ABHILASHA JAIN, Jaipur V. DCIT, Circle (Int. Tax), Jaipur

ITITA 5/JPR/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3632 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 9 day(s)
• Appeal Type: Income Tax (International Taxation) Appeal
• Pronouncement Date: 06-07-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Assessment Year: 2017-2018
• Appeal Filed On: 27-03-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: TANUJ AGARWAL
• Keywords: Unexplained cash credit; Gift; Additional evidence; Corroborative evidences; Set aside
• Section: 69; 56; 80C; 201; 69A; 22

Judgement Text

vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”B” JAIPUR MkWa- ,l-lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ IT(IT)A. No. 05/JP/2022 fu/kZkj.k o"kZ@Assessment Years : 2017-18 Abhilasha Jain 801, Chaura Rasta, Seva Panthki Gali, Champa Pura Chowk, Jaipur. cuke Vs. DCIT, Circle (Intl Tax) Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AFCPP 1391 Q vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj l s@ Assessee by : Shri Tanuj Agarwal (Adv.) jktLo dh vksj ls@ Revenue by : Smt. Monisha Choudhary (JCIT) a lquokbZ dh rkjh[k@ Date of Hearing : 29/06/2022 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 07/07/2022 vkns'k@ ORDER PER: DR. S. SEETHALAKSHMI, J.M. This appeal of the assessee is directed against the order of Learned Commissioner of Income Tax (Appeals)-42, Delhi [hereinafter referred to as (ld.CIT(A)] dated 07.01.2022 for the AY 2017-18. 2. The assessee has raised the following grounds:- “1. That on the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals)grossly erred in not quashing the assessment order as illegal, void-ab-initio and without jurisdiction. 2. That on the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals)grossly erred in sustaining an addition of Rs. 15,00,000/- u/s 69A towards unexplained cash deposits in bank account during demonetization thereby ignoring all the material evidences on record. IT(IT)A No. 05 /JP/2022 Abhilasha Jain vs DCIT 2 3. That on the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals)grossly erred in sustaining an addition of Rs. 2,00,000/- u/s 69A as unexplained credit entries in bank account. 4. That on the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals)grossly erred in sustaining an addition of Rs. 1,01,075.30 u/s 56 as unexplained interest income/receipt in bank account. 5. That on the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals)grossly erred in not allowing deduction u/s 80C amounting to Rs. 1,00,000/- in respect of HDFC Life Insurance. 6. That on the facts and circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals)grossly erred in upholding the invocation of section 115BBE for computing the tax liability. 7. That the appellant craves leave to add, amend, alter modify, substitute or delete any ground or grounds of appeal on or before the hearing of the appeal.” 3. The assessee has raised a petition for additional evidence which reads as under:- “i) Copy of cheque for Rs. 2,00,000/- obtained from the bank of the appellant. This cheque was issued by M/s Ganesham Silks in the name of the appellant (as repayment of earlier loan/advance) which was deposited in the bank account of the appellant and credited on 04.01.2017. ii) Bank statement of earlier period showing loan advanced to M/s Ganesham Silks amount to Rs. 2,00,000/- on 15.03.2016.” 4. Brief facts of the case are that the assessee is a lady resides with her husband and working in China since, 2010. Due to declaration of demonetization, she had to deposit her old currency notes cash in hand in the bank accounts the source of which were stridhan, money received on various occasions, like marriage, other social occasions as cash gifts from relatives, cash withdrawals from bank account, accumulated past savings/income in the form of cash. The cash kept as security and future emergency in the mother land India. The entire source of cash deposits along with cash flow statements, bank statements, confirmation of gifts etc. were submitted during the assessment proceedings but ignoring the evidences placed on record the ld. IT(IT)A No. 05 /JP/2022 Abhilasha Jain vs DCIT 3 A.O. made the addition of Rs.15,00,000/- u/s 69A as unexplained cash deposits in bank account which the assessee deposited on account of demonetization. The ld. AO treated the entire amount deposited as unexplained as if the appellant lady was not having any cash balance for deposit during demonetization. The addition was sustained by the ld. CIT(A). 5. During the course of hearing, the ld. AR of the assessee has not pressed the ground No. 1 as the ground is general in nature and the same is not considered for adjudication. In ground No. 2, the assessee has challenged the confirmation of addition of Rs. 15,00,000/- u/s 69A towards unexplained cash deposits in bank account during demonetization. 6. The ld. AR for assessee submitted a detailed written submissions which are as under:- “Appellant’s Humble Submissions: It is humbly submitted that the lower authorities grossly erred in appreciating the facts of the case and the customary practice of ladies of Indian origin keeping their savings/assets in the form of cash for various purposes not limited to their children marriage, support the family for future contingency situations etc. The entire source of cash deposits was duly explained during the assessment proceedings with supporting evidences but the lower authorities still opted to make the addition brushing aside all the submissions, evidences, Indian customary tradition and factual situation. The sources of cash deposits are explained as under :- 1. That a sum of Rs.5,01,000/- was received as cash gifts from Mrs. Indu Pandya (mother of Abhilasha Jain) on various occasions in support of which bank statements of Mrs. Indu Pandya are furnished at paper book page no. 19 to 23. Affidavit of Mrs. Indu Pandya is furnished at paper book page no. 18 as confirmation of the gifts. Details of cash withdrawals are furnished as under :- S.NO. DATE AMOUNT 1 13.08.2012 10000 2 13.09.2012 50000 3 03.10.2012 36000 4 22.10.2012 25000 5 13.12.2012 50000 6 02.01.2013 50000 IT(IT)A No. 05 /JP/2022 Abhilasha Jain vs DCIT 4 7 27.02.2013 10000 8 04.04.2013 25000 9 05.04.2013 15000 10 13.07.2013 20000 11 12.11.2013 10000 12 11.08.2014 50000 13 11.08.2014 25000 14 12.09.2014 20000 15 25.09.2014 55000 16 05.12.2014 50000 Total 501000 It is humbly submitted that the cash was deposited in the bank account due to directions/instructions of government as demonetization was declared. Cash flow statement is furnished at paper book page no. 1 to 3. 2. That a sum of Rs.11,25,000/- was withdrawn as cash from NRE bank account no. 02891560001408 at HDFC bank, Johari Bazar, Jaipur, for the period from 09.02.2011 to 15.02.2016 This cash was deposited back in the bank account during demonetization period. Bank account statements of NRE Bank account are furnished at paper book page no. 4 to 15. Details of cash withdrawals are furnished at Annexure-A to these written submissions. It is humbly submitted that the cash was deposited in the bank account due to directions/instructions of government as demonetization was declared. Cash flow statement is furnished at paper book page no. 1 to 3. 3. That a sum of Rs.1,10,000/- was withdrawn as cash from NRO bank account no. 50100085719780 at HDFC bank, Johari Bazar, Jaipur, for the period from 02.04.2016 to 29.10.2016 This cash was deposited back in the bank account during demonetization period. Bank account statements are furnished at paper book page no. 16 to 17 and details of cash withdrawals are furnished as under :- S.NO. DATE AMOUNT 1 02.04.2016 20000 2 28.04.2016 20000 3 07.07.2016 10000 4 20.09.2016 20000 5 27.09.2016 10000 6 27.09.2016 10000 7 29.10.2016 20000 Total 110000 It is humbly submitted that the cash was deposited in the bank account due to directions/instructions of government as demonetization was declared. Cash flow statement is furnished at paper book page no. 1 to 3. IT(IT)A No. 05 /JP/2022 Abhilasha Jain vs DCIT 5 4. That Abhilasha Jain was married on 21.04.2002. On marriage she received various gifts and cash from her in laws, parents, husband, friends, relatives etc. which was her Stridhan. She deposited her Stridhan in the form of cash in the bank account during demonetization period. 5. Moreover, Abhilasha Jain is working in China from 2010 and on her visits to India she brings cash and also receives gifts in cash from her relatives and friends in India. She has parked her savings in India due to her preference of mother country India over China. Due to declaration of demonetization she had to deposit all her past and accumulated savings, gifts, income, stridhanetc. in the form of cash in the bank account. 6. Copy of marriage certificate, passport, income tax returns of China etc. are furnished at paper book page no. 38 to 43. It is submitted that the entire cash deposits are from explained sources. It is further submitted that lower authorities merely acted on surmises and suspicion without any material on record. The cash flow statement and other evidences submitted by the appellant were arbitrarily rejected without pointing out any specific defect. No material was brought on record by the ld. A.O. to establish that the cash withdrawn from the bank account was not available for deposit when demonetization was declared. The humble appellant wish to rely on the following judgments :- S.No. Judgement Held 1 Shri M. Prabhakar ITA No. 1727/Hyd/2014 dated 11.11.2016 (ITAT Hyderabad) Bench AO concluded that there is no possibility of keeping such huge amount in cash by the assessee being a NRI but AO has not brought on record that why he cannot keep so much of cash in hand. AO has made the addition merely on conjectures/surmises/suspicion and no proper reasons were given why he cannot keep the cash in hadn except he remark of being an NRI. The Hon’ble ITAT, Hyderabad Bench relied on the judgment of Hon’ble Supreme Court in the case of Dhakeshwari Cotton Mills Ltd. wherein it was held by the Hon’ble Apex Court that the AO cannot complete the assessment purely on guess and without any reference to evidence or any material at all. 2 CIT Vs. K. Sreedharan 201 ITR 2010 (Kerala High Court) The period of four years is not so long period as to rebut the presumption regarding the continued availability of amount. 3 Sunil Mathur Vs. ITO (ITAT, Jaipur) Cash deposits addition of Rs.13.50 lakhs was deleted by holding that the assessee has explained that the source of cash deposits during the year is out of earlier two years withdrawals and cash in hand at the beginning of the year in support of which the assessee has submitted cash book and cash flow statement for previous two IT(IT)A No. 05 /JP/2022 Abhilasha Jain vs DCIT 6 financial years depicting the individual transactions of receipts and payments/withdrawals. (para no. 15 at paper book page no. 61 to 62) 4 Dhakeshwari Cotton Mills Ltd. 26 ITR 775 Supreme Court A suspicion remains a suspicion unless the same is established and can never take place of reality. Assessment cannot be made on guesswork without any reference to any material on record. 5 Smt. Krishna Agarwal Vs. ITO (ITAT, Jodhpur) Addition for cash deposits of Rs.68,95,000/- in bank account was deleted holding that cash withdrawals in earlier two years have not been disputed by the revenue and only reason why the explanation of the assessee has not been accepted is that keeping huge cash at home for such a long period is beyond any imagination. Mere absence of supporting documentation cannot be a reason enough to allege any malafide in the explanation so submitted especially where the assessee has explained and duly disclosed the source of deposits in the bank account out of which the withdrawals have been made and has thus established the necessary linkage and availability of cash in hand. Mere time gap between withdrawals and deposits cannot be a sole basis for rejecting the explanation of the assessee regarding availability of cash in hand where there is no material that amount so withdrawn has been utilized somewhere else. (Para 15, Paper Book page no. 80 to 81) 6 Hemant Prabhakar Vs. DCIT(ITAT, Jaipur) Cash deposits addition was deleted after verification of availability of cash from cash flow statement filed by the assessee. Addition cannot be made u/s 69 for deposits made in bank accountsimply for the reason thttehse were made after a gap of 14 months of earlier withdrawals since AO has failed to establish the utilization of earlier withdrawals elsewhere. (Paper book page no. 44) 7 R.K. Dave Vs. ITO (ITAT, Jodhpur) 94 TTJ 19 Mere fact that the assessee could not explain the time gap between the amount withdrawn and investment or where the amount was kept would not itself justify the addition. 8 ACIT Vs. Baldev Raj Charla 121 TTJ 366 (ITAT, Delhi) There being no material with IT authorities to show that the amounts of cash deposits in question, admittedly withdrawn from bank and assessee concern, were utilized for any other purpose, no addition could be made only on the ground that there was time gap between the withdrawals and the corresponding cash deposits. 9 Smt. All throughout Assessing Officer has raised suspicion IT(IT)A No. 05 /JP/2022 Abhilasha Jain vs DCIT 7 VeenaAwasthi ITA No. 215/LKW/2016 dated 30.11.2018 (ITAT Lucknow) on the behavioural pattern of frequent withdrawal and deposits by the assessee. There is no law in the country which prevents citizens to frequently withdraw and deposit in his own money. Documentary evidences furnished before the Revenue clearly clarifies that on each occasion at the time of deposit in her bank account, assessee had sufficient availability of cash which is also not disputed by the revenue. Entire transactions of withdrawals and deposits are duly reflected in the bank account of the assessee and are verifiable from relevant records. 10 Muon Computing Pvt. Ltd. Vs. ITO ITA No. 7606/Del/2019 dated 04.08.2021 (ITAT Delhi) Ld. CIT(A) observed that despite having sufficient cash in hand, the assessee has withdrawn the amount which cannot be the sole reasons for making addition purely on the basis of suspicion. 11. Ashok Kumar Banthia Vs. DCIT ITA No. 297/Jodh/2019 (ITAT, Jodhpur) Affidavit submitted by assessee cannot be rejected without any plausible reason. It is further submitted that as per Indian tradition and customs, Indian ladies keep their savings/assets in the form of cash with them for various purposes not limited to their children marriage, support the family for future contingency situations etc. They prefer cash savings more safe as compared to bank balances as they even hide their savings from their husband, children and other family members. You’rhonour’s kind attention is invited towards decision of Hon’ble Delhi High Court in the case of Jaya Aggarwal Vs. ITO in ITA no. 315/2005 decided on 13.03.2018 (paper book page no. 46 to 50, relevant page no. 49 to 50), wherein the Hon’ble High Court deleted the addition for unexplained cash deposits where the delay in depositing back of cash, which was withdrawn for an unfruitful purpose, was explained through an oral evidence. Principle of preponderance of probability as a test is to be applied and is sufficient to discharge onus. Probability means likelihood of anything to be true. Probability refers to appearance of truth or likelihood of being realized which any statement or event bears in light of the present evidence (Murray’s English Dictionary). Evidence can be oral and cannot be disregarded on this ground. Hence, the ld. A.O. rejection of oral submissions of the appellant regarding past savings, stridhan, cash withdrawals etc. is not justified in lieu of theory of preponderance of probability accepted by Hon’ble Courts. The ld. A.O. also mentioned in the assessment order at para no. 9.5 at page no. 16 that as on 01.04.2014 cash in hand was Rs.12,91,500/- but no IT(IT)A No. 05 /JP/2022 Abhilasha Jain vs DCIT 8 supporting documents were given. It is humbly submitted that cash flow statement (copy enclosed) was prepared right from 2011 to explain the entire position of cash availability. The ld. A.O. failed to point out any deficiency/discrepancy in cash flow statement of the appellant. Just before demonetization, as per the cash flow statement the appellant was having cash balance of Rs.22,73,500/- out of which Rs.15,00,000/- were deposited back in bank account due to demonetization, hence still Rs.7,73,500/- surplus is available with the appellant to cover the allegation of ld. A.O. regarding personal expenditure, petty cash withdrawals etc. It is humbly submitted that the entire source of cash deposits was duly explained during the assessment proceedings with supporting evidences but the ld. A.O. still opted to make the addition brushing aside all the submissions, evidences, Indian customary tradition and factual situation. Hence, it is most respectfully requested that the impugned addition, being illegal and unjustified, may kindly be deleted.” 7. Aggrieved by the assessment order, the assessee filed an appeal before the ld. CIT(A) but remain unsuccessful and ld. CIT(A) confirmed the addition by observing in para 8 to 8.11 reads as under:- “8. Ground no. 2 is against addition of Rs. 15,00,000/- made u/s 69A towards unexplained cash deposits under bank account. 8.1 It has been contended that the appellant had received Rs. 5,01,000/- from her mother in small amounts on different dates. In support it has been argued that the mother had made withdrawals from the bank account aggregating Rs. 5,01,000/- on 16 dates starting from 13.08.2012 to 05.12.2014. The withdrawals have 'been m — ad - e - Tn — the amounts ranging from Rs. 10,000/- to 55,000/-. The very nature i.e. periodic withdrawal and amount indicate that the same have been made to meet house hold expenditure. It is not explained as to why the cash was not deposited in the bank account by the appellant particularly when she could not carry the same to China. It is not explained why the mother was giving cash amounts on different dates when both of them were maintaining regular bank accounts in India. Further, it is not possible that the mother would make regular cash withdrawals just to gift the entire money to her daughter. No evidence such as affidavit; income tax return; and details of house hold expenses of mother has not been filed. The appellant has also argued that she was married on 21.04.2002 and she received cash gifts that time from her relatives in which was her Stridhan. It is not explained as to why the so called Stridhan was kept in cash form for 14 long years waiting for the announcement of demonetization when the same could be deposited in the bank account much earlier. No supporting evidence has been filed in support of claim of Stridhan. The contention having received IT(IT)A No. 05 /JP/2022 Abhilasha Jain vs DCIT 9 money from mother or Stridhan is unsubstantiated and without any tangible evidence. The argument is rejected. 8.2 The appellant has argued that' aggregate withdrawals of Rs. 11,62,500/- have been made from her NRE bank account with HDFC Bank. It is observed that the withdrawals have been made in small amounts ranging from Rs. 2,000/- to 25,000/- on 116 dates starting from 09.02.2011 to 15.02.2016. Similarly, aggregate withdrawals of Rs. 1,10,000/- have been made from her NRO bank account with HDFC Bankin small amounts ranging from Rs. 10,000/- to 20,000/- on 7 dates starting from 02.04.2016 to 29.10.2016. By the very nature of being small periodic withdrawals show that the same have been made for house hold or other personal expenses. No rational person would continuously withdraw cash from the bank account for no reason or purpose just to pile up the cash with herself just to deposit the same in the bank account after several years. If the appellant was not in need of cash, there was no reason to withdraw further cash from the bank account when she already had huge unutilized cash available with her. In the fact and circumstances the whole argument is so make believe story, after thought and completely implausible. The argument is rejected. 8.3 During the assessment/ appeal the appellant had submitted cash flow statement which showed that only incoming were shown but no expenses/ cash outflows were shown. It is not possible that the appellant had not utilized even a single rupee in all these years and did not incur even a single rupee expenditure. The cash flow statement which is concocted, fabricated and self-serving has been rightly rejected by the AO. 8.4 It is also noteworthy that the huge cash deposit of Rs. 15,00,000/- was made by way of a single deposit on 12.11.2016 and it was clearly made in consequence of demonetization of high value currency. The appellant has not shown that he had ever made such a huge cash deposit in earlier or subsequent financial years. 8.5 Demonetization of Rs. 500 and Rs.1000 bank notes was announced by the Hon'ble Prime Minister on 08.11.2016. The purpose was inter-alia to unearth black money which was stashed in the form of high denomination notes. General Public was allowed to deposit the demonetized bank notes between the period 09.11.2016 to 30.12.2016. Failure in submitting satisfactory explanation in this regard before the AO and again not submitting any explanation during the appellate stage despite having repeated opportunities, clearly shows that the appellant is not in a position to explain the source of these huge cash deposits. The only inference which can be drawn out of these facts and circumstances is that the appellant has deposited her unaccounted money in the bank account. 8.6 Hon'ble Supreme Court in Krishan Kumar vs./T0[2019] 107 taxmann.com 464 (SC) has upheld the addition made by AO under section 69A where the assessee had failed to satisfactorily explain the source of cash deposit. IT(IT)A No. 05 /JP/2022 Abhilasha Jain vs DCIT 10 8.7 The issues relevant to the demonetization of high denomination notes was considered by the Supreme Court in the case of Sreelekha Banerjee v. Commissioner of Income-tax. [1963] 49 ITR (SC) 112; [1964] 2 SCR 552 (SC). The court held that where assessee contended that high denomination notes represented not cash balance but some other money and he failed to explain source of said money, department was justified in treating value of said high denomination notes as income of assessee from undisclosed sources. Where the explanation of assessee was unconvincing and one which deserves to be rejected, the department can reject the explanation and draw the inference that the amount represents income either from the sources already disclosed by the assessee or from some undisclosed source. The Court observed: "Where the assessee was unable to prove that in his normal business or otherwise, he was possessed of so much cash, it was held that the assessee started under a cloud and must dispel that cloud to the reasonable satisfaction of the assessing authorities, and that if he did not, then, the department was free to reject his explanation and to hold that the amount represented income from some undisclosed source". 8.8 Further, in cases relating to the issue of source of demonetized currency, Hon'ble High Courts of Patna and Calcutta in ChunilalRastogi vs. CIT [1955] 28 ITR 341 (Pat.), Anil Kumar Singh vs. CIT [1972] 84 ITR 307 (Cal.) and M. L. Tewary vs. CIT [1955] 27 ITR 630 (PAT.), have respectively held that where the assessee could not satisfactorily prove source and nature of amount which he encased on demonetization, revenue authorities were perfectly justified in drawing an inference that said sum was of an income nature. 8.9 Hon'ble ITAT Delhi has in Leela Devi Vs /TO (ITATDelhi) [ITA. No. 1423/Del/1420] has upheld addition of unexplained cash deposit in the bank account in AY 2017-18 i.e. during the demonetization period. 8.10 The appellant claims are unsubstantiated, without any tenable evidence, self-serving and a make believe story. Clearly, the appellant had deposit her own undisclosed money in the bank account during the demonetization period. The appellant has failed to explain the source of the same, the addition of Rs. 15,00,000/- u/s 69A of the Act made by the AO is confirmed. 8.11 This ground of appeal is dismissed” 8. In addition to the above written submission, the ld. AR of the assessee submitted that the assessee being a lady kept her stridhan amount received as IT(IT)A No. 05 /JP/2022 Abhilasha Jain vs DCIT 11 gift on marriage and other social occasions including the withdrawal from NRE/NRO account made by the assessee. The same is not utilized anywhere and lying in India. The mother of the assessee gifted cash and same was also kept as security for her future use which is a common Indian lady would like to keep the cash on social and medical emergency that may arise in future and that probability cannot be denied. The assessee has explained the cash to the extent of Rs. 22,73,500/- is duly available with the assessee by filing a day to day cash accumulated by her in cash flow statement. She has on account of demonetization of currency deposited only Rs. 15,00,000/- SBN notes on 12.11.2016 only. She has not thereafter deposited any money. This proves that the assessee was having the sufficient cash on hand with her, contrary the revenue has not proved that the assessee has utilized the cash available with her. As regards the visit of India on various occasions, the assessee has already stated in her submission that the expenses are borne by her husband and even though alternatively she is having the cash available with her out of the balance amount which is not deposited in the bank account by the assessee. The source of cash deposit was from cash flow statement placed on record. In addition, the assessee has also placed on record the gift deed for an amount received from her mother which is supported by bank statement of her mother showing sufficient withdrawal of case available with her. This aspect is also not disputed and nothing contrary finding against the contention of the assessee placed on record. Considering the records available before the Assessing Officer merely the amount is sufficiently kept in hand and not deposited in the bank account addition cannot be made. The assessee has not offered any income in previous year the addition cannot be made looking to the evidences placed on record. Not only that the Department has not pin pointed any single adverse remark against the record and the evidences placed on record. Assessee gave complete details of source of cash available with the assessee and out of total cash of Rs. IT(IT)A No. 05 /JP/2022 Abhilasha Jain vs DCIT 12 22,73,500/- which shows that the assessee has deposited only Rs. 15,00,000/- on 12.11.2016. The contention of the Department that the time gap is more and the withdrawal are made on various occasions does not warrant that the assessee keep cash on hand but in the absence of any contrary material placed on record the evidence supported by bank statement and gift deed cannot be overlooked. The assessee is not having regular residency in India, the use of cash withdrawal cannot be considered as used without bringing anything contrary on record and for this the benefit goes in favour of the assessee. The assessee has clearly established the nexus of cash deposits viz-a-viz to the cash available with the assessee filing of all relevant record including the affidavit of her mother and her bank statement. All these records are not disputed by the Assessing Officer. The ld. AR of the assessee has also submitted that the invocation of the higher rate U/s 115BBE of the Act is effective from 15.12.2016 as the Hon’ble President of India gave consent on that date whereas the money has deposited dated 12.11.2016 and thus, the higher rate cannot be applied. 9. Per contra, the DR appearing on behalf of the Revenue submitted that the addition made by the AO and ld. CIT(A) is based on the provisions of Section 69A of the IT Act, the assessee failed to establish the manner for which the assessee is in a possession of such a substantial amount in cash. The assessee failed to explain satisfactory that how cash she has received on social occasions and why withdrawal were consistently made in past. Even though that the assessee is having sufficient cash in hand how the assessee keep such money in hand for substantially high for more than 10 years and the assessee being non resident Indian the utilization of these withdrawal towards expenses cannot be denied. The assessee has substantiality made withdrawal even though the cash available with her. Explanation of the assessee is not convincing to the IT(IT)A No. 05 /JP/2022 Abhilasha Jain vs DCIT 13 case flow statement placed on record by the assessee and is self serving document. The ld. AR of the assessee has not filed any detailed regarding expenses that she incurred on her visit to India on each occasions. 10. In rejoinder, the ld. AR of the assessee submitted that it is in habit of all the lady that she kept money for the use in her future for any emergency in her family and medical purposes having these much cash on hand looking to the stature of the family cannot be denied. As regards the probability of expenses on visit out of cash of Rs. 22,73,500/- assessee has deposited only Rs. 15 lacs and balance still available for the alternative argument to counter the argument of ld. DR. 11. We have heard the rival contentions, and also gone through the written submission placed on record by both the parties and the legal decision placed on record to drive the home to the contentions on the ground raised before us. It is evident from the cash flows statement, bank statement of NRO/NRE account placed on record, the affidavit of mother of the assessee confirming for gift to the assessee along with bank account withdrawal from her mother merely the assessee has even though the cash in hand continued withdrawal of money from the bank cannot be a reason to make an addition u/s 69A of the Act. The ld. AR of the assessee relied on the judgment in the case of ITO vs. Shri M. Prabhakar in ITA No. 1727/Hyd/2014 dated 11.11.2016 the finding of the Coordinate Bench decision on the ratio is extracted vide para 9 herein below for the shake of brevity:- “9. Considered the rival submissions and perused the material facts on record. The assessee has deposited Rs. 34.70 lakhs during this AY and there is sufficient cash available in his possession as per the cash book and Wealth Tax return submitted by the assessee. The mute question before us is whether the cash deposited was coming out of the cash available with the assessee, IT(IT)A No. 05 /JP/2022 Abhilasha Jain vs DCIT 14 which was kept by him for last two years. It was not brought on record why he has withdrawn so much of money and what made the assessee to keep such huge money in hand. But, on record, submitted by the assessee, we find that he had sufficient money. Even the AO could not bring any proof that the assessee has in fact utilized or applied the cash withdrawn two years back, except making a remark that there is no possibility of keeping such amount by the assessee being a NRI. He has not brought on record, why he cannot keep so much of cash in hand and no contrary findings were given by him against the submissions of assessee. AO has made the addition merely on conjectures/surmises/suspicion and no proper reasons were given why he cannot keep the cash in hand except the remark of being an NRI. In our view, the Hon’ble Supreme Court in the case of Dhakeswari Cotton Mills Ltd. (supra) has held that the AO cannot complete the assessment purely on guess and without any reference 9 ITA Nos. 1727/H/14 Sri M. Prabhakar to evidence or any material at all. Also in the case of Umacharan Shaw & Brothers (supra), the Apex Court has held that AO cannot complete the assessment merely on suspicion which cannot take the place of proof in these matters. Respectfully following the ratio laid down by the Hon’ble Supreme Court in the said cases, we hold that the AO made the assessment merely on suspicion and without bringing any cogent material on record to establish that assessee cannot keep the cash in his hand being a NRI. Accordingly, we uphold the order of the CIT(A) in deleting the addition of Rs. 34,70,000/- made by the AO and dismiss the grounds raised by the revenue in this regard.” In the above judgment the Coordinate Bench decided that the addition made by the AO merely on suspicion and without bringing any cogent material on record to establish that assessee cannot be keep the cash on hand being a non resident of India. It has been observed from the record that the assessee as meticulously given case flow statement giving different date wise cash available is supported by the bank statement placed on record. The assessee has IT(IT)A No. 05 /JP/2022 Abhilasha Jain vs DCIT 15 also placed on record the affidavit of his mother supported by the withdrawal made by her mother from her bank accounts all these evidences, the Revenue failed to establish any fault or contrary finding to this bulk of papers and merely the addition sustained on account of suspicious reasons. We also find force in the argument of the ld. AR of the assessee that the assessee has deposited the demonetization money at one instant only proves that the assessee is having these much of cash and on account of demonetization she has not choice but to deposit in Bank. In these observations, ground No. 2 raised by the assessee is allowed. 12. In Ground No. 3, the assessee has challenged the confirmation of addition of Rs. 2,00,000/- as unexplained credit entries in bank account u/s 69. 13. The ld. AR for assessee submitted a detailed written submissions which are as under:- “Appellant’s Humble Submissions: It is humbly submitted the ld. A.O. made the impugned addition of Rs.3,75,400/- as unexplained credit entries in HDFC NRO Account No. 50100085719780 (para no. 16 at page no. 19 of the assessment order) without even issuing a show cause notice to the appellant in this respect otherwise the appellant could have explained it during the assessment proceedings itself. The ld. CIT(A) deleted the addition to the extent of Rs.1,75,400/- but sustained the addition of Rs.2,00,000/- in respect of one credit entry of Rs.2,00,000/- in bank account on 05.01.2017 (para no. 9 & 9.1 at page no. 22 of the appellate order). As per the appellant’s bank statement of HDFC NRO A/c No. 50100085719780 (paper book page no. 17) one credit entry of Rs.2,00,000/- is appearing on 05.01.2017 to which the appellant submitted that it seems cheque deposit for dollar exchange, details are being tracked and shall be submitted shortly. The ld. CIT(A) rejected the submissions while passing the order as by that time the appellant lady residing at China couldn’t provide the details. The appellant lady was unable to trace the details as she was in China and Covid-19 situation was disturbing the world all over. However, after the CIT(A) passed the order, the details were traced. The credit entry of Rs.2,00,000/- pertains to receipt back of sum advanced from M/s Shri Ganesh Sales. Copy of cheque obtained from the HDFC bank alongwith bank statement of earlier year showing sum advanced to M/s Shri Ganesh Sales on 15.03.2016 has been submitted as an additional evidence IT(IT)A No. 05 /JP/2022 Abhilasha Jain vs DCIT 16 alongwith an application dated 02.06.2022 (filed on 03.06.2022) for admission of additional evidences under the Income-tax Appellate Tribunal Rules. For the reasons stated above, it is most respectfully requested that this issue may kindly be restored back to the ld. A.O. for verification of the contention of the assessee.” 14. At the time of hearing of the appeal before ld. CIT(A), the ld. AR of the assessee requested time to submit the evidence but the same were not placed on record on account of corona virus and the working of the public life was very much affected. Now because situation became normal the record has been obtained from the bank wherein the money given earlier were received back is placed on record in the form of photocopy of cheque and the statement wherein in earlier year the money was given to Shri Ganesham Silks. 15. Per contra, the ld. DR relied on the orders of the lower authorities but in all fairness accepted the contentions that considering the fresh evidence that matter be verified by AO. 16. We have heard the rival contentions and perused the material available on record. Considering the additional evidence placed on record the contentions raised by the assessee that the credit is already explained based on the evidence placed on record. Since, we have based on the argument of the ld. AR of the assessee admitted that these additional evidences but since these evidence were not placed before the AO we deem it fit to set aside this issue to the file of the Assessing Officer to verify the veracity of the record and contention raised by the assessee. Giving sufficient opportunity to the assessee. The AO is directed to decide whether based on the evidences placed on record the addition of Rs. 2,00,000/- is required to be added or not and with this observation the ground no. 3 raised by the assessee is allowed for statistical purposes. IT(IT)A No. 05 /JP/2022 Abhilasha Jain vs DCIT 17 17. During the course of hearing, the ld. AR of the assessee has not pressed the ground No. 4 for which the DR. has no objection. Hence, the same is dismissed as not pressed. 18. As regards the ground No. 5, the ld. AR of the assessee submitted that assessee has claimed benefit on account of HDFC life insurance premium that these information is placed on record by the assessee vide their submission, therefore, the amount is paid by her but denied that these information not placed. But assessee’s submission which is also extracted in the assessment order page 14 reads that:- “19. Evidence of deduction claim under section 80C amounting to Rs. 1,00,000/- in respect of HDFC Life Insurance premium is enclosed herewith. 20. Since no books of accounts are required to be maintained, capital account and Balance sheet cannot be furnished.” 19. Aggrieved by the assessment order before the ld. CIT(A) who has confirmed the addition by observing in para 11 to 11.1 reads as under:- “11. Ground no. 5 is against not allowing deduction u/s 80C of Rs. 1,00,000A made in respect of HDFC life insurance. 11.1 The appellant has submitted copy of the policy document. Admittedly, the same was not submitted during assessment. No request has been made during appeal under Rule 46A for admission of this policy as additional evidence. Further, the document nowhere indicates that the same is an approved investment u/s 80C of the Act. In view of these facts, the deduction cannot be allowed u/s 80C. This ground of appeal is dismissed.” 20. Per contra, the ld. DR relied on the orders of lower authorities. 21. We have heard the rival contentions and perused the material available on record. It is seen that the ld. CIT(A) did not deal this issue as assessee has not placed on record a petition under Rule 46A but assessee contended that details are already in bank statement. Considering the overall facts we also feel IT(IT)A No. 05 /JP/2022 Abhilasha Jain vs DCIT 18 that let this issue also be verified by ld. AO based on the evidence the assessee has placed on record. Thus, this ground No. 5 is also allowed for statistical purposes. 22. In Ground No. 6 is consequential in nature for charging of higher rate of tax u/s 115BBE of the Act since, we have deleted the addition in Ground No. 2 the ground no. 6 become infructuous. 23. In Ground No. 7 of the assessee is general nature which also did not require any adjudication. In the result, the appeal of the assessee is partly allowed. Order pronounced in the open Court on 07/07/2022. Sd/- Sd/- ¼ jkBksM deys'k t;UrHkkbZ ½ ¼,l-lhrky{eh½ ( RATHOD KAMLESH JAYANTBHAI) (Dr. S. Seethalashmi) ys[kk lnL; @Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@ Jaipur fnukad@Dated:- 07/07/2022. *Ganesh Kumar vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. vihykFkhZ@The Appellant- Abhilasha Jain, Jaipur. 2. izR;FkhZ@ The Respondent- DCIT, Circle (Intl Tax), Jaipur. 3. vk;dj vk;qDr@ CIT 4. vk;dj vk;qDr@ CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur. 6. xkMZ QkbZy@ Guard File { IT(IT)A No. 05/JP/2022} vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar