Jatinder Kumar Aggarwal, New Delhi V. ACIT Circle-26(1), New Delhi

ITA 7312/DEL/2019

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 116096 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 4 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 28-11-2022
• Assessment Year: 2016-2017
• Appeal Filed On: 03-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 142(1); 234B; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘C’, NEW DELHI BEFORE SH. ANIL CHATURVEDI, ACCOUNTANT MEMBER AND MS. ASTHA CHANDRA, JUDICIAL MEMBER ITA No. 7312/Del/2019 (Assessment Year : 2016-17) Jatinder Kumar Aggarwal 4, Lucknow Road, New Delhi-110 054 PAN No. AAJPA 9380 Q Vs. ACIT Circle – 26(1) New Delhi (APPELLANT) (RESPONDENT) Assessee by Shri Salil Agarwal, Sr. Adv. Shri Shailesh Gupta, Adv. Revenue by Shri Anuj Garg, Sr. D.R. Date of hearing: 29.11.2022 Date of Pronouncement: 06.01.2023 ORDER PER ANIL CHATURVEDI, AM : This appeal filed by the assessee is directed against the order dated 24.06.2019 of the Commissioner of Income Tax (Appeals)-9, New Delhi relating to Assessment Year 2016-17. 2. The relevant facts as culled from the material on records are as under : 3. Assessee is an individual who electronically filed his return of income for Assessment Year 2016-17 on 05.08.2017 declaring 2 total income of Rs.2,60,90,510/-. The case of the assessee was selected for scrutiny and, thereafter, assessment was framed under section 143(3) of the Act vide order dated 26.12.2018 and the total income was determined at Rs.2,88,80,511/-. Aggrieved by the order of AO, assessee carried the matter before CIT(A) who vide order dated 24.06.2019 in Appeal No.10315/18-19 granted partial relief to the assessee. Aggrieved by the order of CIT(A), assessee is now in appeal and has raised the following grounds : “1. That the learned Commissioner of Income Tax, (Appeal)- 09 New Delhi, has erred both in law and on facts in sustaining an addition in the income of appellant through an order dated 24/06/2019 u/s 250 of The Income Tax Act amounting to Rs.13,09,630/- against the appealed addition of Rs.27,90,000/-. 2. The learned Commissioner of Income Tax, (Appeal) has erred in law by considering the cash deposited in bank account amounting to Rs.13,09,630/- as unexplained Cash Credit u/s 68 of the Act. 3. The Learned CIT(A) has erred in treating the cash deposits in the bank account as income of the assessee, thereby: i. That he has failed to appreciate the fact that the assessee has stated specifically that the amount was redeposit from the account withdrawn from the bank and sufficient cash was available. ii. That while upholding the disallowance the commissioner of Income Tax (Appeals) failed to point out that the Ld AO has brought nothing on record that the amount was utilized or any expenses were made out of cash withdrawn by the assessee from the bank account. 4. That further in the recent judgment of the Honorable ITAT, Chandigarh Bench in the matter of Baljit Singh Vs. Income- Tax Officer, Ward- 3(2), Ludiana; has settled the dispute 3 once and for all that where the learned Assessing Officer has not brought anything on record, and there is no such instance, reference, argument or evidence to suggest that the funds were not available with the assessee or for reasons mentioned could not have been available to the assessee. It is for the department to bring some evidence in support of its claim, suspicion or allegation on record. Admittedly, there is no law that funds withdrawn from the banks cannot be held/retained in cash by the parties. There can also be no blanket period which can be judicially considered to be a reasonable time. The fact that there is a gap of about four months by itself in the peculiar circumstances does not lead to any conclusion which detracts from the merits of the claims made. The reasonableness of the explanation has to be decided considering the facts and the peculiar circumstances of each case. 5. That further, the learned Commissioner of Income Tax, (Appeal) has erred in levying interest u/s 234B & 234C of the Act failing to appreciate that on the facts of the case, no such interest was leviable. It is, therefore, prayed that the impugned addition of Rs.13,09,630/- be deleted. It is further prayed that at the time of hearing of appeal, if required, appellant may be allowed to take additional ground of appeal and thus the appeal be allowed.” 4. Before us, Learned AR, at the outset, submitted that though the assessee has raised various grounds but all the grounds are interconnected and the sole controversy is with respect to the addition of cash deposits amounting to Rs.13,09,630/- made under section 68 of the Act that has been upheld by CIT(A). 5. AO in the assessment order has noted that notice under section 142(1) dated 17.12.2018 was issued to the assessee and the assessee was asked to submit details with respect to previous 4 notice u/s 142(1) of the Act and further to justify the source of cash deposits in the bank account. Assessee was further asked to furnish the explanation called for by him before 24.12.2018. Before AO, assassee inter alia submitted that assessee had deposited Rs.27,90,000/- in his bank account of which Rs.14,30,370/- was out of the opening cash balance available with him as on 31.03.2015 and the balance Rs.13,50,000/- was out of the cash withdrawal made by the assessee from time to time. The submissions of the assessee was not found acceptable to AO. AO noted that since the case was getting time barred on 31.12.2018 and assessee had not submitted the reasons for huge cash withdrawals and why the amount withdrawn had remained unutilized and re-deposited, he concluded that the cash deposits in the bank account to be from unaccounted money which had remained unexplained. He, accordingly, considered Rs.27,90,000/- being the cash deposited by the assessee as unaccounted money/unexplained income under section 68 of the Act. 6. Aggrieved by the order of AO, assessee carried the matter before CIT(A). Before CIT(A), assessee reiterated the submissions made before the AO and it was further submitted that assessee being 80 years of age, was suffering from several health issues which needed immediate medical attention and to facilitate it. Assessee always kept the cash to meet any emergency. It was further submitted that assessee being a senior citizen and being unaware of the modern banking facility preferred the traditional 5 system of keeping cash for emergency use. CIT(A) after considering the submissions made by the assessee granted relief to the extent of Rs.14,30,370/- but upheld the addition of balance amount of Rs.13,09,630/-. Aggrieved by the order of CIT(A), assessee is now before us. 7. Before us, learned AR reiterated the submissions made before the lower authorities and further pointed to the cash flow statement placed in the paper book which depicted the details of cash deposits and cash withdrawals from the assessee’s bank account. From the aforesaid cash flow statement, he pointed to the fact that the cash withdrawals made earlier have been deposited in the bank account subsequently. He further submitted that assassee is a senior citizen of 80 years of age and assessee suffers from various health issues which at times may require immediate medical attention or hospitalization. To meet such emergencies, assessee always keeps the cash handy as he prefers traditional system rather than the modern banking facilities. He further submitted that there is no evidence with the Revenue to demonstrate that the cash withdrawn by the assessee earlier have been used for incurring expenses or for purchase of assets and thus the cash was not available with the assessee for re-depositing in the bank account. In support of his contention, he also placed reliance on the decision of Delhi Bench of Tribunal in the case of Dimple Anand vs. ACIT (ITA No.3296/Del/2016 order dated 27.09.2021, Ahmedabad Bench of Tribunal in the case of Deepak C. Yadav vs. ITO (ITA 6 No.1652/Ahd/2012 order dated 20.05.2016). He therefore submitted that the addition upheld by CIT(A) be deleted. 8. Learner DR on the other hand supported the order of lower authorities. 9. We have heard the rival submissions and perused the material on record. The issue in the present ground is with respect to the addition upheld by CIT(A) to the extent of Rs.13,09,630/- of the cash deposits made by assessee in the bank account. Before us, assessee has pointed to the cash flow chart and from that, he has pointed to the fact of the cash withdrawals aggregating to Rs.13,50,000/- made on various occasions. It is the contention of the assessee that he being senior citizen aged of around 80 years of age and believing in the traditional method keeps the cash handy with him for meeting medical emergencies. The aforesaid contention of the assessee and contention of the assessee of having withdrawn cash aggregating to Rs.13,50,000/- on various occasions has not been controverted by Revenue. Before us, Revenue has not placed any material on record to demonstrate that the cash withdrawn by the assessee on various occasions earlier was not available with him for redeposit as the cash withdrawn earlier was spent or was used for the purchase of assets and was, therefore, not available for deposits. In such a situation, without there being any evidence to the effect that the cash withdrawn earlier was not available for deposit, the explanation of the assessee of the cash deposits being 7 out of the deposits made earlier cannot be simply brushed aside. We, therefore, direct the deletion of the addition of Rs.13,09,630/- that has been upheld by CIT(A). We, therefore, direct its deletion. Thus the ground of assessee is allowed. 10. In the result, appeal of the assessee is allowed. Order pronounced in the open court on 06.01.2023 Sd/- Sd/- (ASTHA CHANDRA) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER Date:- 06.01.2023 PY* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI