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Facts
The assessee's case involved an unexplained cash deposit of ₹37,00,000/- during the demonetization period, with the Assessing Officer (AO) initially adding ₹35,00,000/- to his income. The Commissioner of Income Tax (Appeals) (CIT(A)) subsequently reduced this addition to ₹7,42,397/-, allowing for a reasonable opening cash balance of ₹5,00,000/-.
Held
The Tribunal remanded the case back to the AO for fresh assessment, finding that neither the assessee nor the lower authorities adequately explained the source and utilization of the cash, including the bifurcation of Specified Bank Notes (SBNs) and non-SBNs. The Tribunal applied the 'human probabilities' test, concluding that the claim of maintaining a huge cash balance without logical purpose was unsubstantiated, and directed the AO to seek detailed day-to-day cash flow statements and conduct further inquiries.
Key Issues
Whether the addition for unexplained cash deposits made during the demonetization period under Section 69A of the Income Tax Act, 1961, was justified, given the lack of proper explanation for cash accumulation and its source based on the 'human probabilities' test.
Sections Cited
Section 69A, Section 115BBE, Section 250, Section 143(3), Section 143(2), Section 142(1), Section 143(1), Section 68
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, GUWAHATI BENCH AT KOLKATA
Before: SHRI MANOMOHAN DAS & SHRI RAKESH MISHRA
PER RAKESH MISHRA, ACCOUNTANT MEMBER:
This appeal filed by the assessee is against the order of the Commissioner of Income Tax (Appeals)- NFAC, Delhi [hereinafter referred to as Ld. 'CIT(A)'] passed u/s 250 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) for AY 2017-18 dated 02.02.2024, which has been passed against the assessment order u/s 143(3) of the Act, dated 16.12.2019. 2. The assessee is in appeal before the Tribunal raising the following grounds of appeal: “1 That neither the Assessing Officer was justified in making addition of ₹35,00,000/- U/s. 69A of the Income Tax Act, 1961, on account of cash deposits made during the demonetization period and charging it to tax U/s. I.T.A. No.: 63/GTY/2024 Assessment Year: 2017-18 Subhash Chand Choraria. 115BBE of the Income Tax Act, 1961 nor the Ld. CIT(A) was justified in sustaining addition of ₹ 7,42,397/- out of the same. 2 That the aforesaid addition of ₹ 7,42,397/- sustained U/s. 69A of the Income Tax Act, 1961 by the Ld. CIT(A) is contrary to the materials on record, based on irrelevant considerations and non-consideration of relevant material and therefore not sustainable either in facts or in law. 3 That the Ld. Assessing Officer as well as the Ld. CIT(A), ignored the fact that the entire cash deposits made during the demonetization period was out of funds available with the appellant and therefore on the facts of the case, no addition U/s. 69A of the Income Tax Act, 1961 was unwarranted. 4 That the appellant craves leave to submit and/or alter any ground/s on or before the hearing of the appeal.”
Brief facts of the case are that the assessee is an individual and filed his return of income on showing total income of ₹27,41,140/- primarily from house property and other sources. The case was selected for limited scrutiny through Computer Aided Scrutiny Selection (CASS), with the primary issue being the unexplained cash deposit of ₹37,00,000/- during the demonetization period. The Assessing Officer (hereinafter referred to as Ld. 'AO') observed that while the assessee received his rental income through banking channels, he had deposited a substantial amount of ₹37,00,000/- during the demonetization period. Despite multiple notices u/s 143(2) and 142(1) of the Act the assessee initially failed to comply but eventually submitted the required documents and explanations. The assessee claimed to have been maintaining significant cash balance since 2015, showing opening cash in hand of ₹19,19,446/- as on April 1st, 2015 and various cash withdrawals and deposits throughout the preceding years. However, the Ld. AO found these explanations unrealistic and determined that keeping such large amount of cash at home without any logical purpose was not credible. After allowing ₹2,00,000/- as reasonable emergency cash holdings, the remaining ₹35,00,000/- was treated as unexplained I.T.A. No.: 63/GTY/2024 Assessment Year: 2017-18 Subhash Chand Choraria. money u/s 69A of the Act and taxed at 60% u/s 115BBE of the Act. The Ld. AO determined the total income of the assessee at ₹62,41,140/- u/s 143(3) of the Act. Aggrieved with the assessment order, the assessee filed an appeal before the Ld. CIT(A). In the appellate proceedings before the Ld. CIT(A), the sole ground challenged was the addition of ₹35,00,000/- u/s 69A of the Act, with the assessee providing a detailed cash flow statement showing an opening balance of ₹19,19,446/- as on April 1, 2015 and details of subsequent transactions leading to the cash balance of ₹43,77,049/- as on 08.11.2016. However, the Ld. CIT(A) found that the assessee had not submitted any evidence for supporting the claimed opening cash balance of ₹19,19,446/- and determined that maintaining such a huge cash balance at home appeared unreasonable for a taxpayer with returned income of ₹27,41,140/- living in a city without engaging in cash sales. The Ld. CIT(A) held that an opening cash balance of ₹5,00,000/- as on 01.04.2015 appeared reasonable for the assessee’s circumstances and after recomputing the cash balance, the available cash came to ₹29,57,603/- as on 08.11.2016. Consequently, cash deposits during demonetization to the tune of ₹29,57,603/- were treated as explained out of the total deposit of ₹37,00,000/- and the addition u/s 69A of the Act was substantially reduced from ₹35,00,000 to ₹7,42,397/- providing the assessee substantial relief of ₹27,57,603/- by the Ld. CIT(A) and the appeal of the assessee was partly allowed.
Aggrieved with the order of the Ld. CIT(A), the assessee has filed the appeal before the Tribunal.
Rival contentions were heard and the submissions made have been examined. I.T.A. No.: 63/GTY/2024 Assessment Year: 2017-18 Subhash Chand Choraria.
Ground nos. 1, 2 and 3 relate to the addition of entire cash deposit made during the demonetization period u/s 69A of the Act and the same being subjected to the provision of section 115BBE of the Act and the Ld. CIT(A) not being justified in partially sustaining the addition of ₹7,42,397/- out of the same. A perusal of the assessment order shows that the assessee had filed the return of income showing total income of ₹27,41,140/- and the notice for hearing was issued to furnish certain particulars as asked for by the Ld. AO. The assessee had earned income from house property and income from other sources. A sum of ₹37 Lakh was found deposited during the demonetization period and the source of income was from rental income which was received through banking channel. As per the assessment order, out of the total amount of ₹53 Lakh deposited during the year relevant for the assessment year, the sum of ₹37 Lakh included the amount during the demonetization period and during the preceding years the total cash deposits made by the assessee was ₹20,000/- while cash withdrawals amounted to ₹33.40 Lakh which in the view of the Ld. AO implied that the assessee received all his income through banking channel. The cash deposited during the assessment year prior to the demonetization was ₹16 Lakh while cash withdrawal during the year prior to the demonetization period was only ₹9.60 Lakh. The Ld. AO was of the view that the pattern of cash deposits, withdrawals made prior to the demonetization period indicate that the assessee did not withdraw the cash to accumulate but to spend for some purpose. A perusal of the details file shows that the withdrawals were not made in all the months and in fact there was no withdrawal in May, 2015, September, 2015 and November, 2015 while there was withdrawal ranging from ₹2 Lakh to ₹4.15 Lakh in the rest of the months till the date of demonetization and subsequent withdrawals I.T.A. No.: 63/GTY/2024 Assessment Year: 2017-18 Subhash Chand Choraria. of ₹22.40 Lakh from 08.11.2015 to 31.03.2016 were made in the corresponding period relevant to the previous AY 2016-17. For the impugned assessment year there were withdrawals ranging from ₹1.85 Lakh in the month of April, 2016 (even though the assessee stated to have opening cash in hand of ₹51,69,145/-) and there were NIL withdrawals during June, 2016, August, 2016, September, 2016 and till 08.11.2016 and the closing cash in hand as on 08.11.2016 was ₹43,77,049/-. The assessee had deposited ₹5 Lakh during May, 2016, ₹3 Lakh during June, 2016 and ₹8 Lakh during October, 2016 but it is not mentioned in the assessment order as to what was the source of the deposits. The Ld. AO was of the view that a possible realistic explanation for possession of huge cash in hand as on 01.04.2015 could be that in the business the assessee is engaged in and the receipts from the rental income are partly in cash and partly through banking channel and the amounts in cash are not reflected in the TDS certificate and as to not come under the purview of the direct or indirect taxes. Another reason was that the assessee had sold land or investments within the year or the preceding year the transactions of which were done partly in cash and partly through the banking channel. Considering the facts of the case the Ld. AO gave a margin of ₹2 Lakh for savings in cash for emergency needs and charged tax u/s 115BBE of the Act on the amount of ₹35 Lakh which was added u/s 69A of the Act. Before the Ld. CIT(A) the assessee was required to file written submissions along with evidences/documents but no compliance was made. The Ld. CIT(A) examined the assessment order considering the facts of deposit of ₹37 Lakh, the cash in hand as on 01.04.2015 and 01.04.2016 and also on various periods relating to the period of demonetization as well as prior to it for the impugned assessment year as well as previous assessment I.T.A. No.: 63/GTY/2024 Assessment Year: 2017-18 Subhash Chand Choraria. year and concluded that the Ld. AO found that the assessee had deposit is ₹37 Lakh in the bank account during the demonetisation period and the total deposit in the bank account during FY 2016-17 was of ₹53 Lakh. In the financial year 2015-16, the assessee had deposited ₹20,000/- in cash while ₹33,40,000/- were withdrawn. The summary made by the Ld. AO is also reproduced. He also considered the fact that cash in hand as on 01.04.2015 was ₹19,19,446/- and after accounting for the cash deposits in and withdrawals from the bank account, the cash balance as on 08.11.2016 was ₹43,77,049/-. He also considered the fact that the Ld. AO gave an allowance of ₹2 Lakh as being adequate and had added a sum of ₹35 Lakh as unexplained. The assessee justified the opening cash in hand by giving a chart which is mentioned on page 7 and 8 of the appeal order. The Ld. CIT(A), despite giving the finding that the assessee had not submitted any evidence of the opening cash balance of ₹19,19,446/- as on 01.04.2015 in the returned income of ₹27,41,140/- for AY 2017-18, held that the availability of cash of ₹5 Lakh as on 01.04.2015 appears to be reasonable and there was no logic of keeping huge cache of cash of ₹19,19,446/- at home for a person living in a city without engaging in cash sales treated a sum of ₹29,57,603/- as explained out of the total deposit of ₹37 Lakh and restricted the addition to ₹7,42,397/-.
During the course of appeal before us, the Ld. AR referred to para 5 on page 7 of the Ld. CIT(A)’s order and also highlighted the fact that there was no finding by the Ld. AO on the cash withdrawals and deposits. The total personal expenses during the FY 2015-16 were claimed to be ₹2,90,301/- while in the FY 2016-17 the same were ₹1,52,096/- till the period of demonetization. The return for AY 2017- 18 was filed on 23.11.2017 while the return for AY 2015-16 was filed I.T.A. No.: 63/GTY/2024 Assessment Year: 2017-18 Subhash Chand Choraria. on 26.08.215 and for AY 2016-17 was filed on 22.11.2016 i.e. during the period of demonetization. On a query from the Bench it was informed that the return for AY 2015-16 was not under scrutiny but was accepted u/s 143(1) of the Act. The assessee’s source of income was income from house property, most of which was received by cheque and interest on bank deposits and the miscellaneous receipts. It was submitted that the entire cash in hand was tax paid income and there is no limit even under the I.T. Act or any other law as to how much money could be withdrawn and kept at home. The Ld. AR relied upon the decision of Om Parkash Nahar vs. Income-tax Officer [2022] 135 taxmann.com 377 (Delhi - Trib.)/[2022] 100 ITR(T) 345 (Delhi - Trib.)/[2023] 198 ITD 312 (Delhi - Trib.) [27-01-2022] and Arihant Associates vs. Income-tax Officer [2024] 158 taxmann.com 7 (Raipur - Trib.)[20-09-2023]. Our attention was drawn to page 8 of the paper book filed in support of the fact that cash in hand of ₹19,19,446/- was shown in the income and in the balance sheet as on 31.03.2015 which is claimed to be filed along with the return of income. In AY 2015- 16 the assessee was having two bank accounts - one in Federal Bank bearing No. 11820200039681 and another in the State Bank of India bearing No. 20274684964, both in Fancy Bazar and incidentally the bank balance in the Federal Bank was ₹10,37,901/- while in the State Bank of India it was ₹2,657/-. The Ld. AR contended that there is no limit either under the I.T. act or any other law as to how much money can be withdrawn and kept at home but a perusal of the balance sheet shows that as on 31.03.2016 the balance is only ₹1,15,428/- in the Federal Bank while in State Bank of India the balance is ₹79,493/- but the cash in hand is shown at ₹59,69,145/- as on 31.03.2016, the return for which was filed on 22.11.2016 and the same does not appear to have I.T.A. No.: 63/GTY/2024 Assessment Year: 2017-18 Subhash Chand Choraria. been examined under scrutiny. Although the Ld. AR is correct in stating that there is no limit as to how much cash can be kept at home but the regular withdrawals made despite having two bank accounts only point to the fact that the assessee was in need of money, therefore, instead of earning whatever interest it could earn on the money deposited in the saving bank account, it decided to withdraw and the presumption that the cash in hand was lying at home has not been adequately substantiated by the assessee. A perusal of the return of income of the family members and the details filed for the household and other expenses shows that during the year under consideration, the spouse of the assessee had invested in property and construction expenses were also incurred. The details of family members, viz whether studying or working and the breakup of the expenses has not been given so as to substantiate the claim that the withdrawals were kept at home and were not utilised for incurring some expenses for or on behalf of the family. It has been held in the case of Sumati Dayal vs. Commissioner of Income-tax [1995] 80 Taxman 89 (SC)/[1995] 214 ITR 801 (SC)/[1995] 125 CTR 124 (SC)[28-03-1995] where the facts were that during the AY 1971-72, the assessee claimed to have won in horse races a total amount ₹3,11,831/- on 13 occasions out of which 10 winnings were from jackpots and 3 were from treble events. In the AY 1972-73, she claimed to have won two jackpots worth ₹93,500/-, both of which were shown in the capital accounts in her books but no expenditure was shown by her in her books and sworn affidavits were filed stating that she started going for races only towards the end of year 1969 and had no previous experience but purchased jackpot tickets on basis of combinations worked out by her based on advice given to her by her husband which was disbelieved by the Ld. AO and before the AAC also I.T.A. No.: 63/GTY/2024 Assessment Year: 2017-18 Subhash Chand Choraria. the assessee remained unsuccessful and having withdrawn the appeal filed before the Tribunal, she preferred application before the Hon'ble Settlement Commission. While the majority members of the Commission concluded that the probability was that the assessee had purchased winning tickets after the events and amount in question was undisclosed income, the Chairman of the Commission dissented from the majority view. On appeal to the Hon'ble Supreme Court it was held as under: “It is, no doubt, true that in all cases in which a receipt is sought to be taxed as income, the burden lies on the department to prove that it is within the taxing provision and if a receipt is in the nature of income, the burden of proving that it is not taxable because it falls within exemption provided by the Act lies upon the assessee. But in view of section 68, where any sum is found credited in the books of the assessee for any previous year, the same may be charged to income-tax as the income of the assessee of that previous year if the explanation offered by the assessee about the nature and source thereof is, in the opinion of the Assessing Officer, not satisfactory. In such case there is prima facie evidence against the assessee, viz., the receipt of money, and if he fails to rebut the same, the said evidence being unrebutted, can be used against him by holding that it is a receipt of an income nature. While considering the explanation of the assessee, the department cannot, however, act unreasonably. In the instant case, the amount was credited in capital account in the books of the appellant. The appellant had offered her explanation about the said receipts being her winnings from races. The said explanation had been considered in the light of the sworn statement of the appellant and other material on record The ITO and the AAC had not accepted the explanation offered by the appellant. The two members constituting the majority in the Settlement Commission had also taken the same view. There was no dispute that the amounts were received by the appellant from various race clubs on the basis of winning tickets presented by her. What was disputed was that they were really the winnings of the appellant from the races. This raised the question whether the apparent could be considered as real. Apparent must be considered real until it is shown that there are reasons to believe that the apparent is not the real and that the taxing authorities are entitled to look into the surrounding circumstances to find out the reality and the matter has to be considered by applying the test of human probabilities. The Chairman of the Settlement Commission, in his dissenting opinion, had laid emphasis I.T.A. No.: 63/GTY/2024 Assessment Year: 2017-18 Subhash Chand Choraria. on the fact that the appellant had produced evidence in support of the credits in the form of certificates from the racing clubs giving particulars of the crossed cheques for payment of the amounts for winning of jackpots, etc. The Chairman had rejected the contention regarding lack of expertise in respect of the appellant and had observed that the expertise was the last thing that was necessary for a game of chance and anybody had to go and call for five numbers in counter and obtain a jackpot ticket and that books containing information are available which are quite cheap. This was a superficial approach to the problem. The matter had to be considered in the light of human probabilities. The Chairman of the Settlement Commission had emphasised that the appellant did possess the winning ticket which was surrendered to the race club and in return a crossed cheque was obtained. It was a neutral circumstance, because if the appellant had purchased the winning ticket after the event, she would be having the winning ticket with her which she could surrender to the race club. The observation by the Chairman of the Settlement Commission that the 'fraudulent sale of winning ticket was not an usual practice but was very much of an unusual practice', ignored the prevalent malpractice that was noticed by the District Taxes Enquiry Committee and the recommendations made by the said Committee which led to the amendment of the Act by the Finance Act, 1972 whereby the exemption from tax that was available in respect of winnings from lotteries, crossword puzzles, races, etc. was withdrawn. Similarly the observation by the Chairman that if it was alleged that these tickets were obtained through fraudulent means, it was upon the alleger to prove that it was so, ignored the reality. The transaction about purchase of winning ticket took place in secret and direct evidence about such purchase would be rarely available. An inference about such a purchase had to be drawn on the basis of the circumstances available on the record. Having regard to the conduct of the appellant as disclosed in her sworn statement as well as other material on the record, an inference could reasonably be drawn that the winning tickets were purchased by the appellant after the event. The majority opinion after considering surrounding circumstances and applying the test of human probabilities had rightly concluded that the appellant's claim about the amount being her winning from races, was not genuine. It could not be said that the explanation offered by the appellant in respect of the said amounts had been rejected unreasonably and that the finding that the said amounts were income of the appellant from other sources was not based on evidence. {emphasis supplied} Therefore, no case was made out for interference with the order of the Settlement Commission.” I.T.A. No.: 63/GTY/2024 Assessment Year: 2017-18 Subhash Chand Choraria.
Thus, there does not appear to be any justification for continuous withdrawal of the money from the bank accounts where there was likelihood of earning some interest income rather keeping money idle at home as it is against the human probability that no person would like to keep his money idle at home which is also fraught with risks while the money is safer in the bank. This act of the assessee goes against the test of human probabilities. As regards the fact that the assessee had not utilised the money elsewhere this is a neutral circumstance as it is the assessee who is aware as to the use of the money which has been repeatedly withdrawn, more so when the rent was received primarily by cheque. Since this was a special occasion of demonetisation and the specified Bank Notes were only compulsorily required to be deposited in the bank, it was incumbent upon the assessee as well as AO to bifurcate as to how much were SBNs and how much were non-SBNs but no such bifurcation has been done either by the assessee or the Ld. AO. However, there is also no justification for the Ld. AO to give a margin of ₹2 Lakh only and also for the Ld. CIT(A) to enhance the same to ₹5 Lakh and hold that the balance amount was unexplained money. During the course of appeal, the assessee was required to furnish the details of withdrawals declared by the family which have been filed as under: Name of the family member Relation PAN Withdrawals (in Rs.) Subhash Chand Choraria self ABQPC9508E 2,62,893/- Prabha Devi Choraria Wife AESPC6915Q 1,20,000/- Sonu Choraria Son AESPC6914R 1,18,617/- Pragya Choraria Daughter-in-law AYBPD7296C 72,000/- Nischay Choraria Grandchild — — Dhairya Choraria Grandchild — — Subhash Chand Choraria and Sons HUF of self AALHS8556G 1,20,000/- (HUF) Sonu Choraria HUF HUF of son AAYHS2131Q 1,20,000/- Total 8,13,510/- I.T.A. No.: 63/GTY/2024 Assessment Year: 2017-18 Subhash Chand Choraria.
A perusal of the bank accounts in Federal Bank and the State Bank of India shows that while there are self-withdrawals but there are also transfers to the family members namely Sonu Choraria, Pragya Choraria and others. The assessee has not filed any cash flow statement giving the day-to-day withdrawals but only the gross amount withdrawn and deposited during the period prior to the demonetization and during the period subsequent to demonetization has been filed. Therefore, since proper analysis has not been carried out by the Ld. CIT(A) it would be in the interest of justice and fair play that the order of the Ld. CIT(A) is set aside and the issue is remitted to the Ld. AO for re-examination of facts. The assessee shall furnish day-to-day cash flow statement of the withdrawals and the deposits and the Ld. AO shall examine the possible utilization of the cash withdrawal so that it can be ascertained that the assessee did have the declared cash in hand which was shown in the return of income for AY 2016-17 which however, was filed on 22.11.2016 i.e. during the period of demonetization and neither the return for AY 2015-16 nor for AY 2016-17 seems to have been scrutinised as no order u/s 143(3) of the Act have been filed before us. Therefore, the order of the Ld. CIT(A) is hereby set aside and the matter is remanded to AO for the assessment to be done afresh after providing the assessee an opportunity of being heard and to furnish day-to-day cash flow statement for explaining the accumulation of cash in hand as on 08.11.2016 which is claimed to be deposited in the bank account during the period of demonetization and thereafter specific addition, if any, needs to be made in an objective manner. The Ld. AO shall also conduct enquiries from the bank or any other person concerned to ascertain the details and nature of notes which formed the opening cash in hand which is claimed to be deposited during the demonetisation I.T.A. No.: 63/GTY/2024 Assessment Year: 2017-18 Subhash Chand Choraria. period and thereafter make the assessment considering the reply of the assessee as per law. Hence, Ground nos. 1, 2 and 3 are allowed for statistical purposes.
Ground no. 4 being general in nature does not require any separate adjudication.
In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced on 16th October, 2025 under Rule 34(4) of the Income Tax (Appellate Tribunal) Rules, 1963. [Manomohan Das] [Rakesh Mishra] Judicial Member Accountant Member Dated: 16.10.2025 Bidhan (Sr. P.S.) I.T.A. No.: 63/GTY/2024 Assessment Year: 2017-18 Subhash Chand Choraria. Copy of the order forwarded to:
Subhash Chand Choraria, 2nd Floor, Sohan Palace, Madhu Textile Agency, S.R.C.B. Road, Fancy Bazar, Guwahati, Assam, 781001. 2. ACIT, Circle-2, Guwahati.
CIT(A)-NFAC, Delhi.
CIT-
CIT(DR), Guwahati Benches, Guwahati.
Guard File. //// By order