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Income Tax Appellate Tribunal, “A” BENCH, MUMBAI
IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, MUMBAI BEFORE SRI MAHAVIR SINGH, JM AND SRI N.K. PRADHAN, AM (A.Y:2009-10) M/s Kawalnain Singh Sehgal Income Tax Officer, Flat No. 501, Ashar Villa, Plot Ward No. 21(2)(3) Mumbai Vs. No. 242, Near TAiml Sangham Hall Sion (E), Mumbai-400022 PAN No.ASLPS3244H Appellant .. Respondent Assessee by .. Shri. RS Bindra, AR Revenue by .. Shri. B.S. Bist, DR Date of hearing .. 12-01-2017 Date of pronouncement .. 17-02-2017 O R D E R PER MAHAVIR SINGH, JM:
This appeal by the assessee is arising out of the order of CIT (A)-32, Mumbai in appeal No. CIT (A)-32/ITO 21(2)(3)/IT-256/2011-12 dated 27-06-2012. The Assessment was framed by ITO Ward-21(2)(3), Mumbai for the A.Y. 2009-10 vide order dated 30-12-2011 u/s 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’).
The first issue in this appeal of assessee is against the order of CIT(A) confirming the action of the AO being unexplained cash deposits in the bank amounting to Rs.11,39,400/-. For this assessee has raised following ground No.1: -
“1. The learned CIT(A) has erred in upholding the addition of Rs. 11,39,400/- made by AO as unexplained cash credits for the reasons stated in the AO: -
Briefly stated facts are that the AO during the course of the assessment proceedings of verification of P&C bank account noticed that the assessee has deposited a total cash of Rs.11,39,400/- during the F.Y. 2008-09 relevant to this A.Y. 2009-10. The assessee tried to explain his case filing the details of cash deposit and stating that the cash deposited is out of the withdrawals on different dates. But the AO was not convinced and he added the cash deposits made in P&C saving bank account No.1001/11341 in Sion Branch. Aggrieved assessee preferred appeal before CIT(A), who also confirmed the action of the AO. The CIT(A) also noted that similar addition has also been made in the case of Jaspal Sigh Sehgal, who is brother of the assessee. Aggrieved, assessee is in second appeal before tribunal.
At the outset the learned Counsel for the assessee filed a copy of Tribunals order in assessee’s brother case Jaspal Sigh Sehgal in for the A.Y. 2009-10 order dated 16-03-2016, wherein the Tribunal has adjudicated cash deposits and withdrawals and directing the AO to consider the cash withdrawals and deposit in the same F.Y. and wherever cash deposits are out of the cash withdrawals the same should be given set off. The relevant finding of the Tribunal reads as under: -
“ii) Cash Withdrawn from Axis Bank of Rs.9,73,000/- and from PMC Bank of Rs.2,33,100/-: The lower authorities refused to give benefit of cash withdrawn from the bank on the ground that the assessee could not establish that the cash withdrawn has not been used anywhere else. In our opinion approach of the lower authorities is not fair and justified. The assessee has submitted detailed cash summary showing inflow and outflow of the cash for the entire year. In our opinion the assessee cannot be directed to prove the negative. It is a burden upon the AO to prove that cash has been utilized elsewhere by the assessee before he rejects the claim of the assessee. Unless any such contrary material is brought on record by him to prove that cash has been utilized elsewhere by the assessee, he should give benefit of cash withdrawn by the assessee from the bank account against the amount of cash deposit into the bank account of the assessee, especially when the cash has been withdrawn and deposited in the same financial year, even if the bank from where cash was withdrawn and bank where the cash was deposited are different. Thus, after considering entire facts and circumstances of the case, we direct the AO to give set off of entire amount of cash withdrawn from the Axis Bank and PMC Bank.”
On query from the Bench, the learned Sr. DR stated that the issue can be remitted back to the file of the AO for a verification of the facts.
After hearing the rival contentions and going through the facts of the case, we find that the facts are identical in the present case what was in the case of brother Jaspal Sigh Sehgal, wherein the Tribunal has already remitted the matter back to the file of the AO for following set off of cash deposits with the cash withdrawals of the year under consideration. We direct the AO accordingly. This issue of appeal is allowed for statistical purposes.
The next issue in this appeal of assessee is against the assessment of rental income as income from other sources.
At the outset, the learned Sr. DR objected to this ground and stated that no such ground was raised before CIT(A) and this being factual issue should be dismissed. When this was point out to the learned Counsel, he fairly conceded the position that before CIT(A) no such ground was raised. Accordingly, this ground is dismissed as not maintenable.
In the result, the appeal of assessee is partly allowed. Order pronounced in the open court on 17-02-2017.