2021 (1) TMI 197 - AT - Income Tax

Unexplained cash deposits in the bank account - HELD THAT - Entire issue hinges upon the primary evidence which is Ikrarnama /agreement to sell, wherein the purchaser has made payment of cash. This Ikrarnama was not filed before the Assessing Officer, because the order has been passed ex-parte for which assessee submitted that notices issued by the Assessing Officer were not received by the assessee at all. Before the ld. CIT (A) when Ikrarnama was filed, CIT(A) has called for the remand report and Assessing Officer also did not give any opportunity so as to substantiate the authenticity of the Ikrarnama and the same has been rejected by the Assessing Officer on surmises. AO and Ld. CIT (A) has confirmed the addition merely on the ground that the primary evidence, i.e., Ikrarnama is an afterthought and its authenticity is in doubt. Thus we are of the opinion that the matter should be restored back to the file of the Assessing Officer and the assessee is directed to prove the authenticity of the Ikrarnama and / or produced the purchaser before the Assessing Officer as and when called upon. Appeal of the assessee is allowed for statistical purposes.

Issues Involved: Assessment based on cash deposits without PAN quoting, authenticity of Ikrarnama for cash deposits, violation of natural justice during assessment proceedings, substantiation of cash deposits' source, onus of proof on the assessee.

Issue 1: Assessment based on cash deposits without PAN quoting
The appellant filed an appeal against the order passed by the Ld. Commissioner of Income Tax (Appeals) for the quantum of assessment under section 144 for the Assessment Year 2009-10. The Assessing Officer made an aggregate addition of ?25,80,880, including a deposit of ?7,30,878, based on cash deposits made in the saving bank account during the financial year 2008-09 without quoting PAN. The appellant explained that two deposits were cheque payments of ?3,50,000 each, related to an agreement for the sale of land. However, the Assessing Officer found discrepancies in the Ikrarnama provided as evidence and deemed the cash deposits unexplained.

Issue 2: Authenticity of Ikrarnama for cash deposits
The Ld. CIT (A) deleted the addition related to cheque entries but confirmed the addition for cash deposits. The Assessing Officer questioned the authenticity of the Ikrarnama, highlighting discrepancies and lack of notarization and witness details. The Ld. CIT (A) upheld the addition, emphasizing the dubious nature of the Ikrarnama and the lack of credible evidence to support the cash deposits' source. The appellant argued for the genuineness of the agreement to sell and requested an opportunity to substantiate the authenticity, which was not provided during the assessment or remand proceedings.

Issue 3: Violation of natural justice during assessment proceedings
The appellant contended a violation of natural justice during assessment as notice and reasons were not provided, and no opportunity was given to substantiate the agreement's authenticity. The appellant requested a fair chance to prove the source of cash deposits. The onus of proof was on the assessee to establish the legitimacy of the Ikrarnama and the cash deposits, which was not adequately addressed during the proceedings.

Issue 4: Substantiation of cash deposits' source
The Assessing Officer and Ld. CIT (A) confirmed the addition based on the doubts surrounding the Ikrarnama. The appellant's argument for the authenticity of the agreement was not adequately considered, leading to the decision to remand the issue back to the Assessing Officer. The appellant was directed to prove the Ikrarnama's authenticity and the source of cash deposits, with the onus entirely on the assessee to substantiate the case.

Issue 5: Onus of proof on the assessee
The Tribunal concluded that the matter should be remanded back to the Assessing Officer for a fresh decision, emphasizing the assessee's responsibility to prove the authenticity of the Ikrarnama and the source of cash deposits. The Assessing Officer was directed to provide a fair and effective opportunity for the assessee to present their case. The appeal was allowed for statistical purposes, highlighting the need for a proper examination of evidence and adherence to legal procedures.

This detailed analysis covers the key issues involved in the legal judgment, focusing on the assessment based on cash deposits, the authenticity of the Ikrarnama, the violation of natural justice, the substantiation of the cash deposits' source, and the onus of proof on the assessee.

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