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TMI Blog2024 (8) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... M. Biyani, A.M.: Feeling aggrieved by appeal-order dated 10.08.2023 passed by learned Commissioner of Income-Tax (Appeals), NFAC, Delhi [ CIT(A) ], which in turn arises out of assessment-order dated 23.09.2019 passed by learned ITO Ward-1, Dewas [ AO ] u/s 144 of Income-tax Act, 1961 [ the Act ] for Assessment-Year [ AY ] 2017-18, the assessee has filed this appeal on following grounds: (i) That on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in confirming the addition of Rs. 11,00,000/- made to the total income of the appellant on account of cash deposit in bank account by treating it as unexplained money u/s 69A r.w.s. 115BBE of the Act without properly appreciating the facts of the case. (ii) That on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in confirming the addition of Rs. 11,00,000 made to the total income of the appellant on account of cash deposit in bank account by treating it as unexplained money u/s 69A r.w.s. 115BBE of the Act without properly appreciating the facts of the case even when the appellant during the course of assessment proceedings categorically explained that the said amount of cash d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted assessee s submission. Now the assessee has come before us in next appeal assailing the orders of lower authorities. 3. Ld. AR for assessee submitted that the assessee has made a genuine and factual explanation to lower authorities that the deposit in Bank A/c was made from previous withdrawal made from Bank A/c. He submitted that the withdrawal made from Bank A/c is not disputed by lower authorities. However, the lower authorities have not accepted the assessee s explanation of re-deposit in Bank A/c from previous withdrawal precisely for the reason that there was a time gap of 20 months. Ld. AR submitted that the earlier withdrawal of cash from Bank A/c was very much available to assessee and it is not the case of revenue that the said cash was utilized elsewhere for any other purpose. He submitted that once the assessee has made an explanation that the cash withdrawal was held for personal purpose, it was not open to revenue to contend that the assessee has to explain as to how and why the cash was withdrawn earlier, why it was not utilized and why it was available with assessee. Ld. AR submitted that the facts of assessee s case are squarely covered by a direct decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the source as having come from the withdrawal made on a given date from a given bank, it was not for the respondents no.1 and 2, to concern themselves with what the assessee did with the money, i.e., whether he had kept the same in his house or utilised the services of a bank by depositing the same. The ITO has only two choices before him. One was to reject the explanation as not believable for the reason that on his investigation no such pigmy deposit was ever made into the bank. In the alternative, he ought to have called upon the assessee- petitioner to substantiate his claim by documentary evidence. Having exercised neither of the choices, it was not open to the ITO to merely surmise that it would not be probable for the assessee to keep Rs. 15,000/- unutilised for a period of two years. The ITO should have given an opportunity to the assessee to substantiate his assertion as to the source of the capital outlay. 12. In this case, it is not in dispute that the assessee withdrew a sum of Rs. 5,00,000/- on 18.8.2003 and Rs. 2,00,000/- on 20.8.2003 from her savings account. She is an agriculturist and she had agricultural income. Once she demonstrated that she was in possession o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave carefully considered the rival submission. The Hon ble Karnataka High Court in the case of Smt. P. Padmavathy (supra) clearly laid down that earlier withdrawals of cash from Bank account have to be accepted as available to an assessee to explain a later deposit as source. The Hon ble Court held that it was not open to the Revenue to contend that the assessee has to explain as to how the cash withdrawn earlier was utilized by an assessee and was still available with the assessee. The decisions cited by the learned DR are contrary to the law laid down by the Hon ble Karnataka High Court and therefore not binding. I, therefore, hold the past withdrawals as claimed by the assessee from 2013 should be considered as being available to the assessee to explain the source of deposit. We are also of the view that a reasonable quantum of cash available out of past savings should also be considered as being available to the assessee to explain the source of cash deposited in the bank account. 10. I, therefore, set aside the order of the CIT(A) and remand the case to the AO to consider the issue de novo in the light of the observations as made above. 11. The appeal of the assessee is accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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