TMI Blog2023 (6) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... day, marriage, etc. The affidavit given by donors, being father and mother, themselves speak that they made gifts to assessee for personal use . Therefore, the observations made by CIT(A) are mere suspicious an presumptions which are not strong enough to negate the assessee s factual submissions. We accept all sources explained by assessee as genuine except the gift of Rs. 1,00,000/- claimed to have been received from grandmother wherein affidavit is given by assessee himself for supporting his own case, which unless corroborated by some independent or corroborative evidence, cannot be accepted. Decided in favour of assessee partly. - ITA No. 173/Ind/2022 - - - Dated:- 22-5-2023 - Shri Vijay Pal Rao, Judicial Member And Shri B.M. Biyani, Accountant Member For the Assessee : Shri V.N. Dubey, Shri Ibrahim Kannodwala, Adv. And AR For the Revenue : Shri Ashish Porwal, Sr. DR ORDER PER B.M. BIYANI, A.M.: Feeling aggrieved by appeal-order dated 07.04.2022 passed by learned Commissioner of Income-Tax-National Faceless Appeal Centre, Delhi [ Ld. CIT(A) ], which in turn arises out of assessment-order dated 15.12.2016 passed by learned ITO, Ward-3(2), Bhopal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by authentic evidences. 2. Documents furnished regarding sale of flat at Indore for an amount of Rs. 10,65,500/- by the father of the assessee (one of the donor) in order to show the creditworthiness of the donor, nowhere reflects that the entire sale consideration amount was received in cash (as claimed in the Affidavit as well as in written submission filed). On page 6 of the sale agreement (para 3) only amount is mentioned, however, mode of payment is not incorporated. 3. All the donors as well as the donee (the assessee) were having bank account in their names and were operational during the year. Then, what prompted them to enter into the transaction of gift in cash rather than routing the transactions through banking channel. 4. As per the claim of one of the donor i.e. the father of the assessee has claimed to have donated cash gift over a period of two years i.e. from year 2006 to 2008, however, the assessee kept the entire cash gift for two years and suddenly the entire cash gift was deposited in the month of January 2009. No plausible reason is given, as to why the huge amount was kept idle in cash for such a long time particularly in a situation, where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the observation of Ld. CIT(A) that the sale-deed reveals only sale consideration of Rs. 10,65,500/- but does not disclose the mode of payment, Ld. AR submitted that it is the practice in practical life to mention details of cheques/bank transfers in the sale-deed. But if no mode is specified, it is receipt in cash only. He also submitted that assessee s father has categorically averred in his affidavit that the entire consideration was received in cash; such averment is a factual averment on stamp paper and cannot be brushed aside for the reasoning that sale-deed does not specify mode of receipt. Regarding another observation of lower authorities that there was a time gap of about two years between the receipt of gift from father and deposit in bank a/c and how a person would hold cash for about two years, Ld. AR submitted that the assessee was contemplating purchase of a house and therefore the cash was held but when the deal could not materialize, it was deposited into Bank A/c. Ld. AR further argued that in any case, it is the choice of assessee to hold the cash with him or deposit the same instantly in bank a/c; the department cannot have any objection against assessee s decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sale consideration of property in cash and that is why he made cash gift to assessee. Regarding gifts received from mother and grandmother, Ld. AR submitted that they were ladies who generally keep certain cash with them and out of cash so held, they made gifts to assessee; there is nothing wrong in cash gifts. 8. Regarding another observation of CIT(A) that the assessee had not specified any occasion i.e. birth-day, wedding anniversary, etc. on which the gifts were given although normally people give complementary gifts on these occasions, Ld. AR firstly drew our attention to the affidavits and pointed out that the affidavits clearly mention that gifts were given to assessee for personal use . Then, Ld. AR submitted that the assessee has received gifts from father, mother and grandmother and not from people as mistakenly observed by CIT(A). Ld. AR submitted that gifts from father, mother and grandmother do not require any special occasion and the CIT(A) is not justified in making such observation. 9. Lastly, Ld. AR strongly relied upon the decision in Dheeraj Thakran Vs. ITO, Ward-1(4), ITA No. 2761/Del/2016 (ITAT, Delhi) , order dated 28.05.2021 wherein a similar co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Rs.41,15,000/- c) Gift received from blood relations and spouse - Rs.9,25,000/- 20. So far as the opening cash balance of Rs.5,55,000/- is concerned, we find, the ld.CIT(A) rejected the opening cash balance of Rs.5,55,000/- shown by the assessee in the cash book produced before him on the ground that the assessee has not disclosed such closing cash balance in the return of income of the preceding year. It is the submission of the ld. counsel that the income tax return form does not have a column to show such figure of closing cash balance and it is also his submission that there is no requirement under the law for showing such cash in hand in the return of income. While we accept the submission of the ld. counsel for the assessee that there is no requirement of law for showing the cash in hand in the return of income, however, in absence of filing of any balance sheet in the preceding year and in absence of any other evidence to show that the assessee was, in fact, in possession of opening cash balance of Rs.5,55,000/- as at the beginning of the year, the ple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the withdrawals shown by the assessed are far in excess of the cash found during the course of search proceedings. No material has been relied upon by the Assessing Officer or Commissioner Income Tax (A) to support their view that the entire cash withdrawals must have been spent by the assessed and accordingly, the Tribunal rightly held that the assessment of Rs. 2.5 lacs is legally not sustainable under Section 158BC of the Act and the same was rightly ordered to be deleted. 23. The various other decisions relied on by the ld. counsel for the assessee also support his case that the earlier cash withdrawals from the bank account should be available to the assessee for deposit in the bank account subsequently. Since, in the instant case, there is sufficient withdrawal from the bank account before such deposits were made, therefore, we accept the contention of the assessee regarding the source of Rs.36,39,000/- withdrawn from the bank accounts to be re-deposited. 24. So far as the gift of Rs.9,25,000/- is concerned, we find from the details furnished by the assessee that the assessee has received the following gifts:- a) Shri Shub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above order of ITAT. Therefore, in the light of above order, we would like to deal with the case of assessee as under: (i) Regarding cash gift of Rs. 7,65,000/- received from father, we find that the assessee has given an affidavit of his father wherein father has clearly averred to have made cash gift to assessee. We find that the said affidavit, given by father, is not controverted by revenue authorities; they have merely raised certain suspicion or presumption. On perusal of affidavit, we find that assessee s father retired from Central Bank of India and he was a pensioner at the relevant time. Regarding source of gift to assessee, we find that assessee s father sold a residential flat on 20.11.2008 and a copy of sale-deed is placed on record. Thus, the factum of sale is clearly proved without any doubt; in fact the authorities did not have any dispute. The only apprehension raised by CIT(A) that the mode of receipt of sale-consideration is not mentioned in the sale-deed for which we find weightage in the argument of Ld. AR that had there been any cheque/ bank transfer, it would have been mentioned in the sale-deed but since there is no mention of cheque/bank transfer, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which unless corroborated by some independent or corroborative evidence, cannot be accepted. Finding no such evidence, we are unable to accept this source as genuine. (iv) Regarding cash withdrawal of Rs. 2,48,000/- from his own Bank A/c, we have perused copy of bank pass-book and find that the assessee has in fact made a cash widthrawal on 28.11.2017. Here the case of assessee is such that he made this withdrawal in anticipation of making a deal for purchase of property but the deal could not materialize and the money stood unutilized which was re-deposited in Bank A/c. We find that the explanation given by assessee is not found false by lower-authorities. Further, there is no evidence with the department that the assessee has in fact invested elsewhere or spent otherwise or that the withdrawn cash is not available with him. It has been held in various decisions that when the assessee has made deposits out of the earlier withdrawal of cash from the bank account and no material has been brought by the Revenue that such money is not available with the assessee, then, the AO is not justified in making the addition. Therefore, we accept the contention of the assessee that the cash ..... X X X X Extracts X X X X X X X X Extracts X X X X
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