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Sona Bahi D-810, New Friends Colony, New Delhi Vs. ITO, Ward-22(2), New Delhi
July, 17th 2015
                       DELHI BENCH `SMC-II', NEW DELHI

                                   ITA No. 5283/Del/2014
                                  Assessment Year: 2008-09

               Sona Bahi                Vs.   ITO,
               D-810,                         Ward-22(2),
               New Friends Colony,            New Delhi
               New Delhi
                (Appellant)                   (Respondent)

                   Appellant by :        K. R. Munjani, Adv
                  Respondent by :        Sh. Manoj Kr. Chopra, Sr. DR

                               Date of Hearing    : 13.07.2015
                        Date of pronouncement     :   16.07.2015


      This appeal is filed by the assessee against the order dated 20.08.2014 of
Ld.CIT(A), X, New Delhi pertaining to the Assessment Year 2008-09 on the following

      "The ld AO has erred on facts as well as in law in making the addition merely
      on surmises of Rs.5,25,000/- deposited in Bank even though there is proper
      source therefore. Similarly ld CIT(A) has erred on facts as well as in law in
      sustaining merely on surmises addition of Rs.3,00,000/-.

2.    The facts of the case are given in para 2 of the order of the ld CIT(A), which
are extracted for ready reference:-
      "2. The facts of the case are that return of income was filed on 02 -12-2008
      declaring an income of Rs.91,910/-. Assessment u/s 143(3) was completed at
      an income of Rs.6,16,9107- by making the addition of Rs.5,25,000/- u/s 69A
      since the assessee could not discharge its onus regarding depositing the cash
      in account.
      3.     Aggrieved with such order, the present appeal has been filed.
      4.     The appellant has taken the following grounds of appeal:
             "(1) The AO erred in law and facts by increasing income by
             Rs.5,25,000/- on account of cash deposit in bank.
             (2)   The assessee craves leave to add, amend or withdraw any ground
             at the time hearing. "
                                                                              Page 2 of 4

3.    Before the first appellate authority the assessee furnished all the details. The
first appellate authority called for a remand report. Thereafter the assessee filed
rejoinder of the remand report. The first appellate authority granted part relief.
4.    Further aggrieved the assessee is before us.
5. Heard the ld counsel for the assessee Shri K.R. Munjani, Advocate and Shri Monoj Kumar Chopra, the ld Departmental representative. The sum and substances of the submissions of Shri K.R. Munjani is that an amount of Rs.4,78,000/- is available with the assessee as on 31.03.2007. He also submits that the assessee maintained books of account and cash flow statement and that they were submitted before the AO as well as before the ld CIT(A). The ld DR submits that the assessee's claim is a concocted story and is contradictory. He relied on the order of the first appellate authority and submitted that there is no justification given on why the assessee kept cash outside her bank account from December, 2006 to July-August, 2007, when specifically her bank account was full of banking transaction and the assessee had approximately Rs.50 lacs in investment. 6. After hearing rival contention I am convinced with the findings of the first appellate authority on this issue. There is no plausible explanation given by the assessee for having kept cash balance of Rs.4,78,000/- from 9th March 2007 to 23rd October 2007. There is no proximity of source. When the assessee is operating her bank account regularly the claim that huge cash balances are kept is strange. Theory put up by the assessee cannot be believed. 7 The first appellate authority from pages 11 to 13 is as follows:- "On considering the facts of the case it is observed that the appellant was not maintaining books of accounts and it is true tha t when the appellant's case was selected in scrutiny, thereafter only the appellant had prepared sta tement of cash for F.Y. 2006-07 and balance sheets as on 31-03-2007 and 31-03- 2008. The only evidence in support of balance sheet and cash flow sta tement are bank accounts which were submitted by the appellant during the assessment proceedings as well as during the appellate proceedings. Since the appellant has not produced any other document or evidence which were already produced before the A.O., the A.O. is not justified in assuming that the documents furnished by the appellant are additional evidence and hence should not be accepted under rule 46A of the I.T. Rules, 1962. It is observed tha t for justifying the available cash of Rs.4,78,000/ - as on 01-04-2007 (opening cash balance), the appellant has furnished a cash flow sta tement showing that Rs.2,00,000/- each were withdrawn by the appellant as on 01- 12-2006 vide cheque No.141708 and 141709 with Standard Chartered Bank Page 3 of 4 and again on 09-03-2007, the appellant has withdrawn Rs.1,50,000/- from her bank account, Bank of Baroda. The appellant was specifically asked as to why she had withdrawn Rs.1,50,000/- in March, 2006 when she has claimed that Rs.4,00,000/- were available with her since December, 2006. The appellant has made the following submissions vide her letter dt. 17-06-2014 as under: "In regard to your query as to why the money was withdrawn when Rs,4,00,000/- were already withdrawn, it is submitted from the capital of appellant it is clear that she belongs to affluent family. Enquiry revealed tha t she had intention to purchase gadget for which the amount was withdrawn and further amount was also withdrawn for that purpose but since she did not like quality, utility and price, it was not purchased and the money was deposited in bank." On examining the appellant's reply it is observed that it is a concocted story forwarded by the appellant which is self -contradictory. On the one hand, the appellant had the intention to purchase gadgets for which the amounts were withdrawn but at the same time she changed her mind as she did not like quality, its utility and price and money wa s deposited in a bank. There is no justification as to why the appellant was keeping cash away from her bank account from December, 2006 to July - August, 2007 when her bank account was full of banking transactions and the appellant had approximately Rs.50 lacs and more investments made in mutual funds and other instruments. The appellant was regularly making the fixed deposits in the bank for earning interest income which is evident from the copies of bank accounts submitted by the appellant. Therefore, the appellant is not fair in forwarding the arguments tha t such cash withdrawal was meant for purchasing gadgets which could not be purchased by her in almost 11 months period. The cash flow statement of the appellant is, therefore, not believable as the amounts withdrawn in large denominations seem to be utilized by the appellant for some investments which cannot be established till all the affairs of the appellant alongwith the affairs of her husband and mother-in-law pertaining to F.Y. 2006-07 are enquired into. However, it is beyond doubt that the story of making withdrawals for purchasing gadgets and later on questioning their utility is definitely a concocted story and, therefore, not believable. Therefore, the claim of the appellant that Rs.4,78,000/- was available with her in the beginning of the financial year is not acceptable. With this background the appellant's affairs are examined during the F.Y. 2007-08. It is observed that Rs.2,00,000/- was withdrawn by the appellant in cash on 18-07-2007 which the A.O. has presumed tha t the same would have been spent on household expenses and meeting out other expenses. However, it has been established by the appellant tha t the appellant's husband has made a withdrawal of Rs.2,40,000/- for household purposes and appellant's mother-in-law has made withdrawal of Rs.1,16,545/- and made the payments for the school fee of the children of the appellant. The withdrawal of Rs.2,00,000/ - on 18-07-2007 was definitely available with the appellant which was ultimately deposited by her on 28-07-2007 in her bank account. In view of the above, the source of cash deposit of Rs. 2, 25,000/- on 28-07-2007 appears to be justified and, therefore, no addition of Rs.2,25,000/- in appellant's income u/s 69A of the Act is called Page 4 of 4 for. However, the appellant's argument that Rs.3,00,000/- cash was deposited on 23-10-2007 out of the cash available with the appellant since beginning of the financial year is not justified for the reasons elaborated hereinabove. The AO's action in making an addition of Rs.3,00,000/- in appellant's income treating the cash deposit made by the appellant on 23-10-2007 as unexplained is fully justified and the addition of Rs.3,00,000/ - is hereby sustained. The ground of appeal is partly allowed. 7. We find no infirmity in the factual finding of the first appellate authority and hence we uphold the same. 8. In the result the appeal of the assessee is dismissed. Order pronounced in the Open Court on 16th July, 2015. -Sd/- (J. SUDHAKAR REDDY) ACCOUNTANT MEMBER Dated:16th July, 2015 AKK Copy forwarded to: - 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY By Order, ASSISTANT REGISTRAR
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