TMI Blog2023 (12) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... is deleted and rest of the addition is confirmed/upheld. In the result, ground No.1 of the appeal is partly allowed. Addition under amended provisions of Section 115BBE - Division Bench of this Tribunal in Samir Shantilal Mehta [ 2023 (5) TMI 1279 - ITAT SURAT] , Arjunsinh Harisinh Thakor [ 2023 (6) TMI 770 - ITAT SURAT] and in Jitendra Nemichand Gupta [ 2023 (6) TMI 1338 - ITAT SURAT] and Punjab Retail Pvt. Ltd [ 2021 (11) TMI 405 - ITAT INDORE] and Sandesh Kumar Jain [ 2022 (11) TMI 126 - ITAT JABALPUR] held that applicability of amended provision of section 115BBE is not retrospective. Thus, the Assessing Officer is directed to tax the remaining addition @ 30% and applicable surcharges if any. In the result, the ground of appeal raised by the assessee is partly allowed. - Shri Pawan Singh, Judicial Member For the Assessee : Ms. Chaitali Shah, C.A. For the Department : Shri Vinod Kumar, Sr. DR ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of National Faceless Appeal Centre, Delhi (NFAC)/learned Commissioner of Income Tax (Appeals) (in short, the ld ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... still the assessee has regularly withdrawn cash of Rs. 10,000/- to Rs. 15,000/-, thus the explanation of assessee has no justification by looking at the pattern of cash withdrawal. The assessee was again issued show cause notice as to why cash deposit of Rs. 15.35 lacs should not be treated as unaccounted cash as an unaccounted money and added to the total income. The assessee again filed its reply on 25/11/2019. The assessee in such reply, contended that the cash in hand as per cash book were kept in a separate safe to meet the sudden emergency. The assessee also submitted that it is customary in Surat to keep cash at home in safe. The purpose of keeping the cash in hand to meet any emergency need, therefore, the monthly household expenses were withdrawn as and when required. The explanation of assessee was not accepted by Assessing Officer. The Assessing Officer on perusal of return of income for A.Y. 2014-15 to 2017-18 was of the view that the assessee has shown income from house property and other sources in all assessment years, which has not been earned by assessee in the form of cash as apparent from the cash book furnished by assessee since 01/04/2011. There is no scope of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not accepted by Assessing Officer on the ground that the cash was withdrawn in the month of October, 2012 and was deposited after a gap of four years in November and December, 2016 and in spite of huge cash in hand, the assessee has regularly withdrawn cash from bank of Rs. 10,000/- to Rs. 15,000/- on monthly basis. The assessee submitted that the cash on hand as per cash book was kept by the assessee under separate safe for emergency purpose. There is no bar under law for the persons to withdraw and deposit their money in the bank. The period of four years for depositing the amount in bank is not a long period to rebut the presumption regarding continuing availability as has been held by the Hon'ble Kerala High Court in CIT Vs. K. Shreedharan (1992) 106 CTR 0012 (Ker). The assessee also relied on the decision of Lucknow Bench in DCIT Vs Veena Avasthi and Hon'ble Karnataka High Court in CIT Vs Basetteppa B. Badami (2018) 93 taxmann.com 66 (Kar) and the decision of Jaipur Tribunal in Smt. Pinki Devi Agarwal Vs ITO in ITA No. 515/JP/2018. On the basis of aforesaid submission, the assessee requested to delete the entire addition. 4. The ld. CIT(A) after considering the subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee was having huge cash in hand. The ld. AR of the assessee submits that since the assessee was having sufficient cash balance for the deposit during demonetization period, therefore, no addition is to be sustained. 6. The ld. AR of the assessee submits that the application of amended provisions of Section 115BBE of the Act is not retrospective. Such provision cannot be applied for the transaction made prior to substitution of Section 115BBE of the Act. To support such submission that the addition on account of unexplained cash credit is not warranted, relied on the following decisions: (1) Narendra G. Goradia HUF Vs CIT (1998) 234 ITR 571 (Bom) (2) CIT Vs. Kulvant Rai 291 ITR 36 (Del) (3) Lakshmi Rice Mills Vs CIT (1974) 97 ITR 258 (Pat) (4) Gur Prasad Hari Das Vs CIT (1963) 47 ITR 634 (All) (5) Kanpur Steel Co. Ltd. Vs CIT (1957) 32 ITR 56 (All) (6) S.R. Venkata Ratnam Vs CIT (1980) 48 CCH 619 (Kar) (7) Vinatha Madhusdan Reddy Vs ACIT (2018) 54 CCH 151 (Mum Trib) (8) R.S. Diamond (P) Ltd. Vs ACIT (2022) 145 taxmann.com 545 (Mum Trib) (9) ACIT Vs Baldev Raj Charla ors. 121 TTJ 366 (Del Trib) (10) Om Prakash Nahar Vs ITO (2022) 135 tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demonetization period only. The assessing officer held that explanation furnished by assessee is baseless and has not been supported by valid reasons. The Assessing Officer treated the cash deposit as unexplained cash credit under Section 68 of the Act and taxed @ 60% under Section 115BBE of the Act. The ld. CIT(A) confirmed the action of Assessing Officer. I find that the assessee is regularly filing return of income from A.Y. 2010-11 and from 2013-14 onwards, the assessee is regularly offering income of more than Rs. 10.00 lacs per year. 9. I find that the assessee has shown sufficient cash withdrawal from HDFC bank and Bank of Baroda in the month of October, 2012, the only ground for suspicion by Assessing Officer was the time gap between the withdrawal and the deposit. Though the Assessing Officer doubted the availability of cash for such a long period, however, the Assessing Officer has not brought any material on record that withdrawal had been spent by the assessee. The only basis for doubting is the long period, therefore, keeping in view the return of income offered by assessee and the cash deposit during demonetization period, the assessee is given benefit of doubt to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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