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TMI Blog2023 (8) TMI 1454X X X X Extracts X X X X X X X X Extracts X X X X ..... ef to the assessee. CIT(A) after considering the cash withdrawals from the banks as per bank statements and cash book noted that the same cannot be manipulated in any manner. We are in agreement with the conclusion drawn by the ld. CIT(A) that the appellant has duly given the site cash books as well as main cash book showing cash balance and the cash deposited to its bank account was created due to huge opening cash balance as per audited books and return of income filed by the assessee before demonetization declaration, and amount of cash withdrawals from 01.04.2016 to till demonetization period which was higher during immediately preceding FY 2015-16. Thus we are inclined to agree with the conclusion drawn by the ld. CIT(A) that the assessee has successfully demonstrated source of cash deposit to its bank account during demonetization period and hence not addition is called for. We are unable to see any ambiguity perversity or any valid reason to interfere with the findings arrived by the ld. CIT(A) and thus we uphold the same. Accordingly, grounds of revenue are dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... axe Limited as Annexure A-4 (Page No. 87 to 91 and 97-100) which brought into light the fact that the company M/s Atulah Contractors Construction (P) Ltd. was having Cash-in-hand as on 08.11.2016 was 1378181 (as per page nos. 87 to 91) while the same as on 08.11.2016 as per page no. 97-100 was 1298219 6. Whether on the facts and in the circumstances of the case, the Ld.CIT(A) erred in law & on facts, ignoring that there is no pattern of such huge cash deposits in the year previous to the relevant previous year.` 7. Whether on the facts and in the circumstances of the case, the Ld.CIT(A) erred in law & on facts, ignoring that the assessee only submitted that the impounded documents containing cash balance available at site offices maintained at the corporate headquarter for various exigencies but again the assessee did not produce any documentary evidences in order to establish its claim. It is not acceptable that such a going on concern i.e. company/flagship company does not maintain or keep record of such details of cash alongwith its purposes for each of the company sites separately. 8. Whether on the facts and in the circumstances of the case, the Ld.CIT(A) erred in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld.CIT(A) erred in law & on facts, ignoring the impounded documents seized from the registered address of M/s Omaxe Limited as Annexure A-4 (Page No. 87 to 91 and 97-100) which brought into light the fact that the company M/s Atulah Contractors Construction (P) Ltd. was having Cash-in-hand as on 08.11.2016 was 1378181 (as per page nos. 87 to 91) while the same as on 08.11.2016 as per page no. 97-100 was 1298219. 5. The Senior DR also drawing our attention towards assessment as well as first appellate order submitted that on the facts and in the circumstances of the case, the Ld.CIT(A) erred in law & on facts, ignoring that the assessee only submitted that the impounded documents containing cash balance available at site offices maintained at the corporate headquarter for various exigencies but again the assessee did not produce any documentary evidences in order to establish its claim. It is not acceptable that such a going on concern i.e. company/flagship company does not maintain or keep record of such details of cash alongwith its purposes for each of the company sites separately and there was no pattern of such huge cash deposit in the preceding assessment year. The Senior D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the cash deposit and there is no question of accepting cash generation through sales. We also noted that the flagship company M/s Omexe Ltd. has surrendered huge amount of unaccounted income but assessee has not disclose any such income. 8. The ld. CIT(A) granted relief to the assessee the following observations & finding:- 5. I have carefully considered the assessment order and submissions of the appellant. Ground nos. 1 to 3 of the appeal are related to the addition of Rs. 2,40,00,000/- on account of unexplained cash deposits. The brief facts of the case are that on 22.11.2016, in the post-demonetization period, the Police intercepted two vehicles carrying cash amounting to Rs. 2,22,76,000/- which was belonging to M/s Omaxe Ltd. The said cash was requisitioned us 132A by the Income Tax Authority and a survey us 133A was also conducted at the office premises M/s Omaxe Ltd, wherein certain documents were impounded as Annexure A-4 (Page No. 87 to 91 and 97 to 100). The AO has stated that these impounded pages contain notings of cash balances as on 08.11.2016 of various group companies belonging to the Omaxe Group, to which the assessee company also belongs. The AO has reprodu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithdrawals can be shown as cash deposited during demonetization. 3 On analysis of the comparative charts of F.Y. 2015-16 and F.Y. 2016-17 it is seen that there was no match of the cash deposits during the demonetization period with the corresponding period of the previous financial year. 4 Since the assessee is a builder and has stated that all sales are via cheque / RTGS/ DD etc, there is no question of accepting cash generation through sales. 5 The flagship company, M/s Omaxe Ltd has surrendered a huge amount as unaccounted income. However, the assessee has not disclosed any such unaccounted income. 5.2. I have carefully considered the assessment order and the submissions of the appellant as well as the assessment records. The findings regarding various observations made by the AO leading to the impugned addition of the amount of cash deposited postdemonetization, are as follows: 5.2.1. The AO has observed that cash withdrawals made by the assessee are not near the dates of cash deposits, and further that if the assessee had withdrawn cash for wage payments/ deals, it is not understandable as to why such expenses were not actually incurred. The AO has observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also comparable for the two financial years under consideration. The cash withdrawal from bank accounts of the appellant was Rs. 5,84,79,000/- during F.Y. 2015-16 and the same was Rs. 5,20,46,260/-during F.Y. 2016- 17 Similarly cash deposited into bank accounts was Rs. 1,20,00,000/-during F.Y. 2015- 16 as compared to cash deposit of Rs. 2,40,12,000/- during F.Y. 2016-17. Therefore, the As observation, that the cash withdrawals and deposits for the two financial years do not match, is incorrect. Infact, substantial cash withdrawals as well as deposits into the bank accounts is very much a regular feature of the business of the appellant and hence there is nothing unusual in either the cash withdrawals or the cash deposits made during the year under consideration. It is also observed that the appellant has a low or negligible level of cash receipts through sales and also a relatively high level of cash expenses as seen from the comparative charts. In this regard, it is noteworthy that the assessee has not tried to explain the post-demonetization cash deposits by showing cash sales, which are at a miniscule level. A similar trend is observed in the preceding year also wherein the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht in treating the withdrawals as source of cash found. Similar is the case of the assessee where cash withdrawals from bank accounts are the source of subsequent cash deposits into such bank accounts. Further, in the case of Jaya Aggarwal, the jurisdictional Court held that where the assessee withdrew cash of Rs. 2 lakhs from bank account to buy property and re-deposited cash of Rs. 1,60,000/-from the amount withdrawn after more than 7 months as the deal could not be finalized, principle of preponderance of probability as a test is to be applied and is sufficient to discharge the onus. The case of the assessee is also similar since cash withdrawals from bank are shown as source for subsequent cash re-deposit even if made at a gap of a few months. It is therefore held that holding substantial cash balances for extended periods of time and re-deposit of such cash into bank accounts was a routine business practice of the appellant company and there was nothing unusual about the same considering the nature of the business as well as trends in the preceding year. 5.2.6. The AO has further observed that the assessee has prepared cash books in such a way that nearby cash withdrawals c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attempt to explain the cash deposited during demonetization. In fact, the cash sales are NIL for F.Y. 2016-17. Therefore, this argument does not carry any force. 5.2.8. It has also been observed by the AO that the flagship company, M/s Omaxe Ltd has surrendered a huge amount as unaccounted income, however, the assessee has not disclosed any such unaccounted income. The said observation is not rational, firstly since any disclosure made by the flagship company does not automatically translate into any acceptance of tax evasion by the appellant. Secondly, the surrender/disclosure made by the flagship company, M/s Omaxe Ltd, is on account of a totally different issue as evident from the statement of Sh. Rohtas Goel, CMD, Omaxe Ltd, the relevant portion of which is extracted below: 5.3 It is therefore evident that the cash deposited post-demonetization is duly explained by the available cash balance as on 08.11.2016, which was in turn build up by cash withdrawals from bank accounts, which are undisputed, and the opening cash balance at the beginning of the year, which is also undisputed since the same tallies with the cash balance as on 31.03.2016 as per the ITR for A.Y. 2016-17 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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