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Income Tax Appellate Tribunal, MUMBAI BENCH “SMC”, MUMBAI
Before: SHRI KULDIP SINGH
Present for: Assessee by : Shri Satyaprakash Singh, A.R. Revenue by : Shri Krishna Kumar, D.R. Date of Hearing : 30 . 11 . 2022 Date of Pronouncement : 19 . 01 . 2023 O R D E R Per : Kuldip Singh, Judicial Member: At the very outset, the appellant, Mr. Hanumantrao Jagannath Gharge (hereinafter referred to as ‘assessee’) sought to condone the delay of 253 days in filing the present appeal on the grounds inter-alia that he is 72 years old and after his retirement on 31.05.2009 he has shifted to his native place to look after his property. During the period of delay he was not present in the town and could not get the information about the order dated 12/11/2021 passed by Ld. CIT(A) as he is not conversant with the internet and income tax portal; that in the month of September 2022 when he came back to Mumbai he came to know about the order passed by 2 Mr. Hanumantrao Jagannath Gharge Ld. CIT(A) and then filed the appeal. Keeping in view the fact that assessee is a senior citizen of 72 years age and after retirement he has shifted to his native place having no knowledge about internet and Income Tax portal I find it “sufficient cause” to condone the delay of 253 days in filing the present appeal in view of the law laid down by Honourable Supreme Court in case of case of Land Acquisition Collector vs. MST Katiji & Others 167 ITR 471 (SC) wherein it is held, “it is on contention of delay that when substantial justice and technical considerations are pitted against each other, the case of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in injustice being done because of a non deliberate delay”. Hence, I hereby condone the delay in filing the present appeal.
The assessee by filing the present appeal, sought to set aside the impugned order dated 12.11.2021 passed by the National Faceless Appeal Centre(NFAC) [Commissioner of Income Tax (Appeals), Delhi] (hereinafter referred to as CIT(A)] qua the assessment year 2011-12 on the grounds inter-alia that :- “1. The order dated 12/11/2021 bearing DIN No.ITBA/NFAC/S/250/2021-22/1036902329[1] passed under section 250 of Income Tax Act, 1961 by the Hon'ble CITIA). National Faceless Appeal Centre, is excessive, unreasonable, arbitrary, against the provisions of Income Tax Act, 1961 and therefore liable to be quashed. 2. The delay in filing of present appeal may kindly be condoned and appeal may be decided on merit.
On facts and circumstances of the case and in law, the Hon. CIT.(A) has erred in confirming the addition of Rs.3,00,000/-on account of unexplained cash deposits in bank account under section 68 of Income Tax Act, 1961. 4. The appellant craves to alter, add, delete, substitute, or modify and other grounds of appeal
.”
3. Mr. Hanumantrao Jagannath Gharge
3. Briefly stated facts necessary for consideration and adjudication of the issues at hand are for the year under consideration assessee has not filed the return of income under section 139 of the Income Tax Act, 1961 (for short the 'Act'). Subsequently, the case was reopened under section 147 and 148 of the Act and in response thereto the assessee filed return declaring his total income at Rs.1,41,360/-. The Assessing Officer (AO) made addition of Rs.3,00,000/- on account of unexplained cash deposit under section 68 of the Act and thereby framed the assessment at Rs.4,41,360/- under section 143(3) read with 147 of the Act.
4. The assessee carried the matter before the Ld. CIT(A) by way of filing appeal who has declined the contentions raised by the assessee and dismissed the appeal. Feeling aggrieved with the impugned order passed by the Ld. CIT(A) the assessee has come up before the Tribunal by way of filing present appeal.
I have heard the Ld. Authorised Representatives of the parties to the appeal, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and law applicable thereto.
I have perused the impugned order passed by the Ld. CIT(A) who has dismissed the appeal by returning following findings: “4.3 A perusal of the facts submitted by the appellant as an explanation to the source of funds amounting to Rs. 3,00,000 deposited on 15.10, 2010 shows that the appellant has made withdrawals on 5 occasions from 24.05.2010 (Rs. 70,000), 10.08.2010 (Rs 200000), 20.08.2010 (Rs 10,000), 13.09.2010 (Rs 4 Mr. Hanumantrao Jagannath Gharge
15,000) and 01.10.2010 (Rs 5,000). As per his contention all these amounts were unutilised and redeposited lumpsum on 15.10.2010 with his account in Abyudaya Bank (Acct No. 38147). It is inexplicable that if the assessee had available with him cash at his home of Rs 2,70,000 on 10.08.2010, lying unutilised, why would he need to draw Rs. 10,000 on 20.08.2010, just 10 days later? And then further Rs. 15,000 on 13.09.2010 and then a smaller amount of Rs. 5000 on 01.10.2010 and then to redeposit all of these amounts back into his account, 15 days later on 15.10.2010. This explanation of the assessee belies credibility and is not explainable by normal day to day circumstance. The assessee has offered no other explanation for this course of action. The AO was correct to hold that such an explanation offered is not reliable nor satisfactory Reliance is placed on the following judicial pronouncements:
1. 1. Govindarajulu Muudaliar (1958] 34 ITR 807 (SC): It this case, the Hon'ble Supreme Court held that the assessee has to prove satisfactorily the source and nature of certain amounts of cash received during the accounting year and if not, the ITO is entitled to draw inference that the receipts are of an assessable nature.
2. Durga Prasad More [1971] 82 ITR 540 (SC) Sumati Dayal [1995] 80 taxman 89 (SC)/[1995] 214 ITR 201 (SC)/[1995] 125CTR 124 (SC) 4.4. Considering the above facts and circumstances of the case and in view of above judicial pronouncement, it is held that addition made by the AO is correct. Accordingly. ground of appeal is hereby dismissed.”
7. Bare perusal of the findings returned by the Ld. CIT(A) goes to prove that the same are entirely based upon surmises. The assessee who is a senior citizen of 72 years old is retired employee of Maharashtra government has re-located to his village to look after his old age parents and his agricultural land has explained the amount of Rs.3,00,000/- deposited in the bank account having been withdrawn on five occasions from his bank account and stated that the same is remained unutilized which he has re-deposited on 5 Mr. Hanumantrao Jagannath Gharge 15.10.2010. It is a fact on record that the assessee withdrew the aforesaid amount of Rs.3,00,000/- in trenches on 24.05.2010, 10.08.2010, 20.08.2010, 13.09.2010 and 01.10.2010. To prove this fact the assessee has also brought on record copy of his passbook maintained with Abyudaya Cooperative Bank Ltd. having account number SB/38147 wherein the aforesaid amount is shown to have been withdrawn and then re-deposited in the bank within the range of 4-5 months.
8. From the evidence brought on record by the assessee who is a retired employee the only irresistible conclusion can be drawn that the amount of Rs.3,00,000/- was lying in cash with the assessee having been withdrawn from his account maintained with Abyudaya Bank account number 38147 which he has re-deposited on 15.10.2010 and as such cannot be said that to be unexplained cash deposit. The Ld. CIT(A) vide impugned order erred in dismissing the present appeal which is not sustainable in the eyes of law, hence set aside. The AO is directed to delete the addition of Rs.3,00,000/- made in this case.
Resultantly, appeal filed by the assessee is hereby allowed.
Order pronounced in the open court on 19.01.2023.