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TMI Blog2021 (9) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... he Coordinate Benches cited at the Bar by the ld AR also lays down a broad proposition that mere time gap between withdrawals and deposits cannot be a sole basis for rejecting the explanation of the assessee regarding availability of cash in hand where there is no material that amount so withdrawn has been utilized somewhere else and thus supports the case of the assessee. We believe that there is no justifiable basis to hold that the explanation so furnished by the assessee cannot be accepted and find the explanation so furnished is reasonable, appropriate and satisfactory in the facts and circumstances of the present case and hereby direct the addition so made be deleted. - Decided in favour of assessee. - ITA. No. 53/JODH/2021 - - - Dated:- 7-9-2021 - Shri Sandeep Gosain, JM And Shri Vikram Singh Yadav, AM For the Assessee : Shri Rajendra Jain (C.A.), Smt Raksha Birla (C.A.) And Shri Mohit Soni (Adv.) For the Revenue : Miss Kajal Singh (JCIT) ORDER PER: VIKRAM SINGH YADAV, A.M. This is an appeal filed by the assessee against the order of Ld. CIT(A), NFAC, Delhi dated 31.07.2021 pertaining to assessment year 2017-18 wherein the assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated the cash deposits of ₹ 68,95,000/- as undisclosed income of assessee and passed the assessment order u/s 143(3) of the Act assessing the total income of ₹ 73,92,980/- by making addition of ₹ 68,95,000/- as unexplained cash deposits in bank account u/s 69A of the Act. 3. It was submitted that the assessee only source of income is rental income which was received through banking channel after deduction of TDS and duly disclosed in the return of income. However due to sudden death of husband of the assessee, the assessee was mentally disturbed and facing lots of financial problems in her life. That after the death of her husband and as per Will of her husband, the property which was in the name of her husband was transferred in her name and she subsequently sold the said property with the intention to purchase another property for her son and the remaining amount to be utilized for her survival. The sales consideration received from sale of such property in advance was received through banking channel from the buyer of property in the bank account of the assessee and on completion of sale transaction, the assessee has computed the capital gains as per prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30/06/2016 500000 23/02/2015 500000 01/07/2016 500000 25/02/2015 600000 05/07/2016 500000 27/02/2015 500000 06/07/2016 500000 16/03/2015 400000 27/07/2016 300000 31/03/2015 500000 04/10/2016 500000 06/10/2016 500000 19/12/2016 245000 TOTAL 6525000 TOTAL 2600000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sales consideration in installment during F.Y 2014-15 2015-16 directly in her bank account which has been withdrawn from bank time to time and the same was again re-deposited in bank account during the year under consideration. However the AO had made incorrect and wrong interpretation of information available on record and failed to analyzed the material facts that the property so transferred in the name of assessee after death of her husband had been sold and out of such sales transaction whatsoever sales consideration received by her directly in bank account which was withdrawal re-deposited in same bank account. 7. It was submitted that the AO had not analyzed the documentary evidence available on record and explanation furnished by the assessee in right perspective and made the arbitrary allegation without bringing on record any material evidence to justify the allegation that the assessee has utilized cash withdrawals for purchase of alleged property. Therefore, the real colour/ true character of the transactions as discussed hereinabove which are supported form legal and valid documentary evidences which were overlooked by the AO, in arbitrary manner are illega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arate addition of entire amount. However, we may observe that the Assessing Officer has to come to a definite finding that the amount withdrawn was used by the assessee in any other expenditure or investment. If the Assessing Officer comes to a finding that withdrawn amount was used or spent by the assessee for any other investment or expenditure than the benefit of peak of such credit, in such circumstances, may not be available. b) ITAT, Jodhpur Bench in the case of R.K. Dave v/s ITO reported in 94 TTJ 19 held as under: 6. We have heard both the parties and given our thoughtful consideration to the rival submissions with reference to facts, evidence and material on record. From the facts discussed above, it is obvious that the assessee had placed cash flow statement before the authorities below. A copy of the same is also placed at p. 33 of the paper book. It is also not in dispute that the assessee had withdrawn an amount of ₹ 45,000 on 9th July, 1990 and 10th July, 1990. It is not the case of the Revenue that the amounts so withdrawn were utilized elsewhere. Mere fact that the assessee could not explain the time gap between the amount withdrawn and the inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence has been submitted by the assessee to conclusively co-relate withdrawals with the deposits, however it is observed, the fact that the assessee has made sufficient cash withdrawals from the current account has not been disputed by the Assessing Officer and learned Commissioner (Appeals). This fact is very much evident from the observations of the learned Commissioner (Appeals) in Para 5.3 of his order. Therefore, the availability of sufficient cash at the hands of the assessee to make the deposits in the saving bank account cannot be doubted. More so, when the Departmental Authorities have not been able to identify the utilization of cash withdrawals from the current account in any other assets/ mode or manner. That being the case, the explanation of the assessee that being a contractor he required sufficient cash and the unutilized cash is again re-deposited to savings bank account cannot be disbelieved on mere presumption and surmises. That being the case, since assessee s contention has not been proved to be false through proper reasoning and supporting material, the addition made under section 68 of the Act cannot be sustained. Accordingly, I delete the addition made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in her bank account, assessee had sufficient availability of cash which is also not disputed by the Revenue. Entire transaction of withdrawals and deposits are duly reflected in the bank account of the assessee and are verifiable from relevant records. Assessing Officer himself admitted that assessee had sufficient cash balance on each occasion at the time of deposit in her bank account on different dates during the assessment year under consideration. We have also examined the order of ld. CIT (A) and we find that his decision is based on facts on record and is supported by adequate reasoning and, therefore, we do not want to interfere with the order of ld. CIT (A) and accordingly we uphold the findings of the ld. CIT (A) sustaining relief granted to the assessee. h) ITAT Delhi Bench in the case of Muon Computing P. Ltd. vs.ITO, ITA No. 7606/Del/2019 dated 04/08/2021 held as under: 9. There is no dispute with regard to the fact that Revenue has not brought any material suggesting that the withdrawal made by the assessee were utilized for making payments. It is also not brought on record that the amounts so withdrawn from the bank account was utilized for any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Dhakeswari Cotton Mills Ltd. (supra) has held that the AO cannot complete the assessment purely on guess and without any reference to evidence or any material at all. Also in the case of Umacharan Shaw Brothers (supra), the Apex Court has held that AO cannot complete the assessment merely on suspicion which cannot take the place of proof in these matters. Respectfully following the ratio laid down by the Hon ble Supreme Court in the said cases, we hold that the AO made the assessment merely on suspicion and without bringing any cogent material on record to establish that assessee cannot keep the cash in his hand being a NRI. Accordingly, we uphold the order of the CIT(A) in deleting the addition of ₹ 34,70,000/- made by the AO and dismiss the grounds raised by the revenue in this regard. 11. It was further submitted that the ld CIT(A) has confirmed the addition made by the AO holding that the keeping huge cash at house for such a long period is beyond any imagination as the only income of the appellant is interest income. It was submitted that this is a mere assumption and has no legal basis and reference was drawn to the decision of Hon ble Kerala High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bank account which is in the name of the assessee has been operated by her and the cash has also been deposited by her. Thus, the factum of bank account belonging to the assessee and deposit of cash by the assessee herself is not in dispute and therefore, in such circumstances, the Assessing officer is well within his jurisdiction to enquire about the source of such deposits and seek explanation from the assessee and examine whether the explanation so furnished is reasonable, appropriate and satisfactory in the facts and circumstances of the present case. 14. In this regard, it is noted that the assessee has explained that out of earlier year s cash withdrawals from her bank account which were available as cash balance as on 01/04/2016, the assessee had deposited a sum of ₹ 68,95,000/- in her bank account during the year under consideration. It has been submitted that the assessee has sold a property, transferred in her name after the death of her husband, for a consideration of ₹ 1,31,45,200/- during the financial year 2015-16 and the sale consideration has been received in installments during the financial year 2014-15 and financial 2015-16 directly in her bank ..... X X X X Extracts X X X X X X X X Extracts X X X X
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