Saurabh Jha, Delhi V. ITO Ward-71(2), Delhi

ITA 1445/DEL/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 0734 (ITAT-DELHI)
• Duration Of Justice: 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 05-10-2022
• Assessment Year: 2017-2018
• Appeal Filed On: 19-06-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: GAURAV GUPTA
• Keywords: Gift; Business income
• Section: 250; 69A; 139(1)

Judgement Text

Page | 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘SMC’, NEW DELHI Dr. B. R. R. Kumar, Accountant Member ITA No. 1445/Del/2022: Asstt. Year: 2017-18 Saurabh Jha, BC-119C, Shalimar Bagh, East Delhi, New Delhi -110088 Vs Income Tax Officer, Ward-71(2), New Delhi110002 (APPELLANT) (RESPONDENT) PAN No. AHLPJ7750N Assessee by : Sh. Gaurav Gupta, CA Revenue by : Sh. Om Parkash, Sr. DR Date of Hearing: 06.10.2022 Date of Pronouncement: 14.10.2022 ORDER 1. The present appeal has been filed by the Assessee against the order of the ld. CIT(A), NFAC, Delhi dated 22.04.2022. 2. Following grounds have been raised by the assessee: “1. Ld. Commissioner of Income tax (Appeals) has grossly erred in law as well as on facts in confirming the addition made by the AO to the tune of Rs.10,40,500/- without appreciating following facts & circumstances; i. The amount deposited in bank account of the assessee during the demonetization period was the cumulative savings of the whole family including his wife Late Smt. Deepti Jha old saving and compensation that has to be transferred from her account to her nominee account as per the law. The assessee deposited the whole family saving in his account only for the purpose of protection of his old parents from the chaos and other accidents reported during the demonetization period. We all have heard various accidental, stroke, heart attack and other accidental information specifically about the Page | 2 senior citizens who was waiting for their turn in que. ii. Apart from assessee bank account not even single rupee of cash deposit in any other family members bank accounts. In this respect, copy of the bank statement of mother, father and his wife are enclosed herewith for your ready reference. 2. Ld. CIT(A) has completely erred by conforming the addition, assessee has normal pattern of deposits and withdrawals of the assessee that has been ignored completely, following are the details of deposit and withdrawal: Period (Fin.Year-2016-17) Bank A/c No. Cash deposit Cash withdrawal 1st April to 8th Nov (before demonetization) 31401551375 6,24,800 8,59,000 9th Nov to 30th Dec (During demonetization) 31401551375 7,56,000 31 st December to 31 March (after demonetization) 31401551375 1,66,000 Deposited in Loan account 873398 2,84,000 - Total 16,64,800 10,25,000 ■ The amount withdrawn by the assessee during period 1st April to 8th Nov i.e., before demonetization period is far exceed the amount re-deposited by assessee and sufficient to fulfill household and other expenses. 3. Ld. CIT(A) has erred in law as well on facts by restricting the addition to Rs.10,40,500/- during demonetization period only i.e., between 8th November, 2016 to 30th December, 2016 only and failed to understand the fact that deposit, before and after demonetization period, are similar as during demonetization period, nothing was abnormal on which objection can be raised. ■ Total cash deposit during the demonetization period were Rs. 7,56,000/- in assessee account no.- 31401551375 while rest of the year deposit were Rs.6,24,800. Page | 3 ■ The amount of Rs.2,84,000 deposited in assessee ICICI Bank Ltd. credit card loan account no.- 8773398. The amount so deposited represents withdrawal of Rs. 3,50,000 from assessee own other ICICI bank account no.- 31401551375 on 3rd September 2016 re-deposited in assessee bank account during demonetization period. ■ Assessee received insurance compensation of Rs. 2,00,000 from LIC against the insurance policy of his wife late Smt. Deepti Jha. The said compensation was withdrawal in the form of cash on 04.06.2016 which was later on deposited during demonetization period. ■ It cannot be denied on the fact, due to demonetization assessee had to deposit notes of Rs. 500 and Rs. 1000 as they were no longer considered as legal tender. ■ Addition was purely made considering the facts & circumstances during demonetization period, 8th November to 30th December, only is confirmed on the basis of vague assumption against factual scenario is not maintainable in the eyes of law, which is not fair just and equitable but confiscatory and ex-proprietary.” 4. Ld. CIT(A] has erred in law as well as on facts in passing order u/s 250 of the income tax Act and without affording adequate opportunity to the assessee. 5. Para 5 of the impugned order provides that "assessee has not provided source of income of any other family member" is purely made on the basis of surmises and conjectures without any basis whatsoever and without understanding the facts & circumstances of the case as the other family members are not required to file Income tax returns, relevant provisions in this regard is discussed herein below; ■ While the facts that assessee's father is a priest from last 20 years, also having some agriculture income from agriculture land situated in Distt. Madhubani, Bihar. As per RBI circulars and Page | 4 various government policies a ‘Small Farmer' means a farmer cultivating (as owner or tenant or share cropper] agricultural land of more than 1 hectare and up to 2 hectares (5 acres]. Several relief and benefits provided by government time to time to small farmers. In India considering the small scale of activity carried on by the such farmers and the various other associated services, the income so earned by the small farmers is mostly in cash. ■ As per section 139(1] of the income tax Act, 1961 Every person (a) Being a company [or a firm]; or (b] being a person other than company a person, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income tax. ■ Apart from the above section, as per section 10(1] of the income tax Act, 1961 As per section 10(1], agricultural income earned by the taxpayer in India is exempt from tax and person having only agriculture income not required to file ITR. (c) To conclude as per section 139(1) read with the section 10(1) of the Income Tax Act, 1961 Assessee father's income is within the prescribed limit as stipulated in section-139 of Income Tax Act,1961 and a person having agriculture income shall be exempted from income tax, hence assessee's father neither required to file ITR and nor required to maintain any books of account. Assessee mother is home maker and having a small property located at BC-119C East Shalimar Bagh, on which she was earning rental income of approx. 1.50 lakhs to 2 lakhs Per annum' As per Hindu Law, “Streedhan" is whatever a woman receives during her life time. “Streedhan" includes all movable, immovable property gifts etc received by Page | 5 women prior to marriage, at the time of marriage, during child birth and during her widowhood. ■ As per stated above being an Indian home maker, she is used to save money from the rental income received in past. 6. Ld. CIT(A] by confirming addition made by AO on the ground of “amount deposited in assessee bank accounts has not recorded “completely erred in application of Section 69A ■ As per provision of section -69A “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 Assessing 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. ■ Provision said record in books of accounts “if any" while please note assessee having salary income of Rs.4,16,373 and was not having any business income nor he required to maintain any specific books of accounts as prescribed in section 44AA of the income tax and rules made there under. Therefore Ld. CIT(A) first establish the noncompliance, if any, in relation to maintenance of books of accounts then only the provision of section 69A can be attract in this case. ■ As per provision of section 69A, if person neither required nor maintaining any books of account, shall only explain the source of money, bullion, jewellery or other valuable article received, in this respect assessee has duly explained all the source of amount so deposited. Page | 6 7. As assessee parent are old and assessee had just faced a tragedy of wife immature death, assessee decided to deposit cumulative saving of whole family for the purpose to protect of his old parent from the chaos and other accidents reported during demonetization period. We all have heard various accidental, strokes, heart attack, and other accidental information specifically about the senior citizens who was waiting for their turn in que. 8. It is requested that while disposing off the present Objections, kindly consider the facts stated above.” 3. Information has been received by the department that the assessee has deposited cash of Rs. 7,56,500/- in the bank account No. 031401551375 with ICICI Bank and an amount of Rs. 2,84,000/- in the loan account No. 8773398. The total deposits was to the tune of Rs. 10,40,500/-. The same has been treated as unexplained money u/s 69A by the AO. 4. Aggrieved the assessee filed appeal before the ld CIT(A), who has confirmed the order the AO. 5. Before us it was argued that the assessee is living with his father Sh. Udhay Kant Jha, mother Smt. Sumita Jha and wife Smt. Deepti Jha. It was argued that the amounts have been withdrawn regularly before the deposits owing to the cancer treatment that has been going for his wife. It was submitted that the amounts have been utilized for the treatment and kept for emergency needs. The assessee argued that the revenue authorities erred in treating the entire deposits as pertaining to the period of demonetization. 6. We have examined the bank statement and find that an amount of Rs. 6,24,800/- has been deposited before 8 th November, 2016 and an amount of Rs. 7,56,000/- has been Page | 7 deposited during the demonetization period. We have examined the cash withdrawal which are to the tune of Rs. 859000/-. Further, the assessee has shown in his return of income an amount of Rs. 3,00,000/- as gifts from friends and relatives u/s 10(23)(c) as shown in column B-15 in ITR-V which has been duly accepted by the revenue authorities. Further the assesse has relied on the CBDT Instruction No. 3/2017 dated 21.02.2007 wherein it was instructed that no further verification for the cash deposit up to Rs. 2,50,000/- is required to be made. The assessee has also filed bank statements of the father, mother and wife wherein absolutely no cash deposits have been made. It was pleaded that the amount lying with the parents of smaller amounts has also been deposited in the bank account of the assessee. Even discarding this pleading, since the withdrawals and the amounts declared u/s 10(23)(c) in the returned income adequately proves the sources of cash deposits, no addition in this case is warranted. 7. In the result, the appeal of the assessee is allowed. Order Pronounced in the Open Court on 14/10/2022. Sd/- (Dr. B. R. R. Kumar) Accountant Member Dated:14/10/2022 *Ajay Kumar Keot, Sr. PS* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR