9911796707
TMI Blog2021 (9) TMI 974X X X X Extracts X X X X X X X X Extracts X X X X ..... cause as to why the entire deposit of Rs. 10 lakhs should not be treated as unexplained money u/s. 69A of the Act. The assessee filed a letter on 18.9.2019 submitting that he has retired as a Deputy Director [IES] during the year 2010 and the retirement benefits and pension which were deposited into his bank account were withdrawn for his day-to-day personal, family and medical expenses and with an intention of renovating his house, he had kept cash balance of accumulated withdrawals of Rs. 10 lakhs over a period of 6 to 7 years and after announcement of demonetization, he had to deposit the same into his bank account. It was further submitted that since the renovation of the house was not done, the said deposit of Rs. 10 lakhs was immediately converted to F.D. on 23.11.2016 with SBI, EMI Centre branch, Secunderabad with an intention to make investment in an immovable property. He also enclosed a statement of computation of income, to the said reply. 2.1. On verification of the above details, the AO observed that assessee was withdrawing pension to meet his family expenditure and the contention of the assessee that the sum of Rs. 10,00,000/- is the accumulated withdrawals over a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of speaking order, vitiating the grounds raised and the merits of jurisprudence supplied in co-relation to the facts of the case, and in the absence of the grounds or reason for arriving such conclusion the impugned order is required to be quashed. 5. Appellant submits that the Learned CIT(A) has upheld the order passed under Section 144 stating that the compliance from the Appellant has been very poor. 6. Appellant submits that from the above, it is evident that Learned CIT(A) has confirmed the action of ITO in passing the order under Section 144 based on the compliance history. Appellant submits that the impugned order has confirmed the assessment under Section 144 only on the reason that a return has not been filed by the Appellant in pursuance to the notice issued under Section 142(1). In this connection, Appellant submits that a notice under Section 142(1) of IT Act was issued on 13.03.2018 asking to file the return of income for A.Y. 2017-18 by 31.03.2018. 7. Appellant submits that by the time he became aware of the said notice, the due date fixed for filing the return has almost exhausted and accordingly he was unable to file the return in compliance with notice und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her under Section 68 nor under Section 69A of the Act: 12. Appellant submits that as stated in facts, he had been in employment with Indian Engineering Services (IES) and retired in the capacity of Deputy Director with MSME in 2010 and has been a regular taxpayer since few decades. At the time of retirement, he has received monetary retirement benefits to the tune Rs. 15,77,369/- which were credited to his savings bank account of State Bank of India during the 2010. Further to the above, the Appellant was also in receipt of monthly pension and certain interest from balances in savings account held with various banks. 13. Appellant submits that the above was the only source of his income which was already subjected to tax vide withholding obligations. The salary, retirement benefits and pension were subjected to withholding obligations by the employer and interest is subjected to withholding obligations by the banker. Hence, all the incomes which were hit to the accounts of the Appellant were subjected to tax qua withholding obligations. 14. Appellant submits that since he is a senior citizen and frequently need of cash for meeting the daily expenses and emergency expenses and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... densely populated. 21. In this connection, Appellant submits that the approach adopted by Learned CIT(A) is erroneous and completely devoid of merits. As stated in facts, the amounts were withdrawn over a period of 6 to 7 years and got accumulated to the extent of Rs. 10,00,000/-. In other words, the withdrawals were for the period 2010 to 2016 and were deposited during the demonetization period. Accordingly, if the Learned CIT(A) wishes to demonstrate that the locality where the Appellant resides is densely populated or not, the Google Maps image should pertain to the period between 2010 and 2016 and not in Year 2020. Accordingly, the approach adopted by Learned CIT(A) fails since reliance is placed on the Google Maps of Year 2020. Appellant submits that no person would stop withdrawing money based on the infrastructure facilities which are going to be available in future. The withdrawals will be based on the situations based on the day on which withdrawal is made but not keeping in mind that there would be a facility in future. 22. Appellant further submits that the digital acceptance of payments has increased significantly only after the announcement of demonetization. Prio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant resides. The Learned CIT(A) passing an order imagining utopian world by ignoring the complete reality has to be kept aside and appropriate relief has to be granted. 25. Appellant submits that he has survived a heart attack and to meet such an emergency, he used to regularly withdraw every month certain amounts for immediate disposal. Appellant also submits that since there is no support from his immediate family in case of emergency, he made sure all the time a minimum amount is at his disposal for meeting any unforeseen medical emergencies. Appellant submits that his account always subjected to maximum daily withdrawal and it would be practically impossible to withdraw amounts when he would be hospitalised. Hence, Appellant made sure that he always had sufficient amount of money at his disposal to meet any medical emergencies. 26. Without prejudice to the foregoing, Appellant submits that the impugned order has stated that the Appellant has withdrawn money for purchase of immovable property and since the same can be made through bank or digital mode, the withdrawal is not necessitated. In this connection, Appellant submits that there was no submission that he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sider and pass an appropriate order granting an appropriate relief. Notice under Section 68 and Order under Section 69A: 31. Without prejudice to the foregoing, Appellant submits that the Learned CIT(A) has upheld the additions made by the Learned Respondent under section 69A of the Act, by stating that the Learned Respondent has correctly quoted Section 69A while confirming the demand. 32. In this regard, Appellant wishes to submit that Learned CIT(A) has failed to understand the contentions raised before him. Appellant submits that the notice issued by Learned Respondent proposed to tax the deposits under Section 68. However, the order confirming the said proposal is made under Section 69A. This action of the Learned Respondent has brought to the notice of Learned CIT(A) praying that notice cannot be issued under one section and order confirming the notice cannot be in another section. This is against the principles of natural justice. However, the Learned CIT(A) has not considered the above submission and further ratified the action of Learned Respondent. Hence, it is prayed before the, Honourable Tribunal that the impugned order has to be set aside. 33. Without prejudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submits that the source of cash is explained and if it can be established that the cash found is withdrawn from the bank accounts, there could not be any addition under Section 69A. Appellant submits that the entire source for the said cash was explained in detail to the Learned Respondent which went unconsidered. The same was also brought to the attention of Learned CIT(A) stating that the said cash was withdrawn for the purposes of renovation of house and meeting the unplanned exigencies. However, as stated earlier, the same went unnoticed by the Learned CIT(A) also. Hence, it is prayed before the Honourable Tribunal to consider and order that there cannot be any addition under Section 69A for the reasons as submitted hereunder. 38. Without prejudice to the foregoing, Appellant submits that assuming but not admitting that the said deposits are not from the amounts withdrawn, even then the impugned order fails because the addition is proposed under Section 68. Appellant submits that the provisions of Section 68 are not applicable to him for the reasons as detailed hereunder. 39. Appellant submits that the provisions of Section 68 shall be applicable only if the assessee is re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... normal and assessing officer should have made proper enquiry before confirming such an addition. Further, the appellant has withdrawn an amount of Rs. 28,82,000/- from the day of retirement and has deposited balance of Rs. 10,00,000/- when the demonetisation was announced. This proves the regular habit of the appellant and assessing officer if applied his mind and made a proper enquiry, the addition looks unwarranted. 47. Without prejudice to the foregoing, Appellant submits that the Assessing Officer cannot just pass the Assessment Order stating the contention of the assessee is not convincing, which is nothing but an afterthought. 48. Appellant further submits that the addition of amounts under Section 68 on a mere suspicion is bad in law. The Learned Respondent has failed to show an appropriate evidence which substantiates that the amount deposited in the bank account is unexplained cash credits to proceed with assessment of such income. A mere suspicion would not make a cash credit as unexplained cash credit. 49. Appellant submits that all the above submissions were brought to the attention of the Learned CIT(A) and reiterated at the time of personal hearing. However, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in the period commencing on the date immediately following the due date, and,- (a) where the return is furnished after the due date, ending on the date of furnishing of the return; or (b) where no return has been furnished, ending on the date of completion of the assessment under section 144. 54. Appellant submits that from the above, it is evident that, the interest under Section 234A will trigger only when a return under Section 139(1) or Section 139(4) is furnished after the due date or is not furnished. In other words, the interest would be applicable only if the return is required to be filed under Section 139(1). In this connection, Appellant submits that in case where a return is not required to be filed, then there would not be any interest applicability under Section 234A. Appellant submits that from the Assessment Year 2012-13, vide Notification No. 9/2012 dated 17.02.2012, the Central Government has exempted the class of persons from filing the returns under Section 139(1) subject to certain conditions. 55. Appellant submits that the conditions as prescribed under Notification No. 9/2012 dated 17.02.2012 are as under: a. Individual whose total income for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 07.12.2019, the interest under Section 234A shall be payable only for 20 months (01.04.18 to 07.12.2019) as against 29 months confirmed by the impugned order. Appellant submits that if the period of 20 months is considered, the interest liability shall be to the tune of Rs. 1,55,034/- and accordingly prayed for consideration of the same towards interest. Prayer Wherefore it is prayed: a. The impugned order to be set aside b. To hold that there are no additions under Section 69A c. To hold that no interest under Section 234A is payable d. Any other consequential relief to be granted." 4. Though the assessee has raised various grounds of appeal along with the above elaborate arguments in favour of his grounds, we find that the gist of his argument is that the assessee is an old aged person and has withdrawn the salary and pension amounts from time to time and had kept the funds with him to meet any exigency such as medical expenses, and also to renovate his house and due to announcement of de-monetization he had to deposit the same into his bank account Thus, according to ld. Counsel for the assessee, the source of funds had been explained and they are tax paid funds an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
