SATYA WATI L/H OF LATE SH. RADHAY LAL,NEW DELHI vs. ITO WARD 37(3), NEW DELHI

4. Aggrieved with the above order, the assessee preferred an appeal before the Ld. CIT(A) and filed detailed submissions. For the sake of clarity, the same is reproduced below:

“1. 1. The appellant is an Agriculturist and has no income other than Interest on savings and term deposits in bank, during the previous relevant to assessment year under appeal.

3. The Assessing Officer, however, completed the assessment under section 144/147 of the Act after making addition of Rs. 31,40,464/- on account of income as unexplained money u/s 69A of the Income Tax Act, 1961.

5. After considering the submissions of the assessee, the Ld.

CIT(A) observed that assessee has not responded to various notices issued by the Assessing Officer and further he observed that as per the statement of facts submitted by the assessee, assessee has received the assessment order in 2020 but this claim of the assessee has not been substantiated in any manner. As per the assessment order, the assessee was duly served with the notice u/s 148 of the Act and furthermore, the address mentioned in Form-35 is the same as that mentioned in the demand notice and the assessment order. Therefore, the claim of the assessee that assessment order and the several notices were not received by him was not substantiated in any manner. However, he observed that the impugned appeal is being admitted based on the unsubstantiated claim of the assessee in the interest of natural justice, without giving any finding on the factual claim of the assessee that assessment order and other details were received by him only on 25th February, 2020. Further, he observed that in Form-35, there is no request for filing of any documentary evidence under Rule 46A, even though no details were filed nor available before the Assessing Officer when he completed the assessment proceeding under Section 144 of the Act. In the statement of facts, the assessee has submitted that this amount of cash deposits was out of his cash withdrawals during the year and that he is an agriculturist. However, no proof regarding the assessee being an agriculturist, source of cash deposits in the impugned bank account of the assessee was submitted by the assessee despite repeated hearing opportunities being given to him. The Ld. CIT(A) after analyzing the issue on merit, he sustained the additions made by the Assessing Officer.

6. Aggrieved with the above order, the assessee is in appeal before us raising the following grounds of appeal:-

“1. That having regard to the facts and circumstances of the case, assumption of jurisdiction in initiating the proceedings u/s 147 and passing the impugned order u/s 144/147 and that too without complying with mandatory conditions u/s 147 to 151 as envisaged under the Income Tax Act, 1961, is bad in law and against the facts and circumstances of the case.

2. That in any case and in any view of the matter, assumption of jurisdiction u/s 147 and passing the impugned order u/s 144/147, is illegal, bad in law and against the facts and circumstances of the case and the same is not sustainable on various legal and factual grounds.

3. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in making addition of Rs. 13,00,000/- on account of cash deposits by treating it as alleged unexplained money u/s 69A and that too by recording incorrect facts and findings and in violation of principles of natural justice and without appreciating/considering the submissions and evidences filed by assessee.

4. That in any case and in any view of the matter, action of L.d. CIT(A) in confirming the action of Ld. AO in making addition of Rs.13,00,000/- on account of cash deposits u/s 69A, is bad in law and against the facts and circumstances of the case.

5. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in confirming the action of Ld. AO in making addition of Rs.18,40,464/- on account of other credits by treating it as alleged unexplained money u/s 69A and that too by recording incorrect facts and findings and in violation of principles of natural justice and without appreciating/considering the submissions and evidences filed by assessee.

6. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in treating the return filed by the assessee as 'non-est' and that too without any basis.

7. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in making cut and paste error while

passing the impugned order and that too without applying independent application of mind. 8. That having regard to the facts and circumstances of the case, Ld. CIT(A) has erred in law and on facts in not reversing the action of Ld. AO in charging interest u/s 234A, 234B and 234C of Income Tax Act, 1961. 9. That the appellant craves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other.”

7. At the time of hearing, the Ld. AR submitted that the assessee has passed away, therefore, this appeal is represented by her legal heir i.e., his wife Smt. Satya Wati. Accordingly, Form-36 was filed.

Further, he submitted that late assessee being an agriculturist and he submitted that since assessee is no more, case is represented by his wife and she does not know any of the dealing of her husband. Further he submitted that late assessee being an agriculturist and he has maintained the bank account with the Oriental Bank of Commerce, Faridabad. He submitted that assessee has withdrawn cash of Rs.35 lakhs on 27/07/2011 and on 29/11/2011, 30/11/2011, 15/12/2011 and 08/01/2012, the assessee has made a deposit of Rs.13,00,000/- out of the above withdrawal. He submitted that the assessee has submitted the above said bank statement before the Ld. CIT(A), however, the Ld. CIT(A) has not considered the above submissions and sustained the addition. He prayed that the cash deposit which is only out of cash withdrawals made by the assessee. In this regard, he relied on the decision of ACIT vs. Baldev Raj Charla & Ors. [2009] 18 DTR 0413 (ITAT Delhi).

However, the assessee has already filed the relevant bank statements before the Ld. CIT(A) and none of the activities of late assessee are known to the assessee’s wife, therefore, it will not serve any purpose to remit this issue back to the file of lower authorities. Considering the vulnerability of the wife of late assessee, we are inclined to deal with the case based on the information available on record.

“27. We have heard the rival submissions and perused the material available on record and have gone through the orders of the authorities below. We find that this explanation of the assessee was found correct that against these five deposits on dt. 14th June, 1996, Rs. 31.000; 21st July, 1997, Rs. 1,27,000, 18th Sept., 1997, Rs. 22,000; 4th Oct., 1997, Rs. 26,000 and on 7th Nov., 1997, Rs. 52,000 there were sufficient cash withdrawals from AWI and from SBI, Mayapuri, but this addition has been confirmed by learned CIT(A) on the basis that there is time gap between the assessee's withdrawals from his own partnership M/s AWI or from his own bank. There is finding recorded by the learned AO or by learned CIT(A) that apart from depositing these cash into bank as explained by the assessee, there was any other user by the assessee of these amounts and in the absence of that, simply because there was a time gap, the explanation of the assessee cannot be rejected and hence the addition confirmed by the learned CIT(A) is not correct. We, therefore, delete the same. This ground of the assessee is allowed.”

Order pronounced on 27th June, 2024.