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TMI Blog2023 (10) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmission that cash so found and seized is from his past earnings as duly reflected in his tax filings as accepted by the tax authorities and past savings which have been accumulated therefrom, the said explanation has to be examined based on material available on record and cannot be summarily dismissed as has been done in the present case by the CIT(A). The tax filings for the year under consideration as well as for the earlier years are very much part of record and as far as claim of past savings and availability of cash in hand, the AR has submitted the details and which can be verified by the authorities. Therefore, we agree with the submissions of the AR that the alternate contention was not rightly appreciated by the Ld. CIT(A) and we deem it appropriate to set-aside the matter to the file of the CIT(A) to examine the alternate contention a fresh as per law after providing reasonable opportunity to the assessee. Appeal of the assessee is allowed for statistical purposes. X X X X Extracts X X X X X X X X Extracts X X X X ..... to Shri Surinder Kumar through SHO, Police Division No. 2, Ludhiana which remained unserved for the reason that the door was found locked. Shri Ranjodh Singh Jagga, Sarpanch Village Hambran, Ludhiana during the recording of his statement has denied the identity of the assessee and also denied of any amount of Rs. 10,00,000/- given to the assessee. Further Shri Gurpreet Singh of Village Duley did not appear in response to the summons nor any reply was filed. Thereafter the assessee was given an opportunity to produce these persons but he had shown his inability to produce these persons. Thereafter notice under section 142(1) dt. 09/09/2021 was issued wherein the assessee was show cause as to why the amount of Rs. 11,65,000/- received from him by the ADCP(Narcotics), Ludhiana and later on seized by the department should not be considered as unexplained money under section 69A r.w.s 115BBE of the Act. 2.1 In response, the assessee filed his submission dt. 20/09/2021 which was considered but not found acceptable. Thereafter the assessee was given another opportunity to submit evidence in support of his claim on 22/02/2019 and another opportunity on 23/09/2021 and in absence of any re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- was seized by ADCP (NARCOTICS) Ludhiana from me and it was not the drug money as alleged by them and they informed the IT Deptt. The facts are that money actually belongs to Sh Surinder Kumar who run away due to the fear of ADCP (NARCOTICS) out of this amount Rs. 10,00,000/- was collected from Ranjodh Singh jaga Sarpanch of Hambran on behalf of Sh. Surinder Kumar and Rs. 1,65,000/- given by Surinder Kumar as the total amount has to be paid Sh. Gurpreet Singh. But before the delivery of cash the same seized by ADCP (NARCOTICS) was requisitioned by the income tax Deptt. on 08.11.2019. That statement of Ranjodh Singh Jagga was recorded on 14.10.2019 which was before the requisition of cash by income tax Deptt. and drug enquires was going on and due to that he may have denied any such transaction. And Sh Surinder Kumar ran away from his address. The said statement was not confronted to me at that stage but confronted on 17.09.2021 during Asst. Proceeding after Gap of two year. It is against natural justice, as after two years no evidence could be produced as I was only collection agent and at that time due to fear of ADCP narcotics nobody came forward. Further the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons made before the lower authorities and it was submitted that there is no contradiction in the submission so made by the assessee before the Ld. CIT(A). It was submitted that at first place, it was the claim of the Revenue only that the money so seized belongs to the assessee and where the assessee came forward and submitted that the money does not belongs to him and belongs to Shri Surinder Kumar, the said explanation was not accepted by the AO therefore to prove the source of the money so seized, the assessee the assessee came out with an alternate explanation that he has been regularly filing his tax return for the earlier years and therefore the cash so seized is from the savings from his earlier years and therefore the source thereof should be taken as explained based on his past tax filings. It was submitted that the alternate contention was however not rightly appreciated by the Ld. CIT(A) and hence the assessee is in appeal before this Tribunal. 4.1 During the course of hearing the Ld. AR also submitted the availability of cash out of past years income and tax filings and details thereof are as under: A.Y. Returned Income Savings & Tax Personal Expenditure Cash avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avings and such claim is negated by the decision of the Hon'ble Supreme Court in the case of CIT vs. Durga Prasad More (1971) 82 ITR 540 (SC) and Sumati Dayal vs. CIT (1995) 214 ITR 801 (SC) quoted by the AO in the assessment order, on the principle of test of human probability and on the basis of surrounding circumstances. Thus, the AO was right in his observation that in this case, no documentary evidence have been provided by the assessee in support of his contention and all his submissions have been found to be unsubstantiated and hence not acceptable. The AO has rightly referred to the provision of Section 292C(2) of the Income Tax Act, 1961 and assessee is liable to explain the true source of the money as well as the ownership of the money found in his possession. Under the facts & circumstances of the case and in view of the discussion in the assessment order and the observations above, the addition of Rs. 11,65,000/- made by the AO is found sustainable and hence confirmed." 6. We have heard the rival submissions and pursued the material available on record. The limited issue under consideration relates to source of cash amounting to Rs 11.65 lacs found and seized from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin five days of filing the return of income, the AO passed the assessment order which again call for lack of sufficient opportunity. There is however no finding which has been recorded by the ld CIT(A) dealing with these contentions advanced by the assessee and the findings of the AO have been confirmed. 8. During the appellate proceedings, the assessee by way of alternate contention and without prejudice to his initial contention, submitted that where the AO has accepted the assessee's return of income disclosing income amounting to Rs. 4,83,000/- and taking the same into consideration and tax filings for earlier years, the source of cash so found and seized stand justified in terms of present and past savings of the assessee. The said alternate submission was also rejected by the ld CIT(A) holding it to be contradictory to initial submission so made by the assessee, that such alternate submission cannot be made during the appellate proceedings and that the assessee failed to offer any explanation for carrying such cash with him if it was from his past savings. 9. In our view, there is no contradiction in the alternate submission so made by the assessee before the Ld. CIT(A). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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