MR. SUMIT GUPTA,DELHI vs. ADIT (INT. TAXATION), NEW DELHI

Brief facts of the case are that the assessee is NRI and had filed the return of income on 30.03.2012, declaring net taxable income of Rs.5,20,250/-. The case of the assessee was selected for scrutiny and during the course of scrutiny it was the case of the assessee that the assessee has surrendered various transactions. However, with respect to ground no. 1, whereby the Assessing Officer had made the addition of Rs.7,00,000/- being unexplained cash deposited in assessee’s account, namely, Bank of Baroda. It was the case of the Assessing Officer that the assessee has given an amount of Rs.7,00,000/- to his brother Sh. Amit Gupta after withdrawing from its bank account, however, no documentary evidence was filed by the assessee, supporting defence put forward by the assessee that, amount of Rs.7,00,000/- were given by him to his brother with a view to purchase roof rights in the name of Sh. Amit Gupta. In this regard, no formal agreement was executed and hence, no cancellation agreement was filed by the assessee before the lower authority. The assessee has filed his affidavit, but did not file any affidavit of his brother confirming the source of the amount received by the assessee. 2.1 At the outset, the learned Authorized Representative for the assessee submitted that the assessee has filed his affidavit and also express his intention to file the affidavit of his brother and produce cash flows statement for verification of the transaction/cash received by him which was subsequently deposited in the account maintained by the father of assessee on behalf of assessee jointly with his mother. 2.2 On the other hand, the learned DR submitted that initially the assessee has not disclosed that he was maintaining the account in Bank of Baroda, and when it was confronted to him, the assessee has filed his cash flow statement and rely on the AO/CIT(A) order. 2.3 We have heard the rival contentions of the parties and perused the relevant material on record. As the assessee was NRI at the relevant point of time and the account of the assessee was handled by his deceased father, therefore, the assessee requires a different sympathetic treatment for explaining the cash deposit. The assessee is alleged to have been given amount for purchase of roof rights in the name of Sh. Amit Kumar and subsequently, it was returned by his brother. These are the facts now the assessee intend to proof with the help of his own affidavit and also by filling the affidavit of his brother from whom he has received the cash amount. 2.4 In view of above and in peculiar facts of present case, we deem it appropriate to remand this matter back to the file of the learned CIT(A) to decide the matter in accordance with law, after affording opportunity to the assessee to produce any witness, including his own brother for the purpose of proving the identity, creditworthiness and genuineness of the person from whom the cash has been received. In the light of the above, the ground no. 1 of the assessee is allowed for statistical purposes.

Ground no. 2 is with respect of to the addition made by the Assessing Office on account of cash in hand.

Therefore, borrowing the same logic, we deem it appropriate to remand the Ground no. 2 also back to the file of the learned CIT(A) for deciding the issue afresh, after granting reasonable opportunity to the assessee to produce all evidences and satisfy, how the addition of Rs.8,05,000/- was unsustainable on account of cash in hand. Needless to say, while deciding the issue involved in ground no. 1 and 2, learned CIT(A), if so requires, may seek the remand report from the Assessing Officer and also give opportunity to the assessee to rebut the said report. In the light of above, the appeal of the assessee is allowed for statistical purposes.

In the result, the appeal is allowed for statistical purposes. The decision is pronounced in the open court on 10th July, 2018.