RAJU JODHANI,R. K PURAM COLONY, FOY SAGAR vs. ITO WARD 1(2), AJMER

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Mk0 ,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, vk;dj vihy la-@ITA No. 620/JP/2023 fu/kZkj.k o"kZ@Assessment Years : 2011-12 cuke Raju Jodhani Income Tax Officer, Vs. S/o Sh. Shanker Lal Jodhani Ward 1(2), Ajmer 108, R. K. Puram Colony, Foy Sagar Road, Ajmer LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AMQPJ 2290 K vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. Satish Shivnani, CA jktLo dh vksj ls@ Revenue by : Smt. Monisha Chaudhary (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing : 04/07/2024 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 22/07/2024 vkns'k@ ORDER

PER: RATHOD KAMLESH JAYANTBHAI, AM

This appeal filed by assessee is arising out of the order of the National Faceless Appeal Centre, Delhi dated 28/06/2023 [here in after (NFAC)/ ld. CIT(A)] for assessment year 2011-12 which in turn arise from the order dated 21.12.2018 passed under section 143(3) r.w.s. 147 of the Income Tax Act, by ITO, Ward 1(2), Ajmer.

2 ITA No. 620/JP/2023 Raju Jodhani vs. ITO 2. At the outset of the hearing the bench noted that there is a delay of

43 days in bringing the present appeal. The assessee vide its application

filed for condonation delay contended that the assessee has sufficient

reasonable cause in bringing the present appeal which is delayed by 43

days only. The ld. AR of the assessee repeated the contentions / reasons

advanced by the assessee in his application for condonation of delay which

reads as under ;

3 ITA No. 620/JP/2023 Raju Jodhani vs. ITO

2.1 Per contra, the ld. DR did not raised specific objection, considering

the fact that the assessee is senior citizen as well as having the health

4 ITA No. 620/JP/2023 Raju Jodhani vs. ITO issues.

2.2 We have heard both the parties and perused the materials available

on record. The Bench Noted that the present appeal is delayed by 43 days.

The assessee in the condonation petition stated that he is senior citizen

and has health issue too. He lives alone. He also contended that though

the order under challenge is dated 28.06.2023 but was served upon the

assessee on 30.07.2023 and if that date is considered the period of delay

is only 9 days. In the light of these facts and considering the various judicial

precedent where in the courts has considered the explanation prevented

the assessee and thereby ignored the delay on account of the technicality

of the reasons. Even the apex court in the case of Collector, Land &

Acquisition Vs. Mst. Katiji& Others 167 ITR 471(SC) directed the other

courts to consider the liber approach in deciding the petition for

condonation as the assessee is not going to achieve any benefit for the

delay in fact the assessee is at risk. Based on these observations the delay

of 43 days in filing the appeal by the assessee is condoned in view of the

decision of Hon’ble Supreme Court in the case of Collector, land

Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC) as the assessee is

prevented by sufficient cause and the appeal is considered to be decided

based on the merits of the cash.

5 ITA No. 620/JP/2023 Raju Jodhani vs. ITO 3. In this appeal, the assessee has raised following grounds: -

“It is humbly requested to your honour that the grounds of appeal are as follows: 1) The notice u/s 148 was issued only on the ground that the property under consideration was overvalued by the Collector stamps, Ajmer.

2) The matter of cash deposited in the bank account was not mentioned at the time of issuance of the notice u/s 148 of the Income tax act 1961.

3) The Learned AO had made the exparte decision in respect of the cash deposited in the bank account, without granting opportunity of hearing to the assessee.

4) The Learned AO had made addition of cash deposited in the bank account, due to the ITR was not filed by the assessee.

5) It is humbly requested that as per the Income tax Act 1961, ITR is mandatory to be filed only in the cases where the Income of the assessee was above the maximum exemption limit. It is requested humbly that the assessee had explained during the proceedings before the AO and the Honourable Commissioner (APPEALS), that the cash deposited was out of the past accumulated savings of many years and the assessee had started earning from the age of early 18 years.

6) It is humbly requested that the Income tax Act 1961 also does not bind everyone to file the Income tax returns. If there is any taxable income during the year under consideration, which is above the maximum exemption limit, then only the assessee is bound to file the ITR. It is humbly requested that the AO had not granted any opportunity to the assessee before making any addition, in respect of cash deposited in the Bank and not granted the natural justice.

7) It is humbly requested to your honour that, merely on the basis, that the ITR is not filed cannot be justified in concluding that the assessee had no income. There are many persons who have below taxable income and therefore they don't file the ITR. It does not mean that the person has no income. The Persons below taxable limit does not file the ITRs, but they do have income which is below taxable.

8) In the matter of 115 ITR 524(SC) "Brij Bhushan Lal PradumanKumar vs. CIT (1978)

Held "The authority making a best judgement assessment must make an honest and fair estimate of the income of the assessee and through arbitrariness cannot be avoided in such an estimate, the same must not be capricious but should have a reasonable nexus to the available material and circumstances of the

6 ITA No. 620/JP/2023 Raju Jodhani vs. ITO case." 9) It is further requested humbly that the assessee had replied to the Commissioner appeals from time to time and on 29th June 2023 also and the commissioner appeals Order is dated 28th June 2023. Besides that we had made many requests also regarding to the issuance of the order but the Order of commissioner appeals was not made available on Income tax Portal. Therefore we had to make many requests on the grievance section of Income tax Portal. Ultimately after many requests we could hardly have the order of commissioner appeals on Income tax portal. 10) It is prayed before your honour that beyond the facts and the appeal authority has not considered the submission of assessee and the commissioner appeal has sustained the addition of Rs.440000/- which was made addition by assessing officer. Please consider the facts and circumstances and allow the relief. The grounds may be added, modified, crave/add during the appeal proceedings, etc.”

assessee has sold a residential land with boundary wall situated at village

Makarwali, Tehsil & District Ajmer for a consideration of Rs. 15,00,000/- on

01.11.2010 and the DLC value of the same was taken by the Sub-

Registrar-2, Ajmer for an amount of Rs. 22,69,350/-. However, the

Collector (Stamp), Circle-Ajmer vide his order dated 12.06.2012, has

enhanced the DLC value of the above immovable property from Rs.

22,69,350/- to Rs. 38,90,830/-. On verification it was noticed that the

assessee has not filed his return of income for the year under

consideration. Accordingly, notice u/s 148 of the IT. Act, 1961 was issued

on 23.03.2018 after taking appropriate approval from competent authority.

7 ITA No. 620/JP/2023 Raju Jodhani vs. ITO The above notice was sent through speed post & which was duly served

upon the assessee. Due to change of incumbent, notice u/s 142(1) was

issued on 19/07/2018. In response to notice u/s 148, the assessee filed

electronically return on 17/08/2018 declaring total income of Rs. 1,50,760/-

and he has requested the ld. AO to provide reasons for reopening of his

case. Accordingly the reasons recorded u/s 147/148 was also provided

through e-mail on 14.09.2018. Notice u/s 142(1) & 143(2) along with query

letter was issued online on 11/10/2018.

4.1 The assessee was asked to furnish the documentary evidence in

respect of cost and value taken for sale consideration. The assessee has

not furnished any evidence in respect of cost of construction. The assessee

is also intimated that the collector stamp has enhanced the value of the

property for stamp purpose at Rs. 39,18,580/-. The matter was also

referred to the DVO for valuation of the aforesaid property and also

cost/construction. The DVO vide his report No. 395 dated 10.12.2018

decided the fare market value of the property for financial year 2010-11 at

Rs. 49,65,200/-. As per provision of section 50-C(3) vide letter dated

14.12.2018 the assessee was asked as to why the sale consideration may

8 ITA No. 620/JP/2023 Raju Jodhani vs. ITO not be taken at Rs. 39,18,580/- as enhanced by the Collector Stamp,

Ajmer.

4.2 The assessee filed the reply on 18.12.2018 contending that cost of

land taken by AVO is unrealistic and infeasible. However, the ld. AO taken

the value at Rs. 39,18,580/- and accordingly added a sum of Rs.

16,49,230/- as long term capital gain chargeable to tax.

4.3 During the year under consideration a sum of Rs. 4,40,000/-

deposited in cash against which the assessee was asked to justify the

source of cash deposited into the bank account. The assessee submitted

that the said cash is sourced from earlier withdrawal and savings. The

explanation given by the assessee was considered but acceptable as the

same is not supported by any evidence. Thus, the cash deposited by the

assessee was added as concealed income of the assessee.

4.4 Interest income of Rs. 4,210/- was earned on the saving bank

account of the assessee with HDFC bank. As the said income was not

shown by the assessee in the ITR the same was added as concealed

income of the assessee.

9 ITA No. 620/JP/2023 Raju Jodhani vs. ITO Based on the above observation the income of the assessee was

determined at Rs. 22,24,200/- as against the returned income of Rs.

1,50,760/-.

appeal before the ld. CIT(A). Apropos to the grounds so raised the relevant

finding of the ld. CIT(A) is reiterated here in below:

“8. Decision I have carefully considered the submissions made by the appellant, the facts on record, the AO’s remand report and the applicable law in this regard. On perusal of the grounds of appeal filed vide Form 35, it is noted that the grounds are not clearly and succinctly worded and not numbers in a comprehensible manner. Hence for a better understanding and appreciation of the issues involved, the grounds are re-framed as under: Ground 1: Against the cost of acquisition and improvement and valuation of the property transferred during the relevant A. Y by the DVO Ground 2: Against the addition of Rs. 4,40,000/- as unexplained cash deposit: Ground 3: That reasons recorded u/s 147 are not valid, as it is recorded from borrowed information. In the course of appellate proceedings the appellant filed revised/additional grounds vide submission dated 16.06.2023 as under: "It is humbly requested, Before your honour, that in the Grounds of Appeal previously the assessing officer has taken the value Rs 3890830/- which was ascertained by the Collector (Stamp), Circle-Ajmer vide his order dated 12.06.2012, the enhanced DLC value of property was Rs.2269350/-. The assessee has preferred the Appeal before the Honourable Tax Board Rajasthan, Ajmor and the Honourable Rajasthan Tax Board has sustained value of Rs. 2269350/- which was valued by the Registration department at the time of registration of the sale deed (copies is enclosed). This is the

10 ITA No. 620/JP/2023 Raju Jodhani vs. ITO modified Grounds of Appeal before your honour, during the Appeal period and it is prayed humbly to allow the relief. This value of Rs.2269350/- has also been discussed by the assessing officer in the body of the assessment order at Page.2.

Thus as a result of the order of Honourable Rajasthan Tax Board, Ajmer, the basis of issuance of notice u/s 148 ceases to exist. Therefore all the proceedings done u/s 148 becomes invalid. Therefore it is humbly prayed to your honour that as the grounds of issuance of notice u/s 148 becomes null and void. Therefore it is humbly prayed to your honour to kindly quash the demand raised.

It is humbly requested to your honour, to kindly consider the modified grounds of appeal before your honour, in the Form No.35 dated 23/01/2019.

As the above revised/additional grounds are directly pertinent to the issues being agitated, and as I am satisfied that these are bona fide grounds which could not have been raised earlier for the reason that the order of Honourable Rajasthan Tax Board, Ajmer, was received subsequent to filing of appeal, the revised/additional grounds are admitted and considered for adjudication as under:

Ground 4: As a result of the order of Honourable Rajasthan Tax Board, Ajmer, the basis of issuance of notice u/s 148 ceases to exist and all the proceedings u/s 148 becomes invalid and the demand raised may be quashed.

The reframed grounds of appeal are adjudicated as under:

Vide Ground of appeal No. 1 the appellant contends that the DVO has erred in valuating the property which was transferred during the relevant A.Y and in respect of which capital gains was computed at Rs. 1799994 by the A.O. However, it is pertinent to note that as recorded in the assessment order, in assessing the capital gains, the sale consideration was considered applying the provisions of section 50C at Rs.39,18,580/-i.e the value decided by the Collector Stamp, Ajmer. Further the cost of construction claimed by the assessee was accepted, being lower than the cost of construction as per the DVO. Hence, as the Cost of acquisition and improvement was taken as claimed by the assessee and not according to DVO's valuation, the above ground of appeal is not maintainable and is dismissed.

Grounds of appeal No.3 & 4 vide which the appellant is questioning the validity of the proceedings u/s 147 are inter-related and hence taken up together for adjudication.

The appellant has contended vide Ground 3 that the reasons recorded u/s 147 are not valid, as it is recorded from the borrowed information and has relied

11 ITA No. 620/JP/2023 Raju Jodhani vs. ITO on the judicial decisions in the case of Nirmala Agarwal vs. ACIT (2018) 64 ITR (Tribunal) 658 (Jaipur) and BirBahadur Singh Sijwali vs. ITO, Ward-1. Co. 366 (Delhi-Trib).

In the instant case, the assessee had sold land situated at Village Makarwali, Tehsil & District Ajmer for a consideration of Rs. 15,00,000/- on 01-11- 2010 and the DLC value of the same was taken by the Sub-Registrar-2, Ajmer at Rs.22,69,350/-. However, the Collector (Stamp), Circle-Ajmer vide his order dated 12.06.2012, enhanced the DLC value of the above immovable property from Rs.22,69,350/- to Rs.38,90,830/-. As the assessee had not filed his return of income for the year under consideration, notice U/s 148 of the I.T. Act, 1961 was issued on 23-03-2018. It is pertinent to note that despite having transferred immovable property which resulted in capital gains the assessee did not file his return of income u/s 139. As no return had been filed by the assessee, and as there was no response to the enquiry letter sent by the A.O, asking to explain the above transaction, the A.O had reason to believe that income had escaped assessment.

In the case of Nirmala Agarwal vs. ACIT (2018) 6 4 ITR (Tribunal) 658 (Jaipur) relied upon by the assessee, the re-opening was on the basis of statement recorded by investigation wing and cross examination was not provided; whereas the case Bir Bahadur Singh Sljwali vs. ITO, Ward-1, Haldwani was a case where cash deposits were found in the assessee's bank account, and the Tribunal observed that ther easons recorded for reopening the assessment did not make out a case that the assessee was engaged in some business and the income from such a business had not been returned by the assessee. The instant case however is a case of transfer of Immovable property where no retum of income was filed, and the information based on which the case was re-opened was not some third party statement but the order of Collector (Stamp), Circle- Ajmer enhancing the DLC value of the above immovable property. This is an order passed by a judicial authority and thus has legal sanctity which can only be challenged by due judicial process. Hence, I find no merit in the appellant's contention that the proceedings u/s 147 are not valid as being based on borrowed information.

Further, it has been submitted the assessee went in appeal against the order of Collector (Stamp), Circle-Ajmer enhancing the DLC value of the above immovable property. The assessee submitted that the Honourable Tax Board, Rajasthan, Almer decided in his favour and sustained the value of the property at DLC rate only Le Rs.22,69,350 and the value of Rs 38,90,830 as confirmed by Collector stamps was rejected. A copy of the order of the Tax Board was submitted, and it is seen that vide above order the value of the property sold by the assessee was confirmed at DLC rate i.e. Rs. 22,69,350/-. However, it is also pertinent to note that at the time of initiation of proceedings us/ 147 the prevailing value of the property was the enhanced value of Rs. 38,90,830 as per the order of the Collector stamps, Circle- Ajmer. The basis of issuance of notice u/s 148

12 ITA No. 620/JP/2023 Raju Jodhani vs. ITO was valid at the time of issue of notice and completion of proceedings u/s 147. It is only due to further appeal filed and subsequent adjudication of the issue by the higher authority that the valuation of the property has been reverted/revised. Hence, this post facto decision does not alter the validity of the notice u/s 148 and the resultant proceedings. However, the A.O is directed to pass necessary orders to rectify the computation of long term capital gains in the hands of the assessee taking into account the revised/reverted valuation of the immovable property at Rs. 22,69,350/- by the order of the Honourable Tax Board Rajasthan, Ajmer dated 12.02.2021, and the demand raised on this account may be reduced accordingly. This ground is treated as partly allowed.

Ground No. 2 is against the addition of Rs. 4,40,000/- as unexplained cash deposit

During assessment proceedings, the A.O on perusal of bank statement of the assessee's account with HDFC Bank, Ajmer, noted that the assessee had deposited cash totaling Rs.4,40,000/- during the financial year 2010-11. The assessee submitted that the cash was deposited out of past saving and out of withdrawals from Bank. The A.O noted that the assessee had not shown any evidence that after withdrawing he had deposited the same in bank account. Further, as the assessee had also not filed any return of income in earlier years, the plea of past saving was found not acceptable and hence, the cash deposit of Rs.4,40,000/- was treated as found unexplained money. In remand proceedings also, the assessee was unable to explain the above cash deposits.

In the present appellate proceedings, it was submitted that the assessee was around 50 years old in F.Y 2010-11 and belonging to Sindhi Community, and having earning from an early age 18 years and thus he had enough cash liquidity out of which he had deposited cash in the bank account. It was further submitted that he had made withdrawals from his account with State Bank of India which was deposited in his HDFC account. It was further stated during VC hearing that the assessee had been earning some income from poultry business but as the same was below taxable threshold therefore he had not filed income tax return for the A.Y. 2011-12 or for earlier years.

Having duly considered the assessee's submissions, and the facts on record, it is noted that the claim of the sources for the cash deposit are not authenticated in any way other than by self serving statements. In the absence of any returns filed there is no evidence to support the claim of business income earned in preceding years or even in the relevant year. The claim of withdrawal from one account and re-deposit into another account cannot be accepted as explanation for the source of the cash deposit in a case where no returns are filed and there is no evidence to prove that the assessee had earned such income as claimed. It is also relevant to note that in the account with SBI there are again cash deposits on various occasions. Unexplained cash deposits in one account cannot be taken to be an acceptable source for cash deposits in the other account. This being the case, the

13 ITA No. 620/JP/2023 Raju Jodhani vs. ITO addition made by the A.O of Rs. 4,40,000/- as unexplained cash deposit is upheld and appellant's ground is dismissed. 9. Accordingly, in the result, the appeal filed by the appellant is partly allowed.”

addition of Rs. 4,40,000/- being the amount of cash deposited by the

assessee into the bank account. To support the various grounds so raised

by the ld. AR of the assessee, has filed the written submissions in respect

of the various grounds raised by the assessee and the same is reproduced

herein below.

“It is humbly prayed before your honour, that in the body of the assessment order for A.Y. 2011-12 , the A.O. has made addition of Rs. 4,40,000/- on account of cash deposited in HDFC Bank, treating as unexplained cash. It is prayed that without providing proper opportunity of hearing and before rejecting the submission of assessee, the opportunity of hearing was not granted and the AO has made addition of Rs.4,40,000/- as cash deposit in bank and during the assessment proceedings the AO has not discussed and not asked assesee the reason for not filing Income Tax Return in the previous years, neither this question was asked from assesse that why not this addition may be made. Thus opportunity of hearing and explaination for non filing of the ITRs in the previous years , was not granted by the assessing officer. The grounds of appeal was also submitted before the Honourable Commissioner of Income Tax(Appeals), Regarding addition of Rs. 4,40,000/- the assessee is 49 years old in the year under consideration , who belongs to Sindhi Community, these are the earning from the early age and he has enough cash liquidity out of it, he has deposited cash in bank account. He has below taxable income, therefore he has not filed income tax return for the A.Y. 2011-12. It is further prayed that the Honourable Commissioner of Income Tax(Appeals) has upheld the addition of Rs. 4,40,000/- which is made by the assessing officer. It is prayed before your honour that assessee is above 50 years old person and by nature of Sindhi Community they are doing any business to meet out the expenses for household and keep cash with him for the business uncertainty and unseen expenses in the family and in the social responsibility etc, he has

14 ITA No. 620/JP/2023 Raju Jodhani vs. ITO accumulated enough cash of Rs. 8,30,969/- before the financial year 2010-11 and he has below taxable income therefore he was not required to furnish income tax return as per the section 139(1) of the Income tax Act 1961.

Further it is prayed that Shri Raju Jodhani with his wife Seema Jodhani has joint account in the State bank of India ,Account no.: 10158211236 and from this statement it is self explained that during the year the assessee has withdrawn the cash . The Details of the cash withdrawal from the joint account with wife Seema are as follows :

Date Amountwithdrawn 13/08/2010 125000 25/02/2011 160000 02/03/2011 300000

Thus In the HDFC Bank account No.: 02021930004193, amount of Rs.4,40,000/- (Deposited Rs. 200000 dated 20/12/2010 , Rs. 140000 dated 12/03/2010 and Rs. 100000 , dated 24/03/2011) is from the sources of old cash savings and withdrawals from the joint account which is mentioned in the SBI and evident from the bank statement enclosed and abovementioned information. Therefore it is prayed that the sources for cash deposited are submitted before your honour and it is prayed that if the assessee has below taxable income it is not mandatory for the assessee to file the Income Tax return every year.

The notice issued u/s 147/148 was on the ground of property sold during the year , the matter of cash deposit was no where mentioned or raised in the above said notice issued u/s 148 . It is prayed that Commissioner Of Income Tax (Appeals) has allowed relief in respect of the ground on which addition were made in the assessment order and in the reason of notice issued u/s 148 , grounds of cash deposited in bank , is not mentioned in the body of the assessment order. Therefore it is requested to consider the facts and circumstances. Please delete the additions made by the concerning officer.

It is humbly requested that I Am BP patient and have cardiac problem and I have viral fever. Therefore please adjourn the case for 30 days and oblige.

Honourable Sir, It is humbly requested before your honour that opportunity of hearing may be granted , before passing order by your good self . It is further prayed that if any information is required it may be submitted separately. I will be grateful to your honour.”

15 ITA No. 620/JP/2023 Raju Jodhani vs. ITO 7. In support of the contention so raised in the written submission

reliance was placed on the bank statement of HDFC Bank, SBI Bank and

affidavit of the assessee regarding the cash deposited into the bank

account.

and more particularly advanced the similar contentions as stated in the

order of the ld. AO and ld. CIT(A). She also submitted that the assessee

has not filed any ITR earlier and has filed the ITR only after 148 issued in

the case of the assessee. The ld. DR also relied upon the following case

laws to support the fact that when the proceeding u/s. 148 is undertaken the

addition can also be made related to other grounds / issues;

S. No. Particulars Page no. 1 [2015] 60 taxmann.com 333 (Karnataka) High Court of 1-18 Karnataka N Govindaraju v. Income-tax officer, Ward-8(2), Bangalore 2 [2012] 25 taxmann.com 124 (Punjab & Haryana) High Court of 19-22 Punjab and Haryana Majinder Singh Kang vs. Commissioner of Income-tax 3 [2014] 52 taxmann.com 51 (Punjab & Haryana) High Court of 23-26 Punjab & Haryana Commissioner of Income tax vs. Mehak Finvest (P.) Ltd.,

on record. The only issue under challenge in this case is the source of cash

16 ITA No. 620/JP/2023 Raju Jodhani vs. ITO deposited by the assessee is to be considered as explained or unexplained.

The brief facts as emerges on the issue is that during the assessment

proceeding ld. AO noted that the assessee has deposited a sum of Rs.

4,40,000/- into the bank account of the assessee. The assessee was asked

upon to explain the source of cash deposited into the bank account. The

assessee explained that source of the deposit of cash is out of earlier

withdrawal and savings. The ld. AO noted that sale consideration in respect

of the sale of property was received by cheque and the assessee did not

support the contention that after withdrawing the cash the same was

deposited into the bank account. Accordingly, the cash deposited by the

assessee was considered as undisclosed income of the assessee. Before

the ld. CIT(A) he noted that the claim of the sources for the cash deposit

are not authenticated in any way other than by self serving statement and

no evidence was filed therefore, the claim of the assessee that he has

made withdrawal from one account and has deposited into the other

account cannot be accepted and thus he sustained the addition.

9.1 The ld. AR of the assessee while arguing the case of the assessee

drawn our attention that as in the case of the assessee the assessment was

re-opened to verify the capital gain which was done and for that the

assessee has received the relief from the order of the ld. CIT(A). As regards

17 ITA No. 620/JP/2023 Raju Jodhani vs. ITO the addition of Rs. 4,40,000/- being the amount of deposit of cash by the

assessee submitted the details of the source of cash deposit and therefore,

before making the addition of Rs. 4,40,000/- the assessee was not given

any show cause notice to justify the source and therefore, ld. AR submitted

that the order of the ld. AO and that of the ld. CIT(A) violated the principles

of natural justice. As the assessee was not allowed to support the claim the

assessee has filed a detailed affidavit in support of deposit of cash into the

bank account. The content of the affidavit filed by the assessee reads as

under:

18 ITA No. 620/JP/2023 Raju Jodhani vs. ITO

19 ITA No. 620/JP/2023 Raju Jodhani vs. ITO

As it is evident that the assessee was not given any show cause notice

before making the addition. The assessee already contended before the

lower authority that the source of deposit of cash into the bank account was

from the withdrawal made from the joint account maintained by the

assessee with her wife Ms. Seema Jodhani. The assessee also filed a bank

statement to support the withdrawal of cash in addition to the affidavit. It is

also evident from the bank statement that the assessee has withdrawn a

sum of Rs. 5,85,000/- and out of that amount he has deposited a sum of

20 ITA No. 620/JP/2023 Raju Jodhani vs. ITO Rs. 4,40,000/-. This explanation furnished by the assessee cannot be

brushed a set because the assessee has not filed any ITR for the

immediately previous year and even for that the assessee has submitted

that withdrawal was made from the joint and account with his wife and the

assessee has income below the maximum amount not chargeable to tax

and therefore, he was not under obligation to file ITR. The bench noted the

overall facets of the dispute but when all the aspect of the matter has been

clarified by filling an affidavit and the same has not been controverted by

the ld. AO through the ld. DR we find no reason to sustain the addition of

Rs. 4,40,000/- in the hands of the assessee. Since all the grounds are

surrounded for an addition of Rs. 4,40,000/- we need to deal with all the

grounds of the assessee separately and based on this observation the

appeal of the assessee is allowed.

In the result, appeal of the assessee is allowed.

Order pronounced in the open court on 22/07/2024.

Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member

Tk;iqj@Jaipur fnukad@Dated:- 22/07/2024

21 ITA No. 620/JP/2023 Raju Jodhani vs. ITO *Ganesh Kumar, Sr. PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Raju Jodhani, Ajmer 2. izR;FkhZ@ The Respondent- ITO, Ward 1(2), Ajmer 3. vk;dj vk;qDr@ The ld CIT vk;dj vk;qDr¼vihy½@The ld CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. 6. xkMZ QkbZy@ Guard File (ITA No. 620/JP/2023) vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत