9911796707
TMI Blog2014 (2) TMI 1019X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the claim of assessee that cash withdrawal was not utilized for other purposes have remained unproved - Primary onus is on assessee to substantiate the claim of failure of land deals due to which cash remained unutilized - Assessee had not discharged onus by filing any evidence either documentary or oral in this regard - thus, the matter remitted back to the AO for fresh adjudication – Decided in favour of Assessee. - ITA No.1845/Del./2011 - - - Dated:- 13-4-2012 - RAJPAL YADAV AND B.C. MEENA, JJ. For the Appellant : Dr. Rakesh Gupta and Shri Ashwani Taneja, Advocates For the Respondent : Shri R.S. Negi, Senior DR ORDER:- PER : B.C. MEENA, ACCOUNTANT MEMBER This appeal filed by the assessee emanates from the order of CIT (Appeals)-XXII, New Delhi dated 07.11.2011 for the assessment year 2006-07. 2. The assessee is an individual engaged in the business of computer repair and maintenance and purchase and sale. The Assessing Officer made an addition of Rs.17,70,400/- to the income of the assessee as unexplained cash deposit under section 68 of the Income-tax Act, 1961. 3. The grounds of appeal read as under :- 1. That having regard to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintain books of accounts. Return of income for the assessment year 2006-07b was filed along with balance sheets which is evident from pages 1 to 4 of the paper book. In respect of assessee s proprietary business of Cyber Computers, Ld. AR also pleaded that the personal Balance Sheet of assessee as on 31-03-2005 showing inter alia cash in hand of Rs.19,00,000/- which was explained to be the source of the impugned cash deposited was filed during the course of assessment proceedings. The cash book compiled and filed befo re the Assessing Officer for the financial year 2004-05 shows the source of deposits and cash balance of Rs.19,00,000/- as on 31.3.2005. Thus, there was a cash balance available to the tune of Rs.19,00,000/- as an opening cash balance which establishes the source of the cash deposited in the assessee s bank account. Ld. AR further pleaded that the cash withdrawal was for the purpose of planning to invest in the purchase of land jointly with his father, Shri Subash Chand Jain, for group housing Complex at G.T.Road, Distt.Sonepat. Since the land owners were farmers and illiterate, they do not accept cash and as such the amount was withdrawn for initial advance payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish any information about the advance for property given and received back and that no prudent business man will like to withdraw an amount from his bank account and kept it idle at home and subsequently redeposit in small amounts. For this, Ld. AR submitted that the impugned withdrawals from bank remained idle due to certain circumstances beyond the control of the assessee and ultimately the amounts were redeposited in piecemeal for which the assessee has suffered due to his unsuccessful planning/acquisition of land. The Assessing Officer has not made out a case which could establish that this money was invested somewhere else. Ld. AR also submitted that Assessing Officer s reliance on the decision of Mittulal Tek Chand Vs. CIT(1953) 23 ITR 494 stating that ratio decidendi of the case is squarely applicable to the facts of assessee's case is also not justified. Ld. AR also submitted that the facts of the assessee s case are completely different from the case cited by the Assessing Officer. Ld. AR also submitted that the CIT (A) was also not justified in holding that there was no plausible reason with the assessee having cash amount of Rs.19 lacs and to deposit smaller amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit loss account shows that all the expenses are debited and net profit has been worked out. Hence, claim of not maintaining books is incorrect. Ld. DR also pleaded that the assessee has not filed the balance sheet showing the cash in hand of Rs.19 lacs as on 31.3.2005 along with the return of income. The contention of the assessee that only the balance sheet of business proprietary-ship concern filed along with return of income is also unjustified stand. The assessee is not filing the personal balance sheet along with the return of income by showing the cash balance of Rs.19 lacs without any cogent reason. Filing of such balance sheet showing a cash balance of Rs.19 lacs and stating that the amount was kept to purchase the land is not an explanation which can be accepted at the face of it. Further, there is no acceptable explanation regarding the deposits in piecemeal. The explanation for not producing the person with whom the assessee has fixed the deal for land is also not supported by any evidence. The assessee s statement that since the money has not changed the hands between the assessee and ShriAnil Kumar, therefore, he was reluctant to come to the office is completely uns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h his father and brother to launch a residential complex. This assertion is also not supported by any evidence. None of these claims of the assessee as made in letter dated 29.03.2010 and 18.11.2010 are substantiated by any documentary evidence. Even the concerned persons with whom the transaction were made or negotiated were not produced before the authorities below. In the statement recorded on 28.06.2008, the assessee has not given correct and proper address of Shri Anil Kumar who is claimed to be the dealer for transaction of purchase of property. Thus, the claim of assessee that cash withdrawal was not utilized for other purposes have remained unproved. Primary onus is on assessee to substantiate the claim of failure of land deals due to which cash remained unutilized. Assessee had not discharged onus by filing any evidence either documentary or oral in this regard. The assessee s reliance on the two decisions of ITAT in the cases of ACIT vs. Baldev Raj Charla Ors. and M/s. Moongipa Investment Ltd. vs. ITO, cited supra, are of no help as the facts in those cases are totally different from the facts of assessee s case. Since assessee has also prayed in ground of appeal that o ..... 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