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Addition u/s 69A
in respect of cash deposited into bank account
during demonetization period
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Assessment and addition (Hypothetical)
The Ld. AO has made addition of Rs. 27,14,000/- u/s 69A of the Act on account of cash
deposited in bank accounts during the financial year 2016-17 relevant for the assessment
year 2017-18 the source of which has allegedly remained unexplained.
Grounds of Appeal (Samples)
1. That on the facts and in the circumstances of the case the Ld. AO has grossly erred in assessing total income at Rs. 30,37,390/- against the returned income of Rs. 3,23,390/- thereby making an addition of Rs. 27,14,000/-. The returned income deserves to be accepted.
2. That on the facts and in the circumstances of the case the Ld. AO has grossly erred on facts and in law in making addition of Rs. 27,14,000/- u/s 69A of the Act on account of alleged unexplained cash deposited in Bank accounts. The addition deserves to be deleted.
3. That on the facts and in the circumstances of the case the Ld. AO has grossly erred on facts and in law in making addition of Rs. 27,14,000/- u/s 69A of the Act on account of alleged unexplained cash deposited in Bank accounts by treating the same as unexplained money of the appellant. Therefore, the addition deserves to be deleted.
4. That on the facts and in the circumstances of the case the Ld. AO has grossly erred on facts and in law in making addition of Rs. 27,14,000/- u/s 69A of the Act on account of alleged unexplained cash deposited in Bank accounts by not accepting the explanation offered by the appellant and by ignoring the relevant facts and documentary evidence on record. Therefore, the addition deserves to be deleted.
5. That on the facts and in the circumstances of the case the Ld. AO has grossly erred on facts and in law in making addition of Rs. 27,14,000/- u/s 69A of the Act on account of alleged unexplained cash deposited in Bank accounts on merely on the basis of common human probability ignoring the facts and circumstances of the case of the appellant, explanations offered and evidence furnished. Therefore, the addition deserves to be deleted.
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6. That on the facts and in the circumstances of the case the Ld. AO has grossly erred on facts and in law in making addition of Rs. 27,14,000/- u/s 69A of the Act on account of alleged unexplained cash deposited in Bank without bringing on record any material to prove that the cash so withdrawn by the appellant just twenty days before the deposits was utilized by her in any manner. Therefore, the addition deserves to be deleted.
Submissions in support of the Grounds of Appeal
1. In this regard it is submitted that the time gap between withdrawal from bank and its re-deposit cannot be a reason to doubt the genuineness of nature and source of the deposit. The nature of source are explicitly the withdrawals of cash from the same bank account just 20 days before, and the source of source is the maturity proceeds of bank Fixed deposits on 15.7.2016 and opening cash in hand on 27.5.2016
2. There is no law that
(i) a person cannot hold cash with him, and
(ii) it is necessarily to deposit cash immediately into bank once withdrawn but not utilised not, or
(iii) such money should remain deposited into bank account if not required to be spent.
3. It is settled law that if source of cash deposit into bank is earlier withdraw, its redeposit cannot be doubted unless some cogent tangible material is brought on record to prove that such cash was utilised otherwise.
Deposits supported by earlier bank withdrawals which were not otherwise used
4. In this regard reliance is placed on the decision of jurisdictional ITAT, “B” Bench, Delhi in the case of ITO, Ward 1(2), Meerut vs. Mrs. Deepali Sehgal, in I.T.A No. 5660/Del/2012 for AY 2009-10 dated 5.9.2014, wherein the ITAT observed and held as follows:
Before AO
2. Briefly stated the facts giving rise to this appeal are that the Assessing Officer (AO) noted that the assessee has withdrawn huge cash from bank account and the same amount has been deposited to the same account after lapse of substantial time. On query from the AO the assessee replied that the cash was deposited out
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of cash withdrawn. The AO rejected the explanation on principle of ‘human probabilities’ based on the decisions of
(i) Sumati Dayal vs. CIT 214 ITR 801 (SC)
(ii) Durga Prasad Morya vs CIT 82 ITR 540 (1971)
and held that the assessee has cash deposit of Rs.24,38,000/- as unexplained money and he assessee found to be the owner of the money and the assessee has not offered any acceptable and cogent explanation therefore, the AO concluded that the entire cash deposit of Rs.24,38,000/- was deemed to the income of the assessee from undisclosed sources and the AO made an addition of Rs.24,38,000/- u/s 69 of the Income Tax Act, 1961 (for short the Act) for A.Y. 2009-10.
Before CIT(A)
3. The aggrieved assessee preferred an appeal before CIT(A) which was allowed by passing the impugned order. Now the aggrieved Revenue is before this Tribunal with the grounds as reproduced herein above. Ground No. 1 & 2 of the Revenue
Before ITAT (Revenue)
4. Apropos these grounds we have heard arguments of both the sides and carefully perused the relevant material placed on record. The ld. Departmental Representative (DR) placed his reliance on the decision of the Hon’ble Supreme Court in the case of Sumati Dayal vs. CIT 214 ITR 801(SC) and Durga Prasad Mourya vs. CIT 82 ITR 540 (SC) and submitted that the cash was withdrawn from partnership firm bank account out of business overdraft account with corporation Bank where debit balance remained between 57 lac to 64 lac on which heavy interest was paid by the firm and thus alleged withdrawals by partner assessee did not relate to firms’ business in any manner. The D.R. further contended that the CIT(A) also ignored the fact that the Capital account of the assessee in the firm always remained in negative before impugned withdrawals as well as during and after such withdrawals and also the withdrawals made by the firm from overdraft was increasing heavy debit balance resulting into heavy interest liability on the firm which is not in accordance with behavior of a man of ordinary prudence rather the above conduct of the assessee was in contradiction of principles test of human probabilities. The D.R. also contended that the AO made addition on justified reasoning which was deleted by CIT(A) without and basis. Therefore, impugned order may be set aside by restoring that of the AO.
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Before ITAT (Assessee - respondent)
5. Replying to the above the Ld. assessee’s Representative (AR) submitted that the AO merely acted on the basis that it was hard to believe that huge cash was kept by the assessee for deposit back in the bank account creating interest liability against the partnership firm and the AO rejected the explanation of the assessee deeming the same to be impractical and illogical but the cash flow statement clearly show that the assessee withdrew cash of Rs.19 lacs and 13 lacs from her saving bank account with HDFC Bank and from capital account of partnership firm M/s Shakti Traders, Meerut, respectively but this fact was not appreciated by the AO and the CIT(A) was quite justified in accepting the explanation of the assessee. The AR drawn our attention towards audited accounts of the partnership firm and submitted that no adverse inference can be drawn against the assessee about the impugned cash deposits as this is not the case of the AO that the amounts withdrawn from bank were utilized somewhere else for some irrelevant
purpose. The AR supported the impugned order and submitted that the appeal is devoid of merits and case laws relied by the Revenue are distinguishable.
ITAT Concluded
6. On a careful consideration of above submissions and contention we observe that the AO made addition u/s 69A of the Act with following conclusion:
“From the perusal of return and the various documents submitted by the assessee during the course of assessment proceedings, it is gathered the assessee has made huge cash deposits in saving bank a/c bearing no.0285130002853 at HDFC Bank, W.K. Road, Meerut. The cash flow statement submitted by the assessee has many lacunae. From the said cash flow statement, it is gathered that:
- cash withdrawal of Rs.3,00,000/- made on 08/04/2008 was deposited on 13/5/2008 and the explanation offered by the assessee is ‘cash deposited out of cash’. This explanation of the assessee is illogical as it is impossible to believe that such a huge amount of cash will be kept by the assessee for so long as to deposit the same amount in the bank after unnecessarily waiting for such a long duration. Similar explanation has been offered by the assessee for cash of Rs.5,00,000/- withdrawn on 3/10/2008 and deposited on 4/3/09.
2. no reason has been offered by the assessee in respect of cash d eposits of Rs.5,00,000/- made on 16/3/2009; Rs.8,00,000/- made on 25/3/2009 and Rs.3,38,000/- made on 26/3/2009.
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I, therefore, treat this above-mentioned cash deposit of Rs.24,38,000/- as Unexplained money u/s 69A of the I.T. Act, 1961, since the assessee has been found to be the owner of this money and has not offered any explanation about the nature and source of acquisition of this money and therefore, this entire cash deposit of Rs.24,38,000/- is deemed to be the income of the assessee for the F.Y. 2008-09.”
7. During first appellate proceeding the CIT(A) called remand report from the AO on the submissions of the assessee and after considering the submissions of the assessee, remand report of the AO, assessee’s rejoinder
and assesee’s additional submissions the CIT(A) deleted the addition with following observations and findings:
“I have considered the facts of the case, AR's submissions, AO's remand report, AR’s rejoinder and further submissions of the AR carefully. The only reason harped on the AO for the addition is that it was hard to believe by her that cash was kept by the assessee for deposit back in the bank. She has noted that the explanation offered by the assessee appeared to be impractical and illogical. The AR has placed on record the cash flow statement both during the assessment proceedings as well as the appellate proceedings. The cash flow statement duly shows that the appellant withdrew cash from her SB A/c in the HDFC bank and also withdrew capital balance from her capital account her partnership firm. M/s. Shakti Traders, Meerut. A copy of bank account also has been placed
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on record. The cash flow statement shows that there are cash withdrawal of Rs.19 lakh from HDFC bank on different dates and withdrawal of Rs.13 lakh from her capital account in her partnership firm M/s. Shakti Traders on different dates. There is no negative cash balance at any point of time. It is not the case of the AO that the amounts withdrawn were utilized anywhere else. The AR has also placed on record the audit report of M/s. Shakti Traders along with the ledger account of the appellant. In view of material placed on record, no adverse inference can be drawn against the appellant for explanation that cash withdrawn from the bank and the capital account of her partnership firm was deposited in bank. It is not mandatory under any law of the land that An individual has to keep his/her savings in the bank account only and not as cash in hand. The AR's reliance on the following case laws also support his case:
(i) ACIT vs. Baldev Raj Chalra, 121 (TTJ) 366 (Delhi) 2009;
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(ii) R. K. Dave vs. Income Tax Officer reported in 94 ITJ Jodhpur 19
(09.08.2004)
(iii) Hemant Prabhakar vs. Dy. CIT 31 Tax World 198 (JP)
In the light of the totality of the facts, the addition made by the AO is deleted.”
8. In view of above we noted that the AO, in his remand report could not bring out any fact that the cash withdrawn from Saving Bank Account and
partnership overdraft account was used for other purpose anywhere else then, merely because there was a time gap between withdrawal of cash and its further deposit to the bank account, the amount cannot be treated as income from undisclosed sources u/s 69 of the Act in the hands of the assessee. The AO rejected the explanation of the assessee on hyper technical basis which is not acceptable. On careful perusal of the decisions relied by the Ld. D.R. we are of the view that the facts of the present case are clearly distinguishable as in the present case the explanation offered by the assessee is reliable and acceptable on the touchstone of the prudence of an ordinary man but merely on the ground that the act of assessee created huge interest liability on partnership firm does not enable revenue authorities to consider the cash withdrawn and it deposit to same bank account after a substantial gap of time, as unexplained income u/s 69 A of the Act. Hence, we reach to a conclusion that the AO made addition without any legal and justified reason which
was rightly deleted by the CIT(A). Hence, both the grounds of the assessee are being devoid of merits and dismissed.
9. In the result, appeal of the Revenue is dismissed.
A copy of the decision of jurisdictional ITAT, “Delhi” Bench in the case of ITO, Ward 1(2), Meerut vs. Mrs. Deepali Sehgal, in I.T.A No. 5660/Del/2012 for AY 2009-10 dated 5.9.2014 is being attached herewith.
5. In this regard reliance is also placed on the decision of ITAT, “B” Bench, Delhi in the case of Krishna Agarwal vs. ITO, Ward-1, Pali, in I.T.A No. 53/JODH/2021 for AY 2017-18 dated7.9.2021, wherein the ITAT observed and held as follows:
“13. We have heard the rival contentions and perused the material available on record. The issue under consideration 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
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name of the assessee has been operated by her and the cash has also 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 her name after the death of her husband, for a consideration of Rs 1,31,45,200/- during the financial year 2015-16 and the sale consideration has been received in installments during the financial year 2014-15 and financial 2015-16 directly in her bank account which has been subsequently withdrawn from time to time and due to non-fulfillment of purpose for which the cash was withdrawn, it was again re-deposited in the bank account during the year under consideration. In this regard, it is noted that the assessee in her return of income for A.Y 2016-17 has disclosed sale consideration on sale of plot of land for Rs 1,31,45,200/- and offered capital gains to tax. The plot has been sold through a registered deed and the valuation has been determined at Rs 1,31,45,200/- by the stamp duty authority. Thus, the sale consideration equivalent to stamp duty value has been duly disclosed by the assessee and there is no finding that the assessee has received any amount over and above the declared sale consideration. Therefore, given that the sale consideration has been received directly in the assessee’s bank account, the source of cash withdrawals in the earlier two years has been clearly demonstrated by the assessee and we see no reason but to accept the said explanation which is clearly demonstrated through the sale documentation and tax filings by the assessee.
15. We further note that the cash withdrawals in the earlier two years have not been disputed by the Revenue and only reason why the explanation of the assessee that cash deposits in the year under consideration is out of earlier years withdrawals has not been accepted is that keeping huge cash at home for such a long period is beyond any imagination. In this regard, we believe that there cannot be any standard yardstick which can be applied and what needs to be examined is the reasonability of the explanation so furnished by the assessee on the touchstone of facts and circumstances of each case. In the instant case, it has been submitted that the cash was withdrawn for the purposes of purchase of another property by the assessee for her son however, the transaction couldn’t fructify and as a result, the assessee decided to re-deposit the amount in the bank account. In an ideal situation, such an explanation is expected to be supported by
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some documentary evidence however, mere absence of supporting documentation cannot be a reason enough to allege any malafide in the explanation so submitted especially where the assessee has explained and duly disclosed the source of deposits in the bank account out of which the withdrawals have been made and has thus established the necessary linkage and availability of cash in hand. The various decisions of the Coordinate Benches cited at the Bar by the ld AR also lays down a broad proposition that mere time gap between withdrawals and deposits cannot be a sole basis for rejecting the explanation of the assessee regarding availability of cash in hand where there is no material that amount so withdrawn has been utilized somewhere else and thus supports the case of the assessee. In the entirety of facts and circumstances of the case, we believe that there is no justifiable basis to hold that the explanation so furnished by the assessee cannot be accepted and find the explanation so furnished is reasonable, appropriate and satisfactory in the facts and circumstances of the present case and hereby direct the addition so made be deleted.
In the result, the appeal filed by the assessee is allowed.”
A copy of the decision in the case of Krishna Agarwal vs. ITO, Ward-1, Pali, in I.T.A No. 53/JODH/2021 for AY 2017-18 dated7.9.2021 is being attached herewith
6. With regard to “the cash withdrawn was not utilised” reliance is also placed on the decision of ITAT, “Jodhpur Bench”, Jodhpur in the case of R. K. Dave vs. ITO, 94 TTJ 19, wherein the ITAT observed and held as follows:
“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 withdrawn an amount of Rs. 45,000 on 9th July, 1990 and 10th July, 1990. It is not the case of the Revenue that the amounts so withdrawn were utilized elsewhere. Mere fact that the assessee could not explain the time gap between the amount withdrawn and the investment in NSCs or where the amount was kept would not itself justify the addition. The claim of the assessee could have been rejected only if the source of balance in the bank account was not established or it could have been demonstrated that the amount so withdrawn was utilized elsewhere. This is not the case here. Therefore, we do not find any justification for sustaining the impugned addition. Accordingly, the order of CIT (A) is set aside and the addition is deleted. This ground of appeal is allowed.”
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7. With regard to “the cash withdrawn was not utilised” reliance is also placed on the decision of ITAT, Mumbai Jodhpur in the case of Shri Vijay Dashrath Gupta, in ITA No. 2240/MUM/2018 dated 5.4.2019, wherein the ITAT observed and held as follows:
“8. I have considered rival submission and perused material on record. Undisputedly, in the relevant 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 presumption and surmises. That being the case, since assessee’s contention has not been proved to be false through proper reasoning and supporting material, the addition made under section 68 of the Act cannot be sustained. Accordingly, I delete the addition made by the Assessing Officer. This ground is allowed.”
8. With regard to “the cash withdrawn was not utilised” reliance is also placed on the decision of jurisdictional ITAT, Delhi in the case of Muon Computing (P) Ltd. vs. ITO, in ITA No. 7606/Del/2019 dated 4.8.2021, wherein the ITAT observed and held as follows:
“9. There is no dispute with regard to the fact that Revenue has not brought any material suggesting that the withdrawal made by the assessee were utilized for making payments. It is also not brought on record that the amounts so withdrawn from the bank account was utilized for any other undisclosed purposes. Further, it is noticed that Ld. CIT(A) observed that despite having sufficient cash in hand, the assessee withdraw the amount. It is correct that the assessee has withdrawn higher amounts than the immediate preceding years but that cannot be sole reason for making addition purely on the basis of suspicion. Further, I failed to understand the reasoning of the Assessing Officer that the amount was withdrawn to justify the cash deposits during demonetization period i.e. between 09.11.2016 to 30.12.2016. It is also seen that the cash was withdrawn much prior to event. So far observation regarding sharp increase in payable
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expenses is concerned, there is no finding by the Assessing Officer that such expenses are bogus. Therefore, in my considered view, the addition has been made purely on the basis of suspicion. Such action of authorities below cannot be affirmed. I, therefore, direct the Assessing Officer to delete the impugned addition. Thus, ground raised by the assessee in this appeal is allowed”
Time gap between withdrawals and deposit is not significant
9. With regard to “time gap of withdrawal and deposit and maturity proceeds of earlier FDRs were used” reliance is placed on the decision of ITAT, “Pune Bench”, Pune in the case of Sunanda Sanjay Chandaliya, in ITA No. 1967/PUN/2018 dated 2.5.2019, wherein the ITAT observed and held as follows:
“The view point of the AO in not accepting the genuineness of the source of deposits in the bank account on the ground that the cash was allegedly kept in hand for a long period of two years, in my considered view is not tenable. Once a that such amount was spent elsewhere.
The Hon’ble Kerala High Court in CIT Vs. K. Sreedharan (1993) 201 ITR 1010 (Kerala) has held that: The period of four years between 1976-77 and 1980-81 is not so long a period as to rebut the presumption regarding the continued availability of the amount.
5. Adverting to the facts of the instant case, it is seen that the assessee was regularly filing returns and balance sheets on year to year basis. The availability of cash in hand from maturity of FDRs in past and re-depositing of proceeds in the bank account in the instant year, cannot be doubted as the factum of maturity of FDRs has not been disputed by the AO. When the Hon’ble Kerala High Court in the aforementioned case has accepted the availability of unutilized cash for four years as reasonable, there is no reason to doubt such availability for two years in the instant case. In view of the foregoing discussion, I am satisfied that the addition was wrongly sustained. I, therefore, order to delete the addition.”
Time gap between withdrawals and deposit is not significant and cash was not used elsewhere or otherwise
10. With regard to “time gap of withdrawal and deposit and cash was not used otherwise” reliance is placed on the decision of jurisdictional ITAT, Delhi in the case of Baldev Raj Charla 121 TTJ366, wherein the ITAT observed and held as follows:
.
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“Income from undisclosed sources - Addition under s. 69- Cash deposits – There being no material with IT authorities to show that the amounts of cash deposits in question, admittedly withdrawn from bank and assessee’s concern, were utilized for any other purpose, no addition could be made only on the ground that there was time gap between the withdrawals and the corresponding cash deposits.”
11. With regard to “time gap of withdrawal and deposit and cash was not used otherwise” reliance is also placed on the decision of jurisdictional ITAT, Delhi in the case of Gordhan vs. ITO, in ITA No. 811/Del/2018, wherein the ITAT observed and held as follows:
“but this addition has been confirmed by Ld. CIT (A) on the basis that there is time gap between the assessee’s withdrawals from his own partnership M/s AWI or from his own bank. There is finding recorded by the Ld. AO or by the Ld. CIT (A) that apart from depositing these cash into bank as explained by the assessee, there was any other user by the assessee of these amounts and in the absence of that, simply because there was a time gap, the explanation of the assessee cannot be rejected and hence the addition confirmed by the Ld. CIT (A) is not correct. We, therefore, delete the same. This ground of the assessee is allowed.”
12. With regard to “time gap of withdrawal and deposit and cash was not used otherwise” reliance is also placed on the decision of ITAT, Hyderabad in the case of ITO vs. Shri M Prabhakar, ITA No. 1727/HYD/2014, dated 11.11.2016, wherein the ITAT observed and held as follows:
“9. Considered the rival submissions and perused the material facts on record. The assessee has deposited Rs. 34.70 lakhs during this AY and there is sufficient cash available in his possession as per the cash book and Wealth Tax return submitted by the assessee. The mute question before us is whether the cash deposited was coming out of the cash available with the assessee, which was kept by him for last two years. It was not brought on record why he has withdrawn so much of money and what made the assessee to keep such huge money in hand. But, on record, submitted by the assessee, we find that he had sufficient money. Even the AO could not bring any proof that the assessee has in fact utilized or applied the cash withdrawn two years back, except making a remark that there is no possibility of keeping such amount by the assessee being a NRI. He has not brought on record, why he cannot keep so much of cash in hand and no contrary 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
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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.”
13. With regard to “time gap of withdrawal and deposit and cash was not used otherwise” reliance is also placed on the decision of ITAT, Bangalore in the case of Sri Sampathraj Rakesh Kumar vs. ITO, Ward 5(2)(2), Bangalore, in ITA No. 1451/BANG/2018, dated 3.10.2018, wherein the ITAT observed and held as follows:
“12. Thus, the total cash withdrawn from the bank account by the assessee was Rs.20,91,500 + 17,71,800 which was withdrawn by his self- cheque. There was also a deposit of Rs.9 lakhs in the bank account in March, 2013. After excluding the cash deposit, net cash available with assessee from the withdrawals was a sum of Rs.29,63,000. The availability of cash as a source of deposit in the bank account was disbelieved by the AO for the only reason that it was highly improbable for a person to keep withdrawals in the bank account for a period of two years. In this regard, we find that the Hon’ble Karnataka High Court in the case of S.R. Venkataraman vs. CIT, Karnataka-1 (1981) 127 ITR 807 (Karnataka) had taken a view that withdrawals of cash in the past as a source of deposit at a later point of time in the bank account cannot be disbelieved merely on the surmise that it was improbable for an assessee to keep cash withdrawn for two years. The Hon’ble High Court held that revenue authorities were not competent to dictate as to what the assessee should do with the money withdrawn from the bank. The court held that as long as the source is explained and established and if money is withdrawn from SB account and paid to discharge loan by deposit into a loan account, it is not possible to hold that the source is not explained. The Court also held that money might have been utilised in the interregnum period for some purpose and thereafter appropriated towards discharge of loan. But that fact cannot be held against the assessee. The aforesaid decision of the Hon’ble Karnataka High Court in the facts and circumstances of the present case supports the plea of the assessee. I accordingly hold that the revenue authorities were not justified in rejecting the explanation of assessee with regard to source of deposit of cash in the bank account. The consequent addition made is directed to be deleted and the appeal of the assessee is allowed.
13. In the result, the assessee’s appeal is allowed.”
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Documentary evidence establish availability of cash
14. It may not be out of place to mention that there is no law in the country which prevents citizens to frequently withdraw from and deposit his own money into bank. If documentary evidences furnished before the Revenue authorities clearly clarifies that on each occasion at the time of deposit in bank account, the assesse had sufficient availability of cash, the deposit cannot be doubted. In this respect reliance is placed on the decision of of ITAT, Lucknow in the case of Smt. Veena Awasthi, in ITA No. 201/LKW/2016 dated 30.11.2018, wherein the ITAT observed and held as follows:
“8. We have perused the case record and heard the rival contentions. We find that addition has been made by the Assessing Officer, as is evident from his order, on the ground that he has come to the conclusion that cash deposits were from some
other source of income which is not disclosed to the Revenue. Assessing Officer nowhere in his order has brought out any material on record to show that assessee is having any additional source of income other than that disclosed in the return nor Assessing Officer could spell out in his order that cash deposits made by the assessee was from some undisclosed source. All throughout Assessing Officer has raised suspicion on the behavioral pattern 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.”
Reasons for withdrawal of cash from bank
15. With regard to “non-satisfactory reason for withdrawal of cash from bank account” reliance is placed on the decision of ITAT, Bangalore in the case of Sri Narayan Shibaroor Shibaraya vs. ITO, Ward 3(3)(3), Bangalore, in ITA No. 684/Bang/2022 for AY 2017-18, dated 23.11.2022, wherein the ITAT observed and held as follows:
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“5. I have considered the rival submission. I am of the view that the explanation offered by the Assessee with regard to the source of deposit of Rs.15.00 lakhs in his bank account is satisfactory and therefore, no addition can be made on account of unexplained cash. As rightly contended by the ld. counsel for the Assessee, the withdrawal of cash from the bank account prior to deposit of cash is not disputed by the revenue.
The fact that the Assessee did not explain the reasons for withdrawal of cash from his bank account cannot be the basis to hold that the source of deposit of cash was not explained by the Assessee.
The legal position in this regard is that if the deposit of money in the bank account is preceded by withdrawal of money from the very same bank account, then the source of funds is prima facie demonstrated or explained by the Assessee.
The Honourable Karnataka High Court in the case of S.R.Ventakaratnam Vs CIT, Karnataka-I & Others 127 ITR 807 has held that once the Assessee discloses the source as having come from the withdrawals made on a given date from a given bank, it was not open to the revenue to examine as to what the Assessee did with that money and cannot chose to disbelieve the plea of the Assessee merely on the surmise that it would not be probable for the Assessee to keep the money unutilized.
The decision of the Hon’ble Karnataka High Court supports the plea of the assessee. It is seen that the cash deposits in the bank account are preceded by withdrawal from the very same bank account. I am of the view that the ratio laid down in the aforesaid judgment will apply to the facts of the present case. If the revenue wants to disbelieve the plea of the Assessee then it must show that the previous withdrawal of cash would not have been available with the Assessee on the date of deposit of cash in the bank account. The AO and CIT(A) have proceeded purely on assumption and surmises that cash withdrawn was not available to the Assessee on completely extraneous factors. In our view, the Assessee has satisfactorily explained the source of funds out of which deposit of cash was made in the bank account. I therefore delete the addition made in this regard. Consequently, the appeal of the Assessee is allowed.
6. In the result, appeal of the assessee is allowed.”
A copy of the judgment in the case of Sri Narayan Shibaroor Shibaraya vs. ITO, Ward 3(3)(3), Bangalore, in ITA No. 684/Bang/2022 for AY 207-18, dated 23.11.2022 is being attached herewith.
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Availability of cash is not doubted
16. With regard to “availability of cash not doubted” reliance is placed on the decision of ITAT, Pune in the case of Mrs. Usha Narayan Chaware vs. ITO, Ward 4(5), Pune, in ITA No. 377/PUN/2022 for AY 2017-18, dated 24.2.2023, wherein the ITAT observed and held as follows:
“4. Briefly stated, the facts of the case are that the assessee, before his death, was a retired Government servant at the material time. During the course of assessment proceedings, the AO observed that the assessee deposited cash of Rs.17.00 lakh in his bank account on different dates during the demonetization period. On being called upon to explain the source, the assessee submitted that he along with his brother, Shri Vilas Dattatraya Chaware, sold certain agricultural land for a sum of Rs.38.00 lakh on 12-04-2013. The assessee’s share in such sale consideration was Rs.19.00 lakh. It was stated that the cash was kept with his brother for purchase of another property in the nearby vicinity, but the transaction of new purchase could not materialize. The AO called upon the assessee to furnish details of his monthly expenses which was duly furnished along with source thereof. The AO refused to accept the source of cash deposit of Rs.17.00 lakh in bank account during demonetization period on the ground that the agricultural land was sold in 2013 and the cash was deposited in 2016. He, therefore, made the addition of the said sum u/s.69A r.w.s.115BBE of the Act. No relief was allowed by the CIT(A), against which the assessee has approached the Tribunal.
5. Having heard both the sides and gone through the relevant material on record, it is found as an admitted position that the assessee did sell its ancestral agricultural land in the year 2013 for a sum of Rs.38.00 lakh along with his brother. The assessee’s share in such sale consideration was Rs.19.00 lakh. The assessee submitted before the A that his share of cash of Rs.19.00 lakh was kept with his brother who was looking after the agricultural operations previously and both of them decided to purchase a new agricultural land in their joint name. Unfortunately, the brother passed away in the month of June, 2016 and his sister in law handed over his share of cash in the months of August and September, 2016, which was deposited in the bank account during November, 2016. The fact that the assessee along with his brother sold agricultural land for a sum of Rs.38.00 lakh has not been denied by the AO. 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. Further, the assessee also explained his monthly domestic expenses and also the sources thereof, which was also disputed by the AO. I, therefore, order to delete the addition.
6. In the result, the appeal is allowed.”
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A copy of the judgment in the case of ITAT, Pune in the case of Mrs. Usha Narayan Chaware vs. ITO, Ward 4(5), Pune, in ITA No. 377/PUN/2022 for AY 2017-18, dated 24.2.2023, is being attached herewith.
Availability of cash as opening balance as bank withdrawal is not doubted
17. With regard to “availability of cash as opening cash balance and bank withdrawals not doubted” reliance is also placed on the decision of ITAT, Mumbai in the case of Shri Shail Jayash Shah vs. ITO, Ward 20(3)(3), Mumbai, in ITA No. 1102/Mum/2022 for AY 2017-18, dated 2.1.2023, wherein the ITAT observed and held as follows:
“9. We have considered the rival submissions and perused the material available on record. In the present case, the cash amounting to Rs.6 lakh deposited by the assessee during the demonetization period was added in the hands of the assessee by treating the same as unexplained money under section 69A of the Act. As per the assessee, the sum of Rs.6 lakhs was deposited by him on 01/12/2016, in its bank account maintained with Kotak Mahindra Bank. As regards the source of cash deposit, the assessee submitted that Rs.1,40,000, is out of the cash withdrawal from its bank account maintained with Kotak Mahindra Bank and HDFC Bank. Further, the remaining amount of Rs.4,96,031, is the opening cash in hand for the year under consideration. We find from the copy of the income tax return for the assessment year 2016–17, which was filed by the assessee on 05/08/2016, that the assessee had closing cash in hand of Rs.4,96,031, and the said amount was also disclosed by the assessee while filing its return of income in Part A–BS(6). As per the assessee, its return for the preceding assessment year has been accepted by the Revenue. It is pertinent to note that there is no material available on record contrary to the aforesaid submission of the assessee. Further, the submission of the assessee that Rs.1 lakh was withdrawn in cash by the assessee from its bank account maintained with Kotak Mahindra Bank on 18/10/2016 and Rs. 40,000, has been withdrawn in cash on various dates from its bank account maintained with HDFC Bank is duly corroborated from the copy of bank statements of Kotak Mahindra Bank and HDFC Bank, forming part of the paper book from pages 9–20.
10. From the copy of the bank statement of Kotak Mahindra Bank, we find that assessee had deposited Rs.6 lakh in cash in 600 old currency notes of Rs. 1000 denomination on 01/12/2016. At a glance, it may appear that since the assessee had sufficient cash in hand amounting to Rs. 6,36,031, therefore, the aforesaid deposit of cash would have been made on 01/12/2016, out of the said balance. At the same time, we cannot be oblivious to the fact that the assessee had also incurred certain expenses in cash. From the perusal of the cash book of the assessee for the year under consideration, forming part of the paper book from pages 4–7, we find that as on 01/11/2016, the assessee had an opening balance of
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Rs.5,25,114. It cannot be disputed that the demonetisation was declared on 08/11/2016, and therefore the cash available with the assessee till that day can only be in old currency notes. Further, from the cash book, it is evident that after 08/11/2016, assessee withdrew total cash of Rs.1,12,000 (Rs.60,000 + Rs.2000 + Rs.2000 + Rs.24,000 + Rs.24,000) on various dates from its bank accounts maintained with Kotak Mahindra Bank, HDFC Bank, and Syndicate Bank. The assessee also has shown to have incurred an expenditure of Rs.27,453, in cash in November 2016. Thus, as on 01/12/2016, the assessee had an opening balance of Rs.6,09,661. It is pertinent to note that after 08/11/2016, the old currency notes were not legal tender and thus any cash which was withdrawn by the assessee after that date can only be in the new currency or the valid currency. Therefore, the cash withdrawn after 08/11/2016, cannot be said to have been in old currency notes which were available for deposit with the assessee on 01/12/2016. Hence, cash in hand till 08/11/2016, can only be in old currency notes which can be considered to have been deposited by the assessee on 01/12/2016. As noted above, as per the cash book, the opening balance as on 01/11/2016 was only Rs.5,25,114. Since the assessee had deposited Rs.6 lakh in cash in 600 old currency notes of Rs. 1,000, denomination on 01/12/2016, therefore, we are of the considered view that the source of deposit of only Rs.5,25,114, in old currency notes can be said to have been satisfactorily explained by the assessee. Therefore, to this extent, the AO is directed to delete the addition. As regards the balance amount of Rs.74,886, the assessee has not given any satisfactory explanation and thus, the addition is upheld to an extent of Rs.74,886. Accordingly, the sole ground raised by the assessee is partly allowed.
11. In the result, the appeal by the assessee is partly allowed. “
A copy of the judgment in the case of ITAT, Mumbai in the case of Shri Shail Jayash Shah vs. ITO, Ward 20(3)(3), Mumbai, in ITA No. 1102/Mum/2022 for AY 2017-18, dated 2.1.2023, is being attached herewith.
Cash withdrawn from bank for marriage but not spent and re-deposited into bank
18. With regard to “Cash withdrawn from bank for marriage but not spent and re-deposited into bank” reliance is placed on the decision of ITAT, Delhi in the case of Harjeet Kaur vs. ITO, Ward 44(1), Delhi, in ITA No. 2013/Del/2021 for AY 2017-18, dated 25.10.2022, wherein the ITAT observed and held as follows:
“4. I have considered rival submissions and perused the materials on record. As far as factual aspect relating to the issue in dispute is concerned, admittedly, the assessee had deposited cash in her bank accounts during the demonetization period. However, before the Assessing Officer, the assessee had explained that such deposits were out of cash withdrawals made earlier by her for the purpose of
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her daughter’s marriage. The Assessing Officer has partly accepted assessee’s contention on the reasoning that the entire cash deposited in the bank account could not have been available with the assessee, as, she must have utilized a major part of it in the marriage of her daughter. However, while coming to such conclusion, the Assessing Officer has completely discarded assessee’s contention that she did not incur much expenditure in the marriage as, firstly, it was a love marriage and secondly, it was performed in a Gurudwara in the presence of close relatives.
5. In my view, the explanation furnished by the assessee is believable, when the Assessing Officer has not brought on record any contrary material to demonstrate that the assessee must have incurred more expenditure in her daughter’s marriage than what she claimed. In fact, it is not a case where the Assessing Officer has completely disbelieved assessee’s contention that the cash deposits made in the bank accounts were out of withdrawals available with her. This is so because, though, amount of Rs.22,01,000/- was deposited during the demonetization period, however, ultimately, the Assessing Officer has added an amount of Rs.12,01,000/-. Having considered overall facts and circumstances of the case, I am of the view that the addition made by the Assessing Officer is unsustainable. Accordingly, I delete the addition.
5. In the result, the appeal is allowed”
A copy of the judgment in the case ITAT, Delhi in the case of Harjeet Kaur vs. ITO, Ward 44(1), Delhi, in ITA No. 2013/Del/2021 for AY 2017-18, dated 25.10.2022, is being attached herewith.
Cash withdrawn from bank for medical requirements but not spent and re-deposited into bank
19. With regard to “Cash withdrawn from bank for medical requirements but not spent and re-deposited into bank” reliance is placed on the decision of ITAT, Delhi in the case of Krishna Goyal vs. ACIT, Circle – 14, New Delhi, in ITA No. 1947/Del/2022 for AY 2017-18, dated 28.12.2022, wherein the ITAT observed and held as follows:
“8. I have considered rival submissions and perused the material available on record.
9. In so far as the factual aspects of the issue is concerned, there is no dispute that post-demonetization, the assessee had deposited cash amounting to Rs.23,00,000 in her bank account.
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10. In course of assessment proceedings, the assessee has explained the source of deposits in the bank account to be out of the withdrawals made from the very same bank account. However, the Assessing Officer as well as learned Commissioner (Appeals) have partly accepted the explanation of the assessee only to the extent of Rs. 5,00,000 withdrawal from the bank account on 07.11.2016, just prior to declaration of demonetization. As far as the balance amount of Rs.18,00,000 is concerned, assessee’s claim has been disbelieved. From the details available on record, it is observed that before the departmental authorities, the assessee had stated that she had withdrawn Rs. 26,00,000 from her bank account in financial years 2015-16 and 2016-17. From the details on record, it is observed that an amount of Rs.21,00,000 was withdrawn on three consecutive dates in financial year 2015-16 i.e. on 22nd, 23rd and 24th June, 2015. A further amount of Rs.5,00,000 was withdrawn on 07.11.2016. Apparently, the departmental authorities have not accepted assessee’s claim of availability of cash amounting to Rs.21,00,000 withdrawn in financial year 2015-16, since, such withdrawals were in close proximity to the date of demonetization. However, it is observed, from the stage of assessment proceedings itself, the assessee had explained that she is a terminally ill and for meeting any medical emergency, sufficient cash is kept at her hands. There is no adverse factual finding of the departmental authorities regarding the medical condition of the assessee. Thus, considering the fact that the assessee is facing serious medical condition, her explanation that cash withdrawals made earlier were kept at hand for meeting any medical emergency, to some extent, is believable. Therefore, the benefit of doubt can be given to the assessee.
11. In view of the aforesaid, I delete the addition of Rs.18,00,000.
12. In the result, the appeal is allowed, as indicated above.”
A copy of the judgment in the case of ITAT, Delhi in the case of Krishna Goyal vs. ACIT, Circle – 14, New Delhi, in ITA No. 1947/Del/2022 for AY 2017-18, dated 28.12.2022, is being attached herewith.
Cash deposited in bank by housewife to the extent of Rs. 2.5 lakjh
20. With regard to “Cash deposited y house wife up to Rs. 2.5 lakh” reliance is placed on the decision of ITAT, Delhi in the case of Neeru Jain vs. ITO, Ward 67(4), Delhi, in ITA No. 8727/Del/2021 for AY 2017-18, dated 14.10.2021, wherein the ITAT observed and held as follows:
“7. I have heard the rival submissions and perused the materials available on record. The issue in the present ground is with respect to cash deposits made during the demonetization period. It is an undisputed fact that assessee had deposited Rs.2.50 lakh in cash in her bank account during the demonetization
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period and the entire amount was treated as unexplained by the AO. When the matter was carried before the CIT(A), CIT(A) grant relief to Rs.50,000/- and upheld the addition to the extent of Rs.2,00,000/-. Before me, assessee has submitted that the deposits to be out of accumulated savings and out of the cash gifts received by her on the occasion of birthdays and anniversaries. It is also a fact that assessee’s husband is an income tax payer working for an MNC.
8. Considering the aforesaid facts and in view of the CBDT Circular (supra) and relying on the decision of Co-ordinate Bench of Agra Tribunal in the case of Smt. Uma Agrawal (supra), I am of the view that the explanation of the assessee about the source of cash deposits cannot be brushed aside without there being any evidence to the contrary. I therefore direct the deletion of the addition of Rs.2 lakh upheld by CIT(A). Thus the ground of the assessee is allowed.
9. In the result, appeal of the assessee is allowed.”
A copy of the judgment in the case of , Delhi in the case of Neeru Jain vs. ITO, Ward 67(4), Delhi, in ITA No. 8727/Del/2021 for AY 2017-18, dated 14.10.2021, is being attached herewith.
21. With regard to “Cash deposited y house wife up to Rs. 2.5 lakh” reliance is placed on the decision of ITAT, Agra in the case of Uma Agrawal vs. ITO, Ward 1(3), Gwalior, in ITA No. 8727/Del/2021 for AY 2017-18, dated 14.10.2021, wherein the ITAT observed and held as follows
“29. In our opinion assessee had duly explained the source of deposit i.e previous years saving and we have no hesitation to accept the same, as it would been presumed that this small amount of Rs 2,21,000/ would have been accumulated or saved by her from various activities undertaken by her for and on behalf of family in last many years . Further as mentioned herein above, in the decision of Kirti ( supra), women per say cannot be said to be not having income from any activities, as they are presumed to always been doing economic activities in the family for many years, hence in our view the assessee had duly explained the source of her investment. Therefore no additions can be made by lower authority. Further even if we ignore the explanation, for the sake of argument, then also it is for the assessing officer to bring on record some cogent evidence to prove that the amount deposited in the bank was undisclosed income arising from the business or from any other activities. No evidence has been brought on record by the lower authorities. Hon'ble Supreme Court in the matter of Smt. P.K. Noorjahan[1999] 103 Taxman 382 (SC) it was held as-
"3. Shri Ranbir Chandra, the learned counsel appearing for the revenue, has urged that the Tribunal as well as the High Court were in error in their interpretation of section 69. The submission is that once the
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explanation offered by the assessee for the sources of the investments found to be non-acceptable the only course open to the ITO was to treat the value of the investments to be the income of the assessee. The submission is that the word 'may' in section 69 should be read as 'shall'. We are unable to agree. As pointed out by the Tribunal, in the corresponding clause in the Bill which was introduced in the Parliament, the word 'shall' had been used but during the course of consideration of the Bill and on the recommendation of the Select Committee, the said word was substituted by the word 'may'. This clearly indicates that the intention of the Parliament in enacting section 69 was to confer a discretion on the ITO in the matter of treating the source of investment which has not been satisfactorily explained by the assessee as the income of the assessee and the ITO is not obliged to treat such source of investment as income in every case where the explanation offered by the assessee is found to be not satisfactory. The question whether the source of the investment should be treated as income or not under section 69 has to be considered in the light of the facts of each case. In other words, a discretion has been conferred on the ITO under section 69 to treat the source of investment as the income of the assessee if the explanation offered by the assessee is not found satisfactory and the said discretion has to be exercised keeping in view the facts and circumstances of the particular case.
4. In the instant case, the Tribunal has held that the discretion had not been properly exercised by the ITO and the AAC in taking into account the circumstances in which the assessee was placed and the Tribunal has found that the sources of investments could not be treated as income of the assessee. The High Court has agreed with the said view of the Tribunal. We also do not find any error in the said finding recorded by the Tribunal. There is, thus, no merit in these appeals and the same are, accordingly, dismissed. No order as to costs."
30. The word "may" had been used by the statute under section 69A , as had been used by the statute under section 69 of the Income Tax Act 1961, therefore applying the same analogy as laid down by SC in the case of Smt. P.K. Noorjahan (supra) , we are of the opinion that the amount deposited by the assessee during the demonetisation cannot be treated as income of the assessee.
Hence the appeal of the assessee is allowed.
31. We may clarify that this decision may be treated as precedent in respect to proceedings arising out of the cash deposit made by the housewives during the demonetization scheme 2016, only up to the limit of Rs 2.5 lakhs only.”
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A copy of the judgment in the case of , ITAT, Agra in the case of Uma Agrawal vs. ITO, Ward 1(3), Gwalior, in ITA No. 8727/Del/2021 for AY 2017-18, dated 14.10.2021, is being attached herewith.
Encl:
(i) Copy of decision ofl ITAT, “B” Bench, Delhi in the case of ITO, Ward 1(2), Meerut vs. Mrs. Deepali Sehgal, in I.T.A No. 5660/Del/2012 for AY 2009-10 dated 5.9.2014.
(ii) Copy of decision of ITAT Jodhpur in the case of Krishna Agarwal vs. ITO, Ward-1, Pali, in ITA No. 53/JODH/2021 for AY 2017-18 dated 7.9.2021.
(iii) Copy of decision of ITAT, Bangalore in the case of Sri Narayan Shibaroor Shibaraya vs. ITO, Ward 3(3)(3), Bangalore, in ITA No. 684/Bang/2022 for AY 207-18, dated 23.11.2022.
(iv) Copy of decision of ITAT, Pune in the case of Mrs. Usha Narayan Chaware vs. ITO, Ward 4(5), Pune, in ITA No. 377/PUN/2022 for AY 2017-18, dated 24.2.2023
(v) Copy of decision of ITAT, Mumbai in the case of ITAT, Mumbai in the case of Shri Shail Jayash Shah vs. ITO, Ward 20(3)(3), Mumbai, in ITA No. 1102/Mum/2022 for AY 2017-18, dated 2.1.2023, is being attached herewith.
(vi) Copy of decision of ITAT, Delhi in the case of Harjeet Kaur vs. ITO, Ward 44(1), Delhi, in ITA No. 2013/Del/2021 for AY 2017-18, dated 25.10.2022
(vii) Copy of decision of ITAT, Delhi in the case of Krishna Goyal vs. ACIT, Circle – 14, New Delhi, in ITA No. 1947/Del/2022 for AY 2017-18, dated 28.12.2022.
(viii) Copy of decision of ITAT, Delhi in the case of Neeru Jain vs. ITO, Ward 67(4), Delhi, in ITA No. 8727/Del/2021 for AY 2017-18, dated 14.10.2021
(ix) Copy of decision of ITAT, Agra in the case of Uma Agrawal vs. ITO, Ward 1(3), Gwalior, in ITA No. 8727/Del/2021 for AY 2017-18, dated 14.10.2021, is being attached herewith.
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Conceived and prepared by
CA Rajiv Kumar Jain
9810288997
27.8.2023