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TMI Blog2023 (1) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on record - The Bank statements of all the three banks accounts of the assessee for the relevant assessment are also placed on record. Since it was a peculiar case of the assessee that he had withdrawn amounts from his bank accounts, therefore, he has placed on record bank statements of three bank accounts which could be verified by the revenue authorities. Therefore, AO is directed to verify the cash flow statement as submitted by the assessee with transactions carried out in these bank accounts by accepting opening cash balance in the cash flow statement and thus pass afresh order. Assessee is directed to submit the relevant documents/ evidences concerning the issue before the AO. Hence, the issue is restored to the file of the AO for afresh consideration by providing adequate opportunity of being heard to the assessee. Thus the appeal of the assessee is partly allowed for statistical purposes. - ITA No. 273/JP/2021 - - - Dated:- 21-12-2022 - HON BLE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER Assessee by : Shri Mukesh Khandelwal, CA And Shri Nitin Baradia, CA Revenue by: Smt. Monisha Choudhary, JCIT ORDER PER: SANDEEP GOSAIN, JM This appeal filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of 90 days from 01-03-2022. In the event of actual balance period of limitation remaining, with effect from 01-03- 2022 is greater than 90 days, that longer period shall apply. Thus the Bench finds that there is nationwide Covid 19 Pandemic situation which is beyond the control of the human being and the assessee is prevented by sufficient cause in not filing the appeal in time. The Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Mst. Katiji, 167 ITR 471 observed as under:- The Legislature has conferred power to condone delay by enacting section 5 of the Limitation Act, 1963, in order to enable the courts to do substantial justice to parties by disposing of matters on merits. The expression sufficient cause in section 5 is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice--that being the life-purpose of the existence of the institution of courts. A justifiably liberal approach has to be adopted on principle. Every day's delay must be explained does not imply a pedantic approach. The doctrine must be applied in a rational, common sense and pragmatic manner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o support the cash. To this effect, the AO had requested the assessee to submit his explanation as to the cash deposits but the same was not submitted by the assessee. In the absence of the same, the AO had no other alternative except to add the cash deposit of Rs.20,41,749/- as unexplained money and penalty u/s 271(1) of the Act was separately initiated by the AO. 4.3 In first appeal, the ld CIT(A) has confirmed the addition of Rs.15,41,749/- holding that the assessee has been able to explain the source of cash deposit of Rs.5.00 lacs only. The relevant part of the findings of the ld. CIT(A) from para 8.6 to 8.7 is reproduced as under:- 8.6. The submissions of the appellant, the additional evidences and the comments of the AO in remand report have been examined. i) It is noticed that during the assessment proceedings, the appellant claimed to have received an amount of Rs 1,05,100/- from relatives whereas during the appellate proceedings, the appellant claimed to have received an amount of Re 2,18,100/- from relatives. Thus the appellant has changed his explanation. Further, no evidence like confirmation, of person, credit worthiness etc has been furnished. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year even though he had salary income of Rs. 9,65,956/- as considered in the assessment. A person who is earning around Rs 10 lakh a year cannot have such low household withdrawals. Under normal circumstance, 50% of salary goes towards tax and savings and household expenses reach at least upto 50% of total salary. So even if, the appellant withdrew cash upto Rs 5 lakh no benefit cash availability for deposit can be given to the appellant. However, as the appellant has given copies of bank accounts for the FY 2007-08 only and no copies of account are given for the FY 2008-09. Further, as pointed out by the AO that there are differences in the explanation of the appellant submitted during the assessment proceedings and appellate proceedings regarding cash withdrawals during the FY 2008-09, the claim of the appellant of withdrawing cash of Rs. 11,72,530/- (4,48,687/- from ICICI bank, 6,6,820/- from IDBI bank and 57,043/- from Axis Bank) during FY 2008- 09 is not accepted. iii) As regard to availability of opening cash of Rs. 8,54,807/-, it is the claim of the appellant that during FY. 07-08 he has withdrawn an amount of Rs. 12,24,000/- and deposited Rs. 1,72,800/- in bank ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lained to the ld. AO personally and hence the Ld. AO considered the whole amount so deposited into bank account as unexplained income and order dated 30.12.2011 was passed by him u/s 143(3). The matter was carried in appeal before the ld. CIT (A) - 3, Pune, which was later on transferred to CIT (A) - 1, Pune. In the appeal proceedings the counsel of the appellant had submitted some details about source of funds for depositing cash into bank account. In the meanwhile the appellant retired from his service during August, 2013 and hence he had submitted request for transfer of his appeal from Pune to Jaipur office for proper handling of the appeal. However his request could not be acted upon and ultimately the Ld. CIT (A) passed his appeal order on 05/02/2020 and allowed relief of Rs. 5,00,000. Reason for delay in filing appeal The appellant is an ex army person and was posted at Udhampur (J K) during the previous year relevant to AY 2009-10. The ld. AO passed the assessment order on 30.12.2011. Against the order of the ld. AO, he had filed appeal before the Ld. CIT (A) - III, Pune on 30.01.2012. In last years of his service i.e. during 2011-2013 he was transferred to Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . For allowing such relief the ld. CIT (A) analyzed the cash flow statement submitted by the appellant. in this statement he noticed that the appellant had taken an opening cash balance of Rs. 8,54,803 for which the counsel of the appellant had explained that in view of the position of cash withdrawals and deposits made by the appellant in his bank accounts during immediately preceeding year i.e. PY 2007-08 such opening balance stands justified. However same was objected to by the ld. CIT (A) and he has stated in his order that the appellant might have spent sum @ Rs. 40,000 per month on household and hence he could be said to be having only around Rs. 5,00,000 with him as opening balance and relief for the same has been allowed by him. The appellant is a salaried class person and does not maintain any books of accounts and therefore whatever cash flow statements had been filed by him before lower authorities and which are now being filed, have been prepared as per best of the estimations of the appellant. The counsel of the appellant dealing the matter before lower authorities had filed following documents before lower authorities :- 1. Bank statements of the appellant for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 2,18,100 has been claimed by the appellant in the cash flow statement, no cognizance of the same can be given. In this regard this is to submit that the assessee had received these petty sums from different persons against repayment of advances given earlier by him and such entries were incorporated in the cash flow statement as per notings made by the assessee in his diary. Now it is impossible for the appellant to obtain confirmations from the friends and relatives after such a long time gap and even otherwise also no such burden is cast upon the assessee in case of repayment of loan. It is a general practice of the service class people that petty sums are given and taken from friends and relatives which are utilized for various purposes. These service class people are not required to maintain any books of account and hence such transactions are normally maintained by them in their personal diaries and such people even do not understand the strict provisions of section 269SS, 269ST and 269T etc. However considering the profile of the assessee and considering genuine difficulties in obtaining confirmations etc. the said sum may please be considered as genuine and observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posted at Pune. As per ld. AR, since the Paying Office (DDO) of the assessee is situated wherefrom salary of the Army Personnel used to disburse and the PAN of the assessee was lying at Pune Office. The assessee had filed his original return declaring income at Rs.8,68,646/- which was subsequently revised on 24-09-2020 declaring an income of Rs.7,78,370/-. Both the returns were put under scrutiny and accordingly required notices were issued by the Department. Since the assessee had deposited cash of Rs.20,12,583/- in his bank account during the relevant year. Since, on this ground certain queries were raised by the Department, therefore, the assessee, an army personnel, could not file the proper reply before the authorities being posted out of station duty. Consequently, the AO passed the assessment order u/s 143(3) of the Act holding therein that cash deposited in the bank account is unexplained income of the assessee and thus made addition of Rs.20,41,749/- in the hands of the assessee. In first appeal, the ld. CIT(A) has restricted the addition to the extent of Rs.15,41,749/- giving the relief of Rs.5.00 lacs. During the course of hearing, the ld. AR of the assessee submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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