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TMI Blog2024 (3) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee. Considering all facts and arguments presented before us, we are of the considered view that the addition sustained by the lower authorities is not justified and the same is directed to be deleted. Appeal of the assessee is allowed. - Dr. S. Seethalakshmi, Judicial Member And Shri Rathod Kamlesh Jayantbhai, Accountant Member For the Appellant : Sh. Avdhesh Singhvi, C.A. For the Respondent : Ms. Nidhi Nair, Sr. DR ORDER Per: DR. S. Seethalakshmi, JM: This appeal filed by assessee is arising out of the order of the Learned Commissioner of Income Tax (Appeals), Ajmer dated 19.08.2019 [here in after ld.CIT(A) ] for assessment year 2011-12, which in turn arise from the order dated 22.09.2018 passed under section 147/143(3) of the Income Tax Act, by the ITO, Ward-5, Bhilwara. 2. In this appeal, the assessee has raised following grounds: - 1. On the facts and in the circumstances of the case and in law, the Hon ble CIT(A) erred in confirming the addition of Rs. 14,72,754/- u/s 69A of the IT Act, 1961 as made by the Ld. AO. 3. Brief fact of the case is that the assessee is an individual and filed income tax return under notice issued u/s 148 of the Act. Since, there were rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as out of past savings, gifts etc., but no documentary evidences has been furnished to prove the submission. The copy of balance sheet and capital account are self serving document which are not supported with any material. Therefore, the submission of the appellant is not found to be acceptable. Accordingly, the addition of Rs. 14,72,754/- made by the AO is hereby confirmed. 5.0 The 2nd ground of appeal is as under: 2. The said Income Tax Officer has further erred in initiating proceedings u/s 271B, 271(1)(b) And 271(1)(c) of The IT. Act. There is no default of the assessee. The assessee has made compliances of notices and not concealed any Income. Therefore, initiation of proceeding s u/s 271B, 271(1)(b) and 271(1)(c) is quite it legal and should be dropped. 5.1 No penalty u/s 271B, 271(1)(b) and 271(1)(c) has been levied by the AO. This ground of appeal is premature in nature, hence the ground is dismissed. 6.0 In the result, the appeal is dismissed. 5. As the assessee not received any favour from the appeal filed before ld. CIT(A). The present appeal filed against the said order of the ld. ld. CIT(A) before this tribunal on the grounds as reiterated in para 2 above. To support ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the copies of individual balance sheets capital accounts from FY 2006-07, FY 2007-08, FY 2008-09, FY 2009-10, and FY 2010-11 were found to be fake or factually incorrect. Going forward, the appellant has provided the list of persons along with their PAN No. and address from whom the appellant has received the small amount of cash for depositing the cash in to his bank account. Without bringing any material discrepancies on the record, the respondent and the assessing officer through his remand report simply rejected the copies of individual balance sheets, capital accounts and list of persons from whom small amount of cash were received by the appellant. An Assessment based on mere conjectures, surmise, or suspicion or irrelevant and in admissible evidence material, is invalid and bad in law. 1.4 Here it is pertinent to mention that for the year under consideration, the appellant has entered in to the commodity market transactions and incurred the loss of Rs. 17,94,549/-. The same has been shown under the head capital gain in the income tax return also and same has been acknowledged by the assessing officer in his order in para no. 6.3. Apart from the commodity market transa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case is bad in law because provisions of section 69A states that Where in any financial year the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and such money, bullion, jewellery or valuable article is not recorded in the books of account, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of acquisition of the money, bullion, jewellery or other valuable article, or the explanation offered by him is not, in the opinion of the Income tax Officer, satisfactory, the money and the value of the bullion, jewellery or other valuable article may be deemed to be the income of the assessee for such financial year. Whereas in the instant case, the appellant has submitted the copies of balance sheets copies of individual balance sheets capital accounts from FY 2006-07, FY 2007-08, FY 2008-09, FY 2009-10, and FY 2010-11 and submitted the list of persons along with their PAN No. and address from whom the appellant has received the small amount of cash for depositing the cash in to his bank account. Since assessee has discharged his onus to prove the source of cash deposit in to bank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the addition of ? 6,30,000/- made thereunder. The AO is accordingly directed. 1.9 From the reading of the above Judgement, it is clear that as per section 69A of the Act, the onus is upon the assessing officer to prove that the appellant is to be the owner of any money, bullion, jewellery or valuable article and such money, bullion, jewellery or valuable article was not recorded in the books of account, if any, maintained by the assessee for any source of income. Whereas in the instant case, the appellant has submitted the copies of balance sheets copies of individual balance sheets capital accounts from FY 2006-07, FY 2007-08, FY 2008-09, FY 2009-10, and FY 2010-11 and submitted the list of persons along with their PAN No. and address from whom the appellant has received the small amount of cash for depositing the cash in to his bank account. By invoking the provisions of sections 69A of the Act, the addition made by the assessing officer and confirmed by the respondent is bad in the eyes of law. From the above-mentioned facts of the case and judgment of Hon'ble Bangalore ITAT, it is clearly evident that the appellant has submitted the source of cash deposited in the bank acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Affidavit is against my Income Tax Appeal no. 372/Jodh/2019 before the Hon'ble ITAT-Jodhpur for AY 2011-12. 2. That I had incurred losses of Rs. 17,94,549 in commodities market transactions in FY 2010-11. 3. That for repayment of losses incurred, I had sold the Gold Silver Ornaments (200 Grams of Gold and 2 kg of Silver) received in my Marriage for an amount of Rs. 4,52,000/- in December 2010. 4. That no receipt of sale of Gold Silver Ornaments (200 Grams of Gold and 2 kg of Silver) could be produced before the CIT(A) or A.O because the transaction of sale of Gold Silver ornaments was done in 2010 and due to mental pressure for repayment of loss, receipt was lost and could not be made available with me during the First Appellate proceedings or assessment proceedings. That the Statement/declarations made in this affidavit in paras 1 to 4 are true to my knowledge The ld. AR of the assessee in addition also submitted that he has also filed a detailed list of gift received at the time of marriage and therefore, considering that aspect of the matter and considering the financial crises/shortage of funds he has deposited the cash which is receipt of gold ornaments and the money lyin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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