TaxTMI 
TaxTMI 
2021 (9) TMI 625
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....ount u/s 69A of the Act. 3. That on the facts and in the circumstances of the case the CIT(A) NFAC grossly erred in representing erroneous and irrelevant finding in the order which are not born out from the assessment order, and thereby sustaining arbitrary addition in a hypothetical way by putting the assessee to erroneous harassment and inconvenience. 4.That on the facts and in the circumstances of the case the CIT(A) NFAC ought to have analyzing the submission, material and legal & valid evidences in right prospective and judicial manner. 5. That on the facts and in the circumstances of the case the CIT(A) NFAC grossly erred in sustaining addition made in returned income without having any credible evidence or only on the basis of assumption and presumption." 2. During the course of hearing, the ld AR submitted that the assessee derives income from renting of commercial property and other income under the head "income from other sources" and filed her return of income declaring the total income of Rs. 4,97,980/-. The case of the assessee was selected for limited scrutiny to verify the "Cash deposits during the year" and accordingly the notice u/s 14....
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....O in the assessment order are contrary to the material available on record as from beginning the assessee had explained that she has withdrawn the cash from the bank account and same was redeposited in the bank account. The details of cash withdrawal & cash deposits from bank account are as follow:- A.Y 2015-16 A.Y 2016-17 A.Y 2017-18 Date Cash Withdrawal Date Cash Withdrawal Date Cash re-deposited 09/10/2014 25000 24/04/2015 300000 30/04/2016 500000 29/10/2014 750000 05/05/2015 200000 02/05/2016 600000 30/10/2014 750000 20/06/2015 500000 03/05/2016 400000 03/11/2014 500000 21/07/2015 500000 11/05/2016 500000 22/12/2014 700000 07/08/2015 500000 12/05/2016 500000 24/12/2014 500000 09/10/2015 600000 01/06/2016 500000 30/01/2015 200000 29/06/2016 350000 21/02/2015 600000 30/06/2016 500000 23/02/2015 500000 01/07/2016 500000 25/02/2015 600000 05/07/2016 500000 27/02/2015 500000 06/07/2016 500000 ....
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....on 31/03/2014 as per provision of law and also value of such property had been determined at Rs. 1,27,20,200/- which was disclosed by assessee in her return of income. The assessee had sold the property after the transfer took place in her name and received the sales consideration in installment during F.Y 2014-15 & 2015-16 directly in her bank account which has been withdrawn from bank time to time and the same was again re-deposited in bank account during the year under consideration. However the AO had made incorrect and wrong interpretation of information available on record and failed to analyzed the material facts that the property so transferred in the name of assessee after death of her husband had been sold and out of such sales transaction whatsoever sales consideration received by her directly in bank account which was withdrawal & re-deposited in same bank account. 7. It was submitted that the AO had not analyzed the documentary evidence available on record and explanation furnished by the assessee in right perspective and made the arbitrary allegation without bringing on record any material evidence to justify the allegation that the assessee has utilized cash withd....
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....drawn from the books, would be available for recycling and rotation, unless otherwise established as invested elsewhere by the Revenue. We hold the assessee was entitled to the benefit of peak credit which ought to have been allowed instead of making separate addition of entire amount. However, we may observe that the Assessing Officer has to come to a definite finding that the amount withdrawn was used by the assessee in any other expenditure or investment. If the Assessing Officer comes to a finding that withdrawn amount was used or spent by the assessee for any other investment or expenditure than the benefit of peak of such credit, in such circumstances, may not be available." b) ITAT, Jodhpur Bench in the case of R.K. Dave v/s ITO reported in 94 TTJ 19 held as under: "6. We have heard both the parties and given our thoughtful consideration to the rival submissions with reference to facts, evidence and material on record. From the facts discussed above, it is obvious that the assessee had placed cash flow statement before the authorities below. A copy of the same is also placed at p. 33 of the paper book. It is also not in dispute that the assessee had withdra....
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....t previous year the assessee has made cash deposits into his savings bank account. While explaining the source of such cash deposits, the assessee had submitted that such deposits were made out of cash withdrawals from the current account. Though, no substantive evidence has been submitted by the assessee to conclusively co-relate withdrawals with the deposits, however it is observed, the fact that the assessee has made sufficient cash withdrawals from the current account has not been disputed by the Assessing Officer and learned Commissioner (Appeals). This fact is very much evident from the observations of the learned Commissioner (Appeals) in Para 5.3 of his order. Therefore, the availability of sufficient cash at the hands of the assessee to make the deposits in the saving bank account cannot be doubted. More so, when the Departmental Authorities have not been able to identify the utilization of cash withdrawals from the current account in any other assets/ mode or manner. That being the case, the explanation of the assessee that being a contractor he required sufficient cash and the unutilized cash is again re-deposited to savings bank account cannot be disbelieved on mere pre....
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....ern of frequent withdrawal and deposits by the assessee. There is no law in the country which prevents citizens to frequently withdraw and deposit 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 transaction of withdrawals and deposits are duly reflected in the bank account of the assessee and are verifiable from relevant records. Assessing Officer himself admitted that assessee had sufficient cash balance on each occasion at the time of deposit in her bank account on different dates during the assessment year under consideration. We have also examined the order of ld. CIT (A) and we find that his decision is based on facts on record and is supported by adequate reasoning and, therefore, we do not want to interfere with the order of ld. CIT (A) and accordingly we uphold the findings of the ld. CIT (A) sustaining relief granted to the assessee." h) ITAT Delhi Bench in the case of Muon Computing P. Ltd. vs.ITO, ITA No. 7606/Del/2019 dated 04/08/2021 held as under: "9. There....
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....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 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." 11. It was further submitted that the ld CIT(A) has confirmed the addition made by the AO holding that th....
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....ideration relates to source of cash deposits of Rs. 68,95,000/- in the bank account maintained by the assessee with the Oriental Bank of Commerce and the explanation furnished by the assessee explaining such source of cash deposits. It is not in dispute that the bank account which is in the name of the assessee has been operated by her and the cash has also been deposited by her. Thus, the factum of bank account belonging to the assessee and deposit of cash by the assessee herself is not in dispute and therefore, in such circumstances, the Assessing officer is well within his jurisdiction to enquire about the source of such deposits and seek explanation from the assessee and examine whether the explanation so furnished is reasonable, appropriate and satisfactory in the facts and circumstances of the present case. 14. In this regard, it is noted that the assessee has explained that out of earlier year's cash withdrawals from her bank account which were available as cash balance as on 01/04/2016, the assessee had deposited a sum of Rs. 68,95,000/- in her bank account during the year under consideration. It has been submitted that the assessee has sold a property, transferred in he....