Dr. Surya Mani Dwivedi, Faizabad V. DY. Commissioner of Income Tax, Faizabad

ITA 145/LKW/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 8234 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 28-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Gift; Additional evidence; Non compliance; Revised return
• Section: 144

Judgement Text

I.T.A. NO.145/LKW/2017 ASSESSMENT YEAR:2011-12 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO.145/LKW/2017 ASSESSMENT YEAR:2011-12 DR. SURYA MANI DWIVEDI, PROP. M/S JAGAT HOSPITAL, RAIBARELI ROAD, FAIZABAD. PAN:AAVPM 2187 K VS. DY.C.I.T., DISTT. FAIZABAD. (APPELLANT) (RESPONDENT) O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LEARNED CIT(A), FAIZABAD DATED 26/12/2016 PERTAINING TO ASS ESSMENT YEAR 2011-12. IN THIS APPEAL THE ASSESSEE HAS TAKEN THE FOLLOWING GROUNDS: 1. THAT THE LEARNED COMMISSIONER OF INCOME-TAX ( A PPEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN ARBITRARILY CONFIRMING THE ADDITION OF RS.14,38,000/- WHICH WAS MADE BY THE AO AS UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNTS ON TH E BASIS OF PRESUMPTIONS AND SURMISES. 2. THAT THE LEARNED COMMISSIONER OF INCOME-TAX ( AP PEALS) HAS ERRED IN LAW AS WELL AS ON FACTS IN ARBITRARILY CONFIRMING THE ADDITION IN RESPECT OF GIFT OF RS.28,500/- WHICH WA S RECEIVED BY THE ASSESSEE ON 07-08-2010 THROUGH CHEQUE NO. 42382 1 FROM M/S JENBURKT PHARMACEUTICALS LTD. ON THE BASIS OF P RESUMPTIONS AND SURMISES. APPELLANT BY SHRI SHAILENDRA MISHRA, ADVOCATE RESPONDENT BY S HRI JAI NATH VERMA, D.R. DATE OF HEARING 24/09/2018 DATE OF PRONOUNCEMENT 28 / 09 /201 8 I.T.A. NO.145/LKW/2017 ASSESSMENT YEAR:2011-12 2 2. AT THE OUTSET, ARGUING GROUND NO. 1 LEARNED A. R . SUBMITTED THAT ASSESSEE DURING THE ASSESSMENT PROCEEDINGS HAD FURN ISHED COMPLETE CASH FLOW STATEMENT WHEREBY THE DEPOSITS IN VARIOUS BANK S WERE DULY EXPLAINED AND IN THIS RESPECT DOUR ATTENTION WAS INVITED TO C OPY OF CASH FLOW STATEMENT PLACED AT PAGES 1 TO 3 OF THE PAPER BOOK. IT WAS S UBMITTED THAT THE AUTHORITIES BELOW DID NOT QUESTION THE AVAILABILITY OF FUNDS ON THE BASIS OF CASH FLOW STATEMENT BUT THEY DOUBTED THAT ASSESSEE WAS UNNECESSARILY WITHDRAWING CASH FROM BANK AND AGAIN DEPOSITING THE FUND IN BANKS AND THEN AGAIN WITHDRAWING AND AGAIN DEPOSITING IN BANK S. IN THIS RESPECT OUR ATTENTION WAS INVITED TO THE FINDINGS OF THE ASSESS ING OFFICER IN HIS ASSESSMENT ORDER. LEARNED A. R. SUBMITTED THAT WHE N THE AVAILABILITY OF CASH WAS EXPLAINED THERE WAS NO REASON FOR THE AUTH ORITIES BELOW TO SUSTAIN THE ADDITION AND RELIANCE IN THIS RESPECT WAS PLACE D ON AN ORDER OF LUCKNOW BENCH OF THE TRIBUNAL IN I.T.A. NO.285/LKW/2016 IN THE CASE OF DCIT VS. SHRI SUDHIR SHANKAR HALWASIYA WHERE THE HON'BLE TRI BUNAL, WHERE UNDER SIMILAR CIRCUMSTANCES VIDE ORDER DATED 17/01/2018, THE HON'BLE TRIBUNAL HAD DISMISSED THE APPEAL OF THE REVENUE. OUR ATTENTION WAS ALSO INVITED TO AN ORDER OF LUCKNOW BENCH OF THE TRIBUNAL IN I.T.A. NO .374/LKW/2013 IN THE CASE OF DCIT VS. SHRI PAWAN AGARWAL WHEREIN THE APP EAL OF THE REVENUE UNDER SIMILAR CIRCUMSTANCES WAS DISMISSED BY THE HO N'BLE TRIBUNAL. 3. ARGUING GROUND NO. 2, LEARNED A. R. SUBMITTED TH AT THE ASSESSEE HAD RECEIVED AN MOUNT OF RS.28,500/- THROUGH CHEQUE AS A GIFT FROM GENBURKT PHARMACEUTICALS LTD. AND WHICH THE AUTHORITIES BELO W HAVE HELD TO BE AS INCOME FROM OTHER SOURCES. LEARNED A. R. SUBMITTED THAT LEARNED CIT(A) HAS HELD THIS GIFT AS INCOME FROM OTHER SOURCES AS HE HELD THAT THE AMOUNT OF GIFT WAS NOT RECEIVED FROM CLOSE RELATIVES AND T HE RECEIPT OF GIFT REQUIRED EXISTENCE OF NATURAL LOVE AND AFFECTION BETWEEN THE DONOR AND THE DONEE. IN THIS RESPECT LEARNED A. R. SUBMITTED THAT THE PR OVISIONS OF SECTION I.T.A. NO.145/LKW/2017 ASSESSMENT YEAR:2011-12 3 56(2)(VII) ARE APPLICABLE ONLY FOR GIFTS EXCEEDING RS.50,000/- WHEREBY ANY GIFT RECEIVED BY THE ASSESSEE IN EXCESS OF RS.50,00 0/- HAS TO BE ON ACCOUNT OF SOME CONSIDERATION AND FOR GIFTS BELOW RS.50,000 /-, NO CONSIDERATION IS REQUIRED TO BE ESTABLISHED. 4. LEARNED D. R., ON THE OTHER HAND, ARGUED THAT TH E ASSESSEE HAD NOT DECLARED THESE ACCOUNTS AND INTEREST THEREON IN THE ORIGINAL RETURN OF INCOME AND HAD ONLY DECLARED THE INTEREST INCOME FR OM THESE BANK ACCOUNTS IN THE REVISED RETURN WHEN HE WAS CORNERED DURING T HE COURSE OF ASSESSMENT PROCEEDINGS THEREFORE, THE EXPLANATION O F THE ASSESSEE FOR CASH IN HAND CANNOT BE ACCEPTED. REGARDING SECOND GROU ND THE LEARNED D. R. PLACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BE LOW. 5. LEARNED A. R., IN HIS REJOINDER, SUBMITTED THAT IT IS TRUE THAT THE INTEREST FROM THESE BANK ACCOUNTS WAS DECLARED IN T HE REVISED RETURN WHICH WAS FILED DURING ASSESSMENT PROCEEDINGS BUT IT IS A LSO CORRECT THAT THE CASH DEPOSIT IN THESE BANKS WERE EARLIER WITHDRAWN FROM THESE BANK ACCOUNTS ONLY AND ASSESSEE WAS HAVING SUFFICIENT CASH IN HAN D BEFORE DEPOSITING IN THE BANK ACCOUNTS. THEREFORE, THERE WAS NO JUSTIFI CATION IN MAKING THE ADDITION AS UNEXPLAINED CASH DEPOSIT WHEN THEY WERE BACKED BY SUFFICIENT CASH IN HAND WHICH IS APPARENT FROM THE CASH FLOW S TATEMENT FURNISHED TO ASSESSING OFFICER AND LEARNED CIT(A). . I HAVE HEARD THE RIVAL PARTIES AND HAVE GONE THRO UGH THE MATERIAL PLACED ON RECORD. I FIND THAT IT IS CORRECT THAT T HE ASSESSEE HAD NOT DECLARED THE INTEREST INCOME FROM THESE BANK ACCOUNTS IN THE ORIGINAL RETURN OF INCOME. HOWEVER, DURING THE ASSESSMENT PROCEEDINGS HE REVISED THE RETURN OF INCOME AND DECLARED THE INTEREST EARNED ON THESE SAVING ACCOUNTS. IT IS OBSERVED THAT ASSESSEE HAD DEPOSITED AN AMOUNT OF R S.14,38,000/- IN HIS VARIOUS BANK ACCOUNTS, THE DETAILS OF WHICH HAS BEE N REPRODUCED BY THE I.T.A. NO.145/LKW/2017 ASSESSMENT YEAR:2011-12 4 ASSESSING OFFICER IN HIS ASSESSMENT ORDER AT PARA 4 . ON AN EXAMINATION OF CASH FLOW STATEMENT FURNISHED TO THE AUTHORITIES BE LOW, I FIND THAT ON 19/05/2010 THE ASSESSEE HAD DEPOSITED AN AMOUNT OF RS.3,00,000/- IN ICICI BANK AND OPENING CASH IN HAND AS ON 01/04/2010 WAS RS.10,10,712/-. THEREAFTER ON 07/05/2010 THE ASSESSEE DEPOSITED RS. 2,00,000/- IN HDFC BANK ACCOUNT AND AGAIN RS.2,00,000/- WAS DEPOSITED ON 19/05/2010 IN THE SAME HDFC BANK ACCOUNT. ON 07/06/2010 THE ASSESSEE AGAIN DEPOSITED RS.1,10,000/- IN ICICI BANK ACCOUNT AND ALL THESE D EPOSITS WERE EXPLAINABLE AS THE ASSESSEE WAS HAVING SUFFICIENT CASH BALANCE. ON 14/06/2010 THE ASSESSEE WITHDREW RS.3,55,000/- FROM HDFC BANK AND ANOTHER RS.2,90,000/- WAS WITHDRAWN FROM ANOTHER HDFC BANK ACCOUNT AND THE CASH IN HAND BECAME RS.6,45,712/- OUT OF WHICH ASSE SSEE AGAIN DEPOSITED RS.1,00,000/- EACH IN TWO HDFC BANK ACCOUNTS ON 15/ 07/2010. SIMILARLY, THE REMAINING CASH DEPOSITS WERE ALSO EXPLAINED THR OUGH CASH IN HAND WHICH WAS WITHDRAWN BY THE ASSESSEE FROM THE BANK. THE WITHDRAWALS ARE ALSO SUPPORTED BY COPY OF BANK STATEMENTS PLACED AT PAGES 4 TO 7 OF THE PAPER BOOK THEREFORE, THE ACTION OF MAKING ADDITION AS UNEXPLAINED CASH DEPOSIT IS NOT JUSTIFIED. THE AUTHORITIES BELOW HA VE NOT QUESTIONED THE ENTRIES OF WITHDRAWALS BEFORE THE DEPOSITS AND HAVE NOT QUESTIONED THE WITHDRAWAL FROM BANK. THE, ONLY OBJECTION IS WITH THE ACTION OF FIRST WITHDRAWING THE CASH FROM BANK AND THEN DEPOSITING THE SAME. THE ASSESSING OFFICER HAS HELD THAT MERE FURNISHING THE DETAILS OF AVAILABILITY OF FUNDS WITH THE ASSESSEE IS NOT ENOUGH TO PROVE THE SOURCE OF CASH DEPOSIT WHEREAS IN MY OPINION THE ONUS OF THE ASSESSEE IS D ISCHARGED WHEN HE EXPLAINED THE AVAILABILITY OF FUNDS WITH HIM AND AS SESSING OFFICER DID NOT FIND ANYTHING WRONG IN THE CASH POSITION. THE LUCK NOW BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. SUDHIR SHANKAR HAL WASIYA VIDE ORDER DATED 17/01/2018 HAS DISMISSED THE APPEAL OF THE REVENUE BY HOLDING AS UNDER: I.T.A. NO.145/LKW/2017 ASSESSMENT YEAR:2011-12 5 4. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. IT IS AN UNDISPUTED FACT THAT THE ASSESSMENT WAS COMPLETED U/S 144 OF THE ACT. IT IS ALSO UNDISPUTED FACT THAT THE ASSESSEE HAD FILED COMPLETE CASH FLOW STATEMENT. THIS FACT HAS BEEN MENTIONED BY THE ASSESSING OFFICER IN HIS ORDER AT PAGES 3 AND 4 HOWEVER, ON THE BASIS OF FREQUENT HUG E WITHDRAWAL FROM THE BANK AND SIMULTANEOUSLY HUGE CASH DEPOSIT IN THE BANK, CREATED DOUBT IN HIS MIND AND HE HELD THAT IT IS NO T UNDERSTOOD AS TO WHY THE CASH AMOUNTS WERE REQUIRED TO BE WITHDRAWN WHEN THE CASH OUT OF EARLIER WITHDRAWALS WAS AVAILABLE AND AS TO WHY THE CASH WAS DEPOSITED AGAIN IN THE BANK ACCOUNT. HE FURTHER HE LD THAT IF THE ARGUMENT OF THE ASSESSEE WITH REGARD TO THE AVAILAB ILITY OF FUNDS AFTER MAKING WITHDRAWALS FROM BANK ACCOUNTS WAS TO BE ACC EPTED TO EXCLUDE THE POSSIBILITY OF INTRODUCTION OF UNEXPLAI NED MONEY AS CASH DEPOSIT IN HIS BANK ACCOUNTS, THEN IT HAS TO BE HEL D THAT WHOSOEVER IS HAVING SUFFICIENT CASH WITH HIM, THEN THAT PERSON W ILL NOT INDULGE INTO TAX EVASION OR AVOIDANCE. HE FURTHER HELD THAT ME RE FURNISHING OF DETAILS OF AVAILABILITY OF FUNDS WITH THE ASSESSEE WAS NOT ENOUGH TO PROVE THE SOURCE OF CASH DEPOSITS. FROM THE ABOVE FINDINGS OF THE ASSESSING OFFICER, IT IS APPARENT THAT ASSESSING OF FICER JUST DISBELIEVED THE CASH DEPOSITS AND CASH WITHDRAWAL ON THE BASIS OF SURMISES AND CONJECTURES. NOWHERE HE DOUBTED THE ACTUAL WITHDRA WAL AND ACTUAL DEPOSITS. HE MERELY HELD THAT IS AN UNUSUAL PHENOM ENON TO MAKE WITHDRAWAL FROM THE BANK AND DEPOSIT INTO THE BANK. LEARNED CIT(A) HAS RECORDED COMPLETE AND DETAILED FINDINGS AND AFT ER OBTAINING REMAND REPORT FROM THE ASSESSING OFFICER HAS ALLOWE D RELIEF TO THE ASSESSEE BY HOLDING AS UNDER: IN THESE GROUNDS OF APPEAL THE APPELLANT HAS OBJEC TED TO ADDITION OF RS.1,43,46,500/- MADE BY THE ASSESSING OFFICER BY TREATING THE CASH DEPOSITED IN THE BANK ACCOUNTS AS UNEXPLAINED AND ADDING THE SAME AS INCO ME FROM UNDISCLOSED SOURCES. THE AO IN THE ORIGINAL ASSESSMENT ORDER HAS OBSERVED THAT AS PER AIR INFORMATION CASH DEPOSITED BY THE APPELLANT WAS FOUND IN THE FOLLOWING BANK ACCOU NTS:- 1. DHANLAXMI BANK LIMITED 81,50,000/- 2. STATE BANK OF INDIA 30,13,000/- 1,11,63,000/ - I.T.A. NO.145/LKW/2017 ASSESSMENT YEAR:2011-12 6 DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS THE APPELLANT SUBMITTED COPY OF ALL THE BANKS ACCOUNTS AND ON PERUSAL OF WHICH THE ASSESSING OFFICER FOUND THA T CASH WAS ALSO DEPOSITED IN THE ORIENTAL BANK OF COMMERCE . AXIS BANK AND BANK OF BARODA AT PAGE 3 OF THE ASSESSMENT ORDER. HE HAS EXTRACTED THE DATE AND AMO UNT OF DEPOSIT OF CASH IN DIFFERENT BANK ACCOUNTS. FURT HER HE HAS OBSERVED THAT THE APPELLANT VIDE REPLY DATED 24.3.2014 SUBMITTED A CASH FLOW STATEMENT SHOWING T HE SOURCES OF CASH DEPOSITED IN THE BANK ACCOUNTS. THEREAFTER ASSESSING OFFICER HAS OBSERVED THAT IT I S SEEN FROM THE DETAILS FILED BY THE APPELLANT THAT T HOUGH CASH WAS WITHDRAWN BY THE APPELLANT ON DIFFERENT DA TES FROM HIS BANK ACCOUNTS BUT THE ASSESSEE COULD NOT FURNISH ANY CORROBORATIVE AND CONTEMPORANEOUS EVIDENCES TO PROVE THAT THE CASH WITHDRAWN FROM THE BANK ACCOUNTS WAS SUBSEQUENTLY DEPOSITED BACK IN HI S BANK ACCOUNTS. THE CASH FLOW STATEMENT SUBMITTED BY THE ASSESSEE SHOWS VERY FREQUENT CASH WITHDRAWALS FROM THE BANKS BY THE ASSESSEE AND SIMULTANEOUSLY FREQUENT DEPOSITS O F CASH IN THE BANK ACCOUNTS WHICH GIVE A VERY PECULIA R PICTURE. THEREAFTER HE HAS OPINED THAT THE WITHDRAW ALS AND DEPOSITS ARE MYSTERIOUS AND THE STATEMENT THROU GH WHICH THE ASSESSEE'S SEEKS TO EXPLAIN THE SOURCE OF CASH DEPOSITS IN HIS BANK ACCOUNT IS FULL OF SUSPICIOUS FEATURES AND IT CANNOT BE RELIED UPON AS EVIDENCE. HE HAS FURTHER OBSERVED THAT MERE AVAILABILITY OF FUNDS WITH THE ASSESSEE IS NOT ENOUGH TO PROVE THE SOURCE OF CASH DEPOSITS AND IT CANNOT ABSOLVE ASSES SEE FROM DISCHARGING ITS BURDEN OF PROVING SOURCE OF CA SH DEPOSITS AS THERE WAS A POSSIBILITY THAT THE CASH WITHDRAWN BY THE ASSESSEE MIGHT HAVE BEEN UTILIZED TOWARDS CONSTRUCTION OF HOUSE PROPERTY AND THE CASH WAS DEPOSITED FROM HIS UNDISCLOSED MONEY. WITH THESE OBSERVATIONS THE ASSESSING OFFICER HAS PROCEEDED TO TREAT THE AMOUNT OF CASH DEPOSIT OF RS.1,43,46,500/- AS UNDISCLOSED INCOME OF THE APPEL LANT AND HAS ADDED THE SAME. I.T.A. NO.145/LKW/2017 ASSESSMENT YEAR:2011-12 7 DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS DETAILED SUBMISSIONS WERE FILED BY THE COUNSEL OF T HE APPELLANT. IT WAS EXPLAINED THAT THE MAIN SOURCE OF INCOME OF THE ASSESSEE WAS ON ACCOUNT OF SERVICE CHARGES RECEIVED FROM GENERATOR AND MAINTENANCE OF BUILDING WHICH WERE DULY SUPPORTED BY VARIOUS AGREEMENTS ENTERED INTO WITH VARIOUS TENANTS. ON PE RUSAL OF THE COMPUTATION OF INCOME FILED BY THE APPELLANT IT IS SEEN THAT BESIDES INCOME FROM GENERATOR MAINTENANCE , THE APPELLANT WAS ENJOYING INCOME FROM RENTAL OF PROPERTY WHICH WAS ALSO, IN TURN, DULY SUPPORTED BY AGREEMENTS AND, THEREFORE, ANY APPREHENSION WITH REFERENCE TO HAVING ANY UNDISCLOSED INCOME IN THE H ANDS OF THE APPELLANT WAS MISPLACED AND MISCONCEIVED AND WAS ONLY ON ACCOUNT OF WISHFUL THINKING OF THE ASSE SSING OFFICER. IT IS FURTHER ARGUED THAT THE ENTIRE OBSERVATIONS O F THE ASSESSING OFFICER WERE MERELY ON SURMISES AND CONJECTURES AND BASED ON WISHFUL THINKING ONLY WITH OUT ANY MATERIAL ON RECORD TO DISBELIEVE THE AVERMENT O F THE MATERIAL ON RECORD TO DISBELIEVE THE AVERMENT OF TH E APPELLANT AND THE FACT THAT THE CASH WAS AVAILABLE WITH HIM AND SOURCE OF WHICH WAS DULY FILED BEFORE THE ASSESSING OFFICER. THE STATEMENT WHICH WAS FILED BY THE APPELLANT FINDS PLACE AT PAGE 17 OF THE COMPILATION SUBMITTED BY THE APPELLANT. THE APPELLANT ALSO FILED A COPY OF T HE CASH BOOK OF PERSONAL SET OF THE APPELLANT AND COPIES OF BANK STATEMENTS IN SUPPORT OF HIS CLAIM THAT CASH WAS DU LY AVAILABLE WITH THE APPELLANT AT THE TIME OF DEPOSIT THEREOF IN THE BANK ACCOUNTS. THE PAPER BOOK FILED BY THE APPELLANT WAS FORWARDED TO THE ASSESSING OFFICER AN D THE ASSESSING OFFICER HAS SUBMITTED HIS REMAND REPORT A S PER PROVISIONS OF 250(4) OF THE INCOME-TAX ACT. IN PARA 2 OF THE REMAND REPORT AO HAS EXTRACTED THE OBSERVATIONS MADE BY THE ASSESSING OFFICER IN T HE ORIGINAL ASSESSMENT ORDER AND THEREAFTER HE HAS OBS ERVED AS FOLLOWS:- I.T.A. NO.145/LKW/2017 ASSESSMENT YEAR:2011-12 8 'DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS THE ASSESSEE WAS REQUIRED TO PROVE THE SOURCE OF CA SH DEPOSITS BY FURNISHING CASH FLOW STATEMENT WITH REG ARD TO AVAILABILITY OF CASH. THE ABOVE CASH FLOW STATEMENT WAS SUBMITTED VIDE REPLY DATED 24.3.2014. HOWEVER, IT I S NOT UNDERSTOOD AS TO WHY THE ASSESSEE COULD NOT FURNISH ANY CORROBORATIVE EVIDENCE TO PROVE THAT THE CASH WITHD RAWN FROM HIS BANK ACCOUNTS WAS SUBSEQUENTLY DEPOSITED I N HIS BANK ACCOUNTS. DURING THE COURSE OF THE REMAND PROCEEDINGS THE ASSESSEE HAS FURNISHED A COPY OF THE CASH BOOK AND HAS EXPLAINED THE AVAILABILITY OF CASH/FUNDS PROVE THE SOURCE OF CASH DEPOSITS. THIS FACT HAS ALSO NOT BEEN DOUBT ED BY THE ASSESSING OFFICER WHERE HE HAS HELD THAT THE APPELLANT HAS SUBMITTED A CASH FLOW STATEMENT SHOWI NG SOURCE OF CASH REPLY DATED 24.3.2014.' THEREAFTER THE ASSESSING OFFICER IN THE REMAND PROCEEDINGS HAS FURTHER OBSERVED AS FOLLOWS: THE ADDITIONAL EVIDENCES SUBMITTED BY THE ASSESSEE MAY BE EXAMINED IN LIGHT OF THE ABOVE FACTS REGARDING T HERE ADMISSIBILITY IN VIEW OF RULE 46A OF IT RULES, SPEC IALLY IN VIEW OF THE FACT THAT AT THE TIME OF ASSESSMENT SEV ERAL OPPORTUNITIES WERE GIVEN TO THE ASSESSEE TO PRODUCE BOOKS OF ACCOUNTS WHICH WERE NOT COMPLIED WITH AND THE ASSESSEE KNOWING THAT NON COMPLIANCE MAY INVITE ADVERSE INFERENCE AGAINST HIM.' IN THE REMAND REPORT FILED BY THE ASSESSING OFFICER SHOWS THAT THE CASH BOOK WHICH WAS FILED IS AN ADDI TIONAL EVIDENCE BEFORE ME WAS ALSO PRODUCED BEFORE HIM AND THE APPELLANT HAS EXPLAINED THE AVAILABILITY OF CAS H/FUNDS TO PROVE SOURCE OF CASH DEPOSITS. THUS, IT IS APPARENT THAT THE SOURCE AND FUNDS OF CASH DEPOSITS STAND PROVED BY THE APPELLANT WITH REFERENCE TO THE AVAILABILITY OF CASH IN HAND. IN RESPONSE TO THE REMAND REPORT THE APPELLANT FILED REPLY DATED 08.02.2016 WHICH WAS FOLLOWED BY REPLY DATED 11.02.2016. ALONG WITH REPLY DATED 11.02.2016 , I.T.A. NO.145/LKW/2017 ASSESSMENT YEAR:2011-12 9 BESIDES CASH BOOK WHICH WAS FILED BY THE APPELLANT AND PRODUCED BEFORE THE ASSESSING OFFICER IN THE REMAND PROCEEDINGS, THE APPELLANT ALSO SUBMITTED A DATE WI SE CHART SHOWING THE AVAILABILITY OF CASH WITHDRAWAL F ROM BANK AND DEPOSITED IN BANK WHICH CHART WAS EXTRACTE D BY THE APPELLANT THROUGH CASH AVAILABILITY CART FILED DURING THE COURSE OF THE ORIGINAL ASSESSMENT PROCEEDINGS W HICH FIND PLACE AT PAGE 17 OF THE COMPILATION. ON PERUSAL OF THE AFORESAID CHART ALSO IT IS OBSERV ED THAT THE APPELLANT HAD SUFFICIENT CASH BALANCE AVAI LABLE WITH HIM BEFORE DEPOSIT IN THE BANK ACCOUNTS OF THE CASH BY HIM MEANING THEREBY THAT THE APPELLANT HAD SUFFI CIENT CASH AVAILABLE SO AS TO FUND THE DEPOSIT OF CASH MA DE IN THE BANK ACCOUNTS. THE AO IN THE ORIGINAL ASSESSMENT ORDER AS WELL AS IN THE REMAND ORDER HAS OBSERVED THAT MERE FURNISHI NG DETAILS OF AVAILABILITY OF FUNDS WITH THE ASSESSEE IS NOT ENOUGH TO PROVE THE SOURCE OVER CASH DEPOSIT AND IT CANNOT ABSOLVE THE ASSESSEE FROM DISCHARGING HIS BU RDEN TO PROVE THE SOURCE OF CASH DEPOSITS AND THE ASSESS EE HAS FAILED TO SUBSTANTIATE THAT THE AMOUNT WITHDRAW N FROM ONE BANK WAS SUBSEQUENTLY DEPOSITS BY HIM IN T HE SAME BANK OR SOME OTHER BANK. I FAIL TO APPRECIATE THE OBSERVATIONS OF THE AO IN THIS REGARD. WHETHER THE ASSESSEE IS SUPPOSED TO KE EP TRACK OF THE NUMBER OF RESPECTIVE NOTES WHICH WERE RECEIVED BY HIM WHEN THE CASH WAS WITHDRAWN BY HIM AND GET IT TALLIED WITH THE CASH DEPOSIT WHICH HE I S MAKING IN THE SAME BANK ACCOUNT OR OTHER BANK ACCOU NT WHAT IS TO BE SEEN IS AS TO WHETHER THERE WAS SUFFI CIENT CASH AVAILABLE WITH THE APPELLANT AND THE SOURCE OF SAID CASH AVAILABILITY WHICH STANDS DULY EXPLAINED BY TH E APPELLANT WITH REFERENCE TO HIS BANK ACCOUNTS AND A LSO HIS CASH BOOK. THE BANK ACCOUNTS ARE ALSO SUBMITTED BEF ORE THE ASSESSING OFFICER IN THE ORIGINAL ASSESSMENT PROCEEDINGS AND HAVE ALSO BEEN FILED BEFORE HIM AND FIND PLACE FROM PAGE 72 TO 138 OF THE COMPILATION. THE APPELLANT HAS RELIED ON THE JUDGMENT OF THE HON'BLE TRIBUNAL LUCKNOW BENCH IN ITA NO. I.T.A. NO.145/LKW/2017 ASSESSMENT YEAR:2011-12 10 374/LKW/2013 IN THE CASE OF DCIT VS. PAWAN AGARWAL WHERE IN ON SIMILAR FACTS AND CIRCUMSTANCES THE HON 'BLE TRIBUNAL HAS UPHELD THE ORDER OF THE CIT(A) DELETIN G THE ADDITION IN WHICH CASE ALSO THE CASH, FLOW STATEMEN T WAS SUBMITTED AND THE MOVEMENT OF CASH WAS DISCLOSED ON ALL DATES WHEN THE CASH WAS DEPOSITED IN THE BANKS ACCO UNT THE ASSESSEE WAS HAVING SUFFICIENT CASH BALANCE AVA ILABLE WITH HIM. THERE IS NO MATERIAL OR ANY OTHER EVIDENCE ON RECORD TO SHOW AND SUGGEST THAT THE CASH MIGHT HAVE BEEN UTILIZED BY THE APPELLANT FOR ANY OTHER PURPOS ES AND MERELY ON SURMISES AND CONJECTURES AND SUSPICION TH E EVIDENCE WHICH HAS BEEN SUBMITTED BY THE APPELLANT CANNOT BE REJECTED. I ALSO FAIL TO UNDERSTAND AS TO WHAT TYPE OF CONTEMPORANEOUS AND CORROBORATIVE EVIDENCE THE ASSESSING OFFICER WANTED THE APPELLANT TO FURNISH. IN FACT, ONCE THE APPELLANT HAD SUBMITTED PROPER CASH FLOW STATEMENT THE ONUS WAS SHIFTED ON THE ASSESSING OFF ICER TO PIN POINT ANY DEFECT OR MISTAKE FOR REJECTING TH E SAME. REJECTING THE SAME ON SUSPICION ABOVE IS NOT PERMIT TED IN LAW. 4.1 THE ABOVE FINDINGS OF LEARNED CIT(A) ARE QUITE EXHAUSTIVE AND ARE BASED UPON THE CASH FLOW STATEME NT FILED BY THE ASSESSEE WHICH WAS ALSO FILED BEFORE THE ASSESS ING OFFICER THEREFORE, THERE IS NO VIOLATION OF RULE 46A ALSO A ND THEREFORE, WE DO NOT FIND ANY INFIRMITY IN HIS ORDER. 6.1 IN THE PRESENT CASE, I FIND THAT THERE IS NO DO UBT ABOUT THE WITHDRAWALS FROM THE BANK. ONLY THE SIMULTANEOUS C ASH DEPOSIT IN THE BANK AND WITHDRAWALS FROM THE BANK CREATED DOUBT IN THE MIND OF THE AUTHORITIES BELOW AND THEY HELD THAT IT IS NOT UNDERSTOOD AS TO WHY THE CASH AMOUNTS WERE REQUIRED TO BE WITHDRAWN WHEN THE CASH FROM EA RLIER WITHDRAWALS WERE AVAILABLE. HOWEVER, THIS IS NOT SUFFICIENT TO MAKE THE ADDITION AS UNEXPLAINED CASH AS THE CASH WAS FULLY EXPLAINED. THE ARGUMENT OF LEARNED D. R. THAT SINCE ASSESSEE HAD NOT DISCLOSED THESE BANK ACCOUNT S IN THE ORIGINAL RETURN I.T.A. NO.145/LKW/2017 ASSESSMENT YEAR:2011-12 11 THEREFORE, CASH IN HAND SHOULD NOT BE ACCEPTED, DO NOT HOLD ANY FORCE AS THE WITHDRAWLS AND DEPOSITS DO NOT CONSTITUTE INCOM E IN ITSELF. THE ASSESSEE WAS REQUIRED TO DISCLOSE ONLY INTEREST FROM THESE A CCOUNTS WHICH HE DISCLOSED IN THE FORM OF REVISED RETURN AND ASSESSI NG OFFICER HAS TAXED THAT INCOME ACCORDINGLY. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES GROUND NO. 1 IS ALLOWED. 7. AS REGARDS SECOND GROUND OF APPEAL, I FIND THAT LEARNED CIT(A) HAS CONFIRMED THE ADDITION AS HE HELD THAT THERE WAS NO EXISTENCE OF NATURAL LOVE AND AFFECTION BETWEEN THE DONOR AND DONEE. HO WEVER, ON GOING THROUGH THE PROVISIONS OF SECTION 56(2)(VII) OF THE ACT, I FIND THAT GIFT RECEIVED FROM ANY PERSON AFTER 1 ST OCTOBER, 2009 IS TREATED AS INCOME FROM OTHER SOURCES WHERE THE SUM OF MONEY WITHOUT CONSID ERATION EXCEEDS RS.50,000/- WHICH IMPLIES THAT FOR AMOUNTS OF LESS THAN RS.50,000/- THE SAME CAN BE RECEIVED EVEN WITHOUT CONSIDERATION WHI CH MEANS THAT GIFTS FOR AMOUNTS OF LESS THAN RS.50,000/- ARE NOT HIT BY THE PROVISIONS OF SECTION 56(2)(VII) OF THE ACT. IN THE PRESENT CASE, UNDISPU TEDLY THE AMOUNT IS LESS THAN RS.50,000/- AND THEREFORE, THE SAME CANNOT BE ADDED AS INCOME FROM OTHER SOURCES. IN VIEW OF THE ABOVE GROUND NO. 2 I S ALLOWED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 28/09/2018) SD/. ( T. S. KAPOOR ) ACCOUNTANT MEMBER DATED:28/09/2018 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW