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TMI Blog2023 (10) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended that even in a case of Non-Resident, an order u/s 92CA(3) is prerequisite condition. Thus, we do not find any merit in the contention raised on behalf of the appellant. It is only from the assessment year 2020-21 that a Non-Resident is made as eligible assessee , therefore, the Assessing Officer ought not to have exercised the jurisdiction u/s 144C of the Act - It is settled position of law that the assessment procedure which provides a machinery procedure for quantification of charge and levying as well as collection of tax in respect of charge, thereof, it falls under realm of the procedural law. A procedural law is generally applicable to all the pending cases. The procedural law always has the retrospective application. The rule against retrospective operation of statute or a provision is not applicable to a statute or provisions if the same operates in the domain of procedural aspects of the statute. The Apex Court in several cases held that no person has a vested right in any course of procedure. He has only the right of prosecution or defense in the manner prescribed for the time being by or for the court in which the case is pending, and if, by an Act of Parli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of money received from brother, namely, Saber Fakir Shaikh. The material on record clearly indicates that money was withdrawn from his bank account. The affidavit from his brother also affirms this fact. Even during the course of statement recorded from him, he had not denied that the money was given to the appellant. There is nothing on the record to disbelieve the explanation filed in support of cash deposit of Rs. 20,00,000/-. Therefore, we reverse the order of the lower authorities and direct the Assessing Officer to delete the addition made u/s 69A of the Act. Decided in favour of assessee. - Shri Inturi Rama Rao, Accountant Member And Shri S. S. Viswanethra Ravi, Judicial Member For the Assessee : Shri Rajiv Khandelwal For the Revenue : Shri Prashant Gadekar ORDER PER INTURI RAMA RAO, A M: This is an appeal filed by the assessee directed against the final assessment order dated 20.12.2022 passed u/s 147 r.w.s. 144C(13) of the Income Tax Act, 1961 ( the Act ) for the assessment year 2014-15. 2. Briefly, the facts of the case are that the appellant is an individual and Non-Resident Indian in terms of Income-tax purpose. The Return of Income for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer. Further, it is submitted that the cash deposits of Rs. 1,00,000/- on 08.04.2013 in Axis Bank was made out of the earlier withdrawal of Rs. 2,00,000/- from the State Bank of India on 08.04.2013. The said explanation of the assessee was rejected by the Assessing Officer by holding that the assessee had failed to explain the reasons why the money was withdrawn from the savings bank account of State Bank of India and why the said cash withdrawn was deposited in the Solapur District Co-operative Central Bank. He also disbelieved the explanation of the assessee that the amount of Rs. 20,00,000/- was given by his brother placing reliance on the statement recorded from his brother, namely, Saber Fakir Shaikh, who appears to have been pleaded the ignorance about the bank transaction. The Assessing Officer finally held that the appellant had failed to prove the nexus between the amounts withdrawn and deposited in the bank. In the circumstances, he brought to tax the said cash deposits under the provisions of section 69A of the Act and passed a draft assessment order u/s 144C of the Act vide order dated 30.03.2022. On receipt of the draft assessment order, the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, (a) Dispute Resolution Panel means a collegium comprising of three Principal Commissioners or Commissioners of Income-tax constituted by the Board for this purpose; (b) eligible assessee means, (i) any person in whose case the variation referred to in sub-section (1) arises as a consequence of the order of the Transfer Pricing Officer passed under sub-section (3) of section 92CA; and (ii) any non-resident not being a company, or any foreign company. 7. On mere perusal of the above provisions, it would be clear that the Assessing Officer is required to issue a draft assessment order in respect of an eligible assessee. There are two categories of eligible assessee : (a) In a case where there has been a variation on account of order passed by the TPO u/s 92CA(3) and (b) Any Non-Resident not being a company or any foreign company. 8. In the former case, the Assessing Officer is required to adhere to the special procedure prescribed u/s 144C, only in case, where there is variation to the returned income on account of arm s length price for international transaction or specific domestic transaction has been proposed by the TPO. In the later case, the Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny. This amendment will take effect from 1st April, 2020. Thus, if the AO proposes to make any variation after this date, in case of eligible assessee, which is prejudicial to the interest of the assessee, the above provision shall be applicable. [Clause 70] 10. It is settled position of law that the assessment procedure which provides a machinery procedure for quantification of charge and levying as well as collection of tax in respect of charge, thereof, it falls under realm of the procedural law. A procedural law is generally applicable to all the pending cases. The procedural law always has the retrospective application. The rule against retrospective operation of statute or a provision is not applicable to a statute or provisions if the same operates in the domain of procedural aspects of the statute. The Apex Court in several cases held that no person has a vested right in any course of procedure. He has only the right of prosecution or defense in the manner prescribed for the time being by or for the court in which the case is pending, and if, by an Act of Parliament the more of procedure is altered, he has no other night than to proceed according to the altered mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and deposit of same cash in bank. The DRP further observed that the assessee had failed to furnish the sources of FDs made in the bank, the maturity proceeds which were withdrawn from the bank. It is settled position of law that the cash withdrawn from the bank is treated as available for subsequent deposit into the bank, in the absence of any material on record to indicate that the cash withdrawn was utilised for some other purposes. Specially, in the present case, the interval between the withdrawal and deposit of the cash is hardly two days. There can be hundred and reasons as to why the assessee had withdrawn the money from one bank account and deposited in other bank account. Merely because the assessee had failed to explain the reasons for withdrawal from one bank account and deposited to another bank account, cannot lead to the conclusion that the cash withdrawn earlier was not available for subsequent deposit in the bank account. The reasoning of the DRP that the assessee had not furnished the sources of the cash deposits made cannot be a reason to make the addition on account of cash deposits, inasmuch as, the FDs in the bank were not made during the previous year relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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