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TMI Blog2015 (12) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year 98-99 but the same cannot be considered for making any addition in assessment year 99-2000 and the cash in hand shown by the assessee in present year over and above the surplus of cash withdrawal over cash deposit in bank of ₹ 57,946/- deserves to be accepted being cash in hand with this lady of 63 years old at the beginning of F.Y. 1997 – 98 and therefore,no part of addition made by the A.O. and confirmed by CIT(A) including the enhancement by him is sustainable. We, therefore, delete the same. - Decided in favour of assessee. - ITA No. 227/LKW/2012 - - - Dated:- 24-9-2015 - Shri Sunil Kumar Yadav, Judicial Member And Shri A. K. Garodia, Accountant Member For the Appellant : Shri Rakesh Garg, Advocate For the Respondent : Shri Amit Nigam, D. R. ORDER Per A. K. Garodia, A. M. This is assessee s appeal directed against the order of Learned CIT(A), Bareilly dated 27/03/2012 for the assessment year 1999-2000. 2. In this appeal the assessee has raised the following grounds: 1. The learned CIT(A) has grossly erred in enhancing the income of the assessee by a sum of ₹ 10,30,946/- thereby confirming an addition of ₹ 14,1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst this, the AO has added a sum of ₹ 5,87,693/- being deposits in bank. This submission is without prejudice to the actual closing balance of ₹ 14,16,946/- as on 01.04.1998. The opening balance of ₹ 14,16,946/- included a sum of ₹ 8,00,000/- given as advance for purchase of property during the period ending on 31.03.1997, which was received back on 31.07.1997 (confirmation attached). By refund of this amount, the closing balance as on 31.03.1998 came to be ₹ 14,16,946/-. The return of income for the A.Y. 1999-2000 to 2002-03 were filed on 11.09.2002, much before the notice u/s 148 dated 27.03.2006 was issued. It cannot be said that the filing of returns were an afterthought. The returns having being filed, the revenue could have proceeded to frame the assessment in accordance with law. Even if the return was belated, nothing prevented the revenue from taking action u/s 148 for assessment years 1995-96 to 1998-99 when the returns for AY 1999-2000 to 2002-2003 were first filed on 11.09.2002. (six years from the end of the assessment year) Thus, it would be too late for the department to say that the proceedings for A.Y. 1995-96 were time b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... every case where the explanation offered by the assessee is found to be not satisfactory. The question whether the source of the investment should be treated as income or not under Section 69 has to be considered in the light of the facts of each case. In other words a discretion has been conferred on the Income-tax Officer under Section 69 of the Act to treat the source of investment as the income of the assessee if the explanation offered by the assessee is not found satisfactory and the said discretion has to be exercised keeping in view the facts and circumstances of the particular case. Further, reliance is placed on the following decisions:- i) Kailash Chand Trivedi vs. Dy. CIT, ITA No. 133/LKW/2013 A.Y. 2009-10, Date of Order: 29.11.2013 ii) Dy. CIT vs. Satish Chandra Pandey, ITA No. 25/LKW/2010 A.Y. 2001-02, Date of Order: 30.03.2011 iii) ACIT vs. Smt. N. Sasikala, ITA No. 435/Mds/197 A.Y. 1991-92, Date of Order: 07.12.2004 iv) Kiran Devi vs. ACIT, ITA No. 1129/DEL/2008 A.Y. 998-99, Date of Order: 09.02.2010 v) CIT vs. Prameshwar Bohra, IT Appeal No. 7 of 2003, High Court of Rajasthan, Date of Order: 04.01.2007 In view of the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce of opening cash in hand shown in the cash book. 5. Learned D.R. of the Revenue supported the order of learned CIT(A). 6. We have considered the rival submissions. We find that addition was made by the Assessing Officer of ₹ 5,87,693/- on the basis that the assessee could not explain the source of cash deposit in bank and money used for purchase of FDR. The details of such addition is available on pages 4 5 of the order of CIT(A). As per the same, an amount of ₹ 1 lac is on account of transfer entry for PNB, Rajendra Nagar Branch and the 2 amounts of ₹ 50,822/- and ₹ 50,871/- are on account of FDR maturity. The total of these three amounts comes to ₹ 2,01,693/-. After excluding this amount from the total addition made by the Assessing Officer of ₹ 5,87,693/-, it is noted by CIT(A) on page No. 14 of his order that the Assessing Officer made addition of ₹ 3.86 lac on account of unexplained deposit in bank account. This observation was made by CIT(A) while making enhancement of ₹ 10,30,946/- and it is stated by CIT(A) that the assessee is showing opening cash in hand as on 01/04/98 of ₹ 14,16,946/- and the same could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 98 for a lady who was 63 years old during the relevant time. Since the excess of cash withdrawal over and above cash deposit in the bank during financial year 97-98 is supported by independent evidence being Bank Account, it cannot be said that this cash was not available with the assessee during assessment year 97-98 and therefore, even if the assessee is not in a position to explain the source of such cash in hand or in bank during financial year 97-98, addition may be made as per law in assessment year 98-99 but the same cannot be considered for making any addition in assessment year 99-2000 and the cash in hand shown by the assessee in present year over and above the surplus of cash withdrawal over cash deposit in bank of ₹ 57,946/- deserves to be accepted being cash in hand with this lady of 63 years old at the beginning of F.Y. 1997 98 and therefore, in our considered opinion, no part of addition made by the A.O. and confirmed by CIT(A) including the enhancement by him is sustainable. We, therefore, delete the same. 7. In the result, the appeal of the assessee stands allowed. ( Order was pronounced in the open court on the date mentioned on the caption Page ) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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