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2025 (2) TMI 329 - AT - Income TaxUnexplained cash credit u/s. 69A - application of Section 115BBE - AR has strongly argued against separate addition of the cash deposit during demonetization period - HELD THAT - The assessee is engaged in the business of travel agent and tour operator but he has deposited the SBN on different dates from 10.11.2016 to 12.11.2016 as tabulated of the assessment order. If the assessee had the old SBN before demonetization period he would have deposited the same on a single day and not on different dates. It is an undisputed fact that the assessee has not given details of the depositors of the impugned cash during demonetization period. He has not correlated the deposit with bookings of tickets/hotels etc. There is no one-to-one nexus between the depositors and the services provided by the assessee. Therefore the argument of the ld. AR cannot be totally accepted. In the case of Amrita Gems Pvt. Ltd. 2023 (8) TMI 1491 - ITAT SURAT has held that to avoid possibility of revenue leakage disallowance of 10% of cash generated during demonetization period would meet the ends of justice. In the present case there are cash deposits during demonetization period as well as remaining period of the year. Hence we direct the AO to restrict the addition to 20% of the cash deposit to avoid possibility of revenue leakage and delete the remaining amount. Accordingly this ground is partly allowed. Levy of tax u/s 115BBE - AR has relied on various decisions which are placed in the paper book. We find that the Division Bench of this Tribunal in cases of Samir Shantilal Mehta 2023 (5) TMI 1279 - ITAT SURAT Arjunsinh Harisinih Thakor 2023 (6) TMI 770 - ITAT SURAT Jitendra Nemichand Gupta 2023 (6) TMI 1338 - ITAT SURAT and Sanjaybhai Mansukhbhai Patel 2024 (8) TMI 1524 - ITAT SURAT held that applicability of amended provision of Section 115BBE of the Act is not retrospective. There is no reason not to follow above decisions. Thus the AO is directed to tax the addition at normal rate of tax and applicable surcharges and cess if any. The the assessee is accordingly allowed relief against taxing the addition at higher rate u/s 115BE of the Act.
ISSUES PRESENTED and CONSIDERED
The core legal issues considered in this judgment are: 1. Whether the addition of Rs. 35,64,800/- as unexplained cash credit under Section 69A of the Income-tax Act, 1961, was justified. 2. Whether the application of Section 115BBE of the Act, which imposes a higher tax rate on unexplained income, was appropriate in this case. ISSUE-WISE DETAILED ANALYSIS Issue 1: Addition as Unexplained Cash Credit under Section 69A Relevant Legal Framework and Precedents: Section 69A of the Income-tax Act deals with unexplained money, where the taxpayer is unable to provide a satisfactory explanation for the source of money, and such money is deemed to be the income of the taxpayer. The CIT(A) relied on the precedent set in Smt. Srilekha Banerjee and Others vs. CIT, where the burden of proof lies on the taxpayer to establish the source of cash deposits. Court's Interpretation and Reasoning: The Tribunal considered the nature of the assessee's business as a travel agent and tour operator, where cash transactions are common. The Tribunal noted that the assessee deposited cash on multiple dates during the demonetization period, which raised questions about the legitimacy of the cash deposits. The Tribunal found that the assessee failed to establish a direct nexus between the cash deposits and business receipts. Key Evidence and Findings: The assessee provided a month-wise chart of cash receipts and deposits, showing fluctuations in cash on hand. The Tribunal noted that while the assessee claimed cash was received from customers for tours, there was no direct correlation between the cash deposits and specific business transactions. Application of Law to Facts: The Tribunal applied the principles of Section 69A, emphasizing the need for a satisfactory explanation of the cash source. Given the lack of direct evidence linking the cash deposits to business receipts, the Tribunal found the addition under Section 69A partially justified. Treatment of Competing Arguments: The assessee argued that the cash deposits were normal business transactions, while the revenue contended that the deposits were unexplained. The Tribunal partially accepted the revenue's position, acknowledging the lack of direct correlation between deposits and business activities. Conclusions: The Tribunal directed the AO to restrict the addition to 20% of the cash deposit of Rs. 35,64,800/- to account for potential revenue leakage, while deleting the remaining amount. Issue 2: Application of Section 115BBE Relevant Legal Framework and Precedents: Section 115BBE imposes a higher tax rate on income deemed unexplained under certain sections of the Income-tax Act. The Tribunal considered whether this section applied to the assessment year in question. Court's Interpretation and Reasoning: The Tribunal noted that the provisions of Section 115BBE were enacted on 15.12.2016 and could not be applied retrospectively to the assessment year under consideration. The Tribunal relied on decisions from various benches that supported this interpretation. Key Evidence and Findings: The Tribunal found that the assessee's business was solely in tours and travels, and the source of cash deposits was explained as business receipts. The Tribunal concluded that the provisions of Section 115BBE were not applicable. Application of Law to Facts: The Tribunal applied the principle that tax laws should not be applied retrospectively unless explicitly stated. Since Section 115BBE was not retrospective, the Tribunal ruled in favor of the assessee. Treatment of Competing Arguments: The revenue supported the application of Section 115BBE, while the assessee argued against its applicability. The Tribunal sided with the assessee based on the timing of the enactment of Section 115BBE. Conclusions: The Tribunal directed the AO to tax the addition at the normal rate of tax, granting relief to the assessee against the higher tax rate under Section 115BBE. SIGNIFICANT HOLDINGS Core Principles Established: - The burden of proof lies on the taxpayer to satisfactorily explain the source of cash deposits under Section 69A. - Tax provisions should not be applied retrospectively unless explicitly stated in the law. Final Determinations on Each Issue: - The addition under Section 69A was partially upheld, with the Tribunal directing a 20% addition to account for potential revenue leakage. - The application of Section 115BBE was rejected, and the addition was to be taxed at the normal rate.
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