2023 (12) TMI 53

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....rse of appeal in view of the judgment of Mehta Parakh and Company and as such the addition sustained by the Commissioner of Income Tax appeals is illegal. 3. That the Commissioner of Income Tax appeals fails to appreciate the evidence, additional evidence, and submission submitted before him, therefore, the Addition may kindly be declared illegal looking to the unreasoned and non-speaking order. 4. That cost may kindly be awarded because the Commissioner of Income Tax appeals fails to follow the law of the land and also has not decided all grounds taken in the appeal, therefore, send me kindly be declared as illegal and the addition may kindly be deleted. 5. That the order may kindly be declared as against judicial decorum and judicial discipline because the binding nature of judgment was not appreciated and also not providing a place in the order of CIT (A). 6. That the CIT (A) should have considered the double entry of 5 Lacs and also should have considered the bank certificate of Rs. 5 Lacs and should have accepted the amount as explained. 7. That the deposit in the bank may kindly be declared as explained looking at the fact that the....

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.... office. On perusal of the affidavit, I have found that the affidavit was made and signed in the year 2018 in which it is stated that the grandmother of the appellant sold an immovable property on 01.01.2009. It is worthwhile to mention here that the appellant could have provided the copy of the sale deed with regard to the land sold by his grandmother in support of his affidavit. The said affidavit was not submitted before the AO at the time of assessment proceedings but the same has been produced before the undersigned is just an afterthought and not tenable. Therefore, in view of the above facts and circumstances of the case, the appellant has not been able to substantiate with documentary evidences to prove the source of deposit of Rs. 5,00,000/- before the AO at the time of assessment proceedings as well before the undersigned. Thus, the action of the AO is found justified and the order is confirmed." Submission of ld. AR 3. Ld. AR made a written submission. The thrust of the ld. AR's submission was that once the assessee had filed affidavits and explained the source of cash deposits, the onus shifted on department. The ld. CIT(A) has merely rejected affidavits ....

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....record. 6. It is an admitted fact that as per the bank statement of the assessee, there was cash deposit of Rs. 5,00,000/- on 29.06.2009 and then withdrawal on 29.06.2009, again deposited on 29.06.2009. Assessee had filed copy of a letter issued by State Bank of India, Khajuwala Beriyawali, Bikaner. The relevant part of the said letter is reproduced as under:- 7. Thus, the State Bank of India has admitted that due to technical reasons, there were two entries of cash deposits on 29.06.2009 of Rs. 5,00,000/-. It means assessee had deposited only Rs. 5,00,000/- on 29.06.2009 in State Bank of India. The Assessing Officer has also made an addition of Rs. 5,00,000/-. The ld. AR submitted that all the evidences were filed before the ld. CIT(A) but ld. CIT(A) has not properly appreciated it. It is observed that assessee had claimed that he is an agriculturist. He has received gift of Rs. 5,00,000/- from his grand-mother and Rs. 3,00,000/- from his father who had sold some land during the year. The assessee had filed copies of affidavit of Smt. Bhaktawari Devi. In the said affidavit, it is mentioned that Smt. Bhaktawari Devi had given a gift of Rs. 5,00,000/- to Sh. Kuldeep Kumar, out....

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....ed by the assessee or from some undisclosed source. The Department does not then proceed on no evidence, because the fact that there was receipt of money is itself evidence against the assessee. There is thus, prima facie, evidence against the assessee which he fails to rebut, and being unrebutted, that evidence can be used against him by holding that it was a receipt of an income nature. The very words "an undisclosed source" show that the disclosure must come from the assessee and not from the Department. In cases of high denomination notes, where the business and the state of accounts and dealings of the assessee justify a reasonable inference that he might have for convenience kept the whole or a part of a particular sum in high denomination notes the assessee prima facie discharges his initial burden when he proves the balance and that it might reasonably have been kept in high denomination notes. Before the Department rejects such evidence, it must either show an inherent weakness in the explanation or rebut it by putting to the assessee some information or evidence which it has in its possession. The Department cannot by merely rejecting unreasonably a good explanation, conv....

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....not considered the evidence filed by the assessee. It is only the question of interpretation therefore, we do not feel appropriate to levy the cost. Ground No. 8 13. Ld. AR submitted that he did not intend to press ground no. 8 by which he has challenged the legality of proceedings under section 147 of the Act. Therefore, Ground No. 8 is dismissed as not pressed. 14. Ground No. 9 is consequential in nature and hence dismissed. Accordingly, the appeal of the assessee is partly allowed. 15. In the result, the appeal of the assessee is partly allowed. Order pronounced on 10th August, 2023. ============= Document 1 श्रीमान कुलदीप पुत्र श्री रामस्वरुप 13 के वाई डी खाजूवाला महोदय दिनांक 02/04/2018 विषय:- दिनांक 29/06/2009 को खांते में जमा ....