2018 (12) TMI 1064 - AT - Income Tax

Tribunal allows appeal for cash withdrawals, deems loans unreliable, orders fresh adjudication.

The tribunal allowed the appeal of the assessee for statistical purposes, holding that cash withdrawals were available for deposit and could not be ... Addition of cash deposit as income from an unexplained source - Held that:- CIT(A) rejected the contention of the assessee that the cash was deposited out of the cash withdrawal from the bank without adducing the cogent reasons. The cash withdrawal has not been doubted by the authorities below, and nothing has been brought on records suggesting that the cash withdrawn from the bank has been incurred either as revenue expenses or capital expenses. In the absence of any documentary evidence, we can safely presume that the cash withdrawn from the bank was available with the assessee which was subsequently deposited with the bank. Therefore, we cannot treat the same as undisclosed income of the assessee. As regards the loan from the remaining parties, we note that both of them claimed to have generated agriculture income. But we find that such agriculture income was not declared in the income tax return. It was the duty of the assessee to disclose the agriculture income in return for the purpose of the correct calculation of tax liability under the income tax Act. In view of the said clear provisions in section 4 of the Act Chapter II and section 2 of the Finance Act, 2011, we have no doubt in our mind that agricultural income of an assessee has to be taken into consideration for the purpose of determining rate of tax that is applicable to his income. In the absence of disclosure of agriculture income in the income tax return, we cannot believe that the parties have generated agriculture income. With regards to other documents filed by the assessee in support of the cash loan transactions, we note that all these are internal and self-generated documents. Therefore, we are reluctant to place our reliance on the submission of the assessee. We note that the bank statement is not considered as books of accounts. Therefore, any sum found credited in the bank passbook cannot be treated as an unexplained cash credit. However, we note that the above order was not produced before the authorities below. Therefore, in the interest of justice and fair play we are inclined to restore this matter to the file of AO for fresh adjudication in accordance with the provisions of law and after considering the ratio laid down by the tribunal in the case of Rameshbhai Somabhai Patel (2004 (1) TMI 707 - GUJARAT HIGH COURT). Thus the ground of appeal of the assessee is allowed for statistical purposes. Issues Involved:1. Confirmation of addition of cash deposit amounting to Rs. 12,81,000 as income from an unexplained source.2. Treatment of cash deposits and loans in the bank account as undisclosed income.3. Applicability of Section 68 of the Income Tax Act to the bank account of the assessee.4. Validity of the evidence provided by the assessee to substantiate the source of cash deposits.Issue-wise Detailed Analysis:1. Confirmation of Addition of Cash Deposit Amounting to Rs. 12,81,000 as Income from an Unexplained Source:The primary issue raised by the assessee was that the Commissioner of Income Tax (Appeals) [CIT(A)] erred in confirming the order of the Assessing Officer (AO) by sustaining the addition of cash deposit amounting to Rs. 12,81,000 as income from an unexplained source. The assessee had deposited a total of Rs. 27,71,000 in her bank account, which included several cash deposits on different dates. The AO treated these deposits as undisclosed income due to the lack of documentary evidence provided by the assessee to substantiate the source of the cash deposits.2. Treatment of Cash Deposits and Loans in the Bank Account as Undisclosed Income:The assessee explained that the cash deposits were sourced from cash withdrawals from the bank and loans taken from two individuals, Shri Vajubhai Patel and Shri Bhailal Patel. However, the AO and CIT(A) rejected these claims due to insufficient evidence. The CIT(A) noted discrepancies such as the time gap between cash withdrawals and deposits, lack of agricultural income declaration in income tax returns, and the absence of supporting documents like cash books and details of agricultural land and income.3. Applicability of Section 68 of the Income Tax Act to the Bank Account of the Assessee:The assessee argued that Section 68 of the Income Tax Act, which pertains to unexplained cash credits, should not apply to her case because the bank account is not part of the books of accounts. The assessee relied on the judgment of the Hon’ble High Court of Rajasthan in the case of Aravali Trading Co. and the order of the tribunal in the case of Rameshbhai Somabhai Patel vs. ITO, which held that a bank passbook cannot be considered a book maintained by the assessee under Section 68.4. Validity of the Evidence Provided by the Assessee to Substantiate the Source of Cash Deposits:The assessee provided several documents to support her claim, including cash flow statements, ID and residence proofs, income tax returns of the loan parties, and details of agricultural land and income. However, the CIT(A) found these documents insufficient and self-generated, thus unreliable. The tribunal noted that the agricultural income was not declared in the income tax returns, making it difficult to believe the genuineness of the loans.Tribunal's Findings:The tribunal observed that the CIT(A) did not provide cogent reasons for rejecting the claim that Rs. 31,000 was deposited from cash withdrawals. It was noted that the authorities did not doubt the cash withdrawals, and there was no evidence suggesting that the withdrawn cash was spent elsewhere. Thus, the tribunal concluded that the cash withdrawn was available for deposit and could not be treated as undisclosed income.Regarding the loans from Shri Vajubhai Patel and Shri Bhailal Patel, the tribunal found that the agricultural income was not disclosed in the income tax returns, and the documents provided were self-generated and unreliable. The tribunal also distinguished the facts of the case from the Aravali Trading Co. case, noting that the loans in the present case were received in cash, unlike the cheque transactions in the Aravali Trading Co. case.Conclusion:The tribunal held that the bank statement is not considered part of the books of accounts, and any sum found credited in the bank passbook cannot be treated as an unexplained cash credit. However, since this order was not produced before the authorities below, the tribunal restored the matter to the file of the AO for fresh adjudication in accordance with the provisions of law and the ratio laid down in the case of Rameshbhai Somabhai Patel. The appeal of the assessee was allowed for statistical purposes.