TaxTMI 
TaxTMI 
2018 (2) TMI 596
X X X X Extracts X X X X
X X X X Extracts X X X X
.... cash deposited in bank account. 4. Facts of the case in brief are that the assessee filed the return of income on 17.09.2011 declaring an income of Rs. 22,62,889/- which was processed u/s 143(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act) on the returned income. Later on, the case was selected for scrutiny. The AO during the course of assessment proceedings noticed that the assessee was not having any regular source of income and had earned income from short term capital gain on sale of immovable properties. He further observed that an AIR information was received, which revealed that the assessee had made cash deposits in the bank A/c No. 6350 and 3284 maintained with ICICI Bank amounting to Rs. 14,95,000/- and Rs. 11,60,000/- respectively as per the following details: Date Particulars Amount(Rs.) 8thApril,2010 Cash deposit in ICICI Bank A/c No. 6350 5,00,000/- 13th May, 2010 Cash deposit hi ICICI Bank A/c No. 6350 4,00,000/- 28th July, 2010 Cash deposit in ICICI Bank A/c No. 6350 2,00,000/- 3rd August, 2010 Cash deposit in ICICI Bank A/c No. 6350 25,000/- 31stAugust,2010 Cash deposit in ICICI Bank A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....source of the sum found credited in his books. He, therefore, treated the cash deposits in ICICI bank amounting to Rs. 26,65,000/- as income of the assessee from undisclosed sources and made the addition. 7. Being aggrieved the assessee carried the matter to the ld. CIT(A) and submitted as under: "In regard to your requirements, it is submitted as under: 1. Copy of acknowledgement of returns for Assessment Years 2008-09 to 2011-12 are attached alongwith Computation of Income, Balance Sheet and Trading & Profit and Loss A/c. if there was business, for each of these years. 2. The appellant is engaged in business under name M/s. Trade India and he has shown same in years in which he received orders etc. During the year under consideration, he had no business as no order or work was received. The appellant prepared Balance Sheet every year. However in year in which he has business, Balance Sheet is also prepared separately for business which, is also reflected in personal Balance Sheet prepared for each year. Since as per instructions, no enclosures are filed with returns, it cannot be said that Balance Sheet was also filed with return but possibl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed in the business under the name of M/s Trade India and the returns filed by the assessee for the earlier years revealed that he was having small type construction and fabrication business and that during the year under consideration no order for work was received by the assessee. The ld. CIT(A) also observed that the assessee was maintaining at least six bank accounts which revealed that all the accounts were being used by the assessee on regular basis and there were frequent transfer of funds through issue of cheques and Electronic Clearing Services (ECS). He further observed that the bank statements revealed that the assessee had frequently withdrawn cash from those bank accounts using ATM Cards, the amounts withdrawn vary from Rs. 500/- to 10,000/- and such cash withdrawals through ATM were being made after every few days, every month on regular basis from various accounts. Therefore, it was quite obvious that the assessee was not shy of using bank accounts for his financial transactions and nothing was brought on record which could explain the conduct of the assessee for keeping huge amounts of cash in hand and depositing the same in bank as soon as it was received. The ld. C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thdrawing meager amounts of Rs. 500 - Rs. 10000/- at regular intervals through ATM also establishes the fact that the appellant was not in possession of any brought forward cash in hand. Had it been so what was the need for frequent cash withdrawals of small amounts of cash by the appellant? From the above discussion, it is clearly established that the requirement of preponderance of probability is fulfilled with regard to establishing that the appellant was not having any brought forward cash balance to justify the source of cash deposits in his bank accounts. 4.2.8 The test of human probability often comes into practice in cases of large cash deposits, cash excesses, bogus gifts, cash gifts, inadequate household withdrawals etc. In one of its special kinds, the test of human probability made an assessee pay huge amount of tax in Som Nath Maini (2008) 306 ITR 414 (P&H). In this case the assessee in his return declared loss from sale of gold jewellery and also declared a short term capital gain from sale of shares so that the two almost match each other. This simple tax planning became ineffective after the Assessing Officer disbelieved the astronomical share price increas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m Lubhaya Vs ACIT 52 TTJ 21 (ITAT Del.) * Sumati Dayal Vs CIT 214 ITR 801 (SC) * CIT Vs Durga Prasad More (1971) 82 ITR 540 (SC) * Hersh Win Chadha in ITA Nos. 3088 to 3098 & 3107/Del/2005 (ITAT Del.) 11. Now the assessee is in appeal. The ld. Counsel for the assessee reiterated the submissions made before the authorities below and further submitted that the AO himself admitted in para 4.2 of the assessment order that the assessee furnished cash book having opening balance of Rs. 49,30,572 as on 01.04.2010 and cash was deposited out of the said fund. He further submitted that the AO accepted the deposits in Oriental Bank of Commerce and HDFC Bank but doubted the deposits of ICICI Bank only but that too without bringing any material on record. Our attention was drawn towards page nos. 26 to 50 of the assessee's paper book which are the bank statements of various banks. It was further submitted that the AO had not disputed the cash book furnished by the assessee. Therefore, the addition made by the AO and sustained by the ld. CIT(A) was not justified. The reliance was placed on the judgment of the Hon'ble Delhi High Court in the case of CIT Vs Kulwant Ra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts and there was no regular income available to the assessee. Therefore, the addition made by the AO and sustained by the ld. CIT(A) was fully justified. Reliance was placed on the judgment of the Hon'ble Punjab & Haryana High Court in the case of Kavita Chandra Vs CIT(A) & Others in ITA No. 21/2016 (copy of which is placed on the record). 17. I have considered the submissions of both the parties and perused the material available on the record. In the present case, it is not in dispute that the assessee had shown income under the heads "long term capital gain" and "business income". The assessee claimed that he was having opening cash balance of Rs. 49,30,572/- as on 01.04.2010 out of the said cash balance, the assessee deposited the cash in various banks i.e. Oriental Bank of Commerce, HDFC Bank and ICICI bank. The AO accepted the bank deposits in OBC amounting to Rs. 8,22,400/- and also accepted the deposits of Rs. 6,98,500/- in ICICI Bank although the source of the deposits was same which was relating to the impugned deposits of Rs. 26,55,000/- i.e. the cash in hand available with the assessee from the earlier years which was claimed to be generated from time to time withdra....