TaxTMI 
TaxTMI 
2024 (4) TMI 1188
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.... (1) THAT Certified Copy of order of Commissioner of Income Tax (Appeal) order dated 27/12/2021 is enclosed herewith, plz accept the same. (2) THAT Electronically Appeal in this case was filed on 18/02/2022 and physical appeal in this case was due to filed on 20/03/2022. But physical documents was filed on 06/04/2022, it means late by 17 days, plz note. Delay is not intentionally. Delay is beyond the control of the assessee. Delay is due to following reasons (1) Due to death of Husband Shri Bal Kishan ji Jajra, she is fully disturbed (2) Due to Arrest and imprison of Real Son Shri Naresh Jajra, she is fully disturbed (3) Main accountant of the firm namely Shri Kamal ji Sharma is left the firm Due to following aforesaid reasons, she is fully disturbed. You are therefore requested to please accept my sincere apology, and condone the delay and accept the same and do the needful." 2.2 The ld. AR of the assessee appearing in this appeal submitted that the assessee is serious on the duties and the delay of 37 days is on account of the fact the assessee has filed the appeal online on 18/02/2022 but the physical copy of....
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....essee for faceless heaving, only documents required, which is also bad in law as well as facts of the case. 5. That tax charged by AO under section 115BBE and interest charged by AL is also not judicious." 4. Brief fact of the case is that the return of income for the assessment year 2017-18, in ITR-1 was e-filed on 27.03.2018 declaring total income of Rs. 4,10,500/- The case was selected for scrutiny under CASS. First notice u/s 143(2) of the Act was issued on 13.08.2018. There after the fresh notices u/s 142(1) of the Act were issued and the assessee was requested to furnish relevant details/information electronically through E-filing mode. The case was selected for scrutiny u/s 143(3) of the Act by CASS and type of scrutiny was "limited" and the issues identified for examination was per notice u/s 143(2) were "cash deposit during demonetisation period". On the aspect of the proposition the assessee was confronted by the ld. AO on the cash deposit made by the assessee. The reply of the assessee and the contention of the ld. AO is reproduced herein below:- S. No. Assessees Explanation Remarks by AO A The source of cash deposit of Rs. 11,0....
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....on 145(3) of the Act in response to that notice the assessee submitted justification of cash balance cashbook. The assessee submitted that she is filing return since 1998 wherein the nature of income is already shown as tailoring. This fact of filling the return and disclosing the nature of income is appearing from the ITR filed and same is already on record of the revenue. The assessee is having the source which the ld. AO is disputing merely on the reason that the assessee has deposited cash in the demonetisation period. The cash which the assessee is keeping on hand and because she is assessed to tax since 1998 and her ITR already filed by the assessee showing cash on hand and supported by cash book cannot be disputed. Even the opening balance cannot be added as income of the year under consideration. All the contention of the assessee not considered on merits and the ld. AO based on the cash book not accepting the source of income and considering the aspect of the matter that various other family members have also deposited heavy cash during the demonetisation and therefore on the similar line the deposit of cash of Rs.11,00,000 in the hands of the assessee not considered as ge....
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....provided any supportive documents, evidence to prove correctness of this cash book especially of the cash in hand as on 01.04.2016. 2. The AO has brought a very Important and interesting fact on the record that the Appellant Family members who are residing at the same place had also made huge cash deposits during the demonization period the details of which are reproduced as below: S. No. Name and Address and PAN of the assessee Income (Rs.) as per ITR, and ITR form Cash deposit during demonetization 1. Sh. Rajesh B, Jajra, C-40, Rajeev Nagar, outside Mahamandir IIIRD pole, Jodhpur AAEHR 2635G Rs. 4,32,900/- Rs. 14,00,000/- 2. Bal Kishan R. Jajra, C-40, Rajeev Nagar, outside Rs. 6,21,790/- Rs. 13,50,000/- Mahamandir IIIRD Pole, Jodhpur AACHB8236K 3. Bhavna Devi Jajra, C-40, Rajeev Nagar, outside Mahamandir IIIRD Pole, Jodhpur ADGPJ7302P Rs. 4,04,780/- Rs. 12,00,000/- 8. Considering all the facts, narrated above, it is fair to conclude that the appellant was taken aback from the news of demonetization. Whatever cash he and his family members had was deposited in the bank account.....
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.... AY 1998-1999 to AY 2008-2009 and AY 2019-2020 Ay 1998-1999 28-29 AY 1999-2000 30-31 AY 2000-2001 32-33 AY 2001-2002 34-35 AY 2002-2003 36-37 AY 2003-2004 38-39 AY 2004-2005 40-41 AY 2005-2006 42-44 AY 2006-2007 45-47 AY 2007-2008 48-53 AY 2008-2009 54-61 AY 2019-2020 62-64 8. Proof for cash deposited previously in AY 2015-16 65-67 9. Bank pass book of Bhavna Ji Jajra for address proof 68 10. Dhakeshwari Cottaon Mills Ltd. Vs. Commissioner of Income Tax, West Bengal on 29 October, 1954: Supreme Court 74-81 11. Hon'ble Supreme Court in Sumati Dayal (1995) 214 ITR 801 (SC) 82-87 12. ITAT Allahabad Bench in Sudhir Kumar Tiwari vs. ITO 88-92 13. ITAT Delhi bench in sheo Chand Yadav vs. ITO 93-96 14. ITAT Pune Bench in Mrs. Usha Narayan Chaware vs. ITO 97-101 15. Order u/s 250 of income Tax Act 102-109 16. AO order u/s 143(3) of Income Tax Act 110-116 17. Power of Attorney in our favour 117 7. The ld. AR of the assessee in addition to the above paper book has filed the following written submission:- "(....
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....aw as well as facts of the case. Hence facts mentioned by AO in his order page number 4 line number 15 (cash in hand as on 01/04/2016 is not provided) is not correct. Even the Assessing Authority has not seen computation of total income from Asst. Yr. 2008-2009 to 2012-2013 which is already on record that source of income is Rental Income also, which is verifiable from detailed chart (page no 26-27) but Assessing Authority has ignore this source of head, hence whole order passed by AD as well as CIT(A), NFAC is illegal, not as per facts of the case and bad in the eyes of law, hence whole addition is liable to be deleted. (5) However copy of cash book from 1.11.2016 to 30.11.2016 enclosed (page no 12) & complete cash book, ledger, bank book from 01.4.2016 to 31.03.2017 is enclosed (page no 13-25) but Assessing Authority not gone through the Cash Book and books of accounts. Hence order passed by Learned Assessing Authority dated 24/11/2019 and appeal order dated 27.12.2021 passed by Commissioner of Income Tax (Appeals) National Faceless Appeal Centre is illegal, bad in law as well as facts of the case. (6) THAT the above named assessee is an existing assessee of inc....
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....the assessing authority to enquiry the same whether assessee has done the above activities or not, but the assessing authority fails do so, meaning thereby Assessing Authority had not made any further factual enquiry before rejecting the books of accounts. So procedure adopted by AO as well as CIT (A) is not as per law and very these activities excessive. It is not the intention of the assessee to file the Income Tax Return in Form no. 1, because earlier years (page no 26-27), your honour would find that retail trade business income was shown and filed the Income Tax Returns with Trading account, Profit and Loss account, Capital a/c and Balance Sheet, which is tabulated in (page no 26-27). Assessing Authority not seen previous year income tax returns from Asst. Yr. 1998-1999 to 2008-2009 and AY 2019-2020 (12 years), previously assessee was filed ITR 4, ITR 2 and ITR 1 with Computation of total income, Trading account, Profit & loss a/c, Capital a/c and Balance Sheet then Why the Assessing Authority was mentioned in page no 4 para 7 line no.6 only from ALY 2010-11 to 2018-2019, it means Assessing Authority manipulated the facts deliberately. (11) THAT I am Enclosing herewit....
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....ssee since beginning, hence assessment on the basis of imagination, assumptions and presumptions as pointed by Assessing Authority at page no 2 para no 3 of Assessment Order is incorrect and bad in law means whole assessment order passed by learned Assessing Authority by malafide intention. AO also pointed out that the assessee cannot earn such amount from menial task like tailoring and stitching, your honour, it depends on case to case and there are many examples in India who does very well in such business and earn huge amount of income. That The Karnataka High Court in the case of Karnataka State Forest Industries Corporation Ltd., Vs. CIT (1993) 201 ITR 674 (page no 69-73) has held that the Assessing Officer's powers under the Section are not arbitrary and he must exercise his discretion and judgment judicially. There must be something more than mere suspicion to support an assessment under Section 145(3). The rule of law on this subject has been fairly and rightly stated by the Supreme Court in the case of Dhakeswari Cotton Mills Ltd., v/s. CIT (1954) 26 ITR 775. (page no 74-81) (15) THAT I am again enclosing herewith Cash Book, Ledger, Bank Book for Asst. Yr 2017....
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....tance/evidence and test of human probabilities should also be looked into. Cash was deposited into the bank from time to time out of income from last so many years which is verifiable from books an account regular maintained by the assessee, bank pass book and income tax record also, which means no ABNORMAL cash was deposited in demonitisation period and cash deposited in demonitisation period was out of past savings Cash balance as on 01.04.2016 and income related to current year only. In AY 2015-2016 a sum of RS 6,50,000 in three itervals was deposited in saving bank account also. Copy of bank a/c is enclosed. (Page no 65-67) Explanation as Past Savings of HUF and Members, No other Deposits during Demonetization: ITAT deletes Income Tax Addition Sudhir Kumar Tiwari vs Income Tax Officer 2022 TAXSCAN (ITAT) 1464 (Page no 88-92) The Income Tax Appellate Tribunal (ITAT), Allahabad Bench deleted income Tax Addition on the ground that the explanation was past savings of HUF and its members and no other deposits were made during demonetization. A Single Bench of the Tribunal consisting of Vijay Pal Rao, Judicial Member observed that "Accordingly, in the facts and circ....
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....). (22) THAT in Mrs. Usha Narayan Chaware vs ITO 2023 TAXSCAN (ITAT) 484 (Page no 97-101) The Pune Bench of the Income Tax Appellate Tribunal (ITAT) has deleted the addition of cash deposits during demonetization on proper explanation as to utilization of the cash deposit. The Tribunal of RS Syal, Vice President noted that "Once the availability of cash in hands was established and it was not shown by the AO that such cash was spent elsewhere, I am of the considered opinion that the explanation of the assessee as to its utilization has to be accepted." Hence facts of our case is similar to above as source of cash deposited was declared out of past savings Cash balance as on 01.04.2016 and income related to current year only. (23) THAT whole story was made by the assessing authority in page no 5 para no 9 of Assessment Order here to mention that other member of the assessee's family has done the same thing and had tried to evade taxes In this respect I am to state that AO list as per order two assessee's are HUF entity and other BHAVNA DEVI JAJRA has no direct connection with above named assessee. Bhavana jajra is not residing with the abo....
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....ior citizen lady deposited cash of Rs. 11 lac into the bank account and the source of the said cash is alleged to have been out of the opening balance of earlier year income. The assessee being 77 years old lady and cash being deposited in bank account was be available. The plea of the assessee that she is engaged in the tailoring work is not placed / discussed with the ld. AO. The ld. DR referring to the chart of cash balance made available is of year 2015-2016, 2016-17 & 2017-18 no proof of the figure mentioned is submitted. The cash book furnished by the assessee is also not maintained day to day it is merely summary. The ld. DR referring to page 44 submitted that there is no calculation to show how he can be relied from business income as there is no source from the business income or there is no business stock available. Even though there is demonisation the assessee seamlessly even after demonetisation having the cash income it self suggest that the accounts are fabricated. 10. We have heard both the parties and perused the materials available on record. For the year under consideration the assessee filed her return of income for the assessment year 2017-18, in ITR-1 ....
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....pening balance of Rs. 9,50,597/- shown current year income of Rs. 4,30,498 in cash. It is well settled that credit found on the first day or carried forward from the preceding year cannot be added in this year. We get the support of this contention from the decision of the jurisdictional high court in the case of Commissioner of Income-tax v. Parmeshwar Bohra, 131 Taxman 145 (Rajasthan) wherein the jurisdictional high court held that; "7. It appears that the Tribunal has considered the issue regarding assess ability of the capital while considering the assessee's appeal ITA 71(JDP)/99 for the assessment year 1993-94 by order dated 6-12-2001 whereby the Tribunal held that it is not a case of introduction of cash credit but it is a case of unexplained investment under section 69 of the Act of 1961 and the appropriate previous year for inclusion is the relevant financial year and, therefore, the opening capital account cannot be added as an unexplained investment under section 69 of the Act of 1961 for the assessment year 1993-94. The Tribunal also held that the genuineness of the capital introduction has already been adjudicated upon by the assessing authority for ....