PRAMUKH METAL QUARRY,VADODARA vs. THE INCOME TAX OFFICER, WARD-1(2)(3), VADODARA

A perusal of the above would reveal that the solitary issue in the present appeal relates to addition made to the income of the assessee on account of the cash deposited in the bank account of the assessee during monetization period amounting to Rs.46,32,000/-, the source of which remained unexplained. The orders of the authorities below reveal that though the assessee justified the source of cash deposits as from explained sources by furnishing his cash book revealing the source, the same, however, Metal Quarry vs. ITO] A.Y. 2017-18 - 3 – was disbelieved by the AO with respect to the cash deposit made during demonetization period for the reason that:  the assessee was noted to have made huge cash withdrawals without incurring corresponding expenses out of the same  the entire deposit during the demonetization period was noted to be in specified bank notes (SBNs) which allegedly was made out of balance available as at the beginning of demonetization i.e. on 08.11.2016. It was found unbelievable that all cash in hand on the said date was in SBN’s.  There was a difference between the availability of cash as on 08.11.2016 to that deposited during the demonetization period, approximating Rs.2,50,529/-. Since the assessee could not have legally taken SBNs after the commencement of demonetization, the explanation of the assessee was disbelieved.  Also noting the fact that despite entire cash being available in hand at the beginning of demonetization, it was however deposited in small tranches during the entire period of demonetization. This, as per the AO, was unusual and illogical behavior and, therefore, he was not convinced with the reply of the assessee that the cash deposited during demonetization period was out of cash in hand available as at the beginning of demonetization which was attributed to the withdrawals made from his banks.

Metal Quarry vs. ITO] A.Y. 2017-18 - 4 – “6.2 The submissions of the appellant, as above, has been carefully considered. The appellant had made cash deposits totaling to from 9th Rs.46,32,000/- during the period of demonetization November to 30th December 2016. It is to be noted that the entire cash deposits made during the period of demonetization was in SBNs (Specified Bank Notes of Rs.500 and Rs.1000 demonetised). It is claimed that the appellant was in possession of cash in hand of Rs.44,12,071/- on 08-11-2016 and the deposits were made out of this cash balance. It is seen that the cash deposit has been made during the demonetization period on the following dates. Month Date Amount November 10.11.2016 2,50,000 4,60,000 11.11.2016 2,00,000 30,000 2,00,000 12.11.2016 5,00,000 14.11.2016 3,00,000 19.11.2016 5,00,000 24.11.2016 3,24,000 25.11.2016 4,00,000 December 05.12.2016 2,00,000 07.12.2016 4,99,000 13.12.2016 3,69,000 20.12.2016 2,50,000 From the above pattern of cash deposits, it is quite apparent that the appellant had been depositing the cash on various dates in spaced out intervals during the entire period of demonetisation of close to two months. During the period of demonetisation, there was a specific ban on acceptance of demonetised currency. Business houses were prohibited from accepting demonetised currency after the announcement of demonetisation. The only recourse available for anybody in possession of demonetised currency was to deposit the same into their bank account or exchange for legal currency with the bank upto a certain limit. In the instant case, it is seen that the entire cash deposit during the period of demonetisation has happened in SBNs. Considering the fact that there was a general prohibition for acceptance of SBNs for business transactions during the period of demonetisation, it has to be presumed that the entire deposit of SBNs was already in possession of the appellant as on 08-11-2016. The appellant was in possession of only Rs.44,12,071/-as cash balance as on 08-11-2016 however, it has made a total cash deposit of Rs.46,32,000/- into his bank account during period of demonetisation Metal Quarry vs. ITO] A.Y. 2017-18 - 5 – in SBNs. Even it were to be accepted that the cash deposits have been made out of the cash balances as on 08-11-2016, it is highly improbable that the entire cash balance of the appellant as on 08/11/2016 was in SBNs. Further, the appellant has deposited these SBNs during the period of demonetisation in a staggered manner. Though the appellant was holding three bank accounts, it has resorted to depositing the SBNs in a staggered manner during the entire period of demonetisation of close to two months. Such staggered deposit of cash representing SBNs is against the normal human conduct. This clearly shows that the cash balance as on 08- 11-2016 has ben manipulated and concocted in the books of accounts so as to accommodate the cash deposits during the period of demonetisation, in this context, the decision of the Hon'ble High Court of Delhi in the case of Shashi Garg Vs. Pr.CIT reported in 113 taxmann.com 92 (Delhi) is worth considering. In this case, the High Court upheld the Hon'ble Tribunal's Order holding that withdrawal of money from bank accounts on different dates in a staggered manner would not form the source for subsequent cash deposits, it is to be noted that SLP against this decision has also been dismissed by the Hon'ble Supreme Court in 113 taxmann.com (93). 6.3. Further, as could be seen from the pattern of cash deposits, the deposits have not happened in one stroke immediately after the announcement of demonetisation. Normally, it is accepted that any person in possession of SBNs and holding three bank accounts would immediately deposit the SBNs in his possession into his bank account. However, it has happened in a staggered manner over a period of forty days. This further strengthens the argument that the cash balance and the cash book has been manipulated to show an enhanced cash balance as on 08-11-2016 to accommodate the cash deposits. 6.4. The Assessing Officer has analysed the cash books submitted by the appellant and has observed that the cash withdrawals made from the bank account have been allowed to accumulate in the cash book without making any cash expenditure. This is an improbable human conduct where it is important to consider that a prudent man would not withdraw cash and keep with himself at the risk of security. Further, keeping cash with himself which would have earned interest had the money been kept in the bank. Further, the time gap between the withdrawals and the redeposit is quite huge which places the onus to explain that the cash deposit is linked to the earlier cash withdrawals rests on the assessee. The delay in redeposit of the cash withdrawal is against the theory of human probability as propounded by the Hon'ble High Court in the cases of CIT Vs. Durgaprasad Morey 1971 (82) ITR 540 SC and Sumati Dayal Vs. CIT (1995) (80)

Metal Quarry vs. ITO] A.Y. 2017-18 - 6 – taxmann 89 (SC). In the ordinary case, a person will not keep cash idle with him without any purpose and further will deposit the cash immediately on a single day in one stroke after it ceased to be a legal tender and not in piecerneal on various occasions, as done in the instant case. 6.5. Further, the appellant has furnished the cash balance in its books of accounts on various dates as under:

From the above, it can be seen that the appellant has not kept huge cash balances on hand. However, it is claimed by the appellant that he has held Rs.44,12,071/- as cash in hand on 08-11-2016. This is against the history of the appellant as could be seen from the cash balance in the previous six assessment year. 6.6. Considering the above facts, the Assessing Officer has drawn a correct conclusion that the cash on hand shown as on 08-11-2016 was not genuine and therefore, the cash deposits made during period of demonetisation represented the unexplained income of the appellant u/s 68 of the Act. Since cash deposits on various dates as mentioned in the table 1 have been recorded in the cash book maintained as part of the books of accounts of the appellant and the sources of such cash deposits have remained unexplained, the addition made by the Assessing Officer u/s 68 of the Act is found to be in order and hence, confirmed.”

“2. The second ground of appeal is in respect of addition of Rs. 46,32,000/-made on account of cash deposited during the demonetisation period. The brief facts of the case is that during the demonetisation period, the appellant has deposited cash amounting to Rs. 46.32,000/-in to the Current Bank Accounts held with the State Bank of India, Bank of Baroda and Bank of India. The case was deposited out of the cash on hand on 08.11.2016 and receipt from parties. The addition made is without properly appreciating the submission made during the course of assessment proceeding The brief cash flow for the A.Y. is as under; Sr.# Particulars F.Y. 2016

17. F.Y. 2015 16. Amount Rs. Amount Rs. Details of Cash Inflow/Receipts 1. Opening Balance 20,24,154/- 78,721/- 2. Business Receipts 68,54,517/- 41,41,033/-

3. Amount withdrawn from 1,69,80,500/- 2,36,57,900/- Bank Total Rs. 2,58,59,171/- 2,78,77,654/- Details of Cash Outflow/Payments

1. Business Expenses 78,52,999/- 70,31,300/-

2. Cash Deposited into Bank 1,79,39,600/- 1,88,22,200/-

3. Closing Cash Balance 66,572/- 20,24,154/- Total Rs. 2,58,59,171/- 2,78,77,654/- As seen from the above, it is clear that the appellant has not deposited any cash out of undisclosed sources. The ld. AO has made addition of Rs. 46,32,000/- out of the total cash deposited of Rs. 1,79,39,600/- during the year i.e. the addition is made only in respect of cash deposited into bank during the Metal Quarry vs. ITO] A.Y. 2017-18 - 8 – demonetisation period only and note for the whole year thereby accepted the cash deposited in to the bank account during the period other than demonetisation period. As such the ld. AO has accepted the books of accounts and cash book maintained by the appellant. Further the ld. AO has not demonstrated clearly in the Assessment Order that addition made is on what basis and on what reason. The ld. AO failed to appreciate the fact that the appellant is doing business and having cash receipt from the business as well as cash withdrawn from time to time from banks and erred in making addition of total cash deposited during the demonetisation period. The Brief details of Gross Turnover, Returned Income and Cash on hand for last several years are as under; Sr. Assessment Return Gross Profit before Cash on Year Filing Date Turnover Int & Rem to Hand Partner and Tax 1 2017-18 06.11.2017 7,37,94,121 44,13,503 66,572 2 2016-17 17.10.2016 5,37,19,445 24,88,522 20,24,154 3 2015-16 31.10.2015 4,58,73,506 29,00,358 78,721 4 2014-15 29.11.2014 4,34,95,690 33,96,800 1,06,783 5 2013-14 01.10.2013 4,12,21,966 35,23,924 3,46,350 6 2012-13 28.09.2012 3,28,71,124 14,93,659 80,620 Merely the cash in the books has changed form from hard cash to cash in bank by way of deposit of demonetised currency notes into the bank account. Further mere cash deposit in bank account after the date of demonetization, i.e., 08.11.2016 does not mean that the cash- in-hand held as on 08.08.2016 though duly shown in the books of accounts becomes unexplained money. The ld AO has to demonstrate the same with the evidence that the same is undisclosed Income. As such the provision of the section 68 is not applicable at all to the appellant's case. It is submitted that neither the sum recorded as cash sales of receipt for sales in the books were doubted nor the books of account are rejected by the ld. AO. Further the profit element was already offered to the Thus, the addition made under section 68 of the Act is not justified. Further the assessing officer has not brought on record any cogent material so as to remotely demonstrate that the underlying sum is not out of cast on hand on the date of demonetisation of currency notes on 08.11.2016. The Ld. Assessing Officer on page no.2 (para 3.1) of the assessment order had stated that the appellant has made huge withdrawals during the year on the other hand it was seen that the assessee has Metal Quarry vs. ITO] A.Y. 2017-18 - 9 – incurred less cash expenses, the cash withdrawals made by the appellant were without any cogent reasons. The Ld. Assessing Officer further observed that in previous year i.e. in F.Y. 2015-16 the appellant has made huge cash withdrawals and as compared to the withdrawals there was no cash exреnses the cash withdrawals of the appellant was without any justification. In this regard it is submitted that your appellant is having office at Vadodara and mines & plant at Jambugoral, Tal. Desar, Dist. Vadodara which is about 70 km away from Vadodara. Your appellant was maintaining bank accounts at Vadodara only. Your appellant is engaged in the quarry business and extracting the hard rock from the mines with the help of drilling and explosive blasting and crushing it into various sizes used as building materials like Kapchi, Greets, Metal etc. The activities of drilling and blasting is very risky jobs. Even a small accident can be dangerous for life of workers. In the situation your appellant is required to keep good amount of cash on hand to meet any such urgent requirements. As such the observation of the ld. AO that the cash withdrawals were without any cogent reasons is not correct. The Ld. Assessing Officer on page no.2 (para-3.2) of the assessment order had stated that the appellant has deposited cash on different dates i.e. between 10th of November 2016 to 20th of December 2016. Considering that the appellant had shown cash on hand as on 08.11.2016 to the extent of Rs. 44,12,071/-, however, the cash was deposited on various dates in small amounts, this also indicates the appellant has not shown genuine cash on hand on 08.11.2016. Further the ld. AO at page no. 10 (Para-8) of the assessment order had stated that: had there been cash on hand on 08.11.2016 to the tune of Rs. 44,12,071/- then why appellant would deposit cash in small amounts despite maintaining three bank accounts. In this regard it is submitted that there was stiff shortage of cash of valid denomination and the old notes (SBN) were valid for certain transactions including for medical facilities. Further there were also restrictions for withdrawals of cash from banks. In the circumstances and for the sake of convenience, the cash were deposited in phased manner. Here it is pertinent to mention that the Deposits of SBN in phased manner were never restricted by the RBI. As such the allegation of the ld. AO that the appellant has not shown genuine cash on hand on 08.11.2016 is baseless and not correct and is on presumption basis only. The Ld. Assessing Officer on page no.9 (last portion of para-5) of the assessment order had alleged that it is a case of utilization of cash Metal Quarry vs. ITO] A.Y. 2017-18 - 10 – for some other purpose. Hence, cash on hand shown by the appellant as on 08.11.2016 is not genuine. Further at para 9 on page 10 of the assessment order the ld. AO stated that the cash on hand shown by the appellant as on 08.11.2016 is not genuine and that the appellant has deposited cash from undisclosed sources. In this regard it is submitted that the above observation of the id. AO is based on the holding of cash by your appellant and regularly withdrawals of cash from bank accounts though there is cash on hand. The holding of cash on hand and withdrawals from bank accounts from time to time is for the reason to meet an untoward emergency in case of accident at plant. The plant is situated at around 70Km from Vadodara and generally working 24 hours in a day. Further banks are working only for limited hours and closed on Holidays including Saturday and Sunday. Further here it is pertinent to note that it is the appellants prerogative as to how he should manage his Business Affair and the Assessing Officer in not concerned with it. The ld. AO has not given any details regarding source of undisclosed income and merely stated that your appellant has deposited cash from undisclosed sources which is without any basis and arbitrary. The ld. AO has neither doubted any entry in the cash book not pointed out any adverse findings in the cash book. The ld. AO has made addition only on the basis of analysis of the data of cash deposit, cash withdrawal and cash expenses and without any evidence. It is submitted that from e above findings recorded, it clearly appears that the ld. AO proceeded merely on suspicion or on the basis of whims and surmise. A suspicion remains a suspicion unless the same is established and can never take the place of reality and for making addition/ assessment of the alleged income, it is for the AO to prove beyond all reasonable doubts which is completely missing in the appellant's case.”

Metal Quarry vs. ITO] A.Y. 2017-18 - 11 –  That the assessee had explained that huge cash withdrawals was a regular feature considering the nature of business in which the assessee was involved which required him to keep substantial cash in hand so as to meet any business exigency. He contended that it was pointed out to the authorities below that the assessee was involved in the business of quarrying hard rocks by blasting and further crushing them which was carried out in remote areas and to meet emergencies of accidents occurring with the labours employed, cash in hand of substantial amount was always kept by the assessee by withdrawing from bank.  That the reasons for depositing cash in tranches was explained as so as to enable some cash to be available with the assessee to meet medical emergencies for which use of SBN was allowed, since there was restriction on withdrawal of cash during demonetization.  That the assessee had met all the doubts raised by the authorities below and the Revenue had chosen to doubt only the cash deposited during demonetization period while the cash book furnished by the assessee showed repeated cash withdrawn and deposited in every month of the impugned year and also in the preceding year.  The allegation of the department that the assessee had accepted SBNs during the demonetization period was, he contended, also of no consequence as far as the income tax proceedings were concerned and action against the assessee could at best be taken under the demonetization law.

Metal Quarry vs. ITO] A.Y. 2017-18 - 12 – 8. Ld. Counsel for the assessee pointed out that despite the assessee explaining the source of cash deposit and meeting all doubts raised, the Ld.CIT(A) upheld the findings of the AO without pointing any infirmity in the explanation of the assessee and by merely reiterating the surmises and conjectures of the AO.

Metal Quarry vs. ITO] A.Y. 2017-18 - 13 – 12. The Revenue authorities have pointed no infirmity in the Books of accounts maintained by the assessee nor the reasons given by the assessee for keeping huge cash balance. There is no question therefore of doubting the source of cash deposited in bank.

This Order pronounced on 16/06/2025 Sd/- Sd/- (SUCHITRA KAMBLE) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad; Dated 16/06/2025 S. K. SINHA True Copy आदेश क� �ितिल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant ��यथ� / The Respondent. 2. संबंिधत आयकर आयु� / Concerned CIT 3. 4. आयकर आयु�(अपील) / The CIT(A)- �वभागीय �ितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER,