SH. KESAR KADIR KHAN,JAIPUR vs. ITO, WARD-5(3), JAIPUR, JAIPUR

5 SHRI KESAR KADIR KHAN VS ITO, WARD 5(3), JAIPUR 7. Judgement being stated due to lack of evidence, hence the decision is being given on merits. The total addition made by the AO of Rs.21,78,079/- is upheld. All the grounds of the appellant are quashed, and the appelant’s appeal is dimissed.

by the assessee in this appeal is allowed." Nand Kumar Taneja & Anr. Vs. ITO (2019)

55. CCH 0705 (Del.) (Trib.) (Case laws compilation PB 6-9) Para 6 & 7 of this decision is reproduced as under:- “6. Apart from that, the details of; opening cash, cash withdrawal, cash deposited, cash expenditure; closing cash in hand and increase cash in hand, in case of both the assessees were given before the authorities below, which has been incorporated above in para 3 and 3.1 No discrepancy or any inquiry has been done by Assessing Officer to disapprove the cash disclosed in the books of account and balance sheet. The sole reason for disbelieving the assessee’s explanation is that, firstly, no prudent person after withdrawing the cash will keep at home; and secondly, if there was an OD account having negative balance on which interest is being charged, then there was no need to keep such huge cash in hand at home. Such reasoning dehors any contrary material on record that the cash disclosed in the books of accounts has been invested somewhere else, then on mere surmise assessee’s explanation cannot be discarded. If assessees have genuine sources of income which are received through banking channels, out of which cash has been withdrawn and have been disclosed in the income tax return and in the balance sheet as cash-in-hand, then I am unable to apprehend how the provision of section 69A is applicable. Because the section can only be invoked where in any financial year the assessee is found to be the owner of any money, etc., which has not been recorded in the books of accounts and assessee offers no explanation. Here in these cases, Assessee’s cash in hand duly stands recorded and source has been explained from the income deposited in the bank account and withdrawal, then in my opinion deeming provision of section 69A cannot be invoked. The reasoning given by the AO and Ld. CIT (A) is vague and based on surmise as to what a prudent person should have done. Once assessee has explained that being of senior citizen they have maintained such liquidity of cash out of their own disclosed income with them for certain contingencies, then without any material to controvert such an explanation, addition cannot be sustained. Assessees before the lower authorities have filed following documents to substantiate the cash in hand with them:- a. Income Tax Return with computation of total income. b. Balance Sheets for FY 2013-14, 2014-15 and FY 2015-16. c. Comparative Chart of cash movement FY 2013-14, 2014-15 and FY 2015-16. d. Cash book maintained by the assessee. e. Kotak Mahindra Bank Statement bearing A/c No. 6311509485 f. Standard Chartered Bank: Statement of account.

8 SHRI KESAR KADIR KHAN VS ITO, WARD 5(3), JAIPUR g. Bank: Book of Kotak Mahindra Bank. h. Bank Book of Standard Chartered Bank. i. Copy of all medical treatment documents.

Krishna Agarwal Vs. ITO (2021) 63 CCH 0048 (Jodh.) (Trib) (Case laws compilation PB 10-20) Para 14 of the decision is reproduced as under:- “14. In this regard, it is noted that the assessee has explained that out of earlier year's cash withdrawals from her bank account which were available as cash balance as on 01/04/2016, the assessee had deposited a sum of Rs. 68,95,000/- in her bank account during the year under consideration. It has been submitted that the assessee has sold a property, transferred in her name after the death of her husband, for a consideration of Rs 1,31,45,200/- during the financial year 2015- 16 and the sale consideration has been received in installments during the financial year 2014-15 and financial 2015-16 directly in her bank account which has been subsequently withdrawn from time to time and due to non-fulfillment of purpose for which the cash was withdrawn, it was again re-deposited in the bank account during the year under consideration. In this regard, it is noted that the assessee in her return of income for A.Y 2016-17 has disclosed sale consideration on sale of plot of land for Rs 1,31,45,200/- and offered capital gains to tax. The plot has been sold through a registered deed and the valuation has been determined at Rs 1,31,45,200/- by the stamp duty authority. Thus, the sale consideration equivalent to stamp duty value has been duly disclosed by the assessee and there is no finding that the assessee has received any amount over and above the declared sale consideration. Therefore, given that the sale consideration has been received directly in the assessee's bank account, the source of cash withdrawals in the earlier two years has been clearly demonstrated by the assessee and we see no reason but to accept the said explanation which is clearly demonstrated through the sale documentation and tax filings by the assessee”. Neeta Breja Vs. ITO order dt. 25.11.2019 (Del.) (Trib.) (Case laws compilation PB 21-24) The Hon’ble bench at Para 12 of its order held as under:-

“12. In the present case also the learned assessing officer or the learned CIT A did not show that above cash was not available in the hands of the assessee or have been spent on any other purposes. Further the coordinate bench in ACIT vs Baldev Raj Charla 121 TTJ 366 (Delhi) also held that merely because there was a time gap between withdrawal of cash and cash deposits explanation of the assessee could not be rejected and addition on account of cash deposit could not be made particularly when there was no finding recorded by the assessing officer or the Commissioner that apart from depositing this cash into bank as explained by the assessee, there was any other purposes it is used by the assessee of these amounts. In view of above facts, the ground number 1 of the appeal of the assessee is allowed and orders of lower authorities are reversed.” DCIT Vs. Veena Awasthi (2018) order dt. 30.11.2018 (Lucknow) (Trib.) (Case laws compilation PB 25-34) The Hon’ble ITAT AT Para 8 of its order held as under:- “8. We have perused the case record and heard the rival contentions. We find that addition has been made by the Assessing Officer, as is evident from his order, on the ground that he has come to the conclusion that cash deposits were from some other source of income which is not disclosed to the Revenue. Assessing Officer nowhere in his order has brought out any material on record to show that assessee is having any additional source of income other than that disclosed in the return nor Assessing Officer could spell out in his order that cash deposits made by the assessee was from some undisclosed source. All throughout Assessing Officer has raised suspicion on the behavioural pattern of frequent withdrawal and deposits by the assessee. There is no law in the country which prevents citizens to frequently withdraw and deposit his own money. Documentary evidences furnished before the Revenue clearly clarifies that on each occasion at the time of deposit in her bank account, assessee had sufficient availability of cash which is also not disputed by the Revenue. Entire transaction of withdrawals and deposits are duly reflected in the bank account of the assessee and are verifiable from relevant records. Assessing Officer himself admitted that assessee had sufficient cash balance on each occasion at the time of deposit in her bank account on different dates during the assessment year under consideration. We have also examined the order of ld. CIT(A) and we find that his decision is based on facts on record and is supported by adequate reasoning and, therefore, we do not want to interfere with the order of ld. CIT(A) and accordingly we uphold the findings of the ld. CIT(A) sustaining relief granted to the assessee.” In view of above, considering the overall facts and circumstances of the case, it cannot be presumed that assessee has any undisclosed income which was deposited in the bank account and therefore, addition confirmed by Ld. CIT(A) be directed to be deleted.’’ 2.5 The Bench has heard both the parties and perused the materials available on record including the written submission of the assesse. Brief facts of the case are that in this case the assessee filed the return of income on 22-02-2018 declaring total income of Rs.3,84,220/- for this year as income from salary, It is noted from the assessment order that the assessee is a salaried class and was an employee of JDA, Jaipur. The case of the assessee was selected for scrutiny assessment under CASS. During the course of assessment proceedings, the AO made the addition of Rs.21.50 lacs and Rs.28,079/- by observing as under:-

‘’On perusal of submission furnished by the assessee, it is noticed that the assessee had withdrawn cash of Rs.24,00,000/- and utilized the cash Rs. 2.50 Lacs during the period from 04.04.2016 to 21.11.2016. In seven months, the assessee utilized only of Rs. 2.50,000/- but there is no logic to withdraw of such huge amount of money of Rs. 24,00,000/- and keep it at home. The assessee stated that he had withdrawn the amount of Rs.24,00,000/- for medical treatment, but from perusal of bank statement of the assesee, it is found that he has never withdrawn considerable amount of money except withdrew amount to the extent of household expenses before and after the date of withdrawn of Rs.24,00,000/- i.e. 04.04.2016, while the assessee himself stated in his submission that "my wife is suffering from serious illness since 2014". If it were withdrawn for the purpose of medical treatment he used to withdraw considerable amount of money regularly for the treatment, but it was not so From this, it is proved that, It is totally after thought and concocted story for the purpose of hide his source of income. Therefore, it is inferred that it is totally unexplained source of cash deposit in bank account. Considering the facts, circumstances of the case and nature of income shown by the 11 SHRI KESAR KADIR KHAN VS ITO, WARD 5(3), JAIPUR assessee, cash deposited in the Bank Account during the demonetization period of Rs.21,50,000/- is added to the total income of the assessee treating the same as unexplained source of cash deposits in bank account during the demonetization period u/s 69A of the Act. Therefore, an addition of Rs.21,50,000/- is hereby made u/s 69A of the Act treating as unexplained source of cash deposit. The total Income assessed u/s 115BBE of the Act at the rate of 60%. On verification of bank account, it is found that the bank has credited interest of Rs.28,079/-(Rs. 610 on 25.04.2016, Rs.63 on 25.07.2016, Rs. 123 on 25.10.2016, Rs.7,571 on 25.12.2016 and Rs. 19,712 on 25.03.2016). Considering the facts, circumstances of the case and nature of income shown by the assessee, interest received by the assessee during the Financial Year 2011-12 of Rs.28,079/- is added to the total income of the assessee treating the same as undisclosed income received from interest. Therefore, an addition of Rs.28,079/- is hereby made treating as undisclosed income.’’ In first appeal, the ld. CIT(A) has confirmed both the additions i.e. Rs.21,50,000/- and Rs.28,079/- making the total of Rs.21,78,079/- as made by the AO. It is noted from the records that the assessee is in appeal before the Bench for adjudication of the addition of Rs.21.50 lacs. It is noted from the records that the assessee is a Rajasthan Govt. employee and working in Jaipur Development Authority whose only source of income from salary. It is noted from the records that the assessee had inherited an ancestral immovable property situated at H-4/58, Ramesh Marg, C-Scheme, Jaipur measuring 254.51 sq. yd. from his forefathers. On this property through development agreement assessee got 55% share in the constructed property comprising of stilt floor and 3 floors thereon. The assessee’s wife was 12 SHRI KESAR KADIR KHAN VS ITO, WARD 5(3), JAIPUR suffering from serious illness since 2013. At that time she has brain hemorrhage due to Reumatic heart disease which is evident from discharge summary dt. 11.06.2013 at Indowestern Brain & Spine Hospital, Jaipur (PB 19-24). Due to this her left side was paralysed. She was under continuous medical treatment of Dr. Bhawna Sharma, DM, Neurology (PB 25-27) who was subsequently suggested to get her treatment from Mumbai. Accordingly, assessee sold Flat No.G-1 at stilt floor measuring 800 sq. ft. on 31.03.2016 for Rs.24,25,000/-, This amount was credited in his bank account on 02.04.2016 out of which he withdrew Rs.24 lacs on 04.04.2016 and such transactions shows from his State Bank Account Bearing A/c No. 51101314050 (PB 35). The ld. AR of the assessee informed the Bench that the planning to get the treatment from Mumbai was deferred and the cash remained with the assessee. Thereafter the wife of assessee suffered from Breast Cancer and ultimately she expired on 07.09.2020 for which the assessee filed Death Certificate issued by Govt. of Rajasthan (Directorate of Economics & Statics),Civil Lines, Jaipur (PB 28-34). It is further noted that out of the amount of Rs.24,00,000/- which was withdrawn on 04.04.2016, assessee incurred expenditure of Rs.2,50,000/- for his wife’s medical treatment at Jaipur and the balance unutilized money lying with him was deposited in the bank account after the date of demonetization as under:-