"vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Mk0 ,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, vk;dj vihy la-@ITA No. 71/JP/2025 fu/kZkj.k o\"kZ@Assessment Year : 2011-12 Jugal Kishore Choudhary Choudhary Motor Driving School Jakher Bhawan, Jat Mohalla Naya Bas Alwar cuke Vs. ITO, Ward 1(2), Alwar LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ADMPC5448D vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. R. S. Poonia, CA jktLo dh vksj ls@ Revenue by : Sh. Gautam Singh Choudhary, JCIT (Thro. V.C) lquokbZ dh rkjh[k@ Date of Hearing : 01/04/2025 mn?kks\"k.kk dh rkjh[k@Date of Pronouncement: 03/04/2025 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM On being aggrieved by the order of the learned National Faceless Appeal Centre, Delhi dated 21/11/2023 [ for short CIT(A)] the captioned assessee preferred the present appeal. The dispute relates to the assessment year 2011-12. The said order of the ld. CIT(A) arises because the assessee has challenged the assessment order dated 11.12.2018 2 ITA No. 71/JP/2025 Jugal Kishore Choudhary vs. ITO passed under section 147/143(3) of the Income Tax Act, 1961 [ for short “AO”] by ITO, Ward 2(1), Alwar [ for short AO]. 2. In this appeal, the assessee has raised following grounds: - “1. That under the facts and circumstances of the case the Ld. CIT (Appeals), National Faceless Appeal Centre (NFAC) has erred in law and facts in confirming the disallowance of Rs. 12,00,000/- imposed by the Ld. AO on account of unexplained cash deposit u/s 69 of the IT. Act, 1961 which is wrong, unwarranted and bad in law. Kindly delete the same. 2. That the appellant craves the permission to add to or amend to any of the above grounds of appeal or to withdraw any of them. 3. At the outset of hearing, the Bench observed that there is delay of 355 days in filing of the appeal by the assessee for which the ld. AR of the assessee filed an application for condonation of delay with following prayers: “Sub: Regarding acceptance of application for condonation of delay in case of Shri Jugal Kishore Choudhary having appeal No. 71/JPR/25 (PAN: ADMPC5448D). Respected Members, With reference to above subject we request you that:- 1. That I have filed an appeal before Hon'ble ITAT, Jaipur Bench on 20.01.2025 against the order passed by Ld. CIT (Appeals), NFAC, dated 21.11.2023 (i.e. with a delay of 355 days). The appeal No. is ITA 71/JPR/2025. 2. That my primary email ID on income tax portal is 'JUGALKISHOR1616@GMAIL.COM' and I do not operate and check this email ID. 3. That the email address mentioned in Form No. 35 for communication was 'CSSHEKHAR972@GMAIL.COM'. I was in impression that all communication are being done on the email address given in Form No. 35. 3 ITA No. 71/JP/2025 Jugal Kishore Choudhary vs. ITO 4. That the order was communicated to my primary email address instead of email Id mentioned in Form No. 35. Although, notice of hearing was communicated to another email address i.e. PMJANGID65@GMAIL.COM. 5. So, the order passed by CIT (Appeals) was not in my knowledge. 6. That in the First Week of January, 2025, I got a call from the officials of Income Tax Department regarding recovery of demand. 7. That I informed them, that we were in appeal before CIT (Appeals). Then they informed me that your appeal was already dismissed by CIT (Appeals). 8. That, thereafter I filed the appeal immediately before Hon'ble ITAT, Jaipur Bench on 20.01.2025 against the order passed by Ld. CIT (Appeals), with a delay of 355 days. 9. That the delay of 355 days was due to due to unaware about the adverse order dated 21.11.2023 and same is the bonafide reason of delay in filing of appeal which is beyond my control. In view of above submission you are requested that kindly consider this as reasonable cause to condone the delay of 355 days. So, that proper inquiry can be conducted and substantial justice may be delivered to the appellant. 4. Ld. AR of the assessee submitted that the notice were not served to the assessee on the email id mentioned in the Form no. 35 placed on record but was given on the other mail id and thereby they have sufficient reasons for prayer of condonation of delay. 5. Per contra, ld. DR objected to the prayer of the assessee and submitted that on the other mail id which was available were notice were served and therefore, the contention of the assessee are not correct. 4 ITA No. 71/JP/2025 Jugal Kishore Choudhary vs. ITO 6. We have heard the contention raised before us and perused the materials available on record. The prayer by the assessee for condonation of delay of 355 days has merit and we concur with the submission of the assessee as the facts stated in the affidavit were not disputed. Thus the delay of 355 days in filing the appeal by the assessee is condoned in view of the decision of Hon’ble Supreme Court in the case of Collector, land Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC) as the assessee is prevented by sufficient cause and thereby we admit the appeal of the assessee to be decided on its merits. 7. Succinctly, the fact as culled out from the records is that as per information available on ITS system of the department regarding non-return filers (NMS), the assessee during the financial year 2010-11 pertained to A.Y 2011-12 has made cash deposit of Rs. 21,00,000/- in his saving bank account maintained with Vijay Bank Ltd. As the assessee has not filed the return of income so the source of that cash deposit remained unexplained. Based on that set of information reasons were recorded under section 147 of the Act, and necessary approval were obtained from O/o the Pr. Commissioner of Income-tax, Alwar, vide letter dated 21.03.2018. 5 ITA No. 71/JP/2025 Jugal Kishore Choudhary vs. ITO Accordingly, notice u/s 148 of the Act, was issued on 26.03.2018 and served upon the assessee by Speed Post. In compliance to the notices as per note sheet, the assessee attended and filed a written reply which is placed on record and case was discussed with him. As per assessee’s reply he was working as a RTO Agent and filed his return of income declaring total income of Rs. 40,384/-. So far as the deposit cash into the bank account the assessee was required to submit his explanation with supporting evidences which prove the genuineness and creditworthiness of the cash deposit. The assessee in the assessment proceeding contended that he has made withdrawals of cash of Rs. 19,50,000/- from his bank for take/purchase ‘liquor contract’ but the planning for purchase of the liquor contract cancelled and he has deposited such withdrawal amount in his bank account. On verification of the reply of the assessee it is found that one side the assessee stated that the cash deposited amount of Rs. 10,50,000/- deposited out of withdrawal from the bank and other side the assessee has stated that withdrawal amount from the bank utilized by him in house construction, that house is situated at Naya Bass, Alwar. Therefore, there were controversy in his reply and same are not justified and not acceptable to the ld. AO and thereby addition was made in the hands of the assessee for an amount of Rs. 12,00,000, as the sources of 6 ITA No. 71/JP/2025 Jugal Kishore Choudhary vs. ITO cash deposits of Rs. 12,00,000/- (Rs. 21,00,000/- (-) 9,00,000/-) not explained and remained unexplained. Ld. AO also mentioned that the assessee has not done any business activities during the year under consideration. Although, he has done work as an Agent of the R.T.O and in this work no such income earned by the assessee. Hence, sources of cash deposited of Rs. 12,00,000/- remained unexplained and the assessee’s reply not acceptable and the cash deposits of Rs. 12,00,000/- remained unexplained and treated as concealed income of the assessee for the year under consideration and same was added to the total income of the assessee, as the same is unexplained cash deposit u/s 69 of the IT. Act, 1961. 8. Aggrieved from the order of Assessing Officer, assessee preferred an appeal before the ld. CIT(A). Apropos to the grounds so raised the relevant finding of the ld. CIT(A) is reiterated here in below: “Decision 5. During the Appellate proceedings, the following notices were issued to appellant: Notice issued u/s 250 Date of issue Date of compliance Remarks ITBA/NFAC/F/APL_1/2020- 21/1029689859(1) 12.01.2021 20.01.2021 Non-complied ITBA/NFAC/F/APL_1/2023- 24/1030503786(1) 10.02.2021 16.02.2021 Non-complied ITBA/NFAC/F/APL_1/2023- 14.11.2023 20.11.2023 Non-complied 7 ITA No. 71/JP/2025 Jugal Kishore Choudhary vs. ITO 24/1057914530(1) 6. In response to the notice u/s 250 of the I.T. Act, 1961, the appellant did not submit any replies against the grounds raised during the course of appellate stage. However, on 06.03.2021, and 17.05.2022 the replies of the assessee were received through ITBA portal which have considered. 7. So as to adjudicate the issue under consideration, the provisions of Section 69 are being quoted below: As per Section 69 \"Where in the financial year immediately preceding the assessment year the assessee has made investments which are not recorded in the books of account, if any. maintained by him for any source of income, and the assessee offers no explanation about the nature and source of the investments or the explanation offered by him is not in the opinion of the Assessing Officer, satisfactory, the value of the investments may be deemed to be the income of the assessee of such financial year. 8. The following case laws are also emphasized here:- 1. The Hon'ble High Court of Allahabad in the case of Sajid Khan Vs. Principal Commissioner of Income Tax 2. The Hon'ble High Court of Kerala in the case of K.P. Abdula Majeed Vs. Assistant Commissioner of Income Tax, Circle-1(1) 3. The Hon'ble High Court of Kerala in the case of C.K. Abdul Azeez Vs. Commissioner of Income Tax, Central Circle, Calicut From the aforesaid decision, it is clear that Section 68 of the Act suggests that there has to be a credit of an amount in books maintained by an assessee and such credit would be charged to income tax, as the income of the assessee of that previous year, if the explanation offered by the assessee about the nature and source thereof is not found satisfactory. The expression \"any sum is found to be credited in the books of the assessee\" means all entries on the credit side as well as on the debit side in the books of account. The word \"credited\" in relation to \"any sum\" does not mean an entry only on the credit side but would also include any entry on the debit side as well. The word \"credited\" means an entry of a sum in the books of account of the assessee. 8 ITA No. 71/JP/2025 Jugal Kishore Choudhary vs. ITO 9. I have carefully considered the facts of the case and found that there is no need to interfere the addition made by AO u/s 143(3) r.w.s 147 of the I.T. Act, total amounting to Rs. 12,00,000/-, During the assessment proceedings the appellant was provided ample opportunity for confirmations and substantiate the identity, creditworthiness of the lender and the genuineness of the transaction. However, in spite of extending sufficient opportunities the appellant was failed to furnish any shred of details/evidences to substantiate the claims made by it. As such these can best be considered as unsubstantiated averments. The various grounds are being taken up together. 10. Considering the entirety of facts, circumstances and material on record and looking into preponderance of probabilities here the appellant has miserably failed to substantiate its claim of having unexplained investment and has also not even been able to establish that he could himself accumulate such huge amount from the sources disclosed, therefore, the AO is fully justified in making/confirming the disallowance of the amount of Rs. 12,00,000/-, found as unexplained investment of the appellant. In this condition the addition made by AO factually and legally correct is upheld and the plea of the appellant on this issue is dismissed being devoid of any merits. 11. In the result, the appeal is therefore, dismissed.” 9. Since the ld. CIT(A) has dismissed, the appeal of the assessee, the assessee has preferred the present appeal on the ground as stated hereinabove. Apropos to the grounds so raised, the ld. AR of the assessee has relied upon the submission made before the ld. CIT(A) which reads as under ; Facts of the case: 1. Assessee is an individual and he is engaged in RTO consultancy work. Assessee did not file return of income u/s 139 of the I.T. Act, 1961 as he is not having any taxable income. 9 ITA No. 71/JP/2025 Jugal Kishore Choudhary vs. ITO 2. That assessee received a notice u/s. 148 of the I.T. Act, 1961 vides dated 26.03.2018. In response to this notice assessee filed his return of income declaring total income amounting to Rs. 40,380/- 3. Further, a notice u/s. 143(2) and Notice u/s. 142(1) of the I.T. Act, 1961 was issued on 20.11.2018. 4. That in response to these notices, assessee submitted the proper reply within the stipulated time along with the required documents/details. 5. That during the year under consideration assessee made cash deposit & cash withdrawals from his saving account frequently. 6. The total cash deposit made by assessee was Rs. 21,00,000/- during the year under consideration. 7. The Ld. A.O. has treated explained only cash deposit of Rs. 6,00,000/- vide dated 06.07.2010 and Rs. 3,00,000/- vide dated 24.07.2010 which was explained by the assessee from external sources. 8. Further, assessee had submitted that the remaining credit entries are explained by cash flow statement out of earlier withdrawals from the same bank account and also submitted bank statement in support of his claim. 9. That without considering the facts and evidences produced before the Ld. A.O. passed an order by making an addition of Rs. 12,00,000/- on account of Unexplained cash deposit u/s. 69 of the I.T. Act on 11.12.2018. The total income assessed by Ld. Assessing Officer for A.Y. 2012-13 was Rs. 12,40,380/-. 10. That assessee filed an appeal of the said order before the Ld. Commissioner of Income Tax (Appeals). With Reference to the above Subject the Ground wise submission of the Case: Submission on Ground No.1: \"Under the facts and circumstance of the case the Ld. A.O has erred in law and facts in making the addition amounting to Rs. 12,00,000/- on account of unexplained cash deposit u/s. 69 of the I.T. Act, 1961, which is bad in law. Kindly delete the same.\" 10 ITA No. 71/JP/2025 Jugal Kishore Choudhary vs. ITO 1. On perusal of cash flow statement the Ld. A.O. treated explained Rs. 9,00,000/- on account of cash received on 05.07.2010 & Rs. 3,00,000/-received on 23.07.2010 (Rs. 6,00,000/- + Rs. 3,00,000/-). 2. Now the Ld. A.O. treated unexplained income amounting to Rs. 12,00,000/-(i.e. 21,00,000- Rs. 9,00,000) as mentioned on Para No.1 of page No. 6 of 7 of assessment order. 3. Further, we want to draw your attention to the cash flow statement of assessee which was submitted before the Ld. A.O. for your convenience and easy to understand the case. The chart is as follows:- 4. Now the date wise details of total unexplained credit i.e. Rs. 12,00,000/- & its sources are described as follows: A. Explained from opening cash in hand: That during the year under consideration there were opening cash balance available with assessee was Rs. 1,52,100/-. The cash deposit made by assessee amounting to Rs. 2,100/- vide 11 ITA No. 71/JP/2025 Jugal Kishore Choudhary vs. ITO dated 29.06.2010, Rs. 1,25,000/- vide dated 29.06.2010 and Rs. 25,000/- vide dated 24.07.2010 (total deposit Rs. 9,25,000/- out of it Rs. 9,00,000/- treated explained by Ld. A.O.) was from that cash balance available with him during the starting of the year. B. Explained from cash withdrawals from the same bank account:-Assessee had deposited Rs. 2,75,000/- vide dated 26.08.2010 and Rs. 4,50,000/- vide dated 01.09.2010. In this it is submitted that assessee had made withdrawal amounting to Rs. 11,60,000/- vide dated 11.08.2010 and the same can be verifiable from the same bank account statement of assessee submitted before Ld. A.O. So, in the said circumstances it is submitted that the deposit made by assessee amounting to Rs. 2,75,000/- and Rs. 4,50,000/- was out of this withdrawal (i.e. Rs. 11,60,000/-) which is made within less than 20 days of withdrawal. C. Explained from cash withdrawals from the same bank account:-Assessee had deposited Rs. 3,25,000/- vide dated 22.10.2010. In this connection it is submitted that assessee had made withdrawal amounting to Rs. 4,50,000/- on 20.09.2010 which is made within less than 32 days of withdrawal. So, in the said circumstances it is submitted that the deposit made by assessee amounting to Rs. 3,25,000/- was out of withdrawal made on 20.09.2010 (i.e. Rs. 4,50,000/-). In this connection it is stated that there was sufficient cash balance with assessee at the time of cash deposit made by him during the year under consideration and for supporting his contention assessee had already enclosed copy of bank account statement during assessment proceedings which is also self explanatory Further, it is also stated that there was no adverse finding made by Ld. A.O. regarding the cash withdrawals was used/utilized by assessee during the year under consideration. The Ld. Assessing Officer has ignored the withdrawals made by it and has made additions on account of all the credit entries, which is not as per law. Once the Assessing Officer has decided to consider the credit entries in a bank account, he is bound to consider and account for all the withdrawals also. Availability of cash on account of withdrawals by the assessee cannot be disputed, as the same are withdrawn from the same bank account. 12 ITA No. 71/JP/2025 Jugal Kishore Choudhary vs. ITO Moreover, in support of his contention, we are submitting chart of cash flow statement for financial year depicting the individual transactions of deposits and withdrawals. Hon'ble ITAT, Ahmedabad in Sori Nanda kumar Sodhan Vs. JTO in ITA No. 2075/Ahd/2012, \"held that the entries in the bank should not be doubted. Those entries in the banks were in the nature of deposits and withdrawals, which were incorporated in the cash flow statements. The Tribunal held that if the revenue department has not established that the cash available with the assessee was not utilized elsewhere, then on the basis of preponderance of probabilities, it can be assumed that the very cash available with the assessee was re-deposited in the bank.\" Hon'ble ITAT, Ahmedabad, In the case of ITO vs Murlidhar Ice-cream & Sweet Parlour, ITA No. 531/Ahd/2012, \"has held that \"where there are deposit and withdrawal entries into the bank account, it would be presumed that the amount withdrawn was available with the assessee for depositing the same. Therefore, it cannot be concluded that the entire deposits were from unexplained source.\" In view of this, it is clear that the cash withdrawals from the bank account cannot be ignored, while assessing unexplained cash deposits in the bank account. The evidence of withdrawal from the bank account has to accepted as genuine and once the withdrawal is accepted, in view of the decision of Hon'ble Gujarat High Court in the case of CIT vs Shailesh Rasiklal Mehta [2009] 176 TAXMAN 270 (GUJ), there was no question of deposit to the extent of withdrawal of cash, as unexplained. DCIT v. Smt. Veena Awasthi, ITA No. 215/LKW/2016 (ITAT Lucknow) \"Assessing Officer had noted the behavioral pattern of assessee in frequently withdrawing cash then depositing cash again in the bank account irrespective of having sufficient cash with her. He, therefore, added cash deposit made by assessee under the head \"income from undisclosed sources\". It was noted that Assessing Officer nowhere in his order had brought out any material on record to show that assessee was not having an additional source of income other than that disclosed in the return of income nor assessing officer could spell out in his order that cash deposits made by assessee were from some undisclosed source. There is no law in the country which prevents citizens to frequently withdraw and deposit his own money. Documentary evidence furnished clearly clarified that on each occasion at the time of deposit in her bank account, assessee had sufficient availability of cash. Entire transaction of withdrawals and deposits were duly reflected in the 13 ITA No. 71/JP/2025 Jugal Kishore Choudhary vs. ITO bank account of assessee and were verifiable from relevant records. Thus, addition was not justified.\" Sudhirbhai Pravinkant Thaker v. ITO (2017) 88 taxmann.com 382 (ITAT Ahmedabad) \"It was held that where assessee demonstrated that cash was withdrawn and there was no finding by authorities that such cash was invested or utilized for any other purpose, it was not open to authority to make addition on basis that assessee failed to explain sources of deposits.\" In the said circumstances it is submitted that there are arbitrary allegations made by the Ld. A.O. in the assessment order on the basis of which the addition has been made. In view of the above submissions and position of law it is clear that the addition u/s. 69 amounting to Rs. 12,00,000/- on account of unexplained cash deposit is wrong and invalid in the eyes of law and deserves to be deleted. Ground No. 2 General Ground. In case, any further details/clarifications are required, we shall be pleased to provide the same.” 10. To support the contention so raised in the written submission reliance was placed on the following evidence / records : S. No. Particular Page No. 1 Copy of Redrafted grounds of appeal signed by appellant before CIT(Appeals) 1-2 2 Copy of Written submission before CIT(Appeals) 8-10 3 Copy of Acknowledgement of written submission before CIT(Appeals) 11 4 Copy of bank account statement of appellant 12 14 ITA No. 71/JP/2025 Jugal Kishore Choudhary vs. ITO 11. The ld. AR of the assessee in addition to the above written submission so filed vehemently argued that on 25.06.2010 a receipt of Rs. 21,00,000/- reflected and therefrom withdrawal of Rs. 19.50 lacs was made in cash on 06.08.2010 and out of that withdrawal that deposit was made and therefore, the addition made is factually incorrect and thus required to be allowed. 12. Per contra, ld. DR submitted that the assessee has not explained the immediate credit of Rs. 21,00,000/- and that finding is not recorded in the orders of lower authorities and therefore, the matter required to be set aside to verify that source which is reflected in the same bank account. 13. We have heard the rival contentions and perused the material placed on record. The bench noted that the assessee is an individual and he is engaged in RTO agent work. Assessee did not file return of income u/s 139 of the I.T. Act, 1961 as he is not having any taxable income as claimed by him. But at the same time it is also not disputed that the assessee has made huge cash deposit and therefore, the source of that cash deposit as is explained from the bank statement is out of withdrawal but the immediate credit before that withdrawal is not discussed in the assessment order or the assessee could not advance any proof as to the source of that credit and therefore, it is in the interest of justice to both the parties that the 15 ITA No. 71/JP/2025 Jugal Kishore Choudhary vs. ITO immediate credit appearing in the bank account of the assessee on 25.06.2010 is required to be verified as to its taxability of income. So verify the source ld. AO also make an attempt to use the power vested u/s. 133(6) to place on record the correct fact and thereby he may charge the correct income in the hands of the assessee. Considering the overall facts placed before us and records reveals that it would better to restored the matter back to the file of ld. AO who will determine the correct income in the hands of the assessee. At this stage we remand back the issues raised without commenting upon the merits of the case and the ld. AO is directed to complete the assessment as per law. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 03/04/2025. Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 03/04/2025 *Ganesh Kumar, Sr. PS vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. The Appellant- Jugal Kishore Choudhary, Alwar 2. izR;FkhZ@ The Respondent- ITO, Ward 1(2), Alwar 16 ITA No. 71/JP/2025 Jugal Kishore Choudhary vs. ITO 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur 6. xkMZ QkbZy@ Guard File (ITA No. 71/JP/2025) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar "