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TMI Blog2023 (11) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of section 68/ 69 of the Act by furnishing the necessary details which have been elaborately discussed in the preceding paragraph. Thus, the onus shifted upon the revenue to disprove the contention of the assessee based on the tangible materials. But we note that the learned DR has not brought any iota of evidence suggesting that the amount of cash deposit was not out of the cash withdrawal from the bank. Likewise, there was no information that the assessee has spent the cash withdrawal somewhere else towards the capital or revenue expenses. As there cannot be any addition to the total income of the assessee on account of cash deposited in the bank unless the revenue demonstrates that the amount in question has been used by the assessee for any other purpose. Thus, in our considered view the addition on account of cash deposit in the bank is based on assumption and presumptions of wrong facts which is bad in law. Decided in favour of assessee. - Shri Waseem Ahmed, Accountant Member And Shri Tr Senthil Kumar, Judicial Member For the Assessee : Shri Vartik Choksi, AR For the Revenue : Shri Sudhendu Das, CIT. DR ORDER PER WASEEM AHMED, ACCOUNTANT ME ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the assessee is that the learned CIT(A) erred in confirming the addition of Rs. 46,98,90,920/- on account cash deposit in the bank. 4. The facts in brief are that the assessee, a public company, is engaged in the business of real estate. The assessee for the year under consideration was selected for limited scrutiny to verify the sources of cash deposit which later converted into complete scrutiny. The AO during the assessment proceedings noticed that the assessee in the cash book, prepared for the year under consideration, has shown an opening cash balance of Rs. 2,50,13,132/-, total cash withdrawal for Rs. 47,26,31,022/- and cash deposit for Rs. 46,98,90,920/- only. The AO further noticed that the majority of cash was withdrawn during the period April 2015 to January 2016 whereas the majority of cash was deposited during February to March 2016 on daily basis. Accordingly, the AO raised certain questions to the assessee regarding such huge cash deposits and withdrawals. 4.1 The assessee in response to such notice of the AO, explained that it, being in the business of real estate development, was in the process of acquiring lands at Vijapur and Derol area for which it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the cash deposit as unexplained income and added to the total income of the assessee. 6. The aggrieved assessee preferred an appeal before the learned CIT(A) who confirmed the finding of the AO by observing as under: 5.2 The assessing officer relied on the decision of Hon'ble Delhi High Court in the case of Dinesh Kumar Jain vs. Pr.CIT [2018] 97 taxmann.com 113 (Delhi). In this case, the facts are that the assessee claimed that huge cash withdrawals were made from the bank account by utilizing over draft facility, for the purpose of construction of a building and once the construction was over the surplus money was re-deposited in the bank account. In this case, the assessee failed to provide any details of cost of construction incurred by him and no bills of purchase of construction material or any payment to contractors were produced. The assessee company had no evidence at all to explain as to how much amount was incurred in construction of property. In these circumstances the Hon'ble High Court observed that no material could be brought on record to show that after incurring the cost of construction the assessee was left with any huge surplus of cash. It has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eved by the order of the learned CIT(A), the assessee is in appeal before us. 8. The learned AR before us filed paper book running from pages 1 to 177 and inter-alia contended that the source of cash deposit was duly explained and the same was also not doubted by the authorities below. 9. On the other hand, the learned DR supported the order of the authorities below. 10. We have heard the rival contentions of both the parties and perused the materials available on record. In the present case, the cash deposited by the assessee was treated as unexplained income of the assessee by the AO on the reasoning that the assessee failed to make satisfactory explanation regarding the sources of such cash deposit. The assessee during assessment as well appellate proceeding before the learned CIT(A) explained that the cash was deposited out of the opening cash balance and cash withdrawal made in the year under consideration. As such the assessee explained that the cash was withdrawn for the purpose of purchase of land, but the land deal did not materialize, hence the same was redeposited. However, neither of the lower authorities agreed with the explanation of the assessee and accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. ITO reported in 88 taxmann.com 382, wherein similar facts and circumstances it was held as under: 4. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below as well as the judgements relied upon by the ld. counsel for the assessee. There is no dispute with regard to the fact that the assessee had deposited the cash of Rs. 11,27,800/- starting from 07/06/2007 to 31/02/2008. The cash withdrawn from the bank was of Rs. 4,20,000/- on 01/07/2006, Rs. 4,90,000/- on 06/07/2006, Rs. 83,000/- on 26/06/2007, Rs. 51,000/- on 20/11/2007, Rs. 1,28,000/- on 14/12/2007 and Rs. 2,00,000/- on 07/01/2008. However, the cash was deposited on 07/06/2007 of Rs. 2 lacs, on 08/06/2007 of Rs. 2 lacs, on 11/06/2007 of Rs. 1,50,000/-, on 12/06/2007 of Rs. 2 lacs, on 13/06/2007 of Rs. 2,25,000/-. The total deposits till 13/06/2007 was of Rs. 9,75,000/- and the amount withdrawn till 06/07/2006 was of Rs. 9,10,000/- (Rs.4,20,000 + 4,90,000). Rest of the deposits of the total addition were made on 18/06/2007, 26/06/2007 and 13/02/2008. However, withdrawal after 06/07/2006, the assessee had withdrawn on 26/06/2007 of Rs. 83,000/-, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the AO is directed to delete the addition. Thus, ground raised in the assessee's appeal is allowed. 10.5 We also find pertinent to refer the order of Hon ble Gujarat High Court in the case of Commissioner of Income-tax v. Shailesh Rasiklal Mehta reported in 176 taxman 270 wherein similar facts and circumstances it was held as under: 8. In relation to the first question it is an admitted fact that there was no evidence to disbelieve or disprove the fact that sufficient cash was available in the cash book on the two dates for making the deposits and there was no reason found by the Tribunal for disbelieving the books of account maintained by the assessee as narrated in paragraph No. 31.1 of the impugned order. 9. These are pure findings of fact recorded after appreciation of evidence and do not give rise to any question of law, much less a substantial question of law. 10.6 In view of the above, there cannot be any addition to the total income of the assessee on account of cash deposited in the bank unless the revenue demonstrates that the amount in question has been used by the assessee for any other purpose. Thus, in our considered view the addition ..... X X X X Extracts X X X X X X X X Extracts X X X X
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