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TMI Blog2019 (11) TMI 1404X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee deserves to be accepted, unless contrary is brought on record which has not been done in this case Cash deposits made by the assessee on various dates should be reasonably presumed that it is from earlier withdrawals made by the assessee on various dates. Accordingly, we delete the entire addition of ₹ 32.5 lakhs made by the Assessing Officer. Appeal of the assessee is allowed. - ITA No. 443/Coch/2019 - - - Dated:- 29-11-2019 - S/SHRI CHANDRA POOJARI, AM AND GEORGE GEORGE K., JM For the Assessee : Shri Santhosh P. Abraham, Adv. For the Revenue : Smt. A.S. Bindhu, Sr. DR ORDER Per CHANDRA POOJARI, AM: This appeal filed by the assessee is directed against the order of the CIT(A)-II, Kochi dated 17/01/2019 and pertain to the assessment year 2015-16. 2. There was a delay of 59 days in filing the appeal before the Tribunal. The assessee has filed condonation petition accompanied by an affidavit stating that assessee is a cancer patient. The assessee has to undergo regular course of treatment alongwith continuous medication. During the relevant period, the assessee was under medical care and was undergoing traumatic experience for b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 was ignored to the peril of the appellant. 5. The lower authorities have seriously erred in overlooking the gross cash inflow of ₹ 1,63,00,000/-(₹ 1,55,000/- + ₹ 1,50,000/- + ₹ 6,50,000/-) during the period, against sale of property and transfer of partnership interest. 6. It may be true that a man of ordinary prudence may not hold stock of huge cash outside the bank accounts. This inference may be ordinarily true for a person sailing on reasonable circumstances in life. But, the ld. Commissioner(Appeals) failed to appreciate that the appellant has been sailing through unusual circumstances in life. 7. The ld. Commissioner (Appeals) has failed to take note that the appellant is a cancer patient undergoing painful and torturous protocol of medical treatment. The ld. Commissioner (Appeals) has failed to appreciate that the appellant is undergoing unexplainable agony and depression and his sense and sensibility cannot be measured to that of an ordinary man. The ld. Commissioner(Appeals) has failed to appreciate that the appellant is unsecure in his future and that was why he had liquidated all his properties and partnership interest in the relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BI A/c No. 30622509825 1000000 26/09/2014 Cash deposited in SBI A/c No. 30622509825 5000000 02/01/2015 Cash deposited in CBI SB A/c No.1745911769 45000 02/03/2015 Cash deposited in UBI SB A/c No.396702010004711 900000 07/03/2015 Cash deposited in UBI SB A/c No.396702010004711 45000 16/03/2015 Cash deposited in CBI SB A/c. No. 1745911769 30000 31/03/2015 Cash deposited in CBI SB A/c. No. 1745911769 45000 31/03/2015 Cash spend for my family expenses medical treatment 800000 31/03/2015 Balance cash in hand 206000 Total 6800000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer. 8. Against this, the assessee is in appeal before us. The Ld. AR submitted that the Assessing Authority had no dispute regarding the cash deposits and cash withdrawals made in the previous year 2014-15 and the earlier credits and debits in assessee s bank accounts. Sale of interest in the partnership firm, M/s. Panamoottil Investments for a sum of ₹ 1,55,00,000/-was accepted. There was no dispute regarding the sale of one room apartment in DD Vyapar Bhavan for a consideration of ₹ 6,50,00/- each to M/s. Krishnakumar and Vasantha Kumar. 8.1 Regarding Cash deposit of ₹ 3,00,000/- on 01/04/2014, the assessee stated that the assessee had withdrawn an amount of ₹ 50,00,000/- on 31/12/2013. The deposit of ₹ 3,00,000/- was made on 02/04/2014, just after 3 months of withdrawal of ₹ 50,00,000/-. It was submitted that the Assessing Authority could not have a case that the entire amount of ₹ 50,00,000/-withdrawn on 31/12/2013 was entirely spent off within that short period of 3 months. It was submitted that there was a clear proximity for the withdrawal and the deposit. The addition of ₹ 3,00,000/- is arbitrary . 8.2 Rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities had grossly erred in concluding that the assessee had no cash available with him to make a deposit of ₹ 50,00,000/- on 26/09/2014. The assessee always explained that he was keeping sufficient cash with him to meet any medical emergencies especially when his two sons were away. It was contended that the thinking and reasoning of a serious cancer patient cannot be compared with the normal behavior of a prudent man and in such an agonizing situation, a person may draw solace by thinking that at least, he had enough money in hand to meet any medical emergency. Adequate cash cushioning is definitely a source of comfort, in such extreme situations. Therefore, the lower authorities are not justified in making an inference that the assessee would not have kept huge balance of cash with him, for a long period of 9 months. 8.5. The Ld. AR submitted that the Assessing Authority had held in para 20 of his order that ..........on a preponderance of probability, it is not acceptable that the assessee had kept a huge sum of ₹ 50,00,000/- in his personal custody for almost nine months taking all the risks associated with it, when he has 3 personal bank accounts and peopl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating the legal fiction, the phraseology employs the word may and not shall . Thus, the unsatisfactoriness of the explanation does not and need not automatically result in deeming the amount credited in the books as the income of the assessee. 9. The Ld. DR relied on the order of the CIT(A). 10. We have heard the rival submissions and perused the material on record. In the present case, the dispute is with regard to cash deposit of ₹ 32.5 lakhs into the various bank accounts of the assessee. The main plea of the assessee is that the assessee had withdrawn cash of ₹ 50 lakhs on 26/09/2014. The assessee had withdrawn cash on various dates at ₹ 68 lakhs as narrated in para 5 of this order. 10.1 These amounts were redeposited into Bank accounts on various dates as follows: 02/04/2014 ₹ 3,00,000/- 27/08/2014 ₹ 1,50,000/- 26/09/2014 ₹ 50,00,000/- 11. The Assessing Officer has given credit of ₹ 23.50 lakhs towards cash in hand for depositing it into Bank account of the assessee. The Assessing Officer treated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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