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TMI Blog2023 (6) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... plot and selling them, the payment of Rs. 2,80,000/- cash is questionable. There is no force in the contention that as this amount is not shown in the P L A/c and forms part of the stock, the same cannot be disallowed u/s 40A(3) - as this amount forms part of the cost of construction the same is required to be shown in the P L A/c and justified to be made for business exigency. Thus, the Bench is not inclined to interfere in the finding of tax authorities below. Decided against the assessee. Unexplained cash deposited in bank - reasonable show cause notices assessee failed to bring evidence - HELD THAT:- CIT(A) but failed to consider the evidence and plea taken before Ld. CIT(A), that the deposits were from the prior withdrawals. Therefore, the issue deserve to be restored to the files of Ld. CIT(A) to verify the fact of deposits being from the prior withdrawals and benefit the assessee. - ITA No. 2374/DEL/2015 - - - Dated:- 15-5-2023 - SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI ANUBHAV SHARMA, JUDICIAL MEMBER For the Assessee : Shri Rakesh Sehgal, CA For the Department : Shri Kanv Bali, Sr. DR ORDER PER ANUBHAV SHARMA, JM: The assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d CIT(Appeals) has sustained these additions, while giving benefit to the assessee for certain other additions. 4. The assessee is in appeal raising following grounds: 1. That the order of the learned appellate authority is arbitrary and against law and facts of the case. 2. That the Ld. Commissioner of Income Tax (Appeals)-XX has wrongly, arbitrarily against the law and without appreciating the facts/evidence filed in the case based on the consideration of standard cost of construction, confirmed addition of Rs. 22,54,805/- on account of excessive cost of construction claimed, even though approved valuer s report/other evidence was filed in support of the cost of the construction claimed. 3. That the Ld. Commissioner of Income Tax (Appeals)-XX has wrongly, arbitrarily against the law and without appreciating the facts/evidence, confirmed addition of Rs. 1,29,245/- on account of low household withdrawals even though sufficient details/evidence of personal withdrawals of Rs. 11,76,876/- was given against the learned Assessing Officer estimated withdrawal of Rs 6 lacs. 4. That the Ld. Commissioner of Income Tax (Appeals)-XX has wrongly, arbitrarily against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) as no application under Rule 46A of the Income-tax Rules was filed. 7.1. The Bench is of the considered opinion that when powers of learned CIT(Appeals) are co-terminus with that of learned AO and the learned CIT(Appeals) had found some substance in certain evidences produced before it, then it was necessary to examine the same. Thus, the Bench is inclined to restore Ground no. 2 to the file of learned CIT(Appeals) to give an opportunity to the assessee to bring on record the relevant evidence in accordance with law and after getting remand report from learned AO, decide the issue afresh. Accordingly, ground no. 2 is allowed for statistical purposes. 8. In regard to ground no. 3, it can be appreciated that learned AO has primarily taken into account certain factors of assessee s family structure, need, expenditure and investments to reach the figure of annual house-hold expenditure of at least at Rs. Six lakh. The learned CIT(Appeals) has directed learned AO to reduce Rs. 43,610/- which was also a withdrawal on account of expenses for payment of school fee. 8.1. The Bench is of the considered opinion that learned Tax Authorities have failed to take into consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee had made payments of Rs. 5,00,000/-on 11.09.2009, Rs. 1,40,000/- on 15.09.2009 and Rs. 5,00,000/- on 07.09.2009. So this amount of Rs. 2.80 lacs cannot be one paid in cash as seller was new to the assessee. This shows assessee had opportunity to make payment by banking channels. 9.3 Furthermore, when assessee is not buying the plot/building for the purpose of private needs, but as part of the business activity of raising construction on the plot and selling them, the payment of Rs. 2,80,000/- cash is questionable. There is no force in the contention that as this amount is not shown in the P L A/c and forms part of the stock, the same cannot be disallowed u/s 40A(3) of the Act. The Bench is of the considered opinion that as this amount forms part of the cost of construction the same is required to be shown in the P L A/c and justified to be made for business exigency. Thus, the Bench is not inclined to interfere in the finding of tax authorities below. The ground no 4 is decided against the assessee. 10. In regard to ground no. 5 it can be appreciated that Ld. AO had made addition on the basis that inspite of reasonable show cause notices assessee failed to bring evidence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing Officer wherein the deposits in the bank account were not reflected. The addition made by the Assessing Officer is therefore confirmed. 10.2 Thus what can be made out of the order of Ld. CIT(A) is that he was supplied factual information but he did not care to verify the same himself or call for a remand report from the Ld. AO. It can be appreciated that Assessee has all the while taken a plea that source of disputed deposits, including on basis of which additions is made, was the Cash Book. Certain deposits stood verified by the Ld. AO from the cash book. On behalf of assessee the Cash book for period 1.4.2009 to 31.3.2010 is placed on record at page no 41-54 of the PB, with relevant entries between 1.11.2009 to 30.11.2009 on page 48 of Pb. In the light of same the observations of Ld. CIT(A) that However, in the absence of complete books of account the authenticity of the statement and extract produced by the appellant cannot be accepted. Moreover the appellant had produced the cash book before the Assessing Officer wherein the deposits in the bank account were not reflected. Are not sustainable. The fact was verifiable at the of Ld. CIT(A) but failed to consider th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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