Krishnamurthy Narayanamurthy, Bangalore V. Income Tax Officer, Ward- 4(3)(4), Bangalore

ITA 2559/BANG/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2101 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 24-02-2020
• Assessment Year: 2015-2016
• Appeal Filed On: 18-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: STANDING COUNCIL
• Assessee Lawyers: NARAYANA MURTHY; WAY OF UNSPENT AMOUNTS OUT OF PREVIOUS
• Keywords: Principle of natural justice
• Section: 234B; 69A; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-A BENCH, BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER ITA NO.2559/BANG/2019 : ASST.YEAR 2015-2016 SRI.KRISHNAMURTHY NARAYANAMURTHY 90/1, YATHINDRALAYA 7 TH MAIN ROAD, BEGUR ROAD HONGASANDRA BENGALURU 560 068. PAN : ACUPN6583F. VS. THE INCOME TAX OFFICER WARD 4(3)(4) BENGALURU. (APPELLANT) (RESPONDENT) APPELLANT BY : SRI.NARAYANA MURTHY, ITP RESPONDENT BY : DR.GANESH R.GHALE, STANDING COUNCIL FOR DR DATE OF HEARING : 24.02.2020 DATE OF PRONOUNCEMENT :27.4.2020 O R D E R THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE CIT(A)-4, BENGALURU DATED 24.04.2019. THE RELEVANT ASSESSMENT YEAR IS 2015-2016. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS:- 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME -TAX (APPEALS) IS OPPOSED TO LAW, FACTS AND WEIGHTS OF T HE EVIDENCES IN THIS CASE, NATURAL JUSTICE AND PROBABI LITIES. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW IN PASSING AN EX PARTE ORDER WITHOUT VERIFYI NG THE SERVICE OF THE NOTICE OF HEARING. 3. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN LAW IN CONFIRMING THE ASSESSMENT ORDER DATED 30. 12.2017. 4. THE LEARNED CIT(A) ERRED IN LAW IN CONCLUDING TH AT THE ORDER OF THE A.O. IS WELL REASONED AND IS BASED ON THE RECORDS / EVIDENCE GATHERED BY THE DEPARTMENT AVAILABLE BEF ORE HIM. 5. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) OUGHT 2 TO HAVE NOTED THAT THE APPELLANT HAD ENOUGH CASH BA LANCE AVAILABLE WITH HIM ON THE RELEVANT DATES FOR CASH D EPOSITS AS THE UNSPENT AMOUNTS OUT OF EARLIER WITHDRAWALS WERE AVAILABLE FOR RE-DEPOSIT ON SUBSEQUENT DATES. 6. TH APPELLANT OBJECTS TO THE LEVY OF INTEREST CHA RGED U/S 234A, 234B AND 234C. 7. THE APPELLANT RESERVES THE RIGHT TO ADD TO, MODI FY, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS. 8. FOR THESE AND SUCH OTHER GROUNDS AS MAY BE ADVAN CED AT THE TIME OF HEARING, IT IS PRAYED THAT THE ADDIT IONS / DISALLOWANCES MADE BY THE LEARNED ASSESSING OFFICER BE DELETED AND THE RETURNED INCOME BE ACCEPTED. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF TEXTILE AND HANDLOOMS AN D RUNNING HIS BUSINESS IN THE NAME AND STYLE OF M/S.MURTHY EN TERPRISES. THE ASSESSEE DECLARED INCOME FROM BUSINESS OF RS.1, 54,413, INCOME FROM HOUSE PROPERTY OF RS.1,26,000. DURING T HE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED T O EXPLAIN THE SOURCE OF INCOME FOR CASH DEPOSITS MADE OF RS.1 ,06,19,947 IN SAVINGS BANK ACCOUNTS DURING THE FINANCIAL YEAR 2014-2015 RELEVANT TO THE ASSESSMENT YEAR 2015-2016. IN RESPO NSE, THE ASSESSEE FURNISHED COPY OF COMPUTATION OF INCOME AN D COPIES OF BANK ACCOUNT STATEMENTS AND FURTHER STATED THE SOUR CES OF CASH DEPOSITS ARE OUT OF HAND LOAN RECEIVED FROM ASSESSE ES MOTHER, RELATIVES AND FRIENDS MUTHOOT LOANS AND LEASE ADVAN CES RECEIVED DURING THE YEAR. THE ASSESSEE HAD FURNISHED DETAILS ONLY TO THE EXTENT OF RS.86,27,558 TO SUBSTANTIATE HIS CLAIM AN D FOR THE BALANCE AMOUNT OF RS.19,92,389, THE ASSESSEE COU LD NOT OFFER ANY CONVINCING EXPLANATION. ACCORDINGLY, THE ASSESSING OFFICER ADDED BACK THE AMOUNT OF RS.19,92,389 TO TH E TOTAL 3 INCOME OF THE ASSESSEE U/S 69A OF THE I.T. ACT. ON APPEAL, NONE APPEARED ON BEHALF OF THE ASSESSEE, HENCE, THE CIT( A) PASSED AN EX PARTE ORDER BY CONFIRMING THE ADDITION MADE BY THE ASSES SING OFFICER. 4. AGGRIEVED BY THE ORDERS OF THE INCOME TAX AUTHOR ITIES, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. THE LEAR NED AR SUBMITTED THAT THE ASSESSEE IS PRIMARILY AGGRIEVED BECAUSE OF THE ADDITION TO THE RETURNED INCOME ON THE MISTAKEN ASSUMPTION THAT THE ENTIRE SOURCE FOR THE DEPOSITS IN THE ASSESSEES BANK ACCOUNT HAS NOT BEEN EXPLAINED. THE ASSESSEE FILED SUBMISSIONS DATED 12.12.2017 AND 18.12.2017 A ND OFFERED THE EXPLANATION REQUIRED BY THE A.O. THE A. O. WAS OF THE VIEW THAT THE ASSESSEE WAS ABLE TO EXPLAIN THE SOURCES TO THE EXTENT OF RS.86,27,558 AND THE BALANCE AMOUNT O F RS.19,92,389 REMAINED UNEXPLAINED. HENCE, HE BROUGH T TO TAX THE AMOUNT OF RS.19,92,389 AS UNEXPLAINED CASH DEPO SITS. THE AR SUBMITTED THAT THE ASSESSEE HAD PRODUCED CONFIRM ATION FROM RELATIVES AND AGRICULTURISTS FOR THE AMOUNTS R ECEIVED BY HIM AND THESE WERE ACCEPTED BY THE A.O. TO THE EXTE NT OF RS.86,27,558 AND ONLY AN AMOUNT OF RS.19,92,389 REM AINED TO BE UNEXPLAINED. THE CIT(A) DID NOT CONSIDER THE PLE A OF THE ASSESSEE THAT THE REMAINING AMOUNT COULD BE EXPLAIN ED BY THE AVAILABILITY OF CASH ON THE DAYS WHEN DEPOSITS WERE MADE IN THE BANK ACCOUNT. THERE WAS SUFFICIENT CASH LEFT WI TH THE ASSESSEE BY WAY OF UNSPENT AMOUNTS OUT OF PREVIOUS WITHDRAWALS. THE AR FURTHER SUBMITTED THAT THE CIT( A) HAS BRUSHED ASIDE THE ASSESSEES PLEA IN GROSS VIOLATIO N OF THE PRINCIPLES OF NATURAL JUSTICE AND PREPONDERANCE OF PROBABILITIES. 4 HENCE, THE IMPUGNED ORDER IS NOT JUSTIFIABLE. AS RE GARDS THE EX PARTE ORDER PASSED BY THE CIT(A), THE AR SUBMITTED THAT T HE CIT(A) IN HIS ORDER IN PARA 5 CLEARLY MENTIONED THA T THE ASSESSEE HAS BEEN GIVEN AMPLE OPPORTUNITY TO APPEAR BEFORE H IM AND A NUMBER OF HEARING NOTICES ON 25.05.2018, 02.11.2018 , 13.11.2018, 30.11.2018 AND 09.01.2019 WERE SERVED A ND ON THESE DATES THE ASSESSEE / AR EITHER APPEARED AND S OUGHT ADJOURNMENT OR FILED A LETTER FOR ADJOURNMENT, AND IN ALL THE ADJOURNMENT LETTER AR SUBMITTED THAT THE ABOVE SAID CASE IS POSTED FOR HEARING ON 25.05.2018, THE APPELLANT IS IN THE PROCESS OF COLLECTING CERTAIN INFORMATION AND ADDITIONAL EV IDENCES TO BE FILED, THAT ARE GERMANE TO THE ABOVE APPEAL WHICH I S GOING TO TAKE A SHORT TIME. THE CASE WAS FINALLY POSTED FOR HEARING ON 23.04.2019, ON WHICH THE DATE NEITHER THE ASSESSEE APPEARED NOR FILED SUBMISSION OR SOUGHT FOR ANY ADJOURNMENT. THEREFORE, THE CIT(A) WAS OF THE OPINION THAT THE ASSESSEE HAS NOTHING TO SUBMIT AGAINST THE ORDER OF THE AO. THE LEARNED AR SUBMITTED THAT THE CIT(A) HIMSELF HAS NOTICED IN HIS ORDER TH AT THE ASSESSEE / AR APPEARED ON ALL THE EARLIER DATES OF HEARING A ND SOUGHT ADJOURNMENT. ONLY ON THE LAST OCCASION OF HEARING O N 23.04.2019 THERE WAS NO APPEARANCE BY THE AR, NOR F ILING OF SUBMISSION AND SEEKING OF ADJOURNMENT. THE LEARNED AR SUBMITTED THAT THE NOTICE OF HEARING FIXED ON 23.04 .2019 WAS NOT SERVED ON THE ASSESSEE. THE ONLY REASON WHY THE ASSESSEE FAILED TO APPEAR FOR HEARING ON 23.04.2019 WAS THAT THE NOTICE WAS NOT RECEIVED BY EITHER BY THE ASSESSEE OR THE A R. MOREOVER, IN FORM NO.35, THE ADDRESS TO WHICH THE NOTICES MAY BE SENT TO THE ASSESSEE IS SHOWN AS M/S.MURTHY AND CO., 399, 2 ND FLOOR, 5 24 TH CROSS, BANASHANKARI 2 ND STAGE, BANGALORE -560 070. HOWEVER, THE NOTICE WAS NOT SERVED ON THIS ADDRESS. THE LEARNED AR FURTHER SUBMITTED THAT THE ASSESSEE HAS COOPERAT ED WITH THE ASSESSING OFFICER IN PROVIDING ALL THE RELEVANT DET AILS RELATING TO THE AVAILABILITY OF CASH FOR THE DEPOSITS AND ADVAN CED FURTHER ARGUMENTS AND CONVINCING EXPLANATION BEFORE THE A.O . THE CIT(A) OUGHT TO HAVE EXERCISED HIS DISCRETIONARY JU DGMENT TAKING INTO CONSIDERING THE PREPONDERANCE OF PROBABILITIES AND NATURAL COURSE OF HUMAN CONDUCT. MOREOVER, THE AVAILABILITY OF OPENING BALANCE AND UNSPENT BALANCES FROM PREVIOUS WITHDRAW ALS CAN BE EASILY VERIFIED. THE LEARNED AR FURTHER SUBMITTE D THAT THE CIT(A) OUGHT TO HAVE NOTED THAT THE ASSESSEE HAD EN OUGH CASH BALANCE AVAILABLE WITH HIM ON THE RELEVANT DATES FO R CASH DEPOSITS AS THE OPENING BALANCE AND UNSPENT AMOUNTS OUT OF EARLIER WITHDRAWALS WERE AVAILABLE FOR RE-DEPOSIT O N SUBSEQUENT DATES. ACCORDING TO THE LEARNED AR, NEITHER THE AO NOR THE CIT(A) HAD CONSIDERED THE AVAILABILITY OF CASH BALANCE WIT H THE ASSESSEE ON THE RELEVANT DATES. THE VERY FACT THAT THE OPENI NG CASH BALANCE AS ON 01.04.2014 WAS RS.16,65,606 EXPLAINS THE MAJOR PORTION OF THE ALLEGED UNEXPLAINED CASH DEPOSITS. T HE BALANCE AMOUNT OF RS.3.26 LAKH IS EASILY EXPLAINED AS UNSPE NT BALANCES FROM EARLIER WITHDRAWALS. THE AO OR THE CIT(A) HAVE NOT LOOK INTO THE CASH BOOK OF THE ASSESSEE IN ORDER TO VERIFY TH E CLAIM MADE BY THE ASSESSEE. THE LEARNED AR THUS PLEADED THAT T HE ADDITION MADE BY THE AO AND CONFIRMED BY THE CIT(A) MAY BE D ELETED. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUBMITTED THAT THE ASSESSEE HAS NOT COOPERATE D WITH THE 6 CIT(A) AND HENCE, HE PASSED THE EX PARTE ORDER CONFIRMING THE ADDITION MADE BY THE ASSESSING OFFICER. THE LEARNED DR FURTHER SUBMITTED THAT THE ASSESSEE HAS ALSO NOT FURNISHED ANY EVIDENCE SHOWING THE OPENING BALANCE AVAILABLE WITH THE ASSESSEE TO DEPOSIT TO BANK ACCOUNT AND ALSO THE DE TAILS OF ANY EARLIER WITHDRAWALS AVAILABLE WITH THE ASSESSEE TO REDEPOSIT IN THE BANK. 6. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL ON RECORD. IN THIS CASE, THE ASSESSING OFF ICER FOUND THAT THE ASSESSEE HAS DEPOSITED A SUM OF RS.1,06,19 ,947 IN THE SAVING BANK ACCOUNT WITH ICICI BANK. THE ASSESSEE W AS ABLE TO GIVE EXPLANATION TO THE SOURCE OF AN AMOUNT OF RS.8 6,27,558, HOWEVER, THE ASSESSEE HAS NOT LED ANY EVIDENCE BEFO RE THE A.O. WITH REGARD TO THE BALANCE AMOUNT OF RS.19,92,389. BEFORE ME, THE LEARNED AR SUBMITTED THAT PROPER OPPORTUNITY HA S NOT BEEN GRANTED TO THE ASSESSEE TO EXPLAIN THE SOURCE OF DE POSIT WITH THE BANK. FURTHER, IT WAS SUBMITTED THAT THE A.O. HAS N OT AGREED WITH THE OPENING BALANCE OF CASH AVAILABLE TO DEPOS IT IN THE BANK AND THE EARLIER WITHDRAWALS TO REDEPOSIT IN TH E SAVING BANK ACCOUNT. THE ASSESSEE FILED DAY TO DAY CASH IN HAND POSITION BEFORE ME AND SUBMITTED THAT EARLIER WITHD RAWALS WERE AVAILABLE WITH THE ASSESSEE TO DEPOSIT THAT AMOUNT AND DUE CREDIT TO BE GIVEN TO SUCH EARLIER WITHDRAWALS AS A VAILABLE TO DEPOSIT WITH BANK ACCOUNT. ACCORDING TO THE LEARNED DR, THE EARLIER WITHDRAWALS MADE BY THE ASSESSEE SHOULD NOT HAVE REDEPOSITED WITH THE BANK ACCOUNT. THE ASSESSEE SUB MITTED THAT THE ASSESSEE WITHDRAWN MONEY FROM BANK ACCOUNT FOR PARTICULAR PURPOSES, HOWEVER, IT WAS NOT KEPT IDLE AND IT WAS 7 REDEPOSITED TO BANK ACCOUNT. THE ASSESSING OFFICER DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE SINCE THE ASS ESSEE HAS NOT FILED ANY FUND FLOW STATEMENT OR CASH FLOW STATEMEN T BEFORE HIM. HOWEVER, THE ASSESSING OFFICER HAS NOT EXAMINED THE CASH BOOK TO SEE THAT ANY CASH BALANCE IS AVAILABLE WITH THE ASSESSEE TO REDEPOSIT THE SAME IN THE BANK ACCOUNT. THE ASSESSI NG OFFICER HAS ALSO NOT BROUGHT ANYTHING ON RECORD TO SHOW THA T THE ASSESSEE HAS USED THE EARLIER WITHDRAWALS FOR HIS P ERSONS PURPOSES AND NOT FOR REDEPOSIT THE SAME IN THE BANK ACCOUNT. THEREFORE, IT HAS TO BE PRESUMED THAT THE ASSESSEE HAS WITHDRAWN CASH AND THE SAME REMAINS TO BE UNUTILIZE D FOR ONE REASON OR THE OTHER AND THE CASH REMAINED WITH THE ASSESSEE AND USED THE SAME TO DEPOSIT IN THE BANK ACCOUNT. S IMILAR ISSUE WAS CONSIDERED BY THE BANGALORE BENCHES OF THE TRIB UNAL IN CASE OF SRI.BYARAKAR MANJAPPA VEERESH IN ITA NO.172 3/BANG/ 2019. TH TRIBUNAL VIDE ORDER DATED 30TH JANUARY, 20 20 REMITTED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE FOLLOWING OBSERVATIONS: - 6. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN THE PRESENT CASE, AS PER AIR INFORMATION REPORTED THAT THE ASSESSEE HAS DEPOSITE D CASH INTO HIS SAVING BANK ACCOUNT WITH BANK OF BARODA, P EENYA BRANCH, BANGALORE TOTALING TO RS.27,45,300. THE ASSE SSEE EXPLAINED THAT RS.10 LAKH DEPOSITED WITH THE BANK W AS ACCEPTED THE A.O. REGARDING THE BALANCE AMOUNT OF RS.17,45,300, IT WAS CLAIMED BY THE ASSESSEE THAT THE CASH DEPOSITS WERE OUT OF EARLIER WITHDRAWALS AND ALSO C LAIMED TO HAVE AGRICULTURAL INCOME. IT WAS THE PLEA OF THE ASSESSEE THAT SHE HAS MADE WITHDRAWALS AND REDEPOSITED THE AMOUNT INTO BANK ACCOUNT. THE ASSESSEE FILED DAY TO DAY CASH IN HAND POSITION BEFORE ME AND SUBMITTED THAT EARLIER WITHDRAWALS WERE AVAILABLE WITH THE ASSESSEE TO DEP OSIT THAT AMOUNT AND DUE CREDIT TO BE GIVEN TO SUCH EARL IER 8 WITHDRAWALS AS AVAILABLE TO DEPOSIT WITH BANK ACCOU NT. THE LEARNED DR STRONGLY OPPOSED THE ARGUMENT OF THE AR AND SUBMITTED THAT DURING THE ASSESSMENT YEAR UNDER CONSIDERATION THE ASSESSEE PURCHASED IMMOVABLE PROPERTIES AT NO.9, LAGGERE VILLAGE, PEENYA, BANGAL ORE AT A COST OF RS.38,70,230 AND THE EARLIER WITHDRAWALS FR OM THE BANK ACCOUNT MIGHT HAVE BEEN USED TO PAY THE ON-MON EY FOR PURCHASE OF THAT PROPERTY. EVEN OTHERWISE, HE SUBMITTED THAT THE EARLIER WITHDRAWALS HAVE BEEN MA DE TO MEET PARTICULAR EXPENDITURE AND NOT FOR REDEPOSITIN G WITH THE BANK ACCOUNT. THE ASSESSEES MAIN PLEA IS THAT THE ASSESSEE HAD WITHDRAWN HUGE AMOUNT FROM THE SAID BA NK ACCOUNT ON VARIOUS DATES AND KEPT THE SAID AMOUNT I DLE WITH THE ASSESSEE AND REDEPOSITED THE SAME INTO THE BANK ACCOUNT. TO THIS EFFECT, THE ASSESSEE HAS FURNISHED THE STATEMENT SHOWING WITHDRAWALS AND CASH IN HANDS ON VARIOUS DATES. WHILE COMPLETING THE ASSESSMENT, THE ASSESSING OFFICER GIVE CREDIT TO ONLY RS.10 LAKH AND THE BALANCE AMOUNT, HE DISBELIEVED AND TREATED THE SAID AMOUNT OF RS.17,45,300 AS UNEXPLAINED INCOME OF THE ASSESSEE. THE ASSESSING OFFICER HAS NOT ACCEPTED THE CONTENTION OF THE ASSESSEE, SINCE THE ASSESSEE HAS NOT FILED ANY FUND FLOW POSITION OF THE ASSESSEE. HOWEV ER, THE ASSESSING OFFICER DID NOT DOUBTED WITHDRAWALS OF CAS H ON VARIOUS DATES. THE ASSESSING OFFICER HAS ALSO NO EVI DENCE TO PROVE THAT THE ASSESSEE HAS MADE WITHDRAWALS ON VARIOUS DATES FOR ANY OTHER PURPOSES. THERE IS ALSO NO EVIDENCE THAT THE ASSESSEE HAS USED THIS MONEY TO D EPOSIT IN ANY BANK ACCOUNT OF HIM OR FOR HIS HOUSEHOLD EXP ENSES. IN SUCH CIRCUMSTANCES, IT CANNOT BE SAID THAT THE WITHDRAWALS HAVE BEEN UTILIZED TO REDEPOSIT WITH TH E BANK OF THE ASSESSEE. THEREFORE, IT HAS TO BE PRESUMED T HAT THE ASSESSEE HAS WITHDRAWN CASH AND THE SAME REMAINS TO BE UNUTILIZED FOR ONE REASON OR THE OTHER AND THE C ASH REMAINED WITH THE ASSESSEE. IN SUCH CIRCUMSTANCES, DUE CREDIT TO BE GIVEN FOR SUCH WITHDRAWALS OF THE CASH BY THE ASSESSEE. IN MY OPINION, SIMILAR VIEW WAS TAKEN BY THE COCHIN BENCH OF THE TRIBUNAL IN THE CASE OF SRI.MAT HEW 9 PHILIP V. ITO [ITA NO.443/COCH/2019 ORDER DATED 29.11.2019] WHEREIN IT WAS HELD AS UNDER:- 10. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL ON RECORD. IN THE PRESENT CASE, THE DI SPUTE IS WITH REGARD TO CASH DEPOSIT OF RS.32.5 LAKHS INTO T HE VARIOUS BANK ACCOUNTS OF THE ASSESSEE. THE MAIN PLE A OF THE ASSESSEE IS THAT THE ASSESSEE HAD WITHDRAWN CAS H OF RS.50 LAKHS ON 26/09/2014. THE ASSESSEE HAD WITHDRA WN CASH ON VARIOUS DATES AT RS.68 LAKHS AS NARRATED IN PARA 5 OF THIS ORDER. 10.1 THESE AMOUNTS WERE REDEPOSITED INTO BANK ACCOU NTS ON VARIOUS DATES AS FOLLOWS: 02/04/2014 RS. 3,00,00 0/- 27/08/2014 RS. 1,50,000/- 26/09/2014 RS.50,00,000/- 11. THE ASSESSING OFFICER HAS GIVEN CREDIT OF RS.23 .50 LAKHS TOWARDS CASH IN HAND FOR DEPOSITING IT INTO B ANK ACCOUNT OF THE ASSESSEE. THE ASSESSING OFFICER TREA TED RS.28.5 LAKHS AS UNEXPLAINED SOURCES. THUS, HE TREA TED THE FOLLOWING AMOUNTS AS UNEXPLAINED CASH DEPOSITS OF THE ASSESSEE:RS.3 LAKHS RS.1 LAKH RS.28.5 LAKHS TOTAL:R S.32.5 LAKHS 11.1 THE ASSESSEE EXPLAINED THAT DURING THE ASSESSMENT YEAR 2012-13, THE ASSESSEE HAD AN AILMEN T OF CANCER AND HE COULD NOT ATTEND TO BUSINESS AND FINA NCIAL MATTERS AND KEPT THE CASH WITHDRAWN FROM BANK ON 31/12/2013 FOR MEDICAL TREATMENT AND OTHER EXPENSES AND DEPOSITED THE AMOUNT IN BANK ONLY ON 26/09/2014. IN SUPPORT OF HIS CLAIM, THE ASSESSEE HAS PRODUCED DIS CHARGE SUMMARY DATED 06/11/2013 FROM LOURDE HOSPITAL, ERNAKULAM BEFORE AO. HE HAS ALSO PRODUCED CT SCAN REPORT DATED 11/07/2013 WHICH IS NOT DISPUTED BY TH E LOWER AUTHORITIES. THE ASSESSING OFFICER HAS NOT ACCEPTED THE CONTENTION OF THE ASSESSEE THAT HE HAS KEPT THE CAS H IDLY IN HIS HANDS ON THE REASON THAT HE HAS NOT FILED THE W EALTH TAX RETURN SHOWING THE CASH IN HAND. THE ASSESSING OFFI CER HAS NOT DOUBTED THE WITHDRAWAL OF CASH. HOWEVER, THE FA CT IS THAT THE ASSESSEE HAS WITHDRAWN CASH OF RS.50 LAKHS ON 31/12/2013. THERE IS NO EVIDENCE BROUGHT ON RECORD TO SHOW THAT THESE WITHDRAWALS HAVE BEEN USED BY THE ASSESSEE OR DEPOSITED BY THE ASSESSEE IN ANY OTHER BANK. IT CANNOT BE SAID THAT THESE WITHDRAWALS MADE FROM THE BANK 10 ACCOUNT WERE USED FOR HOUSEHOLD EXPENSES OR ANY OTH ER INVESTMENT. IN SUCH CIRCUMSTANCES, IT CANNOT BE DIS PUTED THAT THE WITHDRAWALS HAVE BEEN USED FOR REDEPOSIT I NTO THE BANK ACCOUNT OF THE ASSESSEE. IN OTHER WORDS, THE ASSESSING OFFICER HAS NOT DISPUTED THE EXISTENCE OF BANK ACCOUNTS AND WITHDRAWAL FROM THE SAME. THE EARLIER WITHDRAWAL OF RS.50 LAKHS FROM THE BANK ACCOUNT ON 31/12/2013 OR WITHDRAWAL FROM VARIOUS BANK ACCOUNTS ON DIFFERENT DATES IS NOT DISPUTED. THE ASSESSEE MIGHT HAVE KEPT THE CASH WITHDRAWALS WITH HIM AND REDEPOSITED INTO VARIOUS BANK ACCOUNTS ON A LATER DATE. IT IS QUITE POSSIBLE THAT THE ASSESSEE MIGHT HAVE WITHDRAWN THE CASH FOR SOME PURPOSE BUT THE SAME REMAINS TO BE UTILIZED FOR ONE REASON OR THE OTHER AND THE CASH CONTINUES TO BE RE MAINED WITH HIM. SOMETIMES IT MAY ALSO HAPPEN THAT THE CAS H WITHDRAWALS FROM BANK ACCOUNTS CONTINUES TO REMAIN AS CASH BALANCE WITH THE ASSESSEE EVEN FOR MANY MONTHS AND SOMETIMES CASH WITHDRAWN IS UTILIZED ON THE SAME DA Y. ALL THESE PROBABLE ASPECTS OF THE MATTER CANNOT SIMPLY BE IGNORED OR BRUSHED ASIDE BUT THE FACT REMAINS THAT THE CASH HAS BEEN WITHDRAWN FROM THE BANK AND THAT IS N OT AT ALL DISPUTED. IN VIEW OF THIS, THE EXPLANATION OF T HE ASSESSEE DESERVES TO BE ACCEPTED, UNLESS CONTRARY I S BROUGHT ON RECORD WHICH HAS NOT BEEN DONE IN THIS C ASE. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTA NCES OF THE CASE AND IN VIEW OF THE DISCUSSIONS ABOVE, THE CASH DEPOSITS MADE BY THE ASSESSEE ON VARIOUS DATES SHOU LD BE REASONABLY PRESUMED THAT IT IS FROM EARLIER WITHDRA WALS MADE BY THE ASSESSEE ON VARIOUS DATES. ACCORDINGLY, WE DELETE THE ENTIRE ADDITION OF RS.32.5 LAKHS MADE BY THE ASSESSING OFFICER. 7. IN VIEW OF THE ABOVE, I AM OF THE OPINION THAT T HE ASSESSING OFFICER HAS TO EXAMINE THE FUND FLOW STATE MENT OF THE ASSESSEE AND TO RE-EXAMINE THE ISSUE IN THE INTEREST OF JUSTICE. ACCORDINGLY, I REMIT THE ISSUE TO THE FI LE OF THE A.O. TO GIVE DUE CREDIT TOWARDS THE AMOUNT WITHDRAWN BY THE ASSESSEE AND KEPT IDLE AND REDEPOSITED BY THE ASSESSEE INTO BANK ACCOUNTS. 7. IN VIEW OF THE ABOVE ORDER OF THE TRIBUNAL IN TH E CASE OF SRI.BYARAKAR MANJAPPA VEERESH (SUPRA) , I AM INCLINED TO DIRECT 11 THE ASSESSING OFFICER TO GIVE DUE CREDIT TO THE OPE NING BALANCE OF THE YEAR AND ALSO TOWARDS EARLIER WITHDRAWALS, A FTER VERIFYING THE BOOKS OF ACCOUNT OF THE ASSESSEE. WITH THESE OB SERVATIONS, WE REMIT THE ISSUE TO THE FILE OF THE ASSESSING OFF ICER FOR FRESH CONSIDERATION. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 27 TH DAY OF APRIL, 2020. SD/- ( CHANDRA POOJARI ) ACCOUNTANT MEMBER BANGALORE ; DATED : 27 TH APRIL, 2020. DEVADAS G* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(A)-4, BANGALORE 4. THE PR.CIT-4, BANGALORE. 5. THE DR, ITAT, BENGALURU. 6. GUARD FILE. ASST.REGISTRAR/ITAT, BANGALORE