NISHA BHRADWAJ,JAIPUR V. ITO WARD 3 (3), JAIPUR

ITA 617/JPR/2023

AI Insights

The case involves Nisha Bhradwaj, a Central Government employee, who appealed against the order of the CIT(A), National Faceless Appeal Centre, Delhi, which sustained an addition of Rs. 6,00,000 to her income for the assessment year 2017-18 under section 69A read with section 115BBE of the Income Tax Act. The addition was initially made by the Assessing Officer (AO) due to unexplained cash deposits of Rs. 16,65,000 in her bank account during the demonetization period. The CIT(A) partly allowed the appeal, reducing the addition after considering additional evidence submitted by the assessee, but sustained the remaining Rs. 6,00,000 as unexplained. The Tribunal's decision to restore the matter to the AO was based on the need for a thorough examination of the additional evidence and the assessee's lack of opportunity to fully present her case.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 35366 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 06-08-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 04-10-2023
• Other Referred Cases: CIT v. Virgin Securities and Credits P. Ltd, Chandrakant Chanu Bhai Patel, Collector, Land Acquisition Vs Mst. Katiji, CIT Vs. HERSH WASHESHER CHADHA
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANOOP SINGH
• Assessee Lawyers: ANIL KAUSHIK
• Keywords: Business income; Opportunity of being heard; Additional evidence; Unexplained cash credit; Gift; Principle of natural justice; Presumptive income
• Section: 144; 142(1); 143(2); 201; 68; 43; 44AD; 69A; 20

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 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, AM vk;dj vihy la-@ITA. No. 617/JPR/2023 fu/kZkj.k o\"kZ@Assessment Year : 2017-18 Nisha Bhradwaj 56 Riddhi Siddhi Enclave, Jaipur. cuke Vs. The ITO, Ward-3(3), Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ALSPB7918D vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Anil Kaushik (C.A.) jktLo dh vksj ls@ Revenue by : Shri Anoop Singh (Addl.CIT) a lquokbZ dh rkjh[k@ Date of Hearing : 06/08/2024 mn?kks\"k.kk dh rkjh[k@Date of Pronouncement : 04/10/2024 vkns'k@ ORDER PER: DR. S. SEETHALAKSHMI, J.M. This appeal is filed by the assessee aggrieved from the order of the Ld. CIT(A), National Faceless Appeal Centre, Delhi dated 25.08.2023 [Here in after referred as “CIT(A)/NFAC”] for the assessment year 2017- 18, which in turn arise from the order dated 05.11.2019 passed under section 144 of the Income Tax Act, [Here in after referred as “Act” ] by the AO. 2. The assessee has raised following grounds:- ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 2 “1. The Ld. CIT(A) has erred on facts and in law in sustaining the addition to the extent of Rs. 6,00,000/-. 2. The Ld. CIT(A) is highly unjustified upholding the additions made by the Ld. AO to the extent of Rs. 6 lacs under 69A with Section 115BBE. 3. The assessee craves to amend, alter and modify any of the grounds of appeal.” 3. The brief facts of the case are that the assessee has filed her e- return of income on 14.03.2018, vide acknowledgement No. 448131670140318, declaring total income of Rs. 2,44,260/-. The case was selected for Limited scrutiny and notice u/s 143(2) was issued on 21.09.2018, to the assessee on ITBA, which was duly served upon the assessee. Notice u/s 142(1) along with questionnaire was issued to the assessee on 09.02.2019, 24.04.2019 & 29.08.2019, In response to notices, the assessee has not furnished any compliance except to application of adjournment on ITBA. In these circumstances a show cause notice was issued to the assessee on 03.10.2019. On the given date, assessee has not filed any written reply along with supporting details/documents. This shows that assessee is not interested to furnish any evidence/explanation in his support/defence. As the assessment was getting barred by time and sufficient opportunities have already been provided to the assessee, therefore, there is no option left with the Ld. AO but to complete the assessment ex-parte u/s 144 of the I.T. Act. During the year under ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 3 consideration the assessee had deposited total amount of Rs. 16,65,000/- in cash in her saving bank account maintained with Bank of Baroda. 3.1 The AO noted that the assessee has not been able to prove the source of cash deposits in his bank accounts during demonetization of Rs. 16,65,000/- Since, the source of cash deposits of Rs 16,65,000/- has not been explained and no documentary evidences filed till date. The assessee has not responded to notice u/s 142(1) and show cause notices issued during assessment proceedings. The assessee failed to give any explanation about the nature and source of cash deposited amounting to Rs. 16,65,000/-, hence the cash deposits was considered as deemed unexplained money u/s 69A of the I.T. Act, 1961 and added to the total income of the assessee. During the course of proceeding, it has been noticed by the Ld. AO that assessee made transaction for purchase/sale of immovable property for a consideration of Rs. 40,00,000/-. As assessee failed to furnished the necessary evidence with regard to transaction of purchase/sale of the property i.e. plot no. 45, Shakuntlam, Tilawala, Jagatpura, Sangener, Jaipur. It is not ascertained that assessee has purchased or sold the property if purchased the property assessee has failed to prove the source of investment and if sale the property assessee has failed to pay the capital gain tax as arise on the transaction. Therefore transaction made by the assessee was treated an unexplained transaction ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 4 and added to the total income of the assessee on account of undisclosed income. 4. Being aggrieved, from the said order of assessment, the assessee has filed an appeal before the Ld. CIT(A). The ld. CIT(A) after hearing the contention of the assessee partly allowed the appeal of the assessee by giving following findings on the issue:- “7.1 The statement of facts, ground of appeal and the submissions filed by the appellant have been perused, It is noted that the Assessing Officer has not submitted the remand report after considering the additional evidences submitted by the appellant and has not commented on on the issue of admissibility of additional evidences nor commented on the merits of the claims made by the appellant. It is noted that the remand report was requisitioned from the AO through ITBA portal by NFAC on 23/11/2022 after forwarding all such additional evidences and claims of the appellant to the AO. Despite 2 reminders dated 20/12/2022 and 4/7/2023 issued to the AO through ITBA, there has been no response from the Assessing Officer. As more than 9 months have elapsed, the appeal is being decided based on available details filed by the appellant, without further waiting for the remand report, as under :- 7.2 Regarding the admissibility of additional evidences under Rule 46A, the appellant has submitted that the assessee could not attend the proceedings due to her ill health, as such the assessee could not avail the opportunity to produce any documents or records to defend her case, hence for the sake of natural justice, she has requested to allow/admit certain documents as additional evidences in terms of Rule 46A of the Income Tax Rules, which are vital to support the grounds of appeal taken in the appeal. The appellant has also claimed that the relevant details had been handed over to the Authorised Representative, who could not submit these details timely before the Assessing Officer. The appellant has claimed that the additional evidences are crucial and its consideration and appraisal would render ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 5 the substantial justice to the appellant and has placed reliance on certain decisions viz. The Hon'ble Delhi High Court's judgment in the case of CIT v. Virgin Securities andCredits P. Ltd (2011) 332 ITR 396 (Del), Hon'ble Delhi High Court's judgment in the case of ChandrakantChanu Bhai Patel 202 Taxman 262 and decision of the Hon'ble Supreme Court in the case of Collector, Land AcquisitionVs Mst. Katiji [ 1987 (2) TMI 61 SUPREME COURT). The said claims have been perused. The reasons given by the appellant for non submission of these details before AO appear reasonable and further the additional evidences being submitted now are found to very relevant for deciding the impugned issues raised in this appeal. Hence, these additional evidences being filed by the appellant are being admitted as per Rule 46A, in the interest of natural justice. 7.3 Ground 1 of appeal is disputing the assessment order passed u/s 144 of the Income Tax Act. However, on perusal of the assessment order, it is noted that the AO had issued notices u/s 142(1) of the Act along with questionnaire on 3 different dates, which were not complied by the appellant, as stated in para 1 of the assessment order. In such circumstances, the Assessing Officer was justified in completing the assessment as per the provisions of section 144 of the Act. Accordingly, Ground 1 of appeal is dismissed. 7.4 In Grounds 2 and 3, the appellant has disputed the addition of Rs 16.65 Lakh made by the AO. No clarification could be submitted by the appellant with respect to these cash deposits during the course of assessment proceedings, and as a result there was no option on in the part of of the AO but to treat these cash deposits as unexplained money u/s 69A rw.s. 1.158BE of the Act. In her submissions made by the appellant before NFAC, the following, cash deposit sources have been claimed by the appellant. No cash flow statement or working of peak has however been submitted by the appellant. Sl. No. Particulars Amount in Rs. Comments on the evidences submitted by the appellant before NFAC 1. Cash withdrawn from bank of Baroda, Jagatpura, Jaipur during FY 2016- 17 1097800 The appellant has submitted that it has withdrawals to the extent of Rs.10,97,800/- account in this bank account to partly explain the impugned cash deposits of Rs. 16,65,000/- In this regard, the appellant has submitted a copy of bank statement and bank account ledger of withdrawals and deposits. However, it is noted that ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 6 while a big cash withdrawal of Rs 10 Lakh has been made from this bank account on 30/7/2016, the same cannot explain the earlier cash amounts. 2. Cash withdrawn from Post office SB Account being salary account during FY 2016-17 942000 of Rs 3 Lakh deposited in this bank account on 20 May, Rs 2.5 Lakh on 21st May, 1.5 Lakh on 21st May and 1 Lakh on 30 th May. Hence these bigger deposits in her bank account totalling to Rs. 8 Lakh cannot be said to be explained by the prior cash withdrawal from this bank account. Also, it is noted there is no cash withdrawal before this date in this Bank of Baroda, Jagatpura branch. The cash withdrawals from Post office SB account stated in the row below is around Rs.78,000/- before the 23 May 2016, which can only be said to be sufficient to cover the prior cash deposits in Bank of Baroda, Jagatpura Bank account of Rs.71,000/- deposited before these 8 lakh cash were deposited during May end as narrated above. However, this subsequent cash withdrawl of Rs. 10 Lakh on 30/7/2016 from this Bank of Baroda, Jagatpura branch would be sufficient to explain the further cash deposits subsequently made in this bank account of Bank of Baroda of around 7.95 Lakh. Thus seen, a peak of approximately Rs 8 Lakh of such unexplained cash deposits has been so obtained, which cannot be explained by means of cash withdrawals of either the Bank of Baroda, Jagatpura bank account or Post office SB account, whose subsequent withdrawals are after from June to March and covers a major cash ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 7 withdrawal on 3/11/2016. 4. Cash generated from sale of car 545000 On further perusal of details filed by the appellant, it is noted that the appellant has submitted copy of agreement to sell of her car RJ-14-CW- 5928, signed apparently by her, buyer CON Shri Arun Kr, Jain and witness Mr. Pawan Kumar at Jaipur on 28th May 2020 along with vehicle transfer documents etc.. against which Rs 3,60,000/- has been received on 28/5/2016 and balance amount of 1.85 Lakh has been received by cheque. Thus, as pointed out earlier the cash amounts of Rs 3 Lakh deposited in this bank account on 20 May, Rs 2.5 Lakh on 21st May, Rs. 1.5 Lakh on 21st May cannot be explained by this cash receipt of Rs. 3,60,000/- which is only sufficient to explain the last unexplained cash deposit of Rs 1 Lakh deposited on 30th May. As discussed earlier, Rs 1 Lakh received from bank account of appellant's mother as evidenced from details submitted can be said to partly explain the cash deposit of Rs 3 Lakh made on 20th May. Thus seen, out of Rs 8 Lakh of peak unexplained cash deposit pointed out in Row number 1 above, a total of Rs 2 Lakh (Rs.1 lakh from gift and 1 lakh from sale of car) can be said to be explained from such sources. The balance amount of Rs 6 Lakh is still unexplained. 5. Cash deposited by husband of the assessee being his sale consideration 705670 The appellant has submitted the Copy of ITR of Shri Pawan Kumar- husband of assessee for A.Y. 2017-18, and she has claimed Shri Pawan Kumar was not having any other bank account with ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 8 any bank during FY 2016-17, the assessee Smt. Nisha Bhardwaj was having the said bank account with Bank of Baroda, Jagatpura Jaipur jointly with her husband Shri Pawan Kumar, the husband of the assessee has filed his income tax return for the AY 2017-18 showing profit and gains by opting under presumptive taxation scheme u/s 44AD ofthe Income tax act, declaring a turnover of Rs.705670/- on which net profit has been declared by him, the turnover of Shri PawanKumar during the FY 2016-17 amounting to Rs.705670/- has also been the source of deposit of cash in the said bank account with Bank of Baroda, Jagatpura Jaipur. This claim of the appellant is not sufficient to discharge her onus, since the total turnover of her husband for entire year is Rs 7,05,670/- and after incurring expenses for the complete year, for which no details are available, the income of entire year is Rs 3,48,174/- The cash deposits made in May of Rs 6 Lakh, which are still unexplained cannot be said to be derived from the business the husband of the appellant in such of circumstances. Also, the appellant has not proved that she as a Government official has received salary in cash. Hence her salary received earlier cannot be said top be sufficient to explain such peak unexplained cash deposits of Rs 6 Lakh in May 2016 in her bank account stated above. Also, due INCO//consideration for necessary drawings for necessary expenses by both the appellant and her husband needs to be given and hence the complete cash withdrawals cannot be ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 9 said to be fully available for re-deposits in the bank account. Total cash generated 3590470 Thus, it is seen that the appellant could not furnish sufficient proof to justify the source of such peak cash deposits of Rs 6 lakh in her bank account derived in the manner discussed in above rows. The appellant has pointed out in Ground 3 that withdrawals made from the bank accounts should be treated as available for making cash deposits in the same bank account and that addition of only the peak amount may be sustained. However, despite sufficient opportunity granted by the NFAC, the appellant did not submit any working of such peak amounts and cash flow statements. While, due consideration for necessary drawings for necessary expenses by both the appellant and her husband needs to be given and hence the complete cash withdrawals cannot be said to be fully available for re- deposits in the bank account, however on a conservative basis, based on details submitted by the appellant, peak amount of cash deposits has been worked out, which cannot be explained out of the earlier cash withdrawals at all. This amount of Rs.6,00,000/- is clearly taxable as unexplained money under the provisions of section 69A. Further, the provisions of Section 115BBE are squarely applicable to the case of the appellant and it is held that the said provisions have been correctly applied by the Assessing Officer. Hence the addition made by the Assessing Officer u/s 69A r.w.s 115 BBE is sustained to the extent of Rs.6,00,000/- Accordingly, Grounds 2 and 3 are being treated as partly allowed. 7.5 In Ground 4, the appellant has disputed the addition of Rs.40,00,000/- made as unexplained income by the AO as the appellant had made transaction of purchase of immovable property, whose source of investment details were not submitted by the appellant despite reminders. On perusal of evidences furnished by the appellant, it is noted that the appellant had purchased a residential house property situated at 45, Shankutlam, Tilawal, Jagatpura, Jaipur vide registered sale deed dated 02/06/2016 for a sum of Rs.40.00 lacs from one Shri Satish Agrawal HUF (copy of registered sale deed has been enclosed). The appellant has claimed that the payments forpurchase of the said house property, as evidenced in the registered sale deed is as under: S. No. Particulars Amount paid ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 10 1. Cash paid on 20.05.2016 11000 2. RTGS on 20.05.2016 from Bank of Baroda, Jagatpura Jaipur account 300000 3. RTGS on 21.05.2016 from Bank of Baroda, Jagatpura Jaipur account. 250000 4. RTGS on 01.06.2016 from Bank of Baroda, Jagatpura Jaipur account. 239000 5. Housing Loan AVAILED from Union Bank of India, MI Road Branch Jaipur, direct payment made by Bank to Seller on 01/06/2016 vide Cheque/PO/DD No.759361, as clearly mentioned in the registered sale deed. 3200000 Total 40,00,000 The appellant has also enclosed copy of sanction letter from Union Bank of India, M.I.Road Branch Jaipur where a total sum of Rs.39.40 lacs was sanctioned by the bank for purchase of the house property situated at 45, Shakuntlam, Tilawala, Jagatpura, Jaipur out of which it has been claimed that the appellant had availed a sum of Rs.32.00 lacs only for purchase of the said house property and has referred to the registered sale deed where Rs.32.00 lacs, has been received from Union Bank of India. On perusal of details filed by the appellant, the claims are found to be prima- facie correct based on documents submitted by the appellant. The bank account in Bank of Baroda, Jagatpura Branch has already been discussed in paragraphs above, while dealing with grounds 2 and 3. Hence based on details submitted by the appellant, this Ground 4 filed by the appellant is allowed and the Assessing Officer is directed to delete this addition of Rs 40 Lakhs made as unexplained income.” 5. Aggrieved from the order of the ld. CIT(A) the assessee has preferred this appeal before us on the grounds as reiterated in para 2 above. In support of the grounds of appeal the ld. AR of the assessee has relied upon the following written submission:- ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 11 “1. The appellant Smt. Nisha Bhardwaj is a Central Government Employee, working as Accounts Officer in the O/o of Controller of Communication Accounts at Ahemdabad. 2. The appellant has got a joint saving bank account with her husband Shri Pawan Kumar in Bank of Baroda, Jagatpura Jaipur during the previous year 2016-17, in which a sum of Rs.16.65 lacs was deposited in cash, which was considered as deposit from unexplained sources u/s69A in the ex-parte assessment order passed u/s 144 by the Ld. ITO Ward 3(3), Jaipur and demand has been raised by applying provisions of section 115BBE of the Income tax act. 3. Out of the total addition of Rs.16.65 lacs made by the Ld. AO, being cash deposited in the above said joint bank account of the appellant, the learned CIT-A has allowed a relief of Rs. 10.65 lacs, however sustained the additions of Rs. 6 lacs, against which the appellant has preferred this appeal before your honors. (Copy of the Order of ITO Ward 3(3) Jaipur is at Page No. 47- 53 of the Paper Book) (Copy of Order of CIT-A-at Page No. 25-46 of Paper Book) 4. GOA 1 1. The Ld. CIT(A) has erred on facts and in law in sustaining the addition to the extent of Rs.6,00,000/- (Copy of Form36- Page No. 3-5 of the Paper Book) Our Humble Submission on above GOA-1 a) During the year 2016-17 besides the Opening Balance total cash was generated Rs 3590670/- out of which Rs.1665000 was deposited by her in her above SB Account, details of which were submitted to the Ld. CIT-A as reproduced by him in his Order (Page No. 34-35 of Paper Book- Para 5.2 and Page no. 10 & 11 of the Appellate Order), which has not been disputed by the Ld. CIT-A. b) The appellant had explained the details of cash generated during the financial year 2016-17 before the Ld. CIT-A vide a detailed \"Written Submission (Available at Page No. 11 to 24 of the paper book), which was summarized as below (Page No. 19 of the paper Book) “To summarize above, a total sum of RS.3590470 has been generated by the assessee as gross cash, during financial year 2016- 17 as per details given in the table below: S. No. Particulars Amount in Rs. 1. Cash withdrawn from Bank of Baroda, 1097800 Jagatpura Jaipur during FY 2016-17 1097800 2. Cash withdrawn from Post office SB Account being 942000 ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 12 Salary account during FY 2016-17 3. Gift received from Mother in law Smt. 300000 Kamla Devi as evidenced by Gift deed etc. 300000 4. Cash generated from Sale of Car 545000 5. Cash deposited by husband of the assessee being his sale consideration 705670 Total Cash generated 3590470 Besides above the assessee was also having cash in hand with her as on 01/04/2016, which was also used by the assessee to deposit the amount in the bank account. It is clear from the above table and the documents, papers being submitted herewith for your kind perusal that the assessee has the valid source of cash deposited amounting to Rs.16.65 lacs during the FY 2016-17 in her SB account with Bank of Baroda, Jagatpura Jaipur as such the order of the learned AO based on INCORRECT WRONG AND NON-EXISTING FACTS needs to be quashed.\" c) Thus the appellant had explained the source of cash deposited in the said bank before the Ld. CIT-A in consolidated way for the whole year as above, as the appellant being a salaried individual, is not required to maintain regular books of account, hence no cash book or cash flow statement was prepared. d) Despite that the appellant had not submitted any day wise cash flow statement, the Ld. CIT-A, has analyzed the source of cash day wise as explained the by the appellant, vide a table appended below point 7.4 of his order (Page No 41-43 of the paper book), and concluded at the Point 4 of the table as below: “……….As pointed out earlier, the cash amount of Rs. 3 lacs deposited on in this bank on 20th May, Rs. 2.50 lacs on 21.5.2016 and 1.50 on 21tt May can not be explained by this cash receipt of Rs. 360000 which is only sufficient to explain the last unexplained cash deposit of Rs 1 lac deposited on 30th May. As discussed earlier, Rs 1 lakh received from bank account of appellant's mother** as evidenced from details submitted can be said to partly explain the cash deposit of Rs. 3 lacs made on 20th May. Thus seen out of Rs. 8 lacs of peak unexplained cash deposit pointed out in row number 1 above, a total of Rs. 2 lakh (Rs. 1 lakh from Gift and 1 lakh from sale of car) can be said to explained from such sources. The balance amount of Rs. 6 lakh is still unexplained.” e) There has crept in certain Typographical Errors, marked with asterisk (*) in the above Para of the Order of the Ld. CIT-A, which needs to read as below: *Actual date should be 26.5.2016 instead of 21st May as per bank Statement (Page Number 59 of the paper Book) **Actual word should be Mother in Law instead of Mother, as per Gift Deed (page Number69 of the Paper BOOK) f) Thus, the Ld. CIT-A sustained the additions of Rs. 6 lacs by not accepting explanation of the source of deposits as made by the appellant in her Bank account with Bank of Baroda from 20.05.2016 to 30.05.2016 mainly for the reason that the Ld. ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 13 CIT- (A) did the analysis of the explanation of the assessee which is erroneous, for the reasons:  Cash receipt from Gift from mother in law is partly considered as source of the deposit.  Not considering any deposit made by the appellant's husband during the year ignoring the fact that he is a small business man, having no other bank account for banking except the said bank account joint held with the appellant.  The Id. CIT-A did day wise analysis of availability of cash, which is not possible without having any day wise cash flow statement, particularly having not considering any opening cash balance on 1.4.2016 is unjustified, despite that the appellant specifically explained that besides cash generated of Rs.3590470/- during the year 2016-17 there was cash in hand as on 1.4.2016 with her also. g) Thus the Ld. CIT-A is not justified in sustaining the additions of Rs. 6lacs, being very humbly submitted as below: (i) Rs. 3.00 lacs Deposited on 20.5.2016 (Bank Statement: Page No. 59 of Paper Book): The appellant had received a sum of Rs. 3 lacs as gift from her mother in law Smt Kamla Devi on 20.5.2016. The appellant submitted copy of the Gift Deed (Page No. 69 of Paper Book), Copy of her Mother in law's ITR, Copy of her mother in law's Bank Statement as submitted with the Written Submission before the Ld. CIT Α. The Ld. CIT-A referred the above gift deed in his order at clause no. iv of his order at page no. 4 (Page no. 28 of the Paper Book), however, while examining the source of deposit of Rs. 3 lacs on 20.5.2016 in his Order at page 18 (Page no 42 of Paper Book) he observed as below: \"As discussed earlier, Rs. 1 lacs received from bank account of appellant's mother as evidenced from details submitted can be said to partly explain the cash deposit of Rs. lacs made on 20 May, thus seen out of Rs. 8 lacs of peak unexplained cash deposit pointed out in row number 1 above, a total of Rs. 2 lakh (Rs. 1 lakh from Gift and 1 lakh from sale of car) can be said to explained from such sources. The balance amount of Rs 6 lakh is still unexplained...\" Apparently, the Ld. CIT-A has allowed only Rs. 1 lac out of the Gift of Rs. 3 lacs received by the appellant on 20.5.2016 as above, and thus sustained the addition of Rs. 2 lacs, ignoring the supporting documents such as Gift Deed, Bank Account of the Donor, ITR Copy of the Donor produced before him to prove the credit worthiness of the Donor. The appellant thus discharged the primary onus to establish the identity and creditworthiness of the concerned donors as well as the genuineness of the relevant transaction. Hence the action of Ld. CIT-A of considering only Rs.1 lac out of Rs. 3 lac as source of cash deposit from Gift received by the assessee without bringing on record any ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 14 material or evidence to disprove or dislodge the claim of the appellant, is not justified and is not tenable in law. To substantiate this ground an affidavit of Smt. Kamla Devi has also been produced at the time of hearing of this case on 1.8.2024, before your honors, that may kindly be taken on record and be admitted as additional evidence by your honors. Reliance is placed on the decision of the Honorable Kolkata ITAT in the Case of Tapsi Singh Vs. ITO-Ward 2(3) Burdwan in I.T.A. No. 491/Kol/2020, Assessment Year: 2004-05, It was held as below: \"5. I have heard the arguments of both the sides and also perused the relevant material available on record. It is observed that all the four donors who had given the gifts in question to the assessee during the year under consideration were engaged in the business and in the returns of income filed regularly for the year under consideration, the business income earned by them was duly declared as is evident from the photocopies of their IT return acknowledgement placed at page no. 32 & 33 of the Paper Book. Moreover all the gifts in question were given to the assessee by the four donors by account payee cheques and their declarations confirming the gifts given to the assessee were also furnished on record giving all the relevant particulars including the Permanent Account Number of the donors. As rightly contended by the learned counsel for the assessee, the primary onus to establish the identity and creditworthiness of the concerned donors as well as the genuineness of the relevant transactions involving gifts thus was duly discharged by the assessee by producing the relevant documentary evidence and without bringing on record any material or evidence to disprove or dislodge the claim of the assessee, the authorities below, in my opinion, were not justified in treating the gifts received by the assessee as unexplained cash credit u/s 68 merely on the basis of doubts and suspicion. I, therefore, delete the addition of Rs. 4,00,000/- made by the AO and confirmed by the Ld. CIT(A) u/s 68 and allow this appeal of the assessee.” Rs. 2.50 lacs Deposited on 21.5.2016 (Out of Rs. 705670- being sale proceeds deposited by husband of the assessee during the year). Kindly Refer Page No. 59 (Bank Statement) of Paper Book and Page No. 43 (Order of CIT-A) of Paper Book: It was very humbly explained to the Ld. CIT-A, that the saving bank account with Bank of Baroda in which the cash of Rs. 16.65 deposited during the financial 2016-17 is a joint account of the assessee and her husband Shri Pawan Kumar and cash has also been deposited by her husband Shri Pawan Kumar in that account who is a small businessman, since he does not have any other bank account, hence has used to deposit his cash sale proceeds and savings, in the said bank account. However the Ld. CIT-A has not accepted the same and observed as below: \"5. Cash deposited by husband of the assessee being his sale consideration Rs. 705670- ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 15 ……….This claim of the appellant is not sufficient to discharge her onus, since the total turnover of her husband for entire year is 705670/- and after incurring expenses for the complete year, for which no details are available, the income of entire year is Rs. 348174/-, the cash deposits made in May of Rs. 6 lacs which are still unexplained, can not be said to be derived from the business of the husband of the appellant in such circumstances.........” The Ld. CIT-A 's above observation is erroneous as regards depositing Rs. 6.00 lacs in the month of May.2016, the appellant has never claimed that, the explanation was only that during the financial year 2016-17, the cash sale proceeds of appellants' husband were also deposited in the said bank account, as appellant's husband is the joint account holder of the said bank account and he does not have any other bank account for himself, as such the appellant's husband had no other option of banking. The Ld. CIT-A is highly unjustified in not accepting a single penny as deposited by appellant's husband in the said bank account despite accepting that he had turnover of Rs. 705670, and earned a profit of Rs. 348174/-, on the basis of the ITR of the appellant's husband produced by the appellant before him. The appellant had submitted copy of the ITRs of Shri Pawan Kumar for last 4 years- for the assessment year 2014-15 to 2017-18, in support of the sale done by Shri Pawan Kumar. It is also undisputed fact that Shri Pawan Kumar husband of the appellant is joint account holder in the bank account of the appellant in which cash has been deposited, and there is no other bank account Sh. Pawan Kumar holds, as such the cash sale amount can not be deposited elsewhere. Shri Pawan Kumar Deposited a sum of Rs. 250000 in the said bank account on 21.5.2016 out of the sale proceeds as reflected in the Cash Flow Statement drawn available Page No. 54 to 57 of the Paper Book. Thus the appellant has proved the credit worthiness and circumstances under which cash has been deposited by Shri Pawan Kumar in the joint bank account with the Appellant. For the proposition that when the assessee's explanation is prima facie reasonable then it cannot be rejected merely on suspicion. Thus the contention of the Ld. CIT A behind not accepting a single penny deposited by the husband of the appellant in said bank account in May 2016 is highly unfair and unjustified in the given circumstances. To further substantiate the deposit of Rs. 2.50 lacs on 21.5.2016 by the appellant's husband Shri Pawan Kumar a copy of Affidavit of Shri Pawan Kumar has already been submitted before the Hon'ble Bench during the hearing in this case on 1.8.2024, it is very humbly submitted and prayed before your honors that the same kindly be accepted and be admitted in support the grounds of appeal hereby. (ⅲ) Rs. 1.50 lacs Deposited on 26.5.2016 Kindly Refer Page No. 59 (Bank Statement) of Paper Book and Page No. 54 (Cash Flow Statement) of the Paper Book: The assessee, has drawn a \"Cash Flow Statement for the Period from 1.4.2016 to 31.3.2017\", based on the necessary document and details already submitted before the Id. CIT-A, according to which there was an opening Balance of Rs.170120/- on 1.4.2016 (Copy of Cash Flow Statement drawn is available at Page No.54-57 of Paper ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 16 Book). The opening balance is brought forward from previous year out of cash withdrawals and savings of the appellant, which is not excessive as the closing balance of cash as on 31.3.2017 is also Rs. 181420/- which in line with the opening cash balance. Out of Rs. 170120 being cash balance as on 1.4.16, Rs. 60000 was withdrawn on 14.3.16 from her saving bank account with Post Office (Page No. 70 to 74 of Paper Book). On perusal of the cash flow statement, it is quite obvious that the appellant had deposited Rs. 1.50 lacs on 26.5.2016 from the available cash in hand on that date. h) Thus the amount deposited during 20.5.16 to 30.5.2016 is from well explained sources as above, and summarized as below\" Cash In Hand on 1.4.2016 Rs. 170120 Cash Gift from Mother In law on 20.5.2016 Rs. 200000 (Total gift received Rs.3.00 lacs, already considered by Ld CIT Appeals Rs.1.00 lakh) Cash Deposited by husband from cash sales on 21.5.2016 Rs. 250000 Total Rs. 620120 5. GOA-2 The Ld. CIT(A) is highly unjustified upholding the additions made by the Ld. AO to the extent of Rs. 6 lacs under 69A with section 115BBE (Copy of Form36- Page No. 3-5 of the Paper Book) The Ld. CIT-A is not justified in sustaining the additions u/s 69A r.w.s 115BBE, as the appellant is a central government employee, and is not having income from any such source during financial year 2016-17, for which she is required to maintain regular books of accounts, since provisions of section 69A can be applied only when the proposed addition is out of unexplained money which is not recorded in the books of account, hence no additions could be sustained u/s 69A in the present case. The relevant provisions of section 69A reads as below: \"Unexplained money, etc. 69A. Where in any financial year the assessee is found to be the owner of any money, bullion jewellery or other valuable article and such money, bullion, jewellery or valuable article is 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 acquisition of the money, bullion jewellery or other valuable article, or the explanation offered by him is not in the opinion of the Assessing Officer, satisfactory, the money and the value of the bullion jewellery or other valuable article may be deemed to be the income of the assessee for such financial year.\" Reliance is placed on the recent Judgment of the Honorable Delhi High Court in the case of CIT Vs. HERSH WASHESHER CHADHA (LT.A. 676 of 2023) dated 21.12.2023 reported in [2023] 201 TAXLOK.COM (IT) 163 (DEL),[2024] 336 CTR 1 (DEL). [2024] 297 TAXMAN 471 (DEL) where in the Court observed that: ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 17 “ It appears to us prima facie that the expression \"if any\" specifically used in Section 69A of the Act amplifies that where books of account are not maintained, it would not be possible to invoke this provision. (Copy the Judgment is enclosed hereto) Moreover in the present case the appellant has provided sufficient explanation to Ld. CIT-A regarding source of cash deposit, as such rigorous of section 69A r.w.s. 115BBE are certainly not attracted in the present case. In view of above, your honor is very humbly prayed to kindly allow the appeal in toto and oblige.” 6. The ld. AR for the assessee also submitted affidavit to support the contention, which reads as under:- “I KAMLA DEVI W/O LATE SHRI RAJENDRA KUMAR AGE ABOUT 61 YEARS, HAVING AADHAR NO. 919108702968 AND PAN NO AFJPD5133K R/o HOUSE NO. 56, RIDDHI SIDDHI ENCLAVE, NEAR GYAN VIHAR UNIVERSITY JAGATPURA-302025 AND HAVING PERMANENT ADDRESS 1033/24, BHATNAGAR COLONY, ROHTAK ROAD JIND, HARYANA do hereby declare as under: 1. that I am filing my return regularly since last almost more than 20 years and earning income from Commission from post office for bringing deposits in Post Office Schemes, in a regular way. 2. I have got my SON Shri Pawan Kumar whose marriage ceremony took place on 07/02/2007 with NISHA BHARDWAJ as such Smt. Nisha Bhardwaj is my Daughter in Law since then. 3. That my Daughter in Law Smt. Nisha Bhardwaj is a Central Government Employee and presently working as Accounts Officer O/O Controller of Communication Accounts. Khanpur, at AHEMDABAD. 4. That I hereby confirmed that I had made GIFT of Rs. 3.00 lacs to my daughter in law Sm. Nisha Bhardwaj on 20.05.2016, the said amount was given to her by me in cash. 5. That the said gift was made by me out of my own fund and out of may love and affection towards my daughter in law Smt. Nisha Bhardwaj and of course of son also as they were going to purchase a residential house for their own purpose. ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 18 6. That I further hereby confirmed that I had executed the Gift deed on 20.05.2016 in favour of my daughter in law Smt. Nisha Bhardwaj in fron of two withness. 7. I hereby further confirm that from 20.05.2016, I have no right, title or interest whatsoever in the said gift or any income their from which would be absolutely belong to Smt. Nisha Bhardwaj.” 7. The ld. AR for the assessee also filed an another affidavit in furtherance to the contention which reads as under:- “I Pawan Kumar So Late Shri Rajendra Kumar age about 40 years, having PAN No. AREPK9059J R/o House No. 59 Riddhi Siddhi Enclave, Near Gyan Vihar University, Jagatpura-302025, do hereby declare as under:- 1. That I am filing my return regularly since last almost more than 12 years and earning income from Business, present from Civil Construction work and Commission and other income. 2. That during Financial Year 2016-17 I was maintaining a SB Account with my wife Smt. Nisha Bhardwaj, in joint name, bearing account number 31470100002725 with Bank of Baroda, Jagatpura Branch Jaipur and I use to deposit my savings in the said account, as and when required. 3. That during Financial Year 2016-17 I was not having any other bank account in any other bank, the said bank account was also given by me in my income tax return for AY 2017-18. 4. That I had deposited a sum of Rs. 250000 in the said bank account on 21.05.2016 which was from my old savings and earning during the Financial Year 2016-17 and the said amount belonged to me which I had deposited in the said bank account, as the said bank account was in joint name with my wife Smt. Nisha Bhardwaj and I was not having any other bank account during FY 2016-17. 5. I hereby again confirm that the said amount i.e. Rs. 250000 as deposited by me in BOB, Jagatpura Branch, Jaipur was absolutely belonged to me and the amount was deposited by me.” ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 19 8. To support the various contention so raised by the ld. AR of the assessee in the written submission, he also relied upon the following evidences:- S. No. Particulars of Statement/document/order Page No. 1. Acknowledgement of ITAT appeal filed. 1-2 2. Memorandum of appeal in Form 36 3-5 3. Grounds of appeal filed before the Hon’ble ITAT 6-6 4. Appeal before CIT-A in form 35 with grounds of appeal filed before the CIT Appeals, jaipur. 7-10 5. Witten submission filed with CIT Appeals (first Appellate Authority) 11-24 6. Orders of CIT Appeals Jaipur (first Appellate Authority) 25-46 7. Copy of order of the Assessing Officer u/s 144 47-53 8. Cash flow statement as extracted by the assessee for 1.4.2016 to 31.3.2017 54-57 9. Copy of bank of Baroda, Jagatpur Branch, statement from 1.4.2016 to 31.3.2017. 58-68 10. Copy of Gift deed of Smt. Kamla Devi 69-69 11. Copy of post office statement of the assessee for the period from 1.4.2016 to 31.3.2017 70-74 12. Copy of ITRs of Shri Pawan Kumar Husband of assessee 75-87 13. Copy of challan of Rs. 10000/- being appeal fee deposited 88-89 14. POA in favour of CA Anil Kaushik/CA Rajeev Agarwal 90-90 9. During the course of hearing, the ld. AR for the assessee prayed that the Ld. AO has passed the ex-parte order and the assessee was not provided adequate opportunity of being heard due to her ill health. Therefore, she filed additional evidence before the Ld. CIT(A) who has considering the merits of the arguments admitted the additional evidence and has given part relief to the assessee. The only addition sustained and disputed before us by the assessee is addition of Rs. 6 lac which in the opinion of Ld. CIT(A) remained unexplained as the assessee could not sufficiently proved the money sources from her husband. Thus, the ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 20 assessee may be provided one more opportunity to advance his arguments/submissions before the ld. AO on merits. In the interest of equity and natural justice the assessee praying for the one chance before the ld. AO to advance the argument on the merits of the case addition sustained. 10. Per contra, ld. DR submitted that Ld. CIT(A) has applied peak credit and considered the merits of the case and has allowed substantial relief to the assessee. As the assessee could not support the source for Rs. 6 lac the same was sustained by Ld. CIT(A). 11. We have heard both the parties and perused the materials available on record. The bench noted from the submission made by the Ld. AR for the assessee that the assessee’s case is adjudicated as an ex-parte before the Ld. AO. The Ld. AR for the assessee stated that before Ld. CIT(A) filed additional evidence under Rule 46A of the Income Tax Rules but the Ld. CIT(A) has not considered the same in full has sustained the addition of Rs. 6 lac. For this addition, we note from the submission of Ld. AR for the assessee, that the assessee had joint account with her husband and on perusal of the cash flow statement placed on record it is quite evident ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 21 that the assessee deposited Rs. 1,50,000/- on 26.05.2016. The source is that amount was from available cash in hand on that date. On perusing documents filed that the evidences of cash flow statement for the period 01.04.2016 to 31.03.2017 which has been submitted before the ld. CIT(A) also as an additional evidence. On perusal, we note that there was opening balance of Rs. 1,70,120/- as on 01.04.2016. Further, ld. AR for the assessee submitted that the opening balance is brought forward from the previous year out of cash withdrawal and saving of the assessee which is not excessive of the closing balance of cash as on 31.03.2017. We also note from the above submissions of Ld. AR for the assessee that to support that contention he filed an affidavit in support of the arguments that during financial year 2016-17 the assessee was not having any other bank account in any other bank. The said bank account details were also given by her in the Income Tax Return filed for the A.Y. 2017-18. Thus, looking to these aspect of the matter which is supported by an affidavit, the Bench feels that the assessee could not advance their arguments / submissions on this issue for which while sustaining the addition Ld. CIT(A) has also not given sufficient opportunity to the assessee, therefore, with limited direction to verify the source of Rs. 6 lac addition sustained by the Ld. CIT(A), we restore the issue to the file of ITA No. 617/JPR/2023 Nisha Bhradwaj vs. ITO 22 jurisdictional Assessing Officer who will verify the issue based on the submission filed before us and decided the issue in accordance with law. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 04/10/2024. Sd/- Sd/- ¼ jkBkSM+ deys'k t;UrHkkbZ ½ ¼MkWa-,l-lhrky{eh½ (RATHOD KAMLESH JAYANTBHAI) (Dr. S. Seethalakshmi) ys[kk lnL; @Accountant Member U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 04/10/2024 *Santosh vkns'k dh izfrfyfi vxzsf’kr@Copy of the order forwarded to: 1. vihykFkhZ@The Appellant- Nisha Bhradwaj, Jaipur. 2. izR;FkhZ@ The Respondent- ITO, Ward-3(3), 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 { ITA No. 617/JPR/2023} vkns'kkuqlkj@ By order lgk;d iathdkj@Asst. Registrar "