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TMI Blog2023 (3) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... the conclusion that the cash deposits represent the income of the assessee. As relying on MAHESH K. BHUTIYA PARTH VERSUS THE INCOME TAX OFFICER WARD-2 (3) , PORBANDAR [ 2022 (8) TMI 80 - ITAT RAJKOT] we are inclined to adopt the same basis to determine the income of the assessee. Thus, we work out the income of the assessee at 8% of total cash deposit. Hence, the ground of appeal of the assessee is partly allowed. - ITA No. 269/AHD/2020 - - - Dated:- 1-3-2023 - Shri Waseem Ahmed, Accountant Member For the Assessee : Shri S.N. Divatia, A.R with Shri Samir Vora, A.R For the Revenue : Shri Purushottam Kumar, Sr. D.R ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the assessee against the order of the Learned Commissioner of Income Tax (Appeals)-7, Ahmedabad, dated 31/07/2019 arising in the matter of assessment order passed under s. 144 r.w.s. 147 of the Income Tax Act, 1961 (here-in-after referred to as the Act ) relevant to the Assessment Year 2014-15. 2. At the outset, we note that there was a delay in filing the appeal of the assessee for 226 days. The delay was explained by the assessee on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking the statement in the affidavit. However, the Ld. DR has not brought anything contrary to the affidavit filed by the assessee. 5.2 Be that as it may be, what is important is this that the revenue has treated the entire amount of cash deposit in the bank as income of the assessee without pointing out any basis for such inference. In this regard, we have seen bank statement available on record. On perusal of the same we find that there were cash deposits as well as cash withdrawal from the bank. How the cash withdrawal has been utilized by the assessee, there is no finding of the revenue authorities? As such, it is possible that the amount of cash withdrawal has been re-deposited in the bank, in such a situation it would lead to double addition which is not desirable under the provision of law. Thus, it appears that the income of the assessee has not been determined on scientific basis. 5.3 Indeed, there is a delay in filing the appeal of the assessee but if entire cash deposit is added to the total income of the assessee then the hardship that the assessee is going to face is not commensurate to the mistake committed by him in filing the appeal within the stipulated time. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts in not considering fully and properly the submissions made and evidence produced by the appellant with regard to the impugned additions. The Ld CIT(A) ought to have allowed sufficient opportunity before disposing the appeal. 2.1 The Ld.CIT(A) has grievously erred in law and on facts in confirming addition of Rs.29,56,440/-as unexplained investment u/s.69 towards cash deposits in bank account . 2.2 That in the facts and circumstances of the case as well as in law, the Ld.CIT(A) ought not to have upheld addition of Rs.29,56,440/-as unexplained investment u/s.69 towards cash deposits in bank account. It is, therefore, prayed that the addition of Rs. 29,56,440/- upheld by the CIT(A) may kindly be deleted. 6.1 The only effective issue raised by the assessee is that the learned CIT(A) erred in confirming the addition of Rs. 29,56,440/- under section 68 of the Act on account of cash deposits in bank. 7. The facts in brief are that the assessee is an individual and claimed to be earlier engaged in the business of hosiery but due to loss changed to fruit hawker. The assessee for the year under consideration has not filed return under section 139 of the Act. The AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 399 ITR 600 [2018] wherein it is held that when Assessee had purchased draft by depositing cash, but failed to provide source of such cash for making investment, addition made under Section 69 was justified. The Hon'ble Punjab Haryana High Court in the case of Nareskumar V/s CIT 393 ITR 389 [2017] has held that when Assessee explains that cash deposits by him in his bank account was from sales effected by him but has failed to establish nexus between receipts and deposit in his bank account, amount was rightly added under Section 69 of the IT Act. The Hon'ble Kerala High Court in the case of O.G. Sunil V/s DCIT 383 ITR 617 [2O17] has held that Tribunal was right in upholding Assessee's income in regard to unexplained credits in bank and investment in property on the ground that there was no material or explanation about the source and means. Reliance is also placed on decision of Hon'ble Mumbai 1TAT in the case of Shri Parbat M. Chamriya Vs ITO ITA No. 3059/Mum/2O15 wherein it is held as under: ....6.5 As regards contention of the appellant that he had declared profit at higher than what is required u/s 44AF, in my considered opinion, is only a afterthought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as income of the assessee by the authorities below. As far as cash deposited in the bank is concern, there is no dispute. The controversy arises whether the amount of cash deposit represents the income of the assessee in its entirety. In this regard, we note that there were simultaneous withdrawals as well from the bank over the period under consideration. But the authorities below have not given any benefit to the assessee on account of such withdrawals. In our considered view, if the cash deposit is treated as income then on the same logic the withdrawal from the bank in cash should be treated as an expense until and unless some contrary information is available on record. These contrary informations may include the expenses incurred by the assessee for his personal purposes such as foreign travelling, household expenses, marriages, education or any other expense of personal nature. Likewise, there is also a possibility of having withdrawn the money by the assessee from the bank for the purpose of making some investment which is of capital nature. However, the authorities below have not gone/ considered all the factual aspects but reached to the conclusion that the cash depos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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