences the gap between date of withdrawal and date of deposits. Initially, the assessee claims to have received his share of amount towards ancestral property. The assessee has change ..... X X X X Extracts X X X X X X X X Extracts X X X X
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