SUNIL KOTHARI,JAIPUR vs. DCIT, CIRCLE (INTL.TAX.), JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR MkWa- ,l-lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@IT(IT) A. No. 218/JP/2021 fu/kZkj.k o"kZ@Assessment Years : 2017-18 DCIT, cuke Sunil Kothari C-106, Savitri Path, Bapu Nagar, Vs. Circle (Intl. Tax.), Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ADRPK 7159 E vihykFkhZ@Appellant izR;FkhZ@Respondent

fu/kZkfjrh dh vksj ls@ Assessee by : Shri R.K. Bhatra (C.A.) & Shri S.R. Sharma (CA) jktLo dh vksj ls@ Revenue by : Shri A.S. Nehara (Addl.CIT) a lquokbZ dh rkjh[k@ Date of Hearing : 19/07/2022 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 23 /08/2022

vkns'k@ ORDER

PER: DR. S. SEETHALAKSHMI, J.M. This appeal by the assessee is directed against the order of the Learned Commissioner of Income Tax (Appeals) [hereinafter referred to as ‘ld. CIT(A)’]-42, Delhi dated 07.09.2021for the AY 2017-18.

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more so when appellant could not filed submissions due to technical glitches in the new income tax website. 2. That without prejudice to the ground No. (1) above on the facts and in the circumstances of the case the Ld. CIT(A) is wrong, unjust and has erred in law in upholding the finding recorded by the Assessing Officer that source of cash deposit of Rs. 1250000 made by the appellant is his bank account during demonetization period on 10.11.2016 remained unexplained and thereby confirming addition of said amount of Rs. 1250000 to the income of the appellant u/s 69A of the I.T. Act, 1961. 3. That the appellant craves the permission to add to or amend to any of the above grounds of appeal or to withdraw any of them.”

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cash earlier withdrawn by assessee as detailed in para – 3 page – 2 of assessment order from his NRo Bank A/c No. 358847619 with Central Bank of India and NRE Bank A/c No. 3361012786 with Central Bank of India for marriage expenses of his son which was to be solemnized on 07-01-2017 and the preparation for which was going on and some ceremonies i.e. Roka ceremony engagement ceremony etc. was to be solemnized earlier to marriage ceremony and in anticipation of expenses in those ceremonies cash was withdrawned from said Bank A/c(s). The Ld. A.O. asked to give details of marriage expenses and to file some other explanations which assessee complied. The Ld. A.O. thereafter as per discussion in assessment order held that assessee has failed to explain the said cash deposit in his bank account by holding that in absence of any supporting documents the cash deposits amounting to Rs. 12,50,000/- remains unexplained money u/s 69A of the I. T. Act, 1961 and added the same to the total income of assessee and same is taxed @ 60% u/s 115BBE of the Act.

“That on the facts and in the circumstances of the case the Ld. CIT (A) is wrong, unjust and has erred in law in passing impugned order on ex-parte basis.

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The notice(s) issued by Ld. CIT(A) were served on e-filling portal and no physical notice was issued to assessee. As evident and also verifiable from the material on assessment record that the assessee is Non-resident permanently living in Thailand. The appellant has no information whatsoever that when appealwas fixed. It is a known fact to everyone that March, 2020 to Aug. 2021 was Covid-19 period and the maximum period was under lockdown. Even the operation of international flights were also suspended and they were not allowed to fly. Because of thisassessee did not know about any notice for hearing of appeal and so could not appear/filed written submission before CIT (A). It is further submitted that before the last date of hearing i.e. 13-08-2021 the appellant tried to upload the written submission on Income Tax portal. But due technical glitches in the New Tax Portal could not able to file written submission. Thus, assessee because of above said reason(s)did not know about notice(s) for hearing of appeal. In view of the above facts and circumstances the assessee was prevented by sufficient reasons in not complying the notice(s) received from CIT (A). Thus there was no conscious default in compliance the terms of the statutory notice issued by the Ld. CIT(A). In this connection it is also submitted that the entire facts and material evidences were available on assessment record and the Ld. CIT(A) has not appreciated the said evidences. Ground No. (2) : That without prejudice to the ground No. (1) above on the facts and in the circumstances of the case the Ld. CIT (A) is wrong, unjust and has erred in law in upholding the findings recorded by the assessing officer that source of cash deposit of Rs.1250000 made by the appellant in his bank account during demonetization period on 10-11-2016 remained unexplained and thereby confirming addition of said amount of Rs.1250000/- to the income of the appellant u/s 69A of the I.T. Act, 1961. (a) That on the facts and in the circumstances of the case the Ld. Assessing Officer is wrong, unjust and has grossly erred in law in not accepting plea of the appellant that the cash deposit of Rs. 12,50,000/- in the bank account of the appellant during the demonetization period on 10- 11-2016 was out of withdrawals made earlier in the year to meet marriage expenses of the son of the appellant which was to be held on 07-01-2017

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and holding that said deposit of Rs. 12,50,000/- remained unexplained and thereby adding the same to the income of the appellant under section 69A of the I.T. Act, 1961. As submitted supra that assessee deposited Rs. 12,50,000/- in cash on 10- 11-2016 in his Bank A/c which were specified Bank Notes demonetized w.e.f. 09-11-2019 under provisions of the specified Bank Notes (cessation of liabilities) Act, 2017. The Ld. A.O. in assessment proceedings required assessee to provide source of deposit of said cash in his Bank A/c to which assessee explained that said cash was out of cash earlier withdrawned by assessee from his Bank A/c(s) for marriage expenses of his son which was to be solemnized on 07-01-2017 and earlier to that some related ceremonies were to be there and preparation for them were going on and expenses therefore were anticipated but expenses in cash on ceremonies earlier to marriage and for other expenses on marriage had been lesser and so cash withdrawn was left with assessee and in the mean time there had been demonetization for Rs. 500/- & Rs. 1000/- Bank notes and so assessee redeposited balance cash held by him in said specified Bank Notes in his said Bank A/c. The assessee in support filed details of such withdrawal in cash from Bank A/c with Bank statements and detail of month wise marriage expenses in cash and by cheques with evidence and month wise cash book showed balance cash in hand for A.Y. 2016-17. The Ld. A.O. rejected the said explanation and documents filed giving following reasons: - a) details of op. cash balance shown as on 01-04-2016 in details of cash withdrawn/cash expenses for the year 1-4-2016 to 31-3-2017 has not been filed. b) specific reason and rationale is not clear in respect of the fact that when assessee was already in possession of substantial cash amount why an amount of Rs. 2,00,000/- was again withdrawn on 19-05-2016. c) no evidence filed of occurring marriage of son in Jan. 2017 and also no supporting documents related to marriage exp. in cash shown in cash book. The proofs for the payments for marriage expenses do not mention any details of the assessee. Somewhere it is mentioned marriage expenses and somewhere it is mentioned engagement ceremony.

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d) The cash withdrawl from Bank A/c as appearing from Bank statement was made by Anurag, Keshav, Nitish but assessee filed no documentary evidence that assessee received back cash from them. The A.O. giving these findings rejected the explanation of assessee and held that assessee has failed to explain the cash deposit of Rs. 12,50,000/- on 10-11-2016 in his Bank A/c. The point wise submission on above reasons given by A.O. for rejecting explanation of assessee are as under:- (a) In this connection it is submitted that assessee filed cash book for F.Y. 2016-17 in understanding and belief that same needs to be filed to comply requirements of assessee which was showing op. cash balance of Rs. 4,66,688/-. If the A.O. desired to verify the op. cash balance of Rs. 4,66,688/- from earlier year, the assessee would have certainly filed the same. The assessee is now submitting cash book for the period of 1-4- 2016 to 31-3-2017 showing closing balance as on 31-3-2016 of Rs. 4,66,688/- which is op. cash balance as on 1-4-2016 and thus same is verifiable. (b) The assessee is an NRI and so in his wisdom thought that for prior ceremonies of marriage and for marriage ceremony preparation several expenses such as cash gifts envelopes for relatives etc. purchase of several goods from local market of daily consumption, for decoration/flowers etc. etc. would have to be incurred in cash and so kept cash ready with him and with his family members to incur expenses as and when required. The op. cash balance was so given to family members/other persons associated for preparation of marriage ceremonies for possible/future expenses and, therefore, as and when immediate need of cash with assessee came he made further withdrawn cash from his Bank A/c. Withdrawals of Rs. 2,00,000/- on 19-05-2016 and further withdrawals of cash thereafter on different dates from his Bank A/c was for purposes of possible expenses in incoming ceremonies of marriage i.e. Roka ceremony (pre engagement) on 03-12-2016 engagement ceremony on 22-12-2016 while marriage ceremonies on 07- 01-2017. (c) The A.O. never required assessee to give evidence about marriage of his son in Jan. 2017. The finding of A.O. that no supporting documents related to marriage expenses in cash shown in cash book is

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contradictory as A.O. on other hand gave finding that ‘proofsforthe payment for marriage expenses do not mention details of assessee’ The assessee filed details of marriage expenses incurred in cash (Rs. 10,05,595) and by cheques (Rs. 64,01,012) and filed a few bills/vouchers which A.O. examined. However, the issue is not of marriage expenses but that of deposit in his Bank A/c on 10-11-2016 out of cash balance with assessee after cash expenses incurred on marriage function out of cash withdrawals made by assessee from his Bank A/c(s). The engagement ceremony occurs prior to marriage ceremony which are ceremonies of marriage and so expenses on any of them referred as marriage expenses. (d) No withdrawal from Bank A/c of assessee was made by Keshav which is verifiable from Bank A/c. The withdrawals were made by Anurag and Nitish from Bank A/c of assessee was for and on behalf of assessee on self cheques. The said persons are regular employees of the concern of his brother at Jaipur who were assisting assessee for that. The Ld. A.O. made no enquiry from assessee about this otherwise it could have been explained. We submit herewith the affidavits of above said persons in support of contention made. It was initially thought to solemnize all marriage functions at Jaipur but after Roka ceremony it was decided amongst families that engagement ceremony will only be held in Jaipur and marriage ceremony will be performed at Dubai. It was the reason that marriage expenses in cash as against thought earlier have been lesser and mostly marriage expenses were paid by cheques. The cash withdrawn earlier from Bank less expenses incurred therefrom remained lying with assessee and in the meantime demonetization announced on 09-11-2016 the assessee deposited the SBNs in cash lying with him of Rs. 12,50,000/- on the next day (when Bank opened after announcement of demonetization) i.e. 10- 11-2016 deposited in his Bank A/c. It is thus evident from above submission and verifiable from record that the said cash of Rs. 12,50,000/- deposited by assessee in his Bank A/c was out of withdrawals made in cash. In law also if availability of cash with assessee is evidently proved then subsequent deposit therefrom in Bank A/c has to be accepted unless it is proved with evidence that availability of cash shown is not correct. The available cash cannot be

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held as vanished. The judgments cited by A.O. in assessment order are inapplicable on the facts of the case. The appellant has fully explained with documents that cash of Rs. 12,50,000/- deposited by him in his Bank A/c on 10-11-2016 was lying with him out of withdrawals earlier made in cash by him from his Bank Account(s). The Ld. A.O. is thus wrong in holding that assessee has failed to explain said cash deposit in his Bank A/c with supporting documents and treating the same as unexplained money u/s 69A of the Act and adding the same to income of assessee and subjecting it to tax @ 60% u/s 115BBE of the Act. The said addition made by A.O. in total income is wrong and bad in law which deserves to be deleted.”

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related payments were made by cheques and not in cash. In view of the overall circumstances, the explanation tendered by the appellant remains unproven and is not plausible. Therefore, there is no reason to interfere with the finding of the AO that the appellant failed to satisfactorily explain the source of the cash deposit. 8. It is also noteworthy that the huge cash deposit of Rs. 12,50,000/- was made by way of one single deposit on 10.11.2016 and it was clearly made in consequence of demonetization of high value currency. The appellant has not shown that he had ever made such a huge cash deposit in earlier or subsequent financial years. 9. Demonetization of Rs. 500 and Rs.1000 bank notes was announced by the Hon'ble Prime Minister on 08.11.2016. The purpose was inter- alia to unearth black money which was stashed in the form of high denomination notes. General Public was allowed to deposit the demonetized bank notes between the period 09.11.2016 to 30.12.2016. Failure in submitting satisfactory explanation in this regard before the AO and again not submitting any explanation during the appellate stage despite having repeated opportunities, clearly shows that the appellant is not in a position to explain the source of these huge cash deposits. The only inference which can be drawn out of these facts and circumstances is that the appellant has deposited her unaccounted money in the bank account. 10. Hon'ble Supreme Court in Krishan Kumar vs. /TO [2019] 107 taxmann.com 464 (SC) has upheld the addition made by AO under section 69A where the assessee had failed to satisfactorily explain the source of cash deposit. 11. The issues relevant to the demonetization of high denomination notes was considered by the Supreme Court in the case of Sreelekha Banerjee v. Commissioner of Income-tax [1963] 49 ITR (SC) 112; [1964] 2 SCR 552 (SC). The court held that where assessee contended that high denomination notes represented not cash balance but some other money and he failed to explain source of said money, department was justified in treating value of said high denomination notes as income of assessee from undisclosed sources. Where the explanation of assessee was unconvincing and one which deserves to be rejected, the department can reject the explanation and draw the inference that the

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amount represents income either from the sources already disclosed by the assessee or from some undisclosed source.

The Court observed: "Where the assessee was unable to prove that in his normal business or otherwise, he was possessed of so much cash, it was held that the assessee started under a cloud and must dispel that cloud to the reasonable satisfaction of the assessing authorities, and that if he did not, then, the department was free to reject his explanation and to hold that the amount represented income from some undisclosed source.” 12. Further, in cases relating to the issue of source of demonetized currency, Hon'ble High Courts of Patna and Calcutta in Chunilal Rastogi vs. CIT [1955] 28 ITR 341 (Pat), Anil Kumar Singh vs. CIT [1972] 84 ITR 307 (Cal.) and M. L. Tewary vs. CIT [1955] 27 ITR 630(PAT.), have respectively held that where the assessee could not satisfactorily prove source and nature of amount which he encased on demonetization, revenue authorities were perfectly justified in drawing an inference that said sum was of an income nature. 13. Hon’ble ITAt Delhi has in Leela Devi vs. ITO (ITAT Delhi) [ITA No. 1423/Del/1420 has upheld addition of unexplained cash deposit in the bank account in AY 2017-18 i.e. during the demonetization period. 14. In view of the overall discussion made above, it is concluded that the appellant has failed to explain the source of cash deposited in the bank account. In the facts and circumstances of the case, the addition of Rs. 12,50,000/- u/s 69A of the Act is confirmed. 15. In the result, the appeal is dismissed.”

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Section 69A of the Act does not attract to this present case. In the present case the assessee has explained source of cash deposit of Rs. 12,50,000/- made by the assessee in Bank account during demonetization period on 10.11.2016. The Assessing Officer is wrong, unjust and has grossly erred in law in not accepting plea of the assessee that the cash deposit of Rs. 12,50,000/- in the bank account of the assessee during the demonetization period on 10.11.2016 was out of withdrawals made earlier in the year to meet marriage expenses of the son of the assessee which was to be held on 07.01.2017 . Further, the ld. AR for the assessee submitted that the assessee is an NRI and for marriage ceremony preparation several expenses such as cash gifts envelopes for relatives etc. purchase of several goods from local market of daily consumption, for decoration/flowers etc. for these expenses the assessee has incurred in cash and kept cash ready with him and with his family members to incur expenses as and when required. Further the Assessing Officer has erred in findings that the opening cash balance in hand of Rs. 4,66,688/- as on 01.04.2016 has not been submitted by the assessee, we are of the opinion that the assessee’s opening cash balance so given to the family members and other persons associated for the preparation of marriage ceremony for possible in future expenses was genuine . From the averments of the ld. AR for the assessee we observed that he has made further withdrawal cash from his bank accounts on 19.05.2016 and the ld. AR for the assessee submitted that documentary evidence and details of marriage expenses in PB from page nos. 18 to 28. Further, the ld. AR for the assessee submitted that no withdrawals from his bank accounts of the assessee was made by Keshav which is verifiable from bank account the withdrawals were made by Anurag and Nitish from bank account of the assessee was for and on behalf of the assessee on self cheques. The said persons are regular employees of the concern of his brother at Jaipur who were assisting assessee. The ld. AR for the assessee submitted that the affidavits of

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Nitish Mehta and Anurag Pareek in support of his averments and from the bank statements the cash withdrawn made earlier from bank for the marriage expenses has not been fully utilized and therefore cash remained with the assessee himself and in the meantime demonetization announced on 09.11.2016, the assessee deposited the cash of Rs. 12,50,000/- on the next day i.e. 10.11.2016 deposited in his bank account. The ld. AR for the assessee submitted that the evidence of the bank account statement of SBI that the said cash of Rs. 12,50,000/- deposited by the assessee in bank was out of withdrawals made by him. The copy of bank statement maintained with Central Bank of India for the financial year 2016-17 has been submitted in PB at page nos. 6 to 9 and 10-13.

14 IT(IT) A No. 218 /JP/2021 Sunil Kothari him during the demonetization period hence, we set aside the order of the ld. CIT(A) and allow the grounds of appeal of the assessee.

In the result, the appeal of the assessee is allowed.

Order pronounced in the open Court on 23/08/2022. Sd/- Sd/- ¼ jkBksM deys'k t;UrHkkbZ ½ ¼,l-lhrky{eh½ (Dr. S. Seethalashmi) (RATHOD KAMLESH JAYANTBHAI) ys[kk lnL; @Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 23/08/2022. *Santosh आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Sunil Kothari, Jaipur. izR;FkhZ@ The Respondent- DCIT, Circle (Intl. Tax.), Jaipur. 2. 3. vk;dj vk;qDr@ CIT vk;dj vk;qDr@ CIT(A) 4. 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. xkMZ QkbZy@ Guard File { IT(IT) A No. 218/JP/2021} 6. vkns'kkuqlkj@ By order, सहायक पंजीकार@Aेेज. त्महपेजतंत