TMI Blog2023 (5) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of assessee. The concept of the deemed assessee cannot be sustained as per the explanation of section 159 and 160 r.w.s 2(7) - assessee is not liable for payment of tax related to sale of property which belong to his father. The source of cash deposited in bank accounts is well explained considering the cash trial of the assessee. AO had only considered the cash deposit. Deposit of cash was duly explained during the remand before the ld. AO. Entire issue was explained before both the lower authorities by the assessee. DR has not submitted any contrary fact or any judgment against the submission of the ld. AR. So, the addition made by the ld. AO is quashed. Decided in favour of assessee. - I.T.A. No.22/Asr/2023 - - - Dated:- 24-4-2023 - DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER For the Appellant : Sh. Rohit Kapoor, CA. For the Respondent : Smt. Rajinder Kaur, CIT. DR ORDER Per: Anikesh Banerjee, JM: The instant appeal of the assessee was filed against the order of the ld. Commissioner of Income Tax (Appeals), NFAC, Delhi,[in brevity the CIT (A) ] order passed u/s 250of the Income Tax Act 1961, for A.Y. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alter any of the grounds of appeal. 2. The case was called for hearing, first, the ld. DR filed an adjournment petition before the bench. But after the detailed discussion the ld. DR is ready for the hearing and withdraw the application. Both the parties Mr. Rohit Kapoor, CA for the assessee and Smt. Rajinder Kaur, CIT-DR for the respondent argued before the bench. The matter is taken for adjudication. 3. The ld. AR of the assessee filed a written submission which are kept in the record. In argument placed that the addition was made by the ld. AO for depositing of cash total amount of Rs.1,98,58,499/- in two bank accounts of the assessee. As per observation of the ld. AO amount to Rs.74,90,000/- was deposited in Punjab Sind Bank and Rs.1,23,68,499/- cash was deposited in HDFC Bank. Considering the disclosed business income Rs.3,10,540/-, the addition was confirmed amount to Rs.1,95,47,959/- and the assessment was completed u/s 144 of the Act. The assessee prayed that the entire amount of deposit was not properly reconciled by the AO. The withdraw of cash was also not considered in the assessment order. Further, the source of the cash deposit was from sale of the immovab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tamp duty document no.174706 71-74 7. Copy of sale deed in the name of Harjit Singh dated 25/04/2013 stamp duty document no.556043 75-78 8. Copy of sale deed in the name of Harjit Singh dated 25/04/2013 stamp duty document no.556236 79-82 9. Copy of sale deed in the name of Harjit Singh dated 29/04/2013 stamp duty document no.A092694 83-86 10. Copy of sale deed in the name of Harjit Singh dated 28/04/2013 stamp duty document no.556342 87-90 11. Copy of sale deed in the name of Harjit Singh dated 29/04/2013 stamp duty document no.556315 91-94 12. Copy of sale deed in the name of Harjit Singh dated 29/04/2013 stamp duty document no.A092727 95-98 13. Copy of sale deed in the name of Harjit Singh dated 14/05/2013 stamp duty document no.A143188 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it Singh dated 28/03/2014 stamp duty document no.A493818 160-163 28. Copy of sale deed in the name of Harjit Singh dated 28/03/2014 stamp duty document no.A221692 164-167 29. Copy of Power of Attorney executed on 17.02.2012 by Sh. Harjit Singh in favour of the appellant giving right- to make any arrangement regarding property, remove illegal possession, make demarcation, take possession, to appear on behalf of father, to use/ dispose properties, and to act as custodian, etc. 48-54 30. Copy of Affidavit before executive magistrate made by Gurbinder Singh Mahal dated 06.02.2018 that the money deposited in bank account was out of amount realized out of sale of father s property 17-19 31. Copy of Affidavit before executive magistrate made by Harjit Singh dated 06.02.2018 that amount was deposited in bank account of son and later on, remitted back to him 20-23 32. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f father Sh. Harjit Singh vis a vis sale deeds. In this regard, the copy of cash flow is enclosed at page no 224-234 for your ready reference. The summary of cash deposits in bank explaining the source of cash deposit is as under: - Name of buyer Cash Cheque Page (1)AMIT KAUR W/O MANWINDER SINGH 577500.00 234 (1)MANPREET SINGH S/O HARBHAJAN SINGH 545000.00 225 (1)SHAMSHER SINGH S/O SULAKHAN SINGH 674000.00 234 ARJINDER KAUR W/O MANOHAR SINGH 660000.00 224 BALWINDERJIT KAUR W/O GURBAKSH SINGH 577500.00 226 BEANT KAUR W/O BALDEV SINGH S/O DIWAN S 578500.00 224 BHUPINDER KAUR W/O HARDEV SINGH 535500.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... POA Total Cash deposited in bank Remarks 16612500 14842999 In this regard we are enclosing herewith the cash book from which your Honor will find that there is no negative cash and the same has also been submitted before the AO for which no adverse inference has been pointed out in the remand report. d) That the Ld. AO and the CIT(A) has failed to provide the benefit of agriculture income realized in cash against the cash deposit. The Ld. AO while making the addition has not provided the agriculture income of Rs. 248150/- separately. From the above, your honor will find that the appellant was having ample cash in hand and the source of cash deposit duly stands explained out of funds received from father, rotation of funds in the form of cash withdrawal and returned income of the appellant. The summary of cash available after taking into account all the incomes and receipts from father is as under: - Particulars Notation Amount Opening cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peak or negative cash. In this regard, the reliance is being placed on the following case laws in which it has been held that the benefit of cash withdrawals can t be denied to the assessee. It is a matter of record that the appellant has withdrawn a sum of Rs. 11074900/- in cash from bank account and the said cash was withdrawn out of opening bank balance available with the appellant. It is a matter of record that the total cash deposit was to the tune of Rs. 1482889/- as confirmed in remand report by the AO placed at page no 10-12 and not Rs. 19547959/- as confirmed by the AO in assessment order. 6.3 In the remand report the AO consider that the assessee is a deemed owner in relation to sale of property of his father. But in the hearing the ld. AR explained that as per the section 159 of the Act, the assessee is not considered as deemed assessee. The details are submitted in the Submission which is extracted as below: c) Therefore, it is very much important to understand where the assessee is deemed an assessee as per the provisions of income tax act. The definition of assessee is given under section 2(7) of the income tax act which is being reproduced hereunder: - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entative from the stage at which it stood on the date of the death of the deceased; (b) any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative; and (c) all the provisions of this Act shall apply accordingly. (3) The legal representative of the deceased shall, for the purposes of this Act, be deemed to be an assessee. That section159 is not applicable in the case of the appellant as the appellant s father Sh. Harjit Singh is alive. Furthermore, the provisions of section 160 are only applicable on agent of non-resident, minor, lunatic or idiot, the guardian or manager, Administrator- General, the Official Trustee or any receiver or manager or trustee appointed under a trust. (c) every person who is deemed to be an assessee in default under any provision of this Act; The clause c refers to assessee in default which is not applicable in the case of the appellant. 7. During hearing, the ld. AR respectfully relied on the order of the Hon ble Jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal, is, therefore, devoid of any legally sustainable merits. We reject the addition amount of made by the ld. AO.. 7.3) Principal CIT, Belagavi vs Basetteppa B Badami, [2018] 93 taxmann.com 66 (Karnataka) Section 69A of the Income-tax Act, 1961 - Unexplained money (Cash deposits) - Assessment years 2006-07, 2008-09, 2010-11 and 2011-12 - For preceding assessment year, sufficient amount of cash in hand to be brought forward had reached finality - During current year, on basis of cash deposits in assessee's bank accounts, Assessing Authority made addition of unexplained money - Whether since brought forward cash in hand of preceding assessment year was sufficient, addition on account of unexplained cash deposit in bank account of assessee was unjustified 7.4) J'Jaspal Singh Sehgal v. ITO WD 21(2)(1), Mumbai, [2017] 83 taxmann.com 246 (Mumbai - Trib.) Section 68 of the Income-tax Act, 1961 - Cash credit (Cash) - Assessment year 2009-10 - Where assessee submitted detailed cash summary showing inflow and outflow of cash for relevant year, in absence of any materials to show that cash withdrawn was utilized elsewhere by assessee, benefit of cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 17.02.2012 along with English Translation are duly annexed in APB page nos. 48 to 54. The documents are duly filed before both the authorities. After considering the factual matrix the assessee cannot be deemed assessee as mentioned by the ld. AO in the remand report. In remand report the ld. AO accepted the fact that the properties are not related with the assessee and the cash was originated from the sale of property and the assessee s own source which is explained in cash account of assessee. Finally, the concept of the deemed assessee cannot be sustained as per the explanation of section 159 and 160 r.w.s 2(7) of the Act. We fully respectfully relied on the order of the apex court and the assessee is not liable for payment of tax related to sale of property which belong to his father. The source of cash deposited in bank accounts is well explained considering the cash trial of the assessee. The ld. AO had only considered the cash deposit. The deposit of cash was duly explained during the remand before the ld. AO. Entire issue was explained before both the lower authorities by the assessee. The ld. DR has not submitted any contrary fact or any judgment against the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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