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TMI Blog2023 (12) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... und of the assessee is allowed. - Shri Pavan Kumar Gadale, Judicial Member And Dr. Dipak P. Ripote, Accountant Member For the Assessee : Sh. Suresh Ojha, Advocate For the Revenue : Ms. Nidhi Nair, JCIT-DR ORDER PER DR. DIPAK P. RIPOTE, AM: This is an appeal filed by the Assessee against the order of ld. Commissioner of Income Tax (Appeals) (NFAC) under section 250 of Income Tax Act, 1961 dated 24.05.2023 emanating from the assessment order passed under section 147 r.w.s. 143(3) of the Act dated 21.11.2017. The grounds of appeal raised by the assessee are as under:- 1. The order passed by the Income Tax Officer and sustained by the Commissioner of Income Tax (Appeals) is illegal against the law and without any application of mind, therefore, is liable for quash. 2. That the Commissioner of Income Tax (Appeals) fails to cross-examine the contents of the affidavit submitted before him during the course of appeal in view of the judgment of Mehta Parakh and Company and as such the addition sustained by the Commissioner of Income Tax appeals is illegal. 3. That the Commissioner of Income Tax appeals fails to appreciate the evidence, additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the ld. Commissioner of Income Tax (Appeals), Bikaner. The assessee filed copies of two affidavits and written submissions before the ld. Commissioner of Income Tax (Appeals), Bikaner. However, ld. Commissioner of Income Tax (Appeals) (National Faceless Appeal Centre) confirmed the addition. The relevant part of the order of ld. Commissioner of Income Tax (Appeals) is reproduced as under:- Now the question arises in relation to the deposit of rest of amount of Rs. 5,00,000/-. The appellant in his written submission submitted in this office has stated that out of Rs. 5,00,000/-, Rs. 3,00,000/- was out of sale consideration and rest amount of Rs. 2,00,000/- was received by him as gift from his grandmother. Secondly, the appellant has also stated that he has received Rs. 5,00,000/- as gift from his grandmother and has also produced the affidavit regarding the gift made to the appellant before this office. On perusal of the affidavit, I have found that the affidavit was made and signed in the year 2018 in which it is stated that the grandmother of the appellant sold an immovable property on 01.01.2009. It is worthwhile to mention here that the appellant could have provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the result of suspicion which cannot take the place of proof. Hon'ble Punjab Haryana High Court in the case of CIT Vs Anupam Kapoor (2008) 299 ITR 179 (P H) also held that suspicion, howsoever strong cannot take the place of legal proof. Honorable, please also look into the working style of the Income Tax Commissioner Appeal, is nothing but pushing the assessee in the litigation. Submission of ld. DR 4. Ld. DR relied upon the orders of the lower authorities. The ld. DR submitted that the affidavits were not filed before the Assessing Officer. The ld. DR also submitted that though the affidavits were filed before ld. CIT(A) as claimed by the ld. AR of the assessee, the ld. CIT(A) has not forwarded these affidavits to the Assessing Officer. Hence, it is violation of Rule 46A of the Income Tax Rules, 1962. Findings Analysis 5. We have perused the orders and record. 6. It is an admitted fact that as per the bank statement of the assessee, there was cash deposit of Rs. 5,00,000/- on 29.06.2009 and then withdrawal on 29.06.2009, again deposited on 29.06.2009. Assessee had filed copy of a letter issued by State Bank of India, Khajuwala Beriyawali, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the assessee which shows the receipt of a sum on conversion of high denomination notes tendered for conversion by the assessee himself, it is necessary for the assessee to establish, if asked, what the source of that money is and to prove that it does not bear the nature of income. The Department is not at this stage required to prove anything. It can ask the assessee to bring any books of account or other documents or evidence pertinent to the explanation if one is furnished, and examine the evidence and the explanation. If the explanation shows that the receipt was not of an income nature, the Department cannot act unreasonably and reject that explanation to hold that it was income. If, however, the explanation is unconvincing and one which deserves to be rejected the Department can reject it and draw the inference that the amount represents income either from the sources already disclosed by the assessee or from some undisclosed source. The Department does not then proceed on no evidence, because the fact that there was receipt of money is itself evidence against the assessee. There is thus, prima facie, evidence against the assessee which he fails to rebut, and being unreb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the affidavits were not true and hence, the income was taxable therefore, in these facts and circumstances of the case, we are of the opinion that assessee had explained source of cash deposits of Rs. 5,00,000/- made in the assessment order. Ground No. 7 of the assessee is allowed. 11. Ground Nos. 1, 2, 3, 4, 5 6 have not been adjudicated by us as we have adjudicated ground no. 7 and directed the AO to delete the addition of Rs. 5,00,000/- therefore, these grounds become academic in nature. There will not be any prejudice cost to the assessee by we not adjudicating the grounds therefore, these Ground Nos. 1, 2, 3, 4, 5 6 are dismissed as not adjudicated. 12. As far as the Ld. AR s argument regarding levy of cost is concerned, we have given our thoughtful consideration and arrived at the conclusion that it is not a fit case to levy cost. It is not the case that Ld. CIT(A) has not considered the evidence filed by the assessee. It is only the question of interpretation therefore, we do not feel appropriate to levy the cost. Ground No. 8 13. Ld. AR submitted that he did not intend to press ground no. 8 by which he has challenged the legality of proceedings und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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