SITA RAM SAINI,CHOMU, JAIPUR vs. ITO WARD 7(3), JAIPUR

The learned Commissioner of Income tax (Appeals), NFAC had not given any adverse inference in the cash flow statement filed by the appellant.”

The brief fact of the case is that the return of income was filed by the assessee u/s 139(1) of the Income- tax Act 1961 in ITR-4 on 31.01.2016 declaring total income of Rs. 2,60,490/- and agriculture income of Rs. 1,50,280/-. On selection of the case for limited scrutiny under CASS, notice u/s 143(2) of the Income Tax Act 1961 Oद 19.10.2016ए जीम सक. Aत् ंचचमंतमक ेममापदह नितजीमत ंकरवनतदउमदजए accordingly the case was fixed for hearing on 03.11.2016 but none was attended on the date given. Vide order sheet dated 18.11.2016, the case was fixed for hearing on 25.11.2016 and again the necessary documents and details were called for, but the assessee has repeated the same history and compliance was not made. 4.1 ज्ीम सक. AO दवजमक जीम जपउम-इंततपदह चतवबममकपदहे ंतम पदअवसअमकए therefore, taking into consideration of non compliance on the part of the assessee, he had no alternative except completing the time- barring assessment u/s 144 of the Act and for that and in order to afford final opportunity to the assessee, a detailed show-cause notice u/s 144(1) of the I.T. Act 1961 was issued on 02.12.2016 and got served through Regd. Post fixing the case for hearing on 12.12.2016. On the date of hearing fixed on 12.12.2016 neither the assessee attended चमतेवदंससल or through an ंनजीवतप्रमक तमचतमेमदजंजपअम दवत नितदपेीमक ंदल ूतपजजमद ेनइउपेेपवदए जीमतमवितम जीम case was completed u/s 144 of the Act based on the material available with the AO. While doing so ld. AO based on the AIR information noted that the assessee in the year under consideration deposited total cash of Rs. 2,98,600 in his saving bank account with Bank of Baroda and Rs. 76,99,179/- in ICICI Bank Ltd. Since, the assessee offered no explanation regarding these cash deposits and not furnished any documentary evidences regarding source of the cash deposits, therefore, considering the facts of the case, total of the cash deposits of Rs. 79,95,179/- was treated as unexplained cash credits u/s 68 r.w.s. 115BBE of the IT. Act, 1961 and was added to the total income of the assessee. 5. Aggrieved, from the said order of assessment, assessee preferred an appeal before the ld. CIT(A). The ld. CIT(A) after considering the contention of the assessee and report of the ld. AO in the remand proceeding considered the cash deposit to the extent of Rs. 46,27,013/- as turnover upon which 8 % was already disclosed and for the balance amount of Rs. 33,68,166/- [ 79,95,179/- less 46,27,013/-] he also considered 8 % further income and accordingly the appeal of the assessee was allowed in part. The finding of the ld. ब्प्ज्(Aद्व ूीपबी पे कपेचनजमक इमवितम ने तमंके ंे नदकमतरू-

As the appeal of the assessee was considered in part based on the documents submitted in the remand proceedings the view taken by the ld. CIT(A) is not correct and complete and therefore, the assessee has challenged that order of the ld. CIT(A) before us and to support the grounds so raised the ld. AR of the assessee ींे पिसमक ं कमजंपसमक ूतपजजमद ेनइउपेेपवद ूीपबी तमंके ंे नदकमत रू- “Your honour is requested to Ld CIT (a) page no.3 last line of Point no. 2 onwards wherein the Ld AO relevant paras of his remand report is appearing. Your Honour, this remand report is appearing up to page no. 4 just before Point no. 4. Your Honour kind attn. is invited to page no. 4, 2nd para wherein the Ld AO confirmed that the assessee furnished all bank statement of the assessee, Bank Book, Cash Book and sale and purchases bill, confirmation of parties and ledger accounts. Your Honour the Ld AO confirmed that the Ld AO verified the same. Your Honour the Ld AO after verification state that the assessee has not submitted any documentary evidences for his claim. Where is the fact is that the assessee submitted that the assessee several time withdrawal the cash and if cash is not utlised then the same is deposited in bank account. Kindly see Ld CIT(A) order page no.4 para 1 line no. 5 on wards. The assessee is producing here with a table showing summary of cash book:- S. No. चंतजपबनसंत Debit Credit 1. Oचमदपदह इंसंदबम 646127.28

Cash withdraw from ICICI Bank 2380500.00

cash withdrawn from Bank of Baroda 4201183.00

Cash withdraw from HDFC Bank 11600.00 9. ब्ंेी कमचवेपजमक पद च्छठ

00 10. Cash deposited in HDFC

00 11. Cash exp.

00 12. Closing cash balance

Hence your honour the source of cash deposit into bank is as under:- a) Opening Balance

Your honour the evidence of opening cash balance of Rs. 6,46,127.28 is already appearing in cash book which was verified by the Ld AO in remand report and therefore it is undisputed fact that the assessee submitted documentary evidences in this regard.

Your honour the evidence of withdrawal and again deposited into bank is already appearing in bank statement and cash book and therefore it is undisputed fact that the assessee submitted documentary evidences for his claim that the cash was withdrawn from bank of Rs.92,30,083/-.

Your Honour, the assessee also made cash sales of Rs. 48,84,468/-and evidence of cash sales is already in cash book and sale bill and therefore it is undisputed fact that the assessee submitted documentary evidences for the same.

The assessee has already submitted paper book which was submitted before LD CIT(A) in remand report proceeding vide acknowledgement no. 46,27,013/-instead of rs. 79,95,179/- and the 8% of Rs. 46,27,013/- is net profit of the assessee. The assessee will get the relief of Rs. 2,71,879/-.”

The ld. AR of the assessee also filed a detailed paper book in support of the contention so raised in the written submission and the index of the document submitted are as under:- S. No. च्ंतजपबनसंते Page No. 1. Wतपजजमद ेनइउपेेपवद इमवितम सक. ब्प्ज् Aचचमंस 1-15 2. ICICI Bank statement 16-22 3. Bank of Baroda 23-30 4. (2002) 125 Taxman 259 (Gau) (Mag.) ITAT Gauhati bench ACIT vs. Kamini Finance & Investement Co. Ltd. IT Appeal No. 240 ( Gauhati) of 1994 October 31,2001 31-34 5. (1994) 75 Taxman 164 ( Calcutta)/(1994) 207 ITR 979 Calcutta/(1995) 124 CTR 113 (Calcutta) (2304.1993) High Court of Calcutta CIT v. Ranicherra Tea Co. Ltd. 35-38 6. Reply 18.11.2016 AY 2014-15 39-39 7. Reply of SCN 2.12.2016 AY 2014-15 40-40 8. Reply 143(2) 05.09.2016 AY 2014-15 41-41 9. Cash book AY 2014-15 42-49 10. BOB Ledger AY 2014-15 50-52 11. PNB Ledger AY 2014-15 53-55 12. ICICI Bank Ledger AY 2014-15 56-61 13. ैीवच Aससवजउमदज ज्ञतपेीप डंदकप 62-71 14. ैंसमे कमजंपसे 72-83 15. Appeal effect of order u/s 250 of the Income Tax Act, 1961 84

Ld. AR of the assessee also filed a day wise cash book showing each day balance of cash in support of the contention that the assessee has reposited the money for an amount of Rs. 33,68,166/- out of the earlier balance available and that aspect of the matter being not considered the present appeal lies and to Sh. Sita Ram Saini vs. ITO 11 support the cash book already filed he demonstrated that there is no negative balance if the earlier withdrawal is considered as source of cash deposit for an amount of Rs. 33,68,166/- and thereby the order of ld. CIT(A) ordering to tax 8 % of 33,68,166/- कवमे दवज ीवसक बवततमबज पिदकपदह. 9. Per contra, the ld. DR relied on the orders of the ld. CIT(A) and submitted that the assessee remained non co-operative before the ld. AO and considering the evidence placed on record by the assessee substantial relief has already been granted to the assessee and even the charge of 8 % on the cash deposit not part of the turnover has rightly considered it to tax income to the extent of 8 %. 10. We have heard the rival contentions and perused material available on record. The bench noted that the apple of discord so raised in the ground no. 1 & 2 raised by the assessee is that whether the contention of the ld. CIT(A) accepting the same set of cash book considered the cash deposit to the extent of Rs. 46,27,013/- as part of the turnover and directed to delete the addition then why not the contention of the assessee that the balance amount of Sh. Sita Ram Saini vs. ITO 12 Rs. 33,68,166/- is the amount of the re-deposit of the amount out of the cash sales and earlier withdrawal. We have gone through the finding of the lower authority whereby we note that the assessee has already filed the additional evidence in the appellant proceeding thereby the सक. AO ंजिमत अमतपलिपदह जीम बंेी इववा ेव ेनइउपजजमक ंबबमचजमक the cash deposit of Rs. 46,27,013/- as part of the turnover offered by the assessee while filling the ITR. From the same set of cash book so filed the assessee contended that the cash to the extent of Rs. 33,68,166/- contains the re-deposit of cash into the bank account out of cash balance available in that cash book and that re-deposit amount cannot be बवदेपकमतमक ंे जनतदवअमत ंदक जीमतमइल बंददवज इम बवदेपकमतमक जव estimate the income of 8 % on that amount. While doing so we also directed the ld. AR of the assessee on 17.12.2024 to file a cash book making the total available with the assessee on each day and the assessee has finally filed it on 19.12.2024 which shows that the assessee was having the sufficient cash on hand to the extent of Rs. 33,68,166/- which was deposited out of the cash balance [ available तिवउ ूपजीकतंूंस वत बंेी ेंसमे ंसतमंकल बवदेपकमतमक वित turnover ] from the copy of the cash book so filed and therefore, the ld. CIT(A) was not justified in directing to considered the income to the extent of 8 % of Rs. 33,68,166/-. In the light of the discussion so recorded herein above ground no 1 & 2 raised by the assessee are allowed.