TaxTMI 
TaxTMI 
2023 (1) TMI 854
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....llant and reliance is placed by Appellant on the decision of Hon'ble Ahmedabad Tribunal in case of Smt Mariyam Ismail Rajwani in ITA No: 676/Ahd/2016 dated 09/08/2016 in support of such contention. 2. In the law and in the facts and circumstances of the appellant's case, learned CIT(A) has grossly erred in confirming addition made towards cash deposited in HDFC bank account at Rs.12,79,000/-. 3. In law and in the facts and circumstances of the appellant's case, learned CIT(A) has grossly erred in not appreciating the fact that the Appellant has not maintained regular books of accounts and accordingly the amount credited in the bank statement cannot be considered as unexplained cash credit as the bank statement arenot part of books of accounts. The case of the Appellant is squarely covered by the decision of Hon'ble Ahmedabad Tribunal in case of Smt. Ramilaben B. Patel, Vs. Income Tax Officer vide ITA No: 3393/AHD/2014dated 11/12/2018. 4. In law and in the facts and circumstances of the appellant's case, learned CIT(A) has failed to appreciate the fact that cash deposited in the bank account of the Appellant was duly explained by summary sheet submitted bef....
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.... of the Act and also failed to comply with several notices issued under the provision of section 142(1) of the Act. Thus, the AO in absence of any reply from the assessee treated the cash deposit of Rs. 23,29,100/- as unexplained cash credit under section 68 of the Act and assessed the income of the assessee at Rs. 23,29,100/- in the assessment order under section 144r.w.s. 147 of the Act. 6. The aggrieved assessee preferred an appeal before the learned CIT(A). 7. The assessee before the learned CIT (A) filed additional evidences and submitted that the alleged cash deposit of Rs. 23,29,100/- made with two different bank detailed as below: 1. HDFC bank Rs. 12,97,000/- 2. Karurvasya Bank Rs. 10,50,100/- 7.1 With regard to Karur Vasya Bank, it was submitted that the same is joint account with Smt. Upasna N Patel and the entire cash deposit of Rs. 10,51,100/- was added to the total income of Smt. Upasna N Patel in her assessment. Therefore, the same should not be added in the hand of present assessee. 7.2 With regard to the sources of cash deposit, the assessee submitted that such cash represent receipt from the sale of agricultural produce and withdrawal made from the bank o....
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....d CIT(A) after considering facts in totality partially confirmed the addition made by the AO by observing as under: "6.3 During the course of appellate hearing and in connection with rejoinder to the remand report, the appellant along with her joint owner in KarurVyasya bank being Smt. Upsanaben Patel has filed submission wherein it was mainly argued that cash deposits are out of available opening cash balance. It was claimed that in case of Smt. Upsanaben, there was opening cash balance of Rs. 5,67,400/- and Rs. 2,08,900/- in case of the appellant and such cash balance has been used for making cash deposits in the current year. However, this contention of the appellant cannot be accepted because she has not filed any return of income prior to current year, hence she as well as other co-owner was having opening cash balance cannot be accepted. The theory of having opening cash balance and savings with the appellant is without any evidence hence the same cannot be accepted. The Hon'ble Ahmedabad ITAT in the case of Somabhai Ambalal Prajapati V/s ACIT 88 taxman.com 369 [2017] has held that when assessee could not explain how amount withdrawn in previous year remained with the asses....
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....ed. 6.6 So far as alternate, claim of the appellant that as there are cash withdrawals and cash deposits in bank account, hence only peak need to be taxed, it is observed that the AO has objected to it by contending that as there are no withdrawals from HDFC account, no benefit of peak can be given to the appellant The AO in the remand report has observed that peak credit can only be adopted if there is rotation of cash and its subsequent deposit. From perusal of the records, it is noticed that the appellant has not provided any copy of this bank account for verification of the peak worked out, this claim of the appellant is rejected. Thus, addition made by the AO for cash deposits in HDFC bank for Rs.12,79,000/- is confirmed. In nutshell, addition made by AO for Rs.23,29,100/- is restricted to this much amount and the appellant gets, relief of Rs. 10,50,100/-. This ground of appeal is partly allowed." 12. Being aggrieved by the order of the learned CIT-A, the assessee is in appeal before me. 13. The learned AR before me filed a paper book running from pages 1 to 65 and contended that the cash was deposited out of the agricultural income. It was also contended by the learned AR....
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....she has received cashfrom two parties for making the investment in the IPO which was deposited in the bank account of the assessee. This contention was raised by the assessee 1st time before the learnedCIT(A) in the rejoinder filed by her against the remand report furnished by the AO. As such this contention was not raised by the assessee during the assessment and remand proceedings. Thus the question arises whether such contention can be raised during the appellate proceedings and that too in the rejoinder of the remand report. Generally, such contentions should be discouraged to be raised at the higher forum without confronting before the AO during the assessment/ remand proceedings. However, such contentions can be allowed to be raised provided they are based on the documentary evidence and after giving the opportunity to the AO. Nevertheless, such contentions raised by the assessee were rejected by the learned CIT(A) on the reasoning that: i. The contentions that the assessee has received money from the parties for their participation in the IPO was not raised during the original assessment and remand proceedings. ii. The persons who have paid cash to the assessee were also....